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, ) NOS. CIV 95-0260-PHX-RCB

husband and wife, ) CIV 95-2742-PHX-RCB

) CIV 96-305-PHX-EHC

Plaintiffs, ) (Consolidated)

)

) UNITED STATES'

v.  ) SUPPLEMENTAL BRIEF AS

> ) [AMICUS CURIAE]{.underline} IN

CITY OF PHOENIX, ) OPPOSITION TO DEFENDANT'S

a municipality, ) MOTION FOR SUMMARY

) JUDGMENT

Defendant. )

)

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

The United States hereby responds to a number of new points raised in
the City\'s reply in support of its motion for summary judgment.

1\. The City argues that the Department of Justice\'s interpretation
that title II prohibits public entities from imposing any additional or
space bar requirements upon callers who use TDDs for access to 9-1-1
emergency services[^1] is \"unreasonable, arbitrary and capricious\"
(Reply at 17-20). The City explains that the Department of Justice:

> \"completely fails to account for the fact that there is NO technology
> available whereby a \[9-1-1\] system can automatically detect every
> call from every TDD unit or computer, without the caller hitting the
> space bar to emit a tone the system can understand.\"

Reply at 17-18. We agree that there is no technology that can
[automatically]{.underline} detect TDD calls where there is no emission
of electronic tones. Contrary to what the City would like the Court to
believe, however, that fact does not govern whether the City\'s 9-1-1
system complies ADA. TDD calls can be \"handled\"

without the use of a diverter system, simply by providing the
appropriate equipment and training to enable call takers to query silent
calls via TDD. The City refuses to do so, even though, as we have
pointed out (see U.S. Brf. at 6-7), not all TDD\'s emit electronic tones
when the space bar is pressed. For these individuals, the City offers
[NO]{.underline} access whatsoever to its 9-1-1 emergency service.

Furthermore, as we have also explained (U.S. Brf. at 6), depressing the
space bar or other keys while waiting for a call to be answered is a
foreign procedure for TDD users. Voice callers are not required to learn
a foreign procedure in order to access its 9-1-1 service. In light of
this difference, it is difficult to understand how the City can claim it
is providing equal access to the hearing impaired.

In sum, the Department of Justice\'s interpretation of its regulation is
grounded firmly in the obvious inadequacy of a 9-1-1 system that
requires TDD users to press a space bar to gain access to its services.
The interpretation, therefore, is not \"arbitrary and capricious,\" and
is entitled to deference. See U.S. Brf. n.10.

2\. The City argues that it has resolved any perceived inadequacies in
its 9-1-1 system by adopting a new procedure in September 1995, for
handling silent open line calls. Call takers are to press the \"5\" key
and then the \"#\" key. This sends a pre-programmed TDD message to the
caller advising him or her to press the space bar. If the caller has a
TDD that emits tones when the space bar is pressed, and takes this
action, the diverter will supposedly \"seize\" the call and re-route it
to the trunk dedicated for TDD access.

For two reasons, this new procedure does not provide for effective
handling of TDD 9-1-1 calls. First, again the procedure assumes,
incorrectly, that all TDD\'s have the capacity to emit tones when the
space bar is pressed. If a tone is not emitted, then the individual is
denied **[ANY]{.underline}** access to the 9-1-1 service.

Second, even if a TDD user can transmit tones by pressing the space bar
in response to the \"5#\" message, the caller can be trapped in a
\"loop.\" For example, if both TDD-equipped positions are busy with
other calls (voice or TDD), the TDD call proceeds to a non-TDD-equipped
position. The call taker at the non-equipped position has no choice but
to press the \"5#\" keys to instruct the caller to take the same action
again in order to re-route it back to the trunk dedicated for TDD
access. The caller becomes trapped in the loop, without being able to
communicate his or her emergency needs.

3\. The City asserts that it is simply not feasible for it to do more
than it has done. The experience of other cities defeats that claim. The
United States\' settlement agreements with other cities demonstrate that
equipping every one or two consoles/positions with a TDD and
establishing operating procedures for recognizing TDD tones and for
treating silent open lines as potential TDD calls is not only feasible
but necessary to ensure effective handling of TDD calls.
[See]{.underline} [Settlement Agreement Between the United States of
America and City of Fort Lauderdale, Florida]{.underline}, No.
204-18-18, February 24, 1995, Exhibit A, ¶¶ 4a (installing a minimum of
one TDD per two consoles), and 7a (recognizing TDD tones and considering
silent open lines possible TDD calls); [Settlement Agreement Between the
United States of America and the City of Berkeley,
California]{.underline}, No. 204-11-21, May 17, 1994, Exhibit B, ¶¶ 4a
(installing a minimum of one TDD at each console pod, and at all other
answering points) and 6 (recognizing TDD tones and considering silent
open lines possible TDD calls); [Settlement Agreement Between the United
States of America and The City of Chicago, Illinois]{.underline}, Nos.
204-23-2, -7, and 47, May 22, 1995, Exhibit C, ¶¶ 4a (installing two
TDD\'s at each zone console; at the overflow positions on each floor of
the Communications Center; and in the telephone Auxiliary/Response
Program (\"Call-back Unit\")); and 6 (recognizing TDD tones and
considering silent open lines possible TDD calls). [See]{.underline}
[also]{.underline} [Settlement Agreement Between the United States of
America and the City of Los Angeles, California]{.underline}, No.
204-12C-17, July 12, 1994, Exhibit D, ¶¶ 6 (installing a minimum of one
TDD at each operator 9-1-1 console) and 11 (recognizing TDD tones and
considering silent open lines possible TDD calls).[^2]

It is noteworthy that the City claims to have discussed the adequacy of
its system with representatives of the City of Los Angeles, yet failed
to increase the number of TDDs when changing to its \"new system\", as
Los Angeles agreed to do in its settlement with the Department of
Justice.

4\. The City claims that requiring that it add more TDD equipment and
that it query silent calls would be unduly burdensome. The City,
however, has provided no specific facts to support the conclusory
statements made by its employees that equipping all its call-taking
positions with TDD equipment would cost \$1.3 million.

Moreover, even assuming that equipping each 9-1-1 position with TDD
equipment would cost \$1.3 million, that fact alone does not mean that
having to do so would be an \"undue burden.\" Whether such action would
constitute an \"undue burden\" must be determined on a case-by-case
basis and depends, in part, on the financial condition of the City. In
other words, spending \$1.3 million on the 9-1-1 system may not be a
burden whatsoever. For example, Commander Rodabaugh, the head of the
City\'s 9-1-1 system, testified that the lack of funding is not a
hinderance in the City's ability to change the 9-1-1 system:

> I was looking at building the best system I could. I was not looking
> at cost, I will find the money to do what needs to be done to deliver
> the service.

Commander Rodabough's Deposition, November 21, 1995, page 47, lines
4-6.[^3] Hence, the City is not entitled to summary judgement based on
its defense of \"undue burden.\"

CONCLUSION

For the foregoing reasons, and for the reasons expressed in the United
States\'s opening brief, this Court should deny the City\'s motion for
summary judgment on the issues of liability,

and the availability of injunctive relief, and compensatory damages.

Submitted this 1st day of March, 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]: ^?^ This position is stated in the Department of Justice\'s
    Technical Assistance Manual, issued pursuant to statutory mandate,
    42 U.S.C. § 12206(c)(3). [See]{.underline} [THE AMERICANS WITH
    DISABILITIES ACT Title II Technical Assistance Manual,]{.underline}
    Covering State and Local Government Programs and Services, (1993 &
    Supp. 1994), II-7.3000 (Emergency telephone services) A copy of this
    manual is attached to the United States\' Brief as [Amicus
    Curiae]{.underline} in Opposition to Defendant\'s Motion for Summary
    Judgment, Exhibit C.

[^2]: ^?^The foregoing settlement agreements are also attached as an
    exhibit to Plaintiff's Supplemental Statement of Newly Discovered
    Facts.

[^3]: ^?^This portion of Commander Rodabaugh's deposition is also
    included as an exhibit to Plaintiff's Supplemental Statement of
    Newly Discovered Facts.