**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of

Implementation of Sections 255 and 251(a)(2) of the

Communications Act of 1934, as Enacted by the Telecommunications

Act of 1996

Access to Telecommunications Service, Telecommunications Equipment and

Customer Premises Equipment by Persons with Disabilities

WT Docket No. 96-198

**REPORT AND ORDER AND FURTHER NOTICE OF INQUIRY**

**Adopted:** July 14, 1999; **Released:** September 29, 1999

**Comment Date:** November 14, 1999

**Reply Comment Date:** December 14, 1999

By the Commission: Chairman Kennard and Commissioners Ness and Tristani
issuing separate statements; Commissioners Furchtgott-Roth and Powell
approving in part, dissenting in part and issuing separate statements.

**TABLE OF CONTENTS**

**Paragraph No.**

**A. OVERVIEW** [2](#__RefHeading___Toc5429591)

**1. Introduction** [2](#__RefHeading___Toc5429592)

**2. Background** [4](#__RefHeading___Toc5429593)

**3. Summary** [7](#__RefHeading___Toc5429594)

**4. Authority to Promulgate Rules** [9](#__RefHeading___Toc5429595)

**B. REQUIREMENTS FOR COVERED ENTITIES**
[11](#__RefHeading___Toc5429596)

**1. Overview** [11](#__RefHeading___Toc5429597)

**2. Disability** [12](#__RefHeading___Toc5429598)

**3. \"Accessible To and Usable By\\** [13](#__RefHeading___Toc5429599)

**4. Compatibility** [17](#__RefHeading___Toc5429600)

**5. Network Features, Functions, or Capabilities**
[20](#__RefHeading___Toc5429601)

**A. OVERVIEW**[]{#__RefHeading___Toc5429591 .anchor}

**1. Introduction**[]{#__RefHeading___Toc5429592 .anchor}

1\. In this Report and Order (Order) we adopt rules and policies to
implement sections 255 and 251(a)(2) of the Communications Act of 1934,
as amended (Act).[^1] These provisions, which were added by the
Telecommunications Act of 1996 (1996 Act),[^2] are the most significant
opportunity for the advancement of people with disabilities since the
passage of the Americans with Disabilities Act (ADA) in 1990.[^3] These
provisions require manufacturers of telecommunications equipment and
providers of telecommunications services to ensure that such equipment
and services are accessible to persons with disabilities, if readily
achievable. Congress has recognized that, although we are moving into
the information age with increasing dependence on telecommunications
tools, people with disabilities remain unable to access many products
and services that are vital to full participation in our society. The
purpose of sections 255 and 251(a)(2) of the Act is to amend this
situation by bringing the benefits of the telecommunications revolution
to all Americans, including those who face accessibility barriers to
telecommunications products and services. The rules we adopt in this
Order will have an historic effect on the ability of Americans with
disabilities to access and utilize telecommunications technologies and
services.

2\. Our nation has an estimated 54 million Americans with disabilities.
Persons with disabilities are the largest minority group in the United
States, yet despite their numbers, they do not experience equal
participation in society. Statistically, most Americans will have a
disability, or experience a limitation, at some point in their lives.
While only 5.3% of persons 15-24 years of age have some degree of
functional limitation, 23% of persons in the 45-54 age range experience
functional limitation. The percentage of those affected by functional
limitations increases with age: 34.2% of those aged 55-64; 45.4% of
those aged 65-69; 55.3% for those aged 70-74; and 72.5% for those aged
75 and older.[^4] The number of persons with functional limitations will
also increase with time. Today, only about 20% of Americans are over age
55, but by the year 2050, 35% of our population will be over age 55.[^5]

3\. Congress has responded to this need for access and opportunity for
individuals with disabilities by passing landmark legislation in a range
of areas: education, employment, tax policy, transportation and
assistive technology. These laws include the ADA,[^6] the Individuals
with Disabilities Education Act of 1997,[^7] the Assistive Technology
Act of 1998,[^8] and the Workforce Investment Act of 1998,[^9] which
amended section 508 of the Rehabilitation Act.[^10] Congress has also
passed legislation focused specifically on access to communications:
Title IV of the ADA (telecommunications relay services)[^11] the
Telecommunications Accessibility Enhancement Act of 1988,[^12] the
Hearing Aid Compatibility Act of 1988,[^13] and the Television Decoder
Circuitry Act of 1990.[^14] All of these laws recognize the importance
of access to all aspects of society, and access to communications
technology in particular.

4\. Through the 1996 Act, Congress recognized the importance of access
to telecommunications for all people. Telecommunications has become such
a common tool that its use is essential for participation in nearly all
aspects of our society. Today, most Americans rely on telecommunications
for routine daily activities, such as making doctors\' appointments,
calling home when they are late for dinner, participate in conference
calls at work, and making airline reservations. Moreover, diverse
telecommunications tools such as distance learning, telemedicine,
telecommuting and video conferencing enable Americans to interface
anytime from anywhere. Understanding that communications is now an
essential component of American life, Congress intended the 1996 Act to
provide people with disabilities access to employment, independence,
emergency services, education, and other opportunities.

5\. More specifically, telecommunications is a critical tool for
employment. If telecommunications technologies are not accessible to and
usable by persons with disabilities, many qualified individuals will not
be able to work or achieve their full potential in the workplace.
Congress recognized the importance of creating employment opportunities
for people with disabilities with Title I of the ADA,[^15] which
addresses the employer\'s responsibilities in making the workplace
accessible to employees with disabilities. As noted by UCPA, when
essential job functions require the ability to use and operate devices
and services, people with disabilities are at a disadvantage when these
devices and services have not been designed with accessibility in
mind.[^16] Unemployment among people with severe disabilities is roughly
73%, at a time when our country is experiencing the lowest unemployment
rate in years. Persons with disabilities who are employed earn on
average only one-third the income of the non-disabled population.[^17]
The rules we adopt today complement Title I of the ADA by giving
employers expanded tools with which to employ and accommodate persons
with disabilities.

6\. Access to telecommunications can also bring independence. The
disability community has told the Commission of the frustration of not
being able to check the balance of a checking account using
telecommunications relay service, or not being able to tell if a
wireless phone is turned on, or not being able to use a calling card
because of inadequate time to enter the appropriate numbers. The rules
adopted in this Order may be essential in bringing a great measure of
independence to members of the disability community. Access to
telecommunications services also plays a critical role in
life-threatening emergencies. The Commission has received numerous
reports from relatives of senior citizens saying that their elderly
parents could live on their own, if only they had telecommunications
equipment that they could use.

7\. The benefits of increased accessibility to telecommunications are
not limited to people with disabilities. Just as people without
disabilities benefit from the universal design principles of the ADA and
the Architectural Barriers Act (for example, a parent pushing a stroller
over a curb cut), many people without disabilities will also benefit
from accessible telecommunications equipment and services. Indeed, many
of us already benefit from accessibility features in telecommunications
today: vibrating pagers do not disrupt meetings; speaker phones enable
us to use our hands for other activities; and increased volume control
on public payphones allows us to talk in noisy environments. We expect
many similar results from the rules we adopt today. More importantly, we
all benefit when people with disabilities become active in our
communities and in society as a whole. Congress clearly intended that
these provisions would make a real difference in the lives of people
with disabilities, and of all Americans. As the Senate stated in its
report on these accessibility provisions:

The Committee recognizes the importance of access to communications for
all Americans. The Committee hopes that this requirement will foster the
design, development, and inclusion of new features in communications
technologies that permit more ready accessibility of communications
technology by individuals with disabilities. The Committee also regards
this new section as preparation for the future given that a growing
number of Americans have disabilities.[^18]

**2. Background**[]{#__RefHeading___Toc5429593 .anchor}

8\. Congress set forth a comprehensive framework to achieve
accessibility in sections 255 and 251(a)(2). In particular:

Section 255(a) defines the terms \"disability\" and \"readily
achievable\" to have the same meaning as set forth in the ADA.[^19]

Section 255(b) requires a manufacturer of telecommunications equipment
or customer premises equipment (CPE) to ensure that the equipment is
designed, developed, and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable.[^20]

Section 255(c) requires a provider of telecommunications service to
ensure that the service is accessible to and usable by individuals with
disabilities, if readily achievable.[^21]

Whenever the accessibility requirements of sections 255(b) and 255(c)
are not readily achievable, section 255(d) requires manufacturers and
service providers to ensure compatibility with existing peripheral
devices or specialized CPE commonly used by individuals with
disabilities to achieve access, if readily achievable.[^22]

Section 251(a)(2) provides that each telecommunications carrier has the
duty not to install network features, functions, or capabilities that do
not comply with the guidelines and standards established pursuant to
section 255 or 256.[^23]

Section 255(f) states that nothing in this section shall be construed to
authorize any right of action to enforce any requirement of this section
or any regulation thereunder. The Commission shall have exclusive
jurisdiction with respect to any complaint under this section.[^24]

Section 255(e) states that within 18 months after the date of enactment
of the Telecommunications Act of 1996, the Architectural and
Transportation Barriers Compliance Board (Access Board) shall develop
guidelines for accessibility of telecommunications equipment and
customer premises equipment in conjunction with the Commission. The
Board shall review and update the guidelines periodically.[^25]

9\. To implement its obligations pursuant to section 255(e), the Access
Board convened the Telecommunications Access Advisory Committee
(TAAC)[^26] to develop recommended equipment accessibility guidelines
for consideration by the Access Board. The TAAC included representatives
from equipment manufacturers, software firms, telecommunications
providers, organizations representing persons with disabilities, and
other persons interested in telecommunications accessibility. The TAAC
released its Final Report in January 1997.[^27]

10\. Thereafter, the Access Board adopted the Telecommunications Act
Accessibility Guidelines (the guidelines) for equipment in its Order
(Access Board Order),[^28] drawing heavily on the *TAAC Report*
recommen­da­tions. The guidelines consist of: (1) general accessibility
requirements; (2) specific guidance on the ways in which the functions
necessary to operate a product should be made accessible if readily
achievable;[^29] and (3) standards for compatibility with peripheral
devices and specialized CPE.[^30] The *Access Board Order* also contains
an Appendix which is advisory in nature and provides expanded
descriptions of the guidelines, offering suggestions of strategies to
assist in achieving accessible design.

11\. In April 1998, the Commission issued a *Notice of Proposed
Rulemaking* (*NPRM*), building in part from a the Access Board
guidelines and in part from a *Notice of Inquiry* it adopted in
September 1996.[^31] In the *NPRM*, the Commission made tentative
conclusions about the scope of the Act\'s coverage, the definition of
the term \"readily achievable,\" and other key matters. Over two hundred
individuals, organizations, and businesses filed comments and reply
comments in response to the *NPRM*.[^32] This Order is a final step in
the development and adoption of the rules to implement section 255.

**3. Summary**[]{#__RefHeading___Toc5429594 .anchor}

12\. A summary of the decisions in this Order is provided below:

We adopt rules identical to or based upon the Access Board guidelines,
with a few minor exceptions.[^33]

We require manufacturers and service providers to develop a process to
evaluate the accessibility, usability, and compatibility of covered
services and equipment.[^34]

We require manufacturers and service providers to ensure that
information and documentation provided to customers is accessible to
customers with disabilities, if readily achievable. Where manufacturers
and service providers furnish employee training, such training programs
must consider certain factors relating to accessibility
requirements.[^35]

With minor changes, we adopt the Access Board definition of the term
\"accessibility,\" incorporating the list of ways in which the functions
of a product should be made accessible. We also apply this definition to
both equipment and services.[^36]

Consistent with the Access Board definition, we define the term
\"usability\" as access to the full functionality of, and documentation
for, the product or service, including instructions, billing, product or
service information (including accessible feature information),
documentation, and technical support functionality.[^37]

We adopt four of the Access Board\'s five criteria for determining
\"compatibility.\" We do not include the criterion of compatibility with
prosthetic devices, but instead include that criterion in our definition
of \"accessibility.\"[^38]

Consistent with the ADA, we define the term \"readily achievable\" as
easily accomplishable and able to be carried out without much difficulty
or expense. Determinations as to what is \"readily achievable\" will be
made on a case-by-case basis considering factors which include: (1) the
cost of the action; (2) the nature of the action; and (3) the overall
resources available to the entity.[^39]

We determine that section 255, by its terms, applies to the design and
production of each individual product and service offered by a
manufacturer or service provider. The obligation of a manufacturer or
service provider to review the accessibility of a product or service,
and incorporate accessibility features, where readily achievable, must
occur at every natural opportunity.[^40]

We require the universal deployment of accessibility features that can
be incorporated into product design when readily achievable. For those
features or actions that cannot be universally deployed, but are readily
achievable to incorporate into some products and services, manufacturers
and service providers have the flexibility to distribute those features
across their products or services as long as they do all that is readily
achievable.[^41]

We determine that, pursuant to section 251(a)(2), a telecommunications
carrier may not install network features, functions, or capabilities
that do not comply with the accessibility requirements of this
Order.[^42]

We determine that the terms \"telecommunications\" and
\"telecommunications services\" have the meanings set forth in section 3
of the Act.[^43]

We determine that the terms \"telecommunications equipment\" and
\"customer premises equipment\" have the meanings set forth in section 3
of the Act, and include software integral to the equipment\'s
operation.[^44]

We determine that the term \"manufacturer\" means an entity that makes
or produces a product, including any entity that exercises significant
control over the design, development or fabrication process.[^45]

In order to ensure the accessibility of telecommunications services, we
assert ancillary jurisdiction to extend the accessibility requirements
of this Order to providers of voicemail and interactive menu service, as
well as to manufacturers of equipment which performs those
functions.[^46]

We adopt an informal complaint procedure in which manufacturers and
service providers must attempt to resolve the customer\'s concerns and
respond to the Commission within 30 days. Manufacturers or service
providers are not required, as an initial response to each complaint, to
supply a detailed analysis of what is and is not readily achievable to
accomplish. The Commission may, based on a single complaint or a trend
or pattern of practices, initiate inquiries or investigations to
determine if a manufacturer is fulfilling its section 255
obligations.[^47]

We encourage, but do not require, consumers to contact the covered
entity in advance of filing an informal complaint with the Commission.
We allow complainants to file a formal complaint for adjudication of a
dispute at any time.[^48]

**4. Authority to Promulgate Rules**[]{#__RefHeading___Toc5429595
.anchor}

13\. In the *NPRM*, we tentatively concluded that we had authority to
adopt regulations implementing section 255 pursuant to section 4(i),
201(b), and 303(r).[^49] As supported by the record, we conclude that we
have authority to adopt regulations to implement section 255.[^50] We
find that the language of section 255(f), which bars any right of action
"to enforce any requirement of this section *or any regulation
thereunder*," expressly contemplates the Commission\'s enactment of
regulations to carry out its enforcement obligations under the
provisions of section 255.[^51] Furthermore, in a case challenging the
Commission\'s authority to adopt rules pursuant to another provision of
the 1996 Act, the Supreme Court held "that \[section\] 201(b) explicitly
gives the FCC jurisdiction to make rules governing matters to which the
1996 Act applies."[^52] In other words, an individual provision of the
Communications Act need not contain an express grant of rulemaking
authority in order to empower the Commission to adopt implementing
regulations. For these reasons, we reject the arguments of some parties
that Congress\' deletion of Senate bill language requiring the
Commission to promulgate rules to implement section 255 should be
construed as limiting the Commission's discretionary rulemaking
power.[^53] We conclude, therefore, that at a minimum, section 255
itself grants us authority to enact rules to implement the provisions of
section 255.[^54] In addition, most commenters supported exercising this
authority because covered entities would benefit from having rules that
provide clear guidance in fulfilling their section 255 obligations.[^55]

14\. The extensive record herein supports the adoption of rules
consistent with the Access Board\'s guidelines.[^56] Accordingly, we
adopt rules in this Order that are identical to or based upon the Access
Board guidelines, with a few minor exceptions.[^57] Moreover, as
explained below, because the Access Board guidelines, though directed to
equipment, are sufficiently broad in their language, we conclude below
that they can effectively serve as the basis for rules for both covered
services and equipment. Therefore, we apply our rules uniformly to both
covered services, as well as covered equipment.

15\. We note, however, that we have the discretion to depart from the
Access Board guidelines where merited. Most commenters did not question
our discretion to depart from the Access Board guidelines,[^58] although
some urged us to use our discretion to adopt the guidelines wholesale
and apply them to services.[^59] In addition, some commenters felt that
we should depart from the guidelines only under special
circumstances.[^60] While we acknowledge the Access Board\'s expertise
in identifying the access requirements of persons with disabilities in a
comprehensive manner, we find that the Commission would not be bound to
adopt the Access Board\'s guidelines as its own, or to use them as
minimum standards, if it were to conclude, after notice and comment,
that such guidelines were inappropriate.[^61] Typically, unless
otherwise provided by statute, \"guidelines\" are distinct from rules
and, like a general statement of policy or procedure, are not considered
to have the force and effect of law.[^62] Because section 255(e)
requires that the Commission participate in the Access Board\'s
formulation of guidelines, however, we believe that Congress intended
that such guidelines be given significant consideration in implementing
section 255. The fact that Congress mandated the Board\'s continuing
involvement through periodic review and updating of guidelines under
section 255(e) further supports our decision to give significant
consideration to the Board\'s guidelines, as we have done throughout our
deliberations. We also recognize that these guidelines are the product
of extensive deliberations between the disability community and the
telecommunications industry, which gives them considerable credibility
in our view.

**B. REQUIREMENTS FOR COVERED ENTITIES**[]{#__RefHeading___Toc5429596
.anchor}

**1. Overview**[]{#__RefHeading___Toc5429597 .anchor}

16\. The requirements that covered entities (as discussed in section D,
*infra*) must follow are outlined below. First, as stated in the
statute, 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. Second, a provider of
telecommunications service shall ensure that the service is accessible
to and usable by individuals with disabilities, if readily achievable.
Finally, whenever the requirements set forth above are not readily
achievable, such 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.

17\. To implement these statutory requirements, we must consider and
interpret the key terms used in section 255, including \"disability,\"
\"accessible to and usable by,\" \"compatibility,\" and \"readily
achievable.\" The meanings of these terms are critical to the
obligations of entities covered by section 255.

**2. Disability**[]{#__RefHeading___Toc5429598 .anchor}

18\. Section 255 provides that the term \"disability\" has the meaning
given to it by section 3(2)(A) of the Americans with Disabilities Act
(ADA).[^63] The ADA defines "disability" as \"(1) a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual; (2) having a record of such an impairment;
or (3) being regarded as having such an impairment.\"[^64] Without
expressly defining disability, the Access Board explained that its
"guidelines are required to principally address the access needs of
individuals with disabilities affecting hearing, vision, movement,
manipulation, speech, and interpretation of information."[^65]

19\. We adopt the ADA definition of disability in its entirety, as
required under Section 255 of the Act. Indeed, the statutory language
requires that we apply the same definition as set forth in the ADA. We
further agree with commenters that, in implementing section 255, we
should follow any applicable judicial and administrative precedent
stemming from this definition, except in those limited circumstances in
which such precedent is shown to be unsuitable to a specific factual
situation.[^66] We disagree with TIA that the definition of disability
should be limited to include \"only those persons with functional
limitations that affect their ability to use telecommunications
equipment and CPE.\"[^67] TIA\'s proposal would effectively limit the
definition of \"disability\" to the first prong of the ADA definition,
because such a definition would not reach persons with a record of an
impairment or persons who are \"regarded as\" having disabilities. We
decline to depart from or alter the ADA definition, where Congress
expressly incorporated the ADA definition of disability in its entirety.

20\. In order to provide an additional measure of guidance to
manufacturers and service providers, and consistent with the Access
Board, we conclude further that, at a minimum, the statutory reference
to \"individuals with disabilities\" includes those with hearing,
vision, movement, manipulative, speech, and cognitive disabilities.[^68]
We agree that individuals with these disabilities experience the great
majority of access barriers that section 255 was intended to address. By
no means, however, is the definition of \"disability\" limited to these
specific groups. Determinations of what constitutes a \"disability\"
under section 255 must be made on a case-by-case basis.

**3. \"Accessible To and Usable By\"**[]{#__RefHeading___Toc5429599
.anchor}

21\. Section 255 requires equipment manufacturers to ensure that their
equipment is designed, developed and fabricated to be \"accessible to
and usable by\" individuals with disabilities, if readily achievable,
and requires service providers to ensure that the service is
\"accessible to and usable by\" individuals with disabilities, if
readily achievable. The terms \"accessible to\" and \"usable by\" are
not defined in either section 255 or the ADA.

