Telecommunications Act Accessibility Guidelines
Federal RegisterFeb 3, 1998
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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board or Board) is issuing final guidelines for accessibility,
usability, and compatibility of telecommunications equipment and
customer premises equipment covered by section 255 of the
Telecommunications Act of 1996. The Act requires manufacturers of
telecommunications equipment and customer premises equipment to ensure
that the equipment is designed, developed, and fabricated to be
accessible to and usable by individuals with disabilities, if readily
achievable. When it is not readily achievable to make the equipment
accessible, the Act requires manufacturers to ensure that the equipment
is compatible with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable.
DATES: Effective date: March 5, 1998.
FOR FURTHER INFORMATION CONTACT: Dennis Cannon, Office of Technical and
Information Services, Architectural and Transportation Barriers
Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-
1111. Telephone number (202) 272-5434 extension 35 (voice); (202) 272-
5449 (TTY). Electronic mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Availability of Copies and Electronic Access
Single copies of this publication may be obtained at no cost by
calling the Access Board's automated publications order line (202) 272-
5434, by pressing 1 on the telephone keypad, then 1 again, and
requesting publication S-34 (Telecommunications Act Accessibility
Guidelines Final Rule). Persons using a TTY should call (202) 272-5449.
Please record a name, address, telephone number and request publication
S-34. This document is available in alternate formats upon request.
Persons who want a copy in an alternate format should specify the type
of format (cassette tape, Braille, large print, or computer disk). This
document is also available on the Board's Internet site (http://
www.access-board.gov/rules/telfinal.htm).
This rule is based on recommendations of the Board's
Telecommunications Access Advisory Committee (TAAC or Committee). The
Committee's report can be obtained by contacting the Access Board and
requesting publication S-32 (Telecommunications Access Advisory
Committee final report). The report is also available on the Board's
Internet site (http://www.access-board.gov/pubs/taacrpt.htm).
Background
On February 8, 1996, the President signed the Telecommunications
Act of 1996. The Access Board is responsible for developing
accessibility guidelines in conjunction with the Federal Communications
Commission (FCC) under section 255(e) of the Act for telecommunications
equipment and customer premises equipment. The guidelines are required
to principally address the access needs of individuals with
disabilities affecting hearing, vision, movement, manipulation, speech,
and interpretation of information.
Section 255 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 individuals with disabilities, if readily achievable. A
provider of telecommunications services shall ensure that the service
is accessible to and usable by individuals with disabilities, if
readily achievable. Whenever either of these is not readily achievable,
a manufacturer or provider shall ensure that the equipment or service
is compatible with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable. Section 255(f) provides that the
FCC shall have exclusive jurisdiction in any enforcement action under
section 255. It also precludes an individual's private right of action
to enforce any requirement of section 255 or any regulation issued
pursuant to section 255.
On April 18, 1997, the Access Board issued a notice of proposed
rulemaking (NPRM) in the Federal Register (62 FR 19178) for
accessibility, usability, and compatibility of telecommunications
equipment and customer premises equipment covered by the
Telecommunications Act of 1996. In addition to proposing specific
guidelines, the NPRM asked questions about some of the proposed
provisions. The proposed rule was based on recommendations of the
Board's Telecommunications Access Advisory Committee.
The Committee was convened by the Access Board in June 1996 to
assist the Board in fulfilling its mandate to issue guidelines under
the Telecommunications Act. The Committee was composed of
representatives of manufacturers of telecommunications equipment and
customer premises equipment; manufacturers of specialized customer
premises equipment and peripheral devices; manufacturers of software;
organizations representing the access needs of individuals with
disabilities; telecommunications providers and carriers; and other
persons affected by the guidelines.
The Board received 159 comments in response to the NPRM. Comments
were received from 109 individuals who identified themselves as being
hard of hearing. Also, comments were received from 19 members of the
telecommunications industry and industry associations. Some of these
comments were received from manufacturers of specialized customer
premises equipment and peripheral devices, service providers and
telecommunications equipment and customer premises equipment.
Additionally, 31 comments were received from organizations representing
persons with disabilities. Comments came from state organizations
representing individuals with disabilities, advocacy organizations,
independent consultants and academic organizations. Some of the
comments received were from members of the TAAC.
The majority of TAAC members supported the proposed rule but had
recommendations for changes to specific provisions. The majority of
comments received from individuals who identified themselves as being
hard of hearing supported the rule and specifically supported
increasing volume controls on customer premises equipment. A few
comments raised by these individuals included some issues that were not
covered in the proposed rule. For example, some of these comments
recommended providing enhanced radio volume, providing a device that
displays through text what is being said on radio stations,
[[Page 5609]]
providing car radios equipped with headphone jacks and providing closed
captioning for television programs and motion pictures. Other comments
included recommendations for more efficient and effective
telecommunications relay service operations, designing accessible
roadside emergency call boxes which ensure two-way communications by
people with hearing or speech disabilities and designing homes with
acoustically absorbent materials. These issues are not covered by
section 255 of the Telecommunications Act and are outside of the
Board's jurisdiction in this rulemaking.
General Issues
This section of the rule addresses general issues raised by
comments filed in response to the NPRM. Individual provisions addressed
in this rule are discussed in detail under the Section-by-Section
Analysis below.
Rulemaking Authority of the Board and Effect of the Guidelines
Section 255(e) of the Telecommunications Act provides that the
Access Board shall develop guidelines for accessibility of
telecommunications equipment and customer premises equipment in
conjunction with the Federal Communications Commission. The Board is
also required to review and update the guidelines periodically.
Comment. Several comments from the telecommunications industry
raised questions about the relationship between the Board's guidelines
and areas within the FCC's jurisdiction. The commenters noted that the
FCC has exclusive jurisdiction with respect to any complaint under
section 255 and that the Senate report envisioned that the guidelines
would ``serve as the starting point for regulatory action by the
Commission.'' Some of the commenters suggested that, absent rulemaking
by the FCC, the guidelines are not binding.
Response. The Telecommunications Act of 1996 is the result of a
conference committee which combined elements of the House and Senate
bills. Section 255 is based on section 262 of the Senate bill (S. 652)
which provided first for the Board to develop accessibility guidelines
for telecommunications equipment and customer premises equipment, and
then for the FCC to issue regulations consistent with the guidelines
developed by the Board. This framework is similar to that established
by Congress for implementing the accessibility requirements under the
Architectural Barriers Act (ABA) and the Americans with Disabilities
Act (ADA). The Board issues accessibility guidelines based on its
expertise and experience which serve as the basis for further
regulatory action by other agencies (General Services Administration,
Housing and Urban Development, Department of Defense, and the U.S.
Postal Service for the ABA; DOJ and the Department of Transportation
for the ADA). The conference committee bill dropped the provision
requiring the FCC to issue rules under section 255, which has resulted
in questions raised by the comments. Both the Senate bill and
conference committee bill gave the FCC exclusive jurisdiction with
respect to complaints under section 255.
The FCC issued a notice of inquiry (NOI) on September 19, 1996,
seeking public comment regarding its responsibilities under section
255. The FCC noted that it may select from a variety of approaches for
enforcing section 255, including acting on a ``complaint-by-complaint
basis, without issuing any rules or other guidance, beyond the
guidelines issued by the Access Board'' or ``adopt[ing] the Board's
guidelines, either as adopted by the Board or with revisions, as
Commission rules after the appropriate Commission proceedings.'' The
FCC ultimately will decide which approach to take. However, regardless
whether the FCC proceeds with case-by-case determinations or
rulemaking, Congress clearly intended that the FCC's actions be
consistent with the Board's guidelines.
Declaration of Conformity
Comment. A few commenters from the telecommunications industry and
disability organizations urged the Board to adopt the Declaration of
Conformity as recommended by the TAAC. In the NPRM, the Board stated
that ``since enforcement for section 255 is under the exclusive
jurisdiction of the FCC, this rule does not address the Declaration of
Conformity''. The United States Telephone Association (USTA) believed
that the Board should require a Declaration of Conformity and that it
would be wrong to merely regard the Declaration of Conformity as a
complaint resolution tool. USTA states that a ``Declaration of
Conformity assures the purchaser of the telecommunications equipment
and/or customer premises equipment that the manufacturer has complied
with section 255. It can also serve to educate the customer about what
to do to communicate with the manufacturer, how to request alternate
forms of user information, etc. Without a Declaration of Conformity, a
customer may not be able to determine if the product to be purchased
has been reviewed for accessibility.'' The United Cerebral Palsy
Associations (UCPA) recommended that the final rule include a
requirement for a Declaration of Conformity and that it should be on a
separate piece of paper to make it more visible.
Response. The Access Board recognizes that there is a need to have
an effective and efficient enforcement process for section 255,
including the possible need for a Declaration of Conformity, as
recommended by the TAAC. However, it is the FCC, and not the Access
Board, which is responsible for enforcing section 255 through a
complaint process. The Access Board has not addressed issues in this
final rule that are clearly within the FCC's jurisdiction. The
information not related to compliance that was recommended to be
included in a Declaration of Conformity, primarily the requirement to
supply a point of contact, is required by section 1193.33 of this rule.
Accessibility Engineering Specialists
Comment. The NPRM referred to the establishment of an Association
of Accessibility Engineering Specialists under the National Association
of Radio and Telecommunications Engineers. In its comments, USTA
suggested that groups such as this should more appropriately be
structured under an organization such as the American National
Standards Institute (ANSI).
Response. As stated in the NPRM, the TAAC ``report also recommends
the creation of a technical subgroup of a professional society which
could train and eventually certify `accessibility specialists' or
engineers. As a result of work by several Committee members, such a
group has already been created. The National Association of Radio and
Telecommunications Engineers (NARTE), a private professional
association, recently formed the Association of Accessibility
Engineering Specialists. This association is expected to sponsor
conferences and workshops, disseminate information, and suggest course
curricula for future training and certification.'' The Board
appreciates the fact that NARTE established the Association of
Accessibility Engineering Specialists and believes that this group will
contribute to advances in the field of accessible telecommunications
equipment and customer premises equipment and assist in maintaining a
cooperative dialogue among manufacturers, product developers,
engineers, academicians, individuals with disabilities, and others
involved in
[[Page 5610]]
the telecommunications equipment design and development process.
Commenters who wish to have an association created under the auspices
of ANSI, or any similar organization, should approach that
organization. The Board encourages any efforts to move accessibility
design into the mainstream of telecommunications and will work
cooperatively with any established group to further those ends.
Market Monitoring Report
Comment. The NPRM discussed that the Board intends to compile a
market monitoring report on a regular basis and make it available to
the public. USTA commented that the Board did not offer what type of
information it will specifically monitor, how often, and to what end.
UCPA supported a market monitoring report and suggested that the Board
specify an annual report. UCPA recommended that the report should be
structured for rapid turnaround after the close of the monitoring
period and that successful access solutions be highlighted.
Response. The Board intends to compile a market monitoring report
after the guidelines are published and make it available to the public.
At this point, the Board does not have a schedule for when the first
report will begin or when it will be issued, since it must be
incorporated into the Board's on-going research and technical
assistance program. The report will address the state of the art of
customer premises equipment and telecommunications equipment and the
progress of making this equipment accessible and identify successful
access solutions. Since the Board is required to review and update
these guidelines periodically, information from this report will assist
the Board in determining what provisions of the guidelines may need to
be revised or whether new provisions need to be added. In particular,
some issues will be targeted for examination, such as redundancy and
selectability, the effect of hearing aid interference on bystanders,
and whether persons with hearing impairments continue to report having
trouble using public pay telephones. These issues are discussed further
in the section-by-section analysis.
In addition, the Board intends to investigate whether the report
might be compiled in cooperation with another government entity or
private sector organization. For example, the National Institute on
Disability and Rehabilitation Research (NIDRR) funds a variety of
research projects and centers, including a research center devoted to
telecommunications. Also, some private sector organizations have begun
highlighting accessible products in reports and trade shows. The Board
intends to explore whether it would be appropriate to produce the
market monitoring report in conjunction with one of those groups or
companies.
Section-by-Section Analysis
This section of the preamble summarizes each of the provisions of
the final rule and the comments received in response to the proposed
rule. Where the provision in the final rule differs from that of the
proposed rule, an explanation of the modification is provided. The text
of the final rule follows this section. An appendix provides examples
of non-mandatory strategies for addressing these guidelines.
Subpart A--General
Section 1193.1 Purpose
This section describes the purpose of the guidelines which is to
provide specific direction for the accessibility, usability, and
compatibility of telecommunications equipment and customer premises
equipment covered by the Telecommunications Act of 1996. Section 255(b)
of the Act requires that manufacturers of telecommunications equipment
or customer premises equipment shall ensure that the equipment is
designed, developed, and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable. Section 255(d) of
the Act requires that whenever it is not readily achievable to make a
product accessible, a manufacturer shall ensure that the equipment is
compatible with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable. The requirement for the Board to
issue accessibility guidelines is contained in section 255(e).
No substantive comments were received and no changes have been made
to this section in the final rule.
Section 1193.2 Scoping
The NPRM stated that section 255 is intended to apply to all
equipment since the Board ``finds no evidence in the statute or its
legislative history that Congress intended individuals with
disabilities to have fewer choices in selecting products than the
general public'' and concluded that all products are subject to the
guidelines.
Comment. The majority of comments, including the majority of those
from TAAC members, supported the position that all products are subject
to the guidelines. Individuals with disabilities and advocacy groups
generally said they wanted the opportunity to choose among the features
of various products offered to the general public, not to be forced to
settle for the features a manufacturer decided to offer on the
``accessible'' product. ``Having all the models of equipment carry
accessibility features is a must for me,'' said one. ``My needs are not
necessarily the same as another hearing-impaired person's. Among the
products that must have accessibility features are pagers, which must
have vibrating mode or else they are useless. I want to have the choice
to pick the right kind of vibrating pager based on my needs.'' The
Massachusetts Assistive Technology Partnership supported the Board's
finding that section 255 applies on a product-by-product basis. It said
``[w]ithout a clear requirement that accessibility be provided at the
individual product level, customers with disabilities risk being caught
forever in the same unacceptable circumstance we have experienced to
date: a telecommunications marketplace which segregates accessible
products from mainstream products, with all the concomitant problems
which ``special'' production entails--lesser availability, greater
cost, poorer quality and lack of full compatibility. While there will
surely be instances where a manufacturer will choose to offer
additional accessibility features in one or two products in a product
line where it was not readily achievable to offer those features in
every product in a product line, the proposed rule in no way prevents a
manufacturer from making such an offering. The essential consideration
is that accessibility, usability and compatibility must be properly
considered at the individual product level * * * .''
