The blind community has soundly rejected ATM access through cellular
telephones in objections to a proposed settlement agreement.  Late last
year, the federally funded Disability Law Project of Pennsylvania, the
litigation arm of Pennsylvania protection and Advocacy, tentatively
settled a lawsuit with PNC Bank filed on behalf of two blind persons,
Mark Senk and Chris Hunzinker.  In announcing the settlement, The Deputy
Director of the Disability Law Project, mark Murphy, told the Pittsburgh
Tribune Review on January 5 that cell phones were "meaningful access to
ATM machines for visually impaired individuals."  The bank has more than
2,000 ATMs throughout the country with branches in the mid-Atlantic
states.  Other financial service companies use the PNC ATM network as
well.  Customers of America's second largest online brokerage, Fidelity
Investments, use PNC debit cards to access their accounts and PNC ATMs to
obtain cash without service fees.

The purported solution to access this vast ATM network goes something
like this.  The blind end user takes the cell phone (whether his or her
own or one issued by PNC) to a PNC ATM and calls the PNC "Access Line."
The PNC customer service representative at the other end of the call is
then supposed to walk the user through the ATM transactions, even though
the customer service representative cannot see all the information that
is actually appearing on the ATM screen.  That is because no ATM network
at this time has the capacity to allow monitoring of machine functions or
viewing of screen images in real time.  Instead, the representative
simulates the transaction using screen images on the hard disk of a
personal computer with the blind user, being able to read most, but not
all, of the machine prompts and messages.

Unfortunately, it works great in theory but not in practice and lengthy
processing of tasks and botched transactions were regular occurrences for
users.  The lawsuit is coming to a close.  On October 15, objections to
the settlement were due and blind leaders and organizations, including
the American Council of the Blind, National Federation of the Blind,
American Foundation for the Blind, leaders of visually impaired computer
user groups, and attorneys and claimants in the other talking ATM cases
filed strenuous objections to the settlement.  Plaintiffs in the case and
the taxpayer-supported Disability Law Project are still dithering on what
to do and whether cell phones provide "meaningful access" to ATMs for
blind persons, as they claim.  A final court hearing is set for December
14 in Pittsburgh where U.S. District Court Judge Donetta Ambrose will
make a final decision.  If the settlement is approved, thanks to the help
of our tax dollars, it will be the only court decision anywhere regarding
ATM access for blind persons and PNC will be the only bank in the United
States, if not the world, to use wireless telephones to provide ATM
access to the blind.  Banks would use the court-approved settlement as
leverage to force upon the blind a cheaper and much inferior ATM access
approach rather than adopt the highly superior and more expensive access
solution of talking ATMs.  Below are my objections to the settlement
filed with the court on October 12.  The other objectors made filings
very similar to this one.  It should be noted that the taxpayer-funded
organization sponsoring the attorneys in this case, Pennsylvania
Protection and Advocacy, has no policy or process of surveying or
engaging national blindness and disability leaders and organizations in
class action and similar cases that would significantly impact policy,
laws or accessibility standards throughout the country.  This is also the
situation with the National Association of Protection and Advocacy
Systems, which provides no guidance or recommendation to its members in
determining a fair settlement acceptable to the various disability
communities involved.  Attorneys are empowered by our tax dollars to sue
people which in the end results in limited and restricted accessibility
for all of us.  They do this without so much as contacting or meeting
with the disability leaders and groups who would gladly share their
expertise about the issues involved and the consensus of the community.
Such an approach happened here.  It should also be stated that the
Disability Law Project, is also suing Mellon Bank regarding ATM access
and the city of Philadelphia regarding access to atm-like voting
machines.  These cases have not been resolved.  I am pleased to report
that the Disability law project has entered into a pilot agreement with
America's fifth biggest bank, First union, for about 100 talking ATM
machines by the summer of 2002.  We can only hope that the message of
talking ATM access and the expectations of blind persons has been
received from the blind taxpayers that pay the salaries of these
"disability advocates" and that things are changing.

