Number range CHAPTERROBERT J. MATHER

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2236

RONALD R. GALLEGOS (013227)

Assistant U.S. Attorney

230 N. 1st Ave., Room 4000

Phoenix, Arizona 85025-0085

\(602\) 514-7661

Attorneys for the United States

**IN THE UNITED STATES DISTRICT COURT**

**FOR THE DISTRICT OF ARIZONA**

)

WILLIAM D. FERGUSON and )

ELIZABETH T. FERGUSON, )

husband and wife, )

) NOS. CIV 95-0260-PHX-RCB

Plaintiffs, ) CIV 95-2742-PHX-RCB

) CIV 96-305-PHX-EHC

) (Consolidated)

v.  )

> ) UNITED STATES' BRIEF AS

CITY OF PHOENIX, ) [AMICUS CURIAE]{.underline} IN

a municipality, ) OPPOSITION TO DEFENDANT'S

) MOTION FOR SUMMARY

) JUDGMENT

Defendant. )

)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

# I. INTRODUCTION AND SUMMARY

Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§
12101, [et seq.]{.underline}, and section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794, require 9-1-1 telephone emergency services to
provide access to individuals with disabilities, including those with
hearing impairments, that is direct and as effective as that available
to non-disabled individuals. Plaintiffs in these consolidated cases are
deaf or have hearing impairments and they use TDD\'s (telecommunications
devices for the deaf) for telephone communications. The claim in each
case is that the City of Phoenix has violated the ADA and the
Rehabilitation Act by its failure to provide direct and effective 9-1-1
emergency services to individuals who use TDD\'s.

Defendant has moved for summary judgment in the [Ferguson]{.underline}
action, claiming that it responded appropriately to Ferguson\'s 9-1-1
calls in August 1994, and January 1995. It further claims that, in any
event, its 9-1-1 system is now \"state of the art,\" as a result of the
implementation of a TDD call diverter in August 1995, eliminating any
need for injunctive relief at this point.[^1]

Defendant acknowledges, however, that the current 9-1-1 system provides
access [only if]{.underline} the caller transmits electronic tones in
order for the call to be automatically diverted to one of the two
positions equipped with TDD\'s:

If the caller fails to initiate the audible tone, the system cannot
detect that it is a TDD call and cannot automatically divert the call to
the \[the Center\'s\] TDD equipment.

Defendant\'s Motion for Summary Judgment at 3 (October 13, 1995).

Prior to implementation of the diverter system in August 1995, the
system relied on 9-1-1 call takers to hear and recognize the electronic
tones and then manually transfer the calls to a TDD-equipped auxiliary
unit. Thus, both before and after the diverter system was put in place,
the Phoenix system required the transmission of electronic tones in
order for the system to respond properly to TDD calls.

Defendant neglects to mention, however, that not all TDD\'s transmit
electronic tones. Furthermore, even on TDD machines that do have such
capability, transmitting the tones requires callers to press certain
keys on their keyboard, a procedure not typically used by TDD callers.
Finally, TDD callers may be unaware (or forget under the stress of an
emergency) that the transmission of electronic tones is required in
order for the 9-1-1 system to divert the call to a predetermined
TDD-equipped position.

The ineffectiveness of the 9-1-1 system is illustrated by the
experiences of the plaintiffs in each of these actions who made TDD
calls to 9-1-1 at various times before and after the diverter system was
in place.[^2] As the facts detailed below demonstrate, the system simply
did not respond appropriately to their TDD calls. On each occasion
described by plaintiffs, they made a series of calls to 9-1-1, because
the system did not on [any]{.underline} occasion recognize their first
call as a TDD call. Their calls were disconnected by 9-1-1 call takers
either because Baudot tones were not transmitted or, even when they were
transmitted, were not recognized promptly [or at all]{.underline}. Even
where the callers eventually did receive a TDD response on later calls,
there were significant delays and confusion.

The Phoenix 9-1-1 system provides speaking callers the immediate ability
to communicate their emergency needs. The Phoenix system did not, at the
time of the Fergusons\' calls, and does not now, provide effective
telephone access to individuals who must use TDD\'s for telephone
communications. While Defendant emphasizes the fact that police were
dispatched to the Fergusons\' residence on both occasions (the regular
practice is to dispatch police on hang up calls), this fact is relevant
only to the measure of damages, not to the question of liability. The
Fergusons [did not]{.underline} have the same opportunity to communicate
their emergency needs that speaking callers have when they make an
initial call to Phoenix\'s 9-1-1 system, because its TDD 9-1-1 policies,
practices, and procedures required additional steps for TDD callers
(transmitting electronic tones) and because call takers were
inadequately trained to respond even when TDD tones were transmitted.

