Thank you for this information. The only matter I would have added to this
complaint and to the "request for resolution" is a specific provision for
ensuring that either of the defendents cannot use special pricing or
different pricing for providing this accessibility, even though this fact
may be codified and thus implicit.
Pratik
Pratik Patel
Managing Director
CUNY Assistive Technology Services
the City University of New York
(718) 997-3775
[log in to unmask]
-----Original Message-----
From: VICUG-L: Visually Impaired Computer Users' Group List
[mailto:[log in to unmask]] On Behalf Of Kelly Pierce
Sent: Sunday, March 02, 2003 6:17 PM
To: [log in to unmask]
Subject: Full Text of First Formal Cell Phone Access Complaint with FCC
ACCELERATED DOCKET PROCEEDING:
ANSWER DUE WITHIN TEN DAYS OF SERVICE DATE
BEFORE THE FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, DC 20664
In the matter of
Dr. Bonnie O'Day,
Complainant
v.
Audiovox Communications Corporation
and
Verizon Wireless, Inc.,
Defendants.
File No. _____________
FORMAL COMPLAINT OF DR. BONNIE O'DAY
To: THE COMMISSION
SUMMARY OF COMPLAINT
Dr. Bonnie O'Day, a blind individual who is a customer of Defendants
Audiovox Communications Corporation ("Audiovox") and Verizon Wireless,
Inc. ("Verizon Wireless"), brings this Formal Complaint pursuant to
Section 255 of the Telecommunications Act of 1996, 47 U.S.C. 255
(2000), and related FCC implementing regulations. Dr. O'Day is supported
in this action by the American Council of the Blind, a national advocacy
organization whose members number in the tens of thousands.
Defendants are both manufacturers of wireless telephones;1 Verizon
Wireless is also a provider of wireless telecommunications services. Both
Defendants have substantial obligations under Section 255 to make their
wireless products and services "accessible" to individuals with
disabilities, including Dr. O'Day. 2 The Commission regulations
implementing this provision obligate both manufacturers and service
providers to "evaluate the accessibility, usability, and compatibility of
equipment and services" and to "incorporate such evaluation throughout
product design as early and consistently as possible." 47 C.F.R.
6.7(a) (2002). 47 C.F.R. 7.7(a) makes the same protections are
applicable to manufacturers and service providers of voicemail or
interactive menu services or products that perform a voicemail or
interactive menu function. The Commission's establishment of these
regulatory requirements was based upon its "view [of] Section 255 as a
statute designed to change the status quo by requiring manufacturers and
service providers to consider products and services for persons with
disabilities not as a specialized field, but as part of the general
market."3 Indeed, in adopting the FCC's Section 255 regulations,
then-Commissioner Furchtgott-Roth expressed confidence in the ability of
"industry" to "seize this opportunity, ... to design and manufacture
products that have widespread appeal and enhance the quality of life for
us all."4
These lofty goals and stringent requirements notwithstanding, neither
Defendant has fulfilled the obligations imposed on them by Congress or
this Commission. The wireless telephones offered by Audiovox and carried
on Verizon Wireless' network are not accessible to blind persons5 because
the majority of the wireless phone functions can be used only through
visual interaction with a menu and display screen.
In June 2001, Dr. O'Day filed an informal complaint with the Commission
against Audiovox and Verizon Wireless and, in recent months, engaged in
substantial, though ultimately unsuccessful, settlement efforts. This
Commission has made clear that "[p]rompt and efficient enforcement of
Section 255 and the rules adopted in this Order is a crucial component of
successful implementation of the accessibility requirements ...." Report
and Order at 109. Given the importance of the issues at stake and the
apparent reluctance of these Defendants to provide the requested relief,
Dr. O'Day was compelled to file this Formal Complaint and to request that
the Commission act expeditiously to require the Defendants to make their
products and services fully accessible to blind persons as soon as
possible. Specifically, Dr. O'Day requests that the FCC require
Defendant companies to make available for downloading into their wireless
telephones the software needed to deploy text to speech capability, which
would allow the essential functions and services available through a
wireless telephone's visual menu to be accessible to blind customers
through articulate and intelligible sounds. As explained infra, this
software already exists and its incorporation into wireless telephones is
not only "readily achievable" -- it has already been deployed on existing
wireless telephones and can be deployed on Audiovox's current "high-end"
wireless telephone, the "Audiovox CDM-9500."