Kelly


Objections to Proposed Class Action Settlement
Christine Hunsinger, et al. v. PNC Bank, N.A. et al.
Civil Action No. 99-867
U.S. District Court for the Western District of Pennsylvania

Submitted by:
Kelly Pierce
October 10, 2001

This filing is in objection to the PNC settlement.  This class action
settlement involved plaintiffs Christine Hunsinger and Mark Senk and PNC
Bank, N.A. and PNC Brokerage Corp., together with PNC Bank, Delaware, PNC
Advisors, N.A., J.J.B. Hilliard, W.L. Lyons, Inc. and Hilliard Lyons
Trust Company (collectively, "PNC").  The purported settlement
established an "ATM Access Program" under which PNC has provided, and
will continue to provide Persons with Vision Impairments a "Wireless
Telephone" which is defined in the agreement as "a limited use cellular
telephone, digital telephone or similar wireless transmission system
selected in the reasonable discretion of PNC and preprogrammed to dial
only the PNC Access Line and "911."  The idea is for the blind end user
to take the cell phone to a PNC ATM and call the PNC "Access Line."  The
PNC customer service representative at the other end of the call is then
supposed to walk the user through the ATM transactions, even though the
customer service representative cannot see all the information that is
actually appearing on the ATM screen.  That is because no ATM network at
this time has the capacity to allow monitoring of machine functions or
viewing of screen images in real time.  Instead, the representative
simulates the transaction using screen images on the hard disk of a
personal computer with the blind user, being able to read most, but not
all, of the machine prompts and messages.

I offer the court the perspective of blind end users.  I myself have
attempted to access an ATM through the PNC wireless telephone program and
a talking ATM.  I am the co-founder of the largest assistive technology
user group in the United States, Digit-Eyes:  The Chicago Blind Computer
User Network.  I have a PNC debit card through fidelity Investments that
allows me to access funds in my brokerage account at no charge when I use
a PNC ATM.  I have a bank account with Bank One, which is America's sixth
largest bank with more than 1,800 branches and nearly 6,000 automatic
teller machines throughout the United States.  I am a claimant in
structured negotiations with Bank One regarding ATM access.  I am being
represented in these negotiations by attorneys Linda Dardarian and Lainey
Feingold and the Oakland law firm of Saperstein, Goldstein, Demchak, and
Baller.  They are also filing objections with the court on my behalf and
making particular legal and technical arguments not contained in these
objections.  Our efforts so far have resulted in a binding agreement for
the bank to pilot 130 talking ATMs.  All of these machines will be
installed by October 31, including machines in Chicago where I live.

The proposed settlement regarding Talking ATMs is inadequate, unfair, and
obsolete and must be rejected by the court in light of experience gained
since America's first talking ATM was installed in San Francisco on
November 1, 1999.  After trying and evaluating the PNC wireless telephone
ATM program, it has become clear that talking ATMs are the only effective
accessibility solution for the blind.  That is why I am opposing this
settlement.  As shown in the attached log, registering for the PNC ATM
access program and obtaining a telephone to access a machine required
three attempts and took nearly two months from July 13 to September 11.
When I conduct transactions using PNC's cellular telephone, the voice of
the representative regularly becomes garbled and consequently the time
expires on the machine to finish the transaction, requiring frequent
repeat of prompts or the need to fully cancel the transaction and begin
new.  This means it can take 10 minutes or longer simply to withdraw cash
when a talking ATM takes only a couple of minutes.  The voice guidance
from a talking ATM is never garbled or misunderstood.  The directions are
always accurate and allow me to complete a transaction without problem.

In evaluating the purported solution, I used the telephone in a total of
five locations in two vertical shopping malls on North Michigan Avenue in
Chicago.  Yet, PNC has more than 2,000 machines spread throughout the
United States.  Neither plaintiffs nor PNC has described how those not in
the coverage area of PNC's wireless service provider, AT & T wireless,
would access the machines or how the telephones would be repaired,
serviced, and maintained in a time effective manner.  Chicago is in AT &
T's coverage area.  Further, neither PNC nor the plaintiffs have
determined the reception capacity at all or a substantial number of PNC
ATM locations.  No engineering or transmission reception studies have
been conducted whatsoever.  Reception may not be possible at some areas
in buildings or there may be interference from other structures or
environmental elements.  The settlement agreement makes no provision for
locations where cellular telephone reception is not possible.  The
agreement as proposed allows PNC to deny access to ATM services at these
locations with blind customers denied the ability to take action for
three years.