This Court should deny Defendant\'s motion for summary judgment on the
issues of liability, and the availability of injunctive relief, and
compensatory damages.[^3]

**II. FACTUAL BACKGROUND**[^4]

**1. Telecommunications Devices for the Deaf**[^5]

A. [In General]{.underline}

A TDD is a device used with a standard telephone to communicate with
persons who are deaf, hard of hearing, or who have speech impairments by
typing and reading communications. It is similar to the teletypewriters
used by Western Union to \"wire\" transmissions. The TDD transmits each
typed letter by an electronic code called Baudot. The code is sent as
audible tones similar to those used by facsimile machines. Exhibit A,
Dunne\'s Declaration ¶ 5.

Conversing in this manner is very similar to a spoken conversation,
except that it is typed and read, instead of spoken and heard. A TDD
user types his or her conversation, which is read on a display by the
other person using a TDD. During the conversation, only one TDD at a
time can transmit tones through the telephone line. Both parties must
use TDD\'s to communicate,

unless they utilize a telephone relay service. Ex. A, Dunne\'s Dec. ¶
6.[^6]

A person using a TDD does not use the telephone differently than a
hearing person other than adding the use of this device. Just as a
hearing person will dial a telephone number and wait to hear a person
answer with a greeting before proceeding to speak, a TDD caller will
dial a telephone number and wait to read a person type a greeting and
the \"GA\" (go ahead) protocol before beginning to converse in text. A
TDD user does not typically press keys while awaiting a response to his
or her call. Pressing keys at this time would not be considered common
practice among TDD users. It is an additional step that could be
considered \"foreign\" TDD protocol. Ex. A, Dunne\'s Dec. ¶ 7.

B. [Receiving and Responding to TDD Calls]{.underline}

Calls coming via TDD must be recognized in one of three ways: silent
calls, calls emitting Baudot tones, and those emitting a recorded TDD
announcement. Ex. A. Dunne\'s Dec. ¶ 8.

[Silent calls]{.underline}. When a 9-1-1 call taker answers a call with
a spoken greeting but hears no voice response, typing a message via TDD
will determine promptly if the caller did not respond by voice because
he or she is calling via TDD. Ex. A, Dunne\'s Dec. ¶ 9.

[Calls emitting Baudot tones]{.underline}. TDD callers may transmit or
try to transmit Baudot tones to alert the Center that the call is being
sent via a TDD. Some, but not all, TDD\'s transmit audible Baudot tones
when the caller presses a key(s) immediately after the call is received.
Ex. A, Dunne\'s Dec. ¶ 10.

[Calls emitting recorded TDD announcements]{.underline}. Some TDD\'s
have a feature called a \"TDD announcer.\" When a call is answered, the
TDD transmits a spoken recording (such as, \"HEARING IMPAIRED CALLER.
USE TDD\") to announce that a TDD is necessary to converse with the
caller. The TDD announcer does not emit Baudot tones. Ex. A, Dunne\'s
Dec. ¶ 11.

**2. Phoenix\'s TDD 9-1-1 Policies, Practices, and Procedures**

A. [Pre-August 1995, Policies, Practices, and
Procedures]{.underline}[^7]

When the Fergusons made 9-1-1 calls on a TDD in August 1994 and January
1995, Phoenix\'s method for handling incoming TDD calls consisted of
transferring TDD calls from primary positions to one auxiliary (alarm)
position where a TDD unit was provided. Interrog. Resp., Request for
Admission No. 7 at 3. This TDD unit was used to process all incoming TDD
calls received via the 9-1-1 system and the dedicated 7-digit number for
TDD calls. [Id.]{.underline}; PSOF, Ex. E, Policy No. C-33 (Sept. 1994).

