FCC letter re TIA proposal January 23, 1998

William E. Kennard
Chairman
Federal Communications Commission
1919 M. Street, N.W., Room 814
Washington, DC 20554

Dear Chairman Kennard:

The undersigned organizations representing the interests of people with disabilities are pleased to have the opportunity to respond to the document prepared by the Telecommunications Industry Association (TIA) regarding draft guidelines for the implementation of Sec. 255 of the Communications Act. While we commend TIA for its efforts to hasten the implementation of this very important amendment enacted in the Telecommunications Act of 1996, we emphatically state that this is not an adequate set of guidelines nor does it afford the Federal Communications Commission with the appropriate starting point for its implementation efforts. In the interest of expediting your consideration, we will restrict this response to several overriding concerns with the TIA document. In so doing, we do not imply acceptance of any other part of the document, though we are pleased to see certain positive elements, notably the process outlined in Sec. 3, General Guidelines for Manufacturers.

We respectfully suggest that the report prepared by the Telecommunications Access Advisory Committee (TAAC), under the aegis of the U.S. Architectural and Transportation Barriers Compliance Board (Access Board), is a much more appropriate starting point for FCC implementation efforts. The TAAC report is the result of a consensus process which included representatives from disability organizations and the telecommunications industry (including TIA). In addition, much of the material in the TIA document has already been the subject of a rulemaking by the Access Board which issued an NPRM establishing Telecommunications Act Accessibility Guidelines on April 18. 1997. Indeed, the FCC itself sought information on many of these points in its NOI released on September 19, 1996 (WT Docket No. 96-198).

The TIA proposal is inconsistent in significant ways with the Access Board recommendations. It would be simpler for the FCC and speed the administrative process to start from a point of consensus then to start with a proposal that would essentially require the FCC to reconduct proceedings that it took the Access Board months to conduct. Further, because reconducting the TAAC proceedings would necessarily place a significant burden on the disabilities community and delay the issuance of a final rule, it seems to us starting with the TAAC report recommendations (which address most of the issues raised in the TIA proposal) is most consistent with the goals of the statute. Prior proceedings and the TAAC report are far more representative of the range of interests and issues involved in implementing Sec. 255. This TIA proposal represents the view of one set of entities covered by Sec. 255.

Sec. 1 Definitions
Manufacturer (1)(a)(3)

TIA's definition of "manufacturer" found at (1)(a)(3) is drawn far too strictly and the reference to the Americans with Disabilities Act (ADA) is irrelevant. Regulators have long recognized that allowing utilities to subdivide their operations creates enormous opportunities for regulatory evasion and abuse (the FCC, for example, has long recognized that it can be important to carefully scrutinize transactions between regulated and unregulated subsidiaries of utilities). In this case, allowing a manufacturer to define the unit of operation, allows it to create an entity that does not have the resources or ability to develop accessible telecommunications equipment. There is no apparent reason for ignoring the resources of the parent corporation, and indeed, it seems to us that it is incumbent on the parent to structure its operations so that it can comply with the requirements of Section 255. TIA argues that allowing it to define units of operation is consistent with ADA requirements that (when dealing with retrofitting existing structures) take into account the size of the local business unit affected. Without going into detail as to the flaws in TIA's ADA analysis, which are significant, we note that far different issues are presented where one is dealing with a retrofit of an existing structure being used in an existing operation (where cost can be measured against actual ongoing operational income and expenses) and what TIA is proposing, which is that manufacturers be permitted to define their operations on a prospective basis to limit their Section 255 obligations. If manufacturers are permitted to narrowly define their enterprises, the financial considerations associated with the "readily achievable" defense will cause almost nothing to be readily achievable, thereby required under the Act. The effect on the resources of the parent entity, or on the relationships among a variety of contractors are best dealt within the context of readily achievable or in complaint adjudication.

Readily Achievable (1)(a)(5)

The definition of the term "readily achievable" is key to the successful implementation of Sec. 255. Sec. 255 incorporates by reference the definition of "readily achievable" contained in the ADA. That definition includes several factors which have been further defined through regulatory action by the Department of Justice. TIA chose to ignore those factors in presenting its version of readily achievable. TIA sets forth a revised version of the factors used to define readily achievable. In general, the ADA definition focuses on cost, nature of the action, resources, and the relationship to parent corporations.

