yes, I know that this is long, but it is important. You can even send in
your comments by e-mail now. Let your voice be heard.
kelly
Before the
Federal Communications Commission
Washington, D.C.
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
Notice of Proposed Rulemaking
Adopted: April 2, 1998 Released: April 20, 1998
Comment Date:June 30, 1998
Reply Comment Date:August 14, 1998
By the Commission:Commissioners Furchgott-Roth, Powell and
Tristani issuing separate statements.
Table of Contents
Paragraph
I. INTRODUCTION; SUMMARY
II.BACKGROUND
A.Legislation
B.Commission Notice of Inquiry
C.Telecommunications Access Advisory Committee Report
D.Access Board Equipment Guidelines III. STATUTORY AUTHORITY
A.Introduction
B.Scope of Rulemaking Authority
C.Access Board Equipment Guidelines
D.Enforcement Authority
IV. STATUTORY DEFINITIONS
A. Scope of Statutory Coverage
1. Telecommunications and Telecommunications Service
2. Provider of Telecommunications Service
3. Manufacturer of Telecommunications Equipment or
Customer Premises Equipment
a. Equipment
b. Manufacturer
4. Network Features, Functions, or Capabilities
B. Nature of Statutory Requirements
1. Introduction
2. Disability
3. Accessible to and Usable by
4. Compatible with
a. Peripheral Devices or CPE
b. Commonly Used
c. Compatibility
d. Other Matters
5. Readily Achievable
a. General
b. Telecommunications Factors
(1)Feasibility
(2)Expense
(3)Practicality
(a) Resources
(b) Market Considerations
(c) Cost Recovery
(d) Timing
(4) Other Considerations
V.IMPLEMENTATION PROCESSES
A.Introduction
B.Fast-Track Problem-Solving Phase
1.In General
2.Initial Contact with Commission
3.Provider Contact
4.Solution Period; Report
5.Commission Evaluation
C.Use of Traditional Dispute Resolution Processes
1.Generally; Informal Dispute Resolution Process
2.Formal Dispute Resolution Process
3.Alternative Dispute Resolution Process
4.Defenses to Complaints
D.Penalties for Non-Compliance
E. Additional Implementation Measures
VI.INTERIM TREATMENT OF COMPLAINTS
VII.PROCEDURAL MATTERS
A.Regulatory Flexibility Analysis
B.Paperwork Reduction Analysis
C.Ex Parte Presentations
D.Pleading Dates
E.Further Information
VIII.ORDERING CLAUSES
APPENDIX A:Text of Section 251(a) and Section 255 of the
Communications Act
APPENDIX B:Pertinent Commission Rules
APPENDIX C:Access Board Guidelines
APPENDIX D:List of Pleadings
APPENDIX E:Initial Regulatory Flexibility Analysis
I. INTRODUCTION; SUMMARY
1. The Telecommunications Act of 1996 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, which
seeks to increase the accessibility of telecommunications
services and equipment to the 54 million Americans with
disabilities.
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. 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 ) 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, 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. 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.
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, 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.
II. BACKGROUND
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 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.
9. Section 255 explicitly assigns the Commission two
specific responsibilities: (1) to exercise exclusive
jurisdiction with respect to any complaint under Section 255; and
(2) to coordinate with the Access Board in the development of
guidelines for accessibility of telecommunications equipment and
customer premises equipment. The Access Board's role is
significant because the Board is an independent Federal agency
whose primary mission is accessibility for persons with
disabilities.
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). The Commission has promulgated rules implementing
each of these three statutory provisions.
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, 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.
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,
the establishment of a coordination point for the exchange of
information on accessibility implementation, and the adoption by
manufacturers of an access verification process to provide notice
to the consumer on the accessibility or compatibility of various
products.
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, and suggested that the Access Board prepare an
annual market monitoring report based on Commission complaint
data. 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. 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. 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.
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. 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.
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. 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.
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. 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.
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. 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.
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.
III. STATUTORY AUTHORITY
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.
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. 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. Section 208
governs complaints against common carriers filed with the
Commission. 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.
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).
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.
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. 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. 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. 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. 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. 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. 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 . . . .
27. Courts repeatedly have held that the Commission's
general rulemaking authority is expansive rather than limited.
In addition, it is well established that the agency has the
authority to adopt rules to administer congressionally mandated
requirements. 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, 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. 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. Thus, the Conference Committee deletion
referenced by the parties 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. 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. 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.
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. 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. 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 . . . and that Section 255(f) expressly prohibits
the creation of any new private rights of action. CEMA notes
that [t]he final statutory language of Section 255 makes no
reference to any new enforcement or complaint authority . . .
and cites language in the Statement of Managers as suggest[ing]
that only existing remedies under the Communications Act are
available for enforcement. 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, contains no provision for private complaints or
assessing damages. CEMA concludes that Commission enforcement
of Section 255 violations by equipment manufacturers should
therefore be limited to declaratory rulings and cease-and-desist
orders.
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 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. 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. 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. We seek comment on
this conclusion.
IV. STATUTORY DEFINITIONS
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. These phrases or
their central terms are defined by the Act, 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:
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:
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:
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 under the
regulatory structure it had established in the 1980 Computer II
proceeding should be considered information services. 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. Other enhanced services include electronic
store-and-forward, data processing, gateways to online databases,
and alarm monitoring. Similarly, the Commission has deemed
reverse directory service to be an information service and, thus,
not regulated under Title II of the Act.
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. 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. 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. 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.
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. 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. 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. 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.
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. 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. 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, the
presumption being that they are information services unless they
are shown to be otherwise.
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. 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.
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, 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 . . . . 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.
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. 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 . . . . 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. 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. 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). 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. The Access Board guidelines
repeat the definitions of both terms used by the Act.
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) 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. 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). 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. 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.
51. We agree with TIA that Congress intended generally
equivalent treatment of both telecommunications equipment and
CPE. 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,
to requiring accessibility only with respect to those
telecommunications-specific functions. 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.
53. As with telecommunications services, 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?
54. Several commenters question the extent to which
software products are subject to the requirements of Section 255.
The Access Board position is that:
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). 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. 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. 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.
58. There is broad agreement that all equipment marketed in
the United States, regardless of national origin, should have
uniform accessibility requirements. Further, the Access Board
guidelines do not distinguish between foreign and domestic
manufacturers. 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. 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. Others favor assigning
responsibility to all firms involved, down to the component
level. Those commenters who expressly comment on the reseller
issue say both manufacturers and resellers should be responsible
for accessibility. Beyond these positions, several commenters
advocate leaving to private contract the apportionment of
responsibility among designers, developers, fabricators, and
marketers. 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. 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.
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, 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, 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.
The Act does not expressly define network features, functions,
and capabilities, but it does provide examples as part of its
definition of network element :
[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. 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.
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. 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. 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. 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. 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.
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 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]. The ADA defines disability as:
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. 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.
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. 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. 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. 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.
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,
and the guidelines define accessible as compliance with
Sections 1193.31 through 1193.43 of the rules.
73. We propose to adopt the Access Board's definition of
usability as part of our definition of accessible to and usable
by. 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
- 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
- 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.
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, but also support services
(such as consumer information and documentation) akin to what is
provided to consumers generally to help them use equipment. 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 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.
78. Several commenters agree that providers are not
responsible for physical aspects of accessibility except where
they have direct control over siting. 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. Mulvany likewise suggests that manufacturers
communicate installation requirements for optimizing
accessibility.
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. Thus,
in the example noted above, manufacturers of pay telephones have
no control over the height at which their instruments are
mounted. 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. The Notice of Inquiry asked commenters to
address the definitions of existing peripheral devices and
specialized CPE, and to provide examples.
82. Several commenters provide such examples. 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. 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.
83. The Board further explains its definitions as follows:
[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 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), 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. 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, 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.
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. 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. Trace
references an overview of commonly used peripherals on Internet
sites it maintains.
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. Inclusive calls for a census
to determine commonly used specialized CPE, which manufacturers
and service providers could use to develop compatibility
standards.
90. In light of the specific definitions set out in the
Access Board guidelines, 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.
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. The Access Board lists five criteria for determining
compatibility, subject to applicability:
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. 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. 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], which states:
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.
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.
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. 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 . . . . 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].
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.
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.
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. 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. 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. 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. 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. Many commenters address the issue of cost as a
factor in determining whether a particular accessibility or
compatibility feature or component is readily achievable.
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. Microsoft asserts that it will often be difficult to
separate accessibility costs from operating expenses. AFB
asserts that the cost of accessible technology drops when
required by regulation.
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. 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.
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. 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. On the other hand, Waldron warns that
if all resources are not considered, subsidiaries will buy off
accessibility obligations.
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.
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.
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. 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.
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. 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. 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,
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. 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]. 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. We
have previously indicated our tentative conclusion that the
relevant measure of the expense of providing accessibility
features is their net expense. 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. We seek comment on the extent that
service providers and manufacturers should consider affordability
of accessible products when making cost recovery assessments.
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. 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. 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. 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.
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. And
while the Board suggests that net accessibility should not be
reduced, 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. 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. 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. The Access Board maintains that [n]o
explicit grace period is needed since it is built into the
determination of readily achievable. 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. We tentatively do not see how such social utility could
be quantified with sufficient objectivity to be considered as a
separate factor, 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); and differences between a product
used by one customer, and a product that is part of a network.
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. 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..
V. IMPLEMENTATION PROCESSES
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.
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 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. 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.
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 complainants additional information that would help us to
rapidly address the request.
3. Provider Contact
132. Our fast-track proposal envisions initially referring
complaints to the manufacturer or service provider (or both, as
appropriate). Before we can do this, we will need a list of
contact points for each manufacturer and service provider subject
to Section 255. How can we efficiently generate and maintain
such a list? Should we require a single contact point for each
company, or should we permit firms to designate different contact
points for different product offerings? Should we require that
the contact point be in-house, or should we permit delegation
of the contact responsibility to agents? We also seek comment on
whether we should require firms to provide accessibility contact
information directly to consumers, and if so, how.
133. We believe that the data we need includes information
similar to the contact information we will require of
complainants: name or title of the contact person, mailing
address, and alternate contact methods (telephone number, TTY
number, facsimile number, or electronic mail address). We
propose that equipment manufacturers and service providers be
required to establish multiple contact methods, accessible to as
many disabilities as possible. The contact information should
identify all alternatives available. This would give us the
greatest flexibility for forwarding the various kinds of
complaints we are likely to receive. If we allow the designation
of different contact points within a company, we will need to
collect additional information that will allow us to identify the
appropriate contact point for each complaint. We seek comment on
these matters. We also seek comment on whether our process
should include a notification to the complainant that the
complaint has been referred, and, if so, what information our
notification should include.
134. Finally, we note that the contact list we develop will
be useful not only in connection with forwarding complaints, but
could also serve a valuable, though secondary function as a
source of accessibility information for the public. Should we
make the list publicly available? If so, what additional related
data, if any, should we collect that would advance this
additional function? Commenters suggesting additional data
collection should state whether they believe submission of the
data should be optional or mandatory, and, if the latter, should
explain why the benefits of the requirement would justify the
burdens.
4. Solution Period; Report
135. As noted above, upon receipt of a complaint, the
Commission would promptly forward it to the manufacturer or
service provider (or both) whose offerings were referenced in the
complaint, and set a deadline for a report to the Commission of
action taken to resolve the complaint. We would endeavor to
forward the complaint within one business day of its receipt,
although circumstances such as the format of the complaint or
Commission staff workloads might cause delays. We seek comment
on appropriate customer service standards for complaint
forwarding procedures. We also seek comment on whether we should
forward complaints submitted as submitted, regardless of format,
or whether we should forward translations or transcripts of
complaints submitted in formats such as Braille.
136. The action report deadline should provide sufficient
time for respondents to study the complaint, gather relevant
information, identify possible accessibility solutions, and, most
importantly, work with the complainant to solve the access
problem if possible. At the same time, access must not be
unreasonably delayed; we intend the fast-track process to provide
quick relief to consumers where possible. We believe a period of
five business days strikes a reasonable balance of these
concerns, and we propose to specify a deadline of five business
days from the time we forward the complaint to the respondent.
We seek comment on this proposal.
137. We believe there will be instances where a
five-business-day period (for example) may be enough time for a
provider to assess a problem and begin to resolve it, but not
long enough to complete the resolution. Where substantial
efforts are under way, we believe it would be preferable to allow
the fast-track process to continue, rather than beginning more
resource-intensive traditional dispute resolution processes.
Consistent with the nature of the fast-track process, we believe
that under these circumstances, providers should be able provide
us with an informal progress report and request additional time
to continue their problem-solving efforts. At the same time, we
do not want to encourage delay in providing access solutions. We
therefore seek comment on how we might balance these interests in
considering extension requests, and whether there should be an
outside limit on the length of the fast-track period. We also
seek comment on how to provide a mechanism for either party (or
the Commission, for that matter) to terminate the fast-track
phase and proceed to traditional dispute resolution processes,
where it appears the fast-track process is not leading to a
mutually satisfactory resolution.
138. By the end of the fast-track process, we expect the
manufacturer or service provider informally to report to the
Commission regarding whether the complainant has been provided
the access sought, and if not, why it has not been provided. To
put the circumstances of the particular accessibility complaint
in context, it might also be appropriate for the respondent to
report generally its procedures for ensuring product
accessibility. In order to provide flexibility in this process,
we propose that such reports be submitted by telephone call,
electronic mail, facsimile or written correspondence. We seek
comment on this proposal.
139. Because the most critical element of the fast-track
process is the sharing of information between complainant and
respondent, we want to ensure that complainants are fully
informed of respondents' efforts. To this end, we propose to
require that respondents provide copies of their reports to
complainants. However, we also want to avoid formalizing and
stifling the process, and are not sure how, for example, a
telephonic report might be copied. Thus, we seek comment on
our proposal, and how to satisfy this requirement in the case of
telephonic or other oral reports.
5. Commission Evaluation
140. At the end of the fast-track process, we propose that
the Commission would consider both (1) the success of the
respondent in providing an appropriate access solution, if
possible, and (2) whether there appeared to be an underlying
compliance problem, regardless of whether the particular
complainant had been satisfied. That review would determine
whether further action was required, as follows:
If it appeared that the complainant's access problem
had been satisfactorily solved (or that accessibility was not
readily achievable) and there was no indication of an underlying
problem of compliance with Section 255, the matter would be
closed by the Commission.
If it appeared that the complaint did not involve
matters subject to Section 255, the matter would be closed.
If it appeared that the complainant's access problem
had been satisfactorily resolved but there was an indication of
an underlying compliance problem, the Commission would undertake
further dispute resolution efforts to determine the nature and
magnitude of the problem, and take appropriate action. Evidence
of an underlying compliance problem might consist, for example,
of evidence that the respondent had solved the complainant's
problem with another entity's products, or that the complaint
reflected a pattern of not addressing accessibility issues until
complaints were filed.
If it appeared that the access problem had otherwise
not been satisfactorily resolved, or if the respondent failed to
submit a timely resolution report, the Commission would initiate
further resolution processes.
141. We also propose that the Commission's evaluation of a
resolution report not necessarily be limited to the respondent's
initial report, but might also include additional information
requested from the respondent or the complainant, discussions
with accessibility experts from industry, disability groups, or
the Access Board, or review of prior or other pending complaints
involving the respondent. Further, to the extent a respondent's
report asserted that accessibility was not readily achievable, we
would evaluate the claim using the same factors we would use to
evaluate such a claim during a second-phase dispute resolution
proceeding. We seek comment on these proposals.
142. We propose that the Commission would communicate its
determination to both the complainant and the respondent in
writing. If the Commission concluded that no further action was
warranted because the matter lies outside the scope of Section
255, we would anticipate including further information that would
assist the consumer in seeking relief through other possible
avenues. If the determination were to proceed to dispute
resolution proceedings, we would include pertinent information
relating to initiating those processes. We seek comment on this
aspect of our fast-track proposal.
143. Finally, we note that if our fast-track determination
were that the matter should be closed, we would anticipate
including information that a complainant who disagreed with that
determination and wished to pursue the complaint to second-phase
dispute resolution could do so. We propose not to require any
particular method for complainants to communicate their desire to
continue to dispute resolution, but to leave the method to the
complainant's discretion, in the same manner as the complaint
filing procedures described above. We seek comment.
C. Use of Traditional Dispute Resolution Processes
1. Generally; Informal Dispute Resolution Process
144. The Commission's ultimate responsibility under Section
255 stems from our statutory jurisdiction over complaints
alleging non-compliance with the requirements of Section 255. If
questions of compliance remain at the end of the fast-track
problem-solving phase, we will resolve them through one of the
processes described below.
145. The Commission previously has established a general
complaint procedure, though in many cases we have provided
specific procedures for particular telecommunications services or
subject areas. Our common carrier rules, for example, offer
complainants the choice of either formal or informal resolution.
Under the formal procedures, a complainant assumes the burden of
prosecuting its complaint, much like a plaintiff in a civil
judicial proceeding. The informal process is no less official
than the formal, but does not require the complainant to bear
responsibility for pursuing the fact-finding process. Under the
informal process, the complainant's responsibilities generally
end with the filing of a valid complaint, and the Commission uses
its investigative tools to ascertain facts relating to the
complaint.
146. The informal process provides us greater flexibility
to tailor our procedural requirements to the particular matters
at hand, since the absence of a statutory mandate for formal
adjudication leaves us broad discretion to determine appropriate
procedures. It thus has the considerable advantage of being less
burdensome, both for parties and for the Commission. Yet
complainants may sometimes prefer a formal process.
147. For those Section 255 complaints that are not resolved
under fast-track procedures, we propose to resolve most under
informal, investigative procedures, which we consider to be more
efficient and flexible than formal procedures. To accommodate
special circumstances, however, we also propose to establish
formal adjudicatory procedures, to be employed only where the
complainant requests such resolution and the Commission, in its
discretion, permits the complainant to invoke the formal
procedures. This procedural framework is similar in some
respects to the framework applicable to common carrier complaints
generally, except that under our proposal here, the Commission
will apply formal procedures only when both the complainant and
the Commission agree that this is appropriate. However, we
believe the differences between typical common carrier complaints
and Section 255 complaints require specifically tailored
procedural rules for Section 255 complaints. Finally, we also
propose to allow use of alternative dispute resolution
procedures, in cases in which the Commission and all parties
agree that such procedures are appropriate. We seek comment on
this general procedural framework, and on the specific issues
discussed below.
148. We propose not to impose a standing requirement for
complaints under Section 255, whether by virtue of being a person
with a disability, being a customer of the entity that is the
subject of the complaint, or otherwise. Section 255 itself does
not impose such a requirement, and we believe the purposes of the
statute are best served by not restricting complaints about
accessibility problems. Moreover, we want to avoid burdening the
complaint process with disputes relating to standing. We seek
comment on this proposal.
149. We propose not to establish any time limit for the
filing of a complaint under Section 255. We note, however, that
Section 415(b) of the Communications Act limits the filing of
certain claims against common carriers for money damages to
within two years from the time the cause of action accrues, and
not after . . . . We seek comment on our proposal, on the
relationship of Section 415 to our complaint authority in Section
255, and on the need for regulatory parity in this respect as
between equipment manufacturers and service providers.
150. Given the likely complexity of many Section 255
complaints, we propose generally to allow 30 days for a
respondent to answer a complaint, rather than the ten days
provided for in our general pleading rules. We would, however,
retain the discretion to specify a shorter or longer response
date based upon the nature of the complaint and the totality of
the circumstances. We propose to compute the deadline for the
answer from the date of our written notice initiating the dispute
resolution phase. We also propose to require that a respondent
serve a copy of the answer on the complainant and on any other
entity it implicates in its answer. We seek comment on these
proposals.
151. Our general pleading rules provide that the person who
filed the original pleading may reply to answers within five days
after the time for filing answers has expired, and prohibit
additional pleadings unless specifically requested or authorized
by the Commission. Some service-specific rules make different
provisions. We propose a 15-calendar-day reply period, subject
to Commission adjustment in specific cases, and seek comment on
what other provisions are appropriate for Section 255
proceedings.
152. We wish to ensure that our dispute resolution
processes for Section 255 are as accessible as possible, so we
propose not to require any particular format for submissions from
complainants or respondents. However, because we believe that
telephonic and other non-permanent oral presentations would not
provide an appropriate record for decision-making, we propose to
require that submissions be in a permanent format. We seek
comment on these proposals, and on any other related issues.
153. Commission consideration of Section 255 complaints
both during the fast-track phase and during dispute resolution
may often involve evaluation of information which may be
considered proprietary business data, including a company's
resources available to achieve accessibility. We are sensitive
to the need to protect the confidentiality of such information,
and do not want to discourage its submission where relevant to
our decision-making. Our rules already provide confidentiality
for proprietary information in certain cases. We seek comment on
whether, in the particular context of Section 255, our existing
rules and procedures for review of confidentiality requests
strike the best balance between reasonable expectations of
confidentiality and open decision-making.
2. Formal Dispute Resolution Process
154. While we anticipate that most complaints not resolved
under fast-track procedures will be adjudicated pursuant to the
informal procedures discussed above, we propose to reserve the
right to apply a more formal, adjudicatory mechanism in which
complainants accept the primary burden of pursuing relevant
facts, with attendant rights (such as the right of discovery) and
obligations. We are not proposing specific language for Section
255 adjudicatory process rules, but we propose to model them on
the common carrier formal complaint procedures set out in
Sections 1.720 through 1.736 of the Commission's Rules, modified
somewhat to take into account the inherent differences between
traditional common carrier complaint issues and accessibility
issues under Section 255. Specifically, we seek comment on the
following variations.
What showing (if any) should be required to support a
request for formal resolution?
How should our decision whether to grant a request for
formal resolution take into account the possibility of multiple
complaints involving the same equipment or service?
The existing common carrier regulations provide that a
complainant can request formal resolution either as an initial
matter, or when the complainant is not satisfied by the carrier's
response and the Commission's disposition of the complaint
informally. In the latter case, the formal complaint is deemed
to relate back to the filing date of the original complaint. For
complaints under Section 255, we have proposed that complainants
need submit their complaints only once, with no requirement for
re-filing at the end of an informal process as a condition for
moving to formal dispute resolution. We seek comment on whether
we should establish a deadline for a complainant desiring formal
or alternative dispute resolution to make its request perhaps
in the initial complaint filing, or at some point in early stages
of the dispute resolution phase or whether we should permit
such a request at any time. In any event, upon receipt of such a
request, the Commission would determine what procedures will be
followed (i.e., informal, formal, or alternative procedures)
based in part on the stated preferences of the parties, with the
agreement of the parties, as necessary.
Under recent amendments to the rules governing
complaints against common carriers, complaints and responsive
pleadings subject to formal dispute resolution processes are now
required to contain full statements of relevant, material facts
with supporting documentation. We tentatively conclude that this
requirement should apply to complaints and any other pleadings
filed pursuant to Section 255, regardless of the format chosen by
complainant. We seek comment on how such a requirement should be
incorporated into the mechanism for initiating a formal dispute
resolution process under Section 255.
The existing common carrier regulations generally limit
complaints to individual respondents, and include no specific
provision for joinder of defendants. For Section 255 complaints,
we propose to recognize the possible involvement of service
providers and equipment manufacturers by provisions requiring
that motions for joinder specify either that the counterpart
covered entity is in part responsible for allegedly deficient
accessibility, or that an effective solution to the alleged
deficiency requires review of both service and equipment
providers' involvement in the telecommunications capability at
issue.
The existing common carrier regulations provide for
joinder of complainants and causes of action when the actions
that are the subject of the complaint involve the same defendant,
and substantially the same facts and alleged violation of the
Communications Act. In the case of Section 255 complaints, we
propose no restriction on the submission of joint complaints, or
of complaints involving different accessibility aspects of the
same products. Further, complainants would be free to request
joinder by the Commission, after investigative review, with the
initial complaints. However, we propose to reserve the right to
separate complaints where we believe it would expedite dispute
resolution or otherwise better serve the public interest.
155. We do not propose to require a filing fee for informal
resolution of complaints, or for formal resolution of complaints
directed at equipment manufacturers and service providers that
are not common carriers. Under the Communications Act, however,
we are required to impose a filing fee for formal complaints
directed against common carriers, unless we can show that waiving
the fee would be in the public interest. We seek comment on the
circumstances under which we should waive or lower this fee, and
on the following questions:
Is there any basis for requiring a filing fee for
Section 255 complaints against manufacturers or service providers
who are not common carriers, requesting formal dispute
resolution? If so, should we require a filing fee?
How should we deal with fees where an initial complaint
does not require a filing fee, but subsequent developments (e.g.,
a subsequent request for formal resolution, or the subsequent
addition of a common carrier respondent) trigger a fee?
How should we deal with filing fees in cases where we
subsequently deny the request for formal dispute resolution?
156. We disagree with commenters who assert that Section
255 complaints must be resolved within the five-month deadline
established in Section 208(b). In the Complaint Streamlining
Order, the Commission concluded that the deadline specified in
Section 208(b) applies only to complaints relating to the
lawfulness of those matters required to be in tariffs. Moreover,
because we conclude that Section 255 establishes Commission
authority to promulgate complaint procedures, separate from our
authority under Section 208, we also conclude that any time
limits for resolving complaints under Section 208 do not apply.
3. Alternative Dispute Resolution Process
157. Finally, we propose to make available alternative
dispute resolution (ADR) procedures such as arbitration,
conciliation, facilitation, mediation, settlement negotiation,
and other consensual methods of dispute resolution for resolving
Section 255 complaints not resolved under the fast-track process.
The Administrative Dispute Resolution Act (ADRA) encourages use
of ADR processes when the parties involved consent to their use
and where, as here, such practice is consistent with statutory
mandates. At the same time, Congress emphasized that ADR
procedures are not necessarily appropriate in every case,
including specifically:
Precedent setting cases,
Cases bearing on significant new policy questions,
Cases where maintaining established policies is of
special importance,
Cases significantly affecting persons or organizations
who are not parties to the proceeding,
Cases where a formal record is essential, and
Cases where the agency must maintain continuing
jurisdiction with authority to alter its disposition in light of
changed circumstances.