The settlement agreement itself unnecessarily and needlessly restricts
access.  Section 6.6 of the agreement requires all blind persons who want
assistance at a PNC ATM to complete a registration statement.  Yet there
is no registration needed whatsoever at the more than 1,000 talking ATM's
currently in operation in the United States and Canada.  Blind persons
can simply walk up to an ATM and use it.  However, even if a blind person
had his own wireless telephone, he still must register before using a PNC
ATM.

Another example of the unfairness of the agreement is found in Section
6.6.2 that allows PNC to require the return of the wireless telephone if
it is not used to make an ATM transaction in any consecutive three-month
period.  Sighted PNC customers do not face any such restriction.  Many
people carry an ATM card to access funds in an emergency, in an unusual
situation, or when away from home.  The settlement agreement does not
allow the blind person this flexibility and places a higher standard of
use and conduct on the blind customer to receive ATM services from the
bank compared to the sighted customer.

Yet, another reason for the court to reject this settlement is the fact
that the agreement does nothing for blind persons without accounts at
PNC.  In fact, it excludes them entirely.  Section 2.15 defines the
plaintiff class as consisting of "all Persons with Vision Impairments
who, as of the date of the Amended Class Action Complaint or thereafter,
have any Banking Services account or brokerage account with PNC, whether
or not such person uses PNC's ATMs or ATM services."  Yet, PNC ATMs are
available to the entire public not just PNC account holders.

The agreement tries to address this inequity with Section 6.6.3 by
allowing people with vision impairments who are not PNC cardholders to
receive a wireless telephone to use a PNC ATM.  However, "PNC also may
request, subject to the terms of the registration statement, a security
deposit for the Wireless Telephone at the time of registration in the ATM
Access Program."  Essentially, PNC will require non-customers to deposit
money with them at their institution and effectively transform these
non-customers into customers to receive an accommodation.  This
burdensome requirement amounts to charging blind persons an accessibility
surcharge to access their money.  Section 36.301(c) states that "a public
accommodation may not impose a surcharge on a particular individual with
a disability or any group of individuals with disabilities to cover the
costs of measures, such as the provision of auxiliary aids, barrier
removal, alternatives to barrier removal, and reasonable modifications in
policies, practices, or procedures, that are required to provide that
individual or group with the nondiscriminatory treatment required by the
Act or this part."  It may be argued by the defendant or even the
plaintiffs that deposits for the wireless telephones are justifiable,
based on a statement in the ADA technical Assistance Manual produced by
the U.S. Department of Justice which states:  "a number of commenters
inquired as to whether deposits required for the use of auxiliary aids,
such as assistive listening devices, are prohibited surcharges.  It is
the Department's view that reasonable, completely refundable, deposits
are not to be considered surcharges prohibited by this section.
Requiring deposits is an important means of ensuring the availability of
equipment necessary to ensure compliance with the ADA."

A wireless telephone can hardly be called a piece of "equipment necessary
to ensure compliance with the ADA" when talking ATMs, which do not
require a deposit to use, are fully available to the bank to meet its
obligations to provide ATM access to the blind.  Even if the court
believed that a wireless telephone is necessary for a blind person to use
an ATM, the deposit can hardly be called reasonable.  Part of the
analysis of what the Justice Department considers fair is a deposit that
is "completely refundable."  Leading to this analysis were many comments
inquiring about the deposits required to use assistive listening devices
that amplify sound in auditoriums and cinemas.  In this context, a
"completely refundable" deposit is short term in nature, lasting a few
hours or a few days.  The deposit required of non-customers in the PNC
ATM access program is never-ending.  PNC can keep the deposit for years,
a decade or two or longer as long as the person is still participating in
the ATM access program.  Therefore, the court cannot sanction the deposit
for the wireless telephone, refundable on a person's death, as one that
is "completely refundable" and reasonable.  It is highly unlikely that
the Justice Department or anyone else contemplated a deposit for an
assistive device that would stretch many years throughout a person's
lifetime.