In support of her position, the Complainant, Dr. Bonnie O'Day, shows
that:
PARTIES6
1. Complainant Dr. Bonnie O'Day ("Complainant" or "Dr. O'Day") resides at
2455 North Stevens Street, Alexandria, Virginia 22311. She is employed
as a Senior Research Associate at CESSI and maintains the following
telephone number: (703) 845-3436. Dr. O'Day is represented in this
matter by the law firm of Spiegel & McDiarmid, located at 1333 New
Hampshire Avenue, N.W., Washington, D.C. 20036 (202-879-4000 (office);
202-393-2866 (fax)). Undersigned counsel can be reached via e-mail at
[log in to unmask], and [log in to unmask]
2. Defendant Audiovox Communications Corporation is located at 555
Wireless Boulevard, Hauppauge, New York 11788 (800-229-1235 (office);
631-233-3432 (fax)). Audiovox is a "manufacturer" of wireless telephones
within the meaning of Section 255. Audiovox is included on the list of
"Section 255 Manufacturers of Equipment" compiled by the Commission and
posted on its website at http://www.fcc.gov/cgb/dro/section255_manu.html.
The Audiovox contact person listed on the "manufacturers" web page is
Katie Wasserman, Director of Marketing.
3. Defendant Verizon Wireless, Inc. is located at 1300 Eye Street
Washington, D.C. 20005 (202-589-3775 (office); 202-589-3750 (fax)).
Verizon Wireless is a "service provider" and a "manufacturer of
equipment" within the meaning of Section 255. Verizon Wireless is
included on the list of "Section 255 Service Providers" compiled by the
Commission and posted on its website at
http://www.fcc.gov/cgb/dro/service_providers.html. The Verizon Wireless
contact person listed on the "service provider" web page is Andre J.
Lachance, Regulatory Counsel. Verizon Wireless is also engaged in the
manufacturing of wireless telephones by virtue of its business
arrangements with Audiovox, pursuant to which (a) the Defendants
"co-brand" wireless telephones, and (b) jointly develop wireless
telecommunications products carried on the Verizon Wireless network.
CLAIMED VIOLATIONS
4. The actions and omissions of the Defendants, individually and jointly,
violate the provisions of Section 255, codified at 36 C.F.R. Part 1193
(2002) as implemented by Commission regulations. Specifically,
Defendants are each in violation of 47 C.F.R. 6.5 and 7.5 (2002), in
that with respect to the issues raised herein, Defendants have failed and
refused to make accessible7 and usable to Complainant and to other blind
customers certain wireless telephone functions and certain
telecommunications services that are indispensable to the use of wireless
telephones, even though such functions and services are "readily
achievable."
5. Defendants are each in violation of 47 C.F.R. 6.7 and 7.7 (2002),
in that with respect to the issues raised herein, Defendants have failed
to evaluate the "accessibility, usability, and compatibility" of the
wireless telephones and related services at issue. Further, each of the
Defendants has failed to identify barriers to accessibility and usability
as part of such product design and development process.
6. Defendants are each in violation of 47 C.F.R. 6.11, and 7.11
(2002), in that they have failed to "ensure access to information and
documentation" on a basis consistent with that on which such information
and documentation is provided to sighted customers, even though such
access is "readily achievable."
7. Defendants each have failed to meet their respective burdens of
demonstrating the applicability to Complainant's claim of any defenses to
compliance available pursuant to Section 255.
8. Complainant asks that each of the Defendants be ordered to:
* provide voice output for all wireless telephone visual information,
such that there shall be voicing of all menu options and all operational
procedures, including call forwarding and conference call setup;
* provide input controls that are operable without vision and are readily
identifiable by touch and grouped by function, including a nib at the
center of the 5 key;
* provide voicing of caller-ID data as calls are received;
* provide verbal echo of all user input;
* provide distinct audio alerts at key thresholds such as telephone power
off, link quality change, roaming status change, and key battery
discharge thresholds (such as 60%, 25%, and 5%); this could be
accomplished through the use of a "summary of key conditions" command
mapped to an existing programmable soft-key. Such audio alerts must be
mutually distinct;
* revise each of Defendant's web pages so as to bring them into AAA
conformance8 with the international consensus on accessibility standards
as published by the World Wide Web Consortium (W3C)'s Web Accessibility
Initiative (WAI) at http://www.w3.org/wai/;
* provide invoices (i.e., consumer bills) in accessible formats;
* provide product information in accessible formats in a timely manner,
i.e., consistent with the availability of such information to sighted
customers; and
* ensure the provision of appropriate services to blind customers,
through periodic training and review for all customer service staff,
including sales and telephone support staff, regarding the needs and
concerns of blind persons.
PROCEDURAL HISTORY
9. On June 6, 2001, Complainant filed with the Commission an informal
complaint under Section 255 raising claims against the Defendants that
are substantively similar to those raised herein and that are based on
the same factual circumstances set forth herein.9 As set forth in the
informal complaint, in late 2000, Dr. O'Day purchased from Verizon
Wireless an Audiovox model CDM-9000 wireless telephone and a related
service plan for the telephone. Prior to purchasing the CDM-9000, Dr.
O'Day visited several Verizon Wireless (then Bell Atlantic) retail stores
in order to determine which of the wireless telephones carried on the
Verizon Wireless network offered the most accessible functions and
services. Dr. O'Day found that none of the phones had the necessary
accessibility features and decided on the CDM-9000 because it was the
best of the worst, in that it was -- in relative terms -- the easiest to
use. Dr. O'Day subsequently contacted both Audiovox and Verizon Wireless
and expressed concerns about the difficulties she was having in using the
telephone. After failing to receive satisfactory responses from either
Defendant, Dr. O'Day filed her informal complaint with the Commission.