158. Following enactment of the ADRA, the Commission
adopted a rule providing for ADR processes, adopted an ADR
Initial Policy Statement that supports and encourages the use of
ADR procedures, and took other steps to foster the use of ADR
mechanisms in both rulemaking and adjudicatory situations. Since
then we have employed ADR in both contexts, and continue to
evaluate how to encourage its wider use. We tentatively conclude
that ADR could be an effective tool for dealing with conflicts
arising under Section 255, while avoiding the expense and the
delay of adversarial proceedings. First, accessibility
complaints could involve complex questions of technology,
economics, and medicine, which outside experts might be able to
analyze more efficiently than the Commission. Further, ADR could
foster settlement by providing disputants with greater incentives
to move from adversarial positions to cooperation. We therefore
propose to use ADR as the third tool in our Section 255 dispute
resolution structure, subject to the agreement of all parties,
and subject to our discretion to grant or deny requests for ADR.
159. We seek comment on these views generally, and on the
following specific questions:
Should we establish a deadline for parties desiring
alternative dispute resolution to make their request, or should
we permit such a request at any time?
More generally, are there circumstances where we should
permit parties to move from one mechanism to another? If so,
what limits should we impose to ensure the efficient resolution
of complaints?
Should we prescribe a particular method or methods for
selecting neutral parties who will have the responsibility of
overseeing the ADR process, or should we leave that to be worked
out by the disputants?
The Commission has adopted broad rules requiring
Commission activities to be accessible to people with
disabilities pursuant to Section 504 of the Rehabilitation Act of
1973. Are any special measures needed to ensure that ADR
processes are similarly accessible to consumers with
disabilities? What provisions might be made to ensure the
availability of interpreters, alternative-format materials, and
other similar resources, as necessary?
What role should the Commission take during a Section
255 ADR process? How should the Commission enforce a decision
reached through ADR?
Section 1.18 of the Commission's Rules and the ADR
Initial Policy Statement provide generally for ADR. Are they
sufficient for purposes of Section 255 ADR, or are additional
requirements needed? In particular, should we make special
provisions to ensure that ADR processes are accessible to all
parties?
160. Apart from their role in an ADR process, there may be
other ways in which neutral parties with special expertise in
accessibility matters could help us resolve complaints. Outside
experts and committees can perform a valuable consultative
function, helping businesses and consumers to develop
accessibility solutions as telecommunications products and
services are being developed. For example, in the preamble to
its Final Rules, the Access Board recognizes the Association of
Accessibility Engineering Specialists (AAES), formed by the
National Association of Radio and Telecommunications Engineers to
train and eventually certify accessibility specialists or
engineers. The AAES is expected to sponsor conferences and
workshops, disseminate information, and suggest course curricula
for future training and certification. We seek comment on the
role that groups such as the AAES could serve to help speed
resolution of complaints.
161. Other groups with accessibility expertise may well
develop out of the process by which Section 255 is being
implemented and as accessibility efforts become more widespread.
Similarly, the TAAC Report suggests that [t]he FCC may at its
discretion refer inquiries and complaints to a joint
industry/disability advisory panel for opinion. Thus, we might
rely on outside experts to gather and evaluate data needed to
resolve accessibility questions. We believe such a role could be
useful, and seek comment on this view and on what provisions we
might make for it. Would such quasi-ADR processes be permissible
under the ADRA absent consent of the disputants?
4. Defenses to Complaints
162. In response to an accessibility complaint or an
investigation conducted on the Commission's initiative without a
prior complaint, it seems likely that the most common defenses
mounted by a manufacturer or service provider would involve a
claim that:
the product in question lies beyond the scope of
Section 255,
the product in question is in fact accessible, or
accessibility is not readily achievable.
The first two defenses are relatively straightforward, although
we recognize that weighing such claims may present difficult
factual or legal questions. However, as our discussion of the
term readily achievable suggests, claims of the third kind are
likely to present formidable difficulties to all concerned. We
believe it would be useful to set out for comment some tentative
views on use of a readily achievable defense.
163. To begin with, Section 255 imposes on manufacturers
and service providers the duty to ensure . . . that [their
offerings are] accessible . . . , if readily achievable. We
believe that one consequence of this clear charge is that to the
extent an offering subject to Section 255 is not accessible, it
is incumbent upon an offeror making a readily achievable
defense to establish facts to support the claim.
164. Of course, it should be kept in mind that readily
achievable is not an easy concept to discern. This leads us to
tentatively conclude that in addition to the factors used to
determine whether an accessibility action is readily achievable,
it is also appropriate to give some weight to evidence that a
respondent made good faith efforts to comply with Section 255 by
taking actions that would tend to increase the accessibility of
its product offerings, both generally and with respect to the
particular product that is the subject of the complaint.
165. Examples of the sorts of measures we would credit are
set out in the Access Board guidelines and in the Appendix to the
Access Board Order, and we need not duplicate them at length
here. Briefly, however, they can be broadly categorized as:
A self-assessment of whether accessibility is readily
achievable with respect to the product or product line at issue.
External outreach efforts to ascertain accessibility
needs and possible solutions, such as
- including individuals with disabilities in target
populations of market research
- including individuals with disabilities in product
design, testing, pilot demonstrations, and product trials
- working cooperatively with appropriate
disability-related organizations
Internal management processes to ensure early and
continuing consideration of accessibility concerns as product
offerings evolve, such as
- assignment of responsibility for ensuring
consideration of access issues during product development
- employee training on access by persons with
disabilities
- self-analysis of the degree of existing product
accessibility
- use of checklists or other objective criteria for
identifying options for product accessibility
- documentation of accessibility consideration
User information and support, such as
- descriptions of product accessibility and
compatibility features (in accessible modes and formats, as
needed)
- end-user product documentation (in accessible
modes and formats, as needed)
- providing usable customer support and technical
support, and providing information on how to obtain such support
- including in general product information contact
methods for obtaining access information
- disability-oriented training for customer support
personnel
166. We would caution that neither we nor the Access Board
views the Board's guidelines as a laundry list of requirements
all firms subject to Section 255 must adopt. Rather, each firm
should thoughtfully consider the guidelines in light of its
situation and the degree to which its products have or lack
accessibility features, and then adopt those which will help it
provide the accessibility Section 255 requires.
167. We seek comment on these and other accessibility
measures that might be suitable for equipment manufacturers.
Further, while the Access Board's focus was limited to equipment
manufacturers, the measures it describes generally have obvious
analogs applicable to service providers. We would therefore
specifically seek comment on measures suitable for service
providers. In addition, we seek comment on whether firms subject
to Section 255 should be required to provide information on how
consumers can contact them regarding accessibility issues, and
whether such notice should also include information regarding how
to contact the Commission in case of accessibility problems, and
if so, what information should be required and how it should be
provided.
168. Finally, comments submitted in response to the Notice
of Inquiry reflect a wide range of opinions on whether the
obligations of Section 255 attach to individual products, or can
be considered with respect to groups of similar products.
Despite the apparent divergence of these views, we believe they
can be reconciled by distinguishing two aspects of the product
planning and development process, along lines suggested by the
Access Board.
169. First, we believe that Section 255 requires
manufacturers and service providers to consider providing
accessibility features in each product they develop and offer.
As the Board aptly notes, the assessment as to whether it is or
is not readily achievable [to provide accessibility in every
product] cannot be bypassed simply because another product is
already accessible. We therefore would expect the starting
point of a readily achievable defense to be a showing of how
accessibility features were considered during product
development.
170. Nevertheless, the ideal of full accessibility is
generally limited by feasibility, expense, or practicality
(individually or in combination), especially in the case of CPE
offerings, where direct physical interaction between user and
equipment is often extensive. In the marketplace, providers must
decide what features to include and what features to omit. We
believe it is reasonable for an informed product-development
decision to take into account the accessibility features of other
functionally similar products the provider offers, provided it
can be demonstrated that such a product line analysis increases
the overall accessibility of the provider's offerings. This
provides an additional incentive for product developers to
consider the widest possible range of accessibility options and
to target their resources to maximize overall accessibility,
without creating a loophole for evading Section 255 obligations.
171. We seek comment on the issues raised here, and on
other matters regarding the showings that would facilitate the
resolution of accessibility disputes. Our aim is to provide
useful guidance both for manufacturers and service providers
assessing their duties under Section 255, and for all parties
interested in evaluating their performance.
D. Penalties for Non-Compliance
172. Section 255, on its face, makes no special provision
for penalties for manufacturers or service providers found to
violate its requirements. Given the importance of the
accessibility mandate, we believe that we should employ the full
range of penalties available to us under the Communications Act
in enforcing Section 255. We believe the Act provides for the
following sanctions, which we would propose to apply as
appropriate, given the nature and circumstances of a violation:
Section 503(b) of the Act provides a system of
forfeitures for willful or repeated failure to comply with any
of the provisions of [the] Act or of any rule, regulation, or
order issued by the Commission under [the] Act . . . .
At the end of an adjudication we would usually issue an
order setting out our findings and directing prospective
corrective measures. It is conceivable these orders might be the
result of settlements with respondents, in the nature of consent
decrees, if circumstances warrant. In any event, violation of a
Section 255 order could result in the imposition of a Section
503(b) forfeiture.
Section 312 of the Act provides for the revocation of a
station license or construction permit, for the willful or
repeated violation of or failure to observe any provision of the
Communications Act.
Section 312 of the Act also provides for the issuance
of a cease and desist order to a station licensee or construction
permit holder, for the willful or repeated violation of or
failure to observe any provision of the Communications Act. We
believe Sections 4(i) and 208 of the Act provide a basis for such
an order with respect to non-licensees.
Sections 207 and 208 provide for the award of damages
for violations by common carriers, and arguably others. We seek
comment on the relationship between Sections 207 and 208 and
Section 255, and between the implementing rules under each. We
ask commenters to specifically address what circumstances would
warrant imposition of damages where Section 255 is found to have
been violated, and how such damages could be calculated.
We also seek comment on whether there is a basis for
ordering the retrofit of accessibility features into products
that were developed without such features, in cases in which we
determine that including them was readily achievable.
We seek comment about these and other possible remedies to
enforce Section 255.
E. Additional Implementation Measures
173. We note that other existing Commission processes (and
associated forms) may provide efficient vehicles for requirements
that we may develop in this proceeding, such as information
collection, or for providing notice to firms dealing with the
Commission that they may be subject to Section 255. For example:
The Commission's equipment authorization processes
under Part 2, Subpart J of the Commission's Rules.
Equipment import documentation requirements under Part
2, Subpart K of the Rules.
Licensing proceedings under Section 307 of the Act for
various radio services used by entities subject to Section 255
obligations.
Various common carrier filing processes.
We seek comment on whether, and if so how, these or other similar
existing processes might provide additional options for fostering
product accessibility. Further, given that Sections 207 and 208
of the Act provide an alternate vehicle for submitting complaints
that Section 255 has been violated, we seek comment on whether we
should modify the existing common carrier complaint rules with
respect to Section 255 complaints so as to incorporate the kinds
of processes we have proposed for complaints filed under Section
255.
174. Finally, based upon the work of the Telecommunications
Accessibility Advisory Committee, the Access Board, commenters
filing responses to our Notice of Inquiry, parties who have made
informal presentations to us since passage of the 1996 Act, and
various Commission staff offices, we believe there are other
measures the Commission itself might take, or might encourage
others to take, to foster increased accessibility of
telecommunications products. These include:
Establishment of a clearinghouse for current
information regarding telecommunications disabilities issues,
including product accessibility information, accessibility
solutions, and so forth.
Publication of information regarding the performance of
manufacturers and service providers in providing accessible
products, perhaps based on statistics generated through the
fast-track and dispute resolution processes.
Expansion of the information provided on the Internet
at the Commission's Disabilities Issues Task Force Web site
(http://www.fcc.gov/dtf). We seek suggestions on what additional
information might be useful to consumers and industry.
Efforts by consumer and industry groups to establish
on-going informational and educational programs, product and
service certification, standards-setting, and other measures
aimed at bridging the gap between disabilities needs and
telecommunications solutions. With regard to product and service
certification, we seek comment regarding whether the Commission
should encourage or sanction use of a seal or other imprimatur to
signify that particular equipment or services comply with Section
255 requirements.
Development of peer review processes to complement the
implementation measures proposed above.
We particularly invite comment regarding the practical aspects of
implementing these or other similar measures.
VI. INTERIM TREATMENT OF COMPLAINTS
175. As noted earlier, Section 255 became effective upon
enactment on February 8, 1996. Until we adopt procedural rules
in this proceeding, complaints alleging violations of Section 255
may be filed pursuant to Section 1.41 of the Commission's Rules
and our other general procedural rules. Complaints against
common carriers may also be filed pursuant to the common carrier
complaint rules set out in Part 1, Subpart E of the Commission's
Rules.
176. We agree with parties who see no need to adopt interim
rules, because we have existing complaint processes in place
which enable us to address complaints on a case-by-case basis.
While we recognize it would be preferable to provide immediate,
definitive guidance on specifically what is required under
Section 255, we are exploring a number of pivotal issues in this
Notice which will require resolution before we can offer such
guidance. As a result, we decline to establish interim rules
which, ultimately, may confuse parties concerning their
obligations. Furthermore, because we anticipate that we will
adopt procedural rules implementing Section 255 in a timely
fashion, we do not think it is necessary to establish specific
interim procedures.
177. Although we recognize that the proposals set forth in
this Notice have no binding effect until formally adopted, they
may serve as guidance to parties concerning factors we would be
likely to consider in a complaint proceeding. We urge potential
complainants and respondents to take particular note of our
tentative interpretations of key terminology and our emphasis on
accessibility analysis throughout the design process. In
addition, the Access Board guidelines and the related appendix
materials may be instructive to affected entities in determining
their obligations under Section 255 during this interim period.
VII. PROCEDURAL MATTERS
A. Regulatory Flexibility Analysis
178. The Initial Regulatory Flexibility Analysis, as
required by Section 603 of the Regulatory Flexibility Act, is set
forth in Appendix E. The Commission has prepared the Initial
Regulatory Flexibility Analysis of the expected impact on small
entities of the proposals suggested in this Notice. Written
public comments are requested on the Initial Regulatory
Flexibility Analysis. In order to fulfill the mandate of the
Contract with America Advancement Act of 1996 regarding the Final
Regulatory Flexibility Analysis, we ask a number of questions in
our Initial Regulatory Flexibility Analysis regarding the
prevalence of small businesses in the affected industries.
179. Comments on the Initial Regulatory Flexibility
Analysis must be filed in accordance with the same filing
deadlines as comments on this Notice, but they must have a
separate and distinct heading designating them as responses to
the Initial Regulatory Flexibility Analysis. The Secretary shall
send a copy of this Notice, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the
Small Business Administration in accordance with Section 603(a)
of the Regulatory Flexibility Act.
B. Paperwork Reduction Analysis
180. This Notice contains proposed information collection
requirements applicable to the public. As part of our continuing
effort to reduce paperwork burdens, we invite the general public
and the Office of Management and Budget (OMB) to take this
opportunity to comment on the information collections contained
in this Notice, as required by the Paperwork Reduction Act of
1995.
181. Comments submitted on information collections
contained in this Notice should address:
Whether the collection of information is necessary for
the proper performance of the functions of the Commission,
including whether the information shall have practical utility.
The accuracy of the Commission's burden estimates.
Ways to enhance the quality, utility, and clarity of
the information collected.
Ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
C. Ex Parte Presentations
182. This Notice is a permit-but-disclose notice and
comment rulemaking proceeding. Ex parte presentations are
permitted, provided they are disclosed as provided in Commission
rules.
D. Pleading Dates
183. Pursuant to applicable procedures set forth in
Sections 1.415 and 1.419 of the Commission's Rules, interested
parties may file comments to this Notice on or before June 30,
1998, and reply comments on or before August 14, 1998. Comments
and reply comments should be sent to the Office of the Secretary,
Federal Communications Commission, Washington, D.C. 20554. All
relevant and timely comments will be considered by the Commission
before final action is taken in this proceeding. To file
formally in this proceeding, participants must file an original
and five copies of all comments, reply comments, and supporting
comments. If participants want each Commissioner to receive a
personal copy of their comments, an original and nine copies must
be filed.
184. Written comments by the public on the proposed
information collections are due on or before June 30, 1998.
Written comments by the OMB on the proposed information
collections must be submitted on or before 60 days after the date
of publication of this Notice in the Federal Register. In
addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should
be submitted to Judy Boley, Federal Communications Commission,
Room 234, 1919 M Street, N.W., Washington, D.C. 20554, or via the
Internet to [log in to unmask], and to Timothy Fain, OMB Desk
Officer, 10236 NEOB, 725 - 17th Street, N.W., Washington, D.C.
20503, or via the Internet at [log in to unmask] For additional
information regarding the information collections contained
herein, contact Judy Boley.
185. For purposes of this proceeding, we hereby waive those
provisions of our rules that require formal comments to be filed
on paper, and encourage parties to file comments electronically.
Electronically filed comments that conform to the guidelines of
this section will be considered part of the record in this
proceeding and accorded the same treatment as comments filed on
paper pursuant to our rules. To file electronic comments in this
proceeding, you may use the electronic filing interface available
on the Commission's World Wide Web site at
<http://dettifoss.fcc.gov:8080/cgi-bin/ws.exe/beta/ecfs/upload.ht
s>. Further information on the process of submitting comments
electronically is available at that location and at
<http://www.fcc.gov/e-file/>.
186. Comments and reply comments will be available for
public inspection during regular business hours in the Reference
Center (Room 239) of the Federal Communications Commission, 1919
M Street, N.W., Washington, D.C. 20554. Copies of comments and
reply comments are available through the Commission's duplicating
contractor: International Transcription Service, Inc. (ITS,
Inc.), 1231 20th Street, N.W., Washington, D.C. 20036, (202)
857-3800, TTY (202) 293-8810.
187. Alternative formats (computer diskette, large print,
audio cassette and Braille) are available to persons with
disabilities by contacting Martha Contee at (202) 418-0260, TTY
(202) 418-2555, or at [log in to unmask], or Ruth Dancey at (202)
418-0305, TTY (202) 418-2970, or at [log in to unmask] The Notice
can also be downloaded at http://www.fcc.gov/dtf/section255.html.
E. Further Information
188. For further information concerning this rulemaking
proceeding, contact the following staff of the Wireless
Telecommunications Bureau, Federal Communications Commission,
Washington, D.C. 20554: John Spencer, Melinda Littell, or Susan
Kimmel, Policy Division, at (202) 418-1310, or TTY at (202)
418-7233. Further information also can be obtained by sending an
electronic mail message to [log in to unmask]
VIII. ORDERING CLAUSES
189. Accordingly, IT IS ORDERED, pursuant to Sections 1,
4(i), 8(d), 8(g), 201, 202, 207, 208, 251(a)(2), 255, 303(r),
307, 312, 403 and 503(b) of the Communications Act, 47 U.S.C.
151, 154(i), 158(d), 158(g), 201, 202, 207, 208, 251(a)(2),
255, 303(r), 307, 312, 403, 503(b), that NOTICE IS HEREBY GIVEN
of the proposed regulatory changes described in this Notice of
Proposed Rulemaking, and that COMMENT IS SOUGHT on these
proposals.
190. IT IS FURTHER ORDERED that the Commission's Office of
Public Affairs, Reference Operations Division, SHALL SEND a copy
of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
APPENDIX A
TEXT OF SECTION 251(a) AND SECTION 255
OF THE COMMUNICATIONS ACT
Section 251. Interconnection.
(a) General Duty of Telecommunications Carriers. Each
telecommunications
carrier has the duty
* * * * *
(2) not to install network features, functions, or
capabilities that do not comply with the guidelines and standards
established pursuant to section 255 or 256.
Section 255. Access by Persons with Disabilities.
(a) Definitions. As used in this section
(1) Disability. The term disability has the meaning
given to it by section 3(2)(A) of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12102(2)(A)).
(2) Readily achievable. The term readily achievable
has the meaning given to it by section 301(9) of that Act (42
U.S.C. 12181(9)).
(b) Manufacturing. 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 individuals with disabilities, if readily
achievable.
(c) Telecommunications Services. A provider of
telecommunications service shall ensure that the service is
accessible to and usable by individuals with disabilities, if
readily achievable.
(d) Compatibility. Whenever the requirements of subsections
(b) and (c) are not readily achievable, such a manufacturer or
provider shall ensure that the equipment or service is compatible
with existing peripheral devices or specialized customer premises
equipment commonly used by individuals with disabilities to
achieve access, if readily achievable.
(e) Guidelines. Within 18 months after the date of
enactment of the Telecommunications Act of 1996, the
Architectural and Transportation Barriers Compliance Board shall
develop guidelines for accessibility of telecommunications
equipment and customer premises equipment in conjunction with the
Commission. The Board shall review and update the guidelines
periodically.
(f) No Additional Private Rights Authorized. Nothing in
this section shall be
construed to authorize any private right of action to enforce any
requirement of this section or any regulation thereunder. The
Commission shall have exclusive jurisdiction with respect to any
complaint under this section. APPENDIX B
PERTINENT COMMISSION RULES
47 C.F.R., PART 1 PRACTICE AND PROCEDURE
Selected Provisions of Subpart E Complaints, Applications,
Tariffs, and Reports Involving Common Carriers
Sec. 1.711 Formal or informal complaints.
Sec. 1.716 Form.
Sec. 1.717 Procedure.
Sec. 1.718 Unsatisfied informal complaints; formal complaints
relating back to the filing dates of informal complaints.
Sec. 1.720 General pleading requirements.
Sec. 1.721 Format and content.
Sec. 1.722 Damages.
Sec. 1.723 Joinder of complainants and causes of action.
Sec. 1.724 Answers.
Sec. 1.725 Cross-complaints and counterclaims.
Sec. 1.726 Replies.
Sec. 1.727 Motions.
Sec. 1.728 Formal complaints not stating a cause of action;
defective pleadings.
Sec. 1.729 Discovery.
Sec. 1.730 Other forms of discovery.
Sec. 1.731 Confidentiality of information produced or
exchanged by the parties.
Sec. 1.732 Other required written submissions.
Sec. 1.733 Status conference.
Sec. 1.734 Specifications as to pleadings, briefs, and other
documents; subscription.
Sec. 1.735 Copies; service; separate filings against multiple
defendants.
Sec. 1.736 Complaints filed pursuant to 47 U.S.C.
271(d)(6)(B).
Sec. 1.711 Formal or informal complaints.
Complaints filed against carriers under section 208 of the
Communications Act may be either formal or informal.
Sec. 1.716 Form.
An informal complaint shall be in writing and should
contain: (a) The name, address and telephone number of the
complaint, (b) the name of the carrier against which the
complaint is made, (c) a complete statement of the facts tending
to show that such carrier did or omitted to do anything in
contravention of the Communications Act, and (d) the specific
relief of satisfaction sought.
Sec. 1.717 Procedure.
The Commission will forward informal complaints to the
appropriate carrier for investigation. The carrier will, within
such time as may be prescribed, advise the Commission in writing,
with a copy to the complainant, of its satisfaction of the
complaint or of its refusal or inability to do so. Where there
are clear indications from the carrier's report or from other
communications with the parties that the complaint has been
satisfied, the Commission may, in its discretion, consider a
complaint proceeding to be closed, without response to the
complainant. In all other cases, the Commission will contact the
complainant regarding its review and disposition of the matters
raised. If the complainant is not satisfied by the carrier's
response and the Commission's disposition, it may file a formal
complaint in accordance with 1.721 of this part.
Sec. 1.718 Unsatisfied informal complaints; formal complaints
relating back to the filing dates of informal complaints.
When an informal complaint has not been satisfied pursuant
to 1.717, the complainant may file a formal complaint with
this Commission in the form specified in 1.721. Such filing
will be deemed to relate back to the filing date of the informal
complaint: Provided, That the formal complaint: (a) Is filed
within 6 months from the date of the carrier's report, (b) makes
reference to the date of the informal complaint, and (c) is based
on the same cause of action as the informal complaint. If no
formal complaint is filed within the 6-month period, the
complainant will be deemed to have abandoned the unsatisfied
informal complaint.
Sec. 1.720 General pleading requirements.
Formal complaint proceedings are generally resolved on a
written record consisting of a complaint, answer, and joint
statement of stipulated facts, disputed facts and key legal
issues, along with all associated affidavits, exhibits and other
attachments. Commission proceedings may also require or permit
other written submissions such as briefs, written
interrogatories, and other supplementary documents or pleadings.
All written submissions, both substantively and procedurally,
must conform to the following standards:
(a) Pleadings must be clear, concise, and explicit. All
matters concerning a claim, defense or requested remedy,
including damages, should be pleaded fully and with specificity.
(b) Pleadings must contain facts which, if true, are
sufficient to constitute a violation of the Act or Commission
order or regulation, or a defense to such alleged violation.
(c) Facts must be supported by relevant documentation or
affidavit.
(d) Legal arguments must be supported by appropriate
judicial, Commission, or statutory authority.
(e) Opposing authorities must be distinguished.
(f) Copies must be provided of all non-Commission
authorities relied upon which are not routinely available in
national reporting systems, such as unpublished decisions or slip
opinions of courts or administrative agencies.
(g) Parties are responsible for the continuing accuracy and
completeness of all information and supporting authority
furnished in a pending complaint proceeding. Information
submitted, as well as relevant legal authorities, must be current
and updated as necessary and in a timely manner at any time
before a decision is rendered on the merits of the complaint.
(h) Specific reference shall be made to any tariff
provision relied on in support of a claim or defense. Copies of
relevant tariffs or relevant portions of tariffs that are
referred to or relied upon in a complaint, answer, or other
pleading shall be appended to such complaint, answer, or other
pleading.