USTA, the principal trade association of the local exchange carrier
industry, and a TAAC member, agreed that all telecommunications
products and customer premises equipment should be subject to the
guidelines. It stated that ``[t]he issue of accessibility must relate
to the whole universe of technology. To do otherwise will create a
hierarchy of opportunities for customers--a hierarchy that could
seriously jeopardize telecommunications service delivery.'' Bell
Atlantic and NYNEX also supported a product-by-product approach to
encourage manufacturers of telecommunications equipment and customer
premises equipment to make accessible the widest array of
[[Page 5611]]
functionally different products. Bell Atlantic and NYNEX were concerned
that appropriately equipped telecommunications equipment and customer
premises equipment should be available to implement or complement their
services and that without needed network equipment, service providers
could be unable to meet the telecommunications needs of people with
disabilities in an efficient manner. Bell Atlantic and NYNEX also made
the point that accessibility can often be achieved only through
compatible customer premises equipment, operating with network
services. They stated that ``[u]nless manufacturers are obligated to
make a variety of products with different functions accessible,
assuming such accessibility is readily achievable, the accessibility
options available to service providers and their customers could be
severely limited.'' Bell Atlantic and NYNEX added that even without a
legal mandate, adding readily achievable accessibility features to
products and services is simply good business.
On the other hand, manufacturers and the Telecommunications
Industry Association (TIA) uniformly said the guidelines should be
applied to product ``lines'' or ``families'' and the Consumer
Electronics Manufacturers Association (CEMA) said compliance should
take into account the ``market as a whole'' with respect to
accessibility. In particular, Ericsson, questioned the NPRM
interpretation by saying ``while there is no language in the statute
which specifically provides guidance on whether all equipment or some
equipment must be made accessible or compatible, there is similarly no
language in the legislative history which supports the Board's
conclusion''. Some manufacturers read the word ``equipment'' in the
statute as plural, which they felt supported their claim for coverage
of groups of products rather than individual products.
Several manufacturers drew analogies to portions of facilities
covered by the Americans with Disabilities Act (ADA), such as stadium
seats, hotel rooms, and telephones in a bank as giving weight that only
some telecommunications equipment and customer premises equipment needs
to be accessible. The commenters said that the ADA has recognized that
proper application of the readily achievable definition, which defines
the scope of the obligations under the ADA, will, in some
circumstances, result in people with disabilities having accessibility
but fewer choices than the general public. The commenters concluded
that all products should not be required to be accessible if other
models of a similar product with comparable features and at comparable
cost are available.
These commenters also added that with a broad range of
accessibility needs to be met, it is unrealistic to expect that a
manufacturer could provide this range of products within the limits of
the readily achievable limitation. These commenters further said that
varying and occasionally conflicting accessibility needs of persons
with different disabilities virtually dictate a product family
approach. The Information Technology Industries Council commented that
accessibility issues raised by section 255 require the Board to
consider cost impact issues of far greater scope and complexity,
involving the recurring costs of designing and manufacturing complex
products sold in a highly competitive marketplace characterized by
rapid technological innovation. Because competitive profit margins are
thin, company survival and continuing research and innovation are
extremely sensitive to cost increases. Many telecommunications industry
commenters expressed concern that the guidelines will have an
inhibiting effect if they discourage equipment manufacturers from
developing specialized products targeted to the differing, and
sometimes mutually inconsistent, needs of individuals with differing
disabilities.
Response. Section 255 requires manufacturers to ensure that
telecommunications equipment and customer premises equipment are
designed, developed and fabricated to be accessible. Manufacturers seem
to argue that the statute can be read as having a second qualifier, in
addition to readily achievable. That is, manufacturers argue that some
telecommunications equipment and some customer premises equipment
should be designed developed and fabricated to be accessible if readily
achievable, unless comparable equipment is available.
Manufacturers claim the statute should be read as applying to
product ``lines'' or ``families'' rather than individual products as
long as accessible products with comparable, substantially comparable,
or similar features are available at a comparable cost. These
commenters did not provide a definition of a product line or family. It
is not clear whether all cellular telephones are to be regarded as part
of the same product line, so that only one needs to be accessible to a
person with a disability, even if it were readily achievable to make
others accessible. The comment from CEMA goes further by suggesting
that, if one manufacturer makes a cellular phone accessible to blind
persons, another manufacturer would not need to even consider whether
it were readily achievable to do so.
Aside from the fact that such an interpretation is not supported by
the plain statutory language, it does not answer the question of what
is comparable. Suppose a person with a disability wants the features on
product A, but product B has the accessibility features. For example,
product A is a pager with a lighted display which can be seen in dim
light, and product B is a pager without the lighted display but with a
vibrator to alert a deaf person. It is not clear what ``comparable''
feature is the substitute for not having the lighted display. If the
deaf person works in a low-light environment, the lighted display may
be needed. Moreover, if the deaf person also has a visual impairment, a
situation common among older persons, the lighted display may be part
of the accessibility that person needs. Similarly, a modem manufacturer
might offer V.18 compatibility only on its 9600 bps model, not its 56k
bps model. Conversely, it may provide V.18 capability only on its fast
modem, but some service providers do not support high speed modems.
Furthermore, commenters provided no indication of how much of a price
difference is to be considered as comparable. The statute provides only
one reason for not making telecommunications equipment and customer
premises equipment accessible, usable, or compatible and that is that
it is not readily achievable. The clear meaning of the statute is, if
it is readily achievable to put a vibrator in product A and product B,
and V.18 capability in more than one modem, a manufacturer is required
to do so.
The Board has acknowledged that it may not be readily achievable to
make every product accessible or compatible. Depending on the design,
technology, or several other factors, it may be determined that
providing accessibility to all products in a product line is not
readily achievable. The guidelines do not require accessibility or
compatibility when that determination has been made, and it is up to
the manufacturer to make it. However, the assessment as to whether it
is or is not readily achievable cannot be bypassed simply because
another product is already accessible. For this purpose, two products
are considered to be different if they have different functions or
features. Products which differ only cosmetically, where such
differences do not affect functionality, are not
[[Page 5612]]
considered separate products. An appendix note has been added to
clarify this point.
In drawing analogies from the ADA, the correct connection is
between telecommunications equipment and customer premises equipment
and the facility, not individual elements within the facility. For
example, all theaters in a multi-theater complex must be accessible so
that persons with disabilities can choose which films to see, not only
a few theaters with ``comparable'' movies; all stadiums must be
accessible, not just one for baseball, one for football, and one for
soccer. Disabled persons' seat choices are limited but not whether they
can see movie A or movie B. Also, within a phone bank, the one
accessible phone is simply at a lower position but it is not merely
``comparable'' to the other phones in the bank, it is identical.
Finally, many of the commenters contend that certain requirements
are not readily achievable if applied across all products. Several
mentioned the incompatibility or conflict between solutions for
different disabilities, though no examples of such conflicts were
provided. If such designs are truly not readily achievable, the
guidelines do not require accessibility or compatibility. Thus, the
guidelines would be satisfied.
Comment. CEMA wanted the Board to take into account that the cost
of retooling an assembly line is prohibitively expensive if done before
the production cycle lifespan of a product has come to an end. CEMA
recommended that the guidelines should be modified to recognize the
need for manufacturers to complete production runs prior to making
design changes and asked for a ``grace period'' after having complied
with current guidelines before having to retool their assembly lines
and update to any new guidelines.
Response. No explicit ``grace period'' is needed since it is built
into the determination of readily achievable.
Comment. The majority of comments praised the Board for adhering to
the recommendations of the TAAC report. However, several comments said
the NPRM had converted numerous TAAC voluntary recommendations into
mandatory obligations.
Response. The Board's guidelines are rules under the meaning of the
Administrative Procedures Act 1 and are appropriately
written in mandatory language. Nevertheless, the guidelines maintain
the TAAC recommendations insofar as they were written as ``shall'' or
``should.'' Some of the TAAC recommendations which used ``should'' were
placed in the appendix, such as the recommendation that manufacturers
encourage distributors to adopt information dissemination programs
similar to theirs, or to incorporate redundancy and selectability in
products. Where the Board felt the provision was important enough that
it belonged in the text, it was converted to a requirement. How each
requirement is implemented will be determined as each manufacturer
deems appropriate for its own operation, such as the requirement to
consider including persons with disabilities in product trials.
---------------------------------------------------------------------------
\1\ See 5 U.S.C. 551 (4).
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Comment. One commenter recommended that the guidelines be clarified
to explain that they apply solely to equipment used primarily for
access to telecommunications services. The commenter pointed out that
the Senate report exempted equipment used to access ``information
services''. The commenter indicated that the Senate's definition of
telecommunications, as set forth in the report ``excludes those
services, such as interactive games or shopping services or other
services involving interaction with stored information, that are
defined as information services.''
Response. Information services are not covered by these guidelines.
The Act defines what is telecommunications equipment and customer
premises equipment. If a product ``originates, routes or terminates
telecommunications'' it is covered whether the product does that most
of the time or only a small portion of the time. Of course, only the
functions directly related to a product's operation as
telecommunications equipment or customer premises equipment are covered
by the guidelines. A set-top-box which converts a television so that it
can send e-mail or engage in Internet telephony, for example, is
customer premises equipment when performing those functions. The Senate
report only excludes those services described as ``information
services''. It does not mean any equipment which receives such services
is excluded if the product is also customer premises equipment.
Comment. One comment objected to the Board's exclusion of existing
products for coverage by the guidelines, noting that the word ``new''
does not appear in the statute. Many current products will be on the
market for some time and should be required to be retrofitted to be
accessible or compatible, if readily achievable.
Response. While it is true that the word ``new'' does not occur in
the statute, the Senate report clearly says that the Board's guidelines
should be ``prospective in nature'', intended to apply to future
products. In addition, the statute applies to equipment designed,
developed and fabricated which the Board interprets to mean that the
Act applies to equipment for which all three events occurred after
enactment of the Act. There is no requirement to retrofit existing
equipment.
Section 1193.3 Definitions
With a few exceptions discussed below, the definitions in this
section are the same as the definitions used in the Telecommunications
Act of 1996.
Accessible. Subpart C contains the minimum requirements for
accessibility. Therefore, the term accessible is defined as meeting the
provisions of Subpart C.
Comment. A few commenters suggested making the definition more
general by using a definition which did not refer to Subpart C.
Response. Using a more general definition would make the term
``accessible'' subjective and potentially allow the term to be used to
describe products which do not comply with these guidelines. Therefore,
the definition has not been changed.
Alternate Formats. Certain product information must be made
available in alternate formats for the product to be usable by
individuals with disabilities. Common forms of alternate formats are
Braille, large print, ASCII text, and audio cassettes. Further
discussion of alternate formats is provided in section 1193.33 and in
the appendix.
No substantive comments were received and no changes have been made
to this definition.
Alternate Modes. Alternate modes are different means of providing
information to users of products including product documentation and
information about the status or operation of controls. For example, if
a manufacturer provides product instructions on a video cassette,
captioning or video description would be required. Further discussion
of alternate modes is provided in section 1193.33 and in the appendix.
Comment. Some commenters noted that the proposed definition did not
actually define alternate modes, but simply gave a listing of examples.
Also, several commenters, including the American Council of the Blind
and the American Foundation for the Blind recommended that the term
``audio description'' be changed to ``video description'' because the
term ``video'' more accurately describes the means of providing the
information.
[[Page 5613]]
Response. A definition is provided for the term ``alternate modes''
in the final rule. In addition, the term ``audio description'' has been
changed to ``video description.''
Compatible. Subpart D contains the minimum requirements for
compatibility with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access. Therefore, the term compatible is defined as meeting
the provisions of Subpart D.
Comment. One commenter noted that the term ``compatible'' is too
nebulous and broad and recommended substituting the word interoperable
for compatible.
Response. The term ``compatible'' is taken directly from the
statute. Therefore, the term has been retained in the final rule.
Customer Premises Equipment. This definition is taken from the
Telecommunications Act. Equipment employed on the premises of a person,
which can originate, route or terminate telecommunications, is customer
premises equipment. ``Person'' is a common legal term meaning an
individual, firm, partnership, corporation, or organization.
Customer premises equipment can also include certain specialized
customer premises equipment which are directly connected to the
telecommunications network and which can originate, route, or terminate
telecommunications. Equipment with such capabilities is covered by
section 255 and is required to meet the accessibility requirements of
Subpart C, if readily achievable, or to be compatible with specialized
customer premises equipment and peripheral devices according to Subpart
D, if readily achievable.
Comment. The proposed rule asked for comments on the definition of
customer premises equipment. Some commenters stated that it was unclear
whether software was included in the definition. Also, it was suggested
by one commenter that the definition include ``wireless systems''. Some
comments from industry, including Matsushita Electric Corporation of
America suggested that the definition of customer premises equipment be
changed ``to confine the applicability of the guidelines . . . to
equipment the primary use of which is telecommunications, thus
exclud[ing] such products as television receivers, VCRs, set-top boxes,
computers without modems, and other consumer products the primary
purpose of which is other than for telecommunications.'' Self Help for
Hard of Hearing People (SHHH) and many individuals who are hard of
hearing suggested clarifying the definition to include public pay
telephones as examples of customer premises equipment.
Response. If a product ``originates, routes or terminates
telecommunications'' it is customer premises equipment and thus covered
by the Act whether the product does that most of the time or only a
small portion of the time. Only the functions directly related to the
product's operation as customer premises equipment are covered. For
example, the buttons, prompts, displays, or output and input needed to
send and receive e-mail or an Internet telephone call are covered.
Other functions not related to telecommunications, such as starting a
program on a computer or changing channels on a combination television-
Internet device would not be covered. The term ``customer premises
equipment'' is defined in the Telecommunications Act and the definition
in the NPRM was taken directly from the Act. The definition has been
retained in the final rule without change.
The guidelines do not differentiate between hardware, firmware or
software implementations of a product's functions or features, nor do
they differentiate between functions and features built into the
product and those that may be provided from a remote server over the
network. The functions are covered by these guidelines whether the
functions are provided by software, hardware, or firmware. As the NPRM
indicated, customer premises equipment may also include wireless
sets.2 Finally, public pay telephones are considered
customer premises equipment.3
---------------------------------------------------------------------------
\2\ See Declaratory Ruling, DA 93-122 , 8 FCC Rcd 6171, 6174
(Com. Car. Bur. 1993) (TOCSIA Declaratory Ruling), recon. pending
(finding that definition of ``premises'' includes ``locations'' such
as airplanes, trains and rental cars, despite the fact that they are
mobile).
\3\ See, Implementation of the Pay Telephone Reclassification
and Compensation Provisions of the Telecommunications Act of 1996,
96-128, November 8, 1996.
---------------------------------------------------------------------------
Manufacturer. This definition is provided as a shorthand reference
for a manufacturer of telecommunications equipment and customer
premises equipment.