10. Audiovox and Verizon Wireless submitted separate responses to Dr.
O'Day's informal complaint on September 5, 2001.10 Of particular concern
to Complainant is the unavailability of voice output on Audiovox phones,
rendering many essential features inaccessible to blind people. In its
response (at 3), Audiovox stated that such technology was not "readily
achievable," but provided no supporting evidence (including documentary
proof) for its assertion, stating only that the Company "and the wireless
industry continue to research and develop new technology ... and look
forward to one day incorporating such features in our wireless products."
Audiovox offered no timetable as to when that "day" might be. Nor did
Audiovox offer any information on, for example, the extent to which it is
engaging in an assessment of the achievability of the features sought by
Dr. O'Day; any external outreach efforts to ascertain accessibility needs
and solutions; or internal management processes put in place by Audiovox
to ensure early and continuing consideration of accessibility concerns.11
11. Dr. O'Day's informal complaint remains pending; indeed, prior to
mid-October 2002, Complainant had received no indication from the
Commission that it was pursuing the concerns raised in her informal
complaint.
12. In its September 5, 2001 response, Verizon Wireless denied any
obligation to make the Audiovox phone accessible to Complainant, alleging
that any compliance responsibility with respect to the issues raised by
Dr. O'Day rested with Audiovox, not Verizon Wireless. As explained by
Verizon Wireless in its response (at 3 of 5), "to the extent a handset
feature is not accessible to or useable by persons with disabilities, the
Act clearly provides that the responsibility for compliance lies with the
device manufacturer."
13. In early January 2002, Complainant responded in writing to both
Defendants, setting forth her dissatisfaction with their replies and
inviting further discussion about the matters at issue.12 Neither party
responded to Dr. O'Day's letter.13
14. On September 30, 2002, Complainant sent separate letters to both
Verizon Wireless and Audiovox, informing each of the Defendants of her
intent to file a Formal Complaint with the Commission (and to seek
placement of the Formal Complaint on the Commission's "Accelerated
Docket"), and again inviting each to engage in further discussion.14
15. Verizon Wireless responded to Dr. O'Day's notice and invitation in a
letter dated October 18, 2002.15 Verizon Wireless noted (at 2 of 5) that
a "voiced menu capability that will provide voice output to the user" was
being developed by Sony Ericsson but that this capability was "still in
the developmental stage"; that a "talking caller ID capability" was "not
readily achievable at this time"; and that a voice activated dialing
service had been "launch[ed]" the day before (i.e., October 17).
16. Audiovox did not respond to Dr. O'Day's letter.
17. Complainant participated in discussions with Commission Staff in
person on October 22, 2002, and by phone on several occasions since that
time. In these discussions, Complainant set forth her concerns, the
bases for them, and the types of relief that would be needed to resolve
the informal complaint. At the request of the Commission Staff and in an
effort to resolve the issues raised by Dr. O'Day, both Audiovox and
Verizon Wireless submitted non-binding "proposals." The proposals, which
are Exhibits I and J to this Formal Complaint, are inadequate, mainly
because neither Defendant has shown that it is not readily achievable to
incorporate text to speech capability in the wireless telephones they
manufacture and market.
18. Following submission by Defendants of the non-binding settlement
proposals (on December 6, 2002), Complainant was informed by Commission
Staff that it wished to schedule additional settlement discussions.
Notwithstanding Dr. O'Day's willingness to attend such sessions, no date,
time or agenda for these discussions has ever been confirmed. Indeed, in
the entire period from June 6, 2001 to the present, the Commission has
never convened a single face-to-face meeting among the parties. Given
the importance of these issues and the Commission's inability to resolve
the informal complaint in a timely manner, Complainant has reluctantly
concluded to seek resolution of her claims through the Commission's
Formal Complaint process.
19. Section 255 compliance by wireless service providers and wireless
telephone manufacturers is an issue of great concern, not simply to
Complainant, but to blind and visually impaired persons nationwide.
Accordingly, Complainant is supported in filing this Complaint by the
American Council of the Blind ("ACB"), a membership organization
consisting of tens of thousands of members nationwide.
REGULATORY FRAMEWORK AND FACTUAL STATEMENTS SUPPORTING REQUESTS FOR
RELIEF AGAINST AUDIOVOX
20. As a "manufacturer of telecommunications equipment or customer
premises equipment," Audiovox must "ensure that the equipment is
designed, developed, and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable." 47 U.S.C.