The 9-1-1 positions were not equipped to receive, respond to, and
process incoming TDD calls. Call takers were instructed to consider an
incoming call emitting \"beeping tones\" as a TDD call and manually
transfer the call to the TDD unit. PSOF, Ex. E, Policy No. C-33 (Sept.
1994). No typed instructions were given to the TDD caller to remain on
line while his or her call was transferred to the TDD unit. Interrog.
Resp., Request for Admission No. 13 at 4. Once the call was received by
the TDD call taker, an automatic typed message was sent (\"Phoenix
police department, give us your name address and phone number, how can
we help you?\"). PSOF, Ex. E, Policy No. C-33 (Sept. 1994).

Shortly before 3 a.m. on August 14, 1994, plaintiff Ferguson attempted
to call 9-1-1 four times on his TDD to report a prowler outside his
home. DSOF ¶¶ 15, 16, 18-20. No communication occurred between Ferguson
and the call takers for any one of the four calls. [Id]{.underline}.
According to Phoenix, the first call emitted no audible tones and was
disconnected. DSOF ¶ 16. The second call emitted an audible tone and the
call was manually transferred to the TDD unit within 30 seconds. After
the TDD call taker sent the preprogrammed message, the call taker
disconnected the call when no response was received from the caller
after 27 seconds. DSOF ¶ 18; PSOF ¶ 18. Ferguson states that it appeared
to him that the call had been disconnected with no communication after
\"considerable delay.\" PSOF, Ex. A (Ferguson affidavit ¶ 9). The third
and fourth calls when the call takers answered by voice and heard no
verbal response. DSOF ¶ 19, 20; PSOF 19, 20.

Mr. Ferguson looked outside his window, saw that the prowlers were
breaking into his vehicle, and because he did not receive a response
from Phoenix 9-1-1, risked his life to protect

his family and property by rushing outside to try and stop the thieves.
PSOF ¶ 21.

On January 30, 1995, plaintiff Ferguson again placed a series of calls
to the 9-1-1 system at approximately 8:00 p.m., to report vandals
throwing rocks at his van. DSOF ¶ 22. The 9-1-1 call taker received the
first call, heard no audible TDD tone or spoken communication, and
terminated the call 9 seconds later. PSOF ¶ 23. Per police department
policy, the call taker called Mr. Ferguson back by voice, but received a
busy signal. After US West was asked to break in on the line, the US
West operator advised 9-1-1 that there was no one on the line. The 9-1-1
call taker dispatched an officer to Ferguson\'s location. DSOF ¶ 23.

In the meantime, Mr. Ferguson redialed 9-1-1, and tapped the space bar
repeatedly. The call taker heard a TDD tone but did not recognize it as
coming from a TDD. The call taker asked, \"Is there someone on this
line?\" When there was no response, she then stated, \"If no one speaks,
I\'ll have to disconnect.\" Plaintiff\'s Addendum to Ex. R of PSOF at
p. 1. During that time, Mr. Ferguson had waited for a TDD response. The
call taker proceeded to disconnect the call. The call taker called Mr.
Ferguson\'s number back by voice per department policy. DSOF ¶ 24.

At the same time, Mr. Ferguson called 9-1-1 again a third and fourth
time, tapping the space bar repeatedly. PSOF ¶ 25. During the third
attempt, Mr. Ferguson waited approximately two minutes, and the call
taker initially did not recognize the TDD tones. DSOF ¶ 25. Finally, the
fourth call was connected to a TDD call taker. PSOF ¶ 25. Defendant
admits that one of the call takers stated she \"had not heard the
\[TDD\] tone before.\" Interrog. Resp., Request for Admission No. 20.

B. [Current Policies, Practices, and Procedures]{.underline}

In August 1995, Phoenix implemented a new system for handling TDD calls.
The City equipped two of the 30 answering positions with TDD-compatible
computer keyboards. Diverter equipment was installed that has the
capacity to monitor phone lines and, if Baudot tones are detected,
automatically divert the call to one of the TDD-equipped positions. In
order to connect the incoming call to one of the TDD-equipped positions,
the new system requires TDD callers to transmit TDD tones. Interrog.
Resp., Request for Admission No. 18; Interrog. Ans. ¶ 4; DSJ ¶ 3. If the
system detects a TDD call coming in when all 9-1-1 call takers are busy,
it will send a pre-programmed message to the caller stating that the
caller has reached 9-1-1 and should remain on the line. The TDD call
goes to the front of the queue. Once the call is on the line, the call
taker receives a spoken message, \"TDD call\" that is repeated until the
call taker presses specific buttons to transfer the call to a
TDD-equipped position. Interrog. Resp., Request for Admission No. 8 at
3.

