FCC Filings #96-198

Before the Federal Communications Commission
Washington, D.C. 20554

Comments of the Telecommunications Industry Association

The Telecommunications Industry Association ("TIA") hereby comments on the Notice of Inquiry ("NOI") in the captioned proceeding, FCC 96-382, released September 19, 1996. Throughout the Association, TIA is committed to effective implementation of Section 255. One of its staff directors is Chair of the Telecommunications Access Advisory Committee ("TAAC"), established by the U.S. Architectural and Transportation Barriers Compliance Board ("Access Board"). Employees of TIA member companies are serving as co-chairs of TAAC subcommittees.

TIA has a membership of nearly 600 U.S. companies which manufacture and/or provide communications and information technology equipment, products, systems, distribution services and professional services throughout the world. As an accredited telecommunications standards-setting organization, TIA has ample experience with and substantial faith in the voluntary, industry-led standards process as an effective vehicle to achieve the benefits of Section 255 for persons with disabilities, without unduly burdening affected equipment manufacturers and service providers. In this respect, we applaud FCC Chairman Hundt's statement accompanying the NOI, which says in part:

While TIA's member companies not only make the kinds of equipment but also provide the sorts of telecommunications services covered by Section 255, the following perspectives are chiefly those of equipment manufacturers and suppliers to the telecommunications industry.

In Section II of the NOI, the Commission asks whether it should exercise its statutorily-exclusive authority to resolve complaints through case-by-case adjudication, promulgation of a policy statement or guidelines, or FCC rules. TIA recommends, at least initially, that enunciation of policy through statements or guidelines be the preferred approach. Rules are relatively inflexible and difficult to amend or delete when changes are needed. They pose a higher risk of "freezing" access and adaptive technologies at a time when innovation is most needed.

Moreover, the results from the Access Board will be in the form of accessibility guidelines for equipment. (NOI, 4) In its singular responsibility for resolving complaints, the FCC needs to satisfy itself that the Access Board's guidelines are workable, equitable and clear. The Commission can accomplish this by:

• Including the FCC's own analysis and recommendations with the record of this proceeding transmitted to the Access Board;
• Making staff and information available to the Access Board in the course of the Board's processes leading to release of the accessibility guidelines; and
• Conducting its own review of the guidelines following their adoption, and taking whatever steps are needed to make them a suitable basis for informal settlement of disputes or more formal resolution of complaints.

Guidelines are what Congress asks of the Access Board at Section 255(e). They are also consonant with the "voluntary, proactive efforts among the industry and consumers" recommended by Chairman Hundt and supported directly by TIA and its member companies through contribution of staff and resources to TAAC.

In Section III, the NOI asks for comment on several definitions. TIA believes that the definitions of "telecommunications" and "telecommunications service" in the Telecommunications Act of 1996 ("TA 96") are sufficient to attach clear meaning to "telecommunications service provider." We agree with the tentative conclusions of TAAC that "existing definitions of customer premises equipment ("CPE") and telecommunications equipment are sufficient." The definitions are discussed at NOI 9-10.

As to the effect of Section 251(a)(2) -- including as a general duty of interconnecting carriers the obligation not to install features, functions or capabilities compromising accessibility standards -- we note the cross-reference is not only to Section 255 but also to Section 256, whose focus is network inter-operability -- with explicit mention of individuals with disabilities at subsection (b)(2)(B). This suggests Congress intended generally equivalent treatment of network equipment and CPE. However, differences in detail are likely to arise from the practical consideration that users rarely encounter network equipment as directly as they do CPE.

Harmonization of accessibility guidelines (NOI, 11-12) among different countries is an ideal to be sought continuously in a global marketplace. The present reality is that all manufacturers and distributors operating in more than one country face -- or risk facing -- variable requirements. (Note 3, supra) There is, TIA submits, a kind of parity of burdens. Accordingly, we cannot in good conscience suggest that any manufacturer or provider otherwise subject to U.S. accessibility guidelines should be excused from compliance because of the variances in requirements imposed by other countries.

TIA agrees with the NOI's suggestion (13) that, despite legislative reference to the Americans with Disabilities Act ("ADA"), the working meaning of disability in Section 255 is narrower than that employed by the earlier statute. We also are persuaded that the second and third terms from the ADA definition -- record of impairment, perception of impairment -- were fashioned largely for use in combating discrimination in employment and public accommodation, and are not relevant to the Section 255 context.

Another cross-reference from Section 255 to the ADA is the term "readily achievable," meaning that barriers to access and use of equipment and services by persons with disabilities are to be eliminated or reduced when this can be carried out "without much difficulty or expense." (NOI, 15) TIA suggests that Department of Justice ("DOJ") rules implementing the public accommodations sections of the ADA are helpful in applying the quoted phrases to Section 255 of TA 96. Pertinent here are 28 C.F.R. ��36.104 (defining "readily accessible") and 36.304(b), which lists among modest changes repositioning of telephones, shelves and dispensers, and adding raised markings to control or signalling buttons. Discussing the formulation of these rules at Appendix B to Part 36, DOJ observes that whether any given improvement to accessibility is readily achievable or not is "to be determined on a case-by-case basis in light of the particular circumstances presented and the factors listed in the definition . . ."