255(b) (2000). In 90 of its Report and Order implementing Section 255,
the Commission stated that a Section 255 manufacturer of
telecommunications or customer premises equipment encompasses those who
"control the design, development and fabrication of a product." Audiovox
is listed on the Commission's website as a manufacturer for the purposes
of Section 255.16
21. The Commission's Section 255 implementing regulations, at 47 C.F.R.
6.3(g) and 7.3(h) (2002), define "readily achievable" as "easily
accomplishable and able to be carried out without much difficulty or
expense." Sections 6.3 and 7.3 list several factors to be considered in
determining whether an action is "readily achievable": the nature and
cost of the action needed; the overall financial resources of the
manufacturer or service provider involved in the action, the number of
employees of the covered entity, the effect on finances or resources, or
the impact otherwise of the operations of the covered entity; if
applicable, the overall financial resources of the parent of the entity;
and if applicable, the type of operations of the covered entity.
Further, the Commission's Report and Order states that "Congress intended
to make these accessibility requirements applicable to each piece of
equipment and to each service, and not more generally to product lines."
49, emphasis added. The Commission's implementing regulations, 47 C.F.R.
6.7(a) and 7.7(a) (2002), require manufacturers to "identify barriers to
accessibility and usability as part of ... a product design and
development process." The Report and Order states (at 64) that neither
manufacturers nor service providers can make "bald assertions of
technical infeasibility," and that such claims must be supported by
"empirical evidence or documentation."
Accessible Input and Output
22. 47 C.F.R. 6.5 (2002) provides that "[a] manufacturer of
telecommunications equipment or customer premises equipment shall ensure
that the equipment is designed, developed and fabricated so that the
telecommunications functions of the equipment are accessible to and
usable by individuals with disabilities, if readily achievable."
Likewise, 47 C.F.R. 7.5 (2002) provides, "[a] manufacturer of
telecommunications equipment or customer premises equipment shall ensure
that the equipment is designed, developed and fabricated so that the
voicemail and interactive menu functions are accessible to and usable by
individuals with disabilities, if readily achievable."
23. Complainant's informal complaint addressed accessibility concerns
posed by the Audiovox CDM-9000 phone. In its December 6, 2002 letter
(Exhibit I), Audiovox claimed that its newest wireless phone, the
"CDM-9500," addresses many of the concerns raised in Dr. O'Day's informal
complaint. This is not the case.
24. Audiovox has failed to comply with the guidelines set forth in 36
C.F.R. 1193.43 (2002) and the provisions set forth in 47 C.F.R. 6.3
and 7.3 (2002), in that telecommunications functions and interactive menu
functions of Audiovox's equipment are not accessible to blind persons.
Specifically, the visual menu used to navigate and activate the majority
of the features available on Audiovox's wireless telephones is not
accessible to blind persons. 36 C.F.R. 1193.43 (2002), 47 C.F.R.
6.3(a)(2) and 7.3(a)(2) (2002) specifically address output, display and
control functions. The regulations state that visual information must be
made available "through at least one mode in auditory form."
25. Complainant is unable to take advantage of a number of features
offered on Audiovox's wireless telephones because their use requires the
ability to interact visually with the phones' display screen. These
features include: programming and monitoring ring mode; tone and volume;
monitoring incoming and outgoing call numbers; and navigating the phone's
extensive menu options. Audiovox's December 6 letter states (at 1-2)
that the CDM-9500 has limited voice-activated services (e.g., "improved
caller ID functionality," and "enhanced audio cues"). Audiovox also
mentions (at 4) that it has "a chip that allows for Voice Activated
Dialing," but does not further describe this "chip." While helpful,
these improvements, including voice activated dialing, do not address the
root problem: the phone must be programmed using the visual display menu
to take advantage of this feature. In other words, persons with visual
impairments require a menu with voice output to fully use the features
available to sighted users. Thus, the improved caller ID functionality
of the CDM-9500 identified by Audiovox requires visual interaction with
the display menu in order to program a number and then assign to it a
designated ring tone.
Text to Speech Capability as a Readily Achievable Feature
26. Under the Commission's rules, manufacturers and service providers
asserting that accessibility to their products and services is not
"readily achievable" bear the burden of proving that this is in fact the
case. See 47 C.F.R. 6.7 and 7.7 (2002). The mere fact that inclusion
of a feature will add time and cost to production will not, alone, render
the measure not readily achievable." Report and Order at 60. In the
instant case, Audiovox has failed to meet its burden of demonstrating
that accessibility to its telephones is not readily achievable. First,
on September 5, 2001, Audiovox provided an abbreviated and incomplete
response to Complainant's informal complaint. In that letter, Audiovox
asserted, without the provision of any supporting documentation, that the
features Complainant desired in order to make her wireless phone
accessible were "not readily achievable."17 Audiovox identified no
barriers to accessibility, choosing instead to rely upon general claims
that the requested improvements are not "readily achievable." Second, in
its letter of December 6, Audiovox states that it "knows of no handset
that provides 'text to speech' functionality," and adds that
incorporating this feature "would add significant cost" (December 6
letter at 2) and "would price our product right out of the market." Id.
at 4. Audiovox fails to substantiate these contentions anywhere in its
letter. In fact, Audiovox undercuts its own position, stating that "we
have been provided information under a Non-Disclosure Agreement that
certain phones may have limited 'speech to text' capabilities as part of
the phone's operating software. Our best estimation is that these
capabilities will be in the market in 12-18 months." (December 6 letter
at 4). If these "capabilities" are available in "certain phones," they
should be available in the Audiovox phone. Moreover, if "certain phones"
with these capabilities are or soon will be in the market, then Audiovox
cannot credibly claim that offering the same product will price its phone
"right out of the market."