On August 28, 1995, after the diverter system was in place, plaintiff
Ferguson called 9-1-1 via TDD to report a prowler seen hiding behind a
neighbor\'s garage. The first call was disconnected by the call taker.
PSOF ¶ 27. Plaintiff redialed and this time the call taker disconnected
after 28 seconds, with no communication. PSOF ¶ 28. Plaintiff made a
third call, and after a few minutes delay this call was connected to a
call taker with TDD equipment. While the third call was in process,
plaintiffs experienced considerable delays, of more than several minutes
during the communications, giving the appearance that the call taker had
placed their TDD call on hold. During these delays, plaintiffs
repeatedly typed to ask if the call taker was still there. PSOF ¶ 29.

On November 25, 1995, Bonnie Tucker, plaintiff in CIV 95-2742-PHX-RCB,
who is deaf, called 9-1-1 via her TDD. She was calling to ascertain how
the system worked with a TDD because her father, who is also deaf, had
earlier in the evening tried unsuccessfully to reach 9-1-1 when he
believed he was having a medical emergency. Ms. Tucker\'s first call was
not received and recognized as a TDD call. On her second call, she
explained her purpose and the call taker suggested she hang up and try
again to test how the system was working. Ms. Tucker made three more
calls to 9-1-1, with no response to the first two after waiting on the
line 2.5 minutes and 3 minutes, respectively. The call taker advised Ms.
Tucker that these two calls were identified as hang up calls even though
Ms. Tucker was pressing the space bar to emit TDD tones which were
apparently recognized on the final call. PSOF, Ex. B (Tucker affidavit).

On December 30, 1995, Jay Frankel, plaintiff in CIV 96-305 PHX-EHC, who
has a hearing impairment, called 9-1-1 to report a theft. His TDD
transmits a voice announcement to alert call takers that a TDD is
required to communicate with him. Each of his five calls was
disconnected. PSOF, Ex. C (Frankel affidavit).

# III. ARGUMENT

## A. The Phoenix 9-1-1 System Violates Title II and Section 504 

In enacting the Americans with Disabilities Act, Congress sought to
\"provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.\" 42 U.S.C. §
12101(b)(1). Title II of the ADA, 42 U.S.C. §§ 12131 [et]{.underline}
[seq.]{.underline}, prohibits discrimination against qualified
individuals with disabilities by State and local governments in
providing public services. It provides that:

\[N\]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subject to discrimination by any such entity.

[Id.]{.underline} at § 12132.[^8]

There is no dispute that the Phoenix 9-1-1 system is subject to the
requirements of title II. The City is a \"public entity,\" as defined in
the statute to be \"any State or local government\" or \"any department,
agency, \..., or other instrumentality of a State \... or local
government.\" 42 U.S.C. § 12131(1)(B). Nor is it disputed that
plaintiffs, who are deaf, are \"individuals with disabilities\" within
the meaning of the ADA.[^9] Regulations promulgated under title II
amplify the statute\'s general non-discrimination requirement.[^10]

First, the regulations require that the services provided by public
entities to persons with disabilities must be \"as effective\" in
affording equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement as those provided to
others. 28 C.F.R. § 35.130(b)(1)(iii).

Second, Section 35.130(b)(3)(i) provides:

> A public entity may not, directly or through contractual or other
> arrangements, utilize criteria or methods of administration \... that
> have the effect of subjecting qualified individuals with disabilities
> to discrimination on the basis of disability.

As pointed out in the interpretative guidance accompanying the
regulation, section 35.130(b)(8) not only outlaws overt denials of equal
treatment of individuals with disabilities, but also prohibits policies
that unnecessarily impose requirements or burdens on individuals with
disabilities greater than those placed on others. 28 C.F.R. pt. 35, app.
A at 453-54 (1993).

Third, public entities must make reasonable modifications to their
policies, practices, and procedures, where such

modifications are necessary to avoid discrimination on the basis of
disability. 28 C.F.R. § 35.130(b)(7).

Finally, as to 9-1-1 emergency services in particular, the regulation
specifies that public entities offering telephone emergency services,
including 9-1-1 services, must provide \"direct access\" to individuals
who use TDD\'s. 28 C.F.R. § 35.162. The Department of Justice\'s
analysis of the regulation regarding direct access to 9-1-1 emergency
services explains that this rule does not establish any minimum
standards of service (e.g., the quantity and location of TDD\'s and
computer modems needed in a given emergency center), but only the
performance standard through the mandate for direct access. Public
entities must:

> take appropriate steps, including equipping their emergency systems
> with modern technology, as may be necessary to promptly receive and
> respond to a call from users of TDD\'s and computer modems. Entities
> are allowed the flexibility to determine what is the appropriate
> technology for their particular needs.