(i) All statements purporting to summarize or explain
Commission orders or policies must cite, in standard legal form,
the Commission ruling upon which such statements are based.
(j) Pleadings shall identify the name, address, telephone
number, and facsimile transmission number for either the filing
party's attorney or, where a party is not represented by an
attorney, the filing party.
Sec. 1.721 Format and content.
(a) A formal complaint shall contain:
(1) The name of each complainant and defendant;
(2) The occupation, address and telephone number of
each complainant and, to the extent known, each defendant;
(3) The name, address, and telephone number of
complainant's attorney, if represented by counsel;
(4) Citation to the section of the Communications Act
and/or order and/or regulation of the Commission alleged to have
been violated.
(5) A complete statement of facts which, if proven
true, would constitute such a violation. All material facts must
be supported, pursuant to the requirements of 1.720(c) of the
rules and subparagraph (11) of this section, by relevant
affidavits and documentation, including copies of relevant
written agreements, offers, counter-offers, denials, or other
related correspondence. The statement of facts shall include a
detailed explanation of the manner and time period in which a
defendant has allegedly violated the Act, Commission order, or
Commission rule in question, including a full identification or
description of the communications, transmissions, services, or
other carrier conduct complained of and the nature of any injury
allegedly sustained by the complainant. Assertions based on
information and belief are expressly prohibited unless made in
good faith and accompanied by an affidavit explaining the basis
for the plaintiff's belief and why the complainant could not
reasonably ascertain the facts from the defendant or any other
source;
(6) Proposed findings of fact, conclusions of law, and
legal analysis relevant to the claims and arguments set forth in
the complaint;
(7) The relief sought, including recovery of damages
and the amount of damages claimed, if known;
(8) Certification that the complainant has, in good
faith, discussed or attempted to discuss, the possibility of
settlement with each defendant prior to the filing of the formal
complaint. Such certification shall include a statement that,
prior to the filing of the complaint, the complainant mailed a
certified letter outlining the allegations that form the basis of
the complaint it anticipated filing with the Commission to the
defendant carrier that invited a response within a reasonable
period of time and a brief summary of all additional steps taken
to resolve the dispute prior to the filing of the formal
complaint. If no additional steps were taken, such certificate
shall state the reason(s) why the complainant believed such steps
would be fruitless;
(9) Whether a separate action has been filed with the
Commission, any court, or other government agency that is based
on the same claim or same set of facts, in whole or in part, or
whether the complaint seeks prospective relief identical to the
relief proposed or at issue in a notice-and-comment proceeding
that is concurrently before the Commission;
(10) An information designation containing:
(i) The name, address, and position of each
individual believed to have firsthand knowledge of the facts
alleged with particularity in the complaint, along with a
description of the facts within any such individual's knowledge;
(ii) A description of all documents, data
compilations and tangible things in the complainant's possession,
custody, or control, that are relevant to the facts alleged with
particularity in the complaint. Such description shall include
for each document: (A) the date it was prepared, mailed,
transmitted, or otherwise disseminated; (B) the author, preparer,
or other source; (C) the recipient(s) or intended recipient(s);
(D) its physical location; and (E) a description of its relevance
to the matters contained in the complaint; and
(iii) A complete description of the manner in
which the complainant identified all persons with information and
designated all documents, data compilations and tangible things
as being relevant to the dispute, including, but not limited to,
identifying the individual(s) that conducted the information
search and the criteria used to identify such persons, documents,
data compilations, tangible things, and information;
(11) Copies of all affidavits, documents, data
compilations and tangible things in the complainant's possession,
custody, or control, upon which the complainant relies or intends
to rely to support the facts alleged and legal arguments made in
the complaint;
(12) A completed Formal Complaint Intake Form;
(13) Verification of the filing payment required under
47 C.F.R. 1.1105(1)(c) or (d); and
(14) A certificate of service.
(b) The following format may be used in cases to which it
is applicable, with such
modifications as the circumstances may render necessary:
Before the Federal Communications Commission
Washington, DC 20554
In the matter of
_________________________________________________________________
______
Complainant,
v.
_________________________________________________________________
______
Defendant.
File No. (To be inserted by the Common Carrier Bureau)
Complaint
To: The Commission.
The complainant (here insert full name of each complainant
and, if a corporation, the corporate title of such complainant)
shows that:
1. (Here state occupation, post office address, and
telephone number of each complainant).
2. (Here insert the name, occupation and, to the extent
known, address and telephone number of defendants).
3. (Here insert fully and clearly the specific act or thing
complained of, together with such facts as are necessary to give
a full understanding of the matter, including relevant legal and
documentary support).
Wherefore, complainant asks (here state specifically the
relief desired).
_________________________________________________________________
______
(Date)
_________________________________________________________________
______
(Name of each complainant)
_________________________________________________________________
______
(Name, address, and telephone number of attorney, if any)
(c) Where the complaint is filed pursuant to 47 U.S.C.
271(d)(6)(B), the complainant shall clearly indicate whether or
not it is willing to waive the ninety-day resolution deadline
contained within 47 U.S.C. 271(d)(6)(B), in accordance with
the requirements of 1.736 of the rules.
(d) The complainant may petition the staff, pursuant to
1.3 of the rules, for a waiver of any of the requirements of this
section. Such waiver may be granted for good cause shown.
Sec. 1.722 Damages.
(a) In a case where recovery of damages is sought, the
complaint shall contain a clear and unequivocal request for
damages and appropriate allegations in support of such claim in
accordance with the requirements of subpart (c) of this section.
(b) Damages will not be awarded upon a complaint unless
specifically requested. Damages may be awarded, however, upon a
supplemental complaint that complies fully with the requirement
of subpart (c) of this section, based upon a finding of liability
by the Commission in the original proceeding. Provided that:
(1) If recovery of damages is first sought by
supplemental complaint, such supplemental complaint must be filed
within, and recovery is limited to, the statutory limitations
contained in 415 of the Communications Act;
(2) If recovery of damages is clearly and
unequivocally requested in the original complaint, by
identification of the claim giving rise to the damages and a
general statement of the nature of the injury suffered, such
claim for damages shall relate back to the filing date of the
original formal complaint if:
(i) The complainant clearly states in the
original complaint that it chooses to have liability and
prospective relief issues resolved prior to the consideration of
damages issues; and
(ii) The complainant files its supplemental
complaint for damages within sixty days after public notice (as
defined in 1.4(b) of the Commission's rules) of a decision on
the merits of the original complaint.
(3) Where a complainant voluntarily elects to seek the
recovery of damages upon a supplemental complaint in accordance
with the requirements of subpart (b)(2) of this section, the
Commission will resolve the liability complaint within any
applicable complaint resolution deadlines contained in the Act
and defer adjudication of the damages complaint until after the
liability complaint has been resolved.
(c) In all cases in which recovery of damages is sought, it
shall be the responsibility of the complainant to include, within
either the complaint or the supplemental complaint for damages
filed in accordance with subpart (b) of this section, either:
(1) A computation of each and every category of
damages for which recovery is sought, along with an
identification of all relevant documents and materials or such
other evidence to be used by the complainant to determine the
amount of such damages; or
(2) An explanation of:
(i) The information not in the possession of the
complaining party that is necessary to develop a detailed
computation of damages;
(ii) Why such information is unavailable to the
complaining party;
(iii) The factual basis the complainant has for
believing that such evidence of damages exists; and
(iv) A detailed outline of the methodology that
would be used to create a computation of damages with such
evidence.
(d) Where a complainant voluntarily elects to seek the
recovery of damages upon a supplemental complaint in accordance
with the requirements of subpart (b)(2) of this section, the
following procedures may apply in the event that the Commission
determines that the defendant is liable based upon its review of
the original complaint:
(1) Issues concerning the amount, if any, of damages
may be either designated by the Bureau for hearing before, or, if
the parties agree, submitted for mediation to, a Commission
Administrative Law Judge. Such Administrative Law Judge shall be
chosen in the following manner:
(i) By agreement of the parties and the Chief
Administrative Law Judge; or
(ii) In the absence of such agreement, the Chief
Administrative Law Judge shall designate the Administrative Law
Judge.
(2) The Commission may, in its discretion, order the
defendant either to
post a bond for, or deposit into an interest bearing escrow
account, a sum equal to the amount of damages which the
Commission finds, upon preliminary investigation, is likely to be
ordered after the issue of damages is fully litigated, or some
lesser sum which may be appropriate, provided the Commission
finds that the grant of this relief is favored on balance upon
consideration of the following factors:
(i) The complainant's potential irreparable
injury in the absence of such deposit;
(ii) The extent to which damages can be
accurately calculated;
(iii) The balance of the hardships between the
complainant and the defendant; and
(iv) Whether public interest considerations favor
the posting of the bond or ordering of the deposit.
(3) The Commission may, in its discretion, suspend
ongoing damages proceedings for fourteen days, to provide the
parties with a time within which to pursue settlement
negotiations and/or alternative dispute resolution procedures.
(4) The Commission may, in its discretion, end
adjudication of damages with a determination of the sufficiency
of a damages computation method or formula. No such method or
formula shall contain a provision to offset any claim of the
defendant against the complainant. The parties shall negotiate
in good faith to reach an agreement on the exact amount of
damages pursuant to the Commission-mandated method or formula.
Within thirty days of the release date of the damages order,
parties shall submit jointly to the Commission either:
(i) A statement detailing the parties' agreement
as to the amount of damages;
(ii) A statement that the parties are continuing
to negotiate in good faith and a request that the parties be
given an extension of time to continue negotiations; or
(iii) A statement detailing the bases for the
continuing dispute and the reasons why no agreement can be
reached.
Sec. 1.723 Joinder of complainants and causes of action.
(a) Two or more complainants may join in one complaint if
their respective causes of action are against the same defendant
and concern substantially the same facts and alleged violation of
the Communications Act.
(b) Two or more grounds of complaint involving the same
principle, subject, or statement of facts may be included in one
complaint, but should be separately stated and numbered.
Sec. 1.724 Answers.
(a) Any carrier upon which a copy of a formal complaint is
served shall answer such complaint in the manner prescribed under
this section within twenty days of service of the formal
complaint by the complainant, unless otherwise directed by the
Commission.
(b) The answer shall advise the complainant and the
Commission fully and completely of the nature of any defense, and
shall respond specifically to all material allegations of the
complaint. Every effort shall be made to narrow the issues in
the answer. The defendant shall state concisely its defenses to
each claim asserted and shall admit or deny the averments on
which the complainant relies and state in detail the basis for
admitting or denying such averment. General denials are
prohibited. If the defendant is without knowledge or information
sufficient to form a belief as to the truth of an averment, the
defendant shall so state and this has the effect of a denial.
When a defendant intends in good faith to deny only part of an
averment, the defendant shall specify so much of it as is true
and shall deny only the remainder. The defendant may deny the
allegations of the complaint as specific denials of either
designated averments or paragraphs.
(c) The answer shall contain proposed findings of fact,
conclusions of law, and legal analysis relevant to the claims and
arguments set forth in the answer.
(d) Averments in a pleading to which a responsive pleading
is required, other than those as to the amount of damages, are
deemed to be admitted when not denied in this responsive
pleading.
(e) Affirmative defenses to allegations contained in the
complaint shall be specifically captioned as such and presented
separately from any denials made in accordance with paragraph (c)
of this section.
(f) The answer shall include an information designation
containing:
(1) The name, address, and position of each individual
believed to have firsthand knowledge of the facts alleged with
particularity in the answer, along with a description of the
facts within any such individual's knowledge;
(2) A description of all documents, data compilations
and tangible things in the defendant's possession, custody, or
control, that are relevant to the facts alleged with
particularity in the answer. Such description shall include for
each document: (i) the date it was prepared, mailed,
transmitted, or otherwise disseminated; (ii) the author,
preparer, or other source; (iii) the recipient(s) or intended
recipient(s); (iv) its physical location; and (v) a description
of its relevance to the matters in dispute.
(3) A complete description of the manner in which the
defendant identified all persons with information and designated
all documents, data compilations and tangible things as being
relevant to the dispute, including, but not limited to,
identifying the individual(s) that conducted the information
search and the criteria used to identify such persons, documents,
data compilations, tangible things, and information;
(g) The answer shall attach copies of all affidavits,
documents, data compilations and tangible things in the
defendant's possession, custody, or control, upon which the
defendant relies or intends to rely to support the facts alleged
and legal arguments made in the answer.
(h) The answer shall contain certification that the
defendant has, in good faith, discussed or attempted to discuss,
the possibility of settlement with the complainant prior to the
filing of the formal complaint. Such certification shall include
a brief summary of all steps taken to resolve the dispute prior
to the filing of the formal complaint. If no such steps were
taken, such certificate shall state the reason(s) why the
defendant believed such steps would be fruitless;
(i) Where the complaint is filed pursuant to 47 U.S.C.
271(d)(6)(B), the defendant shall clearly indicate its
willingness to waive the 90-day resolution deadline contained
within 47 U.S.C. 271(d)(6)(B), in accordance with the
requirements of 1.736 of the rules.
(j) The defendant may petition the staff, pursuant to
1.3 of the rules, for a waiver of any of the requirements of this
section. Such waiver may be granted for good cause shown.
Sec. 1.725 Cross-complaints and counterclaims.
Cross-complaints seeking any relief within the jurisdiction
of the Commission against any carrier that is a party
(complainant or defendant) to that proceeding are expressly
prohibited. Any claim that might otherwise meet the requirements
of a cross-complaint may be filed as a separate complaint in
accordance with 1.720-1.736 of the rules. For purposes of
this subpart, the term cross-complaint shall include
counterclaims.
Sec. 1.726 Replies.
(a) Within three days after service of an answer containing
affirmative defenses presented in accordance with the
requirements of 1.724(e) of the rules, a complainant may file
and serve a reply containing statements of relevant, material
facts that shall be responsive to only those specific factual
allegations made by the defendant in support of its affirmative
defenses. Replies which contain other allegations or arguments
will not be accepted or considered by the Commission.
(b) Failure to reply to an affirmative defense shall be
deemed an admission of such affirmative defense and of any facts
supporting such affirmative defense that are not specifically
contradicted in the complaint.
(c) The reply shall contain proposed findings of fact,
conclusions of law, and legal analysis relevant to the claims and
arguments set forth in the reply.
(d) The reply shall include an information designation
containing:
(1) The name, address and position of each individual
believed to have firsthand knowledge about the facts alleged with
particularity in the reply, along with a description of the facts
within any such individual's knowledge.
(2) A description of all documents, data compilations
and tangible things in the complainant's possession, custody, or
control that are relevant to the facts alleged with particularity
in the reply. Such description shall include for each document
(i) the date prepared, mailed, transmitted, or otherwise
disseminated; (ii) the author, preparer, or other source; (iii)
the recipient(s) or intended recipient(s); (iv) its physical
location; and (v) a description of its relevance to the matters
in dispute.
(3) A complete description of the manner in which the
complainant identified all persons with information and
designated all documents, data compilations and tangible things
as being relevant to the dispute, including, but not limited to,
identifying the individual(s) that conducted the information
search and the criteria used to identify such persons, documents,
data compilations, tangible things, and information;
(e) The reply shall attach copies of all affidavits,
documents, data compilations and tangible things in the
complainant's possession, custody, or control upon which the
complainant relies or intends to rely to support the facts
alleged and legal arguments made in the reply.
(f) The complainant may petition the staff, pursuant to
1.3 of the rules, for a waiver of any of the requirements of this
section. Such waiver may be granted for good cause shown.
Sec. 1.727 Motions.
(a) A request to the Commission for an order shall be by
written motion, stating with particularly the grounds and
authority therefor, and setting forth the relief or order sought.
(b) All dispositive motions shall contain proposed findings
of fact and conclusions of law, with supporting legal analysis,
relevant to the contents of the pleading. Motions to compel
discovery must contain a certification by the moving party that a
good faith attempt to resolve the dispute was made prior to
filing the motion. All facts relied upon in motions must be
supported by documentation or affidavits pursuant to the
requirements of 1.720(c) of the rules, except for those facts
of which official notice may be taken.
(c) The moving party shall provide a proposed order for
adoption, which appropriately incorporates the basis therefor,
including proposed findings of fact and conclusions of law
relevant to the pleading. The proposed order shall be clearly
marked as a Proposed Order. The proposed order shall be
submitted both as a hard copy and on computer disk in accordance
with the requirements of 1.734(d) of the rules. Where
appropriate, the proposed order format should conform to that of
a reported FCC order.
(d) Oppositions to any motion shall be accompanied by a
proposed order for adoption, which appropriately incorporates the
basis therefor, including proposed findings of fact and
conclusions of law relevant to the pleading. The proposed order
shall be clearly captioned as a Proposed Order. The proposed
order shall be submitted both as a hard copy and on computer disk
in accordance with the requirements of 1.734(d) of the rules.
Where appropriate, the proposed order format should conform to
that of a reported FCC order.
(e) Oppositions to motions may be filed and served within
five business days after the motion is filed and served and not
after. Oppositions shall be limited to the specific issues and
allegations contained in such motion; when a motion is
incorporated in an answer to a complaint, the opposition to such
motion shall not address any issues presented in the answer that
are not also specifically raised in the motion. Failure to
oppose any motion may constitute grounds for granting of the
motion.
(f) No reply may be filed to an opposition to a motion.
(g) Motions seeking an order that the allegations in the
complaint be made more definite and certain are prohibited.
(h) Amendments or supplements to complaints to add new
claims or requests for relief are prohibited. Parties are
responsible, however, for the continuing accuracy and
completeness of all information and supporting authority
furnished in a pending complaint proceeding as required under
1.720(g) of the rules.
Sec. 1.728 Formal complaints not stating a cause of action;
defective pleadings.
(a) Any document purporting to be a formal complaint which
does not state a cause of action under the Communications Act
will be dismissed. In such case, any amendment or supplement to
such document will be considered a new filing which must be made
within the statutory periods of limitations of actions contained
in section 415 of the Communications Act.
(b) Any other pleading filed in a formal complaint
proceeding not in conformity with the requirements of the
applicable rules in this part may be deemed defective. In such
case the Commission may strike the pleading or request that
specified defects be corrected and that proper pleadings be filed
with the Commission and served on all parties within a prescribed
time as a condition to being made a part of the record in the
proceeding.
Sec. 1.729 Discovery.
(a) A complainant may file with the Commission and serve on
a defendant, concurrently with its complaint, a request for up to
ten written interrogatories. A defendant may file with the
Commission and serve on a complainant, during the period starting
with the service of the complaint and ending with the service of
its answer, a request for up to ten written interrogatories. A
complainant may file with the Commission and serve on a
defendant, within three calendar days of service of the
defendant's answer, a request for up to five written
interrogatories. Subparts of any interrogatory will be counted
as separate interrogatories for purposes of compliance with this
limit. Requests for interrogatories filed and served pursuant to
this procedure may be used to seek discovery of any
non-privileged matter that is relevant to the material facts in
dispute in the pending proceeding, provided, however, that
requests for interrogatories filed and served by a complainant
after service of the defendant's answer shall be limited in scope
to specific factual allegations made by the defendant in support
of its affirmative defenses. This procedure may not be employed
for the purpose of delay, harassment or obtaining information
that is beyond the scope of permissible inquiry related to the
material facts in dispute in the pending proceeding.
(b) Requests for interrogatories filed and served pursuant
to subpart (a) of this rule shall contain a listing of the
interrogatories requested and an explanation of why the
information sought in each interrogatory is both necessary to the
resolution of the dispute and not available from any other
source.
(c) A responding party shall file with the Commission and
serve on the propounding party any opposition and objections to
the requests for interrogatories as follows: (1) by the
defendant, within ten calendar days of service of the requests
for interrogatories served simultaneously with the complaint and
within five calendar days of the requests for interrogatories
served following service of the answer; (2) by the complainant,
within five calendar days of service of the requests for
interrogatories; and (3) in no event less than three calendar
days prior to the initial status conference as provided for in
1.733(a) of the rules.
(d) Commission staff will consider the requests for
interrogatories, properly filed and served pursuant to subpart
(a) of this section, along with any objections or oppositions
thereto, properly filed and served pursuant to subpart (b) of
this section, at the initial status conference, as provided for
in 1.733(a)(5) of the rules, and at that time determine the
interrogatories, if any, to which parties shall respond, and set
the schedule of such response.
(e) The interrogatories ordered to be answered pursuant to
subpart (d) of this section are to be answered separately and
fully in writing under oath or affirmation by the party served,
or if such party is a public or private corporation or
partnership or association, by any officer or agent who shall
furnish such information as is available to the party. The
answers shall be signed by the person making them. The answers
shall be filed with the Commission and served on the propounding
party.
(f) A propounding party asserting that a responding party
has provided an inadequate or insufficient response to
Commission-ordered discovery request may file a motion to compel
within ten days of the service of such response, or as otherwise
directed by Commission staff, pursuant to the requirements of
1.727 of the rules.
(g) The Commission may, in its discretion, require parties
to provide documents to the Commission in a scanned or other
electronic format that provides (1) indexing by useful
identifying information about the documents; and (2) technology
that allows staff to annotate the index so as to make the format
an efficient means of reviewing the documents.
(h) The Commission may allow additional discovery,
including, but not limited to, document production, depositions
and/or additional interrogatories. In its discretion, the
Commission may modify the scope, means and scheduling of
discovery in light of the needs of a particular case and the
requirements of applicable statutory deadlines.
Sec. 1.731 Confidentiality of information produced or exchanged
by the parties.
(a) Any materials generated in the course of a formal
complaint proceeding may be designated as proprietary by that
party if the party believes in good faith that the materials fall
within an exemption to disclosure contained in the Freedom of
Information Act (FOIA),
5 U.S.C. 552(b)(1) through (9). Any party asserting
confidentiality for such materials shall so indicate by clearly
marking each page, or portion thereof, for which a proprietary
designation is claimed. If a proprietary designation is
challenged, the party claiming confidentiality shall have the
burden of demonstrating, by a preponderance of the evidence, that
the material designated as proprietary falls under the standards
for nondisclosure enunciated in the FOIA.
(b) Materials marked as proprietary may be disclosed solely
to the following persons, only for use in prosecuting or
defending a party to the complaint action, and only to the extent
necessary to assist in the prosecution or defense of the case:
(1) Counsel of record representing the parties in the
complaint action and any support personnel employed by such
attorneys;
(2) Officers or employees of the opposing party who
are named by the opposing party as being directly involved in the
prosecution or defense of the case;
(3) Consultants or expert witnesses retained by the
parties;
(4) The Commission and its staff; and
(5) Court reporters and stenographers in accordance
with the terms and conditions of this section.
(c) These individuals shall not disclose information
designated as proprietary to any person who is not authorized
under this section to receive such information, and shall not use
the information in any activity or function other than the
prosecution or defense in the case before the Commission. Each
individual who is provided access to the information shall sign a
notarized statement affirmatively stating that the individual has
personally reviewed the Commission's rules and understands the
limitations they impose on the signing party.
(d) No copies of materials marked proprietary may be made
except copies to be used by persons designated in paragraph (b)
of this section. Each party shall maintain a log recording the
number of copies made of all proprietary material and the persons
to whom the copies have been provided.
(e) Upon termination of a formal complaint proceeding,
including all appeals and petitions, all originals and
reproductions of any proprietary materials, along with the log
recording persons who received copies of such materials, shall be
provided to the producing party. In addition, upon final
termination of the complaint proceeding, any notes or other work
product derived in whole or in part from the proprietary
materials of an opposing or third party shall be destroyed.
Sec. 1.732 Other required written submissions.
(a) The Commission may, in its discretion, or upon a
party's motion showing good cause, require the parties to file
briefs summarizing the facts and issues presented in the
pleadings and other record evidence.
(b) Unless otherwise directed by the Commission, all briefs
shall include all legal and factual claims and defenses
previously set forth in the complaint, answer, or any other
pleading submitted in the proceeding. Claims and defenses
previously made but not reflected in the briefs will be deemed
abandoned. The Commission may, in its discretion, limit the
scope of any briefs to certain subjects or issues. A party shall
attach to its brief copies of all documents, data compilations,
tangible things, and affidavits upon which such party relies or
intends to rely to support the facts alleged and legal arguments
made in its brief and such brief shall contain a full explanation
of how each attachment is relevant to the issues and matters in
dispute. All such attachments to a brief shall be documents,
data compilations or tangible things, or affidavits made by
persons, that were identified by any party in its information
designations filed pursuant to Sections 1.721 (a)(10)(i),
(10)(ii), 1.724 (f)(1), (f)(2), and 1.726 (d)(1), (d)(2). Any
other supporting documentation or affidavits that is attached to
a brief must be accompanied by a full explanation of the
relevance of such materials and why such materials were not
identified in the information designations. These briefs shall
contain the proposed findings of fact and conclusions of law
which the filing party is urging the Commission to adopt, with
specific citation to the record, and supporting relevant
authority and analysis.
(c) In cases in which discovery is not conducted, absent an
order by the Commission that briefs be filed, parties may not
submit briefs. If the Commission does authorize the filing of
briefs in cases in which discovery is not conducted, briefs shall
be filed concurrently by both the complainant and defendant at
such time as designated by the Commission staff and in accordance
with the provisions of this section.
(d) In cases in which discovery is conducted, briefs shall
be filed concurrently by both the complainant and defendant at
such time designated by the Commission staff.
(e) Briefs containing information which is claimed by an
opposing or third party to be proprietary under 1.731 shall be
submitted to the Commission in confidence pursuant to the
requirements of 0.459 of this chapter and clearly marked Not
for Public Inspection. An edited version removing all
proprietary data shall also be filed with the Commission for
inclusion in the public file. Edited versions shall be filed
within five days from the date the unedited brief is submitted,
and served on opposing parties.
(f) Initial briefs shall be no longer than twenty-five
pages. Reply briefs shall be no longer than ten pages. Either
on its own motion or upon proper motion by a party, the
Commission staff may establish other page limits for briefs.