TIA has added several elements to their list of factors which either are incongruent with ADA or would subvert Sec. 255. For example, neither the ADA nor the subsequent definition provided in the DOJ regulations includes the term "technically feasible." While we recognize that manufacturers are not required to do the impossible, the Act at least contemplates that they will put the effort into making equipment accessible, which may necessarily involve developing and implementing new technologies and designs. Certainly, nothing in the Telecommunications Act nor the ADA limits the determination of readily achievable activities to TIA's phrase "at the time design . . . commences." In order to comply with Sec. 255, manufactures and service providers must take some action. Nothing in the ADA or in Sec. 255 limits that action to an arbitrary determination of accessibility measures known only at the time a company undertakes to design a product. Investigation of alternatives throughout the process is essential. We would envision, for example, that compliance with the Act would require a manufacturer to seek to develop accessibility solutions as part of its ongoing research and development process.

In addition, TIA includes other limitations it believes falls under the term "readily achievable": (1)(a)(5)(iv), "altering a fundamental or essential characteristic of the telecommunications equipment" and, (1)(a)(5)(v), "significantly limit the usefulness, marketability, or volume of sales of the telecommunications or CPE." "Usefulness," "marketability," and "volume of sales" are not included in the statutory definition of readily achievable nor in the enforcing regulations promulgated by DOJ. It would be difficult for the covered entity, the FCC, or any complainant under Sec. 255 to adequately prove or dispute these terms, at least as the TIA has defined them. The TIA proposal, for example, assumes that accessibility features are always a negative in product marketing, and will inherently reduce the volume of sales. This is just not the case, yet the TIA proposal provides no mechanism requiring manufacturers to consider the benefits of accessibility. Additionally, inclusion of the limitation based on altering a function or characteristic of a piece of equipment is both difficult to prove and could have the effect of chilling action under the Act. Again, we note that the intent of Sec. 255 was to ensure that equipment and services be made accessible to, usable by or compatible for people with disabilities. This will certainly require companies to think of a wider range of customers than they might traditionally address and to rethink product designs. TIA's proposal, which is inconsistent with the TAAC recommendations, really doesn't lead anywhere or create a reasonable framework for resolving accessibility issues.

We believe that accessible designs will ultimately prove to be better designs in almost every instance. Assume someone wants to develop an ultra-small telecommunications device, presumably with a touch screen that cannot be used by a person who is blind. TIA suggests that requiring large buttons on the device would change a fundamental characteristic of the equipment, and argues that accessibility should therefore be presumed unachievable. Nonsense: in the research and development process, one might enable the small telecommunications device to be fully operable with speech recognition functions that could be used by a person who is blind or visually impaired. In addition, this would have the salutary effect of permitting a person whose limited manual dexterity does not permit them to operate the device effectively.

TIA's definition of "readily achievable" would thwart the purpose of Sec. 255, since virtually any accessible design feature -- except for the most cosmetic or minimal design components--would trigger the "readily achievable" defense. The proposal also fails to recognize the distinctions drawn in the ADA between work that is being done to retrofit structures, and work that is being performed on new structures. It is important to distinguish between what is readily achievable on existing version of products and what is readily achievable as existing products are redesigned and as new products are introduced.