28 C.F.R. § 35.162, App. A at. 464 (1993).

Pursuant to statutory mandate, 42 U.S.C. § 12206(c)(3) & (d)(Supp. II
1990), the Department of Justice has published its Title II Technical
Assistance Manual (1992 & Supp. 1994)(\"TA Manual,\" attached as Exhibit
C) to provide guidance for the public in understanding and complying
with the statute and the regulation.[^11] Regarding the title II
requirement for access to\
9-1-1 emergency services, the TA manual states:

> Many public entities provide telephone emergency services by which
> individuals can seek immediate assistance from police, fire,
> ambulance, and other emergency services. These . . . \[9-1-1 emergency
> services\] are clearly an important public service whose reliability
> can be a matter of life or death. Public entities must ensure that
> these services . . . are accessible to persons with impaired hearing
> and speech.

TA Manual at ¶ II-7.3100, p. 41.

The TA Manual explains that public entities are prohibited from imposing
any additional dialing or space bar requirements upon individuals with
disabilities for access to 9-1-1 systems:

> Additional dialing or space bar requirements are not permitted.
> Operators should be trained to recognize incoming TDD signals and
> respond appropriately. In addition, they also must be trained to
> recognize that \"silent\" calls may be TDD or computer modem calls and
> to respond appropriately to such calls as well.
>
> A caller, however, is not prohibited from announcing to the answerer
> that the call is being made on a TDD by pressing the space bar or
> keys. A caller may transmit tones if he or she chooses to do so.
> However, a public entity may not require such a transmission.

[Id]{.underline}. at p. 42.[^12]

Both Phoenix\'s current diverter system and the system in place when Mr.
Ferguson made his August 1994 and January 1995 calls require TDD callers
to hit the space bar or other keys on their TDD machines to emit
electronic tones. This requirement and other features of the Phoenix
system combine to deny individuals with disabilities who use TDD\'s
access to 9-1-1 service equal to that available to non-disabled
individuals.

In August 1994 and January 1995, when the Fergusons made their calls,
the primary answering positions for the 9-1-1 system were not equipped
for receiving and responding to incoming TDD calls. Instead, the call
taker, only [if]{.underline} she or he heard and recognized electronic
tones emitted from a TDD, would transfer the call to the TDD-equipped
auxiliary position. Call takers at the primary answering positions were
not trained to consider silent calls as possible TDD calls and, in any
event, did not have the necessary equipment to query the lines via TDD
to ascertain whether it was or not. Even when a call was recognized and
transferred as a TDD call, the caller would not receive any instructions
to remain on line while his or her call was transferred to the TDD unit.
For the Fergusons, the result was that they were [never]{.underline}
able to communicate their emergency needs to 9-1-1 operators.

The diverter system installed in August 1995 automatically detects and
diverts TDD calls [only]{.underline} if TDD tones are transmitted. There
continues to be no procedure or capability to query silent calls as
possible TDD calls. If a TDD user calls 9-1-1 from a TDD that does not
have the capability to emit the Baudot tones or if the caller does not
know or forgets that emission of the tones is required, the new system
does not recognize it as a TDD call and treats it as a \"hang up\" call.
It is unreasonable to expect that every TDD user can be educated about
the transmission requirement, which is not the normal protocol for
making TDD calls, and, then, be expected to remember to follow that
procedure during an emergency.

TDD calls that do not initiate tones are effectively \"silent\"
open-line calls. The Phoenix system treats these types of calls as
hang-ups and callback procedures are initiated. If a TDD caller
continues to stay on the line, waiting for a TDD response from 9-1-1,
the call taker making the callback will get a busy signal. The
additional time needed to callback creates an unnecessary time delay.
Even though police are dispatched to a caller\'s residence when there is
no voice response, if the caller is reporting a fire or seeking
emergency medical help, these needs will not be communicated at least
until police arrive. Precious time is lost, which may mean the loss of
live or property in such emergencies.