At the same time, TIA respectfully submits that the ADA's employment of "overall financial resources" may be of limited value in Section 255 consideration. This is because innovations and adaptations for special kinds of access to equipment and services -- including access by persons with disabilities -- often depends, in the modern corporate environment, on the imagination and energy of small "intrapreneurial" groups within large hierarchical structures. These groups typically are expected to perform cost-effectively within limited budgets, and to create revenue and profit payoffs from their labor. They cannot expect to be endowed from the larger pools of revenue and profit in their parent enterprises. Accordingly, "overall financial resources" is not a reliable criterion.

Instead, the more meaningful economic measurement is the cost of adding or integrating the accessibility feature in relation to the cost or price of the product or service as a whole. Increasingly, however, feasible pricing is limited by global competitive pressures that drive down margins -- for which one all-too-visible answer has been cost reductions that mean elimination of jobs under such euphemisms as "process re-engineering."

Nowhere will voluntary and collaborative activity between industry and consumers be more important than in the harmonious resolution of issues raised at NOI 22. From the manufacturer's perspective, it will be unreasonably difficult, if not impossible, for a single maker to install in every product features that are required for accessibility by all persons having one or more of the covered impairments.

Congress and the ADA-implementing agencies recognized that designing or installing products to address one disability could work to the disadvantage of persons with other disabilities. Thus, DOJ rules provide that some quotient of payphones (e.g., one per floor, if provided on that floor) be of a lower height and otherwise situated for wheelchair access, without requiring all payphones to be so arranged. This means that taller individuals with back problems have ready access, along with persons in wheelchairs.

Similarly as to Section 255, it would be reasonable to expect that some manufacturers will address, in some models, the features required for improved access by persons with a given impairment. More problematic, but still to be hoped, is that the combined efforts of these makers, distributors and installers would result in satisfactory access to all broad types of telecommunications equipment and CPE by persons with every covered impairment. To head off perceived market failures that might result in punitive, counter-productive and innovation-stifling rules, ways must be found to coordinate the consultative process without running afoul of antitrust laws or other legal constraints.

To the extent that not all products will be accessible by persons of every covered impairment, labelling and consumer education are important in guiding users to the models that will satisfy their needs. In this regard, the NOI asks (23) for "an assessment of the extent to which accessible telecommunications services, telecommunications equipment, and CPE are currently available." Attached are but a few of many examples:

• A booklet, Extend Their Reach, from the Consumer Electronics Manufacturers Association;
• An article, "Maximizing Market Share through Design;" and
• Product descriptions from Ericsson, Motorola and Nortel.

TIA hopes to be able to expand this compilation prior to the close of the NOI record.

Concerning "compatibility" of new equipment with that commonly used by persons with disabilities -- intended as an alternative where adequate access is not readily achievable -- the NOI (25) asks for comment on definitions of the terms "specialized CPE" and "peripheral devices." The former has a meaning associated with its use in the so-called "Computer II" rulemakings. The issues for peripheral devices, commonly understood as dependent units separate from but attachable to some main object, are likely to arise in availability, convenience and affordability of attachment.

As noted earlier, the FCC should be prepared to assist the Access Board by (1) providing the Commission's own analysis and recommendations concerning the record created here; (2) working with the Access Board during the development of accessibility guidelines; and (3) reviewing the guidelines, as issued, to determine their usefulness in resolving complaints -- an activity committed by Congress to the sole authority of the Commission. The aim should be to make the guidelines as reasonable, fair and clear as possible, so that the number of complaints requiring resolution will be minimized. As Chairman Hundt has recognized, "cooperative and innovative solutions" should not be suppressed by a "vague and cumbersome mandate that will result in costly and complex complaint proceedings."

Any approach to the FCC should be a last resort. Whether promulgated by the Access Board or the Commission, guidelines should urge that dissatisfied persons with disabilities first take up their grievances with manufacturers or suppliers. Often, this process is facilitated in some fashion by the responsible business entity -- through designated consumer advocates, focus groups and the like. Trade or advocacy organizations have established intermediaries for the purpose of complaint evaluation, functioning in the role of objective ombudsmen.

Should such informal settlement efforts fail, the FCC already is empowered to apply mediation to Section 208 complaints, and the same should be considered for actions brought under Section 255. If adjudication ensues, it should be under a set of clear procedural rules. As an interim measure, the regulations for informal complaints under Section 208 would suffice.

Complaints relating to equipment performance might be obviated or narrowed if some form of manufacturer assurance were supplied for accessible equipment. One model might be the "Declaration of Conformity" adopted for makers and suppliers of personal computing and personal computing peripheral devices. Under recent amendments to Parts 2 and 15 of the FCC's rules, a manufacturer or equipment supplier of these products may test them for compliance with regulations designed to limit radio frequency ("RF") emissions capable of interfering with radio communication. The manufacturer or supplier must then include a declaration of conformity in literature accompanying the product.

CONCLUSION

For the reasons discussed above, the Commission should promote to the Access Board flexible and fair guidelines whose acceptance will be the product of voluntary cooperation between equipment manufacturers and suppliers and their customers with disabilities, rather than the bitter-end outcome of myriad litigation.