FCC 98-55
| In the Matter of | ) | |
| ) | ||
| Implementation of Section 255 of the | ) | |
| Telecommunications Act of 1996 | ) | |
| ) | WT Docket No. 96-198 | |
| Access to Telecommunications Services, | ) | |
| Telecommunications Equipment, and | ) | |
| Customer Premises Equipment | ) | |
| by Persons with Disabilities | ) |
| Adopted: April 2, 1998 | Released: April 20, 1998
|
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Comment Date: June 30, 1998 Reply Comment Date: August 14, 1998 By the Commission: Commissioners Furchtgott-Roth, Powell and Tristani issuing separate statements. | |
1. The Telecommunications Act of 1996(1) paved the way for a new era of greater competition and consumer choice in telecommunications for the American people. But the promise of the 1996 Act was not limited to promoting choice in telecommunications -- it was also about ensuring that all Americans can gain the benefits of advances in telecommunications services and equipment. One of the key provisions of the Act promoting the goal of universal access is Section 255,(2) which seeks to increase the accessibility of telecommunications services and equipment to the 54 million Americans with disabilities.(3)
2. Given the fundamental role that telecommunications has come to play in today's world, we believe the provisions of Section 255 represent the most significant governmental action for people with disabilities since the passage of the Americans with Disabilities Act of 1990.(4) Inability to use telecommunications equipment and services can be life-threatening in emergency situations, can severely limit educational and employment opportunities, and can otherwise interfere with full participation in business, family, social, and other activities. We must do all we can to ensure that people with disabilities are not left behind in the telecommunications revolution and consequently isolated from contemporary life.
3. In Section 255, Congress set forth a broad but practical mandate: manufacturers and service providers must ensure that their telecommunications equipment and services are accessible to those with disabilities, to the extent that it is readily achievable to do so. Congress gave responsibilities both to the Commission and to the Architectural and Transportation Barriers Compliance Board ("Access Board" or "Board")(5) to carry out this mandate. We intend to carry out the broad guarantee in a practical, commonsense manner. First and foremost, we must never lose sight of the end goal, which is ensuring that consumers with disabilities have access to telecommunications services and equipment. Critical to achieving this goal, industry must have incentives to consider disability issues at the beginning of the development and design process -- and on an ongoing basis. It is our tentative view that we must allow industry the flexibility to innovate and to marshal its resources toward the end goal, rather than focusing on complying with detailed implementation rules. And in a similar vein, we at the Commission must focus our resources efficiently by handling complaints in a streamlined, consumer-friendly manner with an eye toward solving problems quickly.
4. Since Section 255 became effective on February 8, 1996, the Commission's Disabilities Issues Task Force and other staff have spent considerable time discussing accessibility issues with persons with disabilities, consumer groups, equipment manufacturers, service providers, and others. In September 1996 the Commission issued a Notice of Inquiry,(6) and subsequently received responsive comments. The staff also have consulted on an ongoing basis with the Access Board, which in February 1998 issued accessibility guidelines with respect to equipment.(7) This Notice of Proposed Rulemaking (Notice) draws extensively from all of these sources.
5. At the outset of the Notice, we explore our legal authority under Section 255, and tentatively conclude that the Commission has authority to establish rules to implement Section 255. We also explore other issues related to Commission jurisdiction, including the relationship between the Commission's authority under Section 255 and the guidelines established by the Access Board.(8)
6. We then seek comment on the interpretation of specific statutory terms that are used in Section 255. Many of the terms are defined elsewhere in the Communications Act,(9) and we seek comment on our tentative view that we are bound by these definitions in the context of Section 255. Other terms have been incorporated from the ADA. We seek comment on how these terms can be made workable in the context of telecommunications services and equipment. In particular, the Notice addresses certain aspects of the term "readily achievable," contained in Section 255. We propose to adopt the ADA definition, but also propose to establish specific factors related to Section 255 accessibility issues that would be considered in evaluating whether making a telecommunications service or equipment accessible or compatible should be considered "readily achievable."
7. We next set forth proposals to implement and enforce the requirement of Section 255 that telecommunications offerings be accessible to the extent readily achievable. The centerpiece of these proposals is a "fast-track" process designed to resolve many accessibility complaints informally, providing consumers quick solutions and freeing manufacturers and service providers from the burden of more structured complaint resolution procedures. In cases where fast-track solutions are not possible, however, or where there appears to be an underlying failure to comply with Section 255, we would pursue remedies through more conventional processes. In both cases, in assessing whether service providers and equipment manufacturers have met their accessibility obligations under Section 255, we would look favorably upon demonstrations by companies that they considered accessibility throughout the development of telecommunications services and equipment.
A. Legislation
8. The 1996 Act became effective when the President signed it on February 8, 1996. Its principal provisions regarding access for persons with disabilities are contained in Section 255:
Section 255(a) defines the terms "disability" and "readily achievable" by referencing the ADA.
Section 255(b) requires that a manufacturer of telecommunications equipment or customer premises equipment (CPE) ensure that the equipment(10) is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable.
Section 255(c) requires that a provider of telecommunications service ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.
If the accessibility requirements of Sections 255(b) and 255(c) are not readily achievable, Section 255(d) requires manufacturers and service providers to ensure compatibility with existing peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve access, if readily achievable.
A related provision in Section 251(a)(2) of the Act prohibits a telecommunications carrier from installing network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to Section 255.(11)
9. Section 255 explicitly assigns the Commission two specific responsibilities: (1) to exercise exclusive jurisdiction with respect to any complaint under Section 255;(12) and (2) to coordinate with the Access Board in the development of guidelines for accessibility of telecommunications equipment and customer premises equipment.(13) The Access Board's role is significant because the Board is an independent Federal agency whose primary mission is accessibility for persons with disabilities.(14)
10. The broad accessibility mandate of Section 255 is a contrast to other, more targeted portions of the Act that are intended to enhance accessibility for a certain population. Some examples include: (1) Section 225, which governs Telecommunications Relay Services (TRS) for individuals with hearing and speech disabilities; (2) Section 710, requiring hearing aid compatibility (HAC) for wireline telephones; and (3) Section 713, requiring accessibility of video programming (closed captioning).(15) The Commission has promulgated rules implementing each of these three statutory provisions.(16)
B. Commission Notice of Inquiry
11. The Commission initiated the implementation of Section 255 by adopting a Notice of Inquiry in September 1996. The Notice of Inquiry began our examination of three broad areas:
Threshold jurisdictional issues involving the Commission's authority over telecommunications service providers and equipment manufacturers.
Statutory definitions, primarily focusing on terms incorporated from the ADA and terms defined by the Communications Act.
Implementation and enforcement issues, including approaches to service accessibility standards and the relationship between the Access Board guidelines and the Commission's enforcement authority.
In response to the Notice of Inquiry, 61 individuals, organizations, and businesses filed comments, reply comments, or both. A list of pleadings and the short-form references to filing parties used herein is contained in Appendix D.
C. Telecommunications Access Advisory Committee Report
12. Following passage of the 1996 Act, the Access Board convened a Telecommunications Access Advisory Committee,(17) which then met to develop recommended equipment accessibility guidelines for consideration by the Access Board. The TAAC consisted of representatives from equipment manufacturers, software firms, telecommunications providers, organizations representing persons with disabilities, and other persons interested in telecommunications accessibility. Commission staff attended all Committee sessions as non-voting observers, and consulted with the Access Board staff throughout the advisory committee process.
13. The Committee was given the task of making recommendations regarding the following issues:
Types of equipment to be covered by the Access Board guidelines.
Barriers to the use of such equipment by persons with disabilities.
Solutions to such barriers, if known, categorized by disability.
Terms and conditions that should be included in the Access Board guidelines.
The Committee released its Final Report in January 1997.(18)
14. Although the TAAC did not achieve full consensus on compliance and coordination issues, it did succeed in reaching agreement on several innovative measures intended to foster implementation of accessibility features. These recommendations included the development of technical standards for telecommunications accessibility by means of industry consensus,(19) the establishment of a "coordination point" for the exchange of information on accessibility implementation,(20) and the adoption by manufacturers of an access verification process to provide notice to the consumer on the accessibility or compatibility of various products.(21)
15. The TAAC Report also made specific recommendations regarding the handling of complaints by the Commission, including efforts at informal resolution and initial referral of complaints to manufacturers,(22) and suggested that the Access Board prepare an annual market monitoring report based on Commission complaint data.(23) The Committee encouraged covered entities to use universal design in manufacturing telecommunications equipment and CPE, while recognizing that "it may not be readily achievable to make every type of product accessible for every type of disability using present technology."(24) The TAAC also recommended process and performance standards, although it recognized that "design, development, and fabrication" processes are unique to individual manufacturers, who would decide how each recommended element of the accessible design process may be integrated into the overall product design effort.(25) With respect to performance guidelines, the TAAC concluded that, because no single interface design will accommodate all disabilities, companies must use discretion in choosing among accessibility features.(26)
D. Access Board Equipment Guidelines
16. Following its review of the TAAC Report and its consideration of comments submitted in response to the Access Board Notice, the Access Board adopted Telecommunications Act Accessibility Guidelines for equipment.(27) The Access Board guidelines draw heavily on the TAAC Report recommendations regarding process and performance guidelines. The guidelines consist of: (1) general accessibility requirements; (2) specific guidance on modes for input and output functions; and (3) standards for compatibility with peripheral devices and specialized CPE.
