Web Posted on: February 13, 1998

The Guidelines for Section 255 . . . the ramifications . . .

By Jeffrey Pledger, Bell Atlantic
jeffrey.d.pledger@bellatlantic.com

A significant percentage of the United States population is disabled or has functional limitations as a result of injury, illness, or aging. This number has been showing an increasing trend every year as the percentage of the population of older age groups increases. It has been estimated that this number has extended past 51 million people with disabilities, approximately 20% of the total US population. Historically, the telecommunication industry has viewed individuals with disabilities as comprising niche markets. However, a growing trend within the industry is to have products and services that meet the requirements of a broader market, which includes individuals with special needs. This trend can be attributed to several factors, primarily as part of the legislation of the 1996 Telecommunications Act and by the use of Universal Design Principles to assist in justifying new market strategies to meet these legislative requirements. Section 255 of the 1934 Communications Act required that the Architectural Access Board, in conjunction with the Federal Communications Commission, (FCC), develop guidelines by August 1997, for access to services, telecommunications equipment and customer premises equipment (CPE) by individuals with disabilities. The significant portions of Section 255 which are relevant read as follows:

• (b) MANUFACTURING - A manufacturer of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable.
• (c) TELECOMMUNICATIONS SERVICES - A provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.
• (d) COMPATIBILITY - Whenever the requirements of subsections (b) . . . are not readily achievable, such 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.

In April 1997, the Access Board published their Notice of proposed Rule making (NPRM) seeking comments from interested parties concerning the implementation of section 255. According to the Access Board, 159 comments were received by interested parties, 109 by individuals who identified themselves as being hard of hearing, 19 from the telecommunications industry and 31 from organizations who represented people with disabilities. This final rule does not set the legislative regulations which the telecommunications industry must adhere to, but provides guidance in what the Access Board believes the FCC will adopt as regulation. In examining the final rule from the Access Board, there are several issues which bear importance.

The first point is to understand that the rule pertains to new equipment/services that are designed, developed and fabricated by members of the telecommunications industry. This is not to say that a particular manufacturer/service provider can't re-examine their existing products/services and make any adjustments in them to provide accessibility; it is that the guidelines imply that they cover only those new products/services implemented after March 5, 1998.

The second issue is concerned with the argument of providing accessibility on a product by product basis or to selected products within a product family. The Access Board's decision as to 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. **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. 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, the Access Board makes the distinction that 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 considered separate products.

The third issue is concerned with the interpretation of the phrase "usable by." The issue is not so much as understanding the definition as per the Access Board's guidelines, but as to the ramifications of implementation with an effort toward UDP. The Access Board has defined "usable by" 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. What needs to be pointed out is that in using UDP, manufacturers must be cognoscente of synergies within accessible solutions in order to provide the solution to be usable by individuals with disabilities. A manufacturer can not take solutions which are mutually exclusive to the populations they support and combine them in a product and then claim that the solution meets the guidelines. An example of this can be seen with closed captioning and large print. Both strategies provide an accessible solution which is usable by disabled people and is readily achievable. However, putting the two strategies together in the same product (closed captioning w/ large print) creates a product which is accessible, but unusable by individuals with disabilities.

The final and most controversial point is the definition of the phrase "readily achievable". The statue makes reference to the phrase readily achievable as being defined in the American's with Disability Act of 1990. This previous legislation defines readily achievable and the factors to determine whether an action is readily achievable with a perspective towards creating an architectural barrier solution. This definition is not appropriate in its entirety when dealing in the arena of telecommunications. When dealing with readily achievable opportunities in an archectictural barriers environment, the solution is a static and permanent one. this is not the case in the world of telecommunications as the environment is always changing due to advancements in technology. According to the ADA the factors to help determine an action to be readily achievable are:

• a) the nature and cost of the action;
• b) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
• c) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
• d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

The Access Board has taken upon itself to make the recommendations as proposed to examine other factors when considering the "readily achievable" standard. These factors are:

• 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 only to the extent such resources are available to the manufacturer.
• D. . Whether the accessibility solution results in a fundamental alteration of the product.

While these points are all factors to consider in the definition of readily achievable, the Access Board has failed to note the requirement of technical feasibility in producing an access solution. Given the four factors listed above, if there is no technically feasible solution to providing accessibility, The other four factors become a moot point. You can't meet factor A, because of the cost of product development may hinder your ability to do so. A manufacturer can't create an accessible solution if one is not present, etc. The issue is to understand that accessibility solutions may or may not be technically feasible for any given future product/service. The ability of a manufacturer/service provider to develop solutions where one did not exist will be of the utmost importance. The true commitment of the telecommunications industry is to go beyond these initial factors to provide accessibility.

Examples of this can be already viewed in today's environment. Motorola has committed to providing its user documentation for its products in alternative formats, e.g. braille, large print, audio cassette or electronic format. Bell Atlantic has made the commitment to doing an internal audit of its existing products and identifying solutions toward making them accessible through UDP. It will take some time to see the commitment of the rest of the telecommunications industry toward UDP.

Consumer's need to be cognizant of the actions they can take toward a manufacturer/service provider under these guidelines. Consumers are prevented from any private right of action to enforce any requirement or regulation issued pursuant to section 255. In layman's terms, a person/persons can't sue a manufacturer/service provider for not meeting the requirements of the guidelines in section 255. The FCC has full jurisdiction in any enforcement action under section 255. Where does this leave consumers? Consumers will always have the right to file complaints against a manufacturer/service provider to the FCC. It is only upon these complaints that the FCC will act upon to enforce any regulation under section 255.

In examining the premise of the Access Board's guidelines the primary responsibility for providing access falls upon the shoulders of the telecommunications industry. the issue here is that the guidelines don't take into considerations for accessibility done on behalf of disabled individuals by organizations which are not affiliated with telecommunications. A good example of this can be seen with the problems associated for individuals who are deaf/hard of hearing and their inability to communicate with digital cellular telephones. The disability organizations have met with members of the telecommunications industry for the past three years on this accessibility issue. The telecommunications industry has yet to come up with a solution for this issue. however, a company known as Better Hearing, inc. has developed and patented a new type of hearing aid that will allow a person who is hard of hearing the ability to communicate using any type of digital cellular technology, e.g. GSM, CDMA or TDMA. This company has provided a solution to a long standing issue for the disabled community and takes the burden off the telecommunications industry to provide the solution. Instead of having the telecommunications industry invest millions of dollars, the disabled individual need only to invest in a new access solution on their own. What needs to be realized is that this type of access solution will not be limited to telecommunications, but has a much broader scope to the impacted population base. This is not to say that the telecommunications industry does not have to comply with any of the guidelines in section 255. The point being is that a total team approach needs to be taken in order for the guidelines and any future accessibility is to be realized.

In realizing that this is the first step in providing guidelines for the telecommunications industry to give accessibility and usability to its products/services, we all must realize that this will be an on-going process. What we have is just the initial step in bringing about accessibility to the disabled population in the U.S. Just as when the Telecommunications Access Advisory Committee (TAAC) convened for 9 months, the disabled community in conjunction with industry, worked toward creating and distributing a document which had 98% consensus. now that the TAAC has been disbanded, we as disabled consumers and we the telecommunications industry must work more closely together so that we may both realize the benefits of section 255. What are the benefits to each group? Quite simple, Accessibility for the disabled individual and utilizing a company's resources more effectively to achieve greater margins.