(g) The Commission may require the parties to submit any
additional information it deems appropriate for a full, fair, and
expeditious resolution of the proceeding, including affidavits
and exhibits.
(h) The parties shall submit a joint statement of
stipulated facts, disputed facts, and key legal issues no later
than two business days prior to the initial status conference,
scheduled in accordance with the provisions of section 1.733(a)
of these rules.
Section 1.733 Status conference.
(a) In any complaint proceeding, the Commission may, in its
discretion, direct the attorneys and/or the parties to appear
before it for a status conference. Unless otherwise ordered by
the Commission, an initial status conference shall take place, at
the time and place designated by the Commission staff, ten
business days after the date the answer is due to be filed. A
status conference may include discussion of:
(1) Simplification or narrowing of the issues;
(2) The necessity for or desirability of additional
pleadings or evidentiary submissions;
(3) Obtaining admissions of fact or stipulations
between the parties as to any or all of the matters in
controversy;
(4) Settlement of all or some of the matters in
controversy by agreement of the parties;
(5) Whether discovery is necessary and, if so, the
scope, type and schedule for such discovery;
(6) The schedule for the remainder of the case and the
dates for any further status conferences; and
(7) Such other matters that may aid in the disposition
of the complaint.
(b) Parties shall meet and confer prior to the initial
status conference to discuss (1) settlement prospects; (2)
discovery; (3) issues in dispute; (4) schedules for pleadings;
(5) joint statement of stipulated facts, disputed facts, and key
legal issues; and (6) in a 47 U.S.C. 271(d)(6)(B) proceeding,
whether or not the parties agree to waive the 47 U.S.C.
271(d)(6)(B) 90-day resolution deadline. Parties shall submit a
joint statement of all proposals agreed to and disputes remaining
as a result of such meeting to Commission staff at least two
business days prior to the scheduled initial status conference.
(c) In addition to the initial status conference referenced
in paragraph (a) of this section, any party may also request that
a conference be held at any time after the complaint has been
filed.
(d) During a status conference, the Commission staff may
issue oral rulings pertaining to a variety of interlocutory
matters relevant to the conduct of a formal complaint proceeding
including, inter alia, procedural matters, discovery, and the
submission of briefs or other evidentiary materials.
(e) Parties may make, upon written notice to the Commission
and all attending parties at least three business days prior to
the status conference, an audio recording of the Commission
staff's summary of its oral rulings. Alternatively, upon
agreement among all attending parties and written notice to the
Commission at least three business days prior to the status
conference, the parties may make an audio recording of, or use a
stenographer to transcribe, the oral presentations and exchanges
between and among the participating parties, insofar as such
communications are on-the-record as determined by the
Commission staff, as well as the Commission staff's summary of
its oral rulings. A complete transcript of any audio recording
or stenographic transcription shall be filed with the Commission
as part of the record, pursuant to the provisions of subpart
(f)(2) of this section. The parties shall make all necessary
arrangements for the use of a stenographer and the cost of
transcription, absent agreement to the contrary, will be shared
equally by all parties that agree to make the record of the
status conference.
(f) The parties in attendance, unless otherwise directed,
shall either:
(1) Submit a joint proposed order memorializing the
oral rulings made during the conference to the Commission by 5:30
pm, Eastern Time, on the business day following the date of the
status conference, or as otherwise directed by Commission staff.
In the event the parties in attendance cannot reach agreement as
to the rulings that were made, the joint proposed order shall
include the rulings on which the parties agree, and each party's
alternative proposed rulings for those rulings on which they
cannot agree. Commission staff will review and make revisions,
if necessary, prior to signing and filing the submission as part
of the record. The proposed order shall be submitted both as
hard copy and on computer disk in accordance with the
requirements of 1.734(d) of the rules; or
(2) Pursuant to the requirements of subpart (e) of
this section, submit to the Commission by 5:30 pm., Eastern Time,
on the third business day following the status conference or as
otherwise directed by Commission staff either:
(i) A transcript of the audio recording of the
Commission staff's summary of its oral rulings;
(ii) A transcript of the audio recording of the
oral presentations and exchanges between and among the
participating parties, insofar as such communications are
on-the-record as determined by the Commission staff, and the
Commission staff's summary of its oral rulings; or
(iii) A stenographic transcript of the oral
presentations and exchanges between and among the participating
parties, insofar as such communications are on-the-record as
determined by the Commission staff, and the Commission staff's
summary of its oral rulings.
(g) Status conferences will be scheduled by the Commission
staff at such time and place as it may designate to be conducted
in person or by telephone conference call.
(h) The failure of any attorney or party, following
reasonable notice, to appear at a scheduled conference will be
deemed a waiver by that party and will not preclude the
Commission staff from conferring with those parties and/or
counsel present.
Sec. 1.734 Specifications as to pleadings, briefs, and other
documents; subscription.
(a) All papers filed in any formal complaint proceeding
must be drawn in conformity with the requirements of 1.49
and 1.50.
(b) All averments of claims or defenses in complaints and
answers shall be made in numbered paragraphs. The contents of
each paragraph shall be limited as far as practicable to a
statement of a single set of circumstances. Each claim founded on
a separate transaction or occurrence and each affirmative defense
shall be separately stated to facilitate the clear presentation
of the matters set forth.
(c) The original of all pleadings and other submissions
filed by any party shall be signed by that party, or by the
party's attorney. The signing party shall state his or her
address and telephone number and the date on which the document
was signed. Copies should be conformed to the original. Except
when otherwise specifically provided by rule or statute,
pleadings need not be verified. The signature of an attorney or
party shall be a certificate that the attorney or party has read
the pleading, motion, or other paper; that to the best of his or
her knowledge, information, and belief formed after reasonable
inquiry, it is well grounded in fact and is warranted by existing
law or a good faith argument for the extension, modification, or
reversal of existing law; and that it is not interposed for any
improper purpose.
Sec. 1.735 Copies; service; separate filings against multiple
defendants.
(a) Complaints may generally be brought against only one
named carrier; such actions may not be brought against multiple
defendants unless the defendant carriers are commonly owned or
controlled, are alleged to have acted in concert, are alleged to
be jointly liable to complainant, or the complaint concerns
common questions of law or fact. Complaints may, however, be
consolidated by the Commission for disposition.
(b) The complainant shall file an original copy of the
complaint, accompanied by the correct fee, in accordance with
Part I, subpart G (see 47 CFR 1.1105(1)(c)-(d)) and, on the same
day:
(1) File three copies of the complaint with the Office
of the Commission Secretary;
(2) If the complaint is filed against a carrier
concerning matters within the responsibility of the Common
Carrier Bureau (see 47 C.F.R 0.291), serve two copies on the
Chief, Formal Complaints and Investigations Branch, Enforcement
Division, Common Carrier Bureau;
(3) If the complaint is filed against a wireless
telecommunications carrier concerning matters within the
responsibility of the Wireless Telecommunications Bureau (see 47
C.F.R.
0.331), serve two copies on the Chief, Compliance and
Litigation Branch, Enforcement and Consumer Information Division,
Wireless Telecommunications Bureau;
(4) If the complaint is filed against a carrier
concerning matters within the responsibility of the International
Bureau (see 47 C.F.R. 0.261), serve a copy on the Chief,
Telecommunications Division, International Bureau, and serve two
copies on the Chief, Formal Complaints and Investigations Branch,
Enforcement Division, Common Carrier Bureau; and
(5) If a complaint is addressed against multiple
defendants, pay a separate fee, in accordance with Part I,
subpart G (see 47 CFR 1.1105(1)(c)-(d)), and file three copies of
the complaint with the Office of the Commission Secretary for
each additional defendant.
(c) Generally, a separate file is set up for each
defendant. An original plus two copies shall be filed of all
pleadings and documents, other than the complaint, for each file
number assigned.
(d) The complainant shall serve the complaint by hand
delivery on either the named defendant or one of the named
defendant's registered agents for service of process on the same
date that the complaint is filed with the Commission in
accordance with the requirements of subpart (b) of this section.
(e) Upon receipt of the complaint by the Commission, the
Commission shall promptly send, by facsimile transmission to
each defendant named in the complaint, notice of the filing of
the complaint. The Commission shall send, by regular U.S. mail
delivery, to each defendant named in the complaint, a copy of the
complaint. The Commission shall additionally send, by regular
U.S. mail to all parties, a schedule detailing the date the
answer will be due and the date, time and location of the initial
status conference.
(f) All subsequent pleadings and briefs filed in any formal
complaint proceeding, as well as all letters, documents or other
written submissions, shall be served by the filing party on the
attorney of record for each party to the proceeding, or, where a
party is not represented by an attorney, each party to the
proceeding either by hand delivery, overnight delivery, or by
facsimile transmission followed by regular U.S. mail delivery,
together with a proof of such service in accordance with the
requirements of 1.47(g) of the rules. Service is deemed
effective as follows:
(1) Service by hand delivery that is delivered to the
office of the recipient by 5:30 pm, local time of the recipient,
on a business day will be deemed served that day. Service by
hand delivery that is delivered to the office of the recipient
after 5:30 pm, local time of the recipient, on a business day
will be deemed served on the following business day;
(2) Service by overnight delivery will be deemed
served the business day following the day it is accepted for
overnight delivery by a reputable overnight delivery service such
as, or comparable to, the US Postal Service Express Mail, United
Parcel Service or Federal Express; or
(3) Service by facsimile transmission that is fully
transmitted to the office of the recipient by 5:30 pm, local time
of the recipient, on a business day will be deemed served that
day. Service by facsimile transmission that is fully transmitted
to the office of the recipient after 5:30 pm, local time of the
recipient, on a business day will be deemed served on the
following business day.
Section 1.736 Complaints filed pursuant to 47 U.S.C.
271(d)(6)(B).
(a) Where a complaint is filed pursuant to 47 U.S.C.
271(d)(6)(B), parties shall indicate whether they are willing to
waive the ninety-day resolution deadline contained in 47 U.S.C.
271(d)(6)(B) in the following manner:
(1) The complainant shall so indicate in both the
complaint itself and in the Formal Complaint Intake Form, and the
defendant shall so indicate in its answer; or
(2) The parties shall indicate their agreement to
waive the ninety-day resolution deadline to the Commission staff
at the initial status conference, to be held in accordance with
1.733 of the rules.
(b) Requests for waiver of the ninety-day resolution
deadline for complaints filed pursuant to 47 U.S.C.
271(d)(6)(B) will not be entertained by the Commission staff
subsequent to the initial status conference, absent a showing by
the complainant and defendant that such waiver is in the public
interest.
APPENDIX C
ACCESS BOARD GUIDELINES
36 C.F.R., PART 1193 TELECOMMUNICATIONS ACT ACCESSIBILITY
GUIDELINES
Subpart A General
Sec.
1193.1 Purpose.
1193.2 Scoping.
1193.3 Definitions.
Subpart B General Requirements
1193.21 Accessibility, usability, and compatibility.
1193.23 Product design, development, and evaluation.
Subpart C Requirements for Accessibility and Usability
1193.31 Accessibility and usability.
1193.33 Information, documentation, and training.
1193.35 Redundancy and selectability. [Reserved]
1193.37 Information pass through.
1193.39 Prohibited reduction of accessibility,
usability, and compatibility.
1193.41 Input, control, and mechanical functions.
1193.43 Output, display, and control functions.
Subpart D Requirements for Compatibility With Peripheral
Devices and Specialized Customer Premises Equipment
1193.51 Compatibility.
Subpart A General
Sec. 1193.1 Purpose.
This part provides requirements for accessibility,
usability, and compatibility of telecommunications equipment and
customer premises equipment covered by the Telecommunications Act
of 1996 (47 U.S.C. 255).
Sec. 1193.2 Scoping.
This part provides requirements for accessibility,
usability, and compatibility of new products and existing
products which undergo substantial change or upgrade, or for
which new releases are distributed. This part does not apply to
minor or insubstantial changes to existing products that do not
affect functionality.
Sec. 1193.3 Definitions.
Terms used in this part shall have the specified meaning
unless otherwise stated. Words, terms and phrases used in the
singular include the plural, and use of the plural includes the
singular.
Accessible. Telecommunications equipment or customer
premises equipment which comply with the requirements of subpart
C of this part.
Alternate formats. Alternate formats may include, but are
not limited to, Braille, ASCII text, large print, and audio
cassette recording.
Alternate modes. Different means of providing information
to users of products including product documentation and
information about the status or operation of controls. Examples
of alternate modes may include, but are not limited to, voice,
fax, relay service, TTY, Internet posting, captioning,
text-to-speech synthesis, and video description.
Compatible. Telecommunications equipment or customer
premises equipment which comply with the requirements of subpart
D of this part.
Customer premises equipment. Equipment employed on the
premises of a person (other than a carrier) to originate, route,
or terminate telecommunications.
Manufacturer. A manufacturer of telecommunications
equipment or customer premises equipment that sells to the public
or to vendors that sell to the public; a final assembler.
Peripheral devices. Devices 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.
Product. Telecommunications equipment or customer premises
equipment.
Readily achievable. Easily accomplishable and able to be
carried out without much difficulty or expense.
Specialized customer premises equipment. Equipment,
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.
Telecommunications. 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.
Telecommunications equipment. Equipment, other than
customer premises equipment, used by a carrier to provide
telecommunications services, and includes software integral to
such equipment (including upgrades).
Telecommunications service. 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.
TTY. An abbreviation for teletypewriter. Machinery or
equipment that employs interactive text based communications
through the transmission of coded signals across the standard
telephone network. TTYs can include, for example, devices known
as TDDs (telecommunication display devices or telecommunication
devices for deaf persons) or computers with special modems. TTYs
are also called text telephones.
Usable. Means 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.
Subpart B General Requirements
Sec. 1193.21 Accessibility, usability, and compatibility.
Where readily achievable, telecommunications equipment and
customer premises equipment shall comply with the requirements of
subpart C of this part. Where it is not readily achievable to
comply with subpart C of this part, telecommunications equipment
and customer premises equipment shall comply with the
requirements of subpart D of this part,
if readily achievable.
Sec. 1193.23 Product design, development, and evaluation.
(a) Manufacturers shall evaluate the accessibility,
usability, and compatibility of telecommunications equipment and
customer premises equipment and shall incorporate such evaluation
throughout product design, development, and fabrication, as early
and consistently as possible. Manufacturers shall identify
barriers to accessibility and usability as part of such a product
design and development process.
(b) In developing such a process, manufacturers shall
consider the following factors, as the manufacturer deems
appropriate:
(1) Where market research is undertaken, including
individuals with disabilities in target populations of such
research;
(2) Where product design, testing, pilot
demonstrations, and product trials are conducted, including
individuals with disabilities in such activities;
(3) Working cooperatively with appropriate
disability-related organizations; and
(4) Making reasonable efforts to validate any unproven
access solutions through testing with individuals with
disabilities or with appropriate disability-related organizations
that have established expertise with individuals with
disabilities.
Subpart C Requirements for Accessibility and Usability
Sec. 1193.31 Accessibility and usability.
When required by Sec. 1193.21, telecommunications equipment
and customer premises equipment shall be accessible to and usable
by individuals with disabilities and shall comply with Secs.
1193.33 through 1193.43 as applicable.
Sec. 1193.33 Information, documentation, and training.
(a) Manufacturers shall ensure access to information and
documentation it provides to its customers. Such information and
documentation includes user guides, installation guides for
end-user installable devices, and product support communications,
regarding both the product in general and the accessibility
features of the product. Manufacturers shall take such other
steps as necessary including:
(1) Providing a description of the accessibility and
compatibility features of the product upon request, including, as
needed, in alternate formats or alternate modes at no additional
charge;
(2) Providing end-user product documentation in
alternate formats or alternate modes upon request at no
additional charge; and
(3) Ensuring usable customer support and technical
support in the call centers and service centers which support
their products at no additional charge.
(b) Manufacturers shall include in general product
information the contact method for obtaining the information
required by paragraph (a) of this section.
(c) Where manufacturers provide employee training, they
shall ensure it is appropriate to an employee's function. In
developing, or incorporating existing training programs,
consideration shall be given to the following factors:
(1) Accessibility requirements of individuals with
disabilities;
(2) Means of communicating with individuals with
disabilities;
(3) Commonly used adaptive technology used with the
manufacturer's products;
(4) Designing for accessibility; and
(5) Solutions for accessibility and compatibility.
Sec. 1193.35 Redundancy and selectability. [Reserved]
Sec. 1193.37 Information pass through.
Telecommunications equipment and customer premises equipment
shall pass through cross-manufacturer, non-proprietary,
industry-standard codes, translation protocols, formats or other
information necessary to provide telecommunications in an
accessible format. In particular, signal compression
technologies shall not remove information needed for access or
shall restore it upon decompression.
Sec. 1193.39 Prohibited reduction of accessibility, usability,
and compatibility.
(a) No change shall be undertaken which decreases or has
the effect of decreasing the net accessibility, usability, or
compatibility of telecommunications equipment or customer
premises equipment.
(b) Exception: Discontinuation of a product shall not be
prohibited.
Sec. 1193.41 Input, control, and mechanical functions.
Input, control, and mechanical functions shall be locatable,
identifiable, and operable in accordance with each of the
following, assessed independently:
(a) Operable without vision. Provide at least one mode
that does not require user vision.
(b) Operable with low vision and limited or no hearing.
Provide at least one mode that permits operation by users with
visual acuity between 20/70 and 20/200, without relying on audio
output.
(c) Operable with little or no color perception. Provide
at least one mode that does not require user color perception.
(d) Operable without hearing. Provide at least one mode
that does not require user auditory perception.
(e) Operable with limited manual dexterity. Provide at
least one mode that does not require user fine motor control or
simultaneous actions.
(f) Operable with limited reach and strength. Provide at
least one mode that is operable with user limited reach and
strength.
(g) Operable without time-dependent controls. Provide at
least one mode that does not require a response time.
Alternatively, a response time may be required if it can be
by-passed or adjusted by the user over a wide range.
(h) Operable without speech. Provide at least one mode
that does not require user speech.
(i) Operable with limited cognitive skills. Provide at
least one mode that minimizes the cognitive, memory, language,
and learning skills required of the user.
Sec. 1193.43 Output, display, and control functions.
All information necessary to operate and use the product,
including but not limited to, text, static or dynamic images,
icons, labels, sounds, or incidental operating cues, shall comply
with each of the following, assessed independently:
(a) Availability of visual information. Provide visual
information through at least one mode in auditory form.
(b) Availability of visual information for low vision
users. Provide visual information through at least one mode to
users with visual acuity between 20/70 and 20/200 without relying
on audio.
(c) Access to moving text. Provide moving text in at least
one static presentation mode at the option of the user.
(d) Availability of auditory information. Provide auditory
information through at least one mode in visual form and, where
appropriate, in tactile form.
(e) Availability of auditory information for people who are
hard of hearing. Provide audio or acoustic information,
including any auditory feedback tones that are important for the
use of the product, through at least one mode in enhanced
auditory fashion (i.e., increased amplification, increased
signal-to-noise ratio, or combination). For transmitted voice
signals, provide a gain adjustable up to a minimum of 20 dB. For
incremental volume control, provide at least one intermediate
step of 12 dB of gain.
(f) Prevention of visually-induced seizures. Visual
displays and indicators shall minimize visual flicker that might
induce seizures in people with photosensitive epilepsy.
(g) Availability of audio cutoff. Where a product delivers
audio output through an external speaker, provide an industry
standard connector for headphones or personal listening devices
(e.g., phone-like handset or earcup) which cuts off the
speaker(s) when used.
(h) Non-interference with hearing technologies. Reduce
interference to hearing technologies (including hearing aids,
cochlear implants, and assistive listening devices) to the lowest
possible level that allows a user to utilize the product.
(i) Hearing aid coupling. Where a product delivers output
by an audio transducer which is normally held up to the ear,
provide a means for effective wireless coupling to hearing aids.
Subpart D Requirements for Compatibility With Peripheral
Devices and Specialized Customer Premises Equipment
Sec. 1193.51 Compatibility.
When required by subpart B of this part, telecommunications
equipment and customer premises equipment shall be compatible
with peripheral devices and specialized customer premises
equipment commonly used by individuals with disabilities to
achieve accessibility, and shall comply with the following
provisions, as applicable:
(a) External electronic access to all information and
control mechanisms. Information needed for the operation of
products (including output, alerts, icons, on-line help, and
documentation) shall be available in a standard electronic text
format on a cross-industry standard port and all input to and
control of a product shall allow for real time operation by
electronic text input into a cross-industry standard external
port and in cross-industry standard format. The cross-industry
standard port shall not require manipulation of a
connector by the user.
(b) Connection point for external audio processing devices.
Products providing auditory output shall provide the auditory
signal at a standard signal level through an industry standard
connector.
(c) Compatibility of controls with prosthetics.
Touchscreen and touch-operated controls shall be operable without
requiring body contact or close body proximity.
(d) TTY connectability. Products which provide a function
allowing voice communication and which do not themselves provide
a TTY functionality shall provide a standard non-acoustic
connection point for TTYs. It shall also be possible for the
user to easily turn any microphone on and off to allow the user
to intermix speech with TTY use.
(e) TTY signal compatibility. Products, including those
providing voice communication functionality, shall support use of
all cross-manufacturer non-proprietary standard signals used by
TTYs.
APPENDIX D
LIST OF PLEADINGS
Due dates specified by the Notice of Inquiry for comments
and reply comments were October 28, 1996, and November 27, 1996,
respectively. Unless accompanied by a motion to accept a
late-filed pleading, filings made after those dates are listed in
this Appendix as informal comments. All comments and informal
comments followed by an asterisk were also submitted on diskette
or filed electronically and posted on the Commission's Internet
Web Site.
Comments
AFB (American Foundation for the Blind)*
Arkenstone*
ASHA (American Speech-Language-Hearing Association)*
AT&T (AT&T Corp.)*
Barkley (Michael J. Barkley)*
Bell Atlantic (Bell Atlantic Telephone Companies)*
BellSouth (BellSouth Corporation)*
CAN (Consumer Action Network)
CCD (Consortium for Citizens with Disabilities Task Force on
Communications
Access & Telecommunications)*
CEMA (Consumer Electronics Manufacturers Association)*
CTIA (Cellular Telecommunications Industry Association)*
Ericsson (Ericsson Inc. )*
Inclusive (Inclusive Technologies)*
ITI (Information Technology Industry Council)*
Lucent (Lucent Technologies Inc.)*
MATP (Massachusetts Assistive Technology Partnership)*
MCI (MCI Telecommunications Corporation)*
Microsoft (Microsoft Corporation)*
Motorola (Motorola, Inc.)*
Mulvany (Dana Mulvany)*
NAD (National Association of the Deaf)*
National Coalition (National Coalition for Blind and Visually
Impaired Persons
for Increased Video Access)
NCD (National Council on Disability)*
Nortel (Northern Telecom Inc.)*
NTN (Narrative Television Network)*
NYNEX (NYNEX Telephone Companies)*
Omnipoint (Omnipoint Corporation)*
Pacific (Pacific Telesis Group)*
PCIA (Personal Communications Industry Association)*
Prosser (Annie Kate Prosser)
P&A-ULS (Protection and Advocacy Program - University Legal
Services, Inc.)*
Railfone-Amtrak (Railfone-Amtrak Venture)*
SHHH (Self Help for Hard of Hearing People, Inc.)*
Siemens (Siemens Business Communication Systems, Inc.)*
Sprint (Sprint Corporation)*
SWBT (Southwestern Bell Telephone Company)*
TIA (Telecommunications Industry Association)*
Trace (Trace Research and Development Center)*
Tulsa (Tulsa Junior College)
UCPA (United Cerebral Palsy Associations)*
USTA (United States Telephone Association)*
U S WEST (U S WEST, Inc.)*
Waldron (Jo Waldron)*
Informal Comments
AAA (American Academy of Audiology)*
Langlois (Brian Langlois)
NVRC (Northern Virginia Resource Center for Deaf and Hard of
Hearing Persons)
Orton (Rebecca Orton)
Torczyner (Jerome Torczyner)
Utratec (Ultratec, Inc.)
Winters (Michael A. Winters)
Reply Comments
AAA (American Academy of Audiology)*
AAAD (American Athletic Association of the Deaf, Inc.)
ACB (American Council of the Blind)*
AFB (American Foundation for the Blind)*
ALDA (Association of Late-Deafened Adults)
ASDC (American Society for Deaf Children)
AT&T (AT&T Corp.)*
CEMA (Consumer Electronics Manufacturers Association)*
COR (Council of Organizational Representatives)*
CTIA (Cellular Telecommunications Industry Association)*
Gallaudet (Gallaudet University)*
GTE (GTE Service Corporation)
ITI (Information Technology Industry Council)*
Lucent (Lucent Technologies Inc.)*
MATP-TAP (Massachusetts Assistive Technology Partnership and
Tech Act Projects)*
MCI (MCI Telecommunications Corporation)*
MOD (Massachusetts Office on Disability)*
Motorola (Motorola, Inc.)*
NAD (National Association of the Deaf)*
Nelson (David J. Nelson)
Netscape (Netscape Communications Corporation)*
Pacific (Pacific Telesis Group)*
PCIA (Personal Communications Industry Association)*
SHHH (Self Help for Hard of Hearing People, Inc. and Gene A.
Bechtel)
Siemens (Siemens Business Communications Systems, Inc.)*
Sprint (Sprint Corporation)*
TIA (Telecommunications Industry Association)*
Trace (Trace Research and Development Center)*
UCPA (United Cerebral Palsy Associations)
WID (World Institute on Disability)*
WSAD (Washington State Association of the Deaf)
Informal Replies
AAA (American Academy of Audiology)
Alaska (Alaska Association of the Deaf)
NCD (National Council on Disability)*
RID (The Registry of Interpreters for the Deaf, Inc.)