By contrast, non-disabled individuals who make voice calls to 9-1-1 have
the ability to communicate their emergency needs immediately. By
maintaining the requirement for TDD callers to transmit the electronic
tones, Phoenix puts lives in jeopardy and imposes an additional burden
on individuals with disabilities to obtain the same level of service
non-disabled individuals receive, in violation of 28 C.F.R. §35. In
short, the Phoenix 9-1-1 system denies equal and direct access to
individuals with disabilities who must use TDD\'s to communicate by
telephone in violation of title II of the ADA and section 504.[^13]

While the government believes the undisputed evidence supports summary
judgment in favor of plaintiffs on liability, entitling them to
injunctive relief, there are certainly, in any event, sufficient
disputes of material fact to warrant denial of defendant\'s motion for
summary judgment.

**B. Compensatory Damages are Available Remedies under Title II and
Section 504**

Title II and section 504 afford individuals the same remedies. Section
203 of the ADA provides that individuals shall have the same \"remedies,
procedures and rights\" under title II as those provided for section 504
which, in turn, incorporates the \"remedies, procedures, and rights\"
under title VI of the 1964 Civil Rights Act. [See]{.underline} 42 U.S.C.
§ 12133, 29 U.S.C. § 794(a). In 1986, Congress added a provision to
title VI abrogating States\' Eleventh Amendment immunity and clarifying
that \"remedies both at law and in equity\" are available against State
defendants under various statutes (including title VI and section 504)
to the same extent as against other defendants. 42 U.S.C. 2000d-7. The
ADA contains a virtually identical provision. See 42 U.S.C. 12202. The
term \"remedies . . . at law\" clearly includes damages, see [Franklin
v. Gwinnett County Pub. Sch.]{.underline}, 503 U.S. 60, 76 (1992), and
reflects Congress\' understanding that such relief is available under
title VI and section 504. In [Franklin]{.underline}, the Supreme Court
held that a private plaintiff could seek compensatory damages under
title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1688 (title
IX), whose remedies provision is also patterned on title VI. In reaching
that conclusion, the Court reaffirmed the long-standing rule that where
a statute provides a private right of action (either expressly or
implicitly), courts must presume the availability of \"[all]{.underline}
appropriate remedies\" unless Congress has clearly indicated otherwise.
503 U.S. at 66 (emphasis added).

While the City cites to [Franklin]{.underline}, it ignores the
well-established principle articulated in that case when it asserts that
compensatory damages are available only for \"intentional\" violations
of title II and section 504. Leaving aside the question of whether
\"intentional\" discrimination has been alleged in this case, there is
nothing in the statutory language to support the City\'s view that
Congress intended to limit remedies in this fashion. The City\'s
position is based on a faulty reading of [Franklin]{.underline}.

[Franklin]{.underline} did [not]{.underline} hold that discriminatory
intent was a prerequisite for recovery of damages under title IX, or
that the usual presumption would not apply in the absence of such
intent. The Court simply had no occasion to decide that issue since the
plaintiff in [Franklin]{.underline} alleged intentional discrimination.
In dictum, [Franklin]{.underline} drew a distinction between
\"intentional\" and \"unintentional\" discrimination in rejecting the
defendants\' argument that \"the normal presumption in favor of all
appropriate remedies should not apply because title IX was enacted
pursuant to the Congress\' Spending Power Clause,\" [id.]{.underline} at
74. The [Franklin]{.underline} Court read [Pennhurst State School &
Hosp. v. Halderman]{.underline}, 451 U.S. 1 (1981), as suggesting that
remedies for \"unintentional\" discrimination may be limited under
Spending Clause statutes because a recipient of federal funds might lack
notice that it will be liable for a monetary award for such a violation.
503 U.S. at 75. But [Franklin]{.underline} itself did not endorse such a
limitation for \"unintentional\" discrimination under Spending Clause
legislation. Rather, the Court merely emphasized that any lack of notice
problems that might exist in cases of unintentional violations would not
arise in lawsuits challenging intentional discrimination because the
recipients of federal funds would clearly know that such purposeful
conduct is unlawful. [Id.]{.underline} at 74-75. In this case, of
course, there is also no lack of notice because the title II regulations
speak directly to the requirements for direct access to 9-1-1 emergency
services for individuals with disabilities.

# IV. CONCLUSION

For the foregoing reasons, this Court should deny the City\'s motion for
summary judgment with respect to the issues of liability under title II
and section 504, and the issue of the availability of compensatory
damages as a remedy in this case.