17. Some of the Access Board guidelines are relatively general. The key general guideline specifies a process for manufacturers to review accessibility in the design and development stage. Rather than mandating a particular structure for such a process or imposing a documentation requirement, the guidelines identify key elements the process should contain. Other general guidelines include the provision of information and documentation for customers in accessible formats, employee training, and the preservation of translation protocols and similar information needed to provide accessible telecommunications. The Board also would prohibit changes that would result in a net decrease in the accessibility of telecommunications equipment.(28)
18. The specific guidelines further define what is necessary to make equipment accessible. The Access Board specifies, to the extent it is readily achievable, that each piece of equipment have "input modes" (e.g., dialing a telephone or turning on a switch) and "output modes" (e.g., a telephone ring or flashing light) that are accessible to persons with different disabilities.(29) For example, input functions to accommodate low vision may include tactile indicators on control keys; high-contrast print symbols and visual indicators; legible type-face and type-spacing for labels; and an ability to "freeze" a moving text display. Similarly, output functions to accommodate low vision may include speech output of displayed text and labels; large, high-contrast text and graphics; and an ability to "freeze" a moving text display.(30)
19. For compatibility, the guidelines specify that product operation information be provided in a standard electronic text format on a standard cross-industry port, and that products employ "standardized and non-proprietary" formats for information.(31) The guidelines also specify that products providing auditory output do so at a standard signal level through a standard connector, to enable use of assistive listening devices.(32)
20. The Access Board Order contains an Appendix which is intended to be advisory in nature, providing expanded descriptions of the guidelines and offering suggestions as to strategies or measurements to assist in achieving accessible design.(33) Other sections of the Appendix provide detailed information on products used by persons with disabilities to enable compatible design. For example, the Appendix suggests that documents prepared for electronic transmission be in ASCII format in order to be usable by the widest range of CPE, and that certain standard formatting instructions be used in order to be properly understood by automated Braille translation software.(34) Thus, the Appendix may serve as a compendium of detailed specifications to facilitate the implementation of the Board's performance standards and process-oriented rule.
A. Introduction
21. The Notice of Inquiry noted that the Commission possesses exclusive authority with respect to complaints under Section 255(f). It also noted that Section 255(f) authorizes the Commission to work in conjunction with the Access Board to develop guidelines for accessibility of telecommunications equipment and CPE.(35)
22. The Notice of Inquiry observed that Section 255(f) provides that "[t]he Commission shall have exclusive jurisdiction with respect to any complaint under [Section 255]," and expressed the Commission's view that Section 255 has established a new statutory right for aggrieved parties to file complaints -- a right that is independent of, and in addition to, the right to file complaints against common carriers under Sections 207 and 208.(36) Section 207 allows individuals to seek damages either by private actions against carriers in Federal courts, or by recourse to the Commission's complaint process.(37) Section 208 governs complaints against common carriers filed with the Commission.(38) The Notice of Inquiry sought comment on appropriate procedures for Section 255 complaints, and on the relationships between such procedures and the general common carrier complaint processes developed pursuant to Section 208 of the Communications Act.(39)
23. In the Notice of Inquiry, the Commission also solicited comment on the interpretation that violations of Section 255 are subject only to complaints brought against common carriers under Section 208, so that no complaints could be brought against equipment manufacturers for violations of Section 255(b).(40) Finally, in light of the prohibition of private rights of action in Section 255(f), the Commission also sought comment on the congressional intent evidenced by the reference in the Statement of Managers accompanying the Conference Report to Section 207, which grants individuals the right to file suit in Federal courts.(41)
B. Scope of Rulemaking Authority
24. In the Notice of Inquiry, the Commission stated that it has general authority to select from among a variety of approaches to implementing Section 255.(42) These approaches included relying on case by case determinations on complaints, issuing guidelines or a policy statement, or promulgating rules pursuant to existing provisions of the Communications Act.(43) We find that, in Section 255, Congress enacted broad principles that require interpretation and implementation in order to ensure an efficient, orderly, and uniform regime governing access to telecommunications services and equipment. As a result, we tentatively conclude that this regime can best be implemented if we adopt specific guidance concerning the requirements of Section 255, which will enable the Commission to carry out its enforcement obligations under the Communications Act effectively and efficiently.
25. We reject the suggestion of some parties that we limit our involvement to complaint proceedings or to non-binding guidelines.(44) Such an approach could result in inconsistent and uncertain application of the requirements of Section 255, undermining the goal of providing for greater access and availability of telecommunications to Americans with disabilities. Providing further guidance and assistance to the affected parties may also potentially reduce the costs of compliance, because parties could minimize the litigation of individual disputes and interpretive questions arising under Section 255.
26. It is well established that the Commission possesses authority to adopt rules to implement the requirements of the Communications Act. Several statutory provisions authorize the Commission to adopt rules it deems necessary or appropriate in order to carry out its responsibilities under the Communications Act, so long as those rules are not otherwise inconsistent with the Act or other law.(45) Specifically, Section 4(i) of the Communications Act explicitly permits the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the] Act, as may be necessary in the execution of its functions."(46) Section 201(b) provides that "[t]he Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act."(47) Section 303(r) provides that the Commission may "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act . . . ."(48)
27. Courts repeatedly have held that the Commission's general rulemaking authority is "expansive" rather than limited.(49) In addition, it is well established that the agency has the authority to adopt rules to administer congressionally mandated requirements.(50) Nothing in Section 255 bars the Commission from exercising the rulemaking authority granted by Sections 4(i), 201(b), and 303(r) to clarify and implement the requirements of Section 255. Consequently, we find there is ample authority for the Commission's adoption of regulations implementing Section 255.
28. Some parties question our rulemaking authority,(51) but they neither acknowledge the plain language of the statute, nor claim that ambiguities in the wording of the statute compel reliance upon legislative history to discern the intent of Congress. Contrary to arguments advanced by CEMA and SWBT, deletion of language in the Senate bill requiring the Commission to promulgate rules removes the mandatory direction, but does not affect the Commission's general authority.(52) Absent from the language of Section 255 is any limitation on the Commission's authority. To the contrary, the first sentence of Section 255(f), which bars private rights of action "to enforce any requirement of this section or any regulation thereunder," expressly contemplates the promulgation of regulations to carry out the section.(53) Thus, the Conference Committee deletion referenced by the parties(54) cannot reasonably be deemed an implied "prohibition"; rather, it leaves rulemaking discretion to the Commission, to be exercised consistently with other provisions of the Act.
C. Access Board Equipment Guidelines
29. Section 255(e) directs the Access Board to develop equipment accessibility guidelines "in conjunction with" the Commission, and to periodically review and update the guidelines, but the statute does not otherwise specify the role of the guidelines in the Commission's implementation process.(55) As we have discussed above, the language of Section 255 indicates that Congress intended to confer upon the Commission broad substantive authority to implement the requirement that telecommunications equipment and services be accessible, and gives the Commission exclusive authority to enforce that mandate.(56) In the Access Board Order, the Board states only that "Congress clearly intended that the FCC's actions be consistent with the Board's guidelines."(57)
30. We view the Board's guidelines as our starting point for the implementation of Section 255. We note that, as a practical matter, we must strive to interpret Section 255 in a way that ensures that telecommunications services and equipment will be treated consistently. Because the Board's guidelines address only the accessibility of equipment, we must necessarily adapt the Board's guidelines to develop a coordinated approach to accessibility for both services and equipment.(58) This coordination is particularly necessary because technological developments have resulted in a convergence between telecommunications equipment and services, requiring us to consider both as we implement the statute. We therefore tentatively conclude that while we have discretion regarding our use of the Access Board's guidelines in developing our comprehensive implementation scheme, we propose to accord the guidelines substantial weight in developing our own regulations and in our broader structure for implementation.(59) We seek comment on this approach.
D. Enforcement Authority
31. In response to the Notice of Inquiry, CEMA asserts that "[p]rivate complaints against non-common carriers were not authorized under the Communications Act prior to the adoption of Section 255 . . ."(60) and that "Section 255(f) expressly prohibits the creation of any new private rights of action."(61) CEMA notes that "[t]he final statutory language of Section 255 makes no reference to any new enforcement or complaint authority . . . "(62) and cites language in the Statement of Managers(63) as "suggest[ing] that only existing remedies under the Communications Act are available for enforcement."(64) CEMA maintains that the Commission's enforcement authority with respect to equipment manufacturers is thus governed by Section 4(i) of the Act, which, unlike Sections 207 and 208,(65) "contains no provision for private complaints or assessing damages."(66) CEMA concludes that Commission enforcement of Section 255 violations by equipment manufacturers should therefore be limited to declaratory rulings and cease-and-desist orders.(67)
32. CEMA's analysis collides with both established legal terminology and the statute. The language of Section 255(f) -- "The Commission shall have exclusive jurisdiction with respect to any complaint under this section"(68) -- makes clear that the statute contemplates that complaints may be filed under Section 255 itself. The statement in Section 255(f) that no private rights of action are authorized does not undermine this conclusion. CEMA mistakenly equates a "private right of action" with an administrative complaint. The preclusion of private litigation in Section 255(f) compels complainants to seek redress exclusively from the Commission, rather than in Federal courts, but it does not prevent the filing of administrative complaints pursuant to Section 255. Both manufacturers and service providers face obligations under Section 255, and we believe that both are subject to complaints under Section 255. The fact that Sections 207 and 208 provide additional authority for the filing of complaints against common carriers does not alter our view. Had Congress intended to permit complaints under Section 255 only against common carriers, and not manufacturers, we would expect to find this clearly stated in the statute.