Statewide (Statewide Independent Living Council of Tennessee)
Waldron (Jo Waldron)*
APPENDIX E
INITIAL REGULATORY FLEXIBILITY ANALYSIS
As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this Initial Regulatory Flexibility
Analysis (IRFA) of the expected significant economic impact on
small entities of the policies and rules proposed in this Notice
of Proposed Rulemaking (Notice). Written public comments are
requested on this IRFA. Comments must be identified as responses
to the IRFA and must be filed by the deadlines for comments on
the Notice provided in the Procedural Matters Section of the
Notice. The Commission will send a copy of the Notice, including
this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the Notice and IRFA
(or summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, Proposed Action
This rulemaking proceeding was initiated to propose means of
implementing and enforcing Section 255 of the Communications Act,
as added by the Telecommunications Act of 1996. This section is
intended to ensure that telecommunications equipment and services
will be accessible to persons with disabilities, if such
accessibility is readily achievable. If accessibility is not
readily achievable, then the telecommunications equipment and
services are to be made compatible with specialized customer
premises equipment or peripheral devices to the extent that so
doing is readily achievable.
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. Pub. L. 101-336, 104 Stat. 327 (1990)
(codified at 42 U.S.C. 12102(2)(A), 12181(9)) (ADA).
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.
We 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 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 noncompliance 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 products.
B. Legal Basis
The proposed action is authorized under Sections 1, 4(i),
10, 201, 202, 207, 208, 255, 303(b), 303(g), 303(j), 303(r) and
403 of the Communications Act, 47 U.S.C. 151, 154(i), 160,
201, 202, 207, 208, 255, 303(b), 303(g), 303(j), 303(r) and 403.
C. Description and Number of Small Entities Involved
The Notice will apply to manufacturers of telecommunications
equipment and customer premises equipment (CPE). In addition,
telecommunications service providers of many types will be
affected, including wireline common carriers and commercial
mobile radio service (CMRS) providers. To the extent that
software is integral to a telecommunication function, software
developers or manufacturers may also be affected.
Commenters are requested to provide information regarding
how many entities (overall) and how many small entities would be
affected by the proposed rules in the Notice. It should be noted
that the resources of the regulated entity are taken into account
in the determination of whether accessibility of a given product
or service is readily achievable. Thus, there is an inherent
consideration of the financial burden on the entity in its
obligation to provide accessibility: if not readily achievable,
the legal obligation is removed. However, all regulated entities
are required to assess whether providing accessibility is readily
achievable. Thus, an important issue for RFA purposes is not the
absolute cost of providing accessibility, but, rather, the extent
to which the cost of performing an assessment as to whether an
accessibility feature is readily achievable is unduly burdensome
on small entities.
The RFA directs agencies to provide a description of and,
where feasible, an estimate of the number of small entities that
may be affected by the proposed rules, if adopted. The RFA
generally defines the term small entity as having the same
meaning as the terms small business, small organization, and
small governmental jurisdiction. In addition, the term small
business has the same meaning as the term small business
concern under the Small Business Act. A small business concern
is one which: (1) is independently owned and operated; (2) is not
dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business
Administration (SBA). A small organization is generally "any
not-for-profit enterprise which is independently owned and
operated and is not dominant in its field." Nationwide, as of
1992, there were approximately 275,801 small organizations.
Below, we further describe and estimate the number of small
entity licensees and other covered entities that may be affected
by the proposed rules, if adopted.
1. Equipment Manufacturers
The following chart contains estimated numbers of domestic
entities that may be affected by this rulemaking. The data from
which this chart was developed includes firm counts that reflect
product lines not involved in telecommunications, as defined by
the 1996 Act, and also includes overlapping firm counts and firms
deliberately commingled to avoid disclosing the value of
individual firms' equipment shipments for the reporting period.
PRODUCT
CLASS/CODE PRODUCT
DESCRIPTION ESTIMATED
FIRM COUNT
COMMENTS 36611 Switching and switchboard equipment 84 Includes
central office switching equipment, PBX equipment,
cellular mobile switching equipment. 36613 Carrier line equipment and
modems 89 Includes repeaters, multiplex equipment, channel banks,
subscriber loop and carrier line equipment, and modems. 36614 Other telephone
and telegraph equipment 215 Includes single line, ISDN, key and public pay
telephone sets,
cordless handsets, data communications equipment, video
conferencing equipment, voice and call message processing
equipment, call distributors, facsimile equipment. 36631 Communications systems
and equipment 346 Includes mobile cellular equipment, conventional and trunked
system equipment, SONET-standard equipment. 36632 Broadcast, studio, and related
electronic equipment 172 Includes cable equipment possibly used to provide
telephone
service, such as subscriber equipment. 35715 Personal computers and
workstations 89 Includes personal computers with CPE
capabilities. 35716 Portable computers 35 Typically with attached
display. 35771 Computer peripheral equipment, not elsewhere
classified 259 Excludes common storage, scanning, and other peripherals itemized
in census source document. Intended to include peripherals used
for telecommunication function, and specialized CPE used in
conjunction with computers. Includes keyboards, manual input
devices such as mouses and scanners, voice recognition equipment
(88 firms). 36798 Printed circuit assemblies 648 Includes communications printed
board assemblies (211 firms) and
other electronics, including office equipment and point of
sales (182 firms) that would commonly involve telecommunications
functions. 35751 Computer terminals 57 Includes remote batch terminals,
displays, etc. For distributed
computer systems involved in telecommunications, remote terminals
and other components are probably essential to ensuring
accessible telecommunications capabilities. 35772 Parts and subassemblies for
computer peripherals and input/output
equipment 72 Includes funds transfer devices and point of sale terminals (29
firms).
2. Software
Due to the convergence between telecommunications equipment,
telecommunications services and the software used to control and
regulate each, software developers and producers may be viewed as
regulated entities under Section 255. This is particularly true
of software that is used to make traditional telecommunications
devices operate with CPE designed for specific disabilities. We
seek comment on the impact of our proposed rules on the small
businesses within this industrial category.
3. Telecommunications Service Entities
a. Introduction
Commenters are requested to provide information regarding
how many providers of telecommunications services, existing and
potential, will be considered small businesses. The SBA has
defined a small business for Radiotelephone Communications (SIC
4812) and Telephone Communications, Except Radiotelephone (SIC
4813), to be small entities when they have fewer than 1,500
employees.
We seek comment as to whether this definition is appropriate
in this context. Additionally, we request each commenter to
identify whether it is a small business under this definition.
If the commenter is a subsidiary of another entity, this
information should be provided for both the subsidiary and the
parent corporation or entity.
The United States Bureau of the Census reports that, at the
end of 1992, there were 3,497 firms engaged in providing
telephone services, for at least one year. This number contains
a variety of different categories of carriers, including local
exchange carriers, interexchange carriers, competitive access
providers, cellular carriers, other mobile service carriers,
operator service providers, pay telephone providers, personal
communications services (PCS) providers, covered specialized
mobile radio providers, and resellers. It seems certain that
some of those 3,497 telephone service firms may not qualify as
small entities or small incumbent local exchange carriers (LECs)
because they are not independently owned and operated. For
example, a PCS provider that is affiliated with an interexchange
carrier (IXC) having more than 1,500 employees would not meet the
definition of a small business. We tentatively conclude that
fewer than 3,497 telephone service firms are small entity
telephone service firms or small incumbent local exchange
carriers.
According to the Telecommunications Industry Revenue:
Telecommunications Relay Service Fund Worksheet Data (TRS
Worksheet), there are 3,459 interstate carriers. These carriers
include, inter alia, local exchange carriers, wireline carriers
and service providers, interexchange carriers, competitive access
providers, operator service providers, pay telephone providers,
providers of telephone toll service, providers of telephone
exchange service, and resellers.
b. Wireline Carriers and Service Providers
The SBA has developed a definition of small entities for
telephone communications companies except radiotelephone
(wireless) companies. The Census Bureau reports that, there were
2,321 such telephone companies in operation for at least one year
at the end of 1992. According to the SBA definition, as we have
noted, a small business telephone company other than a
radiotelephone company is one employing fewer than 1,500 persons.
All but 26 of the 2,321 non-radiotelephone companies listed by
the Census Bureau were reported to have fewer than 1,000
employees.
Thus, even if all 26 of those companies had more than 1,500
employees, there would still be 2,295 non-radiotelephone
companies that might qualify as small entities or small incumbent
LECs. We do not have information regarding the number of
carriers that are not independently owned and operated, and thus
are unable at this time to estimate with greater precision the
number of wireline carriers and service providers that would
qualify as small business concerns under the SBA definition.
Consequently, we estimate that there are fewer than 2,295 small
telephone communications companies other than radiotelephone
companies.
(1) Incumbent Local Exchange Carriers
Neither the Commission nor SBA has developed a definition
for small providers of local exchange services. The closest
applicable definition under the SBA rules is for telephone
communications companies other than radiotelephone (wireless)
companies. The most reliable source of information regarding the
number of LECs nationwide of which we are aware appears to be the
data that we collect annually in connection with the TRS
Worksheet. According to our most recent data, 1,376 companies
reported that they were engaged in the provision of local
exchange services. Although it seems certain that some of these
carriers are not independently owned and operated, or have more
than 1,500 employees, we are unable at this time to estimate with
greater precision the number of LECs that would qualify as small
business concerns under the SBA definition. Consequently, we
estimate that there are fewer than 1,376 small incumbent LECs.
Because the small incumbent LECs subject to these rules are
either dominant in their field of operations or are not
independently owned and operated, they are excluded (consistent
with our prior practice) from the definition of small entity
and small business concerns. Accordingly, our use of the terms
small entities and small businesses does not encompass small
incumbent LECs. Out of an abundance of caution, however, for
regulatory flexibility analysis purposes, we will consider small
incumbent LECs within this analysis and use the term small
incumbent LECs to refer to any incumbent LEC that arguably might
be defined by SBA as a small business concern.
(2) Interexchange Carriers
Neither the Commission nor SBA has developed a definition of
small entities specifically applicable to providers of
interexchange services. The closest applicable definition under
the SBA rules is for telephone communications companies except
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of IXCs nationwide is the data
that we collect annually in connection with the TRS Worksheet.
According to our most recent data, 149 companies reported that
they were engaged in the provision of interexchange services. We
do not have information on the number of carriers that are not
independently owned and operated, nor have more than 1,500
employees, and thus we are unable at this time to estimate with
greater precision the number of IXCs that would qualify as small
business concerns under the SBA definition. Consequently, we
estimate that there are fewer than 149 small entity IXCs.
(3) Competitive Access Providers and
Competitive Local Exchange Carriers
Neither the Commission nor SBA has developed a definition of
small entities specifically applicable to providers of
competitive access services (CAPs) and competitive local exchange
carriers (CLECs). The closest applicable definition under the
SBA rules is for telephone communications companies except
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of CAPs and CLECs nationwide is
the data that we collect annually in connection with the TRS
Worksheet. According to our most recent data, 119 companies
reported that they were engaged in the provision of competitive
access services. We do not have information on the number of
carriers that are not independently owned and operated, nor have
more than 1,500 employees, and thus are unable at this time to
estimate with greater precision the number of CAPs that would
qualify as small business concerns under the SBA definition.
Consequently, we estimate that there are fewer than 119 small
CAPs.
(4) Operator Service Providers
Neither the Commission nor SBA has developed a definition of
small entities specifically applicable to providers of operator
services. The closest applicable definition under the SBA rules
is for telephone communications companies except radiotelephone
(wireless) companies. The most reliable source of information
regarding the number of operator service providers nationwide is
the data that we collect annually in connection with the TRS
Worksheet. According to our most recent data, 27 companies
reported that they were engaged in the provision of operator
services. We do not have information on the number of carriers
that are not independently owned and operated, nor have more than
1,500 employees, and thus are unable at this time to estimate
with greater precision the number of operator service providers
that would qualify as small business concerns under the SBA
definition. Consequently, we estimate that there are fewer than
27 small operator service providers.
(5) Pay Telephone Providers
Neither the Commission nor SBA has developed a definition of
small entities specifically applicable to pay telephone
providers. The closest applicable definition under SBA rules is
for telephone communications companies except radiotelephone
(wireless) companies. The most reliable source of information
regarding the number of pay telephone providers nationwide is the
data that we collect annually in connection with the TRS
Worksheet. According to our most recent data, 533 companies
reported that they were engaged in the provision of pay telephone
services. We do not have information on the number of carriers
that are not independently owned and operated, nor have more than
1,500 employees, and thus are unable at this time to estimate
with greater precision the number of pay telephone providers that
would qualify as small business concerns under SBA definition.
Consequently, we estimate that there are fewer than 533 small pay
telephone providers.
(6) Resellers (Including Debit Card
Providers)
Neither the Commission nor SBA has developed a definition of
small entities specifically applicable to resellers. The closest
applicable SBA definition for a reseller is a telephone
communications company except radiotelephone (wireless)
companies. However, the most reliable source of information
regarding the number of resellers nationwide is the data that the
Commission collects annually in connection with the TRS
Worksheet. According to our most recent data, 345 companies
reported that they were engaged in the resale of telephone
service. We do not have information on the number of carriers
that are not independently owned and operated, nor have more than
1,500 employees, and thus we are unable at this time to estimate
with greater precision the number of resellers that would qualify
as small entities or small incumbent LEC concerns under the SBA
definition. Consequently, we estimate that there are fewer than
345 small entity resellers.
c. International Service Providers
The Commission has not developed a definition of small
entities applicable to licensees in the international services.
Therefore, the applicable definition of small entity is the
definition under the SBA rules applicable to Communications
Services, Not Elsewhere Classified (NEC). This definition
provides that a small entity is expressed as one with $11.0
million or less in annual receipts. According to the Census
Bureau, there were a total of 848 communications services, NEC,
in operation in 1992, and a total of 775 had annual receipts of
less than $9.999 million. The Census report does not provide
more precise data. Many of these services do not have specified
uses and it is uncertain, at this point in time, if they will
ultimately provide telecommunications services.
(1) International Public Fixed Radio (Public
and Control Stations)
There are 15 licensees in this service. We do not request
or collect annual revenue information, and thus are unable to
estimate the number of international public fixed radio licensees
that would constitute a small business under the SBA definition.
(2) Fixed Satellite Transmit/Receive Earth
Stations
There are approximately 4,200 earth station authorizations,
a portion of which are Fixed Satellite Transmit/Receive Earth
Stations. We do not request or collect annual revenue
information, and thus are unable to estimate the number of the
earth stations that would constitute a small business under the
SBA definition.
(3) Fixed Satellite Small Transmit/Receive
Earth Stations
There are 4.200 earth station authorizations, a portion of
which are Fixed Satellite Small Transmit/Receive Earth Stations.
We do not request or collect annual revenue information, and thus
are unable to estimate the number of fixed satellite
transmit/receive earth stations may constitute a small business
under the SBA definition.
(4) Fixed Satellite Very Small Aperture
Terminal (VSAT) Systems
These stations operate on a primary basis, and frequency
coordination with terrestrial microwave systems is not required.
Thus, a single blanket application may be filed for a specified
number of small antennas and one or more hub stations. The
Commission has processed 377 applications. We do not request or
collect annual revenue information, and thus are unable to
estimate of the number of VSAT systems that would constitute a
small business under the SBA definition.
(5) Mobile Satellite Earth Stations
There are two licensees. We do not request or collect
annual revenue information, and thus are unable to estimate
whether either of these licensees would constitute a small
business under the SBA definition.
(6) Space Stations (Geostationary)
Commission records reveal that there are 37 space station
licensees. We do not request or collect annual revenue
information, and thus are unable to estimate of the number of
geostationary space stations that would constitute a small
business under the SBA definition.
(7) Space Stations (Non-Geostationary)
There are six Non-Geostationary Space Station licensees, of
which only one system is operational. We do not request or
collect annual revenue information, and thus are unable to
estimate of the number of non-geostationary space stations that
would constitute a small business under the SBA definition.
d. Wireless Telecommunications Service Providers
The Commission has not yet developed a definition of small
entities with respect to the provision of CMRS services.
Therefore, for entities not falling within other established SBA
categories (i.e., Radiotelephone Communications or Telephone
Communications, Except Radiotelephone), the applicable definition
of small entity is the definition under the SBA rules applicable
to the Communications Services, Not Elsewhere Classified
category. This definition provides that a small entity is one
with $11.0 million or less in annual receipts. The Census Bureau
estimates indicate that of the 848 firms in the Communications
Services, Not Elsewhere Classified category, 775 are small
businesses. It is not possible to predict which of these would
be small entities (in absolute terms or by percentage) or to
classify the number of small entities by particular forms of
service.
(1) Cellular Radio Telephone Service
The Commission has not developed a definition of small
entities applicable to cellular licensees. Therefore, the
applicable definition of small entity is the definition under the
SBA rules applicable to radiotelephone companies. This
definition provides that a small entity is a radiotelephone
company employing no more than 1,500 persons. The size data
provided by SBA does not enable us to make a meaningful estimate
of the number of cellular providers which are small entities
because it combines all radiotelephone companies with 500 or more
employees.
We therefore have used the 1992 Census of Transportation,
Communications, and Utilities, conducted by the Bureau of the
Census, which is the most recent information available. That
census shows that only 12 radiotelephone firms out of a total of
1,178 such firms which operated during 1992 had 1,000 or more
employees. Therefore, even if all 12 of these large firms were
cellular telephone companies, all of the remainder were small
businesses under the SBA definition. We assume that, for
purposes of our evaluations and conclusions in this IRFA, all of
the current cellular licensees are small entities, as that term
is defined by SBA. In addition, although there are 1,758
cellular licenses, we do not know the number of cellular
licensees, since a cellular licensee may own several licenses.
(2) Broadband Personal Communications
Service
The broadband PCS spectrum is divided into six frequency
blocks designated A through F. Pursuant to Section 24.720(b) of
the Commission's Rules, the Commission has defined small entity
for Block C and Block F licensees as firms that had average gross
revenues of less than $40 million in the three previous calendar
years. This regulation defining small entity in the context of
broadband PCS auctions has been approved by SBA.
The Commission has auctioned broadband PCS licenses in all
of its spectrum blocks A through F. We do not have sufficient
data to determine how many small businesses under the
Commission's definition bid successfully for licenses in Blocks A
and B. As of now, there are 89 non-defaulting winning bidders
that qualify as small entities in the Block C auction and 93
non-defaulting winning bidders that qualify as small entities in
the D, E, and F Block auctions. Based on this information, we
conclude that the number of broadband PCS licensees that would be
affected by the proposals in the Notice includes the 182
non-defaulting winning bidders that qualify as small entities in
the C, D, E, and F Block broadband PCS auctions. Note that the
number of successful bidders is not necessarily equivalent to the
number of licensees, yet it is the best indicator that is
currently available.
(3) Specialized Mobile Radio
Pursuant to Section 90.814(b)(1) of the Commission's Rules,
the Commission has defined small entity for geographic area 800
MHz and 900 MHz Specialized Mobile Radio (SMR) licenses as firms
that had average gross revenues of less than $15 million in the
three previous calendar years. This regulation defining small
entity in the context of 800 MHz and 900 MHz SMR has been
approved by SBA.
The proposals set forth in the Notice may apply to SMR
providers in the 800 MHz and 900 MHz bands. We do not know how
many firms provide 800 MHz or 900 MHz geographic area SMR
service, or how many of these providers have annual revenues of
less than $15 million.
The Commission recently held auctions for geographic area
licenses in the 900 MHz SMR band. There were 60 winning bidders
who qualified as small entities under the Commission's definition
in the 900 MHz auction. Based on this information, we conclude
that the number of geographic area SMR licensees affected by the
proposals set forth in the Notice includes these 60 small
entities.
Based on the auctions held for 800 MHz geographic area SMR
licenses, there were 10 small entities currently holding 38 of
the 524 licenses for the upper 200 channels of this service.
However, the Commission has not yet determined how many licenses
will be awarded for the lower 230 channels in the 800 MHz
geographic area SMR auction. There is no basis to estimate,
moreover, how many small entities within the SBA definition will
win these licenses. Given the facts that nearly all
radiotelephone companies have fewer than 1,000 employees and that
no reliable estimate of the number of prospective 800 MHz SMR
licensees can be made, we assume, for purposes of our evaluations
and conclusions in this IRFA, that all of the licenses will be
awarded to small entities, as that term is defined by SBA.
(4) 220 MHz Service
Licensees for 220 MHz services that meet the definition of
CMRS may be providers of telecommunications service. The
Commission has classified providers of 220 MHz service into Phase
I and Phase II licensees. There are approximately 3,800
non-nationwide Phase I licensees and 4 nationwide licensees
currently authorized to operate in the 220 MHz band. The
Commission has estimated that there are approximately 900
potential Phase II licensees. These licenses were scheduled to
be auctioned in May 1998, but the auction has been delayed
pending resolution of petitions for reconsideration.
At this time, however, there is no basis upon which to
estimate definitively the number of 220 MHz service licensees,
either current or potential, that are small businesses. To
estimate the number of such entities that are small businesses,
we apply the definition of a small entity under SBA rules
applicable to radiotelephone companies. This definition provides
that a small entity is a radiotelephone company employing no more
than 1,500 persons. However, the size data provided by the SBA
do not allow us to make a meaningful estimate of the number of
220 MHz providers that are small entities because they combine
all radiotelephone companies with 500 or more employees.
We therefore use the 1992 Census of Transportation,
Communications, and Utilities, conducted by the Bureau of the
Census, which is the most recent information available. Data
from the Census Bureau's 1992 study indicate that only 12 out of
a total 1,178 radiotelephone firms which operated during 1992 had
1,000 or more employees and these may or may not be small
entities, depending on whether they employed more or less than
1,500 employees. But 1,166 radiotelephone firms had fewer than
1,000 employees and, therefore, under the SBA definition, are
small entities. However, we do not know how many of these 1,166
firms are likely to be involved in the provision of 220 MHz
service.
(5) Mobile Satellite Services (MSS)
Mobile Satellite Services or Mobile Satellite Earth Stations
are intended to be used while in motion or during halts at
unspecified points. These stations operate as part of a network
that includes a fixed hub or stations. The stations that are
capable of transmitting while a platform is moving are included
under Section 20.7(c) of the Commission's Rules as mobile
services within the meaning of Sections 3(27) and 332 of the
Communications Act. Those MSS services are treated as CMRS if
they connect to the Public Switched Network (PSN) and also
satisfy other criteria of Section 332. Facilities provided
through a transportable platform that cannot move when the
communications service is offered are excluded from Section
20.7(c).
The MSS networks may provide a variety of land, maritime and
aeronautical voice and data services. There are eight mobile
satellite licensees. At this time, we are unable to make a
precise estimate of the number of small businesses that are
mobile satellite earth station licensees and could be considered
CMRS providers of telecommunications service.
(6) Paging
Private and Common Carrier Paging. The Commission has
proposed a two- tier definition of small businesses in the
context of auctioning licenses in the Common Carrier Paging and
exclusive Private Carrier Paging services. Under the proposal, a
small business will be defined as either (1) an entity that,
together with its affiliates and controlling principals, has
average gross revenues for the three preceding years of not more
than $3 million, or (2) an entity that, together with affiliates
and controlling principals, has average gross revenues for the
three preceding calendar years of not more than $15 million.
Because the SBA has not yet approved this definition for paging
services, we will utilize the SBA's definition applicable to
radiotelephone companies, i.e., an entity employing no more than
1,500 persons. At present, there are approximately 24,000
Private Paging licenses and 74,000 Common Carrier Paging
licenses. According to the most recent Telecommunications
Industry Revenue data, 364 carriers reported that they were
engaged in the provision of either paging or other mobile
services, which are placed together in the data. We do not have
data specifying the number of these carriers that are not
independently owned and operated or have more than 1,500
employees, and thus are unable at this time to estimate with
greater precision the number of paging carriers that would
qualify as small business concerns under the SBA's definition.
Consequently, we estimate that there are fewer than 364 small
paging carriers that may be affected by the proposed rules, if
adopted. We estimate that the majority of private and common
carrier paging providers would qualify as small entities under
the SBA definition.
(7) Narrowband PCS
The Commission has auctioned nationwide and regional
licenses for narrowband PCS. The Commission does not have
sufficient information to determine whether any of these
licensees are small businesses within the SBA-approved
definition. At present, there have been no auctions held for the
MTA and Basic Trading Area (BTA) narrowband PCS licenses. The
Commission anticipates a total of 561 MTA licensees and 2,958 BTA
licensees will be awarded in the auctions. Those auctions,
however, have not yet been scheduled. Given that nearly all
radiotelephone companies have fewer than 1,500 employees and that
no reliable estimate of the number of prospective MTA and BTA
narrowband licensees can be made, we assume that all of the
licensees will be awarded to small entities, as that term is
defined by the SBA.
(8) Air-Ground Radiotelephone Service
The Commission has not adopted a definition of small
business specific to the Air-Ground Radiotelephone Service, which
is defined in Section 22.99 of the Commission's rules.
Accordingly, we will use the SBA definition applicable to
radiotelephone companies, i.e., an entity employing no more than
1,500 persons. There are approximately 100 licensees in the
Air-Ground Radiotelephone Service, and we estimate that almost
all of them qualify as small under the SBA definition.
(9) Local Multipoint Distribution Service
(LMDS)
LMDS licensees may use spectrum for any number of services.
It is anticipated that the greatest intensity of use will be for
either radio telephone or pay television services. SBA has
developed definitions applicable to each of these services,
however, because pay television is not a telecommunications
service subject to Section 255, it is not relevant to this IRFA.
The Commission has not developed a definition of small
entities applicable to LMDS licensees, which is a new service.
In the LMDS Order we adopt criteria for defining small businesses
for determining bidding credits in the auction, but we believe
these criteria are applicable for evaluating the burdens imposed
by Section 255. We define a small business as an entity that,
together with affiliates and controlling principals, has average
gross revenues not exceeding $40 million for the three preceding
years. Additionally, small entities are those which together
with affiliates and controlling principals, have average gross
revenues for the three preceding years of more than $40 million
but not more than $75 million.