Submitted this 22nd day of February, 1996.

Respectfully submitted,

JANET NAPOLITANO DEVAL L. PATRICK

United States Attorney, Assistant Attorney General

District of Arizona for Civil Rights

By: By:

Ronald R. Gallegos John Wodatch

Assistant United States Joan Magagna

Attorney Robert J. Mather

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-2236

[^1]: ^?^ The City further argues that damages are not available to
    plaintiffs.

[^2]: ? The Fergusons made calls to 9-1-1 on three occasions, two prior
    to and the third subsequent to their filing suit. Affidavits of the
    plaintiffs in the consolidated actions were submitted in support of
    the plaintiffs\' opposition to summary judgment in the
    [Ferguson]{.underline} action.

[^3]: ^?^ The United States addresses in this brief only plaintiffs\'
    claims under title II and section 504 and, with respect to relief,
    only the issues of injunctive relief and the availability of
    compensatory damages under the two statutes.

[^4]: ^?^ Defendant\'s Statement of Facts filed in support of its
    summary judgment motion are cited herein as \"DSOF.\" Other
    references include: Plaintiffs\' Statement of Facts filed in
    opposition to defendant\'s summary judgment motion as \"PSOF\";
    Defendant\'s Summary Judgment Motion cited as \"DSJ\"; Defendant\'s
    Answer to the Complaint as \"Answer\"; Defendant\'s Interrogatory
    Responses as \"Interrog. Resp.\"; and Defendant\'s Answers to
    Interrogatories as \"Interrog. Ans.\"

[^5]: ? Attached as exhibit A is the declaration of Toni Dunne, an
    expert in the field of TDD and 9-1-1 technology, to provide
    background and explanation of the technological issues presented.

[^6]: ? Telephone relay services involve a communications assistant who
    uses both a standard telephone and a TDD to type voiced
    communication to the TDD user and read the typed communication to
    the voice telephone user. Title IV of the ADA requires telephone
    companies to provide relay services. Relays may not be used as a
    substitute for direct access to telephone emergency services (28
    C.F.R. pt. 35, app. A at 464 (1994)).

[^7]: ? This section refers to Phoenix\'s TDD 9-1-1 policies, practices,
    and procedures in place prior to August 21, 1995, when Phoenix began
    using a TDD call diverter.

[^8]: ? Section 504 of the Rehabilitation Act imposes similar
    requirements for entities that receive federal financial assistance.
    It provides as follows:

    No otherwise qualified individual with a disability in the United
    States . . . shall, solely by reason of her or his disability, be
    excluded from the participation in, be denied the benefits of, or be
    subjected to discrimination under any program or activity receiving
    Federal financial assistance . . . .

    29 U.S.C.A. § 794(a). In its summary judgment motion, Defendant
    concedes for the purpose of argument that it receives federal
    financial assistance and is therefore subject to the requirements of
    section 504. DSJ at 13, lines 11-13. DOJ\'s implementing section 504
    regulation elaborates upon the meaning of nondiscriminatory access
    to programs and services for qualified individuals with
    disabilities:

    > A recipient . . . shall provide [appropriate auxiliary
    > aids]{.underline} to qualified . . . persons with impaired
    > sensory, manual, or speaking skills where refusal to make such
    > provision would discriminatorily impair or exclude the
    > participation of such persons. . .. Such auxiliary aids may
    > include . . . [telephonic devices.]{.underline}

    28 C.F.R. § 42.503(f)(emphasis added). The Department of Justice\'s
    section 504 regulation, 28 C.F.R. §§ 42.501 [et seq.]{.underline},
    applies to State and local enforcement agencies receiving Federal
    financial assistance. 42 C.F.R. § 42.502.

[^9]: ^?^ Section 504\'s \"qualified person with a disability\" is
    identical to that of title II.