33. In addition, we tentatively conclude that the reference in the Statement of Managers to existing "remedies" refers not to the filing of complaints, such that complaints could be filed only if authorized elsewhere in the Act, but to the range of statutory redress available under the Act against parties who are found to have violated Section 255.(69) By including Sections 207 and 208 in the list of available remedies, we believe that Congress intended to make clear that damages may be awarded, pursuant to these sections, for violations of Section 255 by common carriers. We seek comment on this analysis, and on whether there is any basis for concluding that damages, pursuant to Sections 207 and 208 or otherwise, are available with respect to entities other than common carriers.
34. NAD asserts that the preclusion of private rights of action under Section 255 does not foreclose civil actions by consumers for damages under Section 207, noting that the Statement of Managers refers to Sections 207 and 208 as being available to enforce compliance with Section 255.(70) We disagree. The plain language of the statute confers exclusive jurisdiction on the Commission and bars private rights of action. The exclusive jurisdiction established for Commission consideration of complaints, in combination with the preclusion of private rights of action, simply does not allow for private litigation. As noted by CTIA, initial recourse to State or Federal courts is foreclosed, so that private parties are prohibited from seeking damages under Section 207 in Federal courts.(71) We seek comment on this conclusion.
A. Scope of Statutory Coverage
1. "Telecommunications" and "Telecommunications Service"
35. Section 255 applies to "manufacturer[s] of telecommunications equipment
or customer premises equipment" and "provider[s] of telecommunications service,"
and Section 251(a)(2) applies to "telecommunications carrier[s'] . . . network
features, functions, or capabilities."(72) These
phrases or their central terms are defined by the Act,(73)
and apply to a range of regulatory provisions. Moreover, we find no indication
in the legislative history of the 1996 Act that Congress intended these terms
to have any different, specialized meaning for purposes of accessibility.
36. We tentatively conclude that to the extent these phrases are broadly grounded in the Communications Act, they require no further definition, and our sole task here is to elucidate their application in the context of Section 255. However, to the extent specific terms arise solely in connection with Section 255, we will consider whether further definition or clarification is appropriate. We note that the statute's use of the term "telecommunications" may have the effect of excluding from the coverage of Section 255 a number of services that might be desired by consumers. Only those services which are considered to be "telecommunications services" are subject to regulation under Title II of the Communications Act. "Information" services" are excluded from regulation. We now discuss this regulatory dichotomy further.
37. Section 3 of the Act defines "telecommunications" as:(74)
the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
It defines "telecommunications service" as:(75)
the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
The Act defines an "information service" as:(76)
the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
38. In 1996 the Commission found that all of the services it had previously considered to be "enhanced services"(77) under the regulatory structure it had established in the 1980 Computer II proceeding(78) should be considered "information services."(79) Examples of services the Commission has treated as enhanced include voice mail, electronic mail, facsimile store-and-forward, interactive voice response, protocol processing, gateway, and audiotext information services.(80) Other enhanced services include electronic store-and-forward, data processing, gateways to online databases, and alarm monitoring.(81) Similarly, the Commission has deemed reverse directory service to be an information service and, thus, not regulated under Title II of the Act.(82)
39. On the other hand, the Commission has found that services it had previously classified as "adjunct-to-basic" should be classified as telecommunications services.(83) These are services that fall within the literal definition of an "enhanced service" set forth in the Commission's rules, but are basic in purpose and facilitate the completion of calls through utilization of basic telephone service facilities.(84) They include, inter alia, speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller identification, call tracing, call blocking, call return, repeat dialing, and call tracking, as well as certain Centrex features.(85) The Commission found that such "adjunct-to-basic" services facilitated the establishment of a transmission path over which a telephone call may be completed, without altering the fundamental character of the telephone service.(86)
40. The Commission has consistently categorized a service option or feature as adjunct-to-basic, and thus subject to Title II regulation, if that option or feature is clearly basic in purpose and use, and brings maximum benefit to the public through its incorporation in the network.(87) For example, the Commission has addressed whether access to a database through directory assistance that searches for a listing by name may be offered as an adjunct-to-basic telephone service. Because a subscriber using directory assistance retrieves information stored in a telephone company's computer database, directory assistance appears to fit within the definition of an enhanced service. The Commission, however, found such access to be adjunct-to-basic, rather than enhanced service, because directory assistance provides only that information necessary for a subscriber to place a call.(88) The Commission has also held that electronic directory assistance is an adjunct-to-basic service because, as with operator-assisted directory assistance, the purpose of the service is to facilitate the placement of telephone calls.(89) In contrast, reverse directory service (where a customer knows a telephone number and seeks to learn the name of the number holder) supplies information that is not necessary to complete a call, and is therefore an enhanced service.(90)
41. The Commission has found that Operator Services for the Deaf (OSD), which enable text telephone users to utilize operator assisted services for calls placed to another text telephone (TTY), appear to be within the definition of adjunct-to-basic services.(91) The Commission reasoned that OSD are intended to facilitate the use of traditional telephone services for TTY-to-TTY calls, and do not alter the fundamental character of TTY-to-TTY telephone service. The services provided by OSD, including operator assistance with collect and third-party billing, emergency interrupt, and busy-line verification, are likewise intended to facilitate the completion of TTY-to-TTY calls. As discussed above, directory assistance is already classified as adjunct-to-basic service. The fact that directory assistance is provided through OSD does not alter the nature of the service, or, consequently, its classification as adjunct-to-basic service. The Commission therefore concluded that the services provided through OSD are subject to Title II regulation as adjunct-to-basic services.(92) On the other hand, the Commission has decided that the provision of access to a database for purposes other than to obtain the information necessary to place a call will generally be found to be enhanced services,(93) the presumption being that they are information services unless they are shown to be otherwise.(94)
42. Many services are considered telecommunications services and, therefore, are clearly subject to the requirements of Section 255. We recognize, however, that there are some important and widely used services, such as voice mail and electronic mail, which under our interpretation fall outside the scope of Section 255 because they are considered information services. Given the broad objectives Congress sought to accomplish by its enactment of Section 255, we seek comment on whether Congress intended Section 255 to apply to a broader range of services.
43. We also note that the Commission's interpretation of the definitions of these terms continues to be examined and may be modified. Congress has required the Commission to undertake a review of the provisions of the 1996 Act relating to universal service, to be completed and submitted to Congress no later than April 10, 1998. The Commission must review, among other things, the definitions of "information service" and "telecommunications service" in the 1996 Act, and the impact of the Commission's interpretation of those definitions on the current and future provision of universal service to consumers, including consumers in high cost and rural areas.(95) We do not intend, in this proceeding, to foreclose any aspect of that ongoing reexamination. Further, in a recently released Further Notice of Proposed Rulemaking examining the Commission's nonstructural safeguards regime governing the provision of enhanced and information services by the Bell Operating Companies (BOCs), the Commission sought comment on whether the Commission's definition of "basic service" and the definition of "telecommunications service" enacted in the 1996 Act cover the same set of services.(96)
2. "Provider of Telecommunications Service"
44. Because the Act does not define "provider of telecommunications service," we believe it would be helpful to propose some clarifications regarding aspects of this phrase as used in Section 255, beginning with the term "provider." Although "provide" appears frequently in the Act in various forms,(97) the Act does not define "provide" or "provider," either in connection with telecommunications or otherwise. The term "provide," in its ordinary sense, can mean to "[e]quip or fit out with what is necessary for a certain purpose; furnish or supply with something[;] . . . [s]upply or furnish for use; make available . . . ."(98) With respect to Section 255, we believe that Congress intended to use the term "provider" broadly, to include entities that supply or furnish telecommunications services, as well as entities that make available such services. For example, the statute does not exclude resellers -- who offer telecommunications services for a fee directly to the public -- from the definition of telecommunications service provider. This interpretation is consistent with our view that Congress intended the mandate of Section 255 to be broad.(99)
45. We therefore propose that all entities offering (i.e., whether by sale or by resale) telecommunications services to the public, including aggregators, should be separately subject to Section 255, without regard to accessibility measures taken by the service provider who originates the offering.(100) We seek comment on this proposal.
46. A second question involves entities that offer both telecommunications and non-telecommunications services. For example, local exchange carriers may also provide cable services. We note the plain language of Section 255(c), which states that "[a] provider of telecommunications service shall ensure that the service is accessible . . . ."(101) We therefore propose to subject a provider of telecommunications service to the requirements established in Sections 255(c) and 255(d) only to the extent it is providing telecommunications services.(102) We seek comment on whether this proposal is practical if a provider is using the same facilities to offer telecommunications services and services not meeting the statutory definition.
3. "Manufacturer of Telecommunications Equipment
or Customer Premises Equipment"
47. Section 255(b) of the Act provides that "[a] manufacturer of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by persons with disabilities, if readily achievable."(103) In the following sections we present proposals and seek comment on various aspects of these terms used in Section 255(b).
a. Equipment
48. "Telecommunications equipment" and "customer premises equipment" are established terms whose definitions are fixed by the Act and long usage, and thus do not require further interpretation in this proceeding. Section 3 of the Act defines "telecommunications equipment" as "equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades)."(104) It defines "customer premises equipment" (CPE) as "equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications."(105) The Access Board guidelines repeat the definitions of both terms used by the Act.(106)
49. Section 255 does not set out separate accessibility requirements for telecommunications equipment and CPE. Rather, it requires manufacturers to make both telecommunications equipment and CPE accessible to individuals with disabilities. We tentatively conclude that these terms encompass all equipment used in the provision of telecommunications service, whether collocated with a user (i.e., CPE)(107) or found elsewhere in a telecommunications system (i.e., telecommunications equipment). We tentatively conclude that Section 255 does not distinguish between the two categories, but applies to both categories the same requirement of functional accessibility. In short, to the extent end users must interact with equipment to use telecommunications services, Section 255 applies.(108) We seek comment on this view.