Upon completion of the auction 93 of the 104 bidder
qualified as small entities, smaller businesses, or very small
businesses. These 93 bidders won 664 of the 864 licenses. We
estimate that all of these 93 bidders would qualify as small
under the SBA definitions, but we cannot yet determine what
percentage would be offering telecommunications services.
(10) Rural Radiotelephone Service
The Commission has not adopted a definition of small entity
specific to the Rural Radiotelephone Service. A significant
subset of the Rural Radiotelephone Service is the Basic Exchange
Telephone Radio Systems (BETRS). We will use the SBA's
definition applicable to radiotelephone companies, i.e., an
entity employing no more than 1,500 persons. There are
approximately 1,000 licensees in the Rural Radiotelephone
Service, and we estimate that almost all of them qualify as small
entities under the SBA's definition.
(11) Wireless Communications Services
This service can be used for fixed, mobile, radiolocation
and digital audio broadcasting satellite uses. The Commission
defined small business for the wireless communications services
(WCS) auction as an entity with average gross revenues of $40
million for each of the three preceding years, and a very small
business as an entity with average gross revenues of $15 million
for each of the three preceding years. The Commission auctioned
geographic area licenses in the WCS service. In the auction,
there were seven winning bidders that qualified as very small
business entities, and one that qualified as a small business
entity. We conclude that the number of geographic area WCS
licensees affected includes these eight entities.
(12) 39 GHz Band
The Commission has not developed a definition of small
entities applicable to 39 GHz band licensees. Therefore, the
applicable definition of small entity is the definition under the
SBA rules applicable to radiotelephone companies. This
definition provides that a small entity is a radiotelephone
company employing no more than 1,500 persons. Since the
Regulatory Flexibility Act amendments were not in effect until
the record in this proceeding was closed, the Commission was
unable to request information regarding the potential number of
small businesses interested in the 39 GHz frequency band and is
unable at this time to determine the precise number of potential
applicants which are small businesses.
The size data provided by SBA does not enable us to make a
meaningful estimate of the number of cellular providers which are
small entities because it combines all radiotelephone companies
with 500 or more employees. We therefore have used the 1992
Census of Transportation, Communications, and Utilities,
conducted by the Bureau of the Census, which is the most recent
information available. That census shows that only 12
radiotelephone firms out of a total of 1,178 such firms which
operated during 1992 had 1,000 or more employees. Therefore, a
majority of 39 GHz entities providing radiotelephone services
could be small businesses under the SBA definition.
However in the 39 GHz Band NPRM and Order, we proposed to
define a small business as an entity that, together with
affiliates and attributable investors, has average gross revenues
for the three preceding years of less than $40 million. We have
not yet received approval by the SBA for this definition. We
assume, for purposes of our evaluations, that nearly all of the
39 GHz licensees will be small entities, as that term is defined
by the SBA.
D. Reporting, Recordkeeping, and Other Compliance Requirements
As we have noted, the objective of Section 255 is for
persons with disabilities to have increased access to
telecommunications. Both equipment manufacturers and
telecommunications service providers are obligated to provide
accessibility for persons with any one or more of different
disabilities to the extent that it is readily achievable for them
to do so. So, in the broadest sense, compliance consists of the
on-going, disciplined, and systematic effort to provide the
greatest level of accessibility. Much of the Notice deals with
behaviors which demonstrate that such effort and would be looked
upon favorably in the event of a filed complaint.
The only actual recordkeeping requirement that the
Commission proposes is for each covered entity to provide a point
of contact for referral of consumer problems. This person would
represent the covered entity during the fast-track
problem-solving phase which would precede the filing of any form
of complaint. In the Notice we suggest and seek comment on a
one-week period in which the manufacturer or service provider
should resolve the customer's problem. Although we wish to
encourage speedy responses, we recognize that there may be
circumstances which call for an extension of the time period. In
such instances, the Commission reserves the discretion to grant
requests. We seek comment on whether the one-week time period,
and whether the informal means of requesting extensions would be
disproportionately burdensome on small businesses.
Despite the lack of any formal recordkeeping requirement, in
order to respond to fast-track inquiries, companies may chose
to keep records at their own discretion on the way the company
has chosen to implement its own disability initiatives. This
self-imposed recordkeeping will enable them to respond in a more
timely fashion. Likewise we seek comment on whether this
implicit burden needs to be recognized, and, if so, whether there
is a disproportionate impact on small businesses.
An additional recordkeeping requirement for which we seek
comment would be to have equipment manufacturers acknowledge
their Section 255 obligations on the same form used for filing
for equipment authorization with the Office of Engineering and
Technology. Similarly, we seek comment on which of the filings
for telecommunications service providers would provide a
comparable opportunity to indicate awareness of their own Section
255 obligations. Another option, beyond the scope of Section 255
and thus requiring a separate rulemaking, might be to design a
consolidated form to be used by service providers for reporting
all required information to the Commission and including
awareness of entities' Section 255 obligations as one small part.
Although we perceive the Section 255 reporting burden to be
minimal, as in checking off a box on a form required for other
purposes, we request comment on how such requirements can be
modified to reduce the burden on small entities and still meet
the objectives of this proceeding.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities,
and Significant Alternatives Considered
In the Notice of Inquiry, we sought comment on three
possible approaches for implementing and enforcing the provisions
of Section 255: (1) rely on case-by-case determinations; (2)
issue guidelines or a policy statement; or (3) promulgate rules
setting forth procedural or performance requirements intended to
promote accessibility.
The Notice principally proposes procedural requirements as a
practical, commonsense means to ensure that consumers with
disabilities have access to telecommunications services and
equipment.
The use of case-by-case determinations exclusively, in lieu
of any rules, was considered but tentatively discarded in the
Notice because it was believed that in a rapidly changing market
with unpredictable technological breakthroughs, the slow
development of case law would not be sufficient to guide covered
entities to an understanding of their accessibility obligations.
The issuance of guidelines or a policy statement was also
considered but tentatively discarded, because of our view that a
greater degree of regulatory and administrative certainty will
best serve the interests of both consumers and businesses
(including covered entities) that must comply with Section 255.
Guidelines or a policy statement might serve the purpose of
informing case-by-case determinations in complaint proceedings
and lending some predictability of outcomes in these proceedings.
Moreover, the Commission tentatively decided that, in order for
accessibility to be addressed in a pro-active manner, equipment
manufacturers and service providers should have clear expressions
of the demands Section 255 places on their operations before the
beginning of the design process. The Commission tentatively
concluded, however, that the potential drawbacks of exclusive
reliance on case-by-case determinations as a means of
implementing Section 255 would not be sufficiently diminished by
the adoption of guidelines or a policy statement.
Also considered and tentatively rejected by the Commission
was the option of promulgating specific performance requirements.
Such an approach under which the Commission would attempt to
establish an array of specific parameters for features and
functions across a broad range of telecommunications services and
equipment was viewed as potentially burdensome to covered
entities, as well as being fraught with other potential problems.
For example, rapid changes in technology could make Commission
performance requirements obsolete in rapid fashion. This would
make it necessary for the Commission to frequently revise its
performance requirements in order to attempt to keep pace with
these technological changes. These frequent revisions would
impose burdens on covered entities and potentially cause
confusion in the telecommunications marketplace. In addition, we
tentatively have decided that the promulgation of rules governing
the design process, would impose burdens on covered entities
whose resources would be better spent in achieving and improving
accessibility.
As a result of our tentative decision to rely primarily on
procedural rules, we have taken several steps to minimize burdens
on all regulated entities. First, we have sought to provide
incentives to industry for early and on-going consideration of
accessibility issues. In particular, we will look favorably upon
efforts to implement the Access Board's guidelines such as
formalizing self-assessment, external outreach, internal
management, and user information and support to address
accessibility issues. Second, we have attempted to unravel the
statutory terminology to give guidance on the interpretation of
key language within the telecommunications context. For example,
readily achievable is explored in great depth to explicate
feasibility, expense, and practicality elements. Third, we have
intended to fashion efficient, consumer-friendly means of dealing
with problems. By instituting a pre-complaint process in a
fast-track, problem-solving phase, we are attempting to implement
the objectives of the statute in a cooperative, as opposed to
adversarial, manner. We welcome comments on the extent to which
the tentative approach we have adopted in the Notice is likely to
further the goals of Section 255 without creating an unfair
economic impact on small entities.
We believe we have reduced burdens wherever possible. For
burdens imposed by achieving accessibility, the structure of the
statute inherently acknowledges varying degrees of economic
impact. The readily achievable standard is proportional, not
absolute, thereby adjusting the burden of providing accessible
features to be commensurate with the resources of the covered
entity.
For burdens associated with enforcement, the innovation of
the fast-track problem solving phase is an outgrowth of the
desire to find immediate, practical solutions to consumers'
problems in obtaining accessible or compatible equipment and
services. It is anticipated that the pre-complaint process will
significantly reduce the number of complaints, thus minimizing
the burden on all covered entities of providing a legal defense.
Furthermore, the range of choices for resolving complaints is
designed to reduce costs to the opposing parties. Encouraging
the use of streamlined informal complaints or alternative dispute
resolution processes is primarily to benefit individual
plaintiffs who may be persons with disabilities with limited
financial resources, but should similarly enable covered entities
to defend at lesser cost.
To minimize any negative impact, however, we seek comment on
the nature of incentives for small entities, which will redound
to their benefit. We will continue to examine alternatives in
the future with the objectives of eliminating unnecessary
regulations and minimizing significant economic impact on small
entities. We seek comment on significant alternatives interested
parties believe we should adopt.
F. Federal Rules Which Overlap, Duplicate, or Conflict with
These Rules
As stated above, 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. We view these guidelines as a starting point for the
implementation of Section 255, but because they do not cover
telecommunications services, we must necessarily adapt these
guidelines in our comprehensive implementation scheme. As such,
it is our tentative view that our proposed rules do not overlap,
duplicate, or conflict with the Access Board Final Rule, 36
C.F.R. Part 1193.
Separate Statement of Commissioner Harold W. Furchtgott-Roth
In re: Notice of Proposed Rulemaking
Implementation of Section 255 of the Telecommunications Act of
1996 -- Access to Telecommunications Service, Telecommunications
Equipment, and Customer Premises Equipment by Persons with
Disabilities.
Today we initiate a proceeding to adopt rules to implement
yet another important section of the Telecommunications Act of
1996. I support this action.
In this proceeding, the Commission will develop new rules to
enable persons with disabilities to participate in the
telecommunications revolution that has become such an important
facet of our society and economy. I look forward to adopting
these rules later this year.
My support for new regulations may be somewhat surprising,
for I have the well-deserved reputation of one who often favors
de-regulation. A more accurate characterization of my views,
however, is that I favor rational regulation. This rationality
is achieved only when the benefits of our rules significantly
outweigh the costs of our rules.
Undoubtedly, the new rules we eventually adopt in this
proceeding will impose some costs on industry and consumers.
Nevertheless, I am confident that, in meeting the requirements of
the Telecommunications Act, we will adopt rules that have
benefits that significantly exceed these costs. In addition,
this particular area of regulation may well be a rare instance of
where the involvement of federal government introduces
efficiencies unlikely to develop in the market. Thus, we have
here an opportunity for rational regulation and an appropriate
role for the federal government.
SEPARATE STATEMENT OF COMMISSIONER MICHAEL
POWELL
Re: Implementation of Section 255 of the Telecommunications Act
of 1996 -- Access to Telecommunications Services,
Telecommunications Equipment, and Customer Premises Equipment by
Persons with Disabilities, Notice of Proposed Rulemaking (WT
Docket No. 96-198)
It is the law, and should be the law, that manufacturers of
telecommunications equipment and customer premises equipment
(CPE) and providers of telecommunications services shall ensure
that such equipment and services are accessible to and usable by
individuals with disabilities. If accessibility is not "readily
achievable," manufacturers and service providers are required to
ensure that their equipment or service is compatible with
existing peripheral devices or specialized customer premises
equipment commonly used by individuals with disabilities to
achieve access. It is the Commission's job (exclusively) to
enforce this law, which Congress in its wisdom included in the
historic 1996 Telecommunications Act.
It is only right that Congress included this provision
(section 255) in the Act. It understood that as it unleashed a
largely unregulated and highly competitive telecommunications
industry, it needed to ensure that people with disabilities were
not strewn aside in the battle for customers and subscribers. It
is only right that manufacturers and service providers should be
ready, willing and able to step up to welcome and accept this
task to ensure that a significant portion of their customers are
properly accommodated -- without the need for significant
government intrusion into their businesses. And, it is only
right that this Commission must set forth rules, guidelines and
enforcement procedures so that the industry and, especially,
individuals with disabilities, know how to comply with the law
and what to expect from the agency tasked to enforce it.
I fully expect (and will demand) that every industry
participant will comply with the letter and the spirit of this
law. I know that this is an area where free market forces alone
are unlikely to address the specific needs of individuals, who
solely because of life's unpredictability and randomness find
themselves restricted by physical adversity. This is an area
where government can help this community enjoy the fruits of
independence that the seeds of telecommunications can yield and
that the Act envisioned. The principle of universal service is
ultimately inclusion, and the disabled community should not be
overlooked.
I know personally the frustrations of being relegated to the
outskirts of "normal" society because of the inability to access
the necessary instruments of daily life, for I suffer from
physical limitations that resulted from a serious jeep accident.
I recall vividly the feelings of helplessness brought on by the
inability to help myself with basic life functions. I recall
during my year-long convalescence, preferring the hospital over
my home: home was the real world of difficult stairways to
navigate, rather than the ramps of the hospital, it was bathrooms
that were a nightmare to get to and use, and it was inhospitable
beds and chairs. It was a place where I watched fully functional
people move easily in and out of every day, living normal
unencumbered lives. I can easily imagine how it must feel to be
unable to even make a phone call.
As the Commission seeks to accommodate the needs of the
disabled, however, we must be careful in our zeal not to
stigmatize those that section 255 was designed to help, and we
must be careful to avoid creating disincentives for those in
industry that actually can help. This is why I strongly support
the proposed "fast-track" problem solving process and guiding
principles laid out in this Notice. This process emphasizes
timely and informal resolution, with the promise that the vast
majority of accessibility problems will be resolved by the
manufacturer or service provider without the need for resort to
formal "complaints."
I look forward to reviewing the comments in this proceeding
and welcome any and all suggestions on how the Commission can
improve upon the enforcement procedures we propose so that this
important law we are tasked with enforcing will be subject to the
fullest compliance.
Statement of Commissioner Gloria Tristani
on the Adoption of a Notice of Proposed Rulemaking
on Access to Telecommunications Services,
Telecommunications Equipment, and Customer Premises Equipment
by Persons with Disabilities
April 2, 1998
Today we take concrete steps to assure that the tremendous
benefits of the telecommunications sector will be available to
people with disabilities. Telecommunications is at the core of
our society -- it is, increasingly, how we communicate with one
another, how we learn, how we work. To be denied access to those
activities would be, in essence, to be relegated to the sidelines
of our national life. Congress wisely acknowledged this in
enacting Section 255, mandating that telecommunications services
and equipment be accessible to people with disabilities, where
readily achievable.
I firmly believe that few actions we take as commissioners
could be as important as those promoting real, meaningful access
to telecommunications for all Americans. So we have worked, for
example, to facilitate access for people in rural and high cost
areas, to connect our schools and libraries, and to guarantee
that wireless callers -- including TTY users -- have the benefit
of E-911 services.
In my mind, this NPRM is long overdue. I believe that the
guidelines and procedural rules we propose will have substantial
impact in the lives of the 54 million Americans with
disabilities. Imagine, for example, the frustration felt by
someone using a voice board (an augmentative or alternative
communications device) when they call emergency or directory
assistance (911 or 411), only to be disconnected because the
person answering does not understand that this is a real call.
Imagine someone with cerebral palsy or multiple sclerosis, who
then faces the prospect of using a TTY device, yet may not have
the manual dexterity necessary to do so. Imagine doing that in
an emergency.
These are striking examples. But they portend larger social
and economic realities. Unemployment among people with
disabilities is roughly 73 percent. And those who are employed
earn on average only one-third the income of the non-disabled
population. In our world today, access to telecommunications
services and equipment translates into opportunity and
participation.
I am committed to doing all I can to make that access
happen. Today we set forth a number of proposals, relating to
both the substantive mandates of Section 255 and the procedures
for enforcing it. I believe we have proposed a workable
framework for cooperation and creativity in finding innovative
access solutions. I recognize that this is a beginning, and I
look forward to working with both industry and consumers to build
on this framework.
END NOTES
1. Pub. L. 104-104, 110 Stat. 56 (1996) (1996 Act).
2. 47 U.S.C. 255. For the text of Section 255, see Appendix A.
Section 255(b) and Section 255(c) establish accessibility and
usability requirements, while Section 255(d) establishes
compatibility requirements, if accessibility and usability are
not readily achievable. For purposes of simplicity, references
herein to "accessibility" are intended to include references to
accessibility, usability, and compatibility, unless the context
requires otherwise.
3. "At the end of 1994, 20.6 percent of the population, about 54
million people, had some level of disability; 9.9 percent or 26
million people had a severe disability." Americans with
Disabilities: 1994-95, Current Population Reports, Series P70-61,
U.S. Bureau of the Census (Aug. 1997).
4. Pub. L. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C.
12101-12213) (ADA).
5. The Access Board is an independent Federal regulatory agency
created under Section 502 of the Rehabilitation Act of 1973, 29
U.S.C. 792, to enforce the Architectural Barriers Act of 1968,
42 U.S.C.
4151-4157. It consists of 25 members, 12 Federal members and
13 members appointed by the President from the general public.
See infra para. 9 and n.[14].
6. Implementation of Section 255 of the Telecommunications Act of
1996: Access to Telecommunications Services, Telecommunications
Equipment, and Customer Premises Equipment by Persons with
Disabilities, WT Docket No. 96-198, Notice of Inquiry, 11 FCC Rcd
19152 (1996) (Notice of Inquiry).
7. Telecommunications Act Accessibility Guidelines, 63 Fed. Reg.
5608 (1998) (Access Board Order). The guidelines became
effective on March 5, 1998, and are codified at 36 C.F.R. Part
1193.
8. Under Section 255(e), 47 U.S.C. 255(e), the Access Board is
responsible for "develop[ing] guidelines for accessibility of
telecommunications equipment and customer premises equipment in
conjunction with the Commission." See infra para. 9.
9. 47 U.S.C. 151-614. The Communications Act of 1934 is
hereinafter referred to as the "Act."
10. For purposes of simplicity, references herein to "equipment"
are intended to include references to both telecommunications
equipment and CPE, unless the context requires otherwise.
Similarly, references to "products" are intended to include
references to both equipment and services, unless the context
requires otherwise.
11. For purposes of simplicity, references herein to Section 255
are intended to include references to both Section 255 and
Section 251(a)(2), unless the context requires otherwise.
12. 47 U.S.C. 255(f).
13. 47 U.S.C. 255(e). The Access Board's responsibility is
limited to accessibility of equipment, whereas the Commission's
responsibility includes both equipment and services.
14. The Access Board's role in the enforcement of accessibility
standards for buildings receiving Federal funding under the
Architectural Barriers Act of 1968 was expanded by Section 504 of
the ADA, 42 U.S.C.
12204. The original legislation did not delegate
responsibility to the Access Board for any guidelines regarding
Title IV, the telecommunications portion of the ADA. The Board's
role to establish and maintain minimum guidelines under the
Architectural Barriers Act was broadened by the ADA to include
Titles II and III
of the ADA. 29 U.S.C. 792(b)(3). In addition, the Access
Board was charged by the ADA with developing advisory guidelines
and providing technical assistance for those with rights or
duties under Titles II and III of the ADA. 29 U.S.C.
792(b)(2).
15. 47 U.S.C. 225, 610, 613.
16. See Telecommunications Relay Services and the Americans with
Disabilities Act of 1990, CC Docket No. 90-571, Third Report and
Order, 8 FCC Rcd 5300, 5300-01 (1993), Second Order on
Reconsideration and Fourth Report and Order, 9 FCC Rcd 1637,
1639-40 (1993); Access to Telecommunications Equipment and
Services by Persons with Disabilities, CC Docket No. 87-124,
Report and Order, 11 FCC Rcd 8249 (1996) (HAC Order), Order on
Reconsideration, 12 FCC Rcd 10077 (1997); Implementation of
Section 305 of the Telecommunications Act of 1996: Closed
Captioning and Video Description of Video Programming, MM Docket
No. 95-176, Report and Order, FCC 97-279, released Aug. 22, 1997,
Further Notice of Proposed Rulemaking, 13 FCC Rcd 5627 (1998).
17. See Access Board, Telecommunications Act Accessibility
Guidelines for Telecommunications Equipment and Customer Premises
Equipment, Notice of Appointment of Advisory Committee Members
and Notice of First Meeting, 61 Fed. Reg. 13813 (Mar. 28, 1996).
We will refer to the Telecommunications Access Advisory Committee
herein as the "TAAC" or the "Committee."
18. Telecommunications Access Advisory Committee, Access to
Telecommunications Equipment and Customer Premises Equipment by
Individuals with Disabilities, Final Report, Jan. 1997 (TAAC
Report).
19. TAAC Report, 6.3, at 27.
20. Id., 6.4, at 27-29.
21. Id., 6.5, at 29. Because the TAAC Report provided a broad
overview of accessibility to equipment that was "intended to
stand alone as a model for achieving such access," the report
covered issues that exceeded the Access Board's jurisdiction.
See Architectural and Transportation Barriers Compliance Board,
Telecommunications Act Accessibility Guidelines, Docket No. 97-1,
Notice of Proposed Rulemaking, 62 Fed. Reg. 19178 (36 C.F.R. Part
1193) (Apr. 18, 1997) (Access Board Notice). Consequently, the
Access Board Notice and the guidelines subsequently adopted by
the Access Board do not address such matters as the Committee's
proposal to require a manufacturer's declaration that it has
conformed with the statutory accessibility mandate. See TAAC
Report, 6.6, at 30-31.
22. Id., 6.7, at 31-34.
23. Id., 6.8, at 34.
24. Id., 1.3, at 3.
25. Id., 4.0, at 15.
26. Id., 5.2.1, at 20. The TAAC noted that "accessibility is
likely to be accomplished through product designs which emphasize
interface flexibility to maximize user configurability and
multiple, alternative and redundant modalities of input and
output." Id.
27. See supra note [7]. The guidelines are set out in Attachment
C hereto.
28. Access Board Order, 63 Fed. Reg. at 5620.
29. Id. at 5620-23, 5632. The specific capabilities itemized for
input functions are closely related to proposals made in the TAAC
Report, as are capabilities involved in output, display, and
control functions. See id.; TAAC Report, 5.3.1-5.3.2, at
20-23.
30. Access Board Order, 63 Fed. Reg. at 5620-21, 5637-40.
31. Id. at 5619, 5623-25.
32. Id. at 5624.
33. Appendix to 36 C.F.R. Part 1193 (Advisory Guidance). "This
appendix provides examples of strategies and notes to assist in
understanding the guidelines and are a source of ideas for
alternate strategies for achieving accessibility. These
strategies and notes are not mandatory." Access Board Order, 63
Fed. Reg. at 5633. In the Appendix, the Board also discusses
factors that might be used to evaluate what accessibility is
"readily achievable" on an interim basis, until the Commission
provides its own guidance. Id.
34. Id. at 5635.
35. Notice of Inquiry, 11 FCC Rcd at 19155 (para. 6).
36. Notice of Inquiry, 11 FCC Rcd at 19165 (para. 36) (quoting
Section 255(f) of the Communications Act, 47 U.S.C. 255(f)).
37. 47 U.S.C. 207.
38. 47 U.S.C. 208.
39. Notice of Inquiry, 11 FCC Rcd at 19166 (para. 37).
40. Id. at 19165-66 (para. 36).
41. Id. (citing a Conference Report statement that "[t]he
remedies available under the Communications Act, including the
provisions of sections 207 and 208, are available to enforce
compliance with the provisions of section 255."
Telecommunications Act of 1996, Conference Report, Report
104-230, 104th Congress, 2d Sess., Feb. 1, 1996, at 135).
42. Id. at 19155 (para. 7).
43. Id.
44. See BellSouth Comments at 4; Pacific Comments at 7; U S WEST
Comments at 4.
45. See United States v. Storer Broadcasting, 351 U.S. 192,
202-03 (1956).
46. 47 U.S.C. 154(i).
47. 47 U.S.C. 201(b).
48. 47 U.S.C. 303(r).
49. National Broadcasting v. United States, 319 U.S. 190, 219
(1943). See also FCC v. National Citizens Comm. for
Broadcasting, 436 U.S. 775, 793 (1978).
50. See Morton v. Ruiz, 415 U.S. 199, 231 (1974) ("The power of
an administrative agency to administer a congressionally created
. . . program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or
explicitly, by Congress."). See also Chevron v. Natural
Resources Defense Council, 467 U.S. 837, 843-44 (1984) (footnote
omitted):
If Congress has explicitly left a gap for the agency to fill,
there is an express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation.
Such legislative regulations are given controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the
statute. Sometimes the legislative delegation to an agency on a
particular question is implicit rather than explicit. In such a
case, a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the
administrator of an agency.
51. See, e.g., CEMA Comments at 13 & n.29; ITI Comments at 7;
SWBT Comments at 2.
52. See also Notice of Inquiry, 11 FCC Rcd at 19163 (para. 29)
(citing S. 652, 104th Cong., 1st Sess., 262(g)).
53. That sentence in Section 255(f) provides: "Nothing in this
section shall be construed to authorize any private right of
action to enforce any requirements of this section or any
regulation thereunder." 47 U.S.C.
255(f) (emphasis added). In our view, this language makes
clear that Congress anticipated the promulgation of implementing
regulations under this section.