27. In fact, the technology required to make the CDM-9500 accessible to
blind persons is "readily achievable." Synthetic text to speech ("TTS")
software has already been developed. Incorporating TTS capability into
the CDM-9500 could be done with little difficulty and expense, and with
no additions nor modifications to its existing hardware, chips and
circuitry.
28. Verizon Wireless advertises that games and other programs can be
downloaded onto the CDM-9500.18 Similar features are being advertised by
several wireless providers. The same technology used to download games
and programs can be used to download text to speech software into the
CDM-9500. The Audiovox CDM-9500 has 5 MB of application memory (Random
Access Memory) and 460 kb of user memory. This is space that is available
and can be used by consumers to download additional features, such as
games or ring tones. The software required to run text to speech to
enable an individual to navigate the phone's menu would use as little as
250 kb of user memory. This is the equivalent of two games or one-sixth
of a floppy disk. There would be no required design or manufacturing
change of the phone itself in order to run downloadable TTS software.19
Accordingly, the cost of providing such software as a downloadable option
would be minimal. As further evidence that it is readily achievable to
manufacture accessible wireless phones, Complainant can demonstrate that
such devices already exist. Complainant is aware of a phone currently on
the market in Japan that offers a voice output menu.
Provision of Product Information and Documentation in Accessible Formats
29. Manufacturers (and service providers) are obligated under 47 C.F.R.
6.11 and 7.11 (2002) to "ensure access to information and documentation
it provides to its customers." Included within this requirement is the
obligation to provide consumer product information in alternate formats.
47 C.F.R. 6.3(a)(2) and 7.3(a)(2) (2002). 36 C.F.R. Part 1193 defines
"Alternate formats" to include Braille, ASCII text, auto cassette
recording and large print. In response to Dr. O'Day's request about the
availability of product information in accessible formats, Audiovox
responded, in its September 5, 2001 letter (Exhibit B), that "Audiovox
offers a Large Print Manual to users of its wireless products upon
receipt of a written request" (at 1). Audiovox then sent what it alleged
to be its "large print" manual to Dr. O'Day. The documentation sent by
Audiovox and received by Dr. O'Day, however, was not what is
traditionally thought of as large print. Instead, it was simply an
enlarged copy of the regular print manual and, as such, was useless to
Dr. O'Day. Audiovox's enlarged copy fails to meet the requirements of 47
C.F.R. 6.11 and 7.11 (2002) because the format in which the
information was provided to Complainant is not accessible to the majority
of persons with visual impairments and not helpful in any way to blind
customers. Indeed, Audiovox provides no evidence of having investigated
the nature of accessible documentation," would be good. It seems they
just decided to invent "large print."
30. Moreover, the access to product information required by 47 C.F.R.
6.11 and 7.11 (2002) must be timely. Complainant understands that as
recently as late 2002, an Audiovox representative informed a blind
customer seeking a Braille version of a wireless telephone manual for an
Audiovox product that the manual would be available in six weeks.20
Sighted customers typically obtain product manuals upon purchase of their
products. The failure to provide product information in a timely fashion
to blind customers, consistent with how such information is provided to
sighted customers, constitutes a failure to comply with the Commission's
rules that require access to that product information.
31. In its December 6 letter, Audiovox stated (at 4) that it will "add
accessibility information to all product literature provided to the
retail stores" and "will conduct an internal audit of out Section 255
knowledge and make improvements where needed." This commitment was in
response to Complainant's difficulty in obtaining accessibility
information from both retail stores and from Audiovox's Customer Service
Line.21 More specific information is required, however, in order to
confirm what steps, if any, are in fact being taken by Audiovox to
respond to these concerns.22
Other Accessibility Features
32. The CDM-9500 has a keypad interface that is extremely difficult for
persons with visual impairments to use.23 The individual keys are not
sufficiently elevated and are so small that any distinction in the
keypads is difficult to identify. As such this aspect of the phone is
not sufficiently accessible, as defined in 47 C.F.R. 6.3(a)(1)(i) and
7.3(a)(1)(i). In fact the CDM9500's keypad issignificantly less
accessible than the keypad of its several predecessors, the CDM9155, the
CDM9000, among others.