50. The Notice of Inquiry sought comment on possible differences in treatment between telecommunications equipment and CPE. Several commenters cite difficulties drawing meaningful distinctions for accessibility purposes, citing the link between Section 255 (accessibility) and Section 251(a)(2) (interconnection must not impede accessibility).(109) But NCD cautions that, because networks typically have a longer life cycle than CPE, the economic aspect of "readily achievable" will vary between the two sectors.(110) Pacific notes a trend toward more integrated CPE products and warns of the danger that Commission incentives might lead to a separate "second tier" of specialized accessible products, and instead encourages approaches that ensure a menu of choices for persons with disabilities.(111)
51. We agree with TIA that Congress intended generally equivalent treatment of both telecommunications equipment and CPE.(112) We also recognize the practical difficulties presented when inaccessibility may be due to multiple elements of a telecommunications system, as commenters illustrate, and we believe that resolving such situations will generally depend on the particular circumstances of individual cases. However, we seek comment on possible approaches to resolving such situations.
52. The Notice of Inquiry also sought comment on the treatment of equipment that can be used both in connection with telecommunications services and otherwise (multi-use equipment). Comments range from urging us to require accessibility for all functions of a product with any telecommunications capabilities,(113) to requiring accessibility only with respect to those telecommunications-specific functions.(114) The Access Board takes the position that "only the functions directly related to a product's operation as telecommunications equipment or [CPE] are covered by the guidelines."(115)
53. As with telecommunications services,(116) we propose that Section 255 apply to multi-use equipment only to the extent the equipment serves a telecommunications function. The Commission, for example, regulates varied uses of the spectrum that do not involve the offering of telecommunications for a fee directly to the public. A number of the services whose technical parameters are regulated by the Commission thus do not appear to fall within the scope of Section 255, and consequently neither does the equipment associated with those services. We seek comment on this proposal, and in particular on practical aspects of its application. What, for example, is the obligation of a manufacturer who produces equipment apparently intended for a non-telecommunications application, but that finds use in connection with a telecommunications service subject to Section 255?(117)
54. Several commenters question the extent to which software products are subject to the requirements of Section 255.(118) The Access Board position is that:(119)
The guidelines do not differentiate between hardware, firmware or software implementations of a product's functions or features, nor do they differentiate between functions and features built into the product and those that may be provided from a remote server over the network. The functions are covered by these guidelines whether the functions are provided by software, hardware, or firmware.
55. We note that the definition of telecommunications equipment includes "software integral to such equipment (including upgrades)."(120) Given our view that the focus of Section 255 should be on functionality, we tentatively view software as simply one method of controlling telecommunications functions. For example, placing a telephone call originally involved announcing the desired party or telephone number to an operator, who manually connected the calling and called lines; this was followed by a system where the user manipulated an electromechanical dial to control remote electromechanical switches that connected the call; now for most calls the user uses an electronic keypad to control electronic switches that rely on stored-memory programs (i.e., software) to operate; and many users also have available speed-dialing or voice-dialing features that rely on software programs located in either CPE or network equipment. There is no functional difference between these various methods of placing a call, and we do not believe that Congress intended to distinguish between them in Section 255. We therefore propose to treat software integral to telecommunications equipment the same as equipment or telecommunications services, and seek comment on this proposal.
56. On the other hand, we note that the statutory definition of CPE does not include a corresponding explicit reference to software.(121) Where a CPE manufacturer markets products that include software, we tentatively conclude that there is no reason to treat the bundled software differently from any other component of the equipment.(122) The manufacturer is responsible for the functional accessibility of the product as offered, to the extent it serves a telecommunications function. To the extent the software detracts from or otherwise reduces the accessibility of the product, the manufacturer would be required to alter the software to cure the accessibility problem, to the extent such alteration is readily achievable. However, where software to be used with CPE is marketed separately from the CPE, we believe that the software itself would not be subject to Section 255, and that it could not even be considered to fall within the statutory definition of CPE. Further, we believe that software manufacturers would not be directly subject to Section 255 for software bundled with other manufacturers' CPE. We seek comment on these issues, and in particular on the practical aspects of applying this distinction.
b. Manufacturer
57. The Act does not define "manufacturer of telecommunications equipment or customer premises equipment." The Notice of Inquiry sought comment regarding how the Commission should apply the accessibility requirement to equipment manufacturers, given such considerations as different accommodations for different disabilities, different protocols and standards for equipment distributed in foreign markets, multiple-source development and manufacture of products, and licensing for manufacture and distribution.(123)
58. There is broad agreement that all equipment marketed in the United States, regardless of national origin, should have uniform accessibility requirements.(124) Further, the Access Board guidelines do not distinguish between foreign and domestic manufacturers.(125) We therefore tentatively conclude that Section 255 should be construed to apply to all manufacturers offering equipment for use in the United States, regardless of their location or national affiliation. Exempting foreign manufacturers, in our tentative view, would create an uneven playing field, to the potential disadvantage of American manufacturers, and would deny the American public the full protection Section 255 offers. We are aware that some foreign manufacturers may be beyond the effective range of some of the enforcement tools available to us, but their imported products certainly are not.(126) We seek comment on this proposal.
59. Regarding the question of how Section 255 should apply to manufacturers involved in the production of multiple-source equipment, commenters take two basic positions. Some support looking only to the company that either assembles the final product or offers it for sale.(127) Others favor assigning responsibility to all firms involved, down to the component level.(128) Those commenters who expressly comment on the reseller issue say both manufacturers and resellers should be responsible for accessibility.(129) Beyond these positions, several commenters advocate leaving to private contract the apportionment of responsibility among designers, developers, fabricators, and marketers.(130) The Access Board guidelines define a "manufacturer" as an entity "that sells to the public or to vendors that sell to the public; a final assembler."(131) The Access Board explains that "[t]his would generally be the final assembler of separate subcomponents; that is, the entity whose brand name appears on the product."(132)
60. Equipment commonly consists of components manufactured by several different and possibly unrelated companies. We tentatively believe the "final assembler" approach favored by the Access Board has several advantages. Section 255 perhaps could be interpreted to apply to all component manufacturers, but doing so would certainly increase the complexity of overseeing compliance, and could well be counterproductive by diffusing compliance responsibility too widely. In our view, to some extent at least, every assembler has control over the components it uses. We would expect that clearly fixing responsibility for product accessibility at the final assembly stage would give these manufacturers the greatest incentive to specify accessible components from their suppliers, and to negotiate private arrangements for allocating the costs of compliance. We therefore propose to adopt a definition of "manufacturer" based upon the Access Board guidelines, and we seek comment on this proposal.
61. We also tentatively conclude that the term "manufacturer" would not generally include post-manufacturing distribution entities such as wholesalers and retailers. However, where the manufacturing and distributing entities are affiliated, or where the distributing entities provide customer support services commonly offered by manufacturers of equipment subject to Section 255,(133) it may be desirable either to treat the distributor as a "manufacturer" or to assign to the final assembler responsibility for the distributor's accessibility efforts. We seek comment on the types of arrangements between manufacturers and distributors that could present these situations, including private brand arrangements, and on effective ways of dealing with them.
4. "Network Features, Functions, or Capabilities"
62. As noted previously,(134) Section 251(a)(2) of the Act requires that a telecommunications carrier not install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to Section 255.(135) The Act does not expressly define "network features, functions, and capabilities," but it does provide examples as part of its definition of "network element":(136)
[Network element] includes features, functions, and capabilities that are provided by means of [a facility or equipment used in the provision of a telecommunications service], including subscriber numbers, databases, signaling systems, and information sufficient for billing and collection or used in the transmission, routing, or other provision of a telecommunications service.
63. We recently explored this area from the standpoint of interconnection in some detail in the Local Competition First Report and Order.(137) We therefore tentatively conclude that the phrase "network features, functions, or capabilities" does not require further interpretation in this proceeding. As a general proposition, we view Section 251(a)(2) as a straightforward extension of the notion that a telecommunications transmission should be virtually transparent in terms of its interaction with customer supplied information. In the context of Section 255, that is, the telecommunications network should facilitate -- not thwart -- the employment of accessibility features by end users.(138) Of course, the goal of transparency is not unqualified. For example, the bandwidth of any given service offering is limited, and accessibility enhancements that depend on information that requires more bandwidth than the selected telecommunications channel provides will likely be unreliable.
64. The Notice of Inquiry sought comment on the relationship between carriers' duty under Section 251(a)(2) and equipment manufacturers' and service providers' duty under Section 255.(139) CCD urges us to emphasize the link between Section 251(a)(2) and Section 255 and broadly define network features, functions, and capabilities as "installed services."(140) Pacific believes the extent of the Section 251(a)(2) requirements will depend on guidelines and standards established under Section 255; it notes that its proposals to require "documents of conformity" and "customer accessibility impact reports" to demonstrate compliance with universal design principles would ensure that accessibility issues are considered.(141) NAD states that access to a particular telecommunications service includes not only the service, but the manner in which an internal facility or piece of equipment may affect access to the service.(142) The Access Board Order does not address this definition, which pertains to telecommunications service offerings rather than equipment.