54. See supra para. 28 and note [52].
55. 47 U.S.C. 255(e). In contrast, the ADA explicitly
provides that the Board's guidelines establish minimum
requirements for implementation by other agencies. See, e.g., 42
U.S.C. 12134(c), 12149(b). See also TIA Reply Comments at 7
(the Commission and the Access Board share coequal responsibility
for the guidelines because of "in conjunction with" phrase in
statutory language); BellSouth Comments at 3 (the Board has
primary responsibility for guidelines, and the Commission should
not usurp its authority); Omnipoint Comments at 11-14 (statute
requires a case-by-case approach, but from a policy perspective
it is important for the Commission to work closely with the Board
and establish early policy guidance).
56. See supra para. 28.
57. Access Board Order, 63 Fed. Reg. at 5609.
58. See Motorola Reply Comments at 3 (Commission's industry-wide
Section 255 enforcement authority requires it to extensively
review Board guidelines in order to assure their reasonableness,
as well as to coordinate actions with respect to service and
equipment industries).
59. See generally 5 U.S.C. 553(b)(3)(A); Aulenback, Inc. v.
Federal Highway Admin., 103 F.3d 156, 168-69 (D.C. Cir. 1997);
Telecommunications Research and Action Center v. FCC, 800 F.2d
1181 (D.C. Cir. 1986).
60. CEMA Comments at 16-17.
61. Id. at 17 (emphasis in original).
62. Id. at 16.
63. "The remedies available under the Communications Act,
including the provisions of sections 207 and 208, are available
to enforce compliance with the provisions of section 255." H.R.
Conf. Rep. No. 458, 104th Cong., 2d Sess., at 135 (1996), quoted
in CEMA Comments at 16 (emphasis supplied by CEMA).
64. CEMA Comments at 16 (emphasis in original).
65. Sections 207 and 208 provide for the recovery of damages from
common carriers, through either a Commission complaint process or
a civil lawsuit. See 47 U.S.C. 207, 208.
66. CEMA Comments at 16.
67. Id. Several equipment manufacturers similarly state that
private damages claims are limited to complaints against carriers
under Sections 207 and 208. Ericsson Comments at 8; Motorola
Comments at 6 n.5; Nortel Comments at 11; see also Microsoft
Comments at 34-35. AT&T agrees that the right of action created
by Section 255 supplements rights available solely against common
carriers under Sections 206-208, as asserted in the Notice of
Inquiry, but argues that this does not mandate the adoption of a
different set of procedural rules. AT&T Comments at 12-13.
68. Section 255(f) of the Communications Act, 47 U.S.C. 255(f).
69. For a discussion of remedies for violations of Section 255,
see infra para. 172.
70. NAD Comments at 32-33.
71. CTIA Reply at 6 nn. 9-10. CTIA contends that consumer
advocates have favored procedures that ensure private rights of
action, and asserts that Congress instead intended to limit
individuals to filing complaints with the Commission for
violations of Section 255. CTIA Reply at 5.
72. 47 U.S.C. 255, 251(a)(2). We note that, while these
statutory provisions apply only to telecommunications services,
equipment, and "network features, functions, or capabilities,"
there are other avenues of relief for persons seeking
accessibility in other contexts. For example, an employee whose
employer fails to provide accessible telecommunications equipment
to enable the employee to perform his or her job may seek relief
under the ADA.
73. See Sections 3(14), 3(29), 3(43), 3(44), 3(45), and 3(46) of
the Communications Act, 47 U.S.C.
153(14), 153(29), 153(43), 153(44), 153(45), 153(46).
74. 47 U.S.C. 153(43).
75. 47 U.S.C. 153(46).
76. 47 U.S.C. 153(20).
77. Enhanced services are defined in the Commission's rules as
"services, offered over common carrier transmission facilities
used in interstate communications, which employ computer
processing applications that act on the format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; provide the subscriber additional, different, or
restructured information; or involve subscriber interaction with
stored information." Section 64.702(a) of the Commission's
Rules, 47 C.F.R. 64.702(a).
78. Amendment of Section 64.702 of the Commission's Rules and
Regulations (Computer II), Docket No. 20828, Final Decision, 77
FCC 2d 384, 435 (1980), recon., 84 FCC 2d 50 (1980), further
recon., 88 FCC 2d 512 (1981), aff'd sub nom. Computer and
Communications Industry Ass'n v. FCC, 693 F.2d 198 (D.C. Cir.
1982), cert. denied, 461 U.S. 938 (1983).
79. See Implementation of the Non-Accounting Safeguards of
Sections 271 and 272 of the Communications Act of 1934, as
amended, CC Docket No. 96-149, First Report and Order and Further
Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21995 (1996)
(Non-Accounting Safeguards Order).
80. See Bell Operating Companies Joint Petition for Waiver of
Computer II Rules, Order, 10 FCC Rcd 13758, 13770-74, App. A
(Com. Car. Bur. 1995).
81. See Bell Operating Companies Joint Petition for Waiver of
Computer II Rules, Order, 10 FCC Rcd 1724 n.3 (Com. Car. Bur.
1995); Implementation of the Telecommunications Act of 1996:
Telemessaging, Electronic Publishing, and Alarm Monitoring
Services, CC Docket No. 96-152, Second Report and Order, 12 FCC
Rcd 3824 (1997).
82. See Bell Operating Companies Petitions for Forbearance from
the Application of Section 272 of the Communications Act of 1934,
as amended, to Certain Activities, CC Docket No. 96-149,
Memorandum Opinion and Order, 13 FCC Rcd 2627, 2638, 2656-57
(paras. 17, 60) (Com. Car. Bur. 1998).
83. See Non-Accounting Safeguards Order, 11 FCC Rcd at 21958.
84. See North American Telecommunications Association Petition
for Declaratory Ruling under Section 64.702 of the Commission's
Rules Regarding the Integration of Centrex, Enhanced Services,
and Customer Premises Equipment, ENF No. 84-2, Memorandum Opinion
and Order, 101 FCC 2d 349 (1985) (NATA Centrex Order), recon., 3
FCC Rcd 4385 (1988).
85. NATA Centrex Order, 101 FCC 2d at 359-61.
86. Id. at 358-61.
87. Id. at 359.
88. Id. at 360.
89. See Southwestern Bell Telephone Co., Petition for Waiver of
Section 69.4(b) of the Commission's Rules, Transmittal No. 1741,
Memorandum Opinion and Order, 5 FCC Rcd 3792, 3793 (Com. Car.
Bur. 1990).
90. See US West Communications, Inc. Petition for Computer III
Waiver, CC Docket No. 90-623, Memorandum Opinion and Order on
Reconsideration, 11 FCC Rcd 7997, 8004, 8006-07 (paras. 14, 22)
(Com. Car. Bur. 1996).
91. Establishment of a Funding Mechanism for Interstate Operator
Services for the Deaf, RM 8585, Memorandum Opinion and Order, 11
FCC Rcd 6808, 6817 (1996). The Commission ultimately declined to
establish a funding mechanism for recovery of the costs of
providing OSD. Id. at 6819-20.
92. Id. at 6817.
93. US West Communications, Inc. Petition for Computer III
Waiver, CC Docket No. 90-623, Order, 11 FCC Rcd 1195, 1199 (US
West Waiver Order) (Com. Car. Bur. 1995); NATA Centrex Order, 101
FCC 2d at 360.
94. US West Waiver Order, 11 FCC Rcd at 1199; NATA Centrex Order,
101 FCC 2d at 360-61.
95. See Pub. L. 105-119, 623, 111 Stat. 2440 (1997); see also
Common Carrier Bureau Seeks Comment for Report to Congress on
Universal Service under the Telecommunications Act of 1996, CC
Docket No. 96-45, Public Notice, 13 FCC Rcd 271 (1998).
96. Computer III Further Remand Proceedings: Bell Operating
Company Provision of Enhanced Services, CC Docket No. 95-20,
Further Notice of Proposed Rulemaking, 13 FCC Rcd 6040, 6066-67
(para. 41) (1998).
97. See, e.g., 47 U.S.C. 153(44) ("The term 'telecommunications
carrier' means any provider of telecommunications services . .
."); 47 U.S.C. 222(e) ("a telecommunications carrier that
provides telephone exchange service . . . in its capacity as a
provider of such service . . ."); 47 U.S.C. 225(c) ("Each
common carrier providing telephone voice transmission services
shall . . . provide . . . telecommunications relay
services . . .").
98. New Shorter Oxford English Dictionary 2393 (4th ed. 1993).
99. Cf. Application of Ameritech Michigan Pursuant to Section 271
of the Communications Act of 1934, as amended, to Provide
In-Region, Inter-LATA Services in Michigan, CC Docket No. 97-137,
Memorandum Opinion and Order, 12 FCC Rcd 20543, 20600-05 (1997)
(holding that a BOC "provides" a checklist item either by
actually furnishing the item or, if no competitor is actually
using the item, by making the checklist item available as both a
legal and a practical matter, where a different interpretation
would be contrary to congressional intent).
100. At infra paras. 75-80 we address what accessibility
obligations might attach to providers whose telecommunications
services are provided by the facilities of others.
101. 47 U.S.C. 255(c) (emphasis added).
102. This is consistent with the Access Board's approach to
manufacturers covered by Section 255. See infra paras. 52-54.
103. 47 U.S.C. 255(b).
104. 47 U.S.C. 153(45).
105. 47 U.S.C. 153(14).
106. See 36 C.F.R. 1193.3.
107. CPE may also include wireless handsets. See Petition for
Declaratory Ruling That GTE Airfone, GTE Railfone, and GTE
Mobilnet Are Not Subject to the Telephone Operator Consumer
Services Improvement Act of 1990, Declaratory Ruling, 8 FCC Rcd
6171, 6174 (para. 16) (Com. Car. Bur. 1993) (finding that the
definition of "premises" includes "locations" such as airplanes,
trains, and rental cars, despite the fact that they are mobile),
recon. pending.
108. Of course, as a practical matter the remoteness of
telecommunications equipment will generally mean less extensive
interaction with end users (if any), and therefore
correspondingly less need for accessibility features.
109. CCD Comments at 6; Inclusive Comments at 2 (modern
telecommunications consist of features and functionalities
provided inseparably by combinations of network equipment,
network services, and CPE); Trace Comments at 2 (unpaginated) (in
some cases service providers supply software for CPE user
interfaces); UCPA Comments at 5.
110. NCD Comments at 8-9.
111. Pacific Comments at 10.
112. See TIA Comments at 4.
113. Arkenstone Comments at 5; CAN Comments at 2-3; MATP Comments
at 2; Trace Comments at 8 (unpaginated).
114. AFB Comments at 7; Inclusive Comments at 3; ITI Comments at
9; Mulvany Comments at 2-3 (unpaginated); NCD Comments at 8.
115. Access Board Order, 63 Fed. Reg. at 5612.
116. See supra para. 46.
117. For example, unlicensed devices regulated under Part 15 of
the Commission's Rules may be used as part of a
telecommunications service, as where a wireless local area
network is interconnected with the public switched network and
offered to subscribers for a fee. See Amendment of the
Commission's Rules to Provide for Unlicensed NII/SUPERNet
Operations in the 5 GHz Frequency Range, ET Docket No. 96-102,
Report and Order, 12 FCC Rcd 1576 (1997).
118. Several commenters note that CPE is increasingly dependent
on software, and that convergence is blurring historical lines
between network functions and telecommunications appliances.
See, e.g., Mulvany Comments at 2-3 (unpaginated); AFB Reply
Comments at 10; MATP-TAP Reply Comments at 2; Netscape Reply
Comments at 10; Trace Reply Comments at 8-9; UCPA Reply Comments
at 8; WID Reply Comments at 5. Only Microsoft asserts that
Congress intended to exempt all software from the scope of CPE
covered by Section 255. Microsoft Comments at 10-11. Others
maintain instead that software should be subject to accessibility
requirements to the extent it provides telecommunications
functions. See, e.g., Ericsson Comments at 7-8; AFB Reply
Comments at 10-11; ASDC Reply Comments at 1-2; CEMA Reply
Comments at 2, 4; ITI Reply Comments at 2 n.2; MATP-TAP Comments
at 2-3; NAD Reply Comments at 19; Netscape Reply Comments at
10-11; Trace Reply Comments at 8; UCPA Reply Comments at 7-8; WID
Reply Comments at 5.
119. Access Board Order, 63 Fed. Reg. at 5613.
120. Section 3(45) of the Communications Act, 47 U.S.C.
153(45).
121. Section 3(14) of the Communications Act, 47 U.S.C. 3(14).
122. For example, we tentatively conclude that the requirement
that CPE products be accessible must be construed as extending to
the accessibility of components such as controls, displays, and
so forth, even though Section 255 does not expressly list the
types of components that it reaches. Otherwise, Section 255
would be meaningless.
123. See Notice of Inquiry, 11 FCC Rcd at 19157 (paras. 11-12).
124. AFB Comments at 7; Arkenstone Comments at 5; CAN Comments at
4; CCD Comments at 6; Ericsson Comments at 9-10; Lucent Comments
at 7-10; MATP Comments at 2; Microsoft Comments at 13; Motorola
Comments at 8; Mulvany Comments at 3 (unpaginated); NAD Comments
at 25-26; NCD Comments at 9; Nortel Comments at 7 (urging the
Commission to coordinate accessibility requirements with other
countries, to the extent possible); SHHH Comments at 6
(accessibility requirements established in the United States
could lead to harmonization of international requirements); TIA
Comments at 4-5; Trace Comments at 9-10 (unpaginated); UCPA
Comments at 6; Waldron Comments at 8, 11; ACB Reply Comments at
5; COR Reply Comments at 7-8; Gallaudet Reply Comments at 4;
MATP-TAP Comments at 15; Netscape Reply Comments at 17-18
(because CPE markets are increasingly international, U.S.
accessibility requirements will both protect Americans with
disabilities and promote universal design abroad, enhancing the
competitiveness of American industry). See also CAN Comments at
4 (nationality-based exemptions would give manufacturers an "easy
out" not to make their products accessible); Microsoft Comments
at 12-13; Motorola Comments at 8 (exempting foreign manufacturers
would make U.S. products less competitive).
125. See 36 C.F.R. 1193.3.
126. We note that all equipment marketed or sold in the United
States must meet all applicable technical and operational
requirements. See Part 2 of the Commission's Rules, Subpart K -
Importation of Devices Capable of Causing Harmful Interference,
Sections 2.1201-2.1207. 47 C.F.R. 2.1201-2.1207. See also
infra paras. 172-174.
127. Ericsson Comments at 10; Lucent Comments at 9-10; Microsoft
Comments at 13; Nortel Comments at 5.
128. AFB Comments at 7; CEMA Comments at 17; MATP Comments at 2;
NVRC Comments at 2; Pacific Comments at 13; Trace Comments at 10
(unpaginated); Waldron Comments at 8; Trace Reply Comments at
6-8.
129. AFB Comments at 7; CAN Comments at 5; CCD Comments at 7;
MATP Comments at 2; NCD Comments at 10; Trace Comments at 10-11
(unpaginated); UCPA Comments at 6; Waldron Comments at 8; ASDC
Reply Comments at 2.
130. AFB Comments at 7; CAN Comments at 5; Lucent Comments at
9-10; Trace Comments at 10-11 (unpaginated).
131. 36 C.F.R. 1193.3.
132. Access Board Order, 63 Fed. Reg. at 5613.
133. See infra paras. 75, 165.
134. See supra para. 8.
135. 47 U.S.C. 251(a)(2).
136. 47 U.S.C. 153(29).
137. See Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996, CC Docket No. 96-98, First
Report and Order, 11 FCC Rcd 15499, 16144-45, 16150 (paras.
1328-30, 1342) (1996), aff'd in part and vacated in part sub nom.
Iowa Utilities Board v. FCC, 109 F3d 418 (8th Cir. 1996), amended
on reh'g on other grounds, 120 F3d 753 (8th Cir. 1997), petition
for cert.granted sub nom. AT&T Corp. v. Iowa Utilities Bd., 118
S.Ct. 879 (1998).
138. See infra para. 74 regarding the pass-through of
accessibility information by telecommunications equipment and
CPE.
139. See Notice of Inquiry, 11 FCC Rcd at 19157 (para. 10).
140. CCD Comments at 15.
141. Pacific Comments at 12.
142. NAD Comments at 30.
143. To the extent network processes involve functional
interaction with consumers, they would be subject to either
Section 255(b) (in the case of equipment) or Section 255(c) (in
the case of service). See supra para. 49 and note [108].
144. Section 255 expressly defines "disability" and "readily
achievable" by reference to the ADA. 47 U.S.C.
255(a).
145. Section 255(a)(1) of the Communications Act, 47 U.S.C.
255(a)(1).
146. 42 U.S.C. 12102(a)(2).
147. See, e.g., CCD Comments at 7-9; Lucent Comments at 10-11;
Microsoft Comments at 17-18; Motorola Comments at 24; Pacific
Comments at 14-15; UCPA Comments at 7-9; ACB Reply Comments at 6;
Trace Reply Comments at 5-6. See also Waldron Comments at 9; ACB
Reply Comments at 6.
148. Access Board Order, 63 Fed. Reg. at 5608. By way of
example, hearing and vision disabilities may impede use of
traditional voice telephone service, the latter by obstructing
dialing and the use of visually displayed information. Examples
of mental impairments include inability to interact with
short-delay, automated answering services, and reading
disabilities that affect use of visual displays.
149. It should be noted, however, that we are not proposing to
require a showing of disability as a requirement for the filing
of a complaint under Section 255. See infra para. 148.
150. See supra para. 69 and note [148]. In evaluating the
accessibility of their offerings, firms will also find the
Board's accessibility guidelines especially useful, since they
relate particular disabilities to particular equipment functions.
See infra para. 74.
151. 47 U.S.C. 255(b), 255(c).
152. Notice of Inquiry, 11 FCC Rcd at 19161 (para. 21).
153. 36 C.F.R. 1193.3. The Access Board states that the
definition of "usable" is included "to convey the important point
that products which have been designed to be accessible are
usable only if an individual has adequate information on how to
operate the product." Access Board Order, 63 Fed. Reg. at 5616.
154. Section 1193.33 describes information, documentation, and
training measures; Section 1193.37 specifies pass-through of
information required for access; Section 1193.39 bars net
reductions in accessibility; Section 1193.41 describes accessible
input, control, and mechanical functions; and Section 1193.43
describes accessible output, display, and control functions. 36
C.F.R. 1193.33, 1193.37, 1193.39, 1193.41, 1193.43.
155. Whether we consider "usability" as a component of
"accessibility" or as a separate requirement is ultimately an
academic issue, as it does not affect our tentative conclusion
about what Section 255 requires. Our "unified" approach merely
renders it unnecessary to distinguish between "accessibility"
features and "usability" features.
156. 36 C.F.R. 1193.41.
157. 36 C.F.R. 1193.43.
158. 36 C.F.R. 1193.37.
159. See supra paras. 73-74.
160. See supra para. 72.
161. For example, the mounting of pay telephones at heights
accessible by persons in wheelchairs, or the number of TTYs in a
bank of pay telephones.
162. Notice of Inquiry, 11 FCC Rcd at 19161 (para. 21).
163. AT&T Comments at 10-11 & n.15; Microsoft Comments at 28; NCD
Comments at 18; Omnipoint Comments at 8-9; Trace Comments at 13.
164. MATP Comments at 4.
165. Mulvany Comments at 4 (unpaginated).
166. See Notice of Inquiry, 11 FCC Rcd at 19161 (para. 21).
Product accessibility is readily achievable for a manufacturer
only to the extent the manufacturer has control over the product.
167. See supra note [161].
168. Of course, in the unusual case of a design that precluded
installation at an accessible height, there might well be an
issue of whether the manufacturer is in compliance with Section
255.
169. 47 U.S.C. 255(d).
170. Notice of Inquiry, 11 FCC Rcd at 19162 (para. 25).
171. For example, NAD lists as examples of specialized CPE
currently in use, TTYs, flashing light signalers, volume
controls, caption decoders, tactile vibrating devices, artificial
larynxes, and FM or infrared assistive listening devices. NAD
characterizes as peripheral devices computer software, hardware,
modems, and keyboards. NAD states that some of the devices used
to access telecommunications are typically
telecommunications-related, while others are not thought of in
this sense. NAD Comments at 31. ASDC submits that specialized
CPE used by deaf and hard of hearing people includes listening
systems such as FM devices, volume controls, caption decoders,
TTYs, and flashing lights to indicate sound, for example, the
ringing of a phone. ASDC Reply Comments at 4.
172. 36 C.F.R. 1193.3.
173. Id.
174. Access Board Order, 63 Fed. Reg. at 5613, 5616.
175. The Food and Drug Administration (FDA) has jurisdiction over
hearing aids.
176. 47 U.S.C. 610.
177. Section 710(b)(1) of the Communications Act, 47 U.S.C.
610(b)(1).
178. 47 C.F.R. 68.4.
179. Notice of Inquiry, 11 FCC Rcd at 19162 (para. 25).
180. Arkenstone Comments at 9.
181. Waldron Comments at 15-16.
182. Trace Comments at 15-16 (unpaginated).
183. NCD Comments at 22-23.
184. Inclusive Comments at 8.
185. See supra para. 82.
186. See infra para. 174 regarding information clearinghouses.
187. See, e.g., NAD Reply Comments at 11-14; Siemens Reply
Comments at 6. See also SHHH Comments at 12 (unpaginated);
Winters Comments at 2-3.
188. 36 C.F.R. 1193.51.
189. We note that any equipment that has achieved internal
compatibility for purposes of Section 710 of the Act would also
appear to have achieved accessibility within the meaning of
Section 255. This would appear to be so because any such
equipment would be usable by a person with disabilities without
the need also to employ any peripheral device or specialized CPE.
Unless otherwise specified, therefore, we propose to use the term
"compatibility" in the sense that contemplates the use of
external apparatus to achieve access to telecommunications.
190. See infra para. 174.
191. Section 255(a)(2) of the Communications Act, 47 U.S.C.
255(a)(2).
192. 42 U.S.C. 12181(9).
193. Notice of Inquiry, 11 FCC Rcd at 19160 (para. 16).
194. For example, Ericsson lists nine factors that it contends
distinguish the telecommunications marketplace from entities or
facilities subject to the ADA context. Ericsson Comments at 7.
Pacific submits that while ADA cost factors can be applied to a
"particular facility" or "covered entity," in the
telecommunications context, there are additional factors and
ramifications that need to be considered for persons with
disabilities and the firms involved. Pacific Comments at 18-19.
Other parties point out that, while the ADA often involves
retrofitting existing structures, the accessibility requirement
of Section 255 applies to new products and services, and
therefore determinations of what is readily achievable must be
made at the design stage. NAD Comments at
23-24; NCD Comments at 12-13 (unpaginated); UCPA Reply Comments
at 9.
195. 36 C.F.R. 1193.3.
196. Access Board Order, 63 Fed. Reg. at 5633.
197. Access Board Notice, 62 Fed. Reg. at 19181.
198. We also note that the ADA factors do not appear to exclude
consideration of additional factors that may be relevant in
particular situations. Thus, even assuming arguendo that the ADA
factors were binding upon Section 255 determinations, we do not
believe they would preclude our consideration of
telecommunications-specific factors not enumerated in the ADA.
199. Feasibility also seems implicit in the first factor to be
considered in determining whether an accessibility solution under
the ADA is readily achievable: "the nature . . . of the action
needed . . . ." See supra para. 94.
200. Although existing accessibility solutions are, by
definition, feasible, we do not propose to determine that a
solution is infeasible simply because the solution has not yet
been found.
201. Access Board Order, 63 Fed. Reg. at 5615.
202. We would emphasize that Section 255 does not excuse
inaccessibility when accessibility entails expense; the test is
whether accessibility can be provided "without much difficulty or
expense." See supra para. 94. The purpose of the
telecommunications-specific "readily achievable" factors is to
guide a determination of whether accessibility is readily
achievable in the circumstances of each case.
203. See infra paras. 115-117. The more a provider can recover
the cost of providing an accessibility feature, the more likely
the feature can be provided "without much . . . expense." See
supra para. 94.
204. Notice of Inquiry, 11 FCC Rcd at 19160 (para. 17). Cost is
also a component of the first factor to be considered in
determining whether an accessibility solution under the ADA is
readily achievable: "the . . . cost of the action needed . . .
." 42 U.S.C. 12181(9). See supra para. 94.
205. See, e.g., Lucent Comments at 13; PCIA Comments at 5; CEMA
Reply Comments at 11, 12 & n.31.
206. Inclusive Comments at 4. See also NCD Comments at 14-15;
WID Reply Comments at 6 (arguing that cost of learning accessible
design is part of overall research and development spending).
207. Microsoft Comments at 26.
208. AFB Comments at 10.
209. These practicality considerations are similar to the second,
third, and fourth factors under the ADA. See supra para. 94.
210. Notice of Inquiry, 11 FCC Rcd at 19160-61 (para. 17-20).
211. ITI Comments at 12; Motorola Comments at 12; NCD Comments at
10; Pacific Comments at 17-18; TIA Comments at 6; Motorola Reply
Comments at 5, 9.
212. See, e.g., Motorola Comments at 13; AFB Reply Comments at
12; WID Reply Comments at 6.
213. Waldron Comments at 11. See also ACB Reply Comments at 7.
214. Access Board Order, 63 Fed. Reg. at 5633.
215. See Notice of Inquiry, 11 FCC Rcd at 19161 (para. 22). The
Notice of Inquiry also asked commenters to assess the extent to
which accessible services and equipment are currently available
or in development. The Commission appreciates the comments
submitted in response to this request, which provide both the
Commission and interested parties invaluable information for
better understanding and addressing the needs of consumers with
disabilities, industry's progress in meeting those needs, and
areas needing further accessibility improvements. These comments
are not discussed in this Notice except to the extent they bear
directly on issues that are addressed herein.