[^10]: ^?^ The Department of Justice promulgated regulations to
    implement title II (28 C.F.R. Part 35) pursuant to statutory
    mandate. 42 U.S.C. § 12134(a). As interpretations of the statute,
    such regulations are controlling. [Chevron U.S.A., Inc. v. National
    Resources Defense Council, Inc.]{.underline}, 467 U.S. 837, 843-4
    (1984). [See Tugg v. Towey]{.underline}, 864 F. Supp. 1201, 1205 n.
    6, 1208 (S.D. Fla. 1994) (according Department of Justice\'s title
    II regulations controlling weight). [See also Noland v.
    Wheatley]{.underline}, 835 F. Supp. 476, 483 (N.D. Ind. 1993)
    (applying [Chevron]{.underline} to give controlling weight to
    Department of Justice interpretation of title II); [Petersen v.
    University of Wisconsin Bd. of Regents]{.underline}, 8181 F. Supp.
    1276, 1279 (W.D. Wis. 1993) (same). In addition, the Department of
    Justice\'s interpretations of its own regulation, the analysis in
    the preamble to the regulation and the Title II Technical Assistance
    Manual, referenced [infra]{.underline}, are entitled to
    \"\'controlling weight unless it is plainly erroneous or
    inconsistent with the regulation.\'\" [Thomas Jefferson Univ. v.
    Shalala]{.underline}, 114 S. Ct. 2381, 2386 (1994) ([quoting Bowles
    v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410, 414 (1945)).
    [See Tugg v. Towey]{.underline}, 864 F. Supp. at 1208 (relying on
    the preamble regarding coverage of association); [Fiedler v.
    American Multi-Cinema, Inc.]{.underline} 871 F. Supp. 35, 36 n. 4
    (D.D.C. 1994) (granting controlling weight to the Department of
    Justice\'s Title III Technical Assistance Manual), stating that the
    Department, as author of the title III regulation, is the principle
    arbiter of its meaning and should be accorded substantial deference
    in interpreting its regulation); [Noland]{.underline}, 835 F. Supp.
    at 483 (relying on TA Manual\'s interpretation of title II);
    [Petersen]{.underline}, 818 F. Supp. at 1280 (same). The [Title II
    Technical Assistance Manual]{.underline}, cited [infra]{.underline},
    was also issued pursuant to statutory mandate. 42 U.S.C. §
    12206(c)(3).

[^11]: ^?^ The Department\'s interpretations of its regulation found in
    the Technical Assistance Manual are entitled to deference. See n.
    10, [supra]{.underline}.

[^12]: ? On August 3, 1994, the U.S. Department of Justice sent a letter
    to the mayors of approximately 150 cities, including Phoenix,
    encouraging Phoenix and the other cities to \"review \[their\]
    telephone emergency services to determine whether they effectively
    service the needs of all citizens of \[their\] community, as
    required by the law. Mather\'s Dec. ¶ 5; Mather\'s Dec., Ex. 2. The
    letter included a copy of a settlement agreement between the
    Department of Justice and the City of Los Angeles. Mather\'s Dec.,
    Ex. 1. Under this agreement, the City of Los Angeles agreed to
    implement and maintain procedures \"to ensure that telecommunicators
    recognize TDD tones and silent open tones and that telecommunicators
    will consider a silent open line a possible TDD call and respond
    accordingly. Mather\'s Dec. ¶ 3. The City also installed
    TDD-compatible equipment at each of the 27 individual answering
    stations; properly maintained the system and provided backup
    equipment in the event that the equipment becomes inoperable; and
    provided training for emergency dispatchers in the proper operation
    of TDD\'s. Mather\'s Dec. ¶ 3.

[^13]: ? The City\'s system is not now, but could easily become, a
    \"state of the art\" system. Each answering position could be
    equipped with appropriate TDD-compatible technology not only for
    promptly receiving and responding to TDD calls, but also for
    querying silent calls for possible TDD calls and making call backs
    in cases of disconnected TDD calls.

    However, the issue of providing direct access involves more than the
    acquisition of equipment. It also requires the access to be
    \"effective\" which includes establishing appropriate policies,
    standard operating procedures, as well as providing call-takers with
    comprehensive training and refresher courses.

    At a minimum, in order to provide effective response to calls made
    from TDD\'s, a PSAP must develop and implement standard operating
    procedures to ensure that call takers recognize TDD tones and
    silence, and that call takers will consider a silent open line as a
    possible TDD call and respond accordingly.

    A comprehensive training program should include, but is not limited
    to, general information about the Americans with Disabilities Act
    and section 504 of the Rehabilitation Act; communication variables
    of individuals who are Deaf, hard of hearing or have speech
    impairments, including information on American Sign Language;
    practical instruction on equipment to include identification and
    processing of TDD calls; handling of telecommunication relay service
    calls. A training program should also include refresher courses.