65. On the basis of these limited comments, we tentatively conclude that Section 251(a)(2) governs carriers' configuration of their network capabilities. It does not make them guarantors of service providers' decisions regarding how to assemble services from network capabilities, and it does not impose requirements regarding accessibility characteristics of the underlying components.(143)
66. It may be that rules and policies for this complex area will have to be developed on an ad hoc basis as we gain experience resolving actual problems that arise under Section 255. However, we invite further comment on the general views presented here, on specific situations that might bring Section 251(a)(2) into play, and on recommended approaches to address likely problems. We also seek comment regarding the relationship between the enforcement procedures established by Section 252 for interconnection agreements and the Commission's exclusive enforcement authority under Section 255. Additionally, how should responsibility for any guidelines or standards for accessibility and compatibility of equipment or services to be adopted in this proceeding be apportioned between (1) the underlying manufacturer or provider of a network element; and (2) the carrier that incorporates that element into its network to provide a feature, function, or capability?
B. Nature of Statutory Requirements
1. Introduction
67. Other essential terms used in Section 255 did not originate in the Communications Act, so we cannot rely on interpretations developed under the Act. Instead, these terms have their roots in the ADA(144) and other disability law, and have been interpreted through years of experience at other agencies. Thus, for the following terms in particular, we take special note of the expertise and recommendations of the Access Board. It is our tentative view, however, that we are bound to interpret Section 255 in light of the broader purposes of the 1996 Act and of the Communications Act itself.
2. "Disability"
68. Section 255(a)(1) of the Act provides that "[t]he term 'disability' has the meaning given to it by section 3(2)(A) of the [ADA]."(145) The ADA defines "disability" as:(146)
A physical or mental impairment that substantially limits one or more of the major life activities of an individual;
A record of such an impairment; or
Being regarded as having such an impairment.
69. The Notice of Inquiry sought comment on the application of this definition in the context of access to telecommunications services and equipment. Most of the comments on this issue address whether the second and third prongs of the ADA definition are relevant in the telecommunications context.(147) The Access Board does not expressly define "disability," but states that its "guidelines are required to principally address the access needs of individuals with disabilities affecting hearing, vision, movement, manipulation, speech, and interpretation of information."(148)
70. We propose to follow what we consider to be the mandate of Section 255 by using without modification or enhancement the ADA definition of "disability," as set out above.(149) However, in order to provide guidance for equipment manufacturers and service providers seeking to increase accessibility of their offerings, we also propose to use the Access Board's list of categories of common disabilities that should be considered in analyzing equipment and service offerings under Section 255.(150) In so doing, we must note that we do not view the list as either exhaustive or final. To the extent commenters responding to the Notice of Inquiry have argued for a more limited definition of "disability" than the plain language of the statute requires, we tentatively conclude that their concerns about possible incremental burdens of compliance are more properly considered in the context of whether the accommodation is "readily achievable." We seek comment on these proposals, and invite suggestions for additional ways of making the definition of "disability" useful to industry and consumers.
3. "Accessible to and Usable by"
71. Section 255 requires that equipment and telecommunications services be "accessible to and usable by individuals with disabilities, if readily achievable."(151) The Notice of Inquiry noted that these terms are taken from the ADA context, in which accessibility refers to the capability to physically approach a resource or program and usability refers to interaction with the resource or program, and that the terms present interpretive difficulties in the telecommunications context.(152)
72. The Access Board guidelines define "usable" as meaning that "individuals with disabilities have access to the full functionality and documentation for the product, including instructions, product information (including accessible feature information), documentation, and technical support functionally equivalent to that provided to individuals without disabilities,"(153) and the guidelines define "accessible" as compliance with Sections 1193.31 through 1193.43 of the rules.(154)
73. We propose to adopt the Access Board's definition of usability as part of our definition of "accessible to and usable by."(155) It is our view that Section 255 does not establish separate requirements for accessibility and usability, but looks toward elimination of all impediments to the functional use of telecommunications services and equipment by individuals with disabilities. Thus, we tentatively conclude that there is no reason to distinguish the two terms for purposes of Section 255, and propose to use the term "accessibility" in the broad sense to refer to the ability of persons with disabilities to actually use the equipment or service by virtue of its inherent capabilities and functions.
74. The Access Board has defined equipment accessibility as including the following functions:
Input, control, and mechanical functions--(156)
- Operable without vision
- Operable with low vision and limited or no hearing
- Operable with little or no color perception
- Operable without hearing
- Operable with limited manual dexterity
- Operable with limited reach or strength
- Operable without time-dependent controls
- Operable without speech
- Operable with limited cognitive skills
Output, display, and control functions--(157)
- Availability of visual information
- Availability of visual information for low vision users
- Access to moving text
- Availability of auditory information
- Availability of auditory information for people who are hard of hearing
- Prevention of visually-induced seizures
- Availability of auditory cutoff
- Non-interference with hearing technologies
- Hearing aid coupling
In addition, Section 1193.37 of the Access Board's rules calls for pass-through of "cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide telecommunications in an accessible format."(158)
75. We believe the Board's definition of accessibility and the related appendix materials provide an appropriate basis for evaluating accessibility obligations under Section 255, and we propose to adopt them as part of the definition of "accessible to and usable by." We also propose that such an evaluation include not only use of the equipment itself,(159) but also support services (such as consumer information and documentation) akin to what is provided to consumers generally to help them use equipment.(160) We seek comment on this proposal. We also seek specific comment on how we might apply the Access Board's mandate that CPE "pass through" accessibility information.
76. We tentatively conclude that these lists can also guide an evaluation of telecommunications service accessibility. Does the service itself have characteristics that render accessibility difficult? For example, do cuing and control signals (e.g., dial tones, busy signals, intercepts) accommodate the needs of users with disabilities? And does the provider offer essential support services (e.g., service ordering, billing, repair service) that meet the needs of customers with disabilities? For example, does the provider of essential support services provide direct TTY access to customer service and help desk lines? Are tutorial videos provided with captioning and video description? If explanatory materials are provided via the Internet, are the materials in an accessible format? We seek comment on these and other criteria that would constitute service accessibility.
77. The Notice of Inquiry stated that physical access to telecommunications equipment and services is a legitimate concern, but suggested that Section 255 reaches only aspects of accessibility under the direct control of manufacturers and service providers. The Notice of Inquiry sought comment on the view expressed by the Commission that the physical approachability of such offerings(161) is properly governed by regulations the Department of Justice adopted to implement the ADA, and is the responsibility of those who provide public accommodations, not the manufacturers of the equipment.(162)
78. Several commenters agree that providers are not responsible for physical aspects of accessibility except where they have direct control over siting.(163) MATP argues that the obligation to provide accessible equipment should extend to "how that equipment is deployed." MATP would require that the installation allow use of access features; e.g., a cellular phone manufacturer should require that service providers offer each of its models within a category needed to provide a full complement of access features.(164) Mulvany likewise suggests that manufacturers communicate installation requirements for optimizing accessibility.(165)
79. We continue to believe, as we stated in the Notice of Inquiry, that Section 255 reaches only those aspects of accessibility to telecommunications over which equipment manufacturers and service providers subject to our authority have direct control, such as the design of equipment or the manner in which a telecommunications service is delivered to users.(166) Thus, in the example noted above,(167) manufacturers of pay telephones have no control over the height at which their instruments are mounted.(168) In contrast, pay telephones that are inaccessible to persons with disabilities because, e.g., they interfere with hearing aids, or because the visual display itself presents accessibility obstacles to persons with visual
disabilities, would present an issue of equipment inaccessibility under Section 255. We seek comment on these views.
80. Similarly, if a person with a disability is able to use CPE such as a screen-reading terminal, but finds that a telecommunications service is not usable because the terminal cannot generate a screen display from the data provided through the service, this would also present an issue of inaccessibility, but the cause of the inaccessibility might be the service, or the equipment, or both. We also seek comment on what accessibility obstacles are encountered by persons with disabilities that are attributable to telecommunications service or equipment characteristics. To the extent that service accessibility is determined by network equipment, including integral software, how should the Commission distinguish between accessibility obstacles attributable to network equipment, and those attributable to service providers?
4. "Compatible with"
a. "Peripheral Devices or Specialized CPE"
81. Where accessibility is not readily achievable, Section 255(d) requires that telecommunications offerings be compatible with "existing peripheral devices or specialized [CPE] commonly used by individuals with disabilities to achieve access, if readily achievable."(169) The Notice of Inquiry asked commenters to address the definitions of "existing peripheral devices" and "specialized CPE," and to provide examples.(170)
82. Several commenters provide such examples.(171) The Access Board defines "peripheral devices" as "[d]evices employed in connection with telecommunications equipment or customer premises equipment to translate, enhance, or otherwise transform telecommunications into a form accessible to individuals with disabilities."(172) It defines specialized CPE as "[e]quipment, employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications, which is commonly used by individuals with disabilities to achieve access."(173)
83. The Board further explains its definitions as follows:(174)
[T]he term peripheral devices commonly refers to audio amplifiers, ring signal lights, some TTYs, refreshable Braille translators, text-to-speech synthesizers and similar devices. These devices must be connected to a telephone or other customer premises equipment to enable an individual with a disability to originate, route, or terminate telecommunications. Peripheral devices cannot perform these functions on their own.