33. Audiovox is in violation of 47 C.F.R. 6.5 and 7.5 (2002) of the
Commission's implementing regulations because its wireless devices lack
continual battery monitoring data in a format comparable to data that is
currently available to sighted customers. Customers with visual
impairments who are using the Audiovox CDM-9500 do not receive ongoing
information on the status of the phone's battery power. These customers
are only warned of a low battery just prior to the battery's expiration
and the phone's shut off, while sighted users are able to monitor the
status of the battery continually through the visual display screen. The
absence of audible battery status information renders it impossible for
blind persons to avoid the interruption or termination of calls due to
battery drainage. Complainant requests that the Commission order
Audiovox to employ distinct audio cues to indicate a gradual loss of
battery power, and thereby provide the same warning prior to the
battery's expiration that is available to sighted customers. Audiovox
has offered no explanation for why these incremental audio cues are not
"readily achievable."
REGULATORY FRAMEWORK AND FACTUAL STATEMENTS SUPPORTING REQUESTS FOR
RELIEF AGAINST VERIZON WIRELESS
34. As a "provider of telecommunications service," Verizon Wireless must
"ensure that the service is accessible to and usable by individuals with
disabilities, if readily achievable." 47 U.S.C. 255(c) (2000). In its
Report and Order, the Commission concluded at 76-77 that the terms
"telecommunications" and "telecommunications service" as used in Section
255 have the same meaning as set forth in 47 U.S.C. 153(43) and 47
U.S.C. [1]53(46). The scope of "telecommunications services" includes
services formally labeled as "adjunct-to-basic services," such as call
waiting, speed dialing, call forwarding, computer provided directory
assistance, call monitoring, caller identification, call tracing, and
repeat dialing. Report and Order at 77. Verizon Wireless is listed on
the Commission's website as a telecommunications provider.24
Section 255 Responsibilities of Service Providers
35. Verizon Wireless' September 5, 2001, response to Complainant's
informal complaint disclaimed responsibility for the compliance issues
raised by Dr. O'Day. In an October 18, 2002 letter to Complainant
(Exhibit H) sent in response to receiving notification of Complainant's
intention to file a formal complaint, Verizon Wireless continued to
assert (at 3) that "service providers are not obligated...to ensure that
manufacturers comply with the Act's manufacturing provisions."
36. 47 C.F.R. 6.7(b) and 7.7(b) (2002) require service providers to
"identify barriers to accessibility and usability as part of ... a
product design and development process." This provision cannot be
disregarded by Verizon Wireless on the ground that it is a "manufacturing
provision." There is a responsibility imposed directly upon service
providers under these regulations.
37. Verizon Wireless also has specific accessibility obligations under
the Commission regulations dealing with manufacturers. E.g., 47 C.F.R.
6.5(a)(1) and 7.5(a)(1) (2002). As explained by Audiovox in its December
6 proposal, "Audiovox, in relation to other manufacturers, works more
closely with the service provider, Verizon Wireless, in the joint
development of products.... [A] Requirements Document, which contains
section 255 requirements, has been in place between the parties....
Verizon submits regular updates to the Requirements Document to
Audiovox."25 In fact, Verizon Wireless engages in co-branding of
wireless telephone products with Audiovox. For example, the CDM-9500
bears the Verizon Wireless logo, not the Audiovox logo. The product
branding, coupled with Audiovox's assertion that it and Verizon Wireless
conduct the "joint development of products," demonstrates that Verizon
Wireless is directly involved in the development of telephones carried on
its network. As explained in the Report and Order (at 90), "where an
entity is otherwise extensively involved in the manufacturing process --
for example, by providing product specifications -- we may, as individual
circumstances warrant, deem such an entity to be a co-manufacturer of the
product involved." Given the showing made here, Verizon Wireless is a
"co-manufacturer."
Accessibility Technology
38. Like Audiovox, Verizon Wireless submitted a non-binding settlement
proposal to Complainant (and the Commission) on December 6, 2002.26 The
proposal was little more than a repeat of its October 18, 2002 letter.
As it had in its earlier letter, Verizon Wireless touts its "Voice Gear"
product. (December 6 Letter at 1). This product is targeted at voice
input, not voice output, and fails to meet the requirements for
accessibility mandated by Section 255 and the Commission regulations.
Voice activated dialing requires visual interaction with the display
menu. Because a blind user is unable to interface with the display menu,
that individual cannot access the phone's functions or the provider's
services, in violation of Section 255.
39. In fact, the technology required to make the CDM-9500 accessible to
blind persons is "readily achievable." Synthetic text to speech ("TTS")
software has already been developed. Incorporating TTS capability into
the CDM-9500 could be done with little difficulty and expense. Verizon
Wireless advertises that games and other programs can be downloaded onto
the CDM-9500.27 Similar features are being advertised by several
wireless providers. The same technology used to download games and
programs can be used to download text to speech software into the
CDM-9500. The Audiovox CDM-9500 has 5 MB of application memory (Random
Access Memory) and 460 kb of user memory. This is space that is available
and can be used by consumers to download additional features, such as
games or ring tones. The TTS software required to run text to speech to
enable an individual to navigate the phone's menu would use 250 kb user
memory. This is the equivalent of two games or one-sixth of a floppy
disk. There would be no required design or manufacturing change of the
phone itself in order to run downloadable TTS software.28 Accordingly,
the cost of providing such software as a downloadable option would be
minimal. As further evidence that it is readily achievable to
manufacture accessible wireless phones, Complainant can demonstrate that
such devices already exist. Complainant is aware of a phone currently on
the market in Japan that offers a voice output menu.
RELIEF REQUESTED
40. Complainant seeks a Commission order directing the provision of the
following forms of relief on an expedited basis:
41. By June 30, 2003, at least one accessible wireless telephone device
in all price categories shall be available for consumer purchase. As
mentioned herein, Complainant can demonstrate that such devices already
exist. Accordingly, Verizon Wireless and Audiovox shall make these
devices available through all of its retail channels expeditiously.
Complainant defines "accessible" as:
A. Voice output of visual information29
* Voicing of all menu options and all operational procedures, including
call forwarding and conference call setup;
* Voicing of caller-ID data as calls are received; and
* Verbal echo of all user input.
B. Status Alerts
* Distinct audio alerts at key thresholds such as telephone power off,
link quality change, roaming status change, and key battery discharge
thresholds (such as 60%, 25%, and 5%). Such audio alerts must be
mutually distinct. This could be accomplished through the use of a
"summary of key conditions" command mapped to an existing programmable
soft-key.30 Such audio alerts must be mutually distinct;31
C. Input Controls
* Controls readily identifiable by touch and grouped by function,
including a nib at the center of the 5 key.
42. Product literature, including operations manuals, for devices and
services marketed by Verizon Wireless and/or Audiovox, shall be made
available in a timely fashion in W3C WAI compliant HTML on Verizon web
sites, or by email, Braille, or large-print, or audio-cassette, upon user
request. Complainant defines "timely fashion" to require the provision
of accessible product documentation within seven (7) days of a consumer's
request.
43. Quick Reference cards in Braille, large-print, and on-line listing
key "Star Code" features (such as "*86" to access voice-mail and"*MIN"
for a summary of minutes used in the current billing cycle) shall be made
available in accessible formats, to the same extent that quick reference
cards are made available in conventional paper or electronic formats.
44. Verizon Wireless and Audiovox shall be required to provide periodic
training and review for all customer service staff, including sales and
telephone support staff, regarding the needs and concerns of blind peopl
e. Within six (6) months after issuance of a Commission order concerning
this Formal Complaint, Audiovox and Verizon Wireless shall report to the
Commission documenting their efforts with respect to such training.
45. Verizon's and Audiovox's web pages shall be revised to bring them
into AAA conformance with the international consensus on accessibility
standards as published by the World Wide Web Consortium (W3C)'s Web
Accessibility Initiative (WAI) at http://www.w3.org/wai/. For example,
no client-side script support, such as javascript should be required to
use Verizon pages.
46. Accessible invoices shall be readily available. The invoices shall
be offered, at the customer's option, in Braille, large-print, via e-mail
or on the Verizon web site in W3C WAI compliant HTML. Information shall
be available in accessible formats, not solely in PDF (which is not
accessible to blind persons).
CONCLUSION
WHEREFORE, for the foregoing reasons, Complainant Dr. Bonnie O'Day
requests that the Commission address the issues raised herein on an
accelerated basis and provide the requested relief in as expeditious a
fashion as possible.
Respectfully submitted,
___________________
Scott H. Strauss
Allison L. Driver
Attorneys for Dr. Bonnie O'Day
Spiegel & McDiarmid
1333 New Hampshire Ave., N.W.
Washington, D.C. 20036
202-879-4000
February 21, 2003
TABLE OF CONTENTS
Page
SUMMARY OF COMPLAINT 1
PARTIES 4
CLAIMED VIOLATIONS 5
PROCEDURAL HISTORY 8
REGULATORY FRAMEWORK AND FACTUAL STATEMENTS SUPPORTING REQUESTS FOR
RELIEF AGAINST AUDIOVOX 12
Accessible Input and Output 13
Text to Speech Capability as a Readily Achievable Feature 15
Provision of Product Information and Documentation in Accessible Formats
17
Other Accessibility Features 19
REGULATORY FRAMEWORK AND FACTUAL STATEMENTS SUPPORTING REQUESTS FOR
RELIEF AGAINST VERIZON WIRELESS 20
Section 255 Responsibilities of Service Providers 21
Accessibility Technology 22
RELIEF REQUESTED 24
CONCLUSION 27
1 When used herein, the terms "wireless" and "cellular" are intended to
be interchangeable, and to refer to telephones using wireless technology.
2 Section 255 provides in pertinent part:
(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.
3 FCC's Report and Order In the Matter of Implementation of Section 255
and 251(a)(2) of the Communications Act of 1934, as Enacted by the
Telecommunications Act of 1996; Access to Telecommunications Service,
Telecommunications Equipment and Customer Premises Equipment by Persons
with Disabilities, WT Docket No. 96-198, released September 29,1999,
summarized by 64 Fed. Reg. 63,235 (Nov. 19, 1999) ("Report and Order") at
50.
4 Id., Statement of Commissioner Harold W. Furchtgott-Roth Concurring in
Part and Dissenting in Part, at 1.
5 The term "blind persons" includes persons who are either blind or
visually impaired.
6 The exceptions specified in 47 C.F.R. 1.735 to the general
prohibition against bringing complaints against more than one defendant
apply here because Complainant alleges both Defendants named herein have
acted in concert and the Formal Complaint concerns common questions of
law and fact.
7 The accessibility obligation involves both user input and product
output. 47 C.F.R. 6.3(a)(1)(i) and 7.3(a)(1)(i) (2002) define
"accessible" to mean that "Input, control, and mechanical functions shall
be locatable, identifiable, and operable in accordance with each of the
following, assessed independently: Operable without vision. Provide at
least one mode that does not require user vision." Similarly, 47 C.F.R.
6.3(a)(2)(i) and 7.3(a)(2)(i) define "accessible" to require the
availability of "visual information" that is "necessary to operate and
use the product" (i.e., "output" information) through at least one mode
in auditory form.
8 AAA conformance is defined at
http://www.w3.org/TR/WAIWEBCONTENT/#priorities.
9 See Exhibit A.
10 See Exhibits B, C.
11 See Report and Order at s 149 and 151; 47 C.F.R. 6.7(a) (2002).
12 See Exhibits D, E.
13 In an October 10, 2002, conference with undersigned counsel, Ms.
Camelo, general counsel for Audiovox, asserted that Audiovox's failure to
respond was based on instruction from the Commission to Verizon Wireless
(which was then relayed to Audiovox by Verizon Wireless' counsel). Dr.
O'Day has been unable to verify whether such a directive was given and,
if so, why the Commission would have chosen to cut off potentially
productive discussions.
14 See Exhibits F, G.
15 See Exhibit H.
16 Attached as Exhibit K (available at
http://www.fcc.gov/cgb/dro/section255_manu.html). The FCC's website
indicates that the information on that page was last updated on October
30, 2002.
17 See Exhibit B.
18 See http://www.verizonwireless.com/ics/plsql/getitnow.intro.
19 See Verification of Dr. Khosrow Eghtesadi, attached as Exhibit M. Due
to the press of business, we are providing a facsimile version of Dr.
Eghtesadi's verification. Complainant intends to provide the Commission
with the original of the verification as soon as it is available.
20 See Verification of Janina Sajka, attached as Exhibit L, 4. Due to
the press of business, we are providing a facsimile version of Ms.
Sajka's verification. Complainant intends to provide the Commission with
the original of the verification as soon as it is available.
21 See Informal Complaint of Bonnie O'Day, attached as Exhibit A.
22 Complainant notes that the documentation/information that Audiovox has
heretofore made available is not same as that provided to its sighted
customers. Rather, only the text portions of Audiovox documentation are
transcribed into Braille and audio cassette. Yet, documentation provided
with each headset routinely conveys much of its information through
various graphical strategies -- photographs, charts, and diagrams. No
effort is made to provide the analogous information available in these
graphical forms in the accessible version of the document, and this
information is crucial to understanding how the device is intended to be
used. This despite the fact that graphics can be effectively conveyed in
Braille.
23 See Verification of Janina Sajka, attached as Exhibit L, 7.
24 Attached as Exhibit N (available at
http://www.fcc.gov/cgb/dro/service_providers.html). The FCC's website
indicates that the information on that page was last updated on January
20, 2003.
25 See Exhibit I at 3.
26 See Exhibit J.
27 See http://www.verizonwireless.com/ics/plsql/pf_start.intro.
28 See Verification of Dr. Khosrow Eghtesadi, attached as Exhibit M.
29 Our analysis shows that synthetic text to speech is the most effective
and readily achievable means to provide audio output of visual
information as required in the Telecommunications Act Accessibility
Guidelines and included in the FCC Report and Order.
30 A useful and readily achievable design modification would be to
incorporate a dedicated "*XXX" code, mappable to any existing
programmable key on the wireless telephone to provide users "on-demand,
one-touch" access, through TTS, to current status data, including battery
status, link quality, roaming status, active/inactive call status, mute
status, and ringer status. This command should be operational whenever
the device is powered, including when calls are in progress, though it
should be audible only to the
user. This is information that users need to obtain as necessary and it
is typically available on the LCD (unless another menu is engaged).
31 The point is simple. Sighted users can quickly glean this information
by glancing at the telephone display. It is not reasonable to expect the
blind user will be always paying attention to threshold alerts, therefore
a "summary command."
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To join or leave the list, send a message to
[log in to unmask] In the body of the message, simply type
"subscribe vicug-l" or "unsubscribe vicug-l" without the quotations.
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