216. Trace Comments at 13-14.
217. Nortel Comments at 7-8.
218. Netscape Reply Comments at 7.
219. NCD Comments at 16. See also Inclusive Comments at 4;
Siemens Comments at 4 (contending that incremental burdens
resulting from new requirements may make a difference as to the
continued existence of some products and the competitiveness of
U.S. businesses in a global marketplace).
220. 36 C.F.R. 1193.39.
221. We note the frequency with which features envisioned as
limited to overcoming disabilities have found broader success,
based on their improved ease of use. Examples include telephone
amplifiers (useful in noisy areas), closed-captioning (for those
wanting to watch television, cable or videotapes either in noisy
environments or without creating noise), and hands-free dialing
(for motorists).
222. 36 C.F.R. 1193.39(a). The rule section further provides
that "[d]iscontinuation of a product shall not be prohibited."
36 C.F.R. 1193.39(b). See supra para. 112.
223. See supra para. 94 and note [202].
224. See supra para. 103.
225. Federal-State Joint Board on Universal Service, CC Docket
No. 96-45, Report and Order, 12 FCC Rcd 8776, 8803-04 (para. 53)
(1997) (Universal Service Order), as corrected by Federal-State
Joint Board on Universal Service, Errata, FCC 97-157, released
June 4, 1997, appeal pending in Texas Office of Public Utility
Counsel v. FCC, No. 97-60421 (5th Cir. 1997); Federal-State Joint
Board on Universal Service, CC Docket No. 96-45, Order on
Reconsideration, 12 FCC Rcd 10095 (1997); Changes to the Board of
Directors of the National Exchange Carrier Association,
Federal-State Joint Board on Universal Service, CC Docket Nos.
97-21, 96-45, Report and Order and Second Order on
Reconsideration, 12 FCC Rcd 18400 (1997), as corrected by
Federal-State Joint Board on Universal Service, CC Docket No.
96-45, Errata, 12 FCC Rcd 22493 (1997); Changes to the Board of
Directors of the National Exchange Carrier Association,
Federal-State Joint Board on Universal Service, CC Docket Nos.
97-21, 96-45, Order on Reconsideration, Second Report and Order,
and Further Notice of Proposed Rulemaking, 12 FCC Rcd 12437
(1997); Federal-State Joint Board on Universal Service, CC Docket
No. 96-45, Third Report and Order, 12 FCC Rcd 22485 (1997), as
corrected by Federal-State Joint Board on Universal Service, CC
Docket Nos. 96-45 and 97-160, Erratum, released Oct. 15, 1997;
Changes to the Board of Directors of the National Exchange
Carrier Association, Federal-State Joint Board on Universal
Service, CC Docket Nos. 97-21, 96-45, Second Order on
Reconsideration in CC Docket 97-21, 12 FCC Rcd 22423 (1997);
Federal-State Joint Board on Universal Service, CC Docket No.
96-45, Third Order on Reconsideration, 12 FCC Rcd 22801 (1997);
Federal-State Joint Board on Universal Service, Access Charge
Reform, Price Cap Performance Review for Local Exchange Carriers,
Transport Rate Structure and Pricing, End User Common Line
Charge, CC Docket Nos. 96-45, 96-262, 94-1, 91-213, 95-72, Fourth
Order on Reconsideration, FCC 97-420, released Dec. 30, 1997, as
corrected by Federal-State Joint Board on Universal Service, CC
Docket Nos. 96-45, 96-262, 94-1, 91-213, 95-72, Errata, 13 FCC
Rcd 2372 (1998).
226. We believe that our proposed definition of product line (see
infra paras. 168-170) addresses the concern of how to prevent all
accessibility features from being incorporated into only one
high-end product.
227. These questions arise in part due to the ADA's distinction
between modification of existing structures, where accessibility
must be provided if "readily achievable," and construction of new
structures, which must be accessible unless "structurally
impracticable." 42 U.S.C. 12183.
228. With regard to the rapid introduction of new technology and
resulting short-term product and service cycles, for example,
commenters contend there is a significant impact on the extent of
the obligations of providers and manufacturers under Section 255
that would differ from those in the ADA context. See WSAD Reply
Comments at 6.
229. AFB and UCPA assert that Section 255 is different because it
applies to the design, development, and fabrication of equipment
and the implementation of services. AFB Comments at 8-9; UCPA
Reply Comments at 9. UCPA emphasizes that this is a critical
conceptual difference. UCPA Reply Comments at 9. See also NAD
Comments at 23-24.
230. NAD Comments at 24; NCD Comments at 13. See also AT&T
Comments at 6 & n.10; Motorola Reply Comments at 11 (emphasis
should be on more cost-effective initial design process rather
than retrofitting, which may not be readily achievable); PCIA
Reply Comments at 8; WID Reply Comments at 6.
231. Access Board Order, 63 Fed. Reg. at 5612.
232. 36 C.F.R. 1193.39. See supra para. 114.
233. This is a major reason why our implementation proposals (see
infra paras. 124-174) aim to encourage the consideration of
disability issues at the front end of the development and design
process, and on an ongoing basis throughout the process.
234. Gallaudet Reply Comments at 3; ITI Reply Comments at 5-6;
TIA Reply Comments at 13-14. See also Microsoft Comments at 9.
235. Trace Reply Comments at 4.
236. Access Board Order, 63 Fed. Reg. at 5612.
237. CCD and MATP assert that cost review should consider
indirect benefits, such as productivity gains and cost savings
for persons with disabilities and society when more expensive
accommodations can be replaced, and the benefits of employing
persons with disabilities rather than public sector support. CCD
Comments at 11; MATP Comments at 3. See also WID Reply Comments
at 6. Others argue that the compliance standard should not
consider the value of accessible products to persons without
disabilities, or give credit on some larger "societal balance
sheet." TIA Reply Comments at 3 n.3.
238. Further, we see no clear analogy to such a factor in the ADA
factors.
239. See, e.g., CCD Comments at 14-15; Pacific Comments at 11-12;
UCPA Comments at 5.
240. See generally NAD Comments at 30-31.
241. See, e.g., Pacific Comments at 17. Arkenstone asserts that
software adaptations for CPE involve minimal-expense solutions in
many instances. Arkenstone Comments at 7.
242. See infra para. 128.
243. See infra paras. 144-171.
244. TAAC Report, 6.7.4.1, 6.7.4.2, at 32.
245. See Section 1.1830 of the Commission's Rules, 47 C.F.R.
1.1830.
246. See infra para. 174 for other possible public information
measures.
247. For example, lists of new accessible product offerings.
248. For example, we would generally have to translate a Braille
complaint or listen to an audio cassette before determining its
appropriate handling.
249. See infra paras. 162-171 for a discussion of the kinds of
efforts we would credit in resolving an accessibility dispute.
250. See infra paras. 162-171.
251. See supra para. 129.
252. See Section 255(f) of the Communications Act, 47 U.S.C.
255(f).
253. Section 1.41 of the Commission's Rules, 47 C.F.R. 1.41,
provides that: "Except where formal procedures are required
under the provisions of this chapter, requests for action may be
submitted informally. Requests should set forth clearly and
concisely the facts relied upon, the relief sought, the statutory
and/or regulatory provisions (if any) pursuant to which relief is
sought, and the interest of the person submitting the request."
254. E.g., 47 C.F.R. Part 1, Subpart E (common carriers); 47
C.F.R. Part 1, Subpart J (pole attachments); 47 C.F.R.
1.1313(b) (environmental matters); 47 C.F.R. 25.154 (satellite
communications).
255. See Sections 1.711 and 1.720-1.736 of the Commission's
Rules, 47 C.F.R. 1.711, 1.720-1.736. These rules are set out
in Appendix B hereto.
0. See Sections 1.711 through 1.718 of the Commission's Rules, 47
C.F.R. 1.711-1.718. These rules are set out in Appendix B
hereto.
1. The existing common carrier formal process is generally
selected only when disputes are between parties willing to assume
this burden, such as carriers or large customers.
2. The Commission's investigative tools are based on Section 4(i)
of the Communications Act. 47 U.S.C. 154(i). In practice, we
rely heavily on written requests for information and documents,
supplemented when necessary by equipment tests and on-site
inspections.
3. See Notice of Inquiry, 11 FCC Rcd at 19155 (para. 7), citing
Sections 4(i), 201, 303(b), and 303(r) of the Communications Act,
47 U.S.C. 154(i), 201, 303(b), 303(r). See also Section 403
of the Communications Act, 47 U.S.C. 403, which gives the
Commission broad discretion to enforce Communications Act
requirements even in the absence of a complaint.
4. For example, a complainant may wish to invoke formal complaint
processes in order to expend its own resources in taking
advantage of discovery, deposition, and other adjudicatory
complaint rules in bringing a complaint against a covered entity
under Section 255.
5. "Standing" refers to a complainant's direct interest in the
matter that is the subject of the complaint.
6. 47 U.S.C. 415(b).
7. Section 1.45(a) of the Commission's Rules, 47 C.F.R.
1.45(a); see also Section 1.4 of the Commission's Rules, 47
C.F.R. 1.4.
8. See supra para. 142.
9. The filing date of the answer implicating another manufacturer
or service provider would be considered the date of the complaint
with respect to that entity, for purposes of both the fast-track
and the dispute resolution processes.
10. Sections 1.45(b) and 1.45(c) of the Commission's Rules, 47
C.F.R. 1.45(b), 1.45(c).
11. This issue is to some extent interrelated with our request
for comment on whether a respondent should provide a copy of its
fast-track report to the complainant. See supra para. 139.
12. See, e.g., Sections 0.457(d), 0.457(g), and 0.459 of the
Commission's Rules, 47 C.F.R. 0.457(d), 0.457(g), 0.459. See
also Section 1.731 of the Commission's Rules, 47 C.F.R. 1.731.
See also Examination of Current Policy Concerning Treatment of
Confidential Information Submitted to the Commission, GC Docket
No. 96-55, Notice of Inquiry and Notice of Proposed Rulemaking,
11 FCC Rcd 12406 (1996) (initiating a proceeding to analyze
Commission practices and policies concerning treatment of
competitively sensitive information that has been provided to the
Commission).
13. As noted previously, we would not impose formal dispute
resolution procedures on a complainant that had not requested
them. See supra para. 147.
14. 47 C.F.R. 1.720-1.736. See Appendix B hereto.
15. Sections 1.717 and 1.718 of the Commission's Rules, 47 C.F.R.
1.717, 1.718.
16. See supra para. 147.
17. See 47 C.F.R. 1.721(a)(5); Implementation of the
Telecommunications Act of 1996: Amendment of Rules Governing
Procedures to Be Followed When Formal Complaints Are Filed
Against Common Carriers, CC Docket No. 96-238, Report and Order,
12 FCC Rcd 22497, 22534 (paras. 81-82) (1997) (Complaint
Streamlining Order). In the Complaint Streamlining Order, the
Commission revised its Section 208 formal complaint resolution
procedures to implement the 1996 Act requirement for the
accelerated resolution of certain complaints, and otherwise to
improve procedures governing complaints of unlawful conduct by
telecommunications carriers.
18. Section 1.735(a) of the Commission's Rules, 47 C.F.R.
1.735(a).
19. Section 1.723 of the Commission's Rules, 47 C.F.R. 1.723.
20. Section 8(g) of the Communications Act, 47 U.S.C. 158(g).
This fee is presently $150. Section 1.1105 of the Commission's
Rules, 47 C.F.R. 1.1105.
21. Section 8(d)(2) of the Communications Act, 47 U.S.C.
158(d)(2).
22. See 47 U.S.C. 208(b)(1).
23. See Complaint Streamlining Order, 12 FCC Rcd at 22513-14
(para. 37). Specifically, the Commission noted that the deadline
applies to any complaint about the lawfulness of matters included
in tariffs filed with the Commission, and those matters that
would have been included in tariffs but for the Commission's
forbearance from tariff regulation. Id.
24. Pub. L. 101-552, 104 Stat. 2736 (1990), codified at 5 U.S.C.
571-584. The ADRA was reauthorized and amended by the
Administrative Dispute Resolution Act of 1996, Pub. L. 104-320,
110 Stat. 3870 (1996).
25. 5 U.S.C. 582(b).
26. Section 1.18 of the Commission's Rules, 47 C.F.R. 1.18.
See Complaint Streamlining Order.
27. Use of Alternative Dispute Resolution Procedures in
Commission Proceedings and Proceedings in which the Commission is
a Party, GC Docket No. 91-119, Initial Policy Statement and
Order, 6 FCC Rcd 5669 (1991) (ADR Initial Policy Statement). See
also Use of Alternative Dispute Resolution Procedures in
Commission Proceedings and Proceedings in which the Commission is
a Party, GC Docket No. 91-119, Memorandum Opinion and Order, 7
FCC Rcd 4679 (1992).
28. See supra para. 154.
29. The ADRA defines a neutral as "an individual who, with
respect to an issue in controversy, functions specifically to aid
the parties in resolving the controversy." 5 U.S.C. 571(9).
See ADR Initial Policy Statement, 6 FCC Rcd at 5671 (para. 21).
30. 47 C.F.R. 1.1801-1.870; 29 U.S.C. 794.
31. Access Board Order, 63 Fed. Reg. at 5609.
32. TAAC Report, 6.7.5, at 33.
33. "An agency may use a dispute resolution proceeding for the
resolution of an issue in controversy that relates to an
administrative program, if the parties agree to such proceeding."
5 U.S.C. 582(a). "'[D]ispute resolution proceeding' means any
process in which an alternative means of dispute resolution is
used to resolve an issue in controversy in which a neutral is
appointed and specified parties participate." 5 U.S.C. 581(6).
34. We note again that we are using the term "accessible" as a
shorthand reference to the phrases "accessible to and usable by"
and "compatible with," as appropriate. See supra note [2].
35. See Section 403 of the Communications Act, 47 U.S.C. 403.
36. See supra paras. 94-123.
37. 47 U.S.C. 255(b), 255(c).
38. For example, even if an accessibility solution exists, its
incorporation into a particular product may not be readily
achievable for a given firm. See Access Board Order, 63 Fed.
Reg. at 5614-15 (discussing the definition of "readily
achievable").
39. See supra paras. 100-123.
40. An assessment with respect to the product line would be
appropriate if (1) the products in the product line have similar
features, functions, and prices; and (2) a product line approach
increases accessibility. See infra paras. 168-170.
41. See supra note [33]. For example, to the extent it is not
readily achievable for small companies to conduct outreach
efforts, we would look favorably on their participation in
outreach undertaken through consortia or trade associations.
42. To note just one example, the Board defines CPE accessibility
as including access to user guides and product support, where
readily achievable. 36 C.F.R. 1193.33. Such information is
equally applicable to telecommunications services.
43. See, e.g., CEMA Comments at 9, 18; Lucent Comments at 14-15;
MATP Comments at 4; Microsoft Comments at 19, 28-29; NCD Comments
at 20; Nortel Comments at 6; Omnipoint Comments at 9; SHHH
Comments at 6-7 (unpaginated); TIA Comments at 7; Trace Comments
at 13-14 (unpaginated); AFB Reply Comments at 8, 9; CEMA Reply
Comments at 14; Motorola Reply Comments at 5; NAD Reply Comments
at 16; Siemens Reply Comments at 7-9; TIA Reply Comments at
10-11; Trace Reply Comments at 4-5, 10-11; Waldron Reply Comments
at 5.
44. Access Board Order, 63 Fed. Reg. at 5611.
45. Such decisions involve not only accessibility features, but
other features as well. "The Board [acknowledges] that it may
not be readily achievable to make every product accessible or
compatible. Depending on the design, technology, or several
other factors, it may be determined that providing accessibility
to all products in a product line is not readily achievable."
Id. at 5611. As a further complication, this decision-making
process carries its own costs, which can thus further limit what
accessibility features are readily achievable.
46. We tentatively conclude that we would consider products
functionally similar if they provided similar features and
functions, and were close in price.
47. In this proceeding we are considering primarily complaints
brought under Section 255. As we discuss supra para. 33, we
believe that accessibility complaints against common carriers may
also be brought under Section 208.
48. 47 U.S.C. 503(b)(1)(B).
49. 47 U.S.C. 312.
50. Id.
51. See supra para. 33.
52. Information collection could include data regarding company
contact points (see supra paras. 132-134) or about products that
are or are not subject to Section 255.
53. 47 C.F.R. 2.901-2.1093.
54. 47 C.F.R. 2.1201-2.1207.
55. 47 U.S.C. 307.
56. 47 C.F.R. 1.701-1.825.
57. See Sections 1.711 and 1.720-1.736 of the Commission's Rules,
47 C.F.R. 1.711, 1.720-1.736. See Appendix B hereto.
58. We note in this regard the Access Board's intention to
prepare and periodically update a market monitoring report. See
Access Board Order, 63 Fed. Reg. at 5610.
59. For example, industry might explore the feasibility of a
program similar to the Underwriters Laboratories or Good
Housekeeping seal programs.
60. With respect to standards setting, we invite attention to
Section 273(d) of the Act, 47 U.S.C. 273(d), and seek comment
on its potential impact on such efforts.
61. See supra para. 8.
62. 47 C.F.R. 1.41.
63. See, e.g., Sections 1.45-1.52 of the Commission's Rules, 47
C.F.R. 1.45-1.52.
64. See 47 C.F.R. 1.711 (common carrier complaints generally),
1.716-1.718 (informal complaints), 1.720-1.736 (formal
complaints).
65. See SWBT Comments at 2; USTA Comments at 2; AT&T Reply
Comments at 5-6.
66. 5 U.S.C. 603.
67. 5 U.S.C. 603(a).
68. 44 U.S.C. 3506(c)(2).
69. See generally Sections 1.1202, 1.1203, and 1.1206(a) of the
Commission's Rules, 47 C.F.R. 1.1202, 1.1203, 1.1206(a).
70. 47 C.F.R. 1.415, 1.419.
1. 5 U.S.C. 601-612. The RFA has been amended by the Contract
with America Advancement Act of 1996, Pub. L. No. 104-121, 110
Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
2. See Notice at para. 184.
3. See 5 U.S.C. 603(a).
4. See id.
5. Pub. L. 104-104, 110 Stat. 56 (1996) (1996 Act).
6. See Notice at paras. 44-46.
7. See id. at paras. 54-56.
8. 5 U.S.C. 603(b)(3).
9. Id., 601(6).
10. 5 U.S.C. 601(3) (incorporating by reference the definition
of "small business concern" in 15 U.S.C.
632). Pursuant to the RFA, the statutory definition of a small
business applies "unless an agency, after consultation with the
Office of Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities
of the agency and publishes such definition(s) in the Federal
Register." 5 U.S.C. 601(3).
11. Small Business Act, 15 U.S.C. 632 (1996).
12. 5 U.S.C. 601(4).
13. 1992 Economic Census, U.S. Bureau of the Census, Table 6
(special tabulation of data under contract to Office of Advocacy
of the U.S. Small Business Administration).
14. See Notice at paras. 81-85.
15. See infra Section C.3.b.(1).
16. Federal Communications Commission, Common Carrier Bureau,
Industry Analysis Division, Carrier Locator: Interstate Service
Proiders, Figure 1 (Types of Interstate Service Providers) (Nov.
1997) (TRS Data).
17. U.S. Department of Commerce, Bureau of the Census, 1992
Census of Transportation, Communications, and Utilities:
Establishment and Firm Size, at Firm Size 1-123 (1995) (1992
Census).
18. 13 C.F.R. 121.201 (SIC 4813).
19. TRS Data.
20. See Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, CC Docket No. 96-98, First Report
and Order, 11 FCC Rcd 15499, 16144-45, 16150 (paras. 1328-30,
1342) (1996), aff'd in part and vacated in part sub nom. Iowa
Utilities Board v. FCC, 109 F3d 418 (8th Cir. 1996), amended on
reh'g on other grounds, 120 F3d 753 (8th Cir. 1997), petition for
cert.granted sub nom. AT&T Corp. v. Iowa Utilities Bd., 118 S.Ct.
879 (1998).
21. See id. at 16150 (para. 1342).
22. TRS Data.
23. Id.
24. Id.
25. Id.
26. Id.
27. 13 C.F.R. 120.21 (SIC 4899). See also FCC News Release,
"Broadcast Station Totals as of December 31, 1997," released Jan.
23, 1998.
28. Economic Census Industry and Enterprise Receipts Size Report,
Table 2D, SIC 4899 (U.S. Bureau of the Census data under contract
to the Office of Advocacy of the U.S. Small Business
Administration). The amount of $10 million was used to estimate
the number of small business establishments because there was no
Census category closer to $11 million. Thus, the number is as
accurate as it is possible to calculate with the available
information.
29. See Assessment and Collection of Regulatory Fees for Fiscal
Year 1997, MD Docket No. 96-186, Notice of Proposed Rulemaking,
12 FCC Rcd 7168, 7197 (Att. A, Initial Regulatory Flexibility
Analysis) (1997).
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. 13 C.F.R. 120.21 (SIC 4899).
37. 13 C.F.R. 121.201 (SIC 4812).
38. U.S. Small Business Administration 1992 Economic Census
Employment Report, Bureau of the Census, U.S. Department of
Commerce, SIC Code 4812 (radiotelephone communications industry
data adopted by the SBA Office of Advocacy).
39. U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities,
UC92-S-1, Subject Series, Establishment and Firm Size, Table 5,
Employment Size of Firms: 1992, SIC 4812 (issued May 1995).
40. 47 C.F.R. 24.720(b).
41. See Implementation of Section 309(j) of the Communications
Act - Competitive Bidding, PP Docket No. 93-253, Fifth Report and
Order, 9 FCC Rcd 5532, 5581-84 (1994).
42. 47 C.F.R. 90.814(b)(1).
43. See Amendment of Parts 2 and 90 of the Commission's Rules to
Provide for the Use of 200 Channels Outside the Designated Filing
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to
the Specialized Mobile Radio Pool, PR Docket No. 89-553, Second
Order on Reconsideration and Seventh Report and Order, 11 FCC Rcd
2639, 2693-2702 (1995); Amendment of Part 90 of the Commission's
Rules to Facilitate Future Development of SMR Systems in the 800
MHz Frequency Band, PR Docket No. 93-144, GN Docket No. 93-252,
PP Docket No. 93-253, First Report and Order, Eighth Report and
Order, and Second Further Notice of Proposed Rulemaking, 11 FCC
Rcd 1463 (1995).
44. See Amendment of Part 90 of the Commission's Rules to Provide
for the Use of the 220-222 MHz Band by the Private Land Mobile
Radio Service, PR Docket No. 89-552, GN Docket No. 93-252, PP
Docket No. 93-253, Third Report and Order, Fifth Notice of
Proposed Rulemaking, 12 FCC Rcd 10943 (1997) at 11095 (220 MHz
Third Report and Order).
45. Public Notice, "FCC Announces Delay of 220 MHz Service
Auction," DA 98-526, released March 17, 1998.
46. Id.
47. 13 C.F.R. 121.201 (SIC 4812).
48. 1992 Economic Census Employment Report, Bureau of the Census,
U.S. Department of Commerce, Table 3, SIC Code 4812 (industry
data adapted by the Office of Advocacy for the U.S. Small
Business Administration).
49. U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities,
UC92-S-1, Subject Series, Establishment and Firm Size, Table 5,
Employment Size of Firms; 1992, SIC 4812 (issued May 1995).
50. 47 C.F.R. 20.7(c).
51. 47 U.S.C. 153(27), 332.
52. 47 C.F.R. 20.7(c).
53. TRS Data.
54. 13 CFR 121.201 (SIC 4812).
55. TRS Data.
56. 13 C.F.R. 121.201 (SIC 4812).
57. See Section 22.99 of the Commission's Rules, 47 C.F.R.
22.99.
58. 13 C.F.R. 121.201 (SIC 4812).
59. Rulemaking to Amend Parts 1, 2, 21, and 25 of the
Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency
Band, to Establish Rules and Policies for Local Multipoint
Distribution Service and for Fixed Satellite Services, CC Docket
No. 92-297, Second Report and Order, Order on Reconsideration,
and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 12545 (1997)
(LMDS Order).
60. See LMDS Order, 12 FCC Rcd at 12690 (para. 348).
61. Id.
62. BETRS is defined in Sections 22.757 and 22.759 of the
Commission's Rules, 47 C.F.R. 22.757, 22.759.
63. 13 C.F.R. 121.201 (SIC 4812).
64. Id.
65. U.S. Small Business Administration 1992 Economic Census
Employment Report, Bureau of the Census, U.S. Department of
Commerce, SIC 4812 (radiotelephone communications industry data
adopted by the SBA Office of Advocacy).
66. U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities,
UC92-S-1, Subject Series, Establishment and Firm Size, Table 5,
Employment Size of Firms: 1992, SIC 4812 (issued May 1995).
67. Amendment of the Commission's Rules Regarding the 37.0-38.6
GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, Notice of
Proposed Rulemaking and Order, 11 FCC Rcd 4930, 4971-72 (paras.
87-88) (1996) (39 GHz Band NPRM and Order).
68. Amendment of the Commission's Rules Regarding the 37.0-38.6
GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, Report and
Order and Second Notice of Proposed Rulemaking, at 18677-79 (App.
B, Regulatory Flexibility Analysis) (1997).
69. See Subpart J of Part 2 of the Commission Rules, 47 C.F.R.
2.901-2.1093.
70. Implementation of Section 255 of the Telecommunications Act
of 1996: Access to Telecommunications Services,
Telecommunications Equipment, and Customer Premises Equipment by
Persons with Disabilities, WT Docket No. 96-198, Notice of
Inquiry, 11 FCC Rcd 19152, 19163 (para. 7) (1996) (Notice of
Inquiry).
71. See Notice at paras. 164-166.
72. See Notice at Section IV.B.5.b (paras. 100-123).
73. See Notice at Section V.B (paras. 126-143).
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