[Specialized CPE] should be considered a subset of [CPE], and . . . manufacturers of specialized [CPE] should make their products accessible to all individuals with disabilities, including the disability represented by their target market, where readily achievable.
84. We seek comment on these definitions, but tentatively conclude that it is not necessary to distinguish between peripheral devices and specialized CPE. We tentatively conclude that the reference in Section 255(d) to equipment and devices "commonly used . . . to achieve access" identifies products with a specific telecommunications functionality. Thus, for example, equipment used in direct conjunction with CPE, such as amplifiers for persons with hearing disabilities, or screen readers for persons with visual disabilities, would be considered either peripheral devices or specialized CPE. In contrast, devices such as hearing aids, which have a broad application outside the telecommunications context, may be used in conjunction with peripheral equipment or specialized CPE, but are not themselves considered specialized CPE or peripheral devices under the 1996 Act. We seek comment on this issue.
85. For example, it is our tentative view that, if a telecommunications product can be used by a person with a hearing aid(175) without any need to employ a peripheral device or specialized CPE, then the product has complied with the accessibility requirements of Section 255. If the product is usable by a person using a hearing aid only through the application of a peripheral device or CPE, then the product meets the compatibility criteria of Section 255. We believe this view is consistent with the plain language of Section 255, and does not conflict with the FDA's requirements regarding hearing aids.
86. In the case of telecommunications equipment, we note that the 1996 Act definition of compatibility constitutes a significant departure from the sense in which Section 710 of the Communications Act, the Hearing Aid Compatibility Act of 1988 (HAC Act),(176) uses the same term. Section 710 is limited in scope to telephones -- it does not consider how to accommodate the needs of persons with disabilities with respect to other CPE, network equipment, or the range of telecommunications services. Section 710 also explicitly requires internal compatibility (i.e., within the handset) to establish compliance with its compatibility requirement.(177) And Section 710 specifies absolute requirements; unlike Section 255, it is not qualified by considerations of what is "readily achievable." The Commission adopted Section 68.4 of its Rules,(178) specifying telecoil technical characteristics, to implement Section 710.
b. "Commonly Used"
87. The Notice of Inquiry also asked for comment on criteria for determining when equipment subject to Section 255 is "commonly used."(179)
88. Arkenstone asserts that the limited sales of braille displays (fewer than 1,000 per year) are not inconsistent with their common use for persons with blindness, since they are the only option for persons both deaf and blind.(180) Waldron surveys existing peripherals, and suggests that the definition of "commonly used" should be somewhat closed, to give industry reasonable confidence that they know what is required, while allowing sufficient choice to address the majority of needs within the community of persons with disabilities.(181) Trace references an overview of commonly used peripherals on Internet sites it maintains.(182)
89. Rather than focus on a definition of "commonly used," which involves existing devices, NCD recommends that the Commission concern itself with "basic design measures that equipment manufacturers and service providers can employ that will facilitate access and seamless use of both current and future access peripherals and specialized CPE." NCD maintains that principles of open architecture or design, also pertinent to interconnectivity and other provisions of Act, offer a principal means for ensuring compatibility.(183) Inclusive calls for a census to determine commonly used specialized CPE, which manufacturers and service providers could use to develop compatibility standards.(184)
90. In light of the specific definitions set out in the Access Board guidelines,(185) we seek further comment with regard to when devices and CPE should be considered "commonly used," as described in the statute. For example, we solicit comment on whether we should establish a rebuttable presumption that a device is commonly used where a State has incorporated the device into its statewide equipment distribution programs for persons with disabilities. We also seek comment regarding whether and to what extent the cost of CPE or peripheral devices should be considered in determining whether the CPE or peripheral device may be deemed to be commonly used by persons with disabilities. Our tentative view is that the CPE or peripheral device must be affordable and widely available in order to be considered "commonly used" by persons with disabilities. We seek comment on this tentative view. We also note that in addition to informing industry of its obligation with respect to compatibility, a listing of such "commonly used" components could be a valuable source of information to apprise persons with disabilities of the available technologies; we seek comment regarding whether and how a listing could be maintained.(186)
c. Compatibility
91. Several commenters note that ensuring compatibility requires coordination among, e.g., manufacturers of specialized CPE, network equipment and CPE manufacturers, and service providers.(187) The Access Board lists five criteria for determining compatibility, subject to applicability:(188)
External access to all information and control mechanisms;
Connection point for external audio processing devices;
Compatibility of controls with prosthetics;
TTY connectability; and
TTY signal compatibility.
92. We propose to adopt these five criteria as a starting point for determining compatibility.(189) However, we recognize that these criteria might need to be broadened to account for likely technological advances in both telecommunications and accessibility products, either now or in the future, as developments warrant. We believe this is an area where processes involving other entities, or industry and consumer groups (such as negotiated rulemakings), might be useful in developing appropriate further criteria.(190) We seek comment on our proposal, and on these views.
d. Other Matters
93. Finally, we request commenters to address how the definition of "readily achievable" should apply to the obligations of manufacturers and service providers to provide compatibility pursuant to Section 255(d). We note that compatibility requirements apply only when accessibility is not "readily achievable." Therefore, we seek comment regarding the extent to which the same factors that are used to determine whether accessibility is readily achievable can or should also be used to determine whether compatibility is readily achievable. Commenters should also address how the goal of compatibility can be met without hampering competition or the development of new technologies.
5. "Readily Achievable"
a. General
94. Section 255 requires accessibility to the extent it is "readily achievable." Section 255(a)(2) provides that "[t]he term 'readily achievable' has the meaning given to it by section 301(9) of [the ADA],"(191) which states:(192)
The term "readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include--
(A) the nature and cost of the action needed under [the ADA];
(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
95. The Notice of Inquiry sought comment on the application of this definition to telecommunications equipment and services in a way that will take advantage of market and technological developments, without constraining competitive innovation.(193) Commenters, on the whole, contend that there are significant differences that the Commission should consider between the application of the term "readily achievable" to public accommodations under Title III of the ADA and its application to telecommunications under Section 255. Commenters urge caution in transferring the ADA definition and factors, due to their origins for remedial purposes to existing buildings and facilities, and argue that it is necessary for the Commission to adapt them for telecommunications.(194)
96. The Access Board guidelines define "readily achievable" in the telecommunications context simply as "[e]asily accomplishable and able to be carried out without much difficulty or expense."(195) Moreover, the Access Board states that "[n]ot all of the factors cited in the ADA or the Department of Justice (DOJ) implementing regulations (July 26, 1991) are easy to translate to the telecommunications context . . . ."(196) The Access Board Notice stated even more directly that "[t]he factors which apply in the ADA context may not be appropriate [in the context of the Communications Act]."(197)
97. We tentatively conclude that "readily achievable," as defined by the ADA and incorporated by Section 255, simply means "easily accomplishable and able to be carried out without much difficulty or expense." We believe that this broad definition is applicable to telecommunications equipment and services.
98. It is also our tentative view that the four factors set out with the ADA definition of "readily achievable" should be construed as the ADA describes them: factors to be considered in applying the definition in the ADA setting, e.g., the removal of architectural barriers in buildings and facilities. Given the differences between architectural barriers and telecommunications barriers, it is our tentative view that the ADA factors should guide, though not constrain, our development of factors that more meaningfully reflect pertinent issues and considerations relevant to telecommunications equipment and services.(198)
99. The telecommunications-specific factors we propose herein therefore reflect the ADA factors, but are tailored to the circumstances of the Section 255 setting. Our goal is to establish factors that are true to the letter and spirit of both the ADA definition and the objectives of Congress in enacting Section 255. We also stress that, while we believe this objective of establishing durable and pertinent factors for evaluating the "readily achievable" standard in the telecommunications field is important, we also expect that determinations regarding whether accessibility is readily achievable will be driven by the facts of particular cases. We intend that any factors we develop in this rulemaking will be applied appropriately to the facts of particular cases, and will not operate so as to inadvertently impede our efforts to arrive at reasonable judgments in each case. We seek comment on these tentative conclusions.
b. Telecommunications Factors
100. We believe a useful framework for analyzing whether a particular telecommunications accessibility feature is "readily achievable" involves looking at three areas:
Is the feature feasible?
What would be the expense of providing the feature?
Given its expense, is the feature practical?
We seek comment on these proposed factors, as discussed more fully below. We especially seek comment on the practical implications of options we may be urged to adopt: their effect on the development and marketing of accessibility features, on the pace of innovation, and on the administrative costs associated with implementation and enforcement measures (discussed in the remainder of this Notice).
(1) Feasibility
101. Feasibility is equivalent to achievability, and is thus an inherent component of the term "readily achievable."(199) There are various reasons why a particular feature might not be feasible. For example, it might be physically impossible to fit large keypad buttons onto a small wireless telephone handset. Available technology may not be able to easily develop solutions for some accessibility problems.(200) Conceivably there might be legal impediments to implementing some features. Or implementing features to improve accessibility for one disability might limit the ability to address accessibility for another.
