Implementation of Section 255 of the Telecommunications Act of 1996: Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons With Disabilities
Federal RegisterMay 22, 1998
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR PART 1
[WT Docket No. 96-198; FCC 98-55]
Implementation of Section 255 of the Telecommunications Act of
1996: Access to Telecommunications Services, Telecommunications
Equipment, and Customer Premises Equipment by Persons With Disabilities
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This Notice of Proposed Rulemaking (NPRM) is an important step
in the Commission's effort to increase the accessibility of
telecommunications services and equipment to Americans with
disabilities. The NPRM proposes a framework for implementing section
255 of the Communications Act of 1934 (Act), which requires
telecommunications equipment manufacturers and service providers to
ensure that their equipment and services are accessible to persons with
disabilities, to the extent it is readily achievable to do so. In
addition, if accessibility is not readily achievable, section 255
requires manufacturers and service providers to ensure compatibility
with existing peripheral devices or specialized customer premises
equipment commonly used by individuals with disabilities to achieve
access, to the extent it is readily achievable to do so. The NPRM first
explores the Commission's legal authority to establish rules
implementing section 255. The NPRM then seeks comment on the
interpretation of specific statutory terms that are relevant to the
proceeding. Finally, the NPRM seeks comment on proposals to implement
and enforce the requirement that telecommunications equipment and
services be made accessible to the extent readily achievable. The
actions proposed in the NPRM are needed to ensure that people with
disabilities are not left behind in the telecommunications revolution
and consequently isolated from contemporary life.
DATES: Comments are due on or before June 30, 1998, and reply comments
are due on or before August 14, 1998. Written comments by the public on
the proposed information collections are due on or before June 30,
1998. Written comments must be submitted by OMB on the proposed
information collections on or before July 21, 1998.
ADDRESSES: Federal Communications Commission, Office of the Secretary,
Room 222, Washington, D.C. 20554. In addition to filing comments with
the Secretary, a copy of any comments on the information collections
contained in the NPRM should be submitted to Judy Boley, Federal
Communications Commission, Room 234, 1919 M Street, N.W., Washington,
DC 20554, or via the Internet to [email protected], and to Timothy Fain,
OMB Desk Officer, 10236 NEOB, 725-17th Street, N.W., Washington, D.C.
20503, or via the internet to [email protected].
FOR FURTHER INFORMATION CONTACT: John Spencer, Mindy Littell, or Susan
Kimmel, 202-418-1310. For additional information concerning the
information collections contained in the NPRM, contact Judy Boley at
202-418-0214, or via the Internet at [email protected]cc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the NPRM in WT Docket
No. 98-198, FCC 98-55, adopted April 2, 1998, and released April 20,
1998. The complete text of the NPRM is available for inspection and
copying during normal business hours in the FCC Reference Center (Room
239), 1919 M Street, N.W., Washington, D.C., and also may be purchased
from the Commission's copy contractor, International Transcription
Services (ITS, Inc.), (202) 857-3800, 1231 20th Street, N.W.,
Washington, D.C. 20036. Alternative formats of the full text of the
NPRM are available to persons with disabilities in the following forms:
computer diskette, large print, audio cassette, and Braille, by
contacting Martha Contee at (202) 418-0260, TTY (202) 418-2555, or at
[email protected], or Ruth Dancey at (202) 418-0305, TTY (202) 418-2970,
or at [email protected]. The full text of the NPRM can also be downloaded
at http://www.fcc.gov/dtf/section255.html.
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. Comments and
reply comments will be available for public inspection during regular
business hours in the Commission's Reference Center and through ITS,
Inc., the Commission's duplicating contractor.
For purposes of this proceeding, the Commission waives those
provisions of the rules that require formal comments to be filed on
paper, and encourages parties to file comments electronically.
Electronically filed comments that conform to the guidelines specified
in this summary will be considered part of the record in this
proceeding and accorded the same treatment as comments filed on paper
pursuant to Commission rules. To file electronic comments in this
proceeding, parties 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.hts>. Further
information on the process of submitting comments electronically is
available at that location and at: http://www.fcc.gov/e-file/>.
Paperwork Reduction Act
The NPRM contains a proposed information collection. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and OMB to comment on the
information collections contained in the NPRM, as required by the
Paperwork Reduction Act of 1995, Public Law No. 104-13. Public comments
are due on or before June 30, 1998. Written comments must be submitted
by OMB on the proposed information collections on or before July 21,
1998. Comments should address: (1) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (2) the accuracy of the Commission's burden estimates; (3)
ways to enhance the quality, utility, and clarity of the information
collected; and (4) 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.
OMB Approval Number:
Title: 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.
Form No.:
Type of Review: New Collection.
Respondents: Complainants, Telecommunications Equipment
Manufacturers, and Telecommunications Service Providers.
Number of Respondents: 1,000 prospective complainants annually will
report accessibility problems or file complaints using the Commission's
``fast-track'' problem resolution method,
[[Page 28457]]
and may be asked to provide the Commission with further information
later in the process. This should take approximately 2 hours per
response, for a total annual burden of about 2,000 hours. There will be
no estimated annual cost. Approximately 1,000 equipment manufacturers
and service providers annually are expected to be involved in resolving
these complaints. It is estimated that these steps will take
approximately 6.50 hours per respondent for a total annual burden of
6,500 hours. The estimated annual cost is $720,000. Additionally,
78,830 telecommunications equipment manufacturers and service providers
annually are expected to provide a list of contacts for disability
access complaints. And it is possible that 78,830 telecommunications
equipment manufacturers and service providers will have equipment or
services which will receive a seal or other imprimatur from a consumer
or industry group that identifies the service or equipment as in
compliance with section 255. Satisfying these burdens will likely take
slightly more than 1 hour per respondent for a total annual burden of
78,830 hours, and no annual cost.
Total Number of Respondents: 79,830.
Total Annual Burden: 87,330 hours.
Total Annual Cost: $720,000.
Frequency of Response: Occasional.
Needs and Uses: The information filed as part of a complaint, if
the proposal made by the Commission in the NPRM is adopted, will be
reviewed by the Commission and by the pertinent entity to develop a
solution to the problem. The information filed by the consumer after a
complaint is resolved, if the proposal made by the Commission in the
NPRM is adopted, will be used by the Commission to verify that the
complainant is satisfied that either the impediment to accessibility no
longer exists or that a practical solution could not be reached. Any
demonstrations made by manufacturers and service providers that
accessibility was considered in the equipment or service design process
will be used by the Commission to evaluate compliance with the intent
of section 255. The interim and final reports submitted by these
entities will be used by the Commission to track the progress of
resolution of complaints. Rebuttals to assertions of resource
availability will help determine whether a particular accessibility
measure is a readily achievable solution to an accessibility problem.
The list of contacts who are responsible for telecommunications access
complaints in each company will be used to speed the complaint process
and to increase the likelihood of settlement between parties before the
complaint reaches the Commission. The seal or imprimatur from a
consumer or industry group that identifies a service or equipment as in
compliance with section 255 will be used to inform consumers about the
accessibility of particular products or services and will serve as an
incentive for compliance by manufacturers and service providers.
Synopsis of Notice of Proposed Rulemaking
1. The Commission adopts this NPRM as an important step in opening
the telecommunications revolution to the 54 million Americans with
disabilities. Section 255 of the of the Communications Act (section
255), as added by the Telecommunications Act of 1996 (1996 Act)
1 mandates that telecommunications equipment manufacturers
and service providers must ensure that their equipment and services are
accessible to persons with disabilities, to the extent that it is
readily achievable to do so.2 This goal has become
increasingly important as the ability to utilize the benefits of
telecommunications technology has become more critical to fully
participating in American society. Congress gave the Commission two
specific responsibilities: (1) to exercise exclusive jurisdiction with
respect to any complaint filed under section 255, and (2) to coordinate
with the Architectural and Transportation Barriers Compliance Board
(Access Board) in developing guidelines for accessibility of
telecommunications equipment and customer premises equipment (CPE).
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\1\ Public Law 104-104, 110 Stat. 56 (1996).
\2\ 47 U.S.C. 255.
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2. This proceeding was initiated by Notice of Inquiry (NOI) adopted
on September 16, 1996 (61 FR 50465). Additionally, in February 1998,
the Access Board issued accessibility guidelines (Access Board Order)
with respect to equipment (63 FR 5608, February 3, 1998). The NPRM is
the next step in establishing a record on which to base the
Commission's final rules implementing section 255.
3. The NPRM first explores the Commission's legal authority under
section 255, and tentatively concludes that the Commission has
authority to establish rules to implement section 255. The NPRM also
considers 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.
4. The NPRM then seeks comment on the interpretation of specific
statutory terms that are used in section 255. Many of the terms are
defined elsewhere in the Act, and the Commission seeks comment on its
tentative view that it is bound by these definitions in the context of
section 255. Other terms have been incorporated from the Americans with
Disabilities Act.3 The Commission seeks comment on how these
terms can be made workable in the context of telecommunications
services and equipment. In particular, the NPRM addresses certain
aspects of the term ``readily achievable,'' contained in section 255.
The Commission proposes to adopt the ADA definition, but also proposes
to establish specific factors to define ``readily achievable'' in the
telecommunications context.
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\3\ Public Law 101-336, 104 Stat. 327 (1990) (codified at 42
U.S.C. 12101-12213) (ADA).
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5. Finally, the NPRM sets forth proposals to implement and enforce
the requirement of section 255 that telecommunications offerings must
be accessible to the extent readily achievable. The NPRM also contains
proposals based on the requirement that, if accessibility is not
readily achievable, manufacturers and service providers must ensure
compatibility with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, to the extent it is readily achievable to do so. The
centerpiece of these proposals is a ``fast-track'' process designed to
resolve many accessibility problems informally, providing consumers
with 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,
the Commission 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, the Commission would look favorably upon demonstrations by
companies that they considered accessibility throughout their
development of telecommunications services and equipment.
I. Statutory Authority
6. The NPRM considers the scope of the Commission's rulemaking
authority and finds that, in section 255, Congress enacted broad
principles that require
[[Page 28458]]
interpretation and implementation in order to ensure an efficient,
orderly, and uniform regime governing access to telecommunications
services and equipment. As a result, the Commission tentatively
concludes that this regime can best be implemented if it adopts
specific guidance concerning the requirements of section 255, which
will enable the Commission to carry out its enforcement obligations
under the Act effectively and efficiently.
7. Additionally, the Commission finds that 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. The Commission
views the Access Board's equipment guidelines as a starting point for
the implementation of section 255 and stresses the importance of
striving to interpret section 255 in a way that ensures that
telecommunications services and equipment will be treated consistently.
The Commission seeks comment on its tentative conclusion that, while it
has discretion regarding use of the Access Board's guidelines in
developing its comprehensive implementation scheme, the Commission
proposes to accord the guidelines substantial weight in developing
regulations and in developing a broader structure for implementation.
8. The Commission determines that if Congress had intended to
permit complaints under section 255 only against common carriers, and
not manufacturers, the statute would say so explicitly. The Commission
seeks comment on whether there is any basis for concluding that
damages, pursuant to sections 207 and 208 of the Act or otherwise, are
available with respect to entities other than common carriers. In
addition, the Commission affirms that section 255 forecloses civil
actions for damages brought under section 207. The exclusive
jurisdiction established in the statute for Commission consideration of
complaints, in combination with the preclusion of private rights of
action, does not allow for private litigation. The Commission seeks
comment on this conclusion.
II. Statutory Definitions
A. Scope of Statutory Coverage
(1) ``Telecommunications'' and ``Telecommunications Service''
9. 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 only to
``telecommunications carrier[s'] * * * network features, functions, or
capabilities.'' 4 The Commission tentatively concludes that,
to the extent these phrases are broadly grounded in the Act, they
require no further definition, and the Commission need only elucidate
their application in the context of section 255. To the extent specific
terms arise solely in connection with section 255, however, the
Commission will consider whether further definition or clarification is
appropriate. The Commission notes that the use of the term
``telecommunications'' in the statute 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 Act. ``Information services,'' such as voice mail and
electronic mail, are excluded from regulation.
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\4\ 47 U.S.C. 255, 251(a)(2).
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10. Many services are considered telecommunications services and,
therefore, are clearly subject to the requirements of section 255. The
Commission recognizes, however, that there are some important and
widely used services which, under the Commission's 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, the Commission seeks
comment on whether Congress intended section 255 to apply to a broader
range of services.
(2) ``Provider of Telecommunications Service''
11. Because the Act does not define ``provider of
telecommunications service,'' the NPRM proposes some clarifications
regarding aspects of this phrase as used in section 255. With respect
to section 255, the Commission believes 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. The Commission therefore proposes that all
entities offering telecommunications services to the public should be
separately subject to section 255, without regard to accessibility
measures taken by the service provider who originates the offering. For
example, the statute does not exclude resellers from the definition of
telecommunications service provider. The NPRM seeks comment on this
proposal.
12. Additionally, the NPRM proposes to subject a provider of
telecommunications service to the requirements established in sections
255(c) and 255(d) only to the extent that it is providing
telecommunications services. The Commission seeks 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''
13. 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.'' 5
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\5\ 47 U.S.C. 255(b).
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(a) Equipment. 14. The NPRM finds that section 255 does not
distinguish between or set out separate accessibility requirements for
telecommunications equipment and customer premises equipment (CPE). The
Commission tentatively concludes that these terms encompass all
equipment used in the provision of telecommunications service, whether
collocated with a user or found elsewhere in a telecommunications
system. The Commission further tentatively concludes that section 255
applies to all such equipment the same requirement of functional
accessibility. In short, to the extent end users must interact with
equipment to use telecommunications services, section 255 applies. The
NPRM invites comment on this view.
15. The NPRM seeks comment on possible approaches to resolving
practical difficulties presented when inaccessibility may be due to
multiple elements of a telecommunications system.
16. The Commission next proposes that section 255 apply to multi-
use equipment only to the extent the equipment serves a
telecommunications function. The NPRM solicits 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
[[Page 28459]]
telecommunications service subject to section 255?
17. Regarding software products, the NPRM notes that the definition
of telecommunications equipment includes ``software integral to such
equipment (including upgrades).'' 6 Given that the focus of
section 255 should be on functionality, the Commission tentatively
views software as simply one method of controlling telecommunications
functions. The NPRM thus proposes to treat software integral to
telecommunications equipment the same as equipment or
telecommunications services, and seeks comment on this proposal.
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\6\ 47 U.S.C. 153(45).
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18. On the other hand, the Commission notes that the statutory
definition of CPE does not include a corresponding explicit reference
to software. Where a CPE manufacturer markets products that include
software, the Commission sees no reason to treat the bundled software
differently from any other component of the equipment. Where software
to be used with CPE is marketed separately from the CPE, however, the
Commission believes 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, the Commission believes that
software manufacturers would not be directly subject to section 255 for
software bundled with the CPE of other manufacturers. The NPRM seeks
comment on these issues, and in particular on the practical aspects of
applying this distinction.
(b) Manufacturer. 19. The NPRM tentatively concludes 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. The Commission seeks comment on this proposal.
20. Regarding the question of how section 255 should apply to
manufacturers involved in the production of multiple-source equipment,
the NPRM proposes to adopt the ``final assembler'' approach taken by
the Access Board guidelines. The Commission seeks comment on this
proposal.
21. The NPRM also tentatively concludes that the term
``manufacturer'' generally would not include post-manufacturing
distribution entities such as wholesalers and retailers. Where the
manufacturing and distributing entities are affiliated, however, or
where the distributing entities provide customer support services
commonly offered by manufacturers of equipment subject to section 255,
the Commission tentatively finds that 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.
The Commission seeks comment on the types of arrangements between
manufacturers and distributors that could present these situations,
including private brand arrangements, and seeks comment on effective
ways of dealing with them.
(4) ``Network Features, Functions, or Capabilities''
22. 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.'' 7 The Commission
recently explored this area from the standpoint of interconnection in
some detail in the Local Competition Order (61 FR 45476, August 29,
1996). The NPRM therefore tentatively concludes that the phrase
``network features, functions, or capabilities'' does not require
further interpretation in this proceeding.
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\7\ 47 U.S.C. 153(29).
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23. The NOI sought comment on the relationship between the duty of
carriers under section 251(a)(2) and the duty of equipment
manufacturers and service providers under section 255. Based on the
limited comments received on this issue, the NPRM tentatively concludes
that section 251(a)(2) governs carriers' configuration of their network
capabilities. It does not make them guarantors of the decisions of
service providers regarding how to assemble services from network
capabilities, and it does not impose requirements regarding
accessibility characteristics of the underlying components.
24. The Commission invites further comment on these views, on
specific situations that might bring section 251(a)(2) into play, and
on recommended approaches to address likely problems. The Commission
also seeks 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, the Commission seeks comment regard how responsibility
for any guidelines or standards for accessibility and compatibility of
equipment or services to be adopted in this proceeding should 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
25. Other essential terms used in section 255 are not native to the
Act, but have their roots in the ADA and other disability law. For
these terms, the Commission takes special note of the expertise and
recommendations of the Access Board. However, the Commission
tentatively concludes that it is bound to interpret section 255 in
light of the broader purposes of the 1996 Act and of the Communications
Act itself.
(1) ``Disability''
26. 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: 8
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\8\ 42 U.S.C. 12102(a)(2).
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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.
The NPRM proposes to follow what the Commission considers to be the
mandate of section 255 by using without modification or enhancement the
ADA definition of ``disability.'' In order to provide guidance for
equipment manufacturers and service providers seeking to increase
accessibility of their offerings, however, the NPRM also proposes 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. The Commission notes that it does not view the list as
either exhaustive or final. The Commission seeks comment on these
proposals, and invites suggestions for additional ways of making the
definition of ``disability'' useful to industry and consumers.
(2) ``Accessible to and Usable by''
27. Section 255 requires that equipment and telecommunications
services be ``accessible to and usable by individuals with
disabilities, if readily achievable.'' The Access Board guidelines
define ``usability'' as meaning ``that individuals with disabilities
have access to the full functionality and documentation for the
[[Page 28460]]
product, including instructions, product information (including
accessible feature information), documentation, and technical support
functionally equivalent to that provided to individuals without
disabilities,'' and define ``accessibility'' as compliance with
sections 1193.31 through 1193.43 of the Access Board's rules. The
Commission proposes to adopt the Access Board's definition of
``usability'' as part of the Commission's definition of ``accessible to
and usable by.'' The Commission tentatively concludes that there is no
reason to distinguish the two terms for purposes of section 255, and
will 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.
28. The Access Board guidelines define equipment accessibility as
including a list of functions. In addition, section 1193.37 of the
Access Board's rules calls for a pass-through of ``cross-manufacturer,
non-proprietary, industry-standard codes, translation protocols,
formats or other information necessary to provide telecommunications in
an accessible format.'' The Commission believes the Access Board's
definition of accessibility and the related Appendix materials in the
Access Board's order provide an appropriate basis for evaluating
accessibility obligations under section 255, and proposes to adopt them
as part of the definition of ``accessible to and usable by.'' The
Commission also proposes that such an evaluation should include not
only use of the equipment itself, but also support services akin to
what is provided to consumers generally to help them use equipment. The
NPRM seeks comment on this proposal and on how the Commission might
apply the Access Board's mandate that CPE ``pass through''
accessibility information. Further, the Commission invites comment on
criteria that would constitute service accessibility.
29. The NPRM next reiterates the Commission position, as stated in
the NOI, that section 255 reaches only those aspects of accessibility
to telecommunications over which equipment manufacturers and service
providers subject to the Commission's authority have direct control,
such as the design of equipment or the manner in which a
telecommunications service is delivered to users. The Commission seeks
comment on this position. 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.
The Commission also seeks 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?
(3) ``Compatible With''
(a) ``Peripheral devices or specialized CPE''. 30. 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.'' 9
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.'' The Board further explains its
definitions as follows:
\9\ 47 U.S.C. 255(d).
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[T]he term peripheral devices commonly refers to audio
amplifiers, ring signal lights, some TTY's, 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.
31. The NPRM seeks comment on these definitions, but tentatively
concludes that it is not necessary to distinguish between peripheral
devices and specialized CPE. The NPRM further tentatively concludes
that the reference in section 255(d) to equipment and devices
``commonly used * * * to achieve access'' identifies products with a
specific telecommunications functionality. 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 Act. The NPRM seeks
comment on this issue.
(b) ``Commonly used''. 32. The NPRM next considers criteria for
determining when equipment subject to section 255 is ``commonly used.''
In light of the specific definitions set out in the Access Board
guidelines, the NPRM seeks further comment with regard to when devices
and CPE should be considered ``commonly used,'' as described in the
statute. The NPRM also seeks 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. The Commission's 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. The Commission also notes that a listing of such
``commonly used'' components could be a valuable source of information
to apprise persons with disabilities of the available technologies, and
the Commission seeks comment regarding whether and how a listing could
be maintained.
(c) Compatibility. 33. Several commenters note that ensuring
compatibility requires coordination among, e.g., manufacturers of
specialized customer premises equipment, network equipment and CPE
manufacturers, and service providers. The Access Board lists five
criteria for determining compatibility, subject to applicability: (1)
External access to all information and control mechanisms; (2)
connection point for external audio processing devices; (3)
compatibility of controls with prosthetics; (4) TTY connectability; and
(5) TTY signal compatibility. The NPRM proposes to adopt these five
criteria. The Commission recognizes, however, 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. The NPRM seeks
[[Page 28461]]
comment on this proposal, and on these views.
(d) Other matters. 34. Finally, the NPRM requests 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). Specifically, the NPRM seeks
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 are also asked to address how the goal of compatibility can
be met without hampering competition or the development of new
technologies.
(4) ``Readily Achievable''
(a) General. 35. 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: 10
\10\ 42 U.S.C. 12181(9).
---------------------------------------------------------------------------
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.
The NPRM tentatively concludes 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.'' The Commission believes that this broad definition is
applicable to telecommunications equipment and services.
36. It is also the Commission's 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. Given the differences
between architectural barriers and telecommunications barriers, it is
the Commission's tentative view that the ADA factors should guide,
though not constrain, the development of factors that more meaningfully
reflect pertinent issues and considerations relevant to
telecommunications equipment and services. The Commission intends that
any factors developed in this rulemaking will be applied appropriately
to the facts of particular cases, and will not operate so as to
inadvertently impede efforts to arrive at reasonable judgments in each
case. The Commission seeks comment on these tentative conclusions.
(b) Telecommunications factors. 37. The Commission believes a
useful framework for analyzing whether a particular telecommunications
accessibility feature is ``readily achievable'' involves looking at
three areas: (1) Is the feature feasible? (2) What would be the expense
of providing the feature? (3) Given its expense, is the feature
practical? The Commission seeks comment on these proposed factors. The
Commission especially seeks comment on the practical implications of
various options: 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.
38. A difficult aspect of determining whether a particular
accessibility feature is readily achievable involves determining
whether it is practical, given the expenses involved. In determining
the practicality of providing a particular accessibility feature, the
Commission believes it is appropriate to consider the resources
available to the provider to meet the expenses associated with
accessibility, the potential market for the product or service, the
degree to which the provider would recover the incremental cost of the
accessibility feature, as well as issues regarding product life cycles.
Because the ultimate determination of whether it is readily achievable
to make a particular product offering accessible to users with a
particular disability may be complex and will depend on the particular
circumstances of the case, the nature and extent of section 255
obligations will generally have to be evaluated and refined on a case-
by-case basis, as the Commission resolves complaints of non-compliance.
The Commission seeks comment on this general approach, as well as on
the following specific elements of practicality.
(i) Resources
39. The NPRM examines various 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, and tentatively finds 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. The NPRM therefore
proposes to establish a presumption that the resources reasonably
available to achieve accessibility are those of the entity legally
responsible for the equipment or service that is subject to the
requirements of section 255. The NPRM also proposes, however, 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.
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.
40. The Commission tentatively concludes that this presumption may
potentially serve as an effective guard against evasive practices. In
any event, the NPRM proposes 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 the variety of organizational forms and other circumstances
make development of quantitative standards by the Commission
impracticable. The NPRM seeks comment on these proposals.
(ii) Market Considerations
41. The NPRM discusses the scope of the accessibility requirement
in terms of how the provision of either conflicting accommodations for
different
[[Page 28462]]
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. The NPRM also seeks comment on how to incorporate market
considerations into an evaluation of whether particular accessibility
features are practicable. Additionally, the NPRM invites comment on how
accessibility reductions should be treated.
(iii) Cost Recovery
42. The Commission also believes it is appropriate to consider the
extent to which an equipment manufacturer or service provider is likely
to recover the costs of increased accessibility. The Commission
explains that 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. Rather, the Commission merely finds that cost recovery is a
factor that a company should weigh in making its determination of what
is readily achievable. The NPRM further seeks comment on the extent
that service providers and manufacturers should consider affordability
of accessible products when making cost recovery assessments.
(iv) Timing
43. Several comments address accessibility obligations over the
course of a product life cycle, especially as it relates to improved
accessibility technology. The Commission phrases the timing question
broadly, by asking how product life cycles should be taken into account
in making ``readily achievable'' determinations. Given that section 255
has been in effect since February 1996, and in light of the
Commission's tentative conclusion that timing issues should be
considered as an element of ``readily achievable,'' the Commission
believes that a general ``grace period'' for compliance is not
warranted. The NPRM, however, seeks comment on this view.
III. Implementation Processes
44. The NPRM next proposes measures that will put section 255 into
action, ensuring manufacturers and service providers are in compliance
with the requirement that their products must be accessible, to the
extent readily achievable, and providing relief for consumers when
there are compliance problems. The Commission's proposals rest on two
principles: (1) Responsiveness to consumers; and (2) efficient
allocation of resources. The NPRM therefore proposes 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. The Commission has made every effort to
fashion proposals that will reduce administrative burdens for all who
might be involved in the complaint process, and invites suggestions for
still further improvements.
45. Thus, the NPRM proposes a two-phase program for dealing with
consumer 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. Matters or disputes that remain
unresolved may proceed to a second-phase dispute resolution process.
A. Fast-Track Problem-Solving Phase
46. An important part of the Commission's proposal is an informal,
``fast-track'' process designed to solve access problems quickly and
efficiently. If the proposed framework is adopted, this process would
function as follows:
The process would be initiated by the submission of a
complaint.
Upon receipt of a complaint, the Commission would promptly
forward the complaint to the manufacturer or service provider (or both)
whose offerings are 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 that is the subject of 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 was 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.
47. The Commission believes that the proposed fast-track process
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 intended to be minimal under the
Commission's proposal, and the process encourages the rapid, informal
solution of access problems. The Commission seeks comment on the
general outline and on the more specific aspects of this fast-track
process.
(1) Initial Contact With Commission
48. The NPRM first proposes to encourage any consumer who has not
directly contacted the manufacturer or service provider before
contacting the Commission to do so, and the Commission will provide
contact information for that purpose. Consumers would also be invited
to contact the Commission again if the problem is not resolved
satisfactorily. The Commission seeks comment on this proposal.
49. Further, because section 255 complaints will involve offerings
overseen by various Commission bureaus and offices, and because
consumers may be unfamiliar with these organizational differences, the
Commission anticipates establishing a central Commission contact point
for all section 255 inquiries and complaints. The NPRM seeks 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.
50. The NPRM proposes that 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. The NPRM also proposes, however, to make
available a complaint form, but not to require its use for the
initiation of a section 255 complaint. In whatever form a complaint is
received, however, the Commission will need to ascertain at least the
following information before it can proceed:
Complainant contact information: Name, mailing address,
and preferred
[[Page 28463]]
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.
The Commission seeks 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, the Commission would retain discretion to request from
complainants additional information that would help it to rapidly
address the request.
(2) Provider Contact
51. The Commission's fast-track proposal envisions initially
referring complaints to the manufacturer or service provider (or both,
as appropriate). This will necessitate obtaining a list of contact
points for each manufacturer and service provider subject to section
255. The NPRM solicits comment on a range of questions pertinent to the
establishment and maintenance of such a list of contacts and on whether
to require firms to provide accessibility contact information directly
to consumers and, if so, how. The Commission seeks comment on these
matters and also on whether the process should include a notification
to the complainant that the complaint has been referred and, if so,
what information the notification should include.
(3) Solution Period; Report
52. Upon receipt of a complaint, the Commission would promptly
forward it to the manufacturer or service provider (or both) whose
offerings are the subject of the complaint, and set a deadline for a
report of action taken to resolve the complaint. The NPRM seeks comment
on appropriate customer service standards for complaint forwarding. The
NPRM also seeks comment on whether the Commission should forward
complaints as submitted, regardless of format, or whether it should
forward ``translations'' or transcripts of complaints submitted in
formats such as Braille.
53. The NPRM next proposes an action report deadline of five
business days from the date the complaint is forwarded, as a reasonable
balance between providing 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, and providing accessibility as soon as
practicably possible. The NPRM invites comment on this proposal.
54. The NPRM also proposes that a provider may file an interim
report and a request for additional time in situations where a period
of five business days (for example) may be enough time for a provider
to assess a problem and begin to resolve it, but may not be long enough
to complete the resolution. The Commission seeks comment on this
proposal and also on how to provide a mechanism for either party (or
the Commission) 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.
55. By the end of the fast-track process, the manufacturer or
service provider is expected to report informally to the Commission
regarding whether the complainant has been provided the access sought,
and if not, why it has not. 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, the
Commission proposes that such reports may be submitted by telephone
call, electronic mail, facsimile or hard-copy letter. The Commission
seeks comment on this proposal.
56. Finally, to ensure the integrity of the fast-track process by
encouraging a sharing of information between complainant and
respondent, the NPRM proposes to require that respondents provide
copies of their reports to complainants. To avoid formalizing and
stifling the process, however, the NPRM also seeks comment not only on
this proposal, but on how to satisfy this requirement in the case of
telephonic or other oral reports.
(4) Commission Evaluation
57. At the end of the fast-track process, the NPRM proposes 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.
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.
58. The NPRM also proposes 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, the claim would be evaluated
using the same factors that would be used during a phase-two dispute
resolution proceeding. The Commission seeks comment on these proposals.
59. The NPRM proposes 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, further information
may be supplied that would assist the consumer in seeking relief
through other possible avenues. If the determination was to proceed to
dispute resolution proceedings, pertinent information relating to
initiating those processes would be noted. The Commission seeks comment
on this aspect of the fast-track proposal.
60. Finally, the NPRM notes that if the Commission's fast-track
determination was that the matter should be closed, information would
be provided to assist a complainant who disagreed with that
determination and wished to pursue the complaint to phase-two dispute
resolution. The Commission proposes
[[Page 28464]]
not to require any particular method for complainants to communicate
their desire to continue to further stages of dispute resolution, but
to leave the method to the complainant's discretion, in the same manner
as the complaint filing above. The NPRM seeks comment on these
proposals.
B. Use of Traditional Dispute Resolution Processes
(1) Informal Dispute Resolution Process
61. For those section 255 complaints that are not resolved under
fast-track procedures, the NPRM proposes to resolve most of these
complaints pursuant to informal, investigative procedures, which the
Commission considers to be more efficient and flexible than formal
procedures. To accommodate special circumstances, however, the NPRM
also proposes to establish formal adjudicatory procedures, to be
employed only where the complainant requests such resolution and the
Commission consents. Finally, the Commission also proposes to allow use
of alternative dispute resolution procedures in cases in which the
Commission and all parties agree that such procedures are appropriate.
The NPRM seeks comment on this general procedural framework, and on
other specific issues discussed in the full text of the NPRM.
62. The NPRM seeks comment on the Commission's proposal 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. The NPRM
also proposes not to establish any time limit for the filing of a
complaint under section 255. The Commission seeks comment on these
proposals, on the relationship of section 415 of the Act to the
Commission's complaint authority in section 255, and on the need for
regulatory parity between equipment manufacturers and service
providers.
63. In order to avoid confusion regarding when a respondent must
answer a complaint in the dispute resolution phase, and to provide an
efficient transition from the phase-one fast-track process to the
phase-two dispute resolution process, the NPRM proposes to specify the
due date in the Commission's written notice initiating the dispute
resolution phase. Given the likely complexity of many section 255
complaints, the Commission proposes generally to allow 30 days for a
respondent to answer a complaint, computed from the date of the written
notice. The Commission 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. The NPRM also proposes
to require that a respondent must serve a copy of the answer on the
complainant and on any other entity it implicates in its answer. The
NPRM additionally proposes a reply period of 15 calendar days for the
person who filed the original pleading to respond to answers, subject
to Commission adjustment in specific cases. The NPRM seeks comment on
these proposals.
64. In the interest of ensuring that the dispute resolution
processes for section 255 are as accessible as possible, the NPRM
proposes not to require any particular format for submissions from
complainants or respondents. Because telephonic and other non-permanent
oral presentations would not provide an appropriate record for decision
making, however, the Commission proposes to require that submissions be
in a permanent format. The Commission seeks comment on these proposals,
and on any other related issues.
65. Commission consideration of section 255 complaints may often
involve evaluation of information which may be considered proprietary
business data, including a company's resources available to achieve
accessibility. The Commission is sensitive to the need to protect the
confidentiality of such information, and does not want to discourage
its submission where relevant to the decision-making process. The
Commission's rules already provide confidentiality for proprietary
information in certain cases. (See, e.g., 47 CFR 0.457(d), 0.457(g),
0.459, and 1.731.) The Commission seeks comment on whether, in the
particular context of section 255, 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
66. While the Commission anticipates that most complaints not
resolved under fast-track procedures will be adjudicated pursuant to
the informal procedures previously discussed, the NPRM proposes 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. The NPRM is not proposing specific language for section
255 adjudicatory process rules, but proposes to model them on the
common carrier formal complaint procedures set out in Secs. 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, as
specified in the full text of the NPRM. The Commission seeks comment on
these variations.
67. The NPRM also does 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 Act, however, the Commission is
required to impose a filing fee for formal complaints directed against
common carriers, unless it can be demonstrated that waiving the fee
would be in the public interest. The NPRM seeks comment on the
circumstances under which the Commission should waive or lower this
fee, and on other fee-related questions as indicated in the full text
of the NPRM.
68. The NPRM finds that section 255 complaints need not be resolved
within the five-month deadline established in section 208(b) of the
Act. The NPRM finds that, because section 255 establishes Commission
authority to prescribe complaint procedures, separate from authority
conferred under section 208, any time limits for resolving complaints
under section 208 do not apply.
(3) Alternative Dispute Resolution Process
69. The NPRM proposes 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 Commission tentatively
concludes 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. The Commission seeks comment on these
views generally, and on related questions as detailed in the full text
of the NPRM.
70. 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 the Commission resolve complaints. Outside experts
and committees can perform a valuable consultative function, helping
businesses and consumers to develop
[[Page 28465]]
accessibility solutions as telecommunications products and services are
being developed. The NPRM invites comment on the role that such parties
could serve to help speed resolution of complaints.
71. 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. The Commission might rely
on outside experts to gather and evaluate data needed to resolve
accessibility questions. The Commission seeks comment on the utility of
relying on such experts and on what provisions might be made to
accomplish this objective.
(4) Defenses to Complaints
72. In response to an accessibility complaint or an investigation
conducted on the Commission's initiative without a prior complaint, the
Commission tentatively finds that it seems likely that the most common
defenses mounted by a manufacturer or service provider would involve a
claim that: (1) The product in question lies beyond the scope of
section 255; (2) the product in question is in fact accessible; or (3)
accessibility is not readily achievable. The first two defenses are
relatively straightforward, but claims of the third kind are likely to
present formidable difficulties. The Commission believes it would be
useful to set out for comment some tentative views on use of a
``readily achievable'' defense.
73. 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. 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.
Examples of the sorts of measures that would be credited by the
Commission are set out in the Access Board guidelines and in the
Appendix to the Access Board Order. The NPRM notes, however, that the
Board's guidelines should not be viewed as a ``laundry list'' of
requirements all firms subject to section 255 must adopt. Rather, each
firm should consider the guidelines in light of its situation and the
degree to which its products have or lack accessibility features, and
then adopt those features that will help it provide the accessibility
section 255 requires.
74. The Commission seeks 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 analogs applicable to service
providers. The Commission therefore specifically seeks comment on
measures suitable for service providers. In addition, the Commission
seeks comment on whether firms subject to section 255 should be
required to provide information regarding how consumers can contact
them with respect to accessibility issues, and whether such notice
should also include information involving how to contact the Commission
in case of accessibility problems, and if so, what information should
be required and how it should be provided.
C. Penalties for Non-Compliance
75. 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, the
Commission believes that it should employ the full range of penalties
available under the Act in enforcing section 255. The Commission
believes that the Act provides for the following sanctions, which the
Commission proposes 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, the Commission would
usually issue an order setting out its 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 Act.
Section 312 of the Act also provides for the issuance of a
cease and desist order directed to a station licensee or construction
permit holder, for the willful or repeated violation of or failure to
observe any provision of the Act. The Commission believes Sections 4(i)
and 208 of the Act provide a basis for such an order with respect to
non-licensees.
Sections 207 and 208 of the Act provide for the award of
damages for violations by common carriers and, arguably, others.
The Commission seeks comment on whether there is a basis
for ordering the retrofit of accessibility features into products that
were developed without such features, when including them was readily
achievable.
The Commission invites comment about these and other possible
remedies to enforce section 255 of the Act.
D. Additional Implementation Measures
76. The NPRM notes that other existing Commission processes (and
associated forms) may provide efficient vehicles for requirements that
may be developed 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. The NPRM seeks comment on whether such
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, in the case of common carriers, the NPRM seeks
comment on whether to modify the existing common carrier complaint
rules with respect to section 255 complaints so as to incorporate the
kinds of processes the NPRM has proposed for complaints filed under
section 255.
77. Finally, the Commission believes 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.
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).
Efforts by consumer and industry groups to establish
ongoing informational and educational programs, product and service
certification, standards-setting, and other measures aimed at bridging
the gap between disabilities needs and telecommunications solutions.
[[Page 28466]]
Development of peer review processes to complement the
proposed implementation measures.
The Commission particularly invites comment regarding the practical
aspects of implementing these or other similar implementation measures.
IV. Interim Treatment of Complaints
78. As noted earlier, section 255 became effective upon enactment
on February 8, 1996. Until the Commission adopts procedural rules in
this proceeding, complaints alleging violations of section 255 may be
filed pursuant to Section 1.41 of the Commission's Rules (47 CFR 141)
and other general procedural rules (47 CFR 1.45-1.52). 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 (See 47 CFR 1.711, 1.716-1.718, 1.720-1.736).
79. Because the Commission has existing complaint processes in
place which enable it to address complaints on a case-by-case basis,
the NPRM declines to establish interim rules. Furthermore, the NPRM
does not find it necessary to establish specific interim procedures.
80. Although the Commission recognizes that the proposals set forth
in the NPRM have no binding effect until formally adopted, they may
serve as guidance to parties concerning factors the Commission would
likely consider in a complaint proceeding. The Commission urges
potential complainants and defendants to take particular note of
interpretations of key terminology and the 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.
V. Administrative Matters
A. Ex Parte Presentations
81. The NPRM is a ``permit-but-disclose'' notice and comment
rulemaking proceeding. Ex parte presentations are permitted, provided
they are disclosed as provided in Commission rules. See generally 47
CFR 1.1202 , 1.1203, 1.1206(a).
B. Initial Regulatory Flexibility Analysis
82. As required by section 603 of the Regulatory Flexibility Act,
the Commission has prepared the following Initial Regulatory
Flexibility Analysis (IRFA) of the expected impact on small entities of
the proposals suggested in this document. Written public comments are
requested on the IRFA. These comments must be filed in accordance with
the same filing deadlines as comments on the rest of the NPRM but they
must have a separate and distinct heading designating them as responses
to the IRFA. The Commission's Office of Public Affairs, Reference
Operations Division, shall send a copy of the NPRM, including the IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration
in accordance with paragraph 603(a) of the Regulatory Flexibility Act.
Public Law 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).
(1) Need for, and Objectives of, Proposed Action
83. This rulemaking proceeding was initiated to propose means of
implementing and enforcing section 255 of the 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.
84. Given the fundamental role that telecommunications has come to
play in today's world, 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. Public Law 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. The Commission must do all it can to ensure that people
with disabilities are not left behind in the telecommunications
revolution and consequently isolated from contemporary life.
85. The Commission sets 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, the Commission 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, the Commission would look
favorably upon demonstrations by companies that they considered
accessibility throughout the development of telecommunications
products.
(2) Legal Basis
86. 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), 403.
(3) Description and Number of Small Entities Involved
87.The NPRM 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.
88. 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 NPRM. 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.
[[Page 28467]]
89. 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). 11 A small organization is generally
``any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.'' 12 Nationwide,
as of 1992, there were approximately 275,801 small organizations.
13 The Commission further describes and estimates the number
of small entity licensees and other covered entities that may be
affected by the proposed rules, if adopted.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
a. Equipment manufacturers. 90. 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 Estimated
Product class/code description firm count Comments
------------------------------------------------------------------------
36611............... Switching and 84 Includes central
switchboard office switching
equipment. equipment, PBX
equipment, cellular
mobile switching
equipment.
36613............... Carrier line 89 Includes repeaters,
equipment and multiplex
modems. equipment, channel
banks, subscriber
loop and carrier
line equipment, and
modems.
36614............... Other telephone 215 Includes single
and telegraph line, ISDN, key and
equipment. public pay
telephone sets,
cordless handsets,
data communications
equipment, video
conferencing
equipment, voice
and call message
processing
equipment, call
distributors,
facsimile
equipment.
36631............... Communications 346 Includes mobile
systems and cellular equipment,
equipment. conventional and
trunked system
equipment, SONET-
standard equipment.
36632............... Broadcast, 172 Includes cable
studio, and equipment possibly
related used to provide
electronic telephone service,
equipment. such as subscriber
equipment.
35715............... Personal 89 Includes personal
computers and computers with CPE
workstations. capabilities.
35716............... Portable 35 Typically with
computers. attached display.
35771............... Computer 259 Excludes common
peripheral storage, scanning,
equipment, not and other
elsewhere peripherals
classified. 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 648 Includes
assemblies. 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 57 Includes remote
terminals. 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 72 Includes funds
subassemblies transfer devices
for computer and point of sale
peripherals terminals (29
and input/ firms).
output
equipment.
------------------------------------------------------------------------
b. Software. 91. 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. The Commission
seeks comment on the impact of its proposed rules on the small
businesses within this industrial category.
c. Telecommunications service entities. (i) Introduction. 92.
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.
93. The Commission seeks comment as to whether this definition is
appropriate in this context. Additionally, the Commission requests 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.
94. 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
[[Page 28468]]
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. The
Commission tentatively concludes that fewer than 3,497 telephone
service firms are small entity telephone service firms or small
incumbent local exchange carriers.
95. According to the Telecommunications Industry Revenue:
Telecommunications Relay Service Fund Worksheet Data (TRS Worksheet),
there are 3,459 interstate carriers.14 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.
---------------------------------------------------------------------------
\14\ Federal Communications Commission, Common Carrier Bureau,
Industry Analysis Division, Carrier Locator: Interstate Service
Providers, Figure 1 (Types of Interstate Service Providers) (Nov.
1997) (TRS Data).
---------------------------------------------------------------------------
(ii) Wireline Carriers and Service Providers. 96. 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 1992.15 According to the
SBA definition, as 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.
---------------------------------------------------------------------------
\15\ 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).
---------------------------------------------------------------------------
97. 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. The Commission
does not have information regarding the number of carriers that are not
independently owned and operated, and thus is 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, the Commission estimates that there
are fewer than 2,295 small telephone communications companies other
than radiotelephone companies.
(A) Incumbent Local Exchange Carriers. 98. 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 the
Commission is aware appears to be the data that the Commission collects
annually in connection with the TRS Worksheet. According to the
Commission's 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, the Commission is 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, the Commission estimates that there are fewer than 1,376
small incumbent LECs.
99. 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 the Commission's
prior practice) from the definition of ``small entity'' and ``small
business concerns.'' Accordingly, the Commission's 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, the Commission 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.''
(B) Interexchange Carriers. 100. 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
the Commission collects annually in connection with the TRS Worksheet.
According to the Commission's most recent data, 149 companies reported
that they were engaged in the provision of interexchange services. The
Commission does not have information on the number of carriers that are
not independently owned and operated, nor have more than 1,500
employees, and thus the Commission is 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, the
Commission estimates that there are fewer than 149 small entity IXCs.
(C) Competitive Access Providers and Competitive Local Exchange
Carriers. 101. 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 the Commission
collects annually in connection with the TRS Worksheet. According to
the Commission's most recent data, 119 companies reported that they
were engaged in the provision of competitive access services. The
Commission does not have information on the number of carriers that are
not independently owned and operated, nor have more than 1,500
employees, and thus is 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, the Commission
estimates that there are fewer than 119 small CAPs.
(D) Operator Service Providers. 102. 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 the Commission collects annually in
connection with the TRS Worksheet. According to the Commission's most
recent data, 27 companies reported that they were engaged in the
provision of operator services. The Commission does not have
information on the number of carriers that are not independently owned
and operated, nor have more than 1,500 employees, and thus is unable at
this time to estimate with greater precision the number of operator
service
[[Page 28469]]
providers that would qualify as small business concerns under the SBA
definition. Consequently, the Commission estimates that there are fewer
than 27 small operator service providers.
(E) Pay Telephone Providers. 103. 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 the
Commission collects annually in connection with the TRS Worksheet.
According to the Commission's most recent data, 533 companies reported
that they were engaged in the provision of pay telephone services. The
Commission does not have information on the number of carriers that are
not independently owned and operated, nor have more than 1,500
employees, and thus is 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, the
Commission estimates that there are fewer than 533 small pay telephone
providers.
(F) Resellers (Including Debit Card Providers). 104. 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 the Commission's most recent data, 345
companies reported that they were engaged in the resale of telephone
service. The Commission does not have information on the number of
carriers that are not independently owned and operated, nor have more
than 1,500 employees, and thus the Commission is 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, the Commission estimates that there are fewer
than 345 small entity resellers.
(iii) International Service Providers. 105. 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) (13 CFR
120.21). 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.
(A) International Public Fixed Radio (Public and Control Stations).
106. There are 15 licensees in this service. The Commission does not
request or collect annual revenue information, and thus is unable to
estimate the number of international public fixed radio licensees that
would constitute a small business under the SBA definition.
(B) Fixed Satellite Transmit/Receive Earth Stations. 107. There are
approximately 4,200 earth station authorizations, a portion of which
are Fixed Satellite Transmit/Receive Earth Stations. The Commission
does not request or collect annual revenue information, and thus is
unable to estimate the number of the earth stations that would
constitute a small business under the SBA definition.
(C) Fixed Satellite Small Transmit/Receive Earth Stations. 108.
There are 4,200 earth station authorizations, a portion of which are
Fixed Satellite Small Transmit/Receive Earth Stations. The Commission
does not request or collect annual revenue information, and thus is
unable to estimate the number of fixed satellite transmit/receive earth
stations may constitute a small business under the SBA definition.
(D) Fixed Satellite Very Small Aperture Terminal (VSAT) Systems.
109. 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. The Commission does not request or collect
annual revenue information, and thus is unable to estimate of the
number of VSAT systems that would constitute a small business under the
SBA definition.
(E) Mobile Satellite Earth Stations. 110. There are two licensees.
The Commission does not request or collect annual revenue information,
and thus is unable to estimate whether either of these licensees would
constitute a small business under the SBA definition.
(F) Space Stations (Geostationary). 111. Commission records reveal
that there are 37 space station licensees. The Commission does not
request or collect annual revenue information, and thus is unable to
estimate of the number of geostationary space stations that would
constitute a small business under the SBA definition.
(G) Space Stations (Non-Geostationary). 112. There are six Non-
Geostationary Space Station licensees, of which only one system is
operational. The Commission does not request or collect annual revenue
information, and thus is unable to estimate of the number of non-
geostationary space stations that would constitute a small business
under the SBA definition.
(iv) Wireless Telecommunications Service Providers. 113. 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 (13 CFR 120.21). 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.
(A) Cellular Radio Telephone Service. 114. 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 the Commission 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.
115. The Commission therefore has used the 1992 Census of
Transportation, Communications, and Utilities,
[[Page 28470]]
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. The Commission assumes that, for
purposes of its 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, the
Commission does not know the number of cellular licensees, since a
cellular licensee may own several licenses.
(B) Broadband Personal Communications Service. 116. 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.
117. The Commission has auctioned broadband PCS licenses in all of
its spectrum blocks A through F. The Commission does 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, the Commission concludes that the
number of broadband PCS licensees that would be affected by the
proposals in the NPRM 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.
(C) Specialized Mobile Radio. 118. 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.
119. The proposals set forth in the NPRM may apply to SMR providers
in the 800 MHz and 900 MHz bands. The Commission does 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.
120. 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, the Commission concludes
that the number of geographic area SMR licensees affected by the
proposals set forth in the NPRM includes these 60 small entities.
121. 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, the Commission assumes, for purposes of its evaluations
and conclusions in this IRFA, that all of the licenses will be awarded
to small entities, as that term is defined by SBA.
(D) 220 MHz Service.
122. 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.
123. 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, the Commission applies 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 the Commission
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.
124. The Commission therefore uses 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, the
Commission does not know how many of these 1,166 firms are likely to be
involved in the provision of 220 MHz service.
(E) Mobile Satellite Services (MSS). 125. 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 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 47 CFR
20.7(c).
126. 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, the Commission is 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.
(F) Paging. 127. 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
[[Page 28471]]
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, the Commission 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. The Commission does
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 is 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, the Commission estimates that
there are fewer than 364 small paging carriers that may be affected by
the proposed rules, if adopted. The Commission estimates that the
majority of private and common carrier paging providers would qualify
as small entities under the SBA definition.
(G) Narrowband PCS. 128. 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
licenses and 2,958 BTA licenses 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, the Commission assumes that all of the licenses
will be awarded to small entities, as that term is defined by the SBA.
(H) Air-Ground Radiotelephone Service. 129. 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, the Commission 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 the Commission
estimates that almost all of them qualify as small under the SBA
definition.
(I) Local Multipoint Distribution Service (LMDS). 130. 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.
131. The Commission has not developed a definition of small
entities applicable to LMDS licensees, which is a new service. In the
LMDS Order (62 FR 16514, Apr. 7, 1997) the Commission adopted criteria
for defining small businesses for determining bidding credits in the
auction, but the Commission believes these criteria are applicable for
evaluating the burdens imposed by section 255. The Commission defines 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.
132. 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. The Commission estimates that
all of these 93 bidders would qualify as small under the SBA
definitions, but the Commission cannot yet determine what percentage
would be offering telecommunications services.
(J) Rural Radiotelephone Service. 133. 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). The Commission 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 the Commission estimates that almost all of
them qualify as small entities under the SBA's definition.
(K) Wireless Communications Services. 134. 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. The Commissin
concludes that the number of geographic area WCS licensees affected
includes these eight entities.
(L) 39 GHz Band. 135. 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.
136. The size data provided by SBA does not enable the Commission
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.16 The Commission therefore has
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
[[Page 28472]]
employees. Therefore, a majority of 39 GHz entities providing
radiotelephone services could be small businesses under the SBA
definition.
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\16\ 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).
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137. However, in the 39 GHz Band NPRM and Order, 61 FR 02452, Jan.
26, 1996, the Commission 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. The Commission has not yet received approval by the SBA for
this definition. The Commission assumes, for purposes of its
evaluations, that nearly all of the 39 GHz licensees will be small
entities, as that term is defined by the SBA.
(4) Reporting, Recordkeeping, and Other Compliance Requirements
138. As the Commission has 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 NPRM deals
with behaviors which demonstrate that such effort and would be looked
upon favorably in the event of a filed complaint.
139. 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 NPRM, the
Commission suggests and seeks comment on a one-week period in which the
manufacturer or service provider should resolve the customer's problem.
Although the Commission wishes to encourage speedy responses, it
recognizes 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. The Commission seeks comment on whether
the one-week time period, and whether the informal means of requesting
extensions would be disproportionately burdensome on small businesses.
140. 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 the Commission seeks comment on whether this implicit burden
needs to be recognized, and, if so, whether there is a disproportionate
impact on small businesses.
141. An additional recordkeeping requirement for which the
Commission seeks 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. (See 47 CFR 2.901-2.1093.) Similarly, the Commission seeks
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 the Commission perceives the section 255 reporting burden to
be minimal, as in checking off a box on a form required for other
purposes, the Commission requests comment on how such requirements can
be modified to reduce the burden on small entities and still meet the
objectives of this proceeding.
(5) Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
142. In the Notice of Inquiry, the Commission 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.17
---------------------------------------------------------------------------
\17\ 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).
---------------------------------------------------------------------------
143. The NPRM principally proposes procedural requirements as a
practical, common sense means to ensure that consumers with
disabilities have access to telecommunications services and equipment.
144. The use of case-by-case determinations exclusively, in lieu of
any rules, was considered but tentatively discarded in the NPRM 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.
145. The issuance of guidelines or a policy statement was also
considered but tentatively discarded, because of the Commission's 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.
146. 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, the Commission tentatively
has decided that the promulgation of rules governing the design
process, would impose burdens on covered entities whose resources would
be better
[[Page 28473]]
spent in achieving and improving accessibility.
147. As a result of the Commission's tentative decision to rely
primarily on procedural rules, it has taken several steps to minimize
burdens on all regulated entities. First, the Commission has sought to
provide incentives to industry for early and on-going consideration of
accessibility issues. In particular, the Commission 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, the Commission has 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, the Commission has intended
to fashion efficient, consumer-friendly means of dealing with problems.
By instituting a pre-complaint process in a fast-track, problem-solving
phase, the Commission is attempting to implement the objectives of the
statute in a cooperative, as opposed to adversarial, manner. The
Commission welcomes comments on the extent to which the tentative
approach it has adopted in the NPRM is likely to further the goals of
section 255 without creating an unfair economic impact on small
entities.
148. The Commission believes it has 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.
149. 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.
150. To minimize any negative impact, however, the Commission seeks
comment on the nature of incentives for small entities, which will
redound to their benefit. The Commission will continue to examine
alternatives in the future with the objectives of eliminating
unnecessary regulations and minimizing significant economic impact on
small entities. The Commission seeks comment on significant
alternatives interested parties believe it should adopt.
(6) Federal Rules Which Overlap, Duplicate, or Conflict With These
Rules
151. 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. The Commission views
these guidelines as a starting point for the implementation of section
255, but because they do not cover telecommunications services, the
Commission must necessarily adapt these guidelines in its comprehensive
implementation scheme. As such, it is the Commission's tentative view
that the proposed rules do not overlap, duplicate, or conflict with the
Access Board Final Rule, 36 CFR Part 1193.
VI. Ordering Clauses
152. 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 the NPRM, and that comment is sought on these proposals.
153. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this NPRM,
including the Initial Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Individuals with
disabilities, Reporting and recordkeeping requirements,
Telecommunications.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-13806 Filed 5-21-98; 8:45 am]
BILLING CODE 6712-01-P
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