Comment. Several commenters recommended that the definition be
modified to include subcomponent manufacturers, manufacturers of
component parts which can convert a piece of equipment into customer
premises equipment, and software manufacturers that design software to
be used in telecommunications or customer premises equipment. The
National Association of the Deaf recommended that the definition of
manufacturer be flexible so that it does not unduly restrict the type
of entity that is covered by section 255. Another commenter recommended
that the term manufacturer be defined to include those who assemble the
component parts into a final product.
Response. For the purposes of these guidelines, a manufacturer is
the entity which makes a product for sale to a user or to a vendor who
sells to a user. This would generally be the final assembler of
separate subcomponents; that is, the entity whose brand name appears on
the product. Acme Computers, for example, would be responsible for
ensuring accessibility to any of its computers which can originate,
route or terminate telecommunications. Such a computer might include a
General Products modem which is itself a manufacturer because it sells
General Products modems directly to the public. Acme Computers would be
responsible for ensuring that it obtained the accessible General
Products modem for inclusion in its computers. Also, Acme would ensure,
through contractual provisions, purchase order stipulations, or any
other method it chooses, that subcomponent suppliers who were not
themselves manufacturers, provided accessible subcomponents where
available. Thus, Acme can share or distribute responsibility for
design, development and fabrication of accessible products. The
definition has been clarified in the final rule.
Peripheral Devices. Section 255 (d) of the Act provides that when
it is not readily achievable to make telecommunications equipment or
customer premises equipment accessible, manufacturers shall ensure that
the equipment is compatible with existing peripheral devices or
specialized customer premises equipment commonly used by individuals
with disabilities to achieve access, if readily achievable. No
definition is provided in the Act but the term peripheral devices
commonly refers to audio amplifiers, ring signal lights, some TTYs,
refreshable Braille translators, text-to-speech synthesizers and
similar devices. These devices must be connected to a telephone or
other customer premises equipment to enable an individual with a
disability to originate, route, or terminate telecommunications.
Peripheral devices cannot perform these functions on their own.
[[Page 5614]]
No substantive comments were received and no changes have been made
to this definition.
Product. This definition is provided as a shorthand reference for
telecommunications equipment and customer premises equipment.
No substantive comments were received and no changes have been made
to this definition.
Readily Achievable. Comment. Many comments from persons with
disabilities and their organizations wanted the Board to apply stricter
criteria, such as ``undue burden,'' rather than readily achievable. The
National Association of the Deaf (NAD) said it is critical that the
readily achievable analysis under section 255 be performed on a case-
by-case basis, rather than through a numerical or other standard
formula for all telecommunications equipment. NAD also supported the
NPRM proposal to consider design expertise, knowledge of specific
manufacturing techniques, or the availability of certain kinds of
technological solutions among a company's available resources. Further,
a readily achievable determination made under section 255 should
parallel a readily achievable analysis under the Americans with
Disabilities Act (ADA) in that it should consider the entire operations
and resources of a parent corporation and its subsidiaries in
determining the manufacturer's resources.
Manufacturers, on the other hand, did not feel the resources of a
parent company should be taken into account. They pointed out the
unique financial configurations of telecommunications companies as
being divided into separate design units, each with its own budgetary
resources and fiscal responsibilities.
Response. The use of the term readily achievable rather than undue
burden is a statutory requirement. The Board cannot change the term.
What the guidelines can do is provide some guidance to manufacturers as
to how to relate the readily achievable factors from the ADA to the
telecommunications industry.
Both the statutory definition of readily achievable and the
Department of Justice (DOJ) regulations include the resources of a
parent company as a factor. However, such resources are considered only
to the extent those resources are available to the subsidiary. If, for
example, the subsidiary is responsible for product design but the
parent company is responsible for overall marketing, it may be
appropriate to expect the parent company to address some of the
marketing goals. If, on the other hand, the resources of a parent
company are not available to the subsidiary, they may not be relevant.
This determination would be made on a case-by-case basis.
Comment. Manufacturers were split on the issue of factors to be
considered, some saying the ADA factors should be applied without
amplification and others saying the unique character of
telecommunications required a tailored set of criteria. Ericsson
supported the NPRM adoption of the formal definition of readily
achievable as ``easily accomplishable and able to be carried out
without much difficulty or expense.'' However, Ericsson recommended
that any additional language which explains the factors to be
considered in determining whether it is readily achievable for a
manufacturer to make its equipment accessible or compatible, should be
deleted. Ericsson commented that the FCC, pursuant to its complaint
jurisdiction, is in a better position than the Access Board to
determine what factors in the telecommunications context are relevant
to the term readily achievable.
Response. The final rule includes an appendix note that discusses
factors to be considered in making a determination whether an action is
readily achievable or not. The factors are provided for guidance only
and are neither presented in any particular order or given any
particular weight. The Board expects that the FCC will set forth the
factors which it will use to judge compliance. Once that occurs the
Board will revise the appendix to these guidelines, as appropriate.
However, in the absence of specific criteria issued by the FCC, the
Board believes it is desirable to provide interim guidance.
Comment. Several manufacturers suggested adding readily achievable
factors such as weighing the removal of one barrier against another,
whether the solution would limit mass market appeal, ``user-
friendliness,'' and that one barrier should not be viewed in isolation
to the availability of a comparable product that was accessible.
Several also said the removal of a barrier should not result in a
fundamental alteration of the product. Motorola cited the DOJ ADA
regulation as support that ``accessibility or compatibility features
that would fundamentally alter the nature of the telecommunications
equipment at issue do not fall within the definition of readily
achievable and therefore are not required.'' Motorola said that DOJ
reached the conclusion that ``fundamental alteration'' is a component
of ``readily achievable'' by drawing a comparison to the ``undue
burden'' standard, which defines the scope of a public accommodation's
duty to provide auxiliary aids and services. The undue burden and
readily achievable determinations depend upon the same factors. The
undue burden standard, however, requires a higher level of effort to
achieve compliance than the readily achievable limitation does. Since
the undue burden standard excuses actions that would fundamentally
modify goods and services, Motorola concludes that the readily
achievable limitation would excuse such actions as well, even though
this is not specifically stated in the regulations. Compactness and
portability, Motorola continues, are fundamental characteristics of
wireless customer premises equipment and that these attributes are
responsible for their popularity. Incorporating accessibility features
could, in some cases, result in a significant increase in the size of
the customer premises equipment, thus fundamentally altering the nature
of the product at issue.
Response. The appendix includes factors derived from the ADA and
the DOJ regulations. Several commenters suggested adding additional
factors. The Board was not persuaded that the additional factors
suggested, such as mass market appeal or ``user-friendliness,'' were
consistent with those from the ADA or the DOJ regulations. However, the
Board does acknowledge that readily achievable is intended to be a
lower standard than ``undue burden'' and that the latter includes the
concept of fundamental alteration. Therefore, consistent with the DOJ
interpretation, fundamental alteration is listed as a factor in the
appendix.
Comment. Some commenters said that since what is readily achievable
will change over time, disability access requirements should be
gradually phased-in.
Response. Since the determination whether an action is readily
achievable will automatically change over time, with new technology or
new understanding, no explicit phase-in is needed. Obviously, knowing
about an accessibility solution, even in detail, does not mean it is
readily achievable for a specific manufacturer to implement it
immediately. Even if it only requires substituting a different,
compatible part, the new part must be ordered and integrated into the
manufacturing process. A more extreme implementation might require re-
tooling or redesign. On the other hand, a given solution might be so
similar to the current design, development and fabrication process that
it is readily
[[Page 5615]]
achievable to implement it quickly. To incorporate a specific phase-in
period would delay implementation of such a readily achievable
solution. Each manufacturer would make its own determination as to what
is now readily achievable and proceed according to its own schedule.
Comment. The NPRM asked (Question 2 (e)) whether resources other
than monetary should be considered in determining whether an action is
readily achievable. Motorola said that ``the relative technological
expertise of telecommunications manufacturers should not be a factor
defining what is readily achievable.'' Motorola was concerned that
measuring technological expertise would be too subjective and that
criteria for measuring expertise may not be fairly and consistently
applied. On the other hand, TIA said that resources other than monetary
should be considered in determining whether an action is readily
achievable. TIA suggested that the process of technological innovation
is only feasible when the appropriate resources in the appropriate
quantities are applied at the appropriate time.
Response. Some commenters seemed to think that the inclusion of
technical expertise was to be used in place of financial resources or
as a reason for requiring one company to do more than another. This was
not the intent but, rather the reverse. That is, a company might have
ample financial resources and, at first glance, appear to have no
defense for not having included a particular accessibility feature in a
given product. However, it might be that the company lacks personnel
with experience in software development, for example, needed to
implement the design solution. One might reason that, if the financial
resources are available, the company should hire the appropriate
personnel, but, if it does, it may no longer have the financial
resources to implement the design solution. One would expect that the
company would develop the technical expertise over time and that
eventually the access solution might become readily achievable. The
Board has never proposed to make any determinations of whether any
activity was readily achievable, only to set forth a series of factors
that a manufacturer would consider in making its own determination.
Comment. Motorola felt that it would be inappropriate for a
government entity to ``certify'' the competence of any manufacturer or
its personnel.
Response. There was never any suggestion that any government entity
would ``certify'' any personnel or that any determination would be made
by anyone but the manufacturer itself. The question was designed to
raise the issue that whether something was readily achievable could be
related to more than monetary resources.
Comment. Some commenters said that proprietary accessibility
features will frequently have additional costs associated with
licensing fees. If rights to use those technologies can be obtained,
which is not at all certain, the right to use proprietary technology to
provide accessibility will be expensive. In some cases, such
proprietary access technologies would not be available for a reasonable
price and therefore could not be required.
Response. This cost would be included as part of an assessment of
what is readily achievable.
Comment. One commenter stated that a manufacturer could hesitate
before introducing a potentially valuable technical innovation if doing
so would cause section 255 compliance costs to immediately skyrocket.
Response. Compliance costs would not ``skyrocket'' since cost is
explicit in determining what is readily achievable. If the cost goes
over what the manufacturer considers to be readily achievable, the
compliance cost drops to zero because the new product is no longer
required to be accessible or compatible.
Comment. The NPRM asked (Question 2 (b)) whether large and small
manufacturers would be treated differently under the readily achievable
limitation and whether this would confer a market advantage on small
companies (Question 2 (c)) because they would have fewer resources and,
therefore, be expected to do less. Comments uniformly supported the
idea that the readily achievable criteria should be applied equally.
Several comments pointed out that any advantage a small manufacturer
derived would be temporary. A company with few resources, they argued,
might be able to claim that providing accessibility was not readily
achievable and could manufacture cheaper products. However, any
competitive advantage it gained would result in higher sales,
increasing its resources, until it could no longer claim access was not
readily achievable.
Response. The NPRM question was confusing and apparently gave the
impression that the Board was considering developing different criteria
for large and small companies. The Board did not intend to suggest that
different criteria would be applied to different sized manufacturers.
Comment. The NPRM asked (Question 2 (d)) whether ``technological
feasibility'' should be an explicit factor in determining whether an
action is readily achievable. Most comments agreed this is an important
factor and said it needed to be included. However, some comments
pointed out that if an action were not technologically feasible, it
would not be accomplishable at all, let alone ``easily accomplishable,
without much difficulty or expense.'' NAD said that, where a
manufacturer alleges that providing accessibility for a particular
telecommunications product will not be technologically feasible, the
manufacturer should be required to demonstrate that it has engaged in
comprehensive efforts to overcome the technological problems at hand.
Response. The Board agrees that technological feasibility is
inherent in the determination of what is readily achievable and does
not need to be explicitly stated. The issue of what a manufacturer must
demonstrate is a matter for the FCC to decide in an enforcement
proceeding.
Specialized Customer Premises Equipment. Section 255(d) of the
Telecommunications Act requires that whenever it is not readily
achievable to make a product accessible, a manufacturer shall ensure
that the equipment is compatible with existing peripheral devices or
specialized customer premises equipment commonly used by individuals
with disabilities to achieve access, if readily achievable. The
Telecommunications Act does not define specialized customer premises
equipment. As discussed above, the Act defines customer premises
equipment as ``equipment employed on the premises of a person (other
than a carrier) to originate, route, or terminate telecommunications'.
The Board noted in the NPRM that the Act and its legislative
history do not make clear whether Congress intended to treat
specialized customer premises equipment differently from peripheral
devices. The NPRM also pointed out that certain specialized equipment,
such as direct-connect TTYs, can originate, route, or terminate
telecommunications without connection to other equipment. The NPRM
concluded that if specialized customer premises equipment can
originate, route, or terminate telecommunications, it appears that the
equipment should be treated the same as customer premises equipment and
asked (Question 3) if this should be the case.
Comment. The overwhelming majority of comments including those from
the telecommunications industry
[[Page 5616]]
and disability organizations responded that if specialized customer
premises equipment can originate, route, or terminate
telecommunications, the equipment should be treated the same as
customer premises equipment. The Trace Center commented that TTYs are
made primarily for individuals who are deaf and requiring that TTYs
provide voice output for all of the information displayed on the screen
seems counter productive. One commenter suggested that the term
``limited customer premises equipment'' replace the term specialized
customer premises equipment because it would more accurately describe a
device that serves a certain population. Ultratec, a manufacturer of
TTYs, commented that the majority of the output criteria, and all of
the compatibility criteria, are not applicable to TTYs. Therefore, TTYs
should not be considered customer premises equipment.
Response. The statute, not the guidelines, defines customer
premises equipment. If specialized customer premises equipment can
originate, route, or terminate telecommunications, it is customer
premises equipment according to the statutory definition. Therefore,
the term ``specialized customer premises equipment'' is defined in the
final rule as ``equipment employed on the premises of a person (other
than a carrier) to originate, route, or terminate telecommunications,
which is commonly used by individuals with disabilities to achieve
access.'' If specialized customer premises equipment manufacturers are
not required to follow the guidelines where readily achievable, then
individuals with multiple disabilities, or individuals with
disabilities other than deafness who want to communicate with
individuals who are deaf may find it difficult or impossible to find
specialized customer premises equipment that they can use. For example,
even though it may seem ``counter-productive,'' a person who is blind
may need to communicate with a TTY user directly, without going through
a relay service, and would need auditory output. Whether it is readily
achievable to provide auditory output is for the manufacturer to
decide. The fact that individuals with multiple disabilities are not
the primary market for the specialized customer premises equipment is
not persuasive, since this is equally true of all mass market
manufacturers.
The provisions for accessibility and compatibility are required
only when the feature or function is provided. For example, the
requirement to provide a visual output applies only where an auditory
output is provided. Thus, if a product provides no auditory output for
its operation, a corresponding visual output is not required.