Sec. 4 - Sec. 7 Complaints

Sec. 4 Complaints; Sec. 5 Complaint Answers

We oppose several elements set forth by TIA in outlining the complaint process and expected response under Sec. 255. In particular, while we would encourage informal resolution of complaints, we find it inappropriate to require that a complaint be filed first with the covered entity as TIA recommends in Sec. 4(a)(3). Determining the entity with which to lodge a complaint, ascertaining the address or location of a manufacturer or service provider, and discovering the right unit or point of contact all may unnecessarily impede an individual from seeking mandated implementation of Sec. 255. As importantly, the complaint process outlined by TIA inherently will delay resolution of complaints and implementation of solutions. Suppose a particular person files a complaint, and the manufacturer proposes a technical solution. Is the person who filed the complaint then responsible for determining the technical impacts of the proposed solution (which may literally be "on the drawing board." Will that person be required to assess and decide whether this is the most reasonable alternative available? Will the determination of that one individual then bind others and control the design process for years (which is what TIA suggests)? The opportunities for abuse, delay and obstruction are obvious, and the burden the process places on individuals is unacceptable in light of the mandate of the act. While we encourage manufacturers to talk to individuals and groups to improve their products, there must be a way to file complaints at the Commission, without the necessity of jumping through procedural hoops. Likewise, it is not an acceptable answer by a covered entity to a complaint that the complainant "failed to exhaust the informal complaint resolution process," (Sec. 5(a)(1)). The "exhaustion" doctrine has no application in this context, where complainants really would not have due process remedies against a private company, and where there is no clear opportunity for investigating allegations that the company may choose to make in response to a complaint. In addition, the "exhaustion" remedy would require the FCC to spend its time and staff to address new layers of procedural issues that could arise every time a complaint was filed.

TIA includes a series of answers that we believe are inappropriate and violate the statute. We have already registered our objection to (5)(a)(1) regarding complainant exhaustion of informal process. We also believe (5)(a)(2)(ii) goes beyond statutory authority and establishes an unduly complicated set of criteria. This clause would allow a manufacturer to answer that "One or more of the manufacturer's existing products, or products in the design or development stage, with reasonably comparable features and manufacturer's price ranges provides, or will provide, the accessibility or compatibility as defined in these guidelines." In its NPRM, the Access Board, stated that it "finds no evidence in the statute or its legislative history that Congress intended individuals with disabilities to have fewer choices in selecting products than the general public. Therefore, all products are subject to these guidelines." Ultimately, TIA's process places the burden of proving noncompliance on individuals who are not likely to have access to the documents or to the resources necessary to carry that burden. The process is therefore inconsistent with the statutory requirements, which are designed to ensure accessibility.

Sec. 6 Replies to Complaint Answers

In Sec. 6, TIA describes the elements of a formal reply by the complainant. We are concerned about the detailed knowledge that a complainant would be required to possess to meet the burden established by TIA's recommendation. It is unlikely that most complainants will possess the technical knowledge or proprietary information necessary to describe the nature of the barrier or a potential solution. Our objection as to the burden, described above, applies here as well.

Sec. 7 Remedies

TIA's recommendation that a manufacturer should be shielded from other complaints during the pendency of a similar complaint is also unacceptable. This recommendation is inconsistent with TIA's additional recommendation, with which we agree, that a complaint should be pleaded with a sufficient degree of particularity. Manufacturers should not be allowed to have it both ways: a particular complaint and a shield from similar complaints. In addition, we opposed TIA's recommendation that the levy of a fine should be limited to only those extraordinary situations wherein a consent order is violated. Such a limitation on penalties may cause manufacturers to simply calculate the cost of non compliance vs. compliance with the statute: a situation which should not be encouraged by the Commission. We do not believe that every failure to comply will warrant a penalty. Likewise, however, not every failure to comply will be excusable, even if the failure is a company's first legally adjudicated failure. For example, a company that made no effort to comply with the statute, or made patently frivolous efforts to comply, or which sought to evade the statute probably should be treated differently than a company that makes good faith efforts to comply.

Conclusion

In conclusion, we look forward to meeting with Mr. Steven Weingarten of the Wireless Bureau and other FCC staff next week to discuss the Commission's future rulemaking under Sec. 255. We would, of course, be happy to respond to any other issued raised by the TIA proposal at that time. We would also be prepared to develop an alternative to the TIA proposal. However, we think that the best approach is to start with the Access Board recommendations, rather than the recommendations of any interested party in this docket.

We have not provided copies to the FCC Secretary since this letter is not in response to an FCC docket. If it necessary to do so, please notify us and we will provide the copies and necessary service.

American Council of the Blind
Mark Richert, 202-467-5081

American Foundation for the Blind
Paul Schroeder, 312-245-9961

National Association of the Deaf
Karen Peltz Strauss, 301-587-7466

United Cerebral Palsy Associations
Jenifer Simpson, 202-973-7111

cc: Federal Communications Commission Staff
Meryl Icove
Pam Gregory
Elizabeth Lyle
Steve Weingarten
Matt Flanigan, President, TIA