102. The Access Board acknowledges that "technological feasibility is inherent in the determination of what is readily achievable," but for that reason saw no need to explicitly state it.(201) Although feasibility may seem to be an obvious element of "readily achievable," not requiring special attention, we believe that identifying it as a separate analytical component serves a useful purpose. For manufacturers and service providers, it serves as a reminder of the need to carefully examine cases of apparent infeasibility, an exercise that may lead to the discovery of new accessibility solutions. For consumers, it highlights the fact that despite advances in technology, some features are still not possible. We therefore tentatively conclude that feasibility should be one factor to be considered in determining whether a particular accessibility feature is readily achievable, and we seek comment on how to further elaborate this factor in the telecommunications context.
(2) Expense
103. After a determination is made that a particular feature is feasible, further analysis must generally start with consideration of the expense of making the feature available.(202) We tentatively conclude that for products offered in the public marketplace, the relevant expense is a "net" figure, including both the cost of the feature and the additional income the feature will provide.(203) The Notice of Inquiry stated that cost is an important aspect of the "readily achievable" standard, and sought data on types and levels of costs incurred to achieve accessibility of existing offerings and on estimates of the savings associated with achieving accessibility at the initial design stage.(204) Many commenters address the issue of cost as a factor in determining whether a particular accessibility or compatibility feature or component is readily achievable.(205) Inclusive contends that cost factors that are recognized for this purpose should include research and development, production, and marketing costs (and customer support), over the life of the product.(206) Microsoft asserts that it will often be difficult to separate accessibility costs from operating expenses.(207) AFB asserts that the cost of accessible technology drops when required by regulation.(208)
104. While expense is most often thought of in terms of a dollar figure, it can also include the cost of other resources, as well as opportunity costs. For example, if there are technological barriers to implementing an accessibility feature, what engineering staff would the provider need in order to develop solutions? What fabrication facilities would be required to produce the more accessible product? Opportunity costs could reflect the fact that adding an accessibility feature with respect to one disability might decrease product or service accessibility with respect to another disability, or reduce product or service performance in some other way.
105. We seek comment on these issues. We also ask commenters to supply pertinent information regarding:
The types and levels of expenses that have been incurred to achieve or improve accessibility of existing offerings, and the extent to which they may serve as a basis for anticipating expenses associated with accessibility standards to be developed.
Expeditious processes that the Commission could establish to determine expenses in situations where anticipated expenses relating to accessibility (or compatibility) are disputed.
Savings when accessibility is achieved at the design stage.
(3) Practicality
106. Perhaps the most difficult aspect of determining whether a particular accessibility feature is readily achievable involves determining whether it is practical, given the expenses involved.(209) For example:
The resources (financial, staff, facilities, and otherwise) available to the provider to meet the expenses associated with accessibility.
The potential market for the product or service, taking into account the manner and extent to which the product or service is altered or changed in connection with making it accessible.
The degree to which the provider would recover the incremental cost of the accessibility feature.
Issues regarding product life cycles.
(a) Resources
107. The Notice of Inquiry sought comment on ways to consider the resources of firms of varying characteristics, in a manner which would not distort competitive incentives, including the relationship between parent and subsidiary corporations. The Commission also asked commenters to consider the estimation and determination of costs associated with a specific technical or performance standard, as well as more process-oriented standards.(210)
108. A number of industry comments state that the Notice of Inquiry fails to reflect corporate divisions and financial structures commonly used by equipment manufacturers. These commenters argue that guidelines should consider only financial resources directly controlled by the unit responsible for design and production of equipment.(211) Several comments note that DOJ rules implementing the ADA provide that the scope of resources to be considered available is potentially broad, and is determined on a case-by-case basis.(212) On the other hand, Waldron warns that if all resources are not considered, subsidiaries will "buy off" accessibility obligations.(213)
109. We tentatively find most compelling the view that the financial resources of the organization that has legal responsibility for, and control over, a telecommunications product (service or equipment) should be presumed to be available to make that product accessible in compliance with Section 255. We therefore propose to establish a presumption that the resources reasonably available to achieve accessibility are those of the entity (i.e., corporation or equivalent organization) legally responsible for the equipment or service that is subject to the requirements of Section 255. However, we propose that this presumption may be rebutted in a complaint proceeding or other enforcement proceeding in two different respects:
On the one hand, the assets and revenues of another entity (e.g., parent or affiliate) that is not legally responsible for the equipment or service involved may still be treated as available for purposes of achieving accessibility under Section 255, if it is demonstrated that those assets and revenues are generally available to the entity that does have legal responsibility for the equipment or service. The purpose of this rebuttal option is, for example, to forestall sham organizational arrangements designed to avoid compliance with Section 255. We believe this position embodies the same principles as the Access Board's view that a "readily achievable" determination should take into account "the resources of a parent company . . . only to the extent those resources are available to the subsidiary."(214)
On the other hand, the general presumption can also be rebutted by a respondent showing that the sub-unit (e.g., corporate division or department) actually responsible for the product or service in question does not have access to the full resources of the corporation or equivalent organization of which it is a part.
110. We tentatively conclude that the presumption we are proposing may potentially serve as an effective guard against evasive practices. In any event, we propose that the Commission will determine what resources are reasonably available on a case-by-case basis in the context of complaint proceedings or other enforcement proceedings, because of our tentative view that the variety of organizational forms and other circumstances make development of quantitative standards by the Commission impracticable. We seek comment on these proposals.
(b) Market Considerations
111. The Notice of Inquiry sought comment on the scope of the accessibility requirement in terms of how the provision of either conflicting accommodations for different disabilities, or accommodations that would address multiple disabilities but would make the offering technically or economically impracticable, should be viewed under the "readily achievable" standard.(215) Commenters generally recognize the potential in the telecommunications context for conflict between design accommodations and more personalized offerings for different disability groups, in contrast to an accessibility solution under the ADA.
112. Trace submits that the wide variety of products and devices used for telecommunications means that very few detailed specifications will be applicable across all devices.(216) Nortel contends that the Commission should not focus only on the cost of a desired design feature, but should also consider its utility; guidelines should avoid requiring features that may be technically available but are not efficient solutions for persons with disabilities who will be using the products or services.(217) Netscape notes that, as with graphical user interfaces (GUI), technology innovations that benefit one group of persons with disabilities may disadvantage another, and observes that the prevalence of GUI is not a "market failure" but a market-driven development that has made accessibility for some persons with disabilities more difficult.(218) NCD contends that competitive pressures in the telecommunications industry may lead to instances where accessibility costs, though small, necessitate an increase in price that alters the competitive balance between competing products.(219) The Access Board guidelines could have an effect on this issue of conflicting accommodations because of their prohibition of any net reduction in product accessibility,(220) but the impact of this prohibition could be moderated because it would be subject to the "readily achievable" qualification.
113. We believe market considerations affect decisions regarding product features, and are thus relevant to a determination whether particular access features are practical. However, by this we do not mean to sanction unfounded arguments that the addition of such features would make products less desirable to mass markets. Indeed, it may frequently be the case that accessibility features will make a product more desirable to mass markets.(221) We seek comment on how to incorporate market considerations into an evaluation of whether particular accessibility features are practicable. For example, what is the potential market for the more accessible product? Would the accessibility features make the product more attractive to the general consumer market? How well could the more accessible product compete with other offerings, in terms of both price and features?
114. Related questions are raised by the Access Board guideline providing that "[n]o change shall be undertaken which decreases or has the effect of decreasing the net accessibility, usability, or compatibility of telecommunications equipment or [CPE]."(222) On the one hand, the fact that a product has particular accessibility features is evidence that inclusion of those features in later products from the same producer is readily achievable. On the other hand, it is our tentative view that this general principle should not operate in such a way as to prevent legitimate feature trade-offs as products evolve, nor should it stand in the way of technological advances. We therefore seek comment on how accessibility reductions should be treated.
(c) Cost Recovery
115. We also believe it is appropriate to consider the extent to which an equipment manufacturer or service provider is likely to recover the costs of increased accessibility. This is not to say that the equipment manufacturer or service provider must be able to fully recover the incremental cost of the accessibility feature in order for accessibility to be readily achievable. Indeed, the assumption of some cost burden is an explicit element of the definition of "readily achievable."(223) We have previously indicated our tentative conclusion that the relevant measure of the "expense" of providing accessibility features is their net expense.(224) Thus, cost recovery is a factor that a company should weigh in making its determination of what is readily achievable.
116. How could the provider expect to recover the incremental cost of the accessibility feature? To what extent would absorbing all or part of the cost provide a disincentive to offering the product at all? How would passing the cost on to consumers of that particular product affect likely demand for the product? What differences (if any) are there between accessibility features integral to the product in question (e.g., function controls) versus separate product support offerings (e.g., user instructions)? How should we view promotional offers that do not provide comparable savings for users of accessible products?
117. We also note that the Commission in its Universal Service Order stated that accessibility and affordability issues with respect to people with disabilities would be considered in the context of Section 255.(225) We seek comment on the extent that service providers and manufacturers should consider affordability of accessible products when making cost recovery assessments.(226) What concerns must a manufacturer or service provider balance in making accessible products affordable? Are accessibility and affordability always mutually supporting goals, or can an attempt to make a product affordable undercut its accessibility?
(d) Timing
118. Several comments address accessibility obligations over the course of a product life cycle, especially as it relates to improved accessibility technology.(227) Some comments assert that Section 255 requires that new equipment and services must conform to accessibility requirements within the limits of what is "readily achievable."(228) These commenters assert that companies should have a continuing obligation to improve the accessibility of their products and services. Moreover, as applied to existing buildings and structures under the ADA, "readily achievable" does not typically involve issues of technical feasibility as it would for telecommunications.(229) The impact of the inclusion of new products and services, NAD and NCD argue, is that the test of compliance must be whether it would have been readily achievable for a company to have incorporated accessibility at the design stage, and not whether it is readily achievable to modify the product or service once it has been manufactured or deployed.(230)
119. The Access Board's view is that its guidelines are "'prospective in nature', intended to apply to future products . . . [with] no requirement to retrofit existing equipment."(231) And while the Board suggests that "net accessibility" should not be reduced,(232) it does not seem to suggest that manufacturers must be obligated to upgrade products already in the marketplace as new access features become readily achievable.
120. Timing issues present several important questions, most of which stem from the fact that technology advances over time. Two examples will illustrate the issue:
Generally speaking, technological features available at the beginning of a product development cycle can be incorporated more easily (i.e., more "easily accomplishable and able to be carried out without much difficulty or expense") than those that become available at the end of the development cycle.(233) Thus it seems that any assessment of the practicality of a particular accessibility feature should take into account reasonable periods of time required to incorporate new accessibility solutions into products under development.
Turning to the post-development stage, we tentatively conclude that once a product is introduced in the market without accessibility features that were not readily achievable at the time, Section 255 does not require that the product be modified to incorporate subsequent, readily achievable access features. If we ultimately conclude otherwise, however, how should the projected roll-out of an accessible replacement product affect a determination of whether modification of a product already in the marketplace is readily achievable?
To phrase the timing question broadly, how should product life cycles be taken into account in making "readily achievable" determinations?
121. In a related vein, Gallaudet, ITI, and TIA support a "grace period" for compliance, varying according to factors such as the type of equipment and production cycles.(234) Trace opposes grace periods, arguing that if accessibility is readily achievable from the outset, it is not obvious why it should be deferred or avoided.(235) The Access Board maintains that "[n]o explicit 'grace period' is needed since it is built into the determination of readily achievable."(236) Given that Section 255 has been in effect since February 1996, and in light of our tentative conclusion that timing issues should be considered as an element of ready achievability, we believe that a general grace period for compliance is not warranted. However, we seek comment on this view.
(4) Other Considerations
122. The interplay of factors used in determining whether and to what extent the accessibility of telecommunications equipment, CPE, or telecommunications services is readily achievable will be complex. We believe that the factors we have set out above provide a workable framework for this analysis. We further expect that our refinement of these factors in this proceeding will provide substantial initial guidance to all parties who are subject to or affected by Section 255. However, in any given case the ultimate determination of whether it is readily achievable to make a particular product offering accessible to users with a particular disability will depend on the particular circumstances of the case. It is thus inevitable that the nature and extent of the Section 255 obligations will generally have to be evaluated and refined on a case-by-case basis, as we resolve complaints of non-compliance, a process that will in turn foster greater accessibility in future product and service offerings.
123. Some commenters propose consideration of additional factors, such as the utility, or functionality, of products and services for those with disabilities, as well as to society at large.(237) We tentatively do not see how such "social utility" could be quantified with sufficient objectivity to be considered as a separate factor,(238) and note that to some extent it is an implicit component of our proposed "market considerations" factor. That is, to the extent a particular accessibility solution is seen as valuable, it is more likely to succeed in the marketplace. Other commenters suggest factors relating to the relationship between Section 255 and Section 251(a);(239) and differences between a product used by one customer, and a product that is part of a network.(240) Several commenters observe the increasing convergence in, or blurring of the distinction between, services and equipment that is characteristic of the changing telecommunications marketplace, and state that it should be considered as yet another factor.(241) We are not persuaded that these additional factors warrant separate consideration, but we seek comment on them, and on other ways to establish useful and usable factors..
A. Introduction
124 . We turn now to the measures that will put Section 255 into action, ensuring that manufacturers and service providers are in compliance with the requirement that their products be accessible, to the extent readily achievable, and providing relief for consumers when there are compliance problems. Our proposals rest on two principles:
Responsiveness to consumers -- We recognize that most complaints under Section 255 will arise because a consumer believes he or she is unable to use telecommunications products or services. The first objective of our complaint process will therefore be to assist in the identification and application of current accessibility solutions that will remove the accessibility barrier -- whether real or perceived -- thereby solving the particular problem without resorting to more formalized procedures. Further, to paraphrase a common expression, we believe that accessibility delayed is accessibility denied. Our proposals therefore start with a mechanism that aims to involve service providers and manufacturers in a process that identifies and solves accessibility problems with minimal government intervention as soon as possible. And the proposals continue by providing incentives to manufacturers and service providers to explore accessibility features "early and often" during the planning and development of new product or service offerings, since doing so increases the availability of accessible products and services to consumers.
Efficient allocation of resources -- A process that imposes substantial burdens on parties may be worse than none at all. If our process is not efficient --
some potential complainants -- particularly those who lack resources and may be intimidated by complex regulatory procedures -- would be discouraged from seeking Commission assistance;
providers would spend substantial resources responding to complaints rather than enhancing accessibility of their offerings; and
the Commission would be unable to cope with any significant number of complaints in a timely manner.
We are therefore proposing to streamline the process for addressing accessibility issues as much as possible, freeing consumers and industry alike to apply their resources to solving access problems, rather than subjecting them to burdensome procedural requirements. We have made every effort to reduce administrative burdens for all who might be involved in the complaint process, and we invite suggestions for still further improvements.
125. In keeping with these objectives, we propose a two-phase program for dealing with consumers' issues arising under Section 255. In the first phase, consumer inquiries and complaints will be referred to the manufacturer or service provider concerned, who will have a short period of time to solve the complainant's access problem and informally report to the Commission the results of its efforts. This "fast-track" process will overlay and, we believe, frequently render unnecessary our traditional complaint resolution processes, by quickly resolving the consumer's problem. Otherwise, matters or disputes that remain unresolved may proceed to a second-phase dispute resolution process.
B. Fast-Track Problem-Solving Phase
1. In General
126. The heart of our proposal is an informal, "fast-track" process designed to solve access problems quickly and efficiently. We envision that this process would function as follows:
The process would be initiated by the submission of a complaint, although we would encourage potential complainants to contact the manufacturer or service provider to attempt to resolve the problem before lodging a complaint.(242)
Upon receipt of a complaint, the Commission would promptly forward the complaint to the manufacturer or service provider (or both) whose offerings were the subject of the complaint, and set a deadline for a report of action taken to resolve the complaint.
During the period prescribed, or during an extension period granted for good cause, the manufacturer or provider would attempt to solve the complainant's problem regarding the accessibility or compatibility of the provider's service or equipment. During this time, the Commission staff would be available to both the complainant and the respondent to provide information and informal assistance upon request.
By the end of the fast-track phase, the respondent would be expected to informally report to the Commission the results of its efforts to solve the problem involved in the complaint.
The Commission would evaluate the respondent's report. The matter would be closed if it appeared that the complainant's access problem had been solved and there was no underlying compliance problem, or if the matter were outside the scope of Section 255.
On the other hand, the matter would proceed to a second phase of dispute resolution processes(243) if the problem remained unsolved and there was a question of whether an accessibility solution was readily achievable, or if it appeared there was an underlying problem regarding the respondent's compliance with its Section 255 accessibility obligations.
127. We believe that the fast-track process we are proposing will frequently permit complainants and respondents to resolve disputes before requiring any use of additional Commission processes. In addition, the burden on all parties is minimal, and the process encourages the rapid, informal solution of access problems. We seek comment on the general outline of this fast-track process, and on the more specific aspects of it discussed below.
2. Initial Contact with Commission
128. The TAAC Report recommends that the Commission "encourage consumers to express informally their concerns or grievances about a product to the manufacturer or supplier who brought the product to market before complaining to the [Commission]" and that the Commission assist complainants to resolve their complaints informally.(244) We propose to adopt this TAAC recommendation. Specifically, at the time we are first contacted by a consumer, we would encourage the consumer to directly contact the manufacturer or service provider involved if he or she has not already done so, and we would provide contact information for that purpose. We would also invite the consumer to contact the Commission again if the problem is not resolved satisfactorily. The provision of accessibility information and the fast-track process respond to the TAAC recommendation that we offer our assistance in resolving complaints informally. We seek comment on this proposal.
129. Persons with disabilities may submit their complaints by any accessible means, including, for example, letter, Braille, facsimile, electronic mail, internet, TTY, audio cassette, or telephone call.(245)
130. Because Section 255 complaints will involve offerings overseen by various Commission bureaus and offices, and because consumers may be unfamiliar with these organizational differences, we anticipate establishing a central Commission contact point for all Section 255 inquiries and complaints. We seek comment on measures the Commission should take to ensure that persons with disabilities are made aware of their opportunity to address inquiries and complaints to a central contact point at the Commission.
131. We propose to make available a complaint form, but not to require its use for the initiation of a Section 255 complaint. In whatever form we receive a complaint, however, we will need to ascertain at least the following information before we can proceed:
Complainant contact information: Name, mailing address, and preferred contact method (letter, telephone number, TTY number, facsimile number, or electronic mail address).
Identification of the equipment or service complained of, and the name (and, if known, the address) of its manufacturer or provider.
A description of how the equipment or service is inaccessible to persons with a particular disability or combination of disabilities.
We seek comment on what additional information, if any, would tend to provide a clearer description of the difficulty complained of, without requiring excessive or irrelevant information. In any event, we would retain discretion to request from