22\. The Access Board adopted a functional approach, defining equipment
\"accessible to\" individuals with disabilities as including various
input, control and mechanical functions, as well as output, display and
control functions.[^69] The Access Board guidelines for equipment define
"usable by" as meaning that "individuals with disabilities have access
to the full functionality and documentation for the product, including
instructions, product information (including accessible feature
information), documentation, and technical support functionally
equivalent to that provided to individuals without disabilities."[^70]
The Access Board states that the "usable by\" requirement is intended
"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.\"[^71] In addition, section 1193.37 of
the Access Board\'s rules calls for pass-through of "cross-manufacturer,
non-proprietary, industry-standard codes, translation protocols, formats
or other information necessary to provide telecommunications in an
accessible format,\" in order to ensure, among other things, that signal
compression technologies do not remove information needed for access, or
restore it upon decompression.[^72]

23\. We adopt the Access Board\'s definitions of \"accessible to\" and
\"usable by.\" We initially proposed in the *NPRM* to combine these
terms under one definition under our rules, reasoning that the term
"accessible to" should be used in its broadest sense to refer to the
ability of persons with disabilities actually to *use* the equipment or
service by virtue of its inherent capabilities and functions.[^73] Upon
further review, however, we believe that it is more precise, and will
provide clearer guidance to entities covered by section 255, for us to
follow the lead of the Access Board and define these two terms
separately because the requirements of \"accessible to\" and \"usable
by\" embrace two distinct concepts.[^74] While \"accessible to\"
generally refers to the incorporation of specific features in products
and services that will allow people with disabilities to access those
products, we agree with the Access Board that \"usable by\" generally
refers to the ability of people with disabilities to learn about and
operate those features effectively.[^75] Although the Access Board
guidelines were designed in the context of equipment and CPE
accessibility, we conclude that these guidelines are equally applicable
to the services context, and thus our definition of accessibility and
usable applies to both equipment and services. We also adopt the
proposal made in the *NPRM* to ensure that support services (such as
consumer information and documentation) associated with equipment and
services are accessible to and usable by people with disabilities.[^76]

24\. We conclude that, with one technical exception[^77] and one
addition,[^78] the input, control and mechanical functions in section
1193.41 of the Access Board guidelines and the output, display and
control functions in section 1193.43 of the Access Board guidelines
shall constitute the definition of \"accessible to\" under the
Commission\'s rules. We disagree with Phillips and TIA that adoption of
the Access Board list as part of our definition of \"accessible to\"
could be read as requiring manufacturers to incorporate all 18 functions
into each product, and thus would require manufacturers to \"attempt the
impossible.\"[^79] Phillips\' and TIA\'s argument ignores the fact that
all assessments of a product\'s or service\'s accessibility, and
decisions regarding which of the 18 areas on the list can be addressed,
must be made within the boundaries of the readily achievable
qualification of the statute. The list is not a set of mandates, but
rather a list of areas covered entities should be considering when
designing products and services. For this reason, we agree with
commenters that the definition is fair and appropriately
descriptive.[^80]

25\. We do not adopt section 1193.43(e) of the Access Board rules, which
would require that volume control telephones provide a minimum of 20 dB
adjustable volume gain. We decline to adopt this 20 dB volume control
standard under our rules because it conflicts with rules that we have
previously adopted pursuant to the Hearing Aid Compatibility Act.[^81]
While we recognize the rationale behind Access Board\'s decision to
provide a more stringent volume control standard, we decline to
supersede existing Commission rules developed under a lengthy negotiated
rulemaking pursuant to a section of the Act focused expressly on this
issue. Furthermore, because the industry has, since 1997, been making
plans to incorporate our HAC Act volume control requirements in all
telephones to be manufactured in, or imported for use in, the United
States after January 1, 2000, it would be unduly disruptive and
burdensome for us to alter the volume control technical standards at
this time.

26\. We also do not adopt a separate requirement regarding net
reductions similar to that in section 1193.30 of the Access Board\'s
guidelines. We believe that this requirement is addressed under the
readily achievable definition and analysis. As we noted in the *NPRM*,
the fact that a product has particular accessibility features is
evidence that inclusion of those features in later products from the
same producer is readily achievable.[^82] The flexibility of the readily
achievable analysis recognizes that it will generally be unacceptable to
completely eliminate an existing accessibility feature, but that
legitimate feature trade-offs as products evolve are not prohibited.

27\. We do, however, add to our rules one input factor to the list
developed by the Access Board. Specifically, the definition of
\"accessible to\" shall include being \"operable with prosthetic
devices.\" The Access Board\'s guidelines under section 255(d) for
compatibility included \"compatibility of controls with prosthetics\" as
one criterion.[^83] We agree with Trace, however, that prosthetic
devices should not be considered peripheral devices subject to the
compatibility requirements of section 255(d), but rather that
manufacturers and service providers should be required to consider
direct access to input controls by persons using prosthetic devices as
part of their \"accessibility\" obligations under sections 255(b) and
(c).[^84] Because some people with disabilities rely on prosthetic
devices, we conclude that consideration of direct access by such persons
is appropriately encompassed in the definition of \"accessible to.[^85]

28\. We adopt the Access Board\'s definition of \"usable by\" as our
definition under the rules. As many commenters that addressed this issue
recognized, providing access to all supporting documentation and support
services is an essential ingredient for the successful implementation of
section 255 and is encompassed by our definition of \"usable by.\"[^86]
Support services include, but are not limited to, access to technical
support hotlines and databases, access to repair services, billing and
any other services offered by a manufacturer or service provider that
facilitate the continued and complete use of a product or service.
Support services also include efforts by manufacturers and service
providers to educate its sales force about the accessibility of their
products and how accessibility features can be used.

29\. We further conclude, consistent with the Access Board\'s guidelines
and supported by the record, that \"usable by\" means manufacturers and
service providers ensure that consumers with disabilities are included
in product research projects, focus groups, and product trials, where
applicable, to further enhance the accessibility and usability of a
product, if readily achievable.[^87] Consumers with disabilities, even
if they can access the functionalities of a specific product, may still
face significant barriers in the use of telecommunications equipment and
services. We believe that Congress, through its inclusion of the words
\"usable by,\" intended that consumers with disabilities should be able
to use telecommunications equipment and services on terms equal to those
of any other customer, and that participation in the activities
described above is an important step towards reaching this goal.

30\. We also conclude, consistent with the Access Board guidelines and
the statutory definition of CPE, that specialized CPE, such as
direct-connect TTYs,[^88] are considered a subset of CPE. The statute\'s
requirement that manufacturers and service providers ensure
compatibility with CPE which has a specialized use does not change the
fact that this equipment still meets the definition of CPE as discussed
*infra* in paragraphs 80 *et. seq.* We define specialized CPE as CPE
which is commonly used by individuals with disabilities to achieve
access.[^89] Thus, manufacturers and service providers have the same
obligations to ensure accessibility and usability of SCPE as they do for
any other CPE.[^90]

**4. Compatibility**[]{#__RefHeading___Toc5429600 .anchor}

31\. Section 255 requires that, when it is not readily achievable to
make equipment and services accessible to or usable by individuals with
disabilities, the manufacturer or service 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, where readily achievable.\"[^91]

32\. The Access Board defines "peripheral devices" as "\[d\]evices
employed in connection with telecommunications equipment or customer
premises equipment to translate, enhance, or otherwise transform
telecommunications into a form accessible to individuals with
disabilities."[^92] It further explains that \"peripheral devices\"
refers to, for example, audio amplifiers, ring signal lights, some TTYs,
refreshable Braille translators, text-to-speech synthesizers and similar
devices that must be connected to a telephone or other customer premises
equipment to enable an individual with a disability to originate, route,
or terminate telecommunications. The Access Board also states that
peripheral devices cannot perform these functions on their own.[^93] The
Access Board defines \"specialized customer premises equipment\" (SCPE)
as "\[e\]quipment, employed on the premises of a person (other than a
carrier) to originate, route, or terminate telecommunications, which is
commonly used by individuals with disabilities to achieve access."[^94]
The Access Board guidelines categorize specialized CPE as a subset of
CPE and state that manufacturers of specialized CPE should also make
their products accessible to all individuals with disabilities, where
readily achievable.[^95] Finally, the Access Board lists five criteria
for determining compatibility: (1) external access to all information
and control mechanisms; (2) existence of a connection point for external
audio processing devices; (3) compatibility of controls with
prosthetics; (4) TTY connectability; and (5) TTY signal
compatibility.[^96]

33\. As proposed in the *NPRM*,[^97] and supported by the record,[^98]
we will use the Access Board compatibility criteria as our starting
point. We adopt four of the five criteria set forth by the Access Board
as the definition of \"compatibility\" under section 255. We do not
adopt the criterion of \"compatibility of controls with prosthetic
devices,\" which we have instead added to the definition of
accessibility.[^99]

34\. Furthermore, we agree with commenters that we should adopt the
Access Board\'s definitions of \"peripheral devices\" and \"specialized
CPE.\"[^100] As proposed in the *NPRM*,[^101] the definitions of the
terms \"peripheral devices\" and \"specialized CPE\" limit the
compatibility requirement to those devices that have a specific
telecommunications function or are designed to be used primarily to
achieve access to telecommunications. Thus, for example, equipment used
in direct conjunction with CPE, such as amplifiers for persons with
hearing disabilities, or screen readers for persons with visual
disabilities, would be considered either peripheral devices or
specialized CPE. In contrast, assistive technology devices such as
hearing aids or eyeglasses, which have a broad application outside the
telecommunications context, used in conjunction with peripheral
equipment or specialized CPE, would not themselves be considered
specialized CPE or peripheral devices under the Act.[^102]

35\. To comply with its compatibility obligations, a manufacturer or
service provider must assess whether it is readily achievable to install
features or design equipment and services so that the equipment or
service can meet the criteria of compatibility. We agree with NAD that
compliance with these criteria must be mandatory.[^103] We also agree
with commenters who point out that as technology evolves, the guidelines
and the definition of \"compatibility\" may need to be revised.[^104]
Furthermore, in recognition of the fact that these criteria were
intended for equipment and CPE, we encourage service providers to
consult with the disability community to identify other criteria for
compatibility of services, in addition to TTY signal compatibility.
Additionally, we encourage industry to develop voluntary industry-wide
standards to augment the mandatory criteria we adopt today, because it
will offer the industry flexibility in advancing the goals of
compatibility in accordance with the requirements of section 255.

36\. We require manufacturers and service providers to exercise due
diligence to identify the types of peripheral devices and specialized
CPE \"commonly used\" by people with disabilities with which their
products and services should be made compatible, if it has not been
readily achievable to make those products and services accessible. In
the *NPRM*, we had proposed using the concepts of affordability and
availability to help define the statutory term \"commonly used\" in
section 255(d).[^105] Commenters objected strongly to the use of these
concepts,[^106] however, as well as to our proposal to rely on state
equipment distribution programs as a guide to determine \"commonly
used\" equipment. Commenters argued that state equipment programs were
limited by their own funding constraints or selection process and did
not accurately represent the equipment preferred by consumers.[^107] We
agree. We conclude, therefore, that affordability and general market
availability are insufficient, and in some cases inappropriate, criteria
for determining whether a specific peripheral device or piece of
specialized CPE is \"commonly used\" by persons with disabilities. We
agree with commenters who note that peripheral devices or specialized
CPE may be commonly used by members of a certain disability population,
even if those devices are relatively expensive and only available
through specialized outlets.[^108] Further, we note that, when
determining whether a particular device is commonly used by individuals
with disabilities, a manufacturer or provider should look at the use of
that device among persons with a particular disability. Contrary to some
commenters\' proposals, we decline to maintain a list of functions
(*e.g*., converting text to speech) or devices to determine what
equipment is \"commonly used,\"[^109] because what is \"commonly used\"
by consumers may change rapidly as technology evolves.

**5. Network Features, Functions, or
Capabilities**[]{#__RefHeading___Toc5429601 .anchor}

37\. Section 251(a)(2) of the Act requires that telecommunications
carriers not install network features, functions, or capabilities that
do not comply with the guidelines or standards established pursuant to
section 255. We conclude that telecommunications carriers must not
install service logic and databases associated with routing
telecommunications services, whether residing in hardware or software,
that do not comply with the accessibility requirements of these rules.
This is consistent with the definition of telecommunications equipment
discussed in section D.1.b., *infra*, and our tentative conclusion in
the *NPRM* that section 251(a)(2) governs network configuration.

38\. This is an important provision given the role of common carriers
and the realities of network architecture. Without this provision,
network architecture could inhibit the use of the accessible services
and equipment otherwise required by these rules. In the traditional
public switched telephone network (PSTN), an ordinary call may traverse
a number of switches between the calling party and the called party.
Prior to the mid-1960s, the service logic necessary to route calls
across the network was hardwired into switching systems.[^110] In the
mid-1960s, stored program control (SPC) switching systems were
introduced. This provided a somewhat more flexible environment and
allowed the creation of new services.[^111] These new services included
Custom Calling Services such as call waiting, call forwarding, and three
way calling. Even greater flexibility was provided with the deployment
of common channel signaling (CCS) or signaling system number 7 (SS7) in
the mid-1970s and with the subsequent development of the Intelligent
Network (IN) concept.

39\. The \"intelligence\" (*i.e*., the service logic) of the IN is taken
out of the individual switches and placed in software and associated
data bases residing in computer nodes called Service Control Points
(SCPs). The SCPs are distributed throughout the network. In the IN
architecture, the individual switches access the software/data bases
residing in the SCPs via the SS7 network. The fundamental advantage of
this architecture is that the network becomes service-independent. That
is, new capabilities can be rapidly introduced into the network and
services can be more easily tailored to meet the requirements of
individual customers. This is because the necessary changes in service
logic occur in software rather than hardware and at only a limited
number of locations rather than at each switch.

40\. This architecture of the PSTN is the basis for widely deployed and
accepted services such as the Custom Local Area Signaling services
(CLASS) and 800-number and Alternative Billing Services (ABS).[^112] It
is also the basis for an expanding number of other services that change
the features, functionality, and capabilities of the PSTN. By using
software-based logic programmed into the network and information such as
the calling and called party telephone numbers, the time-of-day,
information entered by the customer placing or receiving the call, and
information stored in the network, calls can be handled in a host of
different ways. One simple example, a service called Area Number Calling
Service, is described as follows:

This \[Area Number Calling\] service is useful for companies or
businesses that want to advertise one telephone number but want their
customer\'s calls routed to the nearest or most convenient business
location. The SCP service logic and data (e.g., zip codes) are used to
match between the calling party\'s telephone number and their geographic
location. The call is then routed to the company or business location
that is closest to or most convenient for the calling party.[^113]

41\. In the architecture just described, there may be multiple entities
involved. In addition to the service providers, there are entities that
supply the equipment used in the network. In terms of the network
equipment, this may include (a) the manufacturer of the switching
equipment including both hardware and software (including that necessary
for basic call processing); (b) the manufacturer of the computer and
related equipment used in the SCP; and (c) the manufacturer/supplier of
the software-based service logic and databases used in the SCP. In some
instances, the supplier of each of these parts may be the same entity
and, at the other extremes, multiple entities may be involved. We note
that the service provider may furnish its own software and databases
necessary to create or maintain telecommunications services. Indeed,
giving the provider the ability to create new and customized services
was one of the main motivations for the migration to the service
independent architecture.

42\. Because service logic and databases associated with routing
telecommunications services, whether residing in hardware or software,
create network features, functions, and capabilities, we adopt this
rule. Thus, we conclude that, in accordance with section 251(a)(2) of
the Act, telecommunications carriers must not install service logic and
databases (software- or hardware-based) that do not comply with the
standards established pursuant to section 255. The above analysis is
consistent with the definition of telecommunications equipment contained
in the Act.[^114] That is, both hardware and software are included in
the definition of telecommunications equipment given in the Act. Our
findings are also consistent with our tentative conclusion in the *NPRM*
that section 251(a)(2) governs carriers\' *configuration* of their
network capabilities. Stated another way, providers configure their
networks through the installation of service logic and databases. As we
indicated in the *NPRM*, we view section 251(a)(2) to mean that the
resulting configuration \"should facilitate \-- not thwart \-- the
employment of accessibility features by end users.\"[^115]

**C. READILY ACHIEVABLE**

**1. Definition of \"Readily Achievable\"**

43\. Section 255(b) and (c) require manufacturers of telecommunications
equipment or customer premises equipment and providers of
telecommunications service to design the equipment or service to be
accessible to and usable by individuals with disabilities, if \"readily
achievable.\"[^116] If the requirements of subsections (b) and (c) are
not readily achievable, the manufacturer or service provider must ensure
that the equipment or service is compatible with existing peripheral
devices or specialized CPE commonly used by people with disabilities to
achieve access, if \"readily achievable.\"[^117]

44\. Under section 255, the term \"readily achievable\" has the meaning
given to it in section 301(9) of the ADA.[^118] The ADA provides:

The term \"readily achievable\" means easily accomplishable and able to
be carried out without much difficulty or expense. In determining
whether an action is readily achievable, factors to be considered
include \--

\(A\) the nature and cost of the action needed under \[the ADA\];

\(B\) the overall financial resources of the facility or facilities
involved in the action; the number of persons employed at such facility;
the effect on expenses and resources, or the impact otherwise of such
action upon the operation of the facility;

\(C\) the overall financial resources of the covered entity; the overall
size of the business of a covered entity with respect to the number of
its employees; the number, type, and location of its facilities; and

\(D\) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the workforce of
such entity; the geographic separateness, administrative or fiscal
relationship of the facility or facilities in question to the covered
entity.[^119]

45\. Title III of the ADA, where the term \"readily achievable\" is
found, requires places of public accommodation to \"remove architectural
barriers, and communication barriers that are structural in nature, in
existing facilities, and transportation barriers in existing vehicles
and rail passenger cars used by an establishment for transporting
individuals . . . where such removal is readily achievable.\"[^120]
Title III also requires an entity that \"can demonstrate that the
removal of a barrier . . . is not readily achievable,\" to \"make such
goods, services, facilities, privileges, advantages, or accommodations
available through alternative methods if such methods are readily
achievable.\"[^121]

46\. The United States Department of Justice (DOJ), which is responsible
for implementation and enforcement of Titles II and III of the ADA,
adopted the ADA\'s definition of \"readily achievable\" in its rules,
with some modifications.[^122] Specifically, the DOJ reordered the
factors, replaced the term \"covered entity\" with \"parent entity,\"
and added the term \"if applicable\" to the beginning of the third and
fourth factors.[^123] While the DOJ preserved all four statutory factors
in its regulation, it also added a factor allowing \"legitimate safety
requirements, including crime prevention measures\" to be
considered.[^124] The DOJ provided a non-exhaustive list of sample
actions that a public accommodation could take to fulfill its
obligation, if readily achievable, to remove barriers, such as
installing ramps, making curb cuts, installing flashing alarm lights,
and widening doors.[^125] The DOJ also developed a \"priority list\" in
its regulation, urging public accommodations to take \"readily
achievable\" actions to remove barriers in accordance with those
priorities.[^126]

47\. We adopt the ADA\'s definition of \"readily achievable.\" We agree
with the DOJ that this definition is intended to ensure that a \"wide
range of factors be considered in determining whether an action is
readily achievable.\"[^127] Under ADA precedent, a flexible,
case-by-case analysis is employed in determining whether removal of
barriers is \"readily achievable.\" We agree with commenters that
individual facts and circumstances will vary, and that what is readily
achievable must be determined on a case-by-case basis.[^128] Our goal,
therefore, is to set forth an analytical framework that will provide
guidance to manufacturers and service providers as they take the steps
needed to make their products and services accessible to people with
disabilities.

48\. The primary focus of a \"readily achievable\" analysis should be
upon three general considerations delineated in the ADA definition,
namely (1) the cost of the action; (2) the nature of the action; and (3)
the overall resources available to the entity, including resources made
available to the entity by a parent corporation, if applicable,
depending on the type of operation and the relationship between the two
entities.[^129] We decline to include consideration of feasibility,
expense, and practicality, as proposed in our *NPRM*.[^130] After
reviewing the record, we are persuaded that \"readily achievable\"
determinations should track more closely the ADA definition that is
incorporated in section 255. In our rule, we have modified the
definition so that it more closely correlates with the terms used in
section 255. For example, we have replaced the word \"facility\"
throughout the definition with the terms \"manufacturer\" and \"service
provider,\" as appropriate. We also have inserted the terms \"if
applicable\" before the third and fourth prongs of the definition. We
believe that these modifications will provide clearer guidance to
entities covered by section 255 with respect to the application of
\"readily achievable.\"[^131] If our experience enforcing this statute
persuades us that including some other considerations may prove
beneficial, we will, at a later time, consider including them.[^132]
Furthermore, we agree with those parties who have argued that, in
interpreting section 255, we should look to the \"substantial body of
judicial decisions interpreting and applying\" the terms of the ADA,
including the phrase \"readily achievable.\"[^133]

**2. Application of Readily Achievable**

**a. In General**

49\. In implementing the requirements of section 255, we decline to
adopt a \"product line\" framework proposed primarily by manufacturers
of equipment.[^134] Under this approach, a manufacturer or service
provider would not need to conduct a \"readily achievable\" analysis for
each produce or service, but instead would ensure that select products
within its product lines are accessible to persons with disabilities. We
conclude that section 255, by its terms, applies to the design and
production of individual products and service offered by a manufacturer
or service provider. Section 255(b) states that a manufacturer shall
ensure that "the equipment" is designed, developed and fabricated to be
accessible to individuals with disabilities, if readily
achievable.[^135] Likewise, section 255(c) directs providers of
telecommunications service to ensure that "the service" be accessible,
if readily achievable.[^136] This language strongly suggests that
Congress intended to make these accessibility requirements applicable to
each piece of equipment and to each service, and not more generally to
product lines.