Therefore, a TTY should be able to meet the provisions for output and
compatibility the same as any other telecommunications equipment or
customer premises equipment. A particular manufacturer must make the
determination of what is readily achievable on a case-by-case basis.
On balance, the Board concludes that specialized customer premises
equipment should be considered a subset of customer premises equipment,
and that manufacturers of specialized customer premises equipment
should make their products accessible to all individuals with
disabilities, including the disability represented by their target
market, where readily achievable.
Comment. Ultratec pointed out that, currently, TTYs with direct
connect capabilities are analog only units and that consumers cannot
use the full capabilities of direct connect TTYs (i.e. auto answer
capabilities), unless they install a separate analog port within their
digital PBX system. This, Ultratec adds, is a compatibility issue and
as a specialized customer premises equipment manufacturer cannot do
anything to bring about access at this time in a digital environment.
Response. The Board understands that some manufacturers are working
to solve the non-compatibility between analog and digital signals, but
that a solution may not be readily achievable at this time. A note has
been added to the appendix regarding strategies that can be used to
improve the compatibility between TTYs and the telecommunications
network in the interim until industry standards are in place.
Telecommunications. This is the same definition from the
Telecommunications Act.
No substantive comments were received regarding this definition and
no changes have been made in the final rule.
Telecommunications Equipment. This is the same definition from the
Telecommunications Act.
No substantive comments were received regarding this definition and
no changes have been made in the final rule.
Telecommunications Service. This is the same definition from the
Telecommunications Act.
No substantive comments were received regarding this definition and
no changes have been made in the final rule.
TTY. This definition is taken from the ADA Accessibility
Guidelines, primarily for consistency with the Board's other
guidelines.
No substantive comments were received regarding this definition and
no changes have been made in the final rule.
Usable. This definition is included to convey the important point
that products which have been designed to be accessible are usable only
if an individual has adequate information on how to operate the
product. Further discussion of usability is provided in Sec. 1193.33.
Comment. Ericsson points out that neither the Act, nor its
legislative history defines ``usable'' as meaning access to
instructions, product information and documentation relative to
products. Ericsson suggests that the term ``usable'' be stricken from
the definitions section. The Trace Center recommended some minor
editorial changes to the definition as proposed.
Response. The term ``usable'' in the Act does not stand alone, but,
rather is part of a term of art, ``accessible to and usable by''
persons with disabilities, which is a standard phrase in disability law
and regulation. The term generally means more than ``convenient and
practicable for use'' as Ericsson suggested in its comments. Typically,
``accessible'' means an element complies with a specific technical
specification whereas ``usable'' means a person with a disability can
use the element effectively. Something can be accessible but not
usable: a door can be built to correct specifications, with proper
maneuvering space, but space can be blocked by furniture or otherwise
be made unusable. Conversely, something can be usable but not
accessible: a door which does not meet maneuvering space requirements
(i.e., is not accessible) can be made usable by adding a power
operator.
Telecommunications equipment or customer premises equipment is made
usable to a purchaser by having instructions; except for the simplest
device, it would not be usable by anyone without instructions. If
instructions are not provided for any user, instructions in alternate
formats would not be required. Accessible features can be provided, but
without instructions, the product could not be used.
Where information or documentation is provided for a product, the
information or documentation must be provided in an accessible format
that is usable by a person with a disability. Clearly, to be usable by
persons with disabilities instructions must be in a
[[Page 5617]]
form they can use: print information is not very helpful to a person
who is blind and auditory information is useless to a person who is
deaf. A slight editorial change has been made in response to the
comment from the Trace Center.
Subpart B--General Requirements
Section 1193.21 Accessibility, Usability and Compatibility
This section provides that where readily achievable,
telecommunications equipment and customer premises equipment shall
comply with the specific technical provisions of Subpart C. Where it is
not readily achievable to comply with Subpart C, telecommunications
equipment and customer premises equipment shall comply with the
provisions of Subpart D, if readily achievable. This is a restatement
of the Act and sets forth the readily achievable limitation which
applies to all subsequent sections of these guidelines.
Comment. Several comments pointed out that the NPRM applied the
readily achievable limitation only to the provisions of Subparts C and
D but not to the other provisions in the rule. They correctly noted
that the statutory requirements for usability are also subject to the
readily achievable limitation. As proposed, the obligations to provide
usable documentation seemed to be absolute. Additionally, the Trace
Center pointed out that the NPRM was unclear whether the requirements
of Subpart D (Requirements for Compatibility With Peripheral Devices
and Specialized Customer Premises Equipment) must be met if a product
fully complies with the requirements in Subpart C (Requirements for
Accessibility and Usability).
Response. The Board agrees that the statute applies the readily
achievable limitation to usability as well as accessibility and
compatibility. Therefore, the title of this section has been changed
and the proposed Secs. 1193.25, 1193.27 and 1193.29 have been moved to
Subpart C and renumbered accordingly. Section 255 does not require
telecommunications equipment and customer premises equipment to be both
accessible and compatible. Therefore, telecommunications equipment and
customer premises equipment are not required to be compatible with
peripheral devices or specialized customer premises equipment if they
comply with the requirements in subpart C.
Section 1193.23 Product Design, Development and Evaluation
This section requires manufacturers to evaluate the accessibility,
usability, and compatibility of telecommunications equipment and
customer premises equipment and incorporate such evaluation throughout
product design, development, and fabrication, as early and consistently
as possible. Manufacturers must develop a process to ensure that
products are designed, developed and fabricated to be accessible
whenever it is readily achievable. Since what is readily achievable
will vary according to the stage of development (i.e., some things will
be readily achievable in the design phase which are not in later
phases), barriers to accessibility, usability, and compatibility must
be identified throughout product design and development, from
conceptualization to production. Moreover, usability can be seriously
affected even after production, if information is not provided in an
effective manner.
The details of such a process will vary from one company to the
next, so this section does not specify the structure or specific
content of a process. Instead, this section sets forth a series of
factors that a manufacturer must consider in developing such a process.
How, and to what extent, each of the factors is incorporated in a
specific process is up to the manufacturer.
Comment. The majority of comments supported the provision as
proposed but manufacturers generally objected to intrusions into their
proprietary or discretionary activities. They also viewed this
provision as creating paperwork burdens and criticized the Board for
not using the TAAC recommendation which used the word ``should'' rather
than mandatory language for this section.
Response. The provision, as proposed, consisted of a set of factors
which the Board considers critical to the development of any plan which
seeks to ensure that products will be designed, developed and
fabricated to be accessible. As such, they are more than suggestions.
On the other hand, the Board is fully aware that different
manufacturers, or even the same manufacturer at different times, must
be given the flexibility to tailor any such plan to its own particular
needs. Therefore, while this section sets forth the factors which must
be considered in approaching how accessibility will be provided, it
does not prescribe any particular plan or content. It does not require
that such a process be submitted to any entity or that it even be in
writing. The requirement is outcome-oriented, and a process could range
from purely conceptual to formally documented, as suits the
manufacturer. With respect to the ``mandatory'' nature of the
provision, as explained elsewhere, the Board does not construe its
statutory mandate as merely providing hortatory technical assistance.
However, the Board did not ignore the TAAC recommendation, it merely
approached it from a different direction.
Comment. Commenters almost uniformly misconstrued the provision as
requiring extensive activities and documentation, which it does not.
One manufacturer interpreted the section as requiring a ``checklist''
which would need to be completed for each product.
Response. While there is nothing to prevent a manufacturer from
using extensive activities and documentation, this approach is neither
required nor suggested. A ``checklist'' seems to envision an after-the-
fact evaluation activity which is certainly not the best way to achieve
access. It also seems to assume that such evaluation is to be applied
to existing products. As explained in section 1193.2, these guidelines
apply to products designed, developed and fabricated after the
effective date of this rule. Of course, in the beginning, before
designers and developers are knowledgeable and familiar with access,
some checklist procedure may be useful. Ultimately, however, the goal
is for designers to be aware of access and incorporate such
considerations in the conceptualization of new products. When an idea
is just beginning to take shape, a designer would ask, ``How would a
blind person use this product? How would a deaf person use it?'' The
sooner a manufacturer makes its design team cognizant of design issues
for achieving accessibility and proven solutions for accessibility and
compatibility, the easier this process will be. But, again, how this is
done is up to the manufacturer.
Comment. Manufacturers also believed the provision required
extensive marketing and testing programs, well beyond what they might
currently provide.
Response. The guidelines do not require market research, testing or
consultation, only that they be considered and incorporated to the
extent deemed appropriate for a given manufacturer. If a manufacturer
has a large marketing effort, involving surveys and focus groups, it
may be appropriate to include persons with disabilities in such groups.
On the other hand, some small companies do not do any real marketing,
per se, but may just notice
[[Page 5618]]
that a product made by XYZ Corporation is selling well and, based on
this ``marketing survey'' it decides it can make a cheaper one.
Clearly, ``involvement'' of persons with disabilities is not
appropriate in this case. The final provision, therefore, has been
revised to make it clear that these activities are not expected to be
created where none existed before.
Comment. TIA noted that the NPRM discussion assumes the impact will
be low because manufacturers are only required to achieve what can be
accomplished easily, without much difficulty or expense. ``This
appears,'' says TIA, ``to omit consideration of the costs of making
readily achievable determinations in the first place, prior to any
expenditures on design, development and fabrication.''
Response. As stated above, in the beginning manufacturers may spend
some time evaluating products and the difficulty and expense of doing
so may contribute to a finding that accessibility is not readily
achievable. These costs have not been omitted, they are explicitly
included in deciding whether an action is readily achievable, a
determination which is to be made by the manufacturer not the Board.
Moreover, as designers become more familiar with access and as
technological solutions are found, the process should become more and
more automatic. The Board has a positive regard for manufacturers of
telecommunications equipment and customer premises equipment as
enterprising innovators who desire to provide access because they view
it as the right thing to do, and because it is good business, not just
because there is a Federal requirement. Indeed, recent announcements by
telecommunications companies suggests this is true.4
---------------------------------------------------------------------------
\4\ ``Bell Atlantic, NYNEX Announce Plans To Make Services,
Products More Accessible,'' press release, February 3, 1997.
---------------------------------------------------------------------------
Comment. SBC Communications commented that the complex
interrelationship between equipment and services in providing
accessibility to telecommunications suggests that coordination and
cooperation between manufacturers and service providers will be
beneficial. SBC agreed that involving individuals with disabilities in
the product development process will encourage appropriate design
solutions to accessibility barriers and permit the exchange of relevant
information. It believed that the same benefits would flow from
interchanges with service providers.
Response. The Board agrees that it would be desirable for
manufacturers to consult with service providers during the design
phase. As SBC points out, the solution to a particular barrier might be
better addressed by the service or might involve a combination of
service and equipment designs. Accordingly, the recommendation has been
added to the appendix to include service providers in any consultation
process.
Comment. The American Council of the Blind (ACB) strongly supported
the provision that manufacturers include individuals with disabilities
in market research, product design, and testing. ACB felt that
including individuals with disabilities is important but that
manufacturers should consult with representatives from a cross-section
of disability groups, particularly individuals whose disabilities
affect hearing, vision, movement, manipulation, speech, and
interpretation of information. ACB believed that it was important to
remind manufacturers that they should work with a broad cross-section
of disability groups and not just some.
Response. The Board agrees that a cross-section of disability
groups should be included in an evaluation of the accessibility and
usability of telecommunications equipment and customer premises
equipment. However, since the provision is meant to be general, no
change has been made in the final rule.
Subpart C--Requirements for Accessibility and Usability
Section 1193.31 Accessibility and Usability
This section provides that, subject to section 1193.21,
manufacturers must design, develop and fabricate their products to meet
the specific requirements of sections 1193.33 through 1193.43. As
discussed under section 1193.21, some sections related to usability
have been moved to this subpart to reflect that they are subject to the
readily achievable limitation. The title has been changed and the
sections renumbered accordingly.
Comment. Several manufacturers suggested replacing ``shall'' with
``should'' throughout and placing all the requirements in an appendix,
not in the guidelines.
Response. As discussed previously, the guidelines are not merely
advisory technical assistance.
Section 1193.33 Information, Documentation and Training [1193.25 in
the NPRM]
Paragraph (a) of this section requires that manufacturers provide
access to information and documentation. This information and
documentation includes user guides, installation guides, and product
support communications, regarding both the product in general and the
accessibility features of the product. Information and documentation
are what make a product usable by anyone and, if such information is
provided to the public at no charge, it must be provided to people with
disabilities at no additional charge. Alternate formats or alternate
modes of this information are also required to be available, upon
request. Manufacturers are also required to ensure usable customer
support and technical support in the call centers and service centers,
which support their products.
Comment. The American Council of the Blind (ACB) commented that the
provision as proposed was unclear if alternate formats must be
available at no additional charge. They also added that the alternate
format provided should be of the customer's choosing, that alternate
formats are not interchangeable, and that a manufacturer cannot
determine which format is appropriate for any particular customer.
Response. The Board agrees that the provision may have been unclear
in the NPRM. The final rule has been revised to clarify that additional
charges may not be required for the description of accessibility and
compatibility features of the product, end-user product documentation,
and usable customer support and technical support. There is nothing
prohibiting a manufacturer from charging everyone for these services.
However, people with disabilities may not be charged an additional fee
above the fee charged to everyone.
The specific alternate format or mode to be provided is that which
is usable by the customer. Obviously, it does no good to provide
documentation in Braille to someone who does not read it. While the
user's preference is first priority, manufacturers are not expected to
stock copies of all materials in all possible alternate formats and may
negotiate with users to supply information in other formats. For
example, Braille is extremely bulky and can only be read by a minority
of individuals who are blind. Audio cassettes are usable by more people
but are difficult for users to find a specific section or to skip from
one section to the next. Documentation provided on disk in ASCII format
can often be accessed by computers with appropriate software, but is
worthless if the information sought is how to set up the computer in
the first place. Of course, if instructions are provided by videotape,
appropriate video
[[Page 5619]]
description would be needed for persons who are blind and captions
would be needed for persons who are deaf or hard of hearing.
Comment. Some commenters said customer support lines should be made
accessible to people with hearing loss. Specifically, they pointed out
that automated voice response systems go too fast, are not clear and do
not allow for repeats making them inaccessible for most people with
hearing loss. They recommended that menus should be set up to allow
someone to escape early on by dialing a standard number such as ``0''
to talk to a person.
Response. Providing a quick means to ``opt out'' of a voice mail
menu system is a useful feature to make such systems more usable by
people who are hard of hearing. In addition, ensuring usable customer
support may mean providing a TTY number, since the current automated
voice response systems cannot be used by individuals who are deaf
either. Such systems cannot be accessed by TTY relay services since
there is generally insufficient time for the operator to type the
choices and the deaf caller must wait until the end before responding.
Also, if such menu systems require quick responses, they may not be
usable by persons with other disabilities. An appendix note has been
added recommending that automated voice response systems should be set
up to allow someone to escape early on. The appendix also provides
guidance on how to provide information in alternate formats and modes.
Paragraph (b) requires manufacturers to include in general product
information the name and contact means for obtaining the information
required by paragraph (a).
Comment. The NPRM specified a telephone number but some commenters
pointed out that e-mail and Internet methods might be equally valid
methods of contacting a manufacturer for information.
Response. More and more companies have access to e-mail but all
companies do not. The final rule has generalized this requirement to
allow for different ways other than just a telephone number to contact
a manufacturer. However, a phone number is the preferred method of
contact since many more people have telephones than have access to e-
mail or the Internet. Additional ways of contacting a manufacturer are
encouraged but are not required. The name of the contact point can be
an office of the manufacturer rather than an individual.
Paragraph (c) requires manufacturers to provide employee training
appropriate to an employee's function. In developing, or incorporating
information into existing training programs, consideration must be
given to the following factors: accessibility requirements of
individuals with disabilities; means of communicating with individuals
with disabilities; commonly used adaptive technology used with the
manufacturer's products; designing for accessibility; and solutions for
accessibility and compatibility.
Comment. Several manufacturers claimed the guidelines contemplate
costly training of manufacturers' employees. Several comments pointed
out that the NPRM applied the readily achievable limitation only to the
provisions of subparts C and D but not to the other requirements of
this rule.
Response. The key to usability is information and the
manufacturer's employees must know how to provide it in an effective
manner. This is especially true for good technical support, if persons
with disabilities are to receive adequate information on how to use the
new accessibility features of telecommunications equipment and customer
premises equipment. The guidelines, however, do not require a specific
training program, only that certain factors be considered and
incorporated to the extent deemed appropriate by a given manufacturer.
Obviously, not every employee needs training in all factors.
Designers and developers need to know about barriers and solutions.
Technical support and sales personnel need to know how to communicate
with individuals with disabilities and what common peripheral devices
may be compatible with the manufacturer's products. Other employees may
need a combination of this training. No specific program is required
and the manufacturer is free to address the needs in whatever way it
sees fit, as long as effective information is provided.
The Board agrees that the statute applies the readily achievable
limitation to usability as well as accessibility and compatibility. As
noted in the discussion in section 1193.21 above, the title of this
section has been changed and the proposed section has been moved to
Subpart C and renumbered accordingly.
Section 1193.35 Redundancy and Selectability [1193.33 in the NPRM]
This section proposed that products incorporate multiple modes for
input and output functions and that the user be able to select the
desired mode.
Comment. Manufacturers objected to this provision on the basis that
it added unnecessary and potentially unwanted functions to a product
which could affect its marketability and even result in a ``fundamental
alteration'' of the product. It would also, in their view, cause the
product to be too complicated.
Response. Although this provision was supported by persons with
disabilities, it may run contrary to section 1193.41 (i), which intends
to make products accessible to persons with limited cognitive skills.
As a result, the provision is being reserved at this time, with a
recommendation for redundancy and selectability placed in the appendix.
The Board intends to consider this provision further and highlight it
for evaluation in its market monitoring report. If the Board's market
monitoring report shows that redundancy and selectability can be
provided without unnecessary complexity, it will re-evaluate the
``reserved'' status of this provision.
Section 1193.37 Information Pass-through [1193.27 in the NPRM]
This section requires telecommunications equipment and customer
premises equipment to pass through codes, translation protocols,
formats or other information necessary to provide telecommunications in
an accessible format.
Comment. Most manufacturers pointed out that the provision as
proposed could require manufacturers to anticipate any possible code or
protocol another party might devise and to pass it through. Moreover,
some technologies operate through ``compression'' of one sort or
another and cannot be turned on or off, as suggested by the NPRM
preamble. In addition, manufacturers objected to the one-sided nature
of the requirement and wanted manufacturers of peripheral devices and
specialized customer premises equipment to be held accountable, as
well. Finally, CEMA objected to the example of closed captioning cited
in the NPRM as implying that televisions were covered by the
guidelines.
Response. The provision in the final rule has been modified by
language suggested by the Trace Center to specify that the information
to be passed through must be standardized and non-proprietary. Also,
this provision is subject to the readily achievable criteria so that
the obligation is not absolute.
The Board agrees that manufacturers of other types of equipment
need to be cognizant of the capabilities of telecommunications
equipment and customer premises equipment, as was strongly recommended
by the TAAC. However, the statute places the responsibility for
compatibility on the
[[Page 5620]]
telecommunications equipment and customer premises equipment
manufacturer and neither the Telecommunications Act nor any other
statute gives the Board authority to regulate manufacturers of
peripheral devices. Specialized customer premises equipment, on the
other hand, is regarded as a subset of customer premises equipment and,
therefore, subject to these guidelines.
Finally, the example of closed captions cited in the NPRM was
merely to illustrate the principle of information pass-through. Closed
captioning is covered by other rules and regulations issued by the FCC
and is not a subject of this proceeding.
Section 1193.39 Prohibited Reduction of Accessibility, Usability and
Compatibility [1193.29 in the NPRM]
This section provides that no change shall be undertaken which
decreases or has the effect of decreasing the net accessibility,
usability, and compatibility of telecommunications equipment or
customer premises equipment.
Comment. This provision was uniformly supported by disability
groups, many of whom cited examples of an accessible feature or design
which was later defeated by an alteration. Manufacturers, on the other
hand, uniformly objected to it. Several pointed out that it was not a
part of the TAAC recommendations and that it unnecessarily restricted
design and innovation. For example, it seemed to prevent a manufacturer
from even discontinuing an obsolete product if it had an accessibility
feature unless the same feature were incorporated in its replacement.
This was unreasonable, they claimed, because a newer technology might
be better and more efficient but it might not be readily achievable to
incorporate the same accessibility feature. Products are discontinued
from time to time because they do not sell, but this provision as
proposed may have required any product with an accessibility feature to
be continued in perpetuity.
Response. Providing that no change shall be undertaken which
decreases or has the effect of decreasing accessibility is a common
principle in disability access codes and standards and was borrowed
from both the ADA Accessibility Guidelines (ADAAG) and the Uniform
Federal Accessibility Standards (UFAS). Both of these prohibit
alterations which reduce or have the effect of reducing accessibility
below the requirements for new construction. Those provisions were
intended to apply to alterations to buildings and facilities which have
a relatively static base. However, where technology is constantly
changing, the principle in this rule, which is analogous to the
alterations provisions of ADAAG and UFAS, may need adjusting. TIA
suggested adding language that would refer to the ``net''
accessibility, usability and compatibility of products. As previously
discussed, the statute does not require that a new product be both
accessible and compatible, and establishes accessibility as the first
priority. Since an alteration never establishes a requirement which is
greater than for new construction, the same concept holds true for
section 1193.39. For example, it might not be readily achievable to
provide accessibility in the first iteration of a particular product,
but compatibility is readily achievable. However, in an upgrade,
technology or other factors may have changed so that accessibility is
now readily achievable. Since the statute does not require a new
product to be both accessible and compatible, a change which increased
accessibility but decreased compatibility would not be prohibited. The
provision has been modified accordingly.
The Board agrees that it would be unreasonable to require obsolete
or unmarketable products to be maintained beyond their useful life.
Since any new product introduced to replace another would be subject to
the statutory requirement to provide accessibility or compatibility if
readily achievable, a specific exception has been added to allow for
product discontinuation. The Board does not believe this change will
significantly affect the availability of accessible products. The Board
intends to highlight this item for attention in its market monitoring
report to determine if this provision needs to be modified in the
future.
Section 1193.41 Input, Control, and Mechanical Functions [1193.35 in
the NPRM]
This section requires product input, control and mechanical
functions to be locatable, identifiable, and operable through at least
one mode which meets each of the following paragraphs. This means, each
of the product's input, control and mechanical functions must be
evaluated against each of paragraphs (a) through (i) to ensure that
there is at least one mode that meets each of those requirements. Of
course, there may be one mode which meets more than one of the specific
provisions. This section does not specify how the requirement is to be
met but only specifies the outcome. The appendix to this rule contains
a set of strategies which may help in developing solutions. In some
cases, a particular strategy may be directly applicable while a
different strategy may be a useful starting point for further
exploration.
Comment. A few commenters said that it was not clear whether a
single mode was to meet all of the paragraphs in this section or
whether one mode was to meet paragraph (a), one mode was to meet
paragraph (b), and so forth.
Response. In an effort to reduce the redundant language in the TAAC
report, confusion may have been created in the NPRM. Therefore, the
phrase ``at least one mode'' has been removed from the overall charging
statement and instead repeated in the individual paragraphs. Some
additional language has also been provided to clarify that each of the
paragraphs (a) through (i) are to be satisfied independently. That is,
it may be readily achievable to satisfy (a), (c), and (g), for example,
but none of the others. Again, one mode may be able to satisfy more
than one paragraph.
Paragraph (a) Operable without vision. No substantive comments were
received on this paragraph and no changes were made, other than the
editorial changes mentioned in the opening paragraph of this section.
Paragraph (b) Operable with low vision and limited or no hearing.
Comment. The Trace Center suggested that both the upper and lower
limits for low vision be included and that the paragraph title be
amended to include the restriction on audio output.
Response. The provision has been modified accordingly.
Paragraph (c) Operable with little or no color perception. No
substantive comments were received on this paragraph and no changes
were made, other than the editorial changes mentioned in the opening
paragraph of this section.
Paragraph (d) Operable without hearing. No substantive comments
were received on this paragraph and no changes were made, other than
the editorial changes mentioned in the opening paragraph of this
section.
Paragraph (e) Operable with limited manual dexterity. No
substantive comments were received on this paragraph and no changes
were made, other than the editorial changes mentioned in the opening
paragraph of this section.
Paragraph (f) Operable with limited reach and strength. Comment. In
the NPRM the Board had asked (Question 6) whether the ADAAG provisions
for controls and operating mechanisms and reach ranges should be
included here. The few comments on this issue felt
[[Page 5621]]
those provisions might be too specific for these guidelines.
Response. The ADAAG provisions have not been added to these
paragraphs but have been included in the appendix for reference, with
the notation that some customer premises equipment might be covered by
the ADA and required to comply with ADAAG.
Paragraph (g) Operable without time-dependent controls. Comment.
The NPRM had proposed a three-second time limit. A few comments
suggested a single number was not appropriate for different actions and
that more research is needed before applying a specific time limit.
Response. The specific time limit has been removed and the more
general performance language from the TAAC report substituted. Some of
the discussion on this subject provided by the Trace Center has been
included in the appendix.
Paragraph (h) Operable without speech. No substantive comments were
received on this paragraph and no changes were made, other than the
editorial changes mentioned in the opening paragraph of this section.
Paragraph (i) Operable with limited cognitive skills. No
substantive comments were received on this paragraph and no changes
were made, other than the editorial changes mentioned in the opening
paragraph of this section.
Section 1193.43 Output, Display, and Control Functions [1193.37 in the
NPRM]
Section 1193.43 applies to output, display, and control functions
which are necessary to operate products. This includes lights and other
visual displays and prompts, control labels, alphanumeric characters
and text, static and dynamic images, icons, screen dialog boxes, and
tones and beeps which provide operating cues or control status. Since
functions requiring voice communication are more specific than the
general output functions covered by this section, the Board sought
comment (Question 10) on whether moving the requirements of paragraphs
(b)(9) and (b)(10) to a different section would be less confusing to
designers and manufacturers.
Comment. The Trace Center pointed out that control labels had been
omitted, as well as sounds, from the list of examples. Also, Trace
noted that it appeared that voice communication did not need to comply
with any of the paragraphs in the NPRM except (9) and (10) and
questioned whether voice communication should be treated separately.
Trace speculated that this may have been done to avoid any requirement
for speech-to-text translation. While this may currently not be readily
achievable, recent technological advances are approaching practical
translation and Trace saw no reason why such translation should not be
required when it becomes readily achievable.
Response. The phrase ``incidental operating cues'' was intended to
include sounds but ``sounds'' has been added, along with ``labels,''
and the phrase ``but not limited to'' to clarify that the list of
examples is not exhaustive. In the NPRM, this section was divided into
subsections (a) and (b) because the requirements for voice
communication did not seem to fit with the rest of the section. Since
this organization caused some confusion, the NPRM division into
subsections (a) and (b) has been eliminated. Former paragraph (b)(10)
has been incorporated into paragraph (e), and the paragraphs renumbered
accordingly. Also, as with section 1193.41, the phrase ``at least one
mode'' has been removed from the general paragraph and repeated in
subsequent paragraphs to clarify that each of the paragraphs (a)
through (i) are to be satisfied independently. That is, it may be
readily achievable to meet the requirements of (b), (d), and (g), for
example, but none of the others. Again, one mode may be able to satisfy
more than one paragraph.
Paragraph (a) Availability of visual information. No substantive
comments were received on this paragraph and no changes were made,
other than the editorial changes mentioned in the opening paragraph.
Paragraph (b) Availability of visual information for low vision
users. Comment. As discussed under section 1193.41 (b), a range has
been included for low vision.
Paragraph (c) Access to moving text. Comment. The NPRM provision
exempted TTYs from this provision because it assumed a person who
needed static text could ask the TTY sender to pause or type slowly.
The Trace Center pointed out that there are many automatic TTY messages
for which this option is not possible. Also, the message recipient
could not communicate the request to the sender until the sender had
completed typing and transmitted ``GA.'' Trace further noted that many
TTYs have a means to save text or are equipped with a printer.
Response. The Board agrees that automatic messages could be a
problem and that one may not be able to communicate with the sender
until the message has gone by. In addition, this provision applies to
telecommunications equipment and customer premises equipment, not
peripheral devices. Since the majority of TTYs to which this provision
would apply would usually have a printer or a feature to save the
message to memory for playback line by line, the Board has removed the
exception.
Paragraph (d) Availability of auditory information. Comment. TTY to
TTY long distance and message unit calls from pay telephones are often
not possible because an operator says how much money must be deposited.
Technology exists to have this information displayed on the telephone
and an installation is currently operating at the Butler plaza on the
Pennsylvania Turnpike.
Response. This is a good example and has been placed in the
appendix. No changes have been made to this provision, other than the
editorial changes mentioned in the opening paragraph.
Paragraph (e) Availability of auditory information for people who
are hard of hearing. Comment. The majority of comments from persons who
are hard of hearing reported having trouble using public pay telephones
because of inadequate receiver amplification levels. These commenters
supported the proposed provision that products be equipped with volume
control that provides an adjustable amplification ranging from 18-25 dB
of gain. However, TIA and several manufacturers cited the National
Technology Transfer and Advancement Act of 1996, which requires the
Federal government to make use of technical specifications and
practices established by private, voluntary standards-setting bodies
wherever possible. Furthermore, TIA claimed that the higher range will
result in signals encroaching on the acoustic shock limits of telephone
receiver output. TIA recommended that this section be revised to
reflect a general performance standard, similar to the recommendation
in the TAAC report. Some comments pointed out that there was no
baseline signal against which the gain is to be measured. That is, for
a weak signal even 18-25 dB of gain may be ineffective, while for a
strong signal, the present ADAAG and FCC requirement of 12-18 dB may be
sufficient. Also, industry commenters said that increasing gain may not
be the only, or even the best way to provide better access since
amplifying a noisy signal also amplifies the noise.
Response. Information submitted by SHHH indicates that the proposed
gain of 25 dB is not a problem for current telephone technology. The
information was based on testing conducted by two
[[Page 5622]]
independent laboratories (Harry Teder Ph.D., Consulting in Hearing
Technology and Harry Levitt, Ph.D., Director, Rehabilitation
Engineering and Research Center on Hearing Enhancement and Assistive
Devices, Lexington Center). High gain phones without special circuitry
currently on the market were tested which put out 90 dB and 105 dB at
maximum volume setting. This is a 20 dB gain over the standard 85 dB.
The sound was clear with no distortion. SHHH said that this shows that
a 90 dB and 105 dB clean speech level is achieved with phones
commercially available with no worse distortion levels than on public
phones at normal levels. With special circuits and transducers,
telephones could generate even higher amplification levels, above 25
dB, without distortion.
The current FCC standard for 12-18 dB of gain was adopted from
ADAAG which requires certain public pay telephones to provide a gain of
12-18 dB. However, this provision is frequently incorrectly applied so
that the gain only falls somewhere within this range but does not reach
the 18 dB level. In fact, the requirement is to provide gain for the
entire range of 12-18 dB.
The Board is currently reviewing all of its ADAAG provisions and
will be issuing a NPRM in 1998 which will propose a new ADAAG. The
changes to ADAAG will be based on recommendations of the Board's ADAAG
Review Advisory Committee. That Committee recommended increasing the
gain for public pay telephones from 12-18 dB to 12-20 dB. Recently, the
ANSI A117.1 Committee released its 1997 ``Accessible and Usable
Buildings and Facilities'' standard. This voluntary standard-setting
body issues accessibility standards used by the nations model building
codes. The ANSI standard requires certain public pay telephones to
provide 12 dB of gain minimum and up to 20 dB maximum and that an
automatic reset be provided. The 1997 ANSI A117.1 document and the
Board's new ADAAG are being harmonized to minimize differences between
the two documents.
Therefore, in accordance with the National Technology Transfer and
Advancement Act, the final rule has been changed to adopt the provision
as currently specified in the private, voluntary ANSI standard, with
wording to clarify its meaning. For example, the ANSI provision was
written under the assumption of an incremental, stepped volume control.
If a volume adjustment is provided that allows a user to set the level
anywhere from 0 to the upper requirement of 20 dB, there is no need to
specify a lower limit. If a stepped volume control is provided, one of
the intermediate levels must provide 12 dB of gain. Although the final
rule does not provide the higher 25 dB level as proposed in the NPRM,
the Board intends to highlight this provision for evaluation in its
market monitoring report. If the Board's market monitoring report shows
that persons with hearing impairments continue to report having trouble
using telephones because the level of amplification is not high enough,
the Board will re-evaluate this provision.
Recently, the FCC issued an order 5 postponing until
January 1, 2000, the date by which all telephones covered by Part 68
must be equipped with a volume control. This order was issued as a
response to a request for reconsideration asking that the requirement
only be applied to new equipment. That request was denied but the time
for compliance was extended to take into account its application to
telephones already registered under Part 68.
---------------------------------------------------------------------------
\5\ FCC 97-242, July 17, 1997.
---------------------------------------------------------------------------
The guidelines only apply to telecommunications equipment and
customer premises equipment designed, developed and fabricated after
March 5, 1998. Therefore, the guideline provision does not conflict
with the FCC order. New telephones will be covered by these guidelines
and existing telephones will have until January 1, 2000, to comply with
the FCC Order.
Paragraph (f) Prevention of visually induced seizures. Comment. The
NPRM suggested that the flash rate for visual indicators be set at or
below 3 Hz, based on research for visual fire alarms, and asked
(Question 8) whether this value was appropriate. The Epilepsy
Foundation of America suggested that the value be reduced to a maximum
2 Hz, based on recent suggested changes to ADAAG and the ANSI A117.1
accessibility standard. The Trace Center also suggested the 2 Hz lower
end but pointed out that some visual characteristics of video screens,
for example, could not achieve that level. Trace presented data to
indicate that a range of frequencies should be excluded between 2 Hz
and 70 Hz.
Response. The provision has been revised according to the
suggestion from Trace.
The NPRM also asked (Question 9) whether a similar provision should
be included for seizures induced by auditory stimuli.
Comment. Those comments which addressed this issue said that the
data are limited and that the responses seem to be very individual. At
this time, there appears to be no good information on whether there are
frequencies which should be avoided. The Massachusetts Assistive
Technology Partnership encouraged the Board to conduct research on this
issue. Trace Center noted that the provision for audio cutoff would
help alleviate the problem by allowing a person with such a disability
to insert a plug and cut off any external auditory cues. Since another
provision of the guidelines would require the information to be
conveyed visually, the person should be able to operate the product.
Response. The Board has not added a provision at this time but will
seek further information on seizures induced by auditory stimuli.
Paragraph (g) Availability of audio cutoff. Comment. Comments from
persons with hearing impairments supported this provision. However,
some comments from both people with disabilities and manufacturers
misunderstood this requirement. These comments thought the audio cutoff
applied to the input rather than the output of the product, such as the
input through a telephone handset.
Response. The provision has been reworded to clarify its
application.
Paragraph (h) Non-interference with hearing technologies. Comment.
Persons with hearing impairments uniformly supported this provision.
Manufacturers, however, said it posed problems with respect to wireless
telephones. They pointed out that the provision as written specified
zero interference whereas, that was not physically possible.
Interference could only be reduced so far, they said, and both the
telephone and the hearing aid played a role. They urged the Board to
defer any such requirement until the ANSI C63 Committee had finished
its work. Some manufacturers also objected to the requirement's
coverage of bystanders as outside the Act's jurisdiction. Also, the
Trace Center viewed interference as a compatibility issue which should
be addressed in Subpart D where it is repeated.
Response. The Board agrees that interference levels are a complex
issue and cited the work of the ANSI C63 Committee in the NPRM.
Interference is a function of both the hearing aid and telephone, and
the C63 Committee is seeking to define ``acceptable'' levels of
interference with respect to types of hearing aids and classes of
telephones. The standard would also prescribe testing protocols. The
Board does not believe, however, that it should defer a requirement
until the ANSI Committee has finished its work, but it does expect
[[Page 5623]]
the Committee's work to help clarify what is readily achievable.
Therefore, the provision has been modified slightly in the final rule
to emphasize that products are to produce the least interference
possible. In subsequent revisions to these guidelines the Board will
propose standards for RF emissions and will consider the results of the
ANSI C63 Committee, if they are available, in developing such
standards.
For now, the reference to bystanders has been removed because a
device which has reduced the interference to a level which is
acceptable to the user is likely to have reduced it for a bystander as
well. However, what is not known at this time is the effect another
nearby wireless telephone might have on a person's ability to use a
properly designed wireless telephone. That is, a person with a hearing
impairment may have purchased a telephone which produces minimal
interference with his or her hearing aid but finds that telephone
cannot be used when in the vicinity of another wireless telephone user.
The Board intends to specifically address this issue in the market
monitoring report to see whether the prohibition of bystander
interference should be reinstated.
Finally, this provision appears to be a compatibility issue, but it
is really an accessibility one. If a hearing aid user experiences
unacceptable levels of interference, the telephone is inaccessible to
that person. The provision correctly belongs in Subpart C because the
statute does not require telecommunications equipment and customer
premises equipment to be both accessible and compatible. That is, if
the provisions of Subpart C are met, the manufacturer does not need to
consider the provisions of Subpart D. Furthermore, since the provisions
of Subpart C are applied first, if it is not readily achievable for a
manufacturer to meet this provision here, it would not be readily
achievable in Subpart D either. Therefore, the provision has been
removed from Subpart D.
Paragraph (i) Hearing aid coupling. No substantive comments were
received on this provision and no changes were made, other than the
editorial revisions discussed in the general section.
Subpart D--Requirements for Compatibility With Peripheral Devices
and Specialized Customer Premises Equipment
Section 1193.51 Compatibility [1193.41 in the NPRM]
Section 1193.51 requires that when it is not readily achievable to
make a product accessible, the product must be compatible with existing
peripheral devices or specialized customer premises equipment commonly
used by individuals with disabilities to achieve access, if readily
achievable.
Comment. Several commenters expressed concern that the NPRM failed
to reflect adequately the shared responsibility of manufacturers of
telecommunications equipment and customer premises equipment with
manufacturers of peripheral devices. Nortel gave the example that
electromagnetic compatibility requires both the use of proper hearing
aid shielding and prevention of unwanted emissions from the customer
premises equipment. Siemens pointed out that it is unrealistic, and
often impossible to make equipment compatible with all potential forms
of peripheral devices, unless the manufacturer controls all aspects of
the affected equipment. The commenters recommended that the Board
encourage peripheral device manufacturers to adhere to compatibility
standards where they exist, and to develop corresponding standards for
customer premises equipment and peripheral devices where they are
needed but do not yet exist.
Response. The statute places the responsibility for compatibility
on the telecommunications equipment and customer premises equipment
manufacturer and neither the Telecommunications Act nor any other
statute gives the Board authority to regulate manufacturers of
peripheral devices. However, specialized customer premises equipment is
regarded as a subset of customer premises equipment and, therefore,
subject to these guidelines. As discussed earlier, the Board agrees
that manufacturers of peripheral devices and other types of equipment
need to be cognizant of the capabilities of telecommunications
equipment and customer premises equipment.
Comment. The Information Technology Industry Council recommended
that the compatibility requirements should recognize the differences
between traditional telephony products and information technology
products. Unlike traditional telephony customer premises equipment,
information technology products are invariably associated with
software. It is typically software, in conjunction with hardware, that
enables compatibility between an information technology appliance and
peripheral devices. Thus, the guidelines should acknowledge that when
information technology hardware products are compatible with software
that enables accessibility options and satisfies the compatibility
requirements, the hardware is consistent with the compatibility
guidelines.
Response. As the Board noted in the NPRM, ``evolving
telecommunications technologies often make it difficult to distinguish
whether a product's functions and interfaces are the result of the
design of the product itself, or are the result of a service provider's
software or even an information service format.'' These guidelines do
not differentiate between hardware and software implementations of a
product's functions or features, nor is any distinction made between
functions and features built into the product and those that may be
provided from a remote server over the network.
Paragraph (a) of the proposed rule required that information needed
for the operation of a product (including output, alerts, icons, on-
line help, and documentation) be available in a standard electronic
text format on a cross-industry standard port. It also required that
all input to and control of a product shall allow for real time
operation by electronic text input into a cross-industry standard
external port and in cross-industry standard format which do not
require manipulation of a connector by the user. The proposed rule also
provided that products shall have a cross-industry standard connector
which may require manipulation.
Comment. The Trace Center strongly endorsed the inclusion of this
provision in the final rule. In many cases, Trace said, a cross-
industry standard external port, such as an infrared link, will be the
only mechanism that will allow access to systems by individuals with
multiple and more severe disabilities. An infrared link can also
provide a mechanism for providing access to the smaller, more advanced
telecommunication devices and provide a safety net for products which
are unable to incorporate other technologies. Trace noted that there is
a joint international effort to develop a Universal Remote Console
Communication (URCC) protocol which would achieve this functionality
and that existence of a standard protocol is essential to the practical
implementation of this provision. Unless a standard approach is
developed that both the standard product and peripheral device
manufacturers can build to, it would be difficult to meaningfully
comply with this provision.
Trace also noted that the NPRM would require that all products have
both a wireless and a hard-wire
[[Page 5624]]
connection. Requiring that products have a standard physical connector
is expensive. The only ports currently supported by most assistive
technologies are RS232 serial ports. An infrared connector could be
fitted to these serial ports on the peripheral devices to add an
infrared capability to the peripheral devices. However, the opposite is
not true for customer premises equipment. It is not easy to add a
physical port to customer premises equipment. Trace recommended that
the requirement for a physical connection point be removed.
Response. The Board agrees that requiring a standard physical
connector on customer premises equipment may be an expensive strategy.
Because an infrared connector can be inexpensively added to the serial
ports on peripheral devices to add an infrared capability, the Board is
deleting the requirement for a physical connection point on products
covered by section 255. An appendix note has been added to alert
readers that a standard has been proposed that will empower wireless
communication devices, such as cellular phones, pagers and personal
computers to transfer useful information over short distances using
IrDA infrared data communication ports.
Paragraph (b) of the proposed rule provided that products providing
auditory output must provide the auditory signal through an industry
standard connector at a standard signal level.
Comment. The Trace Center commented that some type of a standard
approach for providing audio output should be provided and that
industry standard connectors already exist. Trace recommended that
miniature and sub-miniature stereo jacks could meet this performance
requirement. Another commenter pointed out that this requirement is
particularly important for telephones that are not under the direct
control of the user, such as public pay telephones and business
telephones. The commenter recommended that the connecter should be
capable of both input and output or two connectors should be provided.
Response. An appendix note recommends the use of a standard 9 mm
miniature plug-in jack, common to virtually every personal tape player
or radio, and for small products, a subminiature phone jack could be
used. No changes have been made to this provision in the final rule.
Paragraph (c) of the proposed rule provided that products shall not
cause interference to hearing technologies (including hearing aids,
cochlear implants, and assistive listening devices) of a product user
or bystander.
Comment. CTIA commented that the ANSI C63 Committee recognizes that
the electromagnetic interaction between wireless telephones and hearing
aids is an interference management issue that can be best resolved
through the cooperative and joint efforts of the affected parties.
Mitigation of electromagnetic interference requires an examination of
both devices, i.e., the wireless telephone and the hearing aid,
together, rather than in isolation.
TIA recommended that products should meet the relevant standards
concerning electromagnetic compatibility, so as to function without
significant interference with hearing technologies (including hearing
aids, cochlear implants, and assistive listening devices) that meet the
corresponding standards for such technologies. The Trace Center pointed
out that this section was repeated in Subpart C and Subpart D and that
the repetition was unnecessary.
Response. As noted in the discussion to section 1193.43 (h), this
section has been removed from Subpart D and subsequent paragraphs have
been redesignated accordingly. If it is not readily achievable to
manufacture a product under Subpart C that minimizes interference to
hearing technologies it follows that it is also not readily achievable
to make the wireless telephones and other customer premises equipment
compatible with hearing technologies to minimize interference under
subpart D.
Paragraph (d) of the proposed rule provided that touchscreen and
touch-operated controls shall be operable without requiring body
contact or close body proximity.
No substantive comments were received regarding this section and no
changes have been made in the final rule other than to redesignate this
provision as paragraph (c).
Paragraph (e) of the proposed rule provided that products which
provide a function allowing voice communication and which do not
themselves provide a TTY functionality shall provide a standard non-
acoustic connection point for TTYs. The proposed rule also provided
that it shall also be possible for the user to easily turn any
microphone on the product on and off to enable the user who can talk to
intermix speech with TTY use.
Comment. Nortel recommended that standards are needed for TTYs.
Absent the development of industry-wide standards for TTY data formats,
it will be very difficult for customer premises equipment manufacturers
to assure compliance with TTYs and that the establishment of
interworking standards among various makers of TTYs will facilitate
compatibility with telecommunications devices. Nortel also noted that
compatibility does not ensure that usable communications will be
provided, because other factors in the environment can affect the
reliability of the transmissions. For example, the work that hearing
aid manufacturers and handset manufacturers have jointly undertaken has
greatly improved the compatibility of hearing aids with fluxcoils, but
interference from outside sources (such as computers) can disrupt the
usability of the handset by the hearing aid wearer.
The Trace Center strongly supported this provision. It pointed out
that to meet this requirement an RJ11 plug or adaptor on a phone could
be installed. Trace suggested that it now appears that a simple audio
connector that could be compatible with standard headset jacks on
cellular phones could be established as a standard mechanism. Such a
standard could evolve that would allow TTYs to be easily connected to a
wide range of phones, including miniature and subminiature phones using
a simple cable.
Response. If a TTY is specialized customer premises equipment, it
is a subset of customer premises equipment and, therefore, subject to
these guidelines. The Board agrees that manufacturers of other types of
equipment need to be cognizant of the capabilities of
telecommunications equipment and customer premises equipment. However,
as is pointed out earlier, the statute places the responsibility for
compatibility on the telecommunications equipment and customer premises
equipment manufacturer and neither the Telecommunications Act or any
other statute gives the Board authority to regulate manufacturers of
peripheral devices. No changes have been made in the final rule other
than to redesignate this provision as paragraph (d).
Paragraph (f) of the proposed rule provided that products providing
voice communication functionality must be able to support use of all
cross-manufacturer non-proprietary standard signals used by TTYs. In
addition, this paragraph would require computer modems to support
protocols which are compatible with TTYs.
Comment. CTIA has urged the FCC to initiate a separate proceeding
to revise its minimum technical standards and consider the suitability
of the ITU's V.18 standard and other functional equivalents in
providing reliable TTY communications through digital
[[Page 5625]]
wireless systems. CTIA noted that the ITU has published its draft
recommendation for the V.18 standard.6 Commenters also noted
that as proposed, the provision suggested that TTY signal compatibility
applied only to products which provided voice communication
functionality, apparently excluding communication through a modem.
---------------------------------------------------------------------------
\6\ ITU has published its draft recommendation for the V.18
standard. It can be accessed through the Internet at: http//
tap.gallaudet.edu/V-18.htm.
---------------------------------------------------------------------------
Response. An appendix note has been added which encourages the use
of the V.18 standard. The provision has been reworded in the final rule
to clarify that it applies to more than voice communication and has
been redesignated as paragraph (e).
Regulatory Process Matters
Executive Order 12866
The Board has determined that this final rule is a significant
regulatory action for purposes of Executive Order 12866 since it raises
novel legal or policy issues arising out of legal mandates. The Board
has analyzed the benefits and costs of the rule and has determined that
it is not likely to have an annual effect on the economy of $100
million or more, or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. Although the benefits and costs are
difficult to quantify, the rule is expected to have a positive economic
impact. The Board has adhered to the principles of Executive Order
12866 in developing the rule and it represents a balanced and
reasonable means of achieving the objectives of section 255 of the
Telecommunications Act.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. Section 601, et
seq., (RFA) was enacted to ensure that small entities are not
unnecessarily burdened by government regulations. The RFA requires
agencies to review rules that may have a ``significant economic impact
on a substantial number of small entities.''
The Notice of Proposed Rulemaking (NPRM) issued in connection with
this rulemaking contained a certification that the rule, as proposed,
would not have a significant impact on a substantial number of small
entities and an initial regulatory flexibility analysis was not
prepared. In particular, the certification noted that manufacturers of
telecommunications equipment and customer premises equipment are
required to comply with section 255 of the Telecommunications Act of
1996 to the extent that it is ``readily achievable,'' which means that
it is ``easily accomplishable and able to be carried out without much
difficulty or expense.'' Questions were included in the notice of
proposed rulemaking to elicit information on how the size of an entity
should affect what is readily achievable. The notice further provided
that the Board would analyze comments received to determine if a final
regulatory flexibility analysis would be prepared. Though the Board did
not receive comments objecting to the certification, upon review of
comments received in response to the proposed rule and the questions
contained in the NPRM, the Board has determined that the preparation of
a Final Regulatory Flexibility Analysis (FRFA) is appropriate.
Accordingly, pursuant to the RFA, the Board's FRFA is as follows:
I. Need For and Final Objectives of the Guidelines
The Access Board is responsible for developing accessibility
guidelines in conjunction with the Federal Communications Commission
(FCC) under section 255(e) of the Telecommunications Act of 1996 for
telecommunications equipment and customer premises equipment.
Telecommunications equipment is equipment, other than customer premises
equipment, used by a carrier to provide telecommunications services,
and includes software integral to such equipment (including upgrades).
Customer premises equipment is equipment employed on the premises of a
person (other than a carrier) to originate, route, or terminate
telecommunications. This includes specialized customer premises
equipment as a subset. The guidelines address the access needs of
individuals with disabilities affecting hearing, vision, movement,
manipulation, speech, and interpretation of information while balancing
the resources of manufacturers of telecommunications equipment to
provide accessibility features.
The guidelines do not require retrofitting of existing equipment or
retooling. These guidelines are applicable only to the extent that it
is readily achievable to do so. Manufacturers may consider costs and
available resources when determining whether and the extent to which
compliance is required.
Implementation of Section 255 of the Telecommunications Act will
bring the benefits of telecommunications to potentially 48.9 million
Americans with disabilities. It is anticipated that increased access to
telecommunications will positively impact employment, education and the
quality of life for individuals with disabilities.
II. Summary of Significant Issues Raised by the Public Comments in
Response to the Initial Regulatory Flexibility Certification
The Board received a number of comments regarding the application
of the term ``readily achievable''. The majority of those comments
addressed the application of factors to be considered in determining
whether compliance with the act was ``readily achievable''. In
particular, questions were raised regarding the resources of a parent
company, comparable products, fundamental alteration of a product,
monetary resources, and technological expertise. The comments received
by the Board in relation to the application of the term ``readily
achievable'' are discussed in further detail in the Supplementary
Information section above. (See 1193.3 Definitions.)
Section 255 of the Telecommunications Act defines ``readily
achievable'' as having the same meaning as in the ADA. In the
guidelines, ``readily achievable'' is further defined in Section 1193.3
(Definitions) as ``easily accomplishable and able to be carried out
without much difficulty or expense.'' The Board expects that the FCC
will ultimately set forth factors that it will use to judge compliance
under the readily achievable provisions of the Telecommunications Act.
In the interim, the Board has provided a list of factors derived from
the ADA as advisory guidance to assist manufacturers in making readily
achievable assessments. Those factors include: (a) the nature and cost
of the action needed to provide accessibility or compatibility; (b) the
overall resources of the manufacturer, including financial resources,
technical expertise, component supply sources, equipment, or personnel;
(c) the overall financial resources of any parent corporation or
entity, to the extent such resources are available to the manufacturer;
and (d) whether the accessibility solution results in a fundamental
alteration of the product. This latter factor, derived by extension
from the ``undue burden'' criteria of the ADA, takes into consideration
the effect adding an accessibility feature might have on a given
product.
Inherent in the concept of ``readily achievable'' is a recognition
of the differences in the size and resources of
[[Page 5626]]
manufacturers and readily achievable assessments will necessarily
require a case by case determination of the impact of the regulations
on small businesses.
III. Description and Estimate of the Number of Small Businesses to
Which These Guidelines Will Apply
Covered Entities: Manufacturers of telecommunications equipment and
customer premises equipment are required by Sec. 255 of the
Telecommunications Act of 1966 to ``ensure that the equipment is
designed, developed and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable.'' Section 1193.3
of the guidelines defines a manufacturer covered by Sec. 255 as ``a
manufacturer of telecommunications equipment or customer premises
equipment that sells to the public or to vendors that sell to the
public; a final assembler.'' The definitions of customer premises
equipment and telecommunications equipment help to further define which
manufacturers are covered by Sec. 255:
The term ``customer premises equipment'' means equipment
employed on the premises of a person (other than a carrier) to
originate, route, or terminate telecommunications. (See Sec. 1193.3
Definitions)
The term ``telecommunications equipment'' means equipment, other
than customer premises equipment, used by a carrier to provide
telecommunications services, and includes software integral to such
equipment (including upgrades). (See Sec. 1193.3 Definitions)
The Access Board guidelines cover those manufacturers of equipment
that function as customer premises equipment and telecommunications
equipment. Examples of customer premises equipment may include but are
not limited to: wireline and wireless telephones, computers when
employed on the premises of a person to originate, route or terminate
telecommunications (i.e., Internet telephony or computer telephone
calls with TTY software), or direct dial TTYs which ``originate, route
or terminate telecommunications.'' The definition of telecommunications
equipment includes switches used to direct telecommunications network
services.
This rule pertains only to functions directly related to
telecommunications. For example, only a computer with a modem can
function as telecommunications equipment or customer premises equipment
and only the modem functions are associated with telecommunications.
Therefore, the requirements of this rule apply only to the modem
functions (hardware and software operation), and incidental functions
required for initialization (turning the computer on and launching the
telecommunications program), necessary to engage in telecommunications.
All other functions of the computer not related to telecommunications
are not covered, such as word processing, file searching, operating
system commands, and directory manipulation.
Small Businesses: The term ``small business'' is defined by the RFA
as having the same meaning as the term ``small business concern'' under
section 632 of the Small Business Act, 15 U.S.C. Sec. 632. A ``small
business concern'' under Section 632 is defined as ``one which is
independently owned and operated and which is not dominant in its field
of operation.'' Further, Section 632(a)(2)(A) provides that the
Administrator of the Small Business Administration may provide
additional criteria by which a concern ``may be determined to be a
small business concern.''
There are three industry categories established by the Small
Business Administration which are applicable to these guidelines:
(1) Establishments primarily engaged in manufacturing wire
telephone and telegraph equipment.7 Included are
establishments manufacturing modems and other telephone and telegraph
communications interface equipment. Firms primarily engaged in the
manufacturing of wire telephone and telegraph equipment are considered
to be small businesses if they employ 1,000 or fewer employees. (See 13
CFR 121.201.) Census data indicates that there are 471 such
establishments, of which 92% or 432 are small business
concerns.8
---------------------------------------------------------------------------
\7\ Executive Office of the President, Office of Management and
Budget, Standard Industrial Classification Manual (1987) (SIC 3561).
\8\ U.S. Small Business Administration, Industry and Employment
Size of Enterprise for 1994, Table 7, SIC 3561 (U.S. Bureau of the
Census data under contract to the SBA).
---------------------------------------------------------------------------
(2) Establishments primarily engaged in manufacturing electronic
computers.9 As determined by the Small Business
Administration, a manufacturer of electronic computers is considered to
be a small business entity for purposes of the RFA if it has 1,000 or
fewer employees. (See 13 CFR 121.201.) According to the U.S. Bureau of
the Census data, there are approximately 632 such firms, of which
approximately 594 or 94% percent qualify as small
businesses.10 However, not all of the entities which are
engaged in manufacturing electronic computers identified in the Census
data are covered entities under the Telecommunications Act. For
example, a computer which does not have a modem would not be a product
which is subject to the requirements of the Telecommunications Act and
therefore, the manufacturing of that computer would not be a function
covered by this rule.
---------------------------------------------------------------------------
\9\ Executive Office of the President, Office of Management and
Budget, Standard Industrial Classification Manual (1987) (SIC 3571).
\10\ U.S. Small Business Administration, Industry and Employment
Size of Enterprise for 1994, Table 7, SIC 3571 (U.S. Bureau of the
Census data under contract to the SBA).
---------------------------------------------------------------------------
(3) Establishments primarily engaged in manufacturing radio and
television broadcasting and communications equipment.11
These establishments are considered to be small business concerns if
they employ 750 or fewer employees. (See 13 CFR 121.201.) Census data
indicates that there are 826 establishments engaged in the
manufacturing of radio and television broadcasting and communications
equipment, of which ninety-one percent or 755 of those firms are
considered small business concerns.12 Not all of these
businesses would be subject to the requirements of these guidelines.
The Telecommunications Act addresses the transmittal of information
between or among points specified by the user, of information of the
user's choosing, without change in the form or content of the
information as sent and received. (See Section 1193.3 Definitions). To
the extent that the radio, broadcasting or computer equipment does not
meet the definition of ``telecommunications'', the manufacturing of
that equipment is not a covered function subject to the
Telecommunications Act or these guidelines.
---------------------------------------------------------------------------
\11\ Executive Office of the President, Office of Management and
Budget, Standard Industrial Classification Manual (1987) (SIC 3563).
\12\ U.S. Small Business Administration, Industry and Employment
Size of Enterprise for 1994, Table 7, SIC 3563 (U.S. Bureau of the
Census data under contract to the SBA).
---------------------------------------------------------------------------
IV. Description of Reporting, Recordkeeping and Other Compliance
Requirements
Manufacturers of telecommunications equipment and customer premises
equipment are required by Section 255 to ``ensure that the equipment is
designed, developed and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable.'' And when it is
not ``readily achievable'' to make products accessible to and usable by
individuals with disabilities, the manufacturer shall ensure that the
equipment ``is compatible with existing peripheral devices or
specialized customer
[[Page 5627]]
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable.'' [47 U.S.C. 255(b)(d)] Section
255 also places requirements on telecommunications service providers.
Telecommunications service providers requirements are however under the
jurisdiction of the FCC and therefore are not addressed in the Access
Board guidelines.
Section 1193.23 Product design, development and evaluation. This
section requires that, where readily achievable, manufacturers must
evaluate the accessibility, usability, and compatibility of
telecommunications equipment and customer premises equipment and
incorporate such evaluation throughout product design, development, and
fabrication, as early and consistently as possible. Manufacturers must
develop a process to ensure that products are designed, developed and
fabricated to be accessible whenever it is readily achievable. Since
what is readily achievable will vary according to the stage of
development (i.e., some things will be readily achievable in the design
phase which are not in later phases), barriers to accessibility,
usability, and compatibility must be identified throughout product
design and development, from conceptualization to production. The
details of such a process will vary from one company to the next, and
this section does not specify the structure or specific content of a
process. Instead, this section sets forth a series of factors that a
manufacturer must consider in developing such a process. How, and to
what extent, each of the factors is incorporated in a specific process
is up to the manufacturer. As the capability to evaluate the
accessibility, usability, and compatibility of telecommunications
equipment and customer premises equipment is already available in-
house, this provision will not require additional professional skills.
Under these guidelines, there are no recordkeeping requirements for
this provision.
There are many products for which evaluations can be relatively
cursory as long as the company is confident that it is aware of all
relevant access issues. At this end of the evaluation spectrum, only
one hour of professional time is projected to be required, for an
estimated cost of $80. At the other end of this spectrum, if there is a
highly complex, convergent, or revolutionary new product this may
require as much as 37.5 hours of professional evaluation throughout the
product's development cycle, for an estimated cost of $3,000.
Section 1193.33 Accessibility and usability. Section 1193.33
requires that, where readily achievable, manufacturers must (1) provide
a description of the accessibility and compatibility features of the
product upon request, including, as needed, in alternate formats or
alternate modes at no additional charge; (2) provide end-user
documentation in alternate format or alternate modes upon request at no
additional charge where end-user documentation is provided; (3) ensure
usable customer support and technical support in the call centers and
service centers which support their products at no additional charge;
and (4) include in general product information, the contact method for
obtaining the information required in (1) and (2) above.
In addition, where manufacturers provide employee training, they
are required to provide training appropriate to an employee's function,
where readily achievable. In developing, or incorporating information
into existing training programs, consideration must be given to the
following factors: accessibility requirements of individuals with
disabilities; means of communicating with individuals with
disabilities; commonly used adaptive technology used with the
manufacturer's products; designing for accessibility; and solutions for
accessibility and compatibility.
The greatest cost involved with compliance with this provision is
in the production of alternate formats. For persons with a visual
impairment, four alternate formats exist: Braille, large print,
electronic text, and audio cassette. It is estimated that, where it is
readily achievable to do so, the cost of alternate formats for a 10
page user's manual will involve the following:
Braille: If the production of Braille documents is
outsourced, costs range from $.25 to $2 per page, depending on the
complexity of material (technical material is more expensive than
literature) and the format in which the raw text arrives (print is more
expensive than computer files). A reasonable estimate for producing 100
copies of a 10 page user's manual (30 bound pages of Braille) would be
$1800. The cost per brailled document is estimated at $18. If Braille
is produced in-house, it can be produced by clerical staff, using a
standard computer, Braille translation software, and a Braille printer.
It is estimated that the cost to produce a ten page document in-house
would be $10. Editing a 10 page document will require approximately 15
hours of editorial time by clerical staff.
Large Print: One hundred copies of a 10 page document
would cost approximately $2.50 each to produce. The production of large
print documents can be handled with clerical assistance and will
involve approximately 15 hours of editorial work for a 10 page
document.
Electronic Text: Providing the information on computer
disk will require an average of 15 hours of editorial work per product
by clerical staff. The estimated cost of the disk, shipping and
handling, is approximately $2.25 each.
Audio Cassette: Producing the information in an audio
cassette format will require approximately 15 hours of editorial work
and recording time per product by clerical staff. The estimated cost of
the cassette, shipping and handling is approximately $2.90 each.
Section 1193.39 Prohibited reduction of accessibility, usability
and compatibility. Section 1193.39 provides that no change shall be
undertaken which decreases or has the effect of decreasing the net
accessibility, usability, and compatibility of telecommunications
equipment or customer premises equipment. An exception provides that
discontinuation of a product is not prohibited.
The costs for this review, would be absorbed in the analysis for
the replacement or upgraded product required under 1193.23 and
manufacturers should not incur additional costs under this provision.
V. Description of Steps Taken To Minimize the Significant Economic
Impact Consistent With the Stated Objectives and Significant
Alternatives Considered and Rejected
In June 1996, the Access Board convened the Telecommunications
Access Advisory Committee (TAAC) to assist the Board in fulfilling its
mandate under section 255 of the Telecommunications Act. The members of
the TAAC included representatives of small and large manufacturers of
telecommunications equipment, customer premises equipment, specialized
customer premises equipment, peripheral devices, and software;
organizations representing the access needs of individuals with
disabilities; telecommunication providers and carriers; and other
persons affected by the guidelines. In addition, entities and
individuals who were not members of the TAAC were invited to
participate in several subcommittees and task groups. Once the TAAC had
prepared a working draft of its recommendations, that draft was posted
on the Internet for interested businesses and individuals to comment
on. Subsequent revisions to the draft
[[Page 5628]]
were also posted on the Internet. The Board established a ``listserve''
on the Internet for the TAAC to conduct business between its meetings.
The listserve was opened to the public to follow and many of the
discussion points received from outside parties were also posted on the
listserve. The result of the Committee's work was a final report
containing recommendations to the Access Board for implementing section
255 of the Telecommunications Act. The Board then issued an NPRM which
was based on those recommendations. In addition to a large distribution
of the NPRM and the TAAC final report, the NPRM was posted on the
Board's Internet page. Comments received in electronic format in
response to the NPRM were also posted on the Internet for interested
parties to review.
The Board received 159 comments in response to the NPRM. A further
discussion of the types of comments received may be found in the
Background section of this rule. The Board has addressed the majority
of the comments received in General Issues and Section-by-Section
Analysis above.
Efforts to minimize impact. (1) In implementing Section 255 of the
Telecommunications Act, the Board has sought to minimize any
disproportionate burdens imposed on small businesses. As previously
discussed, inherent in the concept of ``readily achievable'' is a
recognition of the differences in the size and resources of
manufacturers. Assessments of what is readily achievable for a
manufacturer to accomplish under the Telecommunications Act will
necessarily require a case by case determination. In addition, where
possible, the guidelines developed by the Board are written as
performance standards rather than prescriptive requirements. The
guidelines require an outcome, but do not prescribe in detail the
process each entity much follow to achieve that outcome. As a result,
small businesses will have more latitude and choice in how they comply
with the requirements of the guidelines. For example, Section 1193.23
(Product design, development and evaluation) requires manufacturers to
evaluate the accessibility, usability, and compatibility of
telecommunications equipment and customer premises equipment and
incorporate such evaluation throughout the product design, development,
and fabrication, as early and consistently as possible. The Board is
fully aware that different size manufacturers, or even the same
manufacturer at different times, must be given the flexibility to
tailor any such plan to its own particular needs. Therefore, while this
section sets forth the factors which must be considered in approaching
how accessibility will be provided, it does not prescribe any
particular plan or content. It does not require that such a process be
submitted to any entity or that it even be in writing. The requirement
is outcome-oriented, and a process could range from purely conceptual
to formally documented, as suits the manufacturer.
(2) The Board has included an Appendix with a list of strategies to
make telecommunications equipment accessible. This list is advisory,
not mandatory, and provides potential solutions for small manufacturers
that do not have the resources to research and develop solutions for
accessible products.
(3) Several changes were made to the final rule to reduce the
impact of the rule on all manufacturers in general, and small
manufacturers in particular. Those modifications include the following:
(a) The final guidelines do not require market research, testing or
consultation, only that they be considered and incorporated to the
extent deemed appropriate for a given manufacturer. If a large
manufacturer has an extensive marketing effort, involving surveys and
focus groups, it may be appropriate to include persons with
disabilities in such groups. On the other hand, some small companies do
not do any real marketing, per se, but may just notice that a product
made by XYZ Corporation is selling well and, based on this ``marketing
survey'' it decides it can make a cheaper one. Clearly, ``involvement''
of persons with disabilities is not appropriate in this case. The final
provision, therefore, has been revised to make it clear that these
activities are not expected to be created where none existed before.
(See 1193.23 Product design, development and evaluation.)
(b) Section 1193.35 (Redundancy and selectability) has been
reserved in the final rule in recognition of the complexity such a
requirement might add to the design process, as well as the equipment
itself. While this provision was highly supported by the disability
community, the Board felt it may be premature to impose the requirement
in the early stages of this regulation. Initially, manufacturers will
have enough difficulty finding a single readily achievable solution to
many accessibility problems. In particular, small businesses with
limited resources and design staff would be hard pressed to develop
multiple solutions. Instead, the Board is planning to focus its first
market monitoring report on this issue and then decide whether a
requirement is needed.
(c) Section 1193.37 was modified in the final rule to reduce the
obligation for equipment to be designed to pass through all information
for access. As proposed, the provision might have required
manufacturers to constantly monitor information characteristics of all
types of peripheral equipment. The final rule only requires the pass
through of information presented in standard industry formats.
(d) Section 1193.39 provides that no change shall be undertaken
which decreases or has the effect of decreasing the net accessibility,
usability, and compatibility of telecommunications equipment or
customer premises equipment. In response to concerns raised by
manufacturers that this provision might prevent a manufacturer from
discontinuing an obsolete product if it had an accessibility feature
unless the same feature were incorporated in its replacement, an
exception was added to allow for product discontinuation. In addition,
the language as proposed was modified to reference the ``net''
accessibility, usability and compatibility of products.
(e) Finally, section 1193.43(e) of the final rule adopts the
private sector ANSI standard for the volume level to be achieved,
rather than the higher level proposed in the NPRM.
Efforts to maximize benefits. Both large and small manufacturers
will be among the beneficiaries of the Telecommunications Act and these
guidelines by virtue of the expanding market for accessible
telecommunication products. The Electronic Industries Foundation, in
its ``Resource Guide for Accessible Design of Consumer Electronics'',
1996, notes ``Today, one factor contributing to market share is the
increasing number of potential customers who experience functional
limitations as a result of aging or disabling conditions.... While no
product can be readily used by everyone, accessible design can impact
market size and market share through consideration of the functional
needs of all consumers, including those who experience functional
limitations as a result of aging or disabling conditions.'' A National
Center for Health Statistics (NCHS) survey also indicates that people
with disabilities are potentially an untapped market for the
telecommunications industry. As accessibility is incorporated into new
products they will be easier to use by the broadest audience possible.
Significant alternatives that were rejected. Based on the comments
[[Page 5629]]
received in response to the NPRM, the Board considered the application
of the guidelines to product ``lines'' or ``families'' rather than
individual products as long as accessible products with comparable,
substantially comparable, or similar features are available at a
comparable cost. However, the statutory language of the
Telecommunications Act requires that all covered products must be made
accessible unless it is not readily achievable to do so. As the
Telecommunications Act did not provide a qualifier other than readily
achievable, the guidelines developed by the Board apply to all covered
products, as opposed to product lines or families. (See Section 1193.2
Scoping above for further discussion.)
VI. Report to Congress
The Access Board will forward a copy of this Final Regulatory
Flexibility Analysis along with this Final Rule in a report to Congress
pursuant to Section 251 of the Small Business Regulatory Enforcement
Fairness Act. (5 U.S.C. 801(a)(1)(A)). A copy of this FRFA is also
published in this final rule. (5 U.S.C. 604(b)).
Unfunded Mandates Reform Act
This final rule does not include any Federal mandate that may
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year.
Paperwork Reduction Act, Collection of Information: Telecommunications
Act Accessibility Guidelines
Section 1193.33 contains information collection requirements. As
required by the Paperwork Reduction Act of 1995, the Board submitted a
copy of this section (previously identified as section 1193.25 in the
NPRM) to the Office of Management and Budget (OMB) for its review. In
addition, the Board's NPRM solicited comments on any potential
paperwork burden association with these guidelines. As noted in the
NPRM, the Board would consider comments received (1) in evaluating
whether the proposed collection of information is necessary for the
proper implementation of Section 255 of the Telecommunications Act of
1996, including whether the information will have a practical use; (2)
in evaluating the accuracy of the Board's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) to enhance the quality,
usefulness, and clarity of the information to be collected; and (4) to
minimize the burden of collection of information on those who are to
respond. The Board received 24 comments which addressed the
appropriateness of the requirements of section 1193.33. The major
issues raised in those comments and the Board's responses are discussed
in the Section-by-Section analysis above. (See Section 1193.33).
Comments which specifically addressed the costs associated with section
1193.33 and the application of the Paperwork Reduction Act are
discussed below.
Summary of Significant Issues Raised by Public Comments in Response to
the NPRM Paperwork Reduction Act Analysis and Annual Reporting Burden
Estimate.
Comment. The Telecommunications Industry Association (TIA)
commented that the Paperwork Reduction Act would also apply to the
provision of information in alternate formats or alternate modes. The
calculations provided in the Board's NPRM did not address the annual
reporting burden for such costs. TIA also suggested that the costs
associated with training the ``call-takers and information providers''
should be included in the public reporting and record-keeping burden
estimates under the Paperwork Reduction Act.
Response. The Board agrees that the costs associated with providing
information in alternate formats should be included in assessing the
annual reporting burden associated with this section. The Board has
revised its assessment to include such costs. However, to the extent
that the costs of training are associated with the dispensing of
technical assistance, the Board does not agree that those training
costs should be included in the annual reporting burden assessments.
Section 1193.33 requires that manufacturers (1) provide a description
of the accessibility and compatibility features of the product upon
request (including, as needed, alternate formats or alternate modes)
and (2) provide end-user product documentation in alternate formats or
alternate modes upon request. With respect to the reporting
requirements of the Paperwork Reduction Act, only the training costs
associated with responding to these requests are appropriate for
inclusion in the annual reporting burden assessments.
Comment. TIA noted that the burdens associated with the application
of this section will ``vary widely with companies and the types of
equipment they manufacture.'' While TIA did not provide final data
concerning the estimated annual burdens, it suggested that, based on a
fragmentary sampling, the Board's estimates of the number of
respondents and the accessibility/compatibility feature description and
caller referral were too low. TIA agreed that the Board's estimate of
five minutes for average response time was appropriate, but commented
that communicating with persons with disabilities, particularly in such
alternate media as TTY, may require a longer call duration.
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