Further, by confining the plaintiff class only to those who are PNC
cardholders, the settlement leaves open the possibility for
non-cardholders to sue PNC for an access solution that does not require
either a deposit for a telephone that takes months to arrive or the need
to carry around a specialized device for which one may use only
occasionally and which PNC may demand returned for non use.  However,
these non-customers will be effectively precluded from exercising their
ADA rights to independent ATMs.  It is doubtful a court will require PNC
to provide something for blind persons who are not PNC account holders if
a court has approved a settlement that denies account holders Talking
ATMs.  This agreement then does not offer a final resolution to PNC ATM
access for all blind persons.  This point is significant as many persons
use ATMs owned by a particular financial institution through an ATM
network to their bank or brokerage account even though they do not have
an account with the ATM owner.  PNC has a large ATM network with machines
throughout the United States including places, such as Chicago, where it
does not have any bank branches.  For these users, becoming a customer is
not an option.

In short, a talking ATM is the only workable solution for ATM access for
the Blind when compared to a walkthrough on a cellular telephone by a
customer service representative.  It is effective, functional, and
practical.  Talking ATM users do not need to wait months for basic
access.  Access is available immediately.  No device, such as a cell
phone, is used that requires the talking ATM user to charge a battery in
an electrical wall outlet.  Instructions are always accurate, clear, and
consistent.  There are no garbled words, frequent time out alarms,
reception problems, devices for which the end user needs to obtain
service and maintenance, or unusable instructions with a talking ATM.  No
one ever needs to register with anyone, give their name, and announce out
loud in public, as is required with the PNC wireless ATM program, the
amount of money they want to take out of their account when using a
talking ATM.  No deposit of money is ever required of anyone to use any
of the more than 1,000 talking ATMs throughout the United States and
Canada.  Blind persons never have their access to ATM machines yanked
away from them, as PNC does, if they do not use a talking ATM for a few
months.  After thoroughly trying both access options, there is no
comparison between a talking ATM and sighted assistance with a cellular
telephone.

It is important for the court to review the applicable standard for
access regarding ATM access for the blind.  Section 4.34.5 of the
Americans with Disabilities Act Accessibility guidelines has required
since 1992 that "Instructions and all information for use shall be made
accessible to and independently usable by persons with vision
impairments."  The proposed settlement does not mention this applicable
provision of current ADA regulations, even though the same entity funding
plaintiffs' counsel, the United States government, promulgated the
regulation.  Instead, the proposed settlement acknowledges that in 1999
the U.S. Access Board promulgated proposed regulations that more
specifically detail that independent access can only be provided by
machine-based audible output  (See, e.g., 64 Fed.  Reg. 62248,
62494-62497 (Nov. 16, 1999) referenced in the "Whereas" clauses of the
proposed settlement").  The blind need not wait until final action is
taken on the proposed regulations, because the current regulations are
unambiguous in their mandate of independent usability.  PNC's program
does not make instructions and information independently usable.  Indeed,
a program which depends on sometimes spotty and uneven cell phone
reception and a supposedly informed person at the other end to walk a
blind end user through transactions may be better described as
"dependently usable".  That is if access is provided at all.

In nearly a year since the filing of the PNC ATM settlement agreement
with the court, there have been significant developments in the area of
Talking ATMs.  It is important for the court to be aware of these
developments because Section 2.21 in The proposed conditional settlement
defines Talking ATMs and concludes with the following sentence: "By
agreeing to this definition, PNC does not agree that Talking ATMs are
currently feasible or functionally operational."  This is not accurate.
As of October 1, 2001, 1,204 talking ATMs have been installed in the
states of California, District of Columbia, Florida, Illinois, Indiana,
Kentucky, Massachusetts, Maryland, Michigan, Minnesota, New Hampshire,
New Jersey, New Mexico, Nevada, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, Texas, and Washington.  In December,
2000 when the settlement was filed with the court talking ATM access
settlement agreements were in place with Wells Fargo, Bank of America,
Diebold, and Citibank.  New agreements between the blindness community
and additional financial institutions have been reached with Bank One,
First Union, Chevy Chase Bank, and Fleet Boston Financial requiring the
installation of significant numbers of talking ATMs across the country
during the next several years.  Installations have already begun under
these new agreements.  Additionally, some financial institutions have
taken independent action to install talking ATMs.  These institutions
include Fifth Third Bank, Mellon Bank, the San Francisco Federal Credit
Union, and U.S. Bank.  This constitutes nearly half of the states in the
United States and more than half of the 10 largest American banks.  Some
of these institutions have committed to large-scale deployments.  Wells
Fargo has installed nearly 500 talking ATMs and will install a talking
ATM at every California ATM location by June, 2003.  Fleet Boston
financial has agreed to install more than 1,400 talking ATMs by
September, 2003.  Chevy Chase Bank has agreed to make all of its ATM
locations accessible with a talking ATM during the next three years.  On
October 4, 2001, America's largest ATM deployer, the Bank of America,
announced that it would have 3,000 Talking ATMs up and running by
December, 2002, and 7,000 Talking ATMs installed by the end of 2005.

Additionally, the ATM industry has begun educating the numerous companies
and organizations involved in providing ATM services with a day-long
public seminar sponsored by the Electronic Funds Transfer Association on
June 26 on the proposed changes to the Americans with Disabilities Act
Accessibility Guidelines relating to ATM access and solutions available
for accessibility.  The access and Functionality of operating, on the
street talking ATMs has increased with account balance and volume control
being added to many machines.  It is still true today as it was a year
ago that virtually all of the ATMs on the street are upgrades of existing
machines, meaning access is easily available without costly replacement.
Talking ATMs have emerged as the industry standard for delivering ATM
access to the blind.  New machines are being deployed monthly, if not
weekly.

In addition to failing to provide adequate and reasonable ATM access to
blind persons, PNC continues to fail to provide auxiliary aids and
services.  As the attached log shows, PNC does not permit someone to
request an auxiliary aid or service during evening or weekend hours when
its customer service representatives are on staff to assist customers, as
occurred on July 25.  PNC only accepts requests during business hours for
auxiliary aids and services.  When a request occurred, PNC required more
than a week to decide if in fact it even provided an auxiliary aide or
service.  A PNC manager, Peg Weyler, stated that after consulting with
the PNC legal and marketing departments, she could read on the telephone
during business hours the lengthy and complicated cardholder agreement
for my debit card that I requested in an alternative format.  She stated
that on orders of PNC lawyers she could not read the agreement on a
cassette and mail it to me because the company's lawyers deemed her not
to be "a professional reader."  I declined the offer because my employer
does not permit lengthy personal telephone calls.  Even if I could make
an arrangement to receive such a telephone call, I would likely not be
able to fully comprehend and concentrate on the content of the
communication with the distractions and interruptions common in a busy
office.  Reading a detailed and complicated document on the telephone
only during business hours can hardly be said to be effective
communication when sighted persons can read the same document multiple
times on different days, in different locations, and at a time most
available to them.  Two basic ingredients to effective communication are
the timeliness of delivery and communication in a medium and manner
appropriate to the message.  PNC provides limited timeliness by offering
access to documents only during business hours.  Further, a lengthy and
complicated document as a debit card agreement can only be effectively
delivered in a fixed format, such as on cassette, Braille, or in a
computer text file.  Reader assistance will likely not provide the
ability to review and comprehend the document effectively.

For all of these reasons, the court must reject the proposed settlement
as inadequate and unfair to blind persons.  Other solutions exist for
providing access to automatic teller machines and to written materials
that provide for independent usability and are as effective for blind
persons as it is for those without disabilities.  In addition to this
written filing, I plan to contest this inequitable settlement in person
at the fairness hearing scheduled December 14 in Pittsburgh.  Blind
persons must have full equality in our information society.

Kelly Pierce
3257 N. Clifton Ave.
Chicago, IL 60657
(773) 472-7206
[log in to unmask]


Enclosure: PNC Chronology