50\. Equally important, we believe that our interpretation of the
statutory language best realizes what we consider to be two primary
goals of section 255. First, the statute ensures that consumers with
disabilities have access to the telecommunications products and services
that are available in the general market. Thus, we concur with the
comments submitted by consumers with disabilities, who oppose a product
line framework because it would not permit them to utilize anything but
\"specialized\" products.[^137] Second, section 255 brings universal
design and access engineering principles to the telecommunications
industry, similar to developments in the architectural and
transportation industries that have resulted from the ADA and
Architectural Barriers Act.[^138] We view section 255 as a statute
designed to change the *status quo* by requiring manufacturers and
service providers to consider products and services for persons with
disabilities not as a specialized field, but as part of the general
market. Adoption of a product line approach would fail to ensure
accessibility of all products and services, wherever it is readily
achievable.

51\. We recognize that there are accessibility features that can be
incorporated into the design of products with very little or no
difficulty or expense.[^139] These features must be deployed
universally. We will not identify specific features that fall into this
category, because it necessarily varies given the individual
circumstances. Manufacturers and service providers must make their own
determinations based on the factors in the readily achievable
definition. Thus, manufacturers and service providers cannot decline to
incorporate modest features that will enhance accessibility simply
because some other product or service with the feature may be available.
We expect that, over time, more and more features will be incorporated
into all products in this manner, and that features that today may not
be readily achievable soon will become routine and universally adopted.

52\. With respect to those features or actions that are not readily
achievable to be deployed universally, but are readily achievable to be
incorporated into some products and services, manufacturers and service
providers have the flexibility to distribute those features across
product or service lines as long as they do all that is readily
achievable. In addition, we expressly encourage manufacturers and
service providers to work closely with the disability community to
ensure that under-represented disability groups, and multiple
disabilities (such as deaf-blindness), are not ignored.

53\. Finally, in those instances where accessibility under subsections
(b) or (c) of section 255 is not readily achievable, service providers
and manufacturers are required to comply with subsection (d), which
states that they must ensure that their equipment or services are
compatible with existing specialized CPE or peripheral devices commonly
used by persons with disabilities to achieve access, if readily
achievable.

54\. We believe this framework will provide manufacturers and service
providers a viable means for compliance with section 255, while
promoting accessibility to the maximum extent possible. We expect that
different companies, faced with their unique circumstances, may well
come to different conclusions about deployment of accessibility
features. We believe that is a desirable outcome that will maximize the
range and depth of accessible products and services available to
customers and will capitalize on the positive forces of competition.

**b. Cost of the Action Needed**

55\. In determining whether an action is \"readily achievable,\" one
consideration is the \"cost\" of the action.[^140] In the *NPRM,* we
asked a number of questions regarding how to determine cost.[^141] After
consideration of the record, we conclude that \"cost,\" for purposes of
the \"readily achievable\" evaluation, is the incremental amount that a
manufacturer or service provider expends to design, develop, or
fabricate a product or service to ensure that it is accessible. We
recognize that it may be difficult at times for a manufacturer or
service provider to identify the incremental cost of making its products
or services accessible. For the sake of simplicity, however, this
analysis should begin by calculating, to the extent possible, the
incremental cost of facilities, plant, labor, software, hardware or
other concrete actions necessary to design the product or service to
enhance or provide accessibility. For example, a manufacturer of
wireless handsets might calculate the cost of designing and installing a
nub on the \"5\" key of a phone\'s keypad that would provide a tactile
cue for persons with vision disabilities. The incremental cost of adding
keypads with a nub would be the total cost of producing the phone with
keypads with a nub, less the total cost of producing the phone without
keypads with a nub.

56\. Although we tentatively concluded in the *NPRM* that it would be
appropriate to consider net costs, taking into account such factors as
the potential for recovery of expenses from consumers through increased
sales or higher product prices, we now reject that approach for several
reasons.[^142] We believe that an assessment of market factors, such as
the ability of a service provider or manufacturer to recover its costs
through price changes, would involve speculation. Moreover, not
considering market factors is consistent with ADA precedent, and we are
not convinced that there are any factors specific to telecommunications
that compel us to adopt an interpretation of costs different from that
under the ADA. Indeed, the Access Board has argued that because
\"readily achievable\" is a term rooted in the ADA, we should not stray
from the well-established interpretation given to \"costs\" under prior
disability rights statutes, particularly when it could have adverse
consequences for the disability community.[^143] We also are persuaded
that introducing cost recovery or market considerations into the meaning
of \"cost\" could defeat one of the primary purposes of section 255 \--
enhancing access to telecommunications equipment and service for a
population whose needs have not been addressed by the market
alone.[^144] For all these reasons, we conclude that \"costs\" means
incremental costs to design, develop or fabricate accessible products or
services.

57\. While we have concluded that we will not consider market factors in
determining what is readily achievable, we do not rule out the ability
of manufacturers and service providers to take these market factors into
account when making the decisions discussed in section C.2., *supra*,
regarding deployment of more significant readily achievable
accessibility features throughout its products.

58\. We will permit manufacturers and service providers to consider the
cost of disability access actions for a product or service in
conjunction with the cost of other actions taken by them to comply with
these rules during a fiscal period, as proposed by a number of
commenters.[^145] This is consistent with the DOJ\'s approach in its ADA
regulation.[^146] We agree with DOJ and various commenters that, in some
circumstances, it may be appropriate to consider the cost of other
accessibility actions as a factor in determining whether a measure is
readily achievable. Therefore, manufacturers and service providers may
take into account the cumulative cost[^147] of all accessibility actions
over a specific fiscal period in determining whether an action is
\"readily achievable.\" We underscore, however, that \"cumulative
costs\" cannot be the only factor used by a manufacturer or service
provider to determine whether a measure is \"readily achievable.\" In
particular, the ability to take into account cumulative costs shall not
permit a manufacturer or service provider to predetermine caps or quotas
on its total spending for section 255 compliance for a given fiscal
period. The fact that a manufacturer or service provider already may
have spent a certain amount of resources to install an accessibility
feature in one product does not terminate its obligation to determine
whether it is readily achievable also to install the feature into other
products. In short, cumulative access expenditures is simply one factor
that can be taken into account in case-by-case determinations.

59\. We anticipate that, for some accessibility features, the cumulative
cost of including a feature in all products may be well within the
bounds of what is readily achievable. Cumulative costs may become a
limiting factor, however, when the cost of a certain feature is more
significant but still readily achievable, or the manufacturer already
has expended considerable resources in installing the same or other
features in other products. The \"readily achievable\" evaluation always
must be made in light of the overall resources available to the
manufacturer or service provider. Where a particular accessibility
measure is not \"readily achievable,\" a manufacturer or service
provider then must consider other alternative, readily-achievable
measures to make products accessible.

60\. Finally, a number of commenters have suggested that the impact of
adding an accessibility feature on the timing of a product or service
rollout should be taken into consideration during \"readily achievable\"
assessments.[^148] A manufacturer or service provider may consider
whether inclusion of an accessibility feature significantly will delay
production or release of a product, and therefore increase production
costs, provided that the manufacturer or service provider demonstrates
that it did in fact consider accessibility at the design stage.[^149] Of
course, the mere fact that inclusion of a feature will add time and cost
to production will not, alone, render the measure not readily
achievable.

**c. Nature of the Action Needed**

61\. Another consideration in the \"readily achievable\" analysis is the
nature of the action needed to make equipment or service accessible to
persons with disabilities. The Access Board stated in the advisory
appendix to its guidelines that \"the nature of the action or solution
involves how easy it is to accomplish, including the availability of
technology or expertise, and the ability to incorporate the solution
into the production process.\"[^150] While commenters generally have not
framed their comments in terms of \"nature of the action,\" many address
the concepts of \"fundamental alterations\" and \"technical
feasibility,\" which we believe fall within the ambit of \"nature of the
action.\"

62\. The Access Board found that the \"fundamental alteration\" concept
derives from the \"undue burden\" test under the ADA and, since \"undue
burden\" is a higher standard than \"readily achievable,\" that the
concept of fundamental alteration is implicit in the readily achievable
analysis.[^151] Since a covered entity must, hypothetically, demonstrate
a much more onerous burden in order to be relieved of any obligations
under the \"undue burden\" standard of the ADA, it follows that any
actions that constitute an undue burden, including fundamental
alterations, are also not \"readily achievable.\" We agree, and
therefore believe that a manufacturer or service provider is not
required to install an accessibility feature if it can demonstrate that
the feature fundamentally would alter the product. Specifically, we
agree with several commenters that manufacturers and service providers
are not required to incorporate accessibility features within a product
that fundamentally alters the product in such a way as to reduce
substantially the functionality of the product, to render some features
inoperable, to impede substantially or deter use of the product by
individuals without the specific disability the feature is designed to
address, or to alter substantially and materially the shape, size or
weight of the product.[^152] We caution parties that the \"fundamental
alteration\" doctrine is a high standard and that the burden of proof
rests with the party claiming the defense.[^153] In this connection, we
note that all accessibility enhancements in one sense require an
alteration to the design of a product or service. In order to be a
[fundamental]{.underline} alteration, however, the feature must alter
the product substantially or materially.

63\. In the *NPRM*, we tentatively concluded that technical
infeasibility should be one factor in determining whether an
accessibility feature is readily achievable. We now conclude that, when
assessing the \"nature of the action\" in a readily achievable analysis,
manufacturers and service providers are not required to incorporate
accessibility features that are technically infeasible, subject to
several limitations. As an initial matter, while technical infeasibility
is a consideration, we agree with commenters that it does not exist
merely because a particular feature has not yet been implemented by any
other manufacturer or service provider.[^154] We also caution that
technical infeasibility should not be confused with cost factors. In
other words, a particular feature cannot be characterized as technically
infeasible simply because it would be costly to implement.

64\. We agree with several commenters, however, that in some rare
instances, \"technical infeasibility\" may result from legal or
regulatory constraints.[^155] We also agree with several commenters that
technical infeasibility encompasses not only a product\'s technological
limitations, but also its physical limitations. We note, however, that
manufacturers and service providers should not make conclusions about
technical infeasibility within the \"four corners\" of a product\'s
current design.[^156] Section 255 requires a manufacturer or service
provider to consider physical modifications or alterations to the
existing design of a product. Finally, we agree with commenters that
manufacturers and service providers cannot make bald assertions of
technical infeasibility. Any engineering or legal conclusions that
implementation of a feature is technically infeasible should be
substantiated by empirical evidence or documentation.[^157]

**d. Resources of the Covered Entity**

65\. Once the cost and nature of the action needed have been determined,
it is necessary to ascertain the overall resources of the manufacturer
or service provider. We conclude that we should follow the two-step
analysis of a covered entity\'s resources set forth by the DOJ in its
ADA regulation.[^158] Accordingly, the resources of the \"covered
entity\" ([i.e.]{.underline}, the manufacturer or service provider)
first are examined.[^159] The resources of any parent corporation or
comparable entity with a legal relationship with the manufacturer or
service provider would be examined and taken into account, unless the
covered entity or parent can demonstrate why any legal or other
constraints prevent the parent\'s resources from being available to the
covered entity.[^160]

66\. Commenters disagreed as to whether the resources of a parent or
other entity should ever be included in the evaluation of the \"overall
financial resources of the covered entity.\" Although this phrase from
the ADA definition may be susceptible to different interpretations, we
conclude that the better construction of the statute is that, for
purposes of the readily achievable analysis, the covered entity must
take into account any and all financial resources available to it,
including resources from third parties. We believe this interpretation
is consistent with the text of the statute, as well as the purposes of
section 255. The ADA definition speaks broadly about the covered
entity\'s \"overall financial resources\" without limiting those
resources to those derived from the entity\'s own product sales or
investment revenues. The statute\'s broad phrasing thus supports our
conclusion that all available resources should be included, regardless
of their source. Where a covered entity benefits from resources of
either an affiliated entity, or a third party with whom it has some
legally binding relationship, it would be anomalous to determine that
those resources should be expressly excluded in determining whether an
action is readily achievable within the meaning of section 255. We do
not believe that Congress intended to pretend that such resources do not
exist. Significantly, our reading is consistent with the DOJ definition
of readily achievable, which substitutes the term \"parent entity\" for
covered entity when referring to the resources that should be
examined.[^161]

67\. In reaching our conclusion, we reject Lucent\'s argument that
\"inclusion of corporate resources does not yield competitively neutral
outcomes.\" [^162] Just the contrary is true. If we were to narrowly
circumscribe our assessment of resources by ignoring the fact that some
covered entities may have resources available to them from a third
party, our readily achievable assessment would not be competitively
neutral. Rather, those companies that are benefiting from external
resources shielded from readily achievable assessments would have an
unfair advantage over companies that do not have access to such
resources. We do not believe that Congress intended such a result.
Moreover, if we ignored financial resources from third parties, then
companies would have an incentive to spin off their operations into
smaller subsidiaries in order to lessen the impact of section 255. We
decline to adopt an interpretation that could needlessly undermine the
statute in that manner.

68\. We conclude that in evaluating its \"overall resources\", the
covered entity must take into account financial resources of any kind
that may be available from a third party. This would include any capital
or other financial assets, recourse to guarantees that may be used for
the covered entity\'s debt financing or to otherwise assist its
business, resources in the form of labor or services, or any other items
that would affect the \"overall financial resources\" available to the
manufacturer or service provider. Resources of another entity shall be
taken into account regardless of whether that other entity is a
telecommunications manufacturer or service provider.

69\. In some cases, consideration of the resources of another entity may
not be applicable because of the nature of the legal relationship
between the parties, or because no resources in fact are available to
the manufacturer or service provider from the outside entity. For
example, as Bell Atlantic notes, our affiliate transaction rules or
similar state requirements may limit the ability of an affiliate
providing non-regulated services to draw upon the resources of its
regulated parent.[^163]

70\. In the *NPRM*, we proposed establishing a \"rebuttable
presumption\" that reasonably-available resources are those of the
covered entity legally responsible for the equipment or service that is
subject to the requirements of section 255.[^164] Commenters were
divided on the merits of this proposal.[^165] After reviewing the
record, we have concluded that the better approach is to evaluate the
resources of any parent company, or comparable entity with legal
obligations to the covered entity, but permit any covered entity (or
parent company) to demonstrate why legal or other constraints prevent
those resources from being available to the covered entity. We note that
the evidence required to make such a showing resides with the covered
entity and its parent, and thus it is reasonable to put the burden on
the covered entity, or parent, to show why such resources are not
available. A deficiency with the presumption proposed in the *NPRM* is
that it may have had the unintended effect of putting the burden on the
consumer to prove that a parent\'s resources were available to the
subsidiary, a burden that would be difficult for any consumer to satisfy
because relevant evidence would be almost exclusively in the possession
of the parent or covered entity.

**3. Timing of Readily Achievable Assessments**

71\. The readily achievable obligation imposed by section 255 is both
prospective and continuing.[^166] While it is appropriate to consider
the time needed to incorporate accessibility solutions into new and
upgraded products, technological advances that present opportunities for
readily achievable accessibility enhancements can occur at any time in a
product cycle.[^167] A manufacturer\'s or service provider\'s obligation
to review the accessibility of a product or service, and add
accessibility features where readily achievable, is not limited to the
initial design stage of a product. We conclude that manufacturers and
service providers, at a minimum, must assess whether it is readily
achievable to install any accessibility features in a specific product
whenever a natural opportunity to review the design of a service or
product arises. If it is readily achievable to include an accessibility
feature during one of these natural opportunities, the manufacturer or
service provider must install the feature. Natural opportunities could
include, for example, the redesign of a product model, upgrades of
services, significant rebundling or unbundling of product and service
packages, or any other modifications to a product or service that
require the manufacturer or service provider to substantially re-design
the product or service.

72\. Cosmetic changes to a product or service may not trigger a
manufacturer\'s reassessment of a product\'s accessibility.[^168] Thus,
simply changing the color, make, model name or designation of a product,
or the marketing materials associated with the product, without changing
the product\'s actual design, usually will be considered a \"cosmetic\"
change. In such instances, however, manufacturers or service providers
also should ensure that any new documentation or manuals included with
the product are accessible to and usable by people with disabilities, if
readily achievable. We also note that, at times, the \"rebundling\" of a
CPE or service package may amount to a cosmetic change, if the
rebundling is very short-lived (*e.g.*, as part of a promotional
campaign) and does not impact the operation, or interoperability, of the
individual components of the bundle.

73\. Finally, we emphasize that section 255 does not require
manufacturers of equipment to recall or retrofit equipment already in
their inventories or in the field. The mere fact that a product or
service has left the \"drawing board\", however, does not terminate the
manufacturer or service provider\'s section 255 obligations with respect
to that product or service.

**4. Documentation of Readily Achievable Assessments**

74\. We believe that the framework for readily achievable assessments we
have outlined in this Order will ensure that the broadest range of
products will become accessible to the broadest number of users. Over
time, design principles and features that were considered
\"significant\" may become modest due to technological advances and the
maturing of the access engineering field. We anticipate, furthermore,
that manufacturers and service providers will recognize that making
modest alterations to products will not require intensive and cumbersome
accessibility design reviews.[^169] As proposed in the *NPRM*, we
conclude that we should not at this time delineate specific
documentation requirements for \"readily achievable\" analyses. We fully
expect, however, that manufacturers and service providers, in the
ordinary course of business, will maintain records of their
accessibility efforts that can be presented to the Commission to
demonstrate compliance with section 255 in the event consumers with
disabilities file complaints.

**D. SERVICES AND EQUIPMENT COVERED BY THE RULES**

75\. Section 255 applies to any \"manufacturer of telecommunications
equipment or customer premises equipment\" and to any \"provider of
telecommunications service.\"[^170] As discussed below, we conclude
that, in so far as these phrases are broadly grounded in the
Communications Act, our sole task here is to explain their application
in the context of section 255. We will, however, as explained below,
assert our ancillary jurisdiction to cover two non-telecommunications
services.

**1. Telecommunications and Telecommunications Service**

76\. Section 255(c) requires that any \"provider of telecommunications
service shall ensure that the service is accessible to and usable by
individuals with disabilities, if readily achievable.\" Section 3 of the
Act defines \"telecommunications\" as \"the transmission, 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.\"[^171] It defines \"telecommunications service\" as
\"the offering of telecommunications for a fee directly to the public,
or to such classes of users as to be effectively available directly to
the public, regardless of the facilities used.\"[^172]

77\. We adopt our tentative conclusion in the *NPRM* that the phrases
\"telecommunications\" and \"telecommunications services\" have the
general meanings set forth in the Act.[^173] Many commenters supported
this conclusion.[^174] Telecommunications services, however, does
include services previously classified as adjunct-to-basic.
Adjunct-to-basic services are services which literally meet the
definition of enhanced services, now called information services,
established under the Commission\'s rules,[^175] but which the
Commission has determined facilitate the completion of calls through
utilization of basic telephone service facilities and are included in
the term \"telecommunications services.\"[^176] Adjunct-to-basic
services include such services as call waiting, speed dialing, call
forwarding, computer-provided directory assistance, call monitoring,
caller identification, call tracing, and repeat dialing.[^177]

78\. We decline to expand the meaning of \"telecommunications services\"
to include information services for purposes of section 255, as urged by
some commenters.[^178] In the *NPRM*, we recognized that under our
interpretation of these terms, some important and widely used services,
such as voicemail and electronic mail, would fall outside the scope of
section 255 because they are considered information services.[^179] We
conclude, however, that we may not reinterpret the definition of
telecommunications services, either for purposes of section 255 only or
for all Title II regulation. First, we emphasize that the term
\"information services\" is defined separately in the Act.[^180] As we
noted in the *NPRM*, there was no indication in the legislative history
of the 1996 Act that Congress intended these terms to have any
different, specialized meaning for purposes of accessibility.[^181]

79\. Furthermore, in a Report to Congress that was released subsequent
to the *NPRM*,[^182] we reiterated the distinction between information
services and telecommunications services. Specifically, we found that
\"Congress intended \[that\] the categories of \`telecommunications
service\' and \`information service\' to be mutually exclusive, like the
definitions of \'basic service\' and \'enhanced service\' developed in
our *Computer II* proceeding, and the definitions of
\'telecommunications\' and \'information service\' developed in the
Modification of Final Judgment that divested the Bell Operating
Companies from AT&T.\"[^183] While we decline here to redefine the
meaning of telecommunications services, either for purposes of section
255 or more broadly, we do think it is appropriate, as we discuss below,
to use our ancillary jurisdiction to extend to certain
non-telecommunications services accessibility obligations that mirror
those under section 255 in order to effectuate Congress\' intent that we
make telecommunications services accessible.

**a. Provider of Telecommunications Services**

80\. We adopt our tentative conclusion in the *NPRM* and conclude that
all entities offering telecommunications services (*i.e.*, whether by
sale or resale), including aggregators, should be subject to section
255. An entity that provides both telecommunications and
non-telecommunications services, however, is subject to section 255 only
to the extent that it provides a telecommunications service.[^184]
Commenters from both the disability community and the industry broadly
supported both of these *NPRM* proposals.[^185] We find that, with
respect to section 255, Congress intended to use the term \"provider\"
broadly, to include all entities that make telecommunications services
available. Our interpretation of \"provider of telecommunications
service\" is grounded in the Act\'s own definitions. For example,
section 3(44) states that a \"telecommunications carrier\" means any
\"provider of telecommunications services\" with the exception of
aggregators, thus indicating that a \"provider of telecommunications
services\" would otherwise include aggregators.[^186] Furthermore, our
limitation on the scope of section 255 to cover an entity only to the
extent that it provides telecommunications service comports with an
analogous limitation in section 3(44), which expressly provides that a
telecommunications carrier \"shall be treated as a common carrier under
this Act only to the extent that it is engaged in providing
telecommunications services.\"[^187]

**b. Telecommunications Equipment and Customer Premises Equipment**

81\. The Act defines \"telecommunications equipment\" as \"equipment,
other than customer premises equipment, used by a carrier to provide
telecommunications services, and includes software integral to such
equipment (including upgrades).\"[^188] It defines \"customer premises
equipment\" (CPE) as \"equipment employed on the premises of a person
(other than a carrier) to originate, route, or terminate
telecommunications.\"[^189]

82\. In accordance with the proposal made in the *NPRM*,[^190] the
express statutory language, and the views of commenters, we find that
telecommunications equipment includes software integral to
telecommunications equipment.[^191] Operation of today\'s
technologically sophisticated telecommunications networks would be
impossible without software, and we believe that Congress\' decision to
expressly clarify that software and upgrades to software are to be
considered \"equipment\" acknowledges the important role played by
software products. Further, by referencing \"upgrades\" to software as
equipment, the definition expressly contemplates that stand-alone
software should be considered equipment. For these reasons, we conclude
that all software integral to telecommunications equipment is covered by
the definition, whether such software is sold with a piece of
telecommunications equipment hardware or is sold separately.

83\. The statutory definition of CPE under section 3(14) of the Act
encompasses all \"equipment employed on the premises of a person (other
than a carrier) to originate, route, or terminate telecommunications.\"
[^192] Although section 3(14) does not specifically reference software
integral to CPE, we find, nonetheless, that CPE includes software
integral to the operation of the telecommunications functions of the
equipment, whether sold separately or not. We note that this conclusion
is contrary to our tentative conclusion in the *NPRM* that software sold
separately from CPE would not fall within the definition of CPE.[^193]
After review of the record, however, we are persuaded that stand-alone
software that originates, terminates and routes telecommunications
should be deemed \"equipment\" under the CPE definition.

84\. Some commenters argue that the absence of a reference to software
in section 3(14), when contrasted with its inclusion in section 3(45)
defining \"telecommunications equipment,\" means that Congress intended
to make a distinction in its treatment and classification of software
depending upon whether it was integral to the operation of CPE or of
telecommunications equipment. [^194] Other commenters argue that in
interpreting this provision, we should focus instead, as the Access
Board did, on the functions performed by the equipment in question,
rather than whether it is hardware or software.[^195] These parties
argue that if a product originates, routes, or terminates
telecommunications, then it should be considered to be CPE. Many
commenters supported this functional definition of CPE and chose to
de-emphasize whether the software was sold together with hardware or
separately.[^196] Trace notes that increasingly we will see
telecommunications products becoming software in nature. That is,
individuals will have devices that will be used for computing, for
information, and for telecommunications services; often the devices will
become telecommunications devices when a piece of software is plugged
into them. Trace argues that in the future, we may not be buying
telephones, but we simply may be buying telephone functions or software
modules that we will use on our multi-purpose devices. Unless software
is considered to be equipment and treated as CPE, Trace argues that
these types of telephones would not be covered under Section 255.[^197]
Trace argues that it is not clear why these software based
telecommunications products should not be covered when their hardware
counterparts are, and projects that this would leave us with an unlevel
playing field that would only get worse over time.[^198]

85\. While we agree that the definition in section 3(14) does focus
primarily on the functions performed by the product, we believe we still
must resolve the more narrow question of whether software integral to
the operation of the telecommunications functions of CPE, but sold
separately from the CPE hardware, should be considered to be
\"equipment\" within the meaning of this provision. The statutory
definition therefore requires our interpretation. While this provision
of the Act is susceptible to varying meanings, we conclude that the
better interpretation of this definition is that this type of software
is \"equipment\" and thus would be CPE if it is integral to the
origination, routing, or termination telecommunications. The structure
of the Act\'s definitions support this interpretation. Rather than
viewing the language in paragraph (45) of section 3 as a limitation on
the definition of CPE, as some commenters have urged,[^199] we find
instead that such language illuminates what Congress considers as
falling within the scope of \"equipment.\" As noted above, Congress
clarifies in section 3(45) that the term \"equipment\" includes that
software which is integral to a product, including upgrades. Congress
recognized that software, which plays a vital role in telecommunications
products, is often marketed and sold separately, affording purchasers or
users the opportunity to upgrade or customize their equipment. Because
Congress determined that software is \"equipment\" in paragraph (45), we
find that the better interpretation of CPE is to similarly construe
\"equipment\" as including software integral to the product, whether
sold separately or not. Such an interpretation harmonizes the term
\"equipment\" as it is used in the definitions of both \"CPE\" and
\"telecommunications equipment,\" and gives recognition to the fact that
software products are often sold separately from the hardware.

86\. This interpretation is consistent with the Access Board\'s
Guidelines.[^200] It also furthers the purposes of section 255 by
ensuring that software that is integral to the operation of CPE is not
beyond the scope of section 255. If such software were not covered as
CPE, then CPE manufactured in compliance with section 255 could readily
be converted into a product that was inaccessible to those with
disabilities, resulting in a significant gap in the Act\'s coverage.

87\. In connection with multipurpose equipment, we adopt our tentative
conclusion that customer premises equipment is covered by section 255
only to the extent that it provides a telecommunications function.
Specifically, equipment that generates or receives an electrical,
optical or radio signal used to originate, route or terminate
telecommunications is covered, even if the equipment is capable of
providing non-telecommunications functions. In so concluding, we reject
the recommendations of commenters which argued we should apply section
255 to all functions of equipment whenever the equipment is capable of
any telecommunications function.[^201] We believe that our narrowed
interpretation ensures consistency between the obligations of
manufacturers to ensure that telecommunications equipment and CPE is
designed, developed and fabricated to be accessible, and the obligations
of service providers to ensure that the service is accessible. This
consistency is important as both equipment and services must be
accessible for effective access to be available to consumers. Although
section 255(b) does not specifically address this question, we conclude
that this is the most reasonable interpretation of the statute.
Moreover, the Access Board supports such an interpretation.[^202]

88\. Furthermore, as supported by the record, we conclude that
manufacturers will be liable under section 255 for all
telecommunications equipment and CPE to the extent that such equipment
provides a telecommunications function.[^203] In those instances, where
a piece of equipment undergoes substantial modifications after its sale,
however, we agree with those commenters who argue that it would be
unfair to hold the manufacturer liable under section 255.[^204] In those
instances, which we expect to be infrequent, manufacturers shall bear
the burden of proving, by a preponderance of the evidence, that a piece
of equipment has undergone substantial modifications after its sale.

**2. Manufacturer**

89\. The Act does not define \"manufacturer of telecommunications or
customer premises equipment.\"[^205] The Access Board guidelines define
a \"manufacturer\" as an entity \"that sells to the public or to vendors
that sell to the public; a final assembler.\"[^206] This approach,
according to the Access Board, would generally cover \"the final
assembler of separate subcomponents; that is, the entity whose brand
name appears on the product.\"[^207] In the *NPRM*, the Commission
proposed to adopt a definition of \"manufacturer\" based upon the Access
Board guidelines.

90\. In light of our enforcement obligations and based on the record, we
now believe that we need a more precise definition of manufacturer than
that adopted by the Access Board. In our rules, therefore, we define
manufacturer as an entity that makes or produces a product. This
definition puts responsibility on those who have direct control over the
products produced, and provides a ready point of contact for consumers
and the Commission in getting answers to accessibility questions and
resolving complaints. We decline to adopt the Access Board\'s definition
because we find that it is so broad that it could include retailers, who
simply sell products and may not control any aspect of their actual
manufacture. We conclude that our adopted definition more clearly
distinguishes between sellers of a product and manufacturers, who
control the design, development and fabrication of a product. In
appropriate circumstances, however, where an entity is otherwise
extensively involved in the manufacturing process \-- for example, by
providing product specifications \-- we may, as the individual
circumstances warrant, deem such an entity to be a co-manufacturer of
the product involved. This could result in some branders being
considered manufacturers, contrary to the position of several
commenters.[^208]

91\. We believe this is an appropriate interpretation of the statute and
is consistent with the Access Board\'s intent.[^209] We do not intend
this definition to include those who simply sell or distribute a product
manufactured by another entity.[^210] Nor do we extend the concept of
manufacturer to anyone who might modify the equipment before sale to the
public.[^211] We do not believe as a general matter that retailers,
wholesalers, and other post-manufacturing distribution entities can be
considered manufacturers who have accessibility obligations under the
Act.

92\. As supported by the record, we adopt our tentative conclusion to
construe section 255 to apply to all manufacturers offering equipment
for use in the United States, regardless of their location or national
affiliation.[^212] In the NOI record, there was broad agreement that all
equipment marketed in the United States, regardless of national origin,
should have uniform accessibility requirements.[^213] Further, the
Access Board guidelines do not distinguish between foreign and domestic
manufacturers.[^214] Exempting foreign manufacturers would disadvantage
American manufacturers, and would deny the American public the full
protection section 255 offers.

**3. Voicemail and Interactive Menus**

93\. The record has convinced us that in order for us to carry out
meaningfully the accessibility requirements of section 255, requirements
comparable to those under section 255 should apply to two information
services that are critical to making telecommunications accessible and
usable by people with disabilities. We assert ancillary jurisdiction to
extend these accessibility requirements to the providers of voicemail
and interactive menu service and to the manufacturers of the equipment
that perform those functions. By enacting section 255, Congress has
charged the Commission with ensuring that telecommunications services
and equipment are accessible to, and usable by, persons with
disabilities. We cannot fully achieve that objective without this
limited use of our ancillary jurisdiction.

94\. The Commission\'s assertion of ancillary jurisdiction over
information services was upheld by the Court of Appeals for the District
of Columbia over fifteen years ago in litigation challenging our rules
in *Computer II,* where the Commission deregulated the provision of both
information services (then called \"enhanced services\")[^215] and
CPE.[^216] Although the Commission found there that the provision of
information services and CPE were not common carrier activities within
the scope of Title II regulation, the Commission simultaneously asserted
ancillary jurisdiction over information services, including voicemail
and interactive menus, by imposing upon AT&T (and its local exchange
affiliates) structural separation safeguards that required them to offer
these services only through a separate subsidiary. The Commission also
asserted ancillary jurisdiction over CPE, deregulating CPE at the
federal level and preempting state CPE tariffing. The Court of Appeals
upheld the Commission\'s ancillary jurisdiction, finding that the
Commission\'s authority to assert ancillary jurisdiction over matters
not within the reach of Title II regulation was \"well settled.\"[^217]
It concluded that the \"Commission acted reasonably in defining its
jurisdiction over enhanced services and CPE,\" and that its jurisdiction
satisfied the *Southwestern Cable* standard.[^218] The court adopted a
deferential standard of review, holding that \"\[b\]ecause the
Commission\'s judgment on \'how the public interest is best served is
entitled to substantial judicial deference,\' the Commission\'s choice
of regulatory tools in *Computer II* must be upheld unless arbitrary or
capricious.\" [^219] This precedent guides us in our action today.

95\. Ancillary jurisdiction may be employed, in the Commission\'s
discretion, where the Commission has subject matter jurisdiction over
the communications at issue and the assertion of jurisdiction is
reasonably required to perform an express statutory obligation.[^220]
Both predicates for jurisdiction are satisfied here. The Court of
Appeals\' conclusion in *Computer II* that the Commission has subject
matter jurisdiction over information services is particularly
appropriate for voicemail and interactive menus, two services over which
the Commission has asserted ancillary jurisdiction for more than a
decade through its comparably efficient interconnection (CEI) plan
requirements.[^221] Given our continuous assertion of jurisdiction over
these two information services, we reject any suggestion by commenters
that we have not previously concluded that we have subject matter
jurisdiction over these services.[^222]

96\. Our subject matter jurisdiction flows from at least three distinct
provisions of Title I of the Act. Section 1 of the Communications Act
established the Commission \"\[f\]or the purpose of regulating
interstate and foreign commerce in communication by wire and radio so as
to make available, so far as possible, to all the people of the United
States \... adequate facilities at reasonable charges \....\"[^223]
Similarly, Section 2 gives us jurisdiction over \"all interstate and
foreign communication by wire or radio\" and \"all persons engaged
within the United States in such communication\....\"[^224] Section 3
defines \"communication by wire\" and \"communication by radio\" as
including \"the transmission \...of writing, signs, signals, pictures
and sounds of all kinds \... *including all instrumentalities,
facilities, apparatus, and services (among other things, the receipt,
forwarding, and delivery of communications) incidental to such
transmission*.\" (emphasis added).[^225] We believe that these three
provisions serve as the foundation for subject matter jurisdiction
today, just as they did when *Computer II* was decided.

97\. Both voicemail and interactive menu services, and the related
equipment that perform these functions, are at the very least
\"incidental\" to the \"receipt, forwarding and delivery of
communications.\" Indeed, the evidence here persuades us that these two
information services are not only incidental to communications, but
essential to the ability of persons to effectively use
telecommunications.[^226] In reaching this conclusion, we are not
breaking new ground, but are simply continuing our longstanding practice
of asserting jurisdiction over voicemail and interactive menus.[^227]

98\. We note, however, that in the *Computer II Reconsideration
Decision* we expressly reserved judgment on whether or not
non-carrier-provided CPE would be subject to our Title I
jurisdiction.[^228] Similarly, we did not reach the question of whether
the Commission had jurisdiction over information services provided by
non-carriers. We resolve these questions here in the affirmative. These
services and their related equipment are not less \"incidental\" to the
\"receipt, forwarding, and delivery of communications\" because the
services may be provided by non-carriers in some instances. Indeed,
sections 1 through 3 of Title I of the Act are broadly worded and not
limited in scope to communications by carriers. Consistent with the
statutory language, therefore, we find that our Title I subject matter
jurisdiction over voicemail and interactive menu services, and related
equipment, extends to that which is provided by carriers and
non-carriers alike.

99\. The second step in our analysis requires us to evaluate whether, in
this specific context, there is a statutory nexus supporting assertion
of ancillary jurisdiction over voicemail and interactive menu service
and manufacturers of equipment that performs those functions. Framed
somewhat differently, the test, as articulated by the Court of Appeals
for the District of Columbia, is whether jurisdiction is \"reasonably
ancillary.\"[^229] We find that the requisite statutory nexus exists,
and employ ancillary jurisdiction to require that voicemail and
interactive menu service and equipment must comply with requirements
comparable to those under section 255. We find, as described below, that
these two discrete information services are both so integral to the use
of telecommunications services today that, if inaccessible and unusable,
the underlying telecommunications services that sections 255 and
251(a)(2) have sought to make available will not be accessible to
persons with disabilities in a meaningful way. In short, inaccessible
voicemail and interactive menus could defeat the effective
implementation of sections 255 and 251(a)(2).

100\. Many commenters raised compelling examples of the importance of
access to voicemail and interactive menus. Both professional
organizations and individual consumers reported how people with
disabilities are hampered daily by lack of access to services others
take for granted \-- leaving a message for a colleague, reaching the
desired person at a business, or simply receiving a phone call.[^230]
The Council of Organizational Representatives on National Issues
Concerning People who are Deaf or Hard of Hearing (COR) concluded that
\"without access to certain enhanced services, such as automated voice
response systems and voice mail services, individuals who are deaf or
hard of hearing will continue to be barred from enjoying even basic
access to the telecommunications network.\"[^231] Others explained that
because of the prevalence of voicemail and interactive menus, unless
these services are made accessible, the isolation of people with
disabilities will be exacerbated ,[^232] decreasing employment
opportunities and reducing the participation of persons with
disabilities in today\'s society.[^233] UCPA summarized the concern with
the observation that \"voice mail, interactive telephone prompt systems,
and Internet telephony are becoming available as mainstream services and
are becoming critical to successful participation and competition in our
society.\"[^234]

101\. The access barriers created by inaccessible and/or unusable
voicemail and interactive menus has made it extremely difficult for
people with hearing, vision, or physical disabilities either to reach
the party to whom they have placed the call or to obtain the information
they seek in their phone call.[^235] One commenter explains:

People with disabilities have been terribly affected by such lack of
access; many menus offer no option to connect with a human operator and
they remain cut off from communication. They thus remain in the dark
about how to fix their products and how to access other important
information from enterprises.[^236]

102\. Often all that is available at the other end of the line is an
automated voicemail or menu system which is not accessible to or usable
by people with disabilities. For example, the voicemail or menu may not
allow adequate time for a caller using the Telecommunications Relay
Service to have the information from the automated device relayed to the
caller\'s TTY and a response from the caller relayed back to the device
through the Communications Assistant; or the sounds may be so quick that
a person who is hard of hearing cannot process them quickly
enough.[^237] The speed of the menu choices can also create an access
barrier for someone with a learning disability who cannot process the
information fast enough. The time allowed for a person to input the
necessary numbers to retrieve voicemail messages, select an option from
a list of choices or control the other functions may be too short for
people with motor disabilities, or people who are blind.[^238] In these
instances, although the phone call may be completed in the technical
sense of terminating the call, the call is not accessible to the person.
Despite the creation of a transmission path, if there is no means for a
person to communicate with the mechanism at the other end, the telephone
call is ineffective.[^239]

103\. This record persuades us that failure to ensure accessibility of
voicemail and interactive menu services, and the related equipment that
performs these functions, would seriously undermine the accessibility
and usability of telecommunications services required by sections 255
and 251(a)(2). In *Southwestern Cable*, the Supreme Court found that
Commission had authority to regulate CATV using its ancillary
jurisdiction to avoid disruptive effect on network broadcasting.[^240]
Here, too, we seek to avoid the disruptive effects caused by
inaccessible voicemail and interactive menus so as to ensure that the
implementation of section 255 is not thwarted. Further, the statutory
nexus for asserting jurisdiction is even stronger here than in *Computer
II*, which broadly sanctioned ancillary jurisdiction over information
services. In *Computer II* the Commission asserted ancillary
jurisdiction to ensure just and reasonable rates for regulated services
*that consumers were already receiving*. Our concern here is even more
fundamental: ensuring and facilitating accessibility and usability of
telecommunications services and equipment by those persons not receiving
full access and use of these services.

104\. Under these circumstances, we disagree with those who contend that
the Act\'s use of defined terms precludes us from extending
accessibility requirements to anything other than telecommunications
services.[^241] The [expressio unius]{.underline} maxim \"\'has little
force in the administrative setting\'.\"[^242] Indeed, the Court of
Appeals for the D.C. Circuit has expressly rejected this argument in
upholding the Commission\'s interpretation of recent amendments to the
Communications Act. In [Mobile Communications]{.underline}, the
Commission required MTEL, the holder of a pioneer\'s preference, to pay
for its license for a narrowband personal communications service (PCS)
despite the fact that in amending the payment provisions of the Act in
1996, Congress did not require payments for such licenses but
[did]{.underline} require payment for other types of licenses. In the
provision at issue, Congress required the three broadband PCS pioneers
and all future pioneers to pay for their licenses according to a
statutorily defined formula. However, by its terms, the payment
requirement did not extend to MTEL, whose license was confirmed in July
1993, because the statute specified that the payment requirements did
\"not apply to applications that have been accepted for filing on or
before September 1, 1994.\"[^243]

105\. The court did not agree that where the statutory scheme \"\'limits
a thing to be done in a particular mode, it includes the negative of any
other mode\'.\" [^244] Its rationale is particularly instructive here.
Not only did it dismiss [expressio unius]{.underline} as a maxim of
construction in the administrative setting, but it also noted that a
\"\'congressional prohibition of particular conduct may actually support
the view that the administrative entity can exercise its authority to
eliminate a similar danger\'.\"[^245] Analyzing the Commission\'s
jurisdiction to require license payments not specified in the statute,
the Court rejected a reading of congressional intent that would have
forbidden the Commission from setting reasonable charges for a license
\"even where doing so would enable the Commission to reap many of the
benefits of Congress\'s own new policy \-- including obtaining
reimbursement for the transfer of a valuable entitlement. We think such
a reading untenable.\"[^246]

106\. The suggestion that we lack ancillary jurisdiction here suffers
from the same infirmity.[^247] We simply cannot credit the argument that
Congress intended that we be barred from effectively implementing
sections 255 and 251(a)(2). To the contrary, we believe that Congress
enacted these new provisions to ensure that telecommunications services
are made accessible to persons with disabilities, and expected that we
implement these provisions in the most efficacious manner possible. We
will not ignore a record that demonstrates that our failure to apply
accessibility requirements to voicemail and interactive menus will
substantially undermine implementation of these significant provisions.
Where, as here, we have subject matter jurisdiction over the services
and equipment involved, and the record demonstrates that implementation
of the statute will be thwarted absent use of our ancillary
jurisdiction, our assertion of jurisdiction is warranted. Our authority
should be evaluated against the backdrop of an expressed congressional
policy favoring accessibility for persons with disabilities. This
backdrop serves to buttress the actions taken today, not limit it.

107\. On this same basis, however, we decline to extend accessibility
obligations to any other information services. While some commenters
have argued that there is an overwhelming need for all information
services to be accessible to people with disabilities, we assess the
record differently, and use our discretion to reach only those services
we find essential to making telecommunications services accessible.
Unlike voicemail and interactive menus, other information services
discussed by commenters do not have the potential to render
telecommunications services themselves inaccessible. Therefore, we
decline to exercise our ancillary jurisdiction over those additional
services. Many of these other services are alternatives to
telecommunications services, but not essential to their effective use.
For example, e-mail, electronic information services, and web pages are
alternative ways to receive information which can also be received over
the phone using telecommunications services. In contrast, inaccessible
and unusable voicemail and interactive menus operate in a manner that
can render the telecommunications service itself inaccessible and
unusable.

108\. Our assertion of ancillary jurisdiction is thus discrete and
limited. Consequently, we dismiss the contention that including even a
single information service under our accessibility and usability rules
could lead to the full-scale regulation of entities providing
information services, such as Internet Service Providers.[^248] Nor can
we credit the argument that extension of these provisions through
ancillary jurisdiction will chill innovation, resulting in less
accessibility not more.[^249] We do emphasize, however, that our
decision to apply these accessibility obligations to two discrete
information services does not alter the regulatory classification
afforded these services. Nor is it our intent by this action to apply
any additional provisions of the Act to providers and manufacturers of
voicemail and interactive menu services and equipment. Thus, as a
general matter, we are not altering our past or current treatment of
information services.

**E. ENFORCEMENT OF SECTION 255**

**1. Overview**

109\. Prompt and efficient enforcement of section 255 and the rules
adopted in this Order is a crucial component of successful
implementation of the accessibility requirements described in this
Order. We noted in the NPRM that our complaint mechanisms would be the
principal vehicle for ensuring compliance with section 255 and that
consumers, manufacturers and service providers alike will benefit from
swift resolution of complaints. Moreover, unlike section 207 of the Act,
which authorizes the filing of complaints against common carriers either
before the Commission or in federal district court, section 255(f)
confers exclusive jurisdiction over complaints on the Commission and
bars rights of action. As the only recourse for consumers concerned
about the accessibility, usability or compatibility of a product or
service, our complaint processes must be accessible and fair.

110\. We also recognized in the NPRM that a complaint process that
imposes substantial burdens on parties could discourage otherwise
legitimate complaints, require manufacturers and service providers to
expend substantial resources responding to complaints rather than
enhancing accessibility of their offerings, and restrict the
commission\'s ability to cope with complaints in a timely manner. As
discussed below, the rules we adopt in this Order, which are modeled
after our section 208 complaint rules, permit the commission to ensure
that consumers\' complaints are resolved expeditiously. In addition, we
describe below the scope of the Commission\'s authority when initiating
an action on its on motion against service providers or manufacturers.

**2. Enforcing the Rules**

**a. Damages; Other Remedies and Sanctions**

111\. *Damages*. In the *NPRM*, we tentatively concluded that damage
awards against common carriers/service providers pursuant to section 207
of the Act are available to complainants as a remedy for violations of
section 255 and our implementing rules. We sought comment on this
tentative conclusion and on whether there is any statutory basis for
awarding damages against entities other than common carrier. A majority
of the industry commenters argued that the plain language of section 207
precludes the Commission from awarding damages against entities other
than common carriers because the section is expressly limited to common
carriers.[^250] These commenters contended that had Congress intended to
provide the Commission with authority to award damages against entities
other that common carriers, it would have clearly stated so when it
enacted section 255.[^251] Still other industry commenters argued
section 255 bars not only damages complaints against non-common carriers
but also against carriers.[^252] According to these commenters, the
explicit bar on rights of action in section 255 applies equally to the
Commission and the courts. They argued that the Commission\'s conclusion
in the *NPRM* that the statute permits administrative complaints for
damages but bars actions in court for damages misconstrues the meanings
of the two distinct sentences in section 255(f) regarding the
Commission\'s exclusive jurisdiction over complaints and the prohibition
of rights of action respectively.[^253] They maintained that the
question of what is a right of action depends solely upon who brings the
action, not the forum.[^254]

112\. Commenters representing the disability community,[^255] however,
contended that the Commission has the same range of remedies for
violations of section 255 that are available to it for violations of
other provisions of the Act, including damages awards under section 207
of the Act.[^256] Several industry commenters, on the other hand,
contended that the Conference Report refers solely to remedies against
service providers who are common carriers, not to manufacturers.[^257]

113\. We adopt our tentative conclusion in the *NPRM* that damages are
available for violations of section 255 or our implementing rules
against common carriers. In so holding, we reject the claim that
255(f)\'s preclusion of rights of action deprives the Commission of any
authority to entertain requests for damages by or on behalf of
individual complainants. As we noted in the *NPRM*, the preclusion of
actions compels complainants to seek redress exclusively from the
Commission but in no way limits the remedies available to such
complainants at the Commission.[^258] The right created in section
255(f) to complain to the Commission about the accessibility practices
of common carriers does not supersede the rights available against
common carriers under sections 206-208 of the of the Act, nor does it
alter the scope of the remedies the Commission may apply. Indeed, by
specifically referencing sections 207 among the list of remedies
available for violations of section 255, we believe that Congress
intended to make clear that common carriers could be subject to damages
awards for violations of section 255 to the same extent as they could
for other Title II violations. We find no support in the Act or its
legislative history for the restrictive reading on our damages authority
urged by the industry.

114\. Nor are we persuaded by the claims of commenters representing the
disability community that the right to complain to the Commission under
section 255 includes the right to pursue damages against manufacturers
for violations of the section. Sections 206 through 209 of the Act, on
their face, apply solely to common carriers, a term specifically defined
in section 3(10) of the Act.[^259] No plausible reading of the Act would
extend the damages remedy prescribed under these sections to
manufacturers or other non-common carriers. The commenters\' reliance on
statements regarding section 207 in the Conference Report accompanying
the 1996 Act is unavailing.[^260] Judicial precedent clearly establishes
that the starting point for interpreting a statute is the plain language
of a statute itself.[^261] Where the language of statute is unambiguous,
we must \"give effect to the unambiguously expressed intent of
Congress.\"[^262] The reference in the Conference Report to a section
207 damages remedy for section 255 violations is not inconsistent with
our interpretation.[^263] The language in the report cited by the
commenters does not mention manufacturers, nor does the report elsewhere
state unequivocally that damages may be sought against manufacturers or
other non-common carriers pursuant to 207 of the Act. We agree with
Uniden, TIA and other industry commenters that a more reasonable reading
of the reference in the Conference Report to section 207 as a possible
remedy for violations of section 255 is that Congress was referring to
remedies against providers who are common carriers within the meaning of
the Act.[^264]

115\. *Other Sanctions and Remedies.* We affirm our conclusion in the
*NPRM* that we should employ the full range of sanctions and remedies
available to us under the Act in enforcing section 255. Most commenters
addressing this issue maintained that the Commission should assess the
same penalties against manufacturers and service providers, with the
most onerous penalties such as forfeitures, license revocations, and
cease and desist orders reserved for intentional and repeated
violations.[^265] We conclude that we need not delineate in this Order
the various sanctions and remedies available to us under the Act to
address violations of section 255 and our rules. We recognize that
sanctionable behavior may involve a wide range of conduct by
manufacturers and service providers and we will use our considerable
discretion to tailor sanctions or remedies to the individual
circumstances of a particular violation. We note that the commenters
opposing retrofitting as a possible remedy for non-compliance do not
challenge our authority to require such action, but instead question its
appropriateness given the fast-pace of technological advances and the
fact that the costs of retrofitting will likely exceed any reasonable
monetary penalty that could be imposed under law.[^266] While we will
view retrofitting as an extreme remedy to be used in egregious cases of
willful misconduct, we nevertheless believe that the prospect of such
action will serve as a major deterrent to willful and repeated
violations of the Act and our rules.

116\. A number of commenters have requested that we establish
enforcement guidelines and procedures that would ensure regulatory
parity in the treatment of manufacturers and service providers under
section 255.[^267] We again note that our enforcement authority with
respect to manufacturers and service providers is constrained by
explicit requirements under the Act. For example, section 503(b)(5) of
the Act pertaining to forfeiture penalties[^268] provides that

No forfeiture liability shall be determined under this subsection
against any person, if such person does not hold a license, certificate
or other authorization issued by the Commission, and if such person is
not an applicant for a license, permit, certificate, or other
authorization issued by the Commission, unless, prior to the notice
required by paragraph (3) of this subsection or the notice of liability
required by paragraph (4) of this subsection, such person (A) is sent a
citation of the violation charged; (B) is given a reasonable opportunity
for a personal interview with an official of the Commission, \...; and
(C) subsequently engages in conduct of the type described in such
citation.

47 U.S.C. § 503(b)(5).[^269]

Thus, a manufacturer covered by section 255 who does not hold any
authorization from the Commission and is not otherwise engaged in
activity for which such authorization is required is in a markedly
different position than a common carrier against whom the Commission may
assess a forfeiture for section 255 violations without first issuing a
citation and providing an opportunity for corrective action.[^270] Given
these explicit statutory requirements, with no indication that Congress
intended to alter the scope of the sanctions and remedies available to
the Commission to enforce section 255, we find no compelling reason to
attempt to fashion parity in the regulatory treatment of manufacturers
and service providers under section 255.[^271] Indeed, in light of the
constraints resulting from generally applicable penalties and
enforcement provisions of the Act, we doubt such parity could be
fashioned in any event. We are persuaded that the substantive rules and
policies we adopt today provide the appropriate incentives for both
manufacturers and service providers to take seriously their obligations
under section 255 and our rules.

**3. Procedures to be Followed When Complaints Are Filed Pursuant to
Section 255**

117\. In the *NPRM*, we identified two principal objectives underlying
our fast-track dispute resolution proposal: responsiveness to consumers
and the efficient allocation of resources by affected manufacturers and
service providers.[^272] We proposed a number of specific procedures
surrounding the mandatory fast track process, including, *inter alia*,
requirements pertaining to a consumer\'s initial contact with the
Commission and the manufacturer or service provider concerned, the
allowable time period for resolving a fast track complaint, the
defendant manufacturers or service provider\'s reporting requirements,
the manner in which Commission staff would evaluate the defendant\'s
fast-track response, and post-fast-track proceedings at the
Commission.[^273]

118\. We do not address parties\' comments regarding these proposals in
the context of fast-track because of our conclusion that our enforcement
goals can be accomplished using traditional complaint mechanism modeled
after our existing common carrier complaint procedures. The parties\'
comments, however, are addressed where appropriate in our discussion of
our traditional informal and formal complaint rules.

**a. Initial Contact With the Commission**

119\. We adopt our tentative conclusion in the *NPRM* that we should, as
recommended by the *TAAC Report,* \"encourage consumers to express
informally their concerns or grievances about a product to the
manufacturer or supplier who brought the product to market before
complaining to the Commission.\"[^274] We believe that this policy
should apply with equal force to grievances or concerns relating to
service providers. We fully expect that many accessibility-related
disputes will be satisfactorily resolved through such communications
without the need to file complaints. We decline, however, to adopt a
rule that would require consumers to contact the manufacturer or service
provider about an accessibility barrier before a complaint could be
filed with the Commission.[^275] Under our section 208 rules, consumers
are encouraged but not required to contact the carrier in advance of
filing an informal complaint. Because the informal complaint process
itself is geared toward cooperative efforts, it is not useful to require
a complainant to contact the carrier before using the Commission's
informal complaint processes.[^276]

120\. On the other hand, our rules governing formal section 208
complaints require both the complainant and defendant to certify, as
part of the complaint and answer respectively, that they discussed, or
attempted in good faith to discuss, the possibility of settlement with
the opposing party prior to filing of the complaint.[^277] We conclude
that this model is also appropriate for section 255 formal complaints. A
consumer-friendly complaint process will ensure that consumers have an
absolute right to have their accessibility concerns promptly addressed
by the manufacturer or service provider concerned with reasonable
expectation that the manufacturer or service provider will respond
within the time and in the manner specified by the Commission. At the
same time, consumers contemplating formal adjudication of a dispute with
a manufacturer or service provider will have the appropriate incentives
to explore settlement options before initiating costly and time
consuming formal adjudicatory proceedings.

**b. Form and Content of Informal Complaints; Standing to File**

121\. *Form*. We adopt our proposal to allow informal complaints all to
be transmitted to the Commission by any reasonable means such as by
letter, facsimile transmission, voice telephone (voice and TTY),
Internet e-mail, audio-cassette recording, and braille. Most commenters
supported this proposal as the most practical and beneficial way to
ensure that complainants with disabilities have full access to our
complaint mechanisms.[^278] Our rules therefore specify the various
means through which complaints may be filed with the Commission.

122\. *Content*. Our objective is to make it easy for consumers with
disabilities to file accessibility complaints and for manufacturers and
service providers to move promptly to satisfy any meritorious
complaints. A rule outlining the minimum information that must be
provided by consumers to trigger the informal complaint mechanism should
strike a balance between the rights and duties of consumers and affected
manufacturers and service providers. Almost all commenters support such
a rule.[^279] We believe it necessary and appropriate for potential
complainants to have a clear basis for believing that a violation has
taken place and not simply allege that particular equipment or service
is not accessible. We recognize, however, that it would not be realistic
or feasible for complainants to document, in the first instance, all the
factors necessary to establish that the access needed is readily
achievable within the meaning of our rules.

123\. Therefore, we adopt a rule providing that any section 255
complaint filed with the Commission include: (1) the name and address of
the complainant; (2) the name and address of the manufacturer or service
provider against whom the complaint is made; (3) details about the
equipment or service about which the complaint is made; (4) the date or
dates on which the complainant or person on whose behalf the complaint
is being filed either purchased, acquired, used or attempted to purchase
or use the equipment or service about which the complaint is being made;
(5) a statement of facts supporting the complainant\'s allegation that
the equipment or service is not accessible to a person or persons with a
disability; (6) the specific relief or satisfaction sought by the
complainant; and (7) the complainant\'s preferred method of response to
the complaint (e.g., letter, facsimile transmission, telephone (voice or
TTY), Internet e-mail, audio-cassette, braille, or another method that
will provide effective communication with the complainant. Although
these content requirements will entail diligence on the part of
consumers in preparing and submitting complaints, we believe that any
burden on consumers is far outweighed by the benefits of prompt and
decisive action by Commission staff and defendant manufacturers and
service providers resulting from such complaints. Commission staff will
be available to assist consumers in filing complaints and may relax or
modify our content requirements where needed to accommodate a consumer
whose disability may prevent him from providing the information required
under our rules.[^280]

124\. *Standing to File*. We conclude that our minimum form and content
requirements will alleviate concerns raised by a number of commenters
regarding the need for a standing requirement for filing section 255
complaints. These commenters urged that we reverse our tentative
conclusion in the *NPRM* and adopt a strict standing requirement under
which only customers of a manufacturer or service provider would have
standing to file a section 255 complaint with the Commission.[^281] A
standing requirement is needed, these commenters contend, to ensure that
manufacturers and service providers are not inundated with disputes
among competitors and otherwise frivolous or vindictive complaints that
will waste the resources of the Commission and the defendant
companies.[^282]

125\. Commenters have made no persuasive argument why we should adopt a
different standard for standing for these rules than for other
complaints. As we noted in the *NPRM*, section 255 itself does not
impose a standing requirement. Nor is there a standing requirement under
section 208 of the Act and our common carrier complaint rules, which
generally authorize the filing of a complaint by \"any person\"[^283]
claiming that a carrier has violated a provision of the Act or the
Commission\'s rules.[^284] The concerns raised by the commenters about
possible frivolous complaints are too speculative to warrant a standing
requirement where none otherwise exists under our common carrier
complaint rules. There is no evidence that frivolous complaints have
been a problem under our common carrier rules; nor is there any basis in
the record to reasonably conclude that such will be the case for section
255 complaints. In any event, we believe that the minimum content
requirements for section 255 complaints will effectively deter the
filing of frivolous complaints. We are persuaded that these requirements
will ensure that the focus of any complaint filed pursuant to these
rules remains, as it should, on promoting accessibility.

**c. Service; Designation of Agents**

126\. *Service*. We adopt a rule requiring the staff to promptly forward
complaints that satisfy our content rules to the manufacturer or service
provider involved, along with specific instruction to the defendant
company to investigate and attempt to satisfy the complaint within a
specified period, generally thirty days. The rule further provides that
Commission staff may, in its discretion, request from the defendant
company whatever additional information it deems useful to its
consideration of the complaint. These requirements are similar to the
service requirements contained in our rules governing section 208
informal complaints.

127\. *Designation of Contacts/Agents*. We proposed in the *NPRM* to
require manufacturers and service providers to establish points of
contact for section 255 complaints and inquiries. We tentatively
concluded that such a requirement would facilitate the ability of
consumers to contact manufacturers and service providers directly about
accessibility issues or concerns and to ensure prompt and effective
service of complaints on defendant manufacturers and service providers
by Commission staff.[^285] There was universal support among the
commenters for this proposal. We therefore adopt a rule requiring
affected manufacturers and service providers to designate an agent or
contact whose principal function will be to ensure the manufacturer\'s
or service provider\'s prompt receipt and handling of accessibility
concerns raised by consumers or Commission staff. The contact
information must, at a minimum, include the name of the person or
office, telephone number (voice and TTY), fax number and both mailing
and e-mail addresses.[^286] The representative or agent should have the
means available to convert materials distributed and received into
accessible formats.

128\. We recognize that we need to ensure that consumers can readily
obtain information identifying the points of contact for manufacturers
and service providers covered by these rules. Accordingly, the
Commission will provide access to a listing of the contact
representatives or agents designated by manufacturers and service
providers. In order to establish this listing, we will require covered
manufacturers and service providers to file the required contact
information with the Secretary of the Commission within thirty days
after the effective date of the rules adopted herein.[^287] Commission
staff will prepare a Public Notice advising consumers and other
interested parties how to obtain access to the contact information once
it has been compiled. We anticipate that the information will promptly
be made available through the Commission\'s website. We also strongly
encourage manufacturers and service providers to employ their own
measures to inform consumers about how to contact the appropriate
offices within their companies regarding accessibility barriers or
concerns.

129\. As a related matter, we note that certain commenters urged that we
adopt a requirement that defendant manufacturers and service providers
make reasonable, good faith efforts to contact the complainant within
five business days of receipt of a complaint to acknowledge such receipt
and discuss how the company intends to proceed with its handling of the
complaint.[^288] We agree with these commenters that this measure is
consistent with our point of contact requirement and will not unduly
burden affected companies, and adopt this requirement. We anticipate
that this exchange of information by complainants and defendant
companies will lead to prompt and effective accessibility solutions in
many instances.

130\. We decline, however, to adopt related proposals by certain
commenters that would require manufacturers and service providers to
establish specific internal systems and recordkeeping practices for
purposes of responding to section 255 complaints and inquiries.[^289]
Nor do we adopt proposals by other commenters that would require
manufacturers to maintain public files recording their compliance with
section 255 and our rules. We agree with USA that companies will have
different and often unique methods and systems for handling complaints
and inquiries.[^290] We see no need to burden manufacturers and service
providers with detailed processing and reporting requirements which
could hinder rather than hasten the resolution of accessibility
disputes. We fully expect, however, that good business and customer
service practices will require that companies establish and maintain
effective internal procedures and maintain adequate records in order to
ensure compliance with our rules, as well as to respond promptly to
their actual or prospective customers. We emphasize, however, that we
may revisit this decision if our experience processing section 255
complaints indicate that such requirements are needed to effectively
enforce section 255.[^291]

**d. Responses to Informal Complaints**

131\. *Content*. We do not adopt a rule urged by certain commenters
prescribing the information that manufacturers and service providers
would be required to provide in their responses to informal section 255
complaints.[^292] As we stated above, our section 255 informal complaint
process emphasizes informal and cooperative efforts between consumers
and defendant manufacturers and service providers to resolve
accessibility concerns without extensive involvement by the Commission.
Our goal here is to avoid imposing cumbersome filing and reporting
requirements that would deprive consumers and companies of
non-adversarial opportunities to resolve disputes. Just as it is
important to ensure that consumers have a simple, easy to understand
process for raising their accessibility concerns with the Commission, it
is equally important that manufacturers and service providers are able
to respond quickly and effectively to those concerns. We do not believe
it feasible to speculate about specific types of information that may be
required by the staff. The level and nature of the information required
to respond to accessibility complaints may vary widely depending upon
the specific allegations raised, and it appears impractical to fashion a
rule to anticipate these varying circumstances.

132\. Moreover, our rules require defendant manufacturers and service
providers to prepare their responses in the format requested by the
complainant, except where the defendant service provider or equipment
manufacturer is incapable of doing so. In cases in which the defendant
is incapable of preparing a response using the format requested by the
complainant, Commission staff will take actions necessary to ensure that
the response is accessible to the complainant.

133\. *Time to Respond*. The commenters are generally supportive of a
thirty day period in which to respond to informal complaints, although
certain commenters argue that the response should be shortened to 15
days[^293] while others favor a longer period of 60-90 days.[^294] We
believe that a thirty day response period, which mirrors the response
time afforded under our common carrier complaint rules, strikes a
reasonable balance between our goals of promoting the prompt resolution
of accessibility disputes and ensuring that manufacturers and service
providers have sufficient time in which to evaluate the complaint and
provide meaningful solutions or explanations to consumers. We recognize
that the issues raised in some section 255 complaints will be resolved
promptly by the defendant company while others will be complex and not
susceptible to expeditious resolution. Commission staff will manage the
informal complaint process to reflect these case specific differences.
For example, the staff will have authority to require a response to a
complaint in less than thirty days if warranted under the circumstances.
In a similar vein, the staff may grant a defendant additional time in
which to attempt to informally resolve a complainant\'s accessibility
problem, particularly in cases that raise extraordinarily complex issues
or facts.

**e. Review and Disposition of Informal Complaints by the Commission**

134\. Although we anticipate that the vast majority of complaints can be
resolved by the informal complaint process, we recognize that not all
informal complaints will be susceptible to resolution. A number of
commenters expressed concern that our *NPRM* failed to describe our
complaint mechanisms in sufficient detail to enable consumers and
potential defendants to understand the mechanics and possible outcomes
of the proceedings.[^295] To address these concerns, we describe in this
section the staff review process and possible dispositions of informal
section 255 complaints. Generally, the dispositions described are
similar to those provided for under our common carrier complaint rules.

135\. We emphasize that, with regard to informal complaints that are
resolved by the manufacturer or service provider to the satisfaction of
the individual complainant, our commitment to promoting such resolution
efforts should not be construed by companies as a license to implement
\"quick-fix\" or \"patch-work\" accessibility solutions for individual
customers that fail to address underlying compliance issues or concerns.
Commission staff will be charged with carefully monitoring the section
255 complaint process. If the nature and/or number of complaints against
a particular manufacturer or service provider indicates non-compliance
with the Act or our rules, we fully expect the staff to initiate, or
recommend to the Commission if appropriate, prompt and decisive
enforcement actions.

136\. *Complaints Satisfactorily Resolved by the Manufacturer or
Provider*. As a general matter, if it appears from a response to an
informal complaint that the accessibility problem has been resolved, the
staff shall close-out the complaint. In cases, where there has been no
resolution, the staff shall inform parties of the review and disposition
of an informal complaint as described below.

137\. *Unresolved Complaints*. There are three basic outcomes that may
result from the staff's review of unresolved informal section 255
complaints. First, in the event that the staff determines, based on its
review of the complaint, defendant's response, and any supporting
documentation, that no further action by the Commission is warranted
with regard to the matters alleged in the complaint, our rules require
the staff to inform the parties of its decision to close-out the
complaint and further advise them of the complainant\'s right to file a
formal complaint pursuant to sections 1.720 -1.736 of the our rules if
the complainant desires to pursue formal adjudication of its claims.

138\. Second, if the staff determines that there is an unresolved
question of compliance by the defendant manufacturer or service, the
staff will be authorized to conduct a further investigation or initiate
such further proceedings as are necessary to resolve compliance
questions and determine what, if any sanctions against the defendant are
appropriate. In this regard, we note that Act gives the Commission, and
its staff pursuant to delegated authority, broad authority to inquire
into or investigate practices by parties subject to the Act's
requirements.[^296]

139\. Third, in cases in which Commission staff determines that the
defendant is not in compliance with section 255 , the rules specify that
the staff may order or prescribe (or recommend to the Commission) such
sanctions or remedies as deemed appropriate under the facts and
circumstances.

**f. Formal Complaints**

140\. *Applicability of Sections 1.720-1.736 of the Rules*. As indicated
above, we conclude that our rules governing complaints filed against
manufacturers and service providers under section 255 of the Act should
provide aggrieved parties an unqualified option of pursuing an
accessibility claim against a manufacturer or service provider
informally or through our more formal adjudicative procedures. We agree
with a number of the commenters that certain accessibility disputes, by
their nature or complexity, may not be able to be resolved by the
disputing parties. Therefore, we adopt a rule providing that any person
seeking formal adjudication of a problem or dispute with a manufacturer
or service provider may do so pursuant to the procedures specified under
sections 1.720-1.736 of our rules. We note that in November 1997, the
Commission adopted comprehensive changes to these rules which are
intended to improve the speed and effectiveness of the formal complaint
process.[^297] Under the revised rules, both complainants and defendant
carriers are required to (1) certify in their respective complaints and
answers that they attempted in good faith to settle the dispute before
the complaint was filed with the Commission; (2) and submit detailed,
factual and legal support, accompanied by affidavits and documentation
for their respective positions in the initial complaint and
answer.[^298] In addition, the rules place strict limits on the
availability of discovery and subsequent pleading opportunities to
present and defend against claims of misconduct.[^299] The rules contain
a number of additional procedural and pleading requirements designed to
expedite rather than delay the resolution of formal complaints.[^300]

141\. We do not adopt our proposal in the *NPRM* to require parties to
obtain Commission approval in order to file a formal complaint; nor do
we adopt the suggestion by certain commenters that we require parties to
invoke our informal complaint processes as a prerequisite to filing a
formal complaint.[^301] No such requirements exist under our common
carrier complaint rules and we find no basis in the record to conclude
that such requirements are needed for section 255 complaints. Moreover,
given the relative ease of the informal complaint process, parties
typically do not file formal complaints that would more appropriately be
filed as informal complaints in the first instance.[^302]

142\. We note that our *Formal Complaints Order* specifically authorizes
the staff to waive or grant exceptions to formal procedural and pleading
requirements in particular cases based on showings of financial hardship
and other public interest factors.[^303] We expect the staff to give due
consideration to the circumstances of individual persons with
disabilities, and the disability community at large, in administering
our formal complaint mechanisms. We emphasize, however, that the staff
may not exercise this waiver authority in a manner which relieves a
section 255 formal complainant from its obligations to allege sufficient
facts, supported by affidavits or other documentation, which, if true,
would constitute a violation of section 255 or the FCC\'s implementing
rules.

**g. Accelerated Dispute Resolution**

143\. We anticipate that some formal complaints may be filed which raise
broad, industry-wide concerns of immediate and paramount importance to
the disability community. We recognize that even minor delays or
barriers to access that is readily achievable could pose serious and
damaging consequences for consumers with disabilities. We also believe
that in many situations, manufacturers and service providers will have
an interest in obtaining the prompt resolution of formal complaints
filed against them in order to quickly establish the validity of their
accessibility practices.

144\. In July 1998, we amended our formal complaint rules to establish
specialized procedures for resolving on an expedited basis certain
categories of disputes arising between parties competing in the
telecommunications market.[^304] These procedures, *inter alia*, require
disputing parties to engage in Commission supervised settlement
negotiations prior to the filing of the complaint and, once the
complaint is filed, proceed under abbreviated discovery and pleading
schedules. The accelerated process is designed to produce a decision by
the staff on the merits of the parties\' dispute within 60 days from the
time the matter is accepted for inclusion in the accelerated
docket.[^305] We concluded that the specialized procedures will serve
the critical function of simulating the growth of competition for
telecommunications services by ensuring the prompt resolution of
disputes that may arise between market participants.[^306] We conclude
that such specialized procedures for section 255 disputes could play a
similar role in promoting the accessibility goals underlying section 255
and, therefore, we provide in this *Order* that such procedures may be
used by the staff for purposes of section 255 formal complaints. Such
accelerated procedures will minimize the opportunity for manufacturers
and service providers to continue to delay otherwise readily achievable
accessibility solutions because the lawfulness of such practices will be
subject to expedited review.[^307]

145\. *Eligibility Requirements.* Not all accessibility disputes raised
in the context of formal complaints will be appropriate for handling
under these accelerated procedures. Therefore, we adopt the following
requirements that a complainant must satisfy in requesting accelerated
resolution of its complaint:

 First, a complainant desiring accelerated dispute resolution must
allege in good faith that a person with a disability is not able to
access/use particular equipment or services is due to a product\'s lack
of accessibility, and that such lack of access is having or will have an
immediate adverse impact on consumers\' ability to use the services and
equipment covered by our rules.

 Second, the complainant must demonstrate that he or she has contacted
or attempted in good faith to contact the manufacturer or service
provider against whom the allegations are made and gave or attempted to
give the manufacturer or service provider a reasonable period of time
(not less than 30 days) to address the problem;

 Third, the complainant must have given prior advance notice to the
manufacturer or service provider of its intention to file a formal
complaint; and

 Fourth, the complainant must agree to participate in any settlement
negotiations scheduled and supervised by Commission staff with respect
to the matters alleged in the complaint.

146\. *Accelerated Dispute Resolution Procedures*. Any person with a
disability or entity acting on behalf of any such person who satisfies
the above-listed conditions may submit its formal complaint, along with
a request for accelerated dispute resolution, to the Common Carrier
Bureau\'s Enforcement Division.[^308] Where practicable, such complaint
and request may be submitted to the Commission by any reasonable means.
The filing must include at a minimum: (1) the information described in
sections 1.721-1.724 of our rules and (2) a representation by the
complainant that the conditions specified in subsection 1.730 have been
met. Complaints accepted for accelerated dispute resolution will be
promptly forwarded by the Commission to the named manufacturer or
service provider, which shall be called on to answer the complaint in 15
days or such shorter time as the staff may prescribe. Commission staff
may, in its discretion, require the complainant and defendant to appear
before it, via telephone conference or in person, to bring and give
evidence bearing on accessibility, usability or compatibility. In
appropriate cases, the staff may schedule and supervise settlement
negotiations between the parties.

147\. *Factors to be Considered by the Staff*. To further guide parties
contemplating formal complaint actions to enforce the requirements of
section 255 and our rule, we believe it useful to delineate certain
factors which the staff may consider in evaluating requests for
accelerated dispute resolution under our specialized procedures. These
non-exclusive factors include:

\(1\) Whether the complainant alleges facts indicating a continuing
violation of section 255 or the rules;

\(2\) Whether it appears that the complainant has exhausted reasonable
opportunities for settlement with the defendant;

\(3\) Whether expedited resolution of the particular dispute appears
likely to advance the objectives of section 255;

\(4\) Whether the issues raised by the complainant appear suited for
accelerated resolution (this factor may entail, among other things, an
examination of the number of distinct issues and the complexity of the
information required to resolve them);

\(5\) Whether the accelerated schedule may be unfair to one party
because of disparity in resources.

148\. *Decisions Issued in Accelerated Proceedings*. We noted above that
our accelerated dispute resolution procedures contemplate decisions by
the staff on the merits of a complaint within 60 days from the time the
complaint is accepted onto the accelerated docket. We similarly adopt a
60-day timetable for issuing a decision in section 255 complaint
proceedings under our accelerated procedures. At the same time, we
recognize that some disputes that are likely to arise over the proper
interpretation and application of our rules will be cases of first
impression, the resolution of which may not be possible within the 60
day period. Therefore, staff administering the accelerated docket will
have the discretion to extend the 60-day period. We emphasize, however,
that extensions granted by the staff will be calculated to produce full
and fair decisions in the shortest possible time frame.

**h. Defenses to Complaints**

149\. We noted in the *NPRM* that the most common defenses likely to be
mounted by manufacturers and service providers in response to either a
complaint or an inquiry by the Commission are claims that: (1) the
product or service lies beyond the scope of section 255; (2) the product
or service is in fact accessible; or (3) accessibility is not readily
achievable.[^309] We noted that while the first two defenses are
relatively straightforward, the readily achievable defense is
complex.[^310] We therefore proposed to use the Access Board Guidelines
applicable to manufacturers as examples of the kinds of compliance
measures we would consider in this regard.[^311] These include four
categories of activities by companies demonstrating: (1) self-assessment
of whether accessibility is readily achievable with respect to the
product or product line at issue; (2) external outreach efforts to
ascertain accessibility needs and solutions; (3) internal management
processes to ensure early and continuing consideration of accessibility
concerns as product offerings evolve; and (4) the availability of user
information and support.[^312]

150\. Most of the commenters generally agree that good faith efforts to
comply with section 255 should be considered in evaluating complaints
and compliance generally. Many support the establishment of specific
criteria for measuring good compliance efforts, but contend that the
criteria should be explicit and fully explained by the Commission.[^313]
Others maintain that companies who engage in the activities listed by
the Commission should be given a rebuttable presumption that they have
complied with section 255.[^314] Still others maintain that the
Commission should adopt a case-by-case approach to measuring compliance
and not exclude the consideration of additional factors.[^315] In
addition, one commenter argues that the Commission should clarify that a
manufacturer or service provider\'s failure to provide accessible
documentation and customer service support accessible to persons with
disabilities should not only be a factor to be considered in measuring
good faith compliance efforts, but itself a violation of section
255.[^316] Another commenter endorses the Commission\'s consideration of
practices by manufacturers and service providers designed to assist
consumers with disabilities in obtaining information about accessible
products and services.[^317]

151\. While we believe some weight should be given to evidence that a
respondent made good faith efforts to comply with section 255,[^318] we
decline to adopt a rule establishing a presumption of compliance in
favor of manufacturers and service providers in section 255 complaint
actions. Instead, we will review section 255 complaints on a
case-by-case basis, giving due consideration to whether the defendant
took actions consistent with the rules and guidance we set forth today,
as well as any other compliance measures that the respondent has
undertaken, such as those set forth in the Access Board\'s Advisory
Appendix. We do not believe it practical to attempt to delineate
specific acts or omissions that would demonstrate compliance with
section 255. We emphasize that it will be incumbent upon manufacturers
and service providers faced with complaints or compliance inquiries from
the Commission to provide information and arguments to support any claim
that an accessibility feature is not readily achievable within the
meaning of section 255 of the Act.

**4. Limitations on Filing Complaints**

152\. *Time Limit for Filing Complaints*. The commenters are split over
our tentative conclusion in the *NPRM* that we should not impose any
specific timetable on the filing of complaints under section 255.
Industry commenters argued in unison that a time limit on such filings
is need to prevent manufacturers and providers from being exposed
indefinitely for accessibility assessments made years earlier.[^319]
Because of what they describe as the fast-changing nature of the
telecommunications industry, some urged the Commission to apply a
6-month to 12-month time limit, starting from the time the complainant
acquired or used or attempted to acquire or use a product or
service.[^320] Others supported a two-year limitations period comparable
to the 2-year limit on the filing of damages claims against common
carriers under section 415(b) of the Act.[^321] According to these
commenters, without the finality of a limitations period, uncertainty
would stifle companies' ability to move forward with other accessibility
programs and innovations.[^322] Commenters representing the disability
community were likewise unanimous in their support of our proposal not
to impose any specific time limit. These commenters contended that
inaccessibility may not become apparent until equipment or service is
used, and even then, it may take a while to realize the inaccessibility
or incompatibility of the product.[^323]

153\. We decline to adopt either the 6-month or 1-year limitations
period on the filing of section 255 complaints urged by some commenters.
We do not agree that a limitations period more restrictive than the
2-years prescribed in section 415 of the Act pertaining to damages
claims against common carriers is necessary or desirable to guard
against stale or unmeritorious claims. The Commission has not imposed
any shorter time limits under its common carrier complaint rules, and
none of the commenters makes persuasive arguments why we should adopt a
different approach for the filing of section 255 complaints. Nor does
our experience processing informal section 208 complaints indicate to us
that more stringent limits are needed to guard against stale or
unmeritorious complaints. To the contrary, our records indicate that
consumers seldom file complaints against carriers that involve disputes
over carrier practices occurring more than a year prior to the filing of
a complaint. In fact, it appears that consumers are becoming
increasingly prompt in filing complaints with the Commission.[^324] We
find nothing in the record to suggest that this will not be the case
with complaints arising under section 255.

154\. We emphasize, however, that our section 255 complaint rules are
designed to focus on ensuring practical accessibility solutions for
individual consumers while promoting overall compliance with section 255
and our implementing rules. To ensure that this Commission\'s resources
remain properly focused, we adopt a general policy that complaints
against manufacturers and service providers determined by the staff to
raise issues that are dated or stale due to the passage of time or moot
because of industry or product changes (and which do not raise timely
damages claims within the meaning of section 415(b)) may, absent
indications of an ongoing compliance problem, be subject to summary
disposition by the staff.

155\. *Alternative Dispute Resolution Procedures*. A number of
commenters also proposed that we require parties to engage in formal
alternative dispute resolution practices as a prerequisite to filing
complaints pursuant to section 255. Others proposed that we adopt a rule
requiring the Commission to arbitrate or mediate disputes at the request
of the disputing parties as an alternative to complaint actions. We
decline to adopt these proposals because their potential problems
outweigh potential benefits. We conclude that these proposals could
either stifle the parties\' ability to develop creative solutions or
delay unnecessarily the filing of complaints, or both. For example, we
agree with NAD and Council for Organizational Representatives that
requiring formal ADR efforts prior to the filing of a complaint could
permit defendant manufacturers or service providers to delay the filing
of formal complaints to the detriment of customers. We find also that
the proposal to require Commission staff to formally mediate or
arbitrate accessibility disputes in all cases would unnecessarily tax
the Commission\'s resources when there are many qualified ADR experts
outside the Commission. We note that Commission staff will work with
industry members and consumers to resolve accessibility disputes and
compliance issues informally, both before and after complaints have been
filed. We see little benefit, however, in requiring the staff to conduct
such mediation or arbitration efforts in all cases.

**5. Applicability of Statutory Complaint Resolution Deadlines**

156\. We do not agree with the claim by certain commenters that the
five-month complaint resolution deadline imposed on the Commission under
section 208(b) of the Act is also applicable to all complaints alleging
violations of section 255. In the *Formal Complaints Order*, we
specifically addressed the issue of the scope and applicability of the
section 208(b) deadline. We held that section 208(b) applies only to
formal complaints which involve: (1) "investigation\[s\] into the
lawfulness of a charge, classification, regulation or practice"
contained in tariffs filed with the Commission and (2) any complaint
about the lawfulness of matters that would have been included in tariffs
but for the Commission's forbearance from tariff regulation.[^325]

157\. Thus, we conclude that section 208(b) would apply to a properly
filed section 255 formal complaint only to the extent that the complaint
raised issues concerning a matter contained in a service provider's
tariff or that would have been included in the service provider's tariff
but for our forbearance policies. We emphasize, however, that
notwithstanding the absence of a statutory resolution deadline in
section 255, our goal will be to resolve all section 255 complaints in
the shortest possible time frame in order to give full effect to
accessibility requirements of the Act and our rules.

**6. Confidential Treatment of Filings**

158\. We noted in the *NPRM* that our enforcement of these rules may
often involve evaluation of information which may be considered
proprietary business data.[^326] We noted further that sections
0.457(d), 0.457(g), and 0.459 of our rules[^327] already provide
confidentiality for proprietary information in certain instances and
requested comment regarding the need, if any, for additional protective
measures.[^328] Many of the industry commenters strongly support the
adoption of additional requirements to protect proprietary business
information. Certain of the commenters argue that the Commission should
establish a rebuttable presumption that information submitted in
response to a complaint is confidential.[^329] Others contend that
complainants should be required to sign non-disclosure agreements. Still
others argue that where a readily achievable defense is invoked, the
Commission should deem any information submitted by the defendant
manufacturer or service provider as confidential and impose strict
penalties for improper disclosures.[^330]

159\. We agree with the commenters\' assessment that our rules should
facilitate the submission of relevant information by consumers with
disabilities as well as manufacturers and service providers without fear
of public dissemination of information that is confidential or
proprietary.[^331] We also agree that consumers and defendant
manufacturers and service providers must be assured of protection for
their confidential or proprietary information in order to avoid the time
consuming process of resolving disputes over the treatment of documents.
We conclude, however, that our rules governing confidential materials
adequately address the concerns raised by the commenters and, therefore,
do not adopt the additional requirements proposed. As an initial matter,
we note that we do not anticipate that confidentiality issues will arise
frequently in informal section 255 complaint proceedings.[^332] Informal
complaint actions, which are exempt proceedings under our ex parte
rules, are by nature not designed or intended to facilitate the exchange
of confidential information between disputing parties. Defendant
manufacturers and service providers are not typically required to submit
information designated as confidential or proprietary directly to a
complainant; nor is the staff required to transmit confidential
information provided by a complainant to a defendant company. To the
extent that such information is deemed necessary to the staff\'s
evaluation of an informal complaint, the submitting party may invoke the
protection afforded under sections 0.457-0.459 of our rules by clearly
designating the information as confidential or proprietary at the time
it is submitted to the Commission.

160\. We recently reexamined our confidentiality rules and adopted
certain amendments and clarifications to more specifically describe the
information needed to evaluate requests for confidential
treatment.[^333] The revised rules clarify that the Commission will
carefully consider the competitive implications of disclosure on a
case-by-case basis. There is no evidence in the record before us that
the type of business information that may be submitted by companies to
support a readily achievable defense is so unique as to require
additional protective measures.

161\. Moreover, we note that in the context of formal complaint actions,
in which relevant information or material designated as confidential
must be produced to the opposing party, section 1.731 of our rules
places very specific requirements and limitations on the use of
information or materials. Section 1.731 makes it clear that confidential
or proprietary information may not be used for any purpose other than
prosecuting or defending the complaint at issue, or disclosed to any
employees other than those directly involved in such prosecution or
defense. The rule further provides that parties receiving confidential
material must sign a sworn statement affirmatively stating that they
have reviewed the Commission's confidentiality provisions pertaining to
formal complaints actions and understand and accept the limitations
period. We believe that these requirements offer adequate protection in
the vast majority of cases. In those cases in which a party legitimately
believes that the protection afforded under these rules is inadequate,
the rules afford the opportunity to seek more stringent limitations of
the submission or exchange of particularly sensitive materials.

**7. *Ex Parte* Treatment of Informal and Formal Complaints**

162\. We will amend our rules pertaining to *ex parte* communications to
provide that informal complaints filed pursuant to section 255 of the
Act shall be deemed \"exempt\" proceedings, as is the case with informal
complaints filed pursuant to section 208 of the Act.[^334] This exempt
designation will allow the Commission and its staff to meet or otherwise
communicate with either party, as well as non-parties, on an *ex parte*
basis to discuss matters pertaining to the complaint and related
compliance issues. This exempt classification has proven to be extremely
beneficial to consumers, defendant companies and the Commission in terms
of facilitating the identification and exchange of information and ideas
needed to resolve section 208 informal complaints and related compliance
issues.[^335]

163\. Formal complaints filed against common carriers pursuant to
sections 1.720-1.736 of our rules are classified as \"restricted\"
proceedings under our *ex parte* rules.[^336] This \"restricted\"
designation, as with other proceedings not designated as exempt or
permit-but-disclose, expressly prohibits *ex parte* presentations in
these adjudicatory proceedings from any source.[^337] Formal section 255
complaints filed against manufacturers or service providers shall be
similarly treated as restricted proceedings.

**8. Actions by the Commission on its own Motion**

164\. Our discussion in this section of the *Order* has focused on rules
and policies to be applied when complaints are filed against
manufacturers and service providers under section 255 of the Act as a
means of promoting compliance with the Act\'s accessibility requirements
and those under our rules. As we noted earlier, swift and effective
enforcement is crucial to our section 255 implementation plan. We fully
expect that most accessibility-related informal complaints filed
pursuant to section 255 will be resolved promptly by manufacturers and
service providers, without the need for significant Commission
involvement. We emphasize, however, that to the extent that compliance
issues or problems requiring regulatory intervention are perceived by
the staff during the processing of an accessibility-related informal
complaint or are otherwise brought to the Commission\'s attention, the
staff will be poised to pursue the matter on its own motion and, when
warranted, take or recommend appropriate remedial actions or sanctions
from those available to us under the Act and our rules.[^338]

165\. We reject the suggestion by certain commenters that we establish
specific guidelines for initiating investigations and other section 255
enforcement actions on our own motion.[^339] We see no need to attempt
to describe in this *Order* the various factors and circumstances that
might warrant exercise of our broad enforcement authority. The
procedures to be followed by the staff in taking action on its own
motion, unless prescribed under the Act or our rules, shall be those
which will best serve the purposes of such enforcement
proceedings.[^340]

**9. Program Accessibility**

166\. As we noted earlier, the Commission has a responsibility to
prohibit discrimination on the basis of disability in its programs and
activities, as required by the Rehabilitation Act of 1973, as
amended.[^341] The Commission\'s rules implementing these
responsibilities are set forth at 47 C.F.R. §§ 1.1801 - 1.1870. These
requirements apply to the Commission\'s enforcement provisions and
activities.[^342] If a member of the public believes that the Commission
is not providing equal access to its programs and activities, the
procedures for filing a program accessibility complaint are set forth in
47 C.F.R. § 1.1870. Complaints regarding access to Commission programs
and activities should be sent to the Commission\'s Office of the
Managing Director. Commission staff will provide technical assistance to
any member of the public wishing to file a complaint pursuant to
sections 1.1801 - 1.1870 of the rules; regarding access to Commission
programs and activities; and any such complaint will not predispose the
Commission negatively against any section 255 complaints.

**F. ADDITIONAL IMPLE­MENTATION AND EN­FORCEMENT MEASURES**

167\. In the *NPRM*, the Commission sought comment regarding whether
existing Commission processes (and associated forms) would be efficient
vehicles for any requirements the Commission might develop in this
proceeding, such as information collection, or providing notice to firms
dealing with the Commission that they may be subject to section 255. The
Commission listed the following examples: (1) the Commission\'s
equipment authorization processes under Part 2, Subpart J of the
Commission\'s Rules; (2) equipment import documentation requirements
under Part 2, Subpart K of the Rules; (3) licensing proceedings under
section 307 of the Act for various radio services used by entities
subject to section 255 obligations; and (4) various common carrier
filing processes.

168\. The Commission also expressed the view that there could be other
measures the Commission might take, or might encourage others to take,
to foster increased accessibility of telecommunications products. The
Commission listed the following examples:

\(1\) Establishment of a clearinghouse for current information regarding
telecommunications disabilities issues, including product accessibility
information, and accessibility solutions.

\(2\) Publication of information regarding the performance of
manufacturers and service providers in providing accessible products,
perhaps based on statistics generated through the fast-track and dispute
resolution processes.

\(3\) Expansion of the information provided on the Internet at the
Commission\'s Disabilities Issues Task Force Web site
(http://www.fcc.gov/dtf).

\(4\) Efforts by consumer and industry groups to establish on-going
informational and educational programs, product and service
certification, standards-setting, and other measures aimed at bridging
the gap between accessibility needs and telecommunications solutions.

\(5\) Development of peer review processes.

169\. Commenters who addressed the first group of issues generally
endorsed the use of existing Commission procedures and forms as an
efficient and effective method of enforcement.[^343] Commenters on the
second group of issues involving educational efforts were split between
members of the disability community who advocated an expansion of
existing Commission dissemination of technical assistance accessibility
information[^344] and manufacturers' groups who advocated that a "good
faith effort" to comply with section 255 and keep record of this
compliance would be sufficient to fulfill their obligations under the
Act.[^345]

170\. As to the first group of issues, we find that modifying the
current equipment certification or other existing Commission processes
for purposes of compliance with section 255 is not appropriate. As
outlined in the discussion on enforcement and the application of the
readily achievable standard, no specific documentation is being required
at this time.

171\. As to the second group of issues, however, we believe that the
dissemination of technical assistance, including information on product
capabilities and availability, as well as information about manufacturer
and service provider compliance with section 255, is vitally important.
It will both help ensure that people have access to needed products and
serve as an enforcement tool. After we determine the best way to present
the relevant data, we intend to publish information regarding entities\'
compliance with these rules. We also intend to provide technical
assistance and conduct outreach efforts to inform customers and
companies of their rights and responsibilities under these rules.

172\. We note that some companies and associations have already begun
efforts to provide information regarding section 255, such as developing
a clear­ing­house function on acces­sibil­ity and training employees on the
obligations under section 255. We will not, however, require specific
efforts at this time, as we believe companies should have flexibility in
addressing this issue. Should we determine in the future that the lack
of technical assistance or information about products or these rules is
preventing people with disabilities from receiving the full benefits of
the statute, we will consider measures to address these issues,
including amending our rules.

**G. NOTICE OF INQUIRY**

**1. Overview**

173\. While we believe this Order takes a dramatic step toward bringing
people with disabilities into the information age, we recognize that
there is much to be done. There is a vast array of
communications-related services available today that are not covered by
these rules.[^346] In addition, there are new technologies, which may be
outside the scope of these rules, being developed that may further
revolutionize the way we communicate. These developments will
undoubtedly affect access to communications for people with
disabilities. We must ensure that the disability community is not denied
access to innovative new technologies, for example Internet and
computer-based services, that may become complements to, or even
replacements for, today\'s telecommunications services and equipment.

174\. We are cognizant, in general, of the speed with which innovative
next generation technologies are changing the way communications
services are offered to the public, and the challenges posed to the
disability community by these new technologies if they are not
accessible. We lack, however, knowledge of the specific characteristics
of those changes, and the implications for accessibility for people with
disabilities. Given the rapid evolution of communications and the pace
of technological innovation, we need to ensure that as new services and
networks are developed they are designed to provide access to persons
with disabilities.

175\. Accordingly, we are issuing this Notice of Inquiry (NOI) to aid
our understanding of the access issues presented by communications
services and equipment not covered by the rules we adopt in this Order.
Our goal is to take full advantage of the promise of new technology, not
only to ensure that advancements do not leave people with disabilities
behind, but also to harness the power of innovation to break down the
accessibility barriers we face today and prevent their emergence
tomorrow. While we are interested in all aspects of communications
technology that may present accessibility issues, we specifically
request information on two types, Internet telephony and computer-based
equipment that replicates telecommunications functionality. First, we
ask commenters to address the extent to which Internet telephony has
begun, to replace the traditional telecommunications services, including
usage patterns by person with disabilities, which Congress clearly
intended to be subject to section 255. Second, we ask commenters to
advise us on the impact of computer based applications that provide
telecommunications functionalities farther into a customer\'s premise
than the point of connection with the public network, such as voicemail
capability that resides in a computer connected to a PBX, rather than in
a PBX. We ask commenters not to limit their responses to these two
areas, however, but rather to raise any issues of innovations in
telecommunications that may present accessibility challenges for the
disability community.

176\. We are also expressly interested in commenters\' views on the
extent to which government regulation will be necessary to ensure
accessibility of communications technology in the future. We note, for
example, the commitment of the Voice on the Net (VON) Coalition to
voluntarily ensure that Internet telephony services provided by its
members are \"accessible as readily achievable\", and to take into
account disability access needs when developing new products and
services.[^347] Because of our strong interest in ensuring that the
disability community is not denied access to any communications
technologies, we ask commenters to tell us what we can do the guarantee
that access.

**2. Discussion**

**a. Internet Telephony**

177\. Internet Protocol telephony (\"Internet\" or \"IP\" telephony)
services enable real-time voice transmission using the Internet Protocol
(IP), a packet-switched communications protocol. The services can be
provided in two basic ways: computer-to-computer IP telephony conducted
through special software and hardware at an end user\'s premises; or
phone-to-phone IP telephony conducted through \"gateways\" that enable
applications originating and/or terminating on the public switched
network. Phone-to**-**phone IP telephony is provided through computer
gateways that allow end users to make and receive calls using their
traditional telephones. Gateways translate the circuit-switched voice
signal into IP packets, and vice versa, and perform associated
signalling, control, and address translation functions. The voice
communications can then be transmitted along with other data on the
\"public\" Internet, or can be routed through intranets or other data
networks for improved performance.

178\. Many commenters urged that we apply the requirements of Section
255 to Internet telephony (\"IP telephony\") in general or
phone-to-phone IP telephony, specifically.[^348] They pointed out that,
given the evolutions in communications and the rapid pace of
technological innovation, we need to ensure that as new services and
networks are developed they are designed to provide access to persons
with disabilities. They noted that it is during the development stage
that accessibility can be most effectively included. We are concerned
that consumers who are simply attempting to place or receive a call
using standard CPE not have their accessibility disappear or diminished
because the call is being transmitted using a new, developing
technology. In addition, commenters stated that if persons with
disabilities cannot participate in communications over these newly
developing networks, they risk becoming further marginalized from
society.[^349]

179\. We ask commenters to provide any further information as to the
extent to which phone-to-phone IP telephony services might impact the
disability community, and the steps, we should take to address any
adverse impacts in order to fulfill the goals of section 255, or
otherwise promote the accessibility of this technology. Commenting
parties should offer specific suggestions as to the appropriate role for
the Commission in guaranteeing access and the statutory basis for that
role. For example, commenters should address ways in which phone to
phone IP telephony may be interpreted as falling within the purview of
section 255. Commenters should provide specific definitions of the
services or equipment to which the statute might apply, and the
appropriate means of limiting its application to only those services and
equipment. Commenters should address the ways, if any, in which industry
bodies can ensure access without regulatory action. Commenters should
also describe the specific access issues or experiences that might arise
with IP telephony. For example, will TTY tones be adequately transmitted
in a packet-switched environment? Will persons with speech disabilities
whose speech patterns and voice outputs from alternative and
augmentative communications devices may fall outside of traditional
voice patterns, face additional communications barriers with packetized
voice services?

180\. We further ask commenters to address what efforts manufacturers of
equipment that performs phone-to-phone IP telephony functions and
providers of phone-to-phone IP telephony services are currently making
to ensure that such equipment and services are accessible. What
improvements in accessibility may be possible through the use of
phone-to-phone IP telephony? Are there natural opportunities for
incorporating accessibility into IP telephony? can greater accessibility
be achieved if requirements are adopted early in the development of IP
Telephony? Is it possible that greater levels of accessibility will be
readily achievable with IP telephony than conventional telephony? How
will compatibility with assistive technology affect the use of IP
telephony?

181\. Commenters should also address the extent to which IP telephony is
now, or soon will be, an effective substitute for conventional
circuit-switched telephony. As Internet usage grows, phone-to-phone
voice IP telephony may be used with increasing frequency as an
alternative to more traditional telephone service. How extensive is
Internet telephony usage today? What is the projected usage of Internet
telephony in the near future? What is the projected use of various kinds
of IP telephony by persons with disabilities?

182\. Commenters are asked to describe differences in characteristics
between computer-based and phone-based IP telephony, and whether such
differences merit different treatment by the Commission. Given the rapid
pace of technological change in the telecommunications marketplace, we
also ask commenters to apprise us of any new technologies that may
impact the availability of accessible services and equipment.

**b. Computer Based Equipment**

183\. We also seek comment on another aspect of the network of the
future \-- the movement of telecommunications and information service
functions from the network, or the terminal equipment which connects
directly to the network, into computer equipment which does not connect
to the network directly. This computer hardware and software is not
typically regarded as CPE, but may, in fact, deliver the same functions
we seek to make accessible. For instance, voicemail, interactive menus,
or phone-to-phone IP telephony in current network topologies can reside
in equipment located on the service provider\'s premises, but such
functionalities are also available in several forms to end users on
their own premises. For example, voicemail can be purchased from a
carrier, can be provided via software and a branch exchange (PBX), or
can be provided through a computer that connects with the PBX, but is
not generally regarded as part of the PBX. It is this latter application
as to which we seek comment.

184\. These software applications shift the potential for accessibility
solutions from the core of the network to the end user\'s premises. We
therefore ask commenters to address whether equipment that provides
these capabilities, but which does not connect directly into the public
network (or otherwise directly receive the transmission of the
telecommunications), should be considered to be CPE subject to the
requirements of section 255. We note, for example, that this Order does
not currently reach a software telephone or the personal computer on
which it resides, even though it performs the same functions as the
traditional telephone.

185\. We ask commenters to address the need to include this
computer-based equipment as CPE or otherwise apply the provisions of
these rules to that equipment in order to ensure access. We also ask
commenters to address whether failure to bring such equipment within the
scope of section 255 would create a serious gap in coverage that would
interfere with our ability to effectively implement its provisions.
Commenters should offer suggestions as to the appropriate role for the
Commission in ensuring access for this kind of equipment and the
statutory basis for that role. We also ask about the potential for this
kind of equipment for improving accessibility and its compatibility with
assistive technology. Is it possible that greater levels of
accessibility will be readily achievable if this kind of equipment has
accessibility requirements?

**H. PROCEDURAL MATTERS**

**1. Comment Filing Procedures**

186\. Pursuant to sections 1.415 and 1.419 of the Commission's rules,
interested

parties may file comments as follows: comments are due on November 14,
1999 and reply comments are due on December 14, 1999. Comments may be
filed using the Commission's

Electronic Comment Filing System (ECFS) or by filing paper copies.

187\. Comments filed through the ECFS can be sent as an electronic file
via the

Internet to http://www.fcc.gov/e‑file/ecfs.html. Generally, only one
copy of an electronic

submission must be filed. If multiple docket or rulemaking numbers
appear in the caption of

this proceeding, however, commenters must transmit one electronic copy
of the comments to

each docket or rulemaking number referenced in the caption. In
completing the transmittal

screen, commenters should include their full name, Postal Service
mailing address, and the

applicable docket or rulemaking number. Parties may also submit an
electronic copy by

Internet e‑mail. To get filing instructions for e‑mail comments,
commenters should send an e‑mail to [ecfs@fcc.gov]{.underline}, and
should include the following words in the body of the message: \"get
form \<your email address\>.\" A sample form and directions will be sent
in reply.

188\. Parties who choose to file by paper must file an original and four
copies of

each filing. If more than one docket or rulemaking number appears in the
caption of this

proceeding, commenters must submit two additional copies for each
additional docket or

rulemaking number. All paper filings must be sent to the Commission's
Secretary, Magalie

Roman Salas, Office of the Secretary, Federal Communications Commission,
445 Twelfth

Street S.W., Room TW‑A325, Washington, DC 20554.

189\. Parties who choose to file by paper should also submit their
comments on

diskette to Al McCloud, Network Services Division, Common Carrier
Bureau, Federal

Communications Commission, 445 Twelfth Street SW, Room 6‑A423,
Washington, DC

20554\. Such a submission should be on a 3.5 inch diskette formatted in
an IBM‑compatible

format using WordPerfect 5.1 for Windows or a compatible software. The
diskette should be

accompanied by a cover letter and should be submitted in read‑only mode.
The diskette

should be clearly labeled with the commenter's name, proceeding,
including the lead docket

number in the proceeding (CC Docket No. 96-198), type of pleading
(comment or reply

comment), date of submission, and the name of the electronic file on the
diskette. The label

should also include the following phrase (Disk Copy - Not an Original. )
Each diskette

should contain only one party's pleadings, preferably in a single
electronic file. In addition,

commenters should sent diskette copies to the Commission's copy
contractor, International

Transcription Service, Inc., 1231 20th St. NW, Washington DC 20037.

**2. Regulatory Flexibility Act**

190\. As required by section 203 of the Regulatory Flexibility
Act,[^350] the Commission has prepared a Final Regulatory Flexibility
Analysis (FRFA) of the expected impact on small entities of the policies
and rules adopted herein. The FRFA analysis is set forth in Appendix D.

**3. Paperwork Reduction Act Analysis**

191\. The decision herein has been analyzed with respect to the
Paperwork Reduction Act of 1995, Pub. L. 104-13, and the Office of
Management and Budget (\"OMB\") has approved some of its information
collection requirements in OMB No. 3060-0833, dated August 4, 1998. Some
of the proposals in the *NPRM,* however, have been modified or added.
Therefore, some of the information collection requirements in this
Report and Order are contingent upon approval by OMB.

**I. ORDERING CLAUSES**

192\. Accordingly, IT IS ORDERED that pursuant to the authority
contained in Sections 1, 2, 4, 201(b), 208, 251(a)(2), 255, and 303(r)
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
154, 201(b), 208, 251(a)(2), 255, 303(r), this Order IS ADOPTEDand
COMMENTS ARE REQUESTED as described above.

193\. IT IS FURTHER ORDERED that 47 C.F.R. Parts 0 and 1, ARE AMENDED as
set forth in Appendix A, effective seventy (70) days after publication
of the text thereof in the Federal Register.

194\. IT IS FURTHER ORDERED that 47 C.F.R. Parts 6 and 7 ARE ADOPTED as
set forth in Appendix B, effective seventy (70) days after publication
of the text thereof in the Federal Register.

195\. IT IS FURTHER ORDERED that the Commission\'s Office of Public
affairs SHALL SEND a copy of this *Report and Order*, including the
FRFA, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. § 601, *et
seq*. (1981).

196\. The *Report and Order* IS ADOPTED, and the requirements contained
herein will become effective 70 days after publication of a summary in
the Federal Register. The collection of information contained within is
contingent upon approval by OMB. Notice of that approval will be
published in the Federal Register.

197\. Alternative formats (computer diskette, large print, audio
cassette and Braille) are available to persons with disabilities by
contacting Martha Contee at (202) 418-0260, TTY (202) 418-2555, or at
mcontee@fcc.gov. The *Report and Order* and the rules can also be
downloaded in Wordperfect 5.1 and in ASCII formats at:
http://www.fcc.gov/dtf.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

**TEXT OF SECTION 251(a) AND SECTION 255**

**OF THE COMMUNICATIONS ACT**

**Section 251. Interconnection.**

\(a\) [General Duty of Telecommunications Carriers]{.smallcaps}.---Each
telecommunications

carrier has the duty---

\* \* \* \* \*

\(2\) not to install network features, functions, or capabilities that
do not comply with the guidelines and standards established pursuant to
section 255 or 256.

**Section 255. Access by Persons with Disabilities.**

\(a\) [Definitions]{.smallcaps}.---As used in this section---

\(1\) [Disability]{.smallcaps}.---The term "disability" has the meaning
given to it by section 3(2)(A) of the Americans with Disabilities Act of
1990 (42 U.S.C. 12102(2)(A)).

\(2\) [Readily achievable]{.smallcaps}.---The term "readily achievable"
has the meaning given to it by section 301(9) of that Act (42 U.S.C.
12181(9)).

\(b\) [Manufacturing]{.smallcaps}.---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]{.smallcaps}.---A provider of
telecommunications service shall ensure that the service is accessible
to and usable by individuals with disabilities, if readily achievable.

\(d\) [Compatibility]{.smallcaps}.---Whenever the requirements of
subsections (b) and (c) are not readily achievable, such 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.

\(e\) [Guidelines]{.smallcaps}.---Within 18 months after the date of
enactment of the Telecommunications Act of 1996, the Architectural and
Transportation Barriers Compliance Board shall develop guidelines for
accessibility of telecommunications equipment and customer premises
equipment in conjunction with the Commission. The Board shall review and
update the guidelines periodically.

\(f\) [No Additional Rights Authorized]{.smallcaps}.---Nothing in this
section shall be

construed to authorize any right of action to enforce any requirement of
this section or any regulation thereunder. The Commission shall have
exclusive jurisdiction with respect to any complaint under this section.

**APPENDIX B**

**Amendment to the Code of Federal Regulations**

**1) Title 47 of the Code of Federal Regulations (C.F.R.) is amended by
adding the following new Parts 6 and 7:**

**Subpart A \-- Scope - Who must comply with these rules?**

§ 6.1 Who must comply with these rules?

**Subpart B \-- Definitions**

§ 6.3 Definitions

**Subpart C \-- Obligations - What must covered entities do?**

§ 6.5 General Obligations of Manufacturers

§ 6.7 General Obligations Service Providers

§ 6.9 Product Design , Development and Evaluation

§ 6.11 Information Pass through

§ 6.13 Information, Documentation and Training

**Subpart D \-- Enforcement**

§ 6.15 Generally

§ 6.16 Informal or formal complaints

§ 6.17 Informal complaints; form and content

§ 6.18 Procedure; designation of agents for service

§ 6.19 Answers to informal complaints

§ 6.20 Review and disposition of informal complaints

§ 6.21 Formal Complaints, applicability of Sections 1.720 - 1.736 of the
rules

§ 6.22 Formal complaints based on unsatisfied informal complaints

§ 6.23 Actions by the Commission on its on motion

Authority: 47 U.S.C. 154(i), 154(j) 208, 255

**Subpart A \-- Scope - Who must comply with these rules?**

§ 6.1 The rules in this part apply to:

\(a\) any provider of telecommunications service;

\(b\) any manufacturer of telecommunications equipment or customer
premises equipment; and

\(c\) any telecommunications carrier.

**Subpart B \-- Definitions**.

§ 6.3 Definitions

\(a\) The term *accessible* shall mean that:

\(1\) Input, control, and mechanical functions shall be locatable,
identifiable, and operable in accordance with each of the following,
assessed independently:

\(i\) Operable without vision. Provide at least one mode that does not
require user vision.

\(ii\) Operable with low vision and limited or no hearing. Provide at
least one mode that permits operation by users with visual acuity
between 20/70 and 20/200, without relying on audio output.

\(iii\) Operable with little or no color perception. Provide at least
one mode that does not require user color perception.

\(iv\) Operable without hearing. Provide at least one mode that does not
require user auditory perception.

\(v\) Operable with limited manual dexterity. Provide at least one mode
that does not require user fine motor control or simultaneous actions.

\(vi\) Operable with limited reach and strength. Provide at least one
mode that is operable with user limited reach and strength.

\(vii\) Operable with a Prosthetic Device. Controls shall be operable
without requiring body contact or close body proximity.

\(viii\) Operable without time‑dependent controls. Provide at least one
mode that does not require a response time or allows response time to be
by‑passed or adjusted by the user over a wide range.

\(ix\) Operable without speech. Provide at least one mode that does not
require user speech.

\(x\) Operable with limited cognitive skills. Provide at least one mode
that minimizes the cognitive, memory, language, and learning skills
required of the user.

\(2\) All information necessary to operate and use the product,
including but not limited to, text, static or dynamic images, icons,
labels, sounds, or incidental operating cues, comply with each of the
following, assessed independently:

\(i\) Availability of visual information. Provide visual information
through at least one mode in auditory form.

\(ii\) Availability of visual information for low vision users. Provide
visual information through at least one mode to users with visual acuity
between 20/70 and 20/200 without relying on audio.

\(iii\) Access to moving text. Provide moving text in at least one
static presentation mode at the option of the user.

\(iv\) Availability of auditory information. Provide auditory
information through at least one mode in visual form and, where
appropriate, in tactile form.

\(v\) Availability of auditory information for people who are hard of
hearing. Provide audio or acoustic information, including any auditory
feedback tones that are important for the use of the product, through at
least one mode in enhanced auditory fashion (i.e., increased
amplification, increased signal‑to‑noise ratio, or combination).

\(vi\) Prevention of visually‑induced seizures. Visual displays and
indicators shall minimize visual flicker that might induce seizures in
people with photosensitive epilepsy.

\(vii\) Availability of audio cutoff. Where a product delivers audio
output through an external speaker, provide an industry standard
connector for headphones or personal listening devices (e.g., phone‑like
handset or earcup) which cuts off the speaker(s) when used.

\(viii\) Non‑interference with hearing technologies. Reduce interference
to hearing technologies (including hearing aids, cochlear implants, and
assistive listening devices) to the lowest possible level that allows a
user to utilize the product.

\(ix\) Hearing aid coupling. Where a product delivers output by an audio
transducer which is normally held up to the ear, provide a means for
effective wireless coupling to hearing aids.

\(b\) The term *compatibility* shall mean compatible with peripheral
devices and specialized customer premises equipment commonly used by
individuals with disabilities to achieve accessibility to
telecommunications services, and in compliance with the following
provisions, as applicable:

\(1\) External electronic access to all information and control
mechanisms. Information needed for the operation of products (including
output, alerts, icons, on‑line help, and documentation) shall be
available in a standard electronic text format on a cross‑industry
standard port and 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. The
cross‑industry standard port shall not require manipulation of a
connector by the user.

\(2\) Connection point for external audio processing devices. Products
providing auditory output shall provide the auditory signal at a
standard signal level through an industry standard connector.

\(3\) TTY connectability. 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. It shall also be possible for the user to easily turn any
microphone on and off to allow the user to intermix speech with TTY use.

\(4\) TTY signal compatibility. Products, including those providing
voice communication functionality, shall support use of all
cross‑manufacturer non‑proprietary standard signals used by TTYs.

\(c\) The term *customer premises equipment* shall mean equipment
employed on the premises of a person (other than a carrier) to
originate, route, or terminate telecommunications.

\(d\) The term *disability* shall mean a physical or mental impairment
that substantially limits one or more of the major life activities of an
individual; a record of such an impairment; or being regarded as having
such an impairment.

\(e\) The term *manufacturer* shall mean an entity that makes or
produces a product.

\(f\) The term *peripheral devices* shall mean devices employed in
connection with equipment covered by this part to translate, enhance, or
otherwise transform telecommunications into a form accessible to
individuals with disabilities.

\(g\) The term *readily achievable* shall mean, in general, easily
accomplishable and able to be carried out without much difficulty or
expense. In determining whether an action is readily achievable, factors
to be considered include:

\(1\) the nature and cost of the action needed;

\(2\) the overall financial resources of the manufacturer or service
provider involved in the action (the covered entity); the number of
persons employed by such manufacturer or service provider; the effect on
expenses and resources, or the impact otherwise of such action upon the
operations of the manufacturer or service provider;

\(3\) If applicable, the overall financial resources of the parent of
the entity; the overall size of the business of the parent entity with
respect to the number of its employees; the number, type, and location
of its facilities; and

\(4\) If applicable, the type of operation or operations of the covered
entity, including the composition, structure and functions of the
workforce of such entity; and the geographic separateness,
administrative or fiscal relationship of the covered entity in question
to the parent entity.

\(h\) The term *specialized customer premises equipment* shall mean
customer premise equipment which is commonly used by individuals with
disabilities to achieve access.

\(i\) The term *telecommunications equipment* shall mean equipment,
other than customer premises equipment, used by a carrier to provide
telecommunications services, and includes software integral to such
equipment (including upgrades).

\(j\) The term *telecommunications service* shall mean the offering of
telecommunications for a fee directly to the public, or to such classes
of users as to be effectively available directly to the public,
regardless of the facilities used.

\(k\) The term *usable* shall mean that individuals with disabilities
have access to the full functionality and documentation for the product,
including instructions, product information (including accessible
feature information), documentation, bills and technical support which
is provided to individuals without disabilities.

**Subpart C \-- Obligations - What must covered entities do?**

§ 6.5 General Obligations

\(a\) Obligation of Manufacturers

\(1\) A manufacturer of telecommunications equipment or customer
premises equipment shall ensure that the equipment is designed,
developed and fabricated so that the telecommunications functions of the
equipment are accessible to and usable by individuals with disabilities,
if readily achievable.

\(2\) Whenever the requirements of paragraph (1) are not readily
achievable, the 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.

\(b\) Obligation of Service Providers

\(1\) A provider of a telecommunications service shall ensure that the
service is accessible to and usable by individuals with disabilities, if
readily achievable.

\(2\) Whenever the requirements of paragraph (1) are not readily
achievable, the service provider shall ensure that the service is
compatible with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable.

\(c\) Obligation of Telecommunications Carriers. Each telecommunications
carrier must not install network features, functions, or capabilities
that do not comply with the guidelines and standards established
pursuant to this Part or Part 7.

§ 6.7 Product design, development, and evaluation.

\(a\) Manufacturers and service providers shall evaluate the
accessibility, usability, and compatibility of equipment and services
covered by this part and shall incorporate such evaluation throughout
product design, development, and fabrication, as early and consistently
as possible. Manufacturers and service providers shall identify barriers
to accessibility and usability as part of such a product design and
development process.

\(b\) In developing such a process, manufacturers and service providers
shall consider the following factors, as the manufacturer deems
appropriate:

\(1\) Where market research is undertaken, including individuals with
disabilities in target populations of such research;

\(2\) Where product design, testing, pilot demonstrations, and product
trials are conducted, including individuals with disabilities in such
activities;

\(3\) Working cooperatively with appropriate disability‑related
organizations; and

\(4\) Making reasonable efforts to validate any unproven access
solutions through testing with individuals with disabilities or with
appropriate disability‑related organizations that have established
expertise with individuals with disabilities.

§ 6.9 Information pass through.

Telecommunications equipment and customer premises equipment shall pass
through cross‑manufacturer, non‑proprietary, industry‑standard codes,
translation protocols, formats or other information necessary to provide
telecommunications in an accessible format, if readily achievable. In
particular, signal compression technologies shall not remove information
needed for access or shall restore it upon decompression.

§ 6.11 Information, documentation, and training.

\(a\) Manufacturers and service providers shall ensure access to
information and documentation it provides to its customers, if readily
achievable. Such information and documentation includes user guides,
bills, installation guides for end‑user installable devices, and product
support communications, regarding both the product in general and the
accessibility features of the product. Manufacturers shall take such
other readily achievable steps as necessary including:

\(1\) Providing 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;

\(2\) Providing end‑user product documentation in alternate formats or
alternate modes upon request at no additional charge; and

\(3\) Ensuring usable customer support and technical support in the call
centers and service centers which support their products at no
additional charge.

\(b\) Manufacturers and service providers shall include in general
product information the contact method for obtaining the information
required by paragraph (a) of this section.

\(c\) In developing, or incorporating existing training programs,
manufacturers and service providers, shall consider the following
topics:

\(1\) Accessibility requirements of individuals with disabilities;

\(2\) Means of communicating with individuals with disabilities;

\(3\) Commonly used adaptive technology used with the manufacturer\'s
products;

\(4\) Designing for accessibility; and

\(5\) Solutions for accessibility and compatibility.

**Subpart D \-- Enforcement**

§ 6.15 Generally

\(a\) All manufacturers of telecommunications equipment or customer
premise equipment (CPE) and all providers of telecommunications
services, as defined under this subpart, are subject to the enforcement
provisions specified in the Act and the Commission\'s rules.

\(b\) For purposes of sections 6.15 - 6.23 of this subpart, the term
\"manufacturers\" shall denote manufacturers of telecommunications
equipment or CPE and the term \"providers\" shall denote providers of
telecommunications services.

§ 6.16 Informal or formal complaints

Complaints against manufacturers or providers, as defined under this
subpart, for alleged violations of this subpart may be either informal
or formal.

§ 6.17 Informal complaints; form and content

\(a\) An informal complaint alleging a violation of section 255 of the
Act or this subpart may be transmitted to the Commission by any
reasonable means, e.g., letter, facsimile transmission, telephone
(voice/TRS/TTY), Internet e-mail, ASCII text, audio-cassette recording,
and braille.

\(b\) An informal complaint shall include:

\(1\) The name and address of the complainant;

\(2\) The name and address of the manufacturer or provider against whom
the complaint is made;

\(3\) A full description of the telecommunications equipment or CPE
and/or the telecommunications service about which the complaint is made;

\(4\) The date or dates on which the complainant either purchased,
acquired or used, or attempted to purchase, acquire or use the
telecommunications equipment, CPE or telecommunications service about
which the complaint is being made;

\(5\) A complete statement of the facts, including documentation where
available, supporting the complainant\'s allegation that: such
telecommunications service, or such telecommunications equipment or CPE,
is not accessible to, or usable by, a person with a particular
disability or persons with disabilities within the meaning of this
subpart and section 255 of the Act; or that the defendant has otherwise
failed to comply with the requirements of this subpart;

\(6\) The specific relief or satisfaction sought by the complainant, and

\(7\) The complainant\'s preferred format or method of response to the
complaint by the Commission and defendant (e.g., letter, facsimile
transmission, telephone (voice/TRS/TTY), Internet e-mail, ASCII text,
audio-cassette recording, braille; or some other method that will best
accommodate the complainant\'s disability)

§ 6.18 Procedure; designation of agents for service

\(a\) The Commission shall promptly forward any informal complaint
meeting the requirements of subsection 6.17 of this subpart to each
manufacturer and provider named in or determined by the staff to be
implicated by the complaint. Such manufacturer(s) or provider(s) shall
be called on to satisfy or answer the complaint within the time
specified by the Commission.

\(b\) To ensure prompt and effective service of informal and formal
complaints filed under this subpart, every manufacturer and provider
subject to the requirements of section 255 of the Act and this subpart,
shall designate an agent, and may designate additional agents if it so
chooses, upon whom service may be made of all notices, inquiries,
orders, decisions, and other pronouncements of the Commission in any
matter before the Commission. Such designation shall include, for both
the manufacturer or the provider, a name or department designation,
business address, telephone number, and, if available TTY number,
facsimile number, and Internet e-mail address.

§ 6.19 Answers to informal complaints.

Any manufacturer or provider to whom an informal complaint is directed
by the Commission under this subpart shall file an answer within the
time specified by the Commission. The answer shall:

\(1\) be prepared or formatted in the manner requested by the
complainant pursuant to section 6.17 of this subpart, unless otherwise
permitted by the Commission for good cause shown;

\(2\) describe any actions that the defendant has taken or proposes to
take to satisfy the complaint;

\(3\) advise the complainant and the Commission of the nature of the
defense(s) claimed by the defendant;

\(4\) respond specifically to all material allegations of the complaint;
and

\(5\) provide any other information or materials specified by the
Commission as relevant to its consideration of the complaint.

§ 6.20 Review and disposition of informal complaints

\(a\) Where it appears from the defendant\'s answer, or from other
communications with the parties, that an informal complaint has been
satisfied, the Commission may, in its discretion, consider the informal
complaint closed, without response to the complainant or defendant. In
all other cases, the Commission shall inform the parties of its review
and disposition of a complaint filed under this subpart. Where
practicable, this information (the nature of which is specified in
subsections (b) - (d) of this section, shall be transmitted to the
complainant and defendant in the manner requested by the complainant,
(e.g., letter, facsimile transmission, telephone (voice/TRS/TTY),
Internet e-mail, ASCII text, audio-cassette recording, or braille).

\(b\) In the event the Commission determines, based on a review of the
information provided in the informal complaint and the defendant\'s
answer thereto, that no further action is required by the Commission
with respect to the allegations contained in the informal complaint, the
informal complaint shall be closed and the complainant and defendant
shall be duly informed of the reasons therefor. A complainant
unsatisfied with the defendant\'s response to the informal complaint and
the staff decision to terminate action on the informal complaint may
file a formal complaint with the Commission, as specified in section
6.22 of this subpart.

\(c\) In the event the Commission determines, based on a review of the
information presented in the informal complaint and the defendant\'s
answer thereto, that a material and substantial question remains as to
the defendant\'s compliance with the requirements of this subpart, the
Commission may conduct such further investigation or such further
proceedings as may be necessary to determine the defendant\'s compliance
with the requirements of this subpart and to determine what, if any,
remedial actions and/or sanctions are warranted.

\(d\) In the event that the Commission determines, based on a review of
the information presented in the informal complaint and the defendant\'s
answer thereto, that the defendant has failed to comply with or is
presently not in compliance with the requirements of this subpart, the
Commission may order or prescribe such remedial actions and/or sanctions
as are authorized under the Act and the Commission\'s rules and which
are deemed by the Commission to be appropriate under the facts and
circumstances of the case.

§ 6.21 Formal Complaints, applicability of Sections 1.720 - 1.736 of the
Rules

Formal complaints against a manufacturer or provider, as defined under
this subpart, may be filed in the form and in the manner prescribed
under Sections 1.720 - 1.736 of the Commission\'s rules. Commission
staff may grant waivers of, or exceptions to, particular requirements
under Sections 1.720 - 1.736 for good cause shown; provided, however,
that such waiver authority may not be exercised in a manner that
relieves, or has the effect of relieving, a complainant of the
obligation under sections 1.720 and 1.728 of the rules to allege facts
which, if true, are sufficient to constitute a violation or violations
of section 255 of the Act or this subpart.

§ 6.22 Formal complaints based on unsatisfied informal complaints

A formal complaint filing based on an unsatisfied informal complaint
filed pursuant to subsection 4.16 of this subpart shall be deemed to
relate back to the filing date of the informal complaint if it is: (1)
filed within ninety days from the date that the Commission notifies the
complainant of its disposition of the informal complaint and (2) based
on the same operative facts as those alleged in the informal complaint.

§ 6.23 Actions by the Commission on its on motion

The Commission may on its own motion conduct such inquiries and hold
such proceedings as it may deem necessary to enforce the requirements of
this subpart and Section 255 of the Communications Act. The procedures
to be followed by the Commission shall, unless specifically prescribed
in the Act and the Commission\'s rules, be such as in the opinion of the
Commission will best serve the purposes of such inquiries and
proceedings.

Authority: 47 U.S.C. 154(i), 154(j) 208, 255

**47 C.F.R. Part 7**

**Subpart A \-- Scope - Who must comply with these rules?**

§ 7.1 Who must comply with these rules?

**Subpart B \-- Definitions**

§ 7.3 Definitions

**Subpart C \-- Obligations - What must covered entities do?**

§ 7.5 Manufacturers

§ 7.7 Service Providers

§ 7.9 Product Design , Development and Evaluation

§ 7.11 Information Pass through

§ 7.13 Information, Documentation and Training

**Subpart D \-- Enforcement**

§ 7.15 Generally

§ 7.16 Informal or formal complaints

§ 7.17 Informal complaints; form and content

§ 7.18 Procedure; designation of agents for service

§ 7.19 Answers to informal complaints

§ 7.20 Review and disposition of informal complaints

§ 7.21 Formal Complaints, applicability of Sections 1.720 - 1.736 of the
rules

§ 7.22 Formal complaints based on unsatisfied informal complaints

§ 7.23 Actions by the Commission on its on motion

Authority: 47 U.S.C. Section 1, 154(i), 154(j) 208, 255

**Subpart A \-- Scope - Who must comply with these rules?**

§ 7.1 The rules in this part apply to:

\(a\) any provider of voicemail or interactive menu service;

\(b\) any manufacturer of telecommunications equipment or customer
premises equipment which performs a voicemail or interactive menu
function.

**Subpart B \-- Definitions**.

§ 7.3 Definitions

\(a\) The term *accessible* shall mean that:

\(1\) Input, control, and mechanical functions shall be locatable,
identifiable, and operable in accordance with each of the following,
assessed independently:

\(i\) Operable without vision. Provide at least one mode that does not
require user vision.

\(ii\) Operable with low vision and limited or no hearing. Provide at
least one mode that permits operation by users with visual acuity
between 20/70 and 20/200, without relying on audio output.

\(iii\) Operable with little or no color perception. Provide at least
one mode that does not require user color perception.

\(iv\) Operable without hearing. Provide at least one mode that does not
require user auditory perception.

\(v\) Operable with limited manual dexterity. Provide at least one mode
that does not require user fine motor control or simultaneous actions.

\(vi\) Operable with limited reach and strength. Provide at least one
mode that is operable with user limited reach and strength.

\(vii\) Operable with a Prosthetic Device. Controls shall be operable
without requiring body contact or close body proximity.

\(viii\) Operable without time‑dependent controls. Provide at least one
mode that does not require a response time or allows a response to be
by‑passed or adjusted by the user over a wide range.

\(ix\) Operable without speech. Provide at least one mode that does not
require user speech.

\(x\) Operable with limited cognitive skills. Provide at least one mode
that minimizes the cognitive, memory, language, and learning skills
required of the user.

\(2\) All information necessary to operate and use the product,
including but not limited to, text, static or dynamic images, icons,
labels, sounds, or incidental operating cues, comply with each of the
following, assessed independently:

\(i\) Availability of visual information. Provide visual information
through at least one mode in auditory form.

\(ii\) Availability of visual information for low vision users. Provide
visual information through at least one mode to users with visual acuity
between 20/70 and 20/200 without relying on audio.

\(iii\) Access to moving text. Provide moving text in at least one
static presentation mode at the option of the user.

\(iv\) Availability of auditory information. Provide auditory
information through at least one mode in visual form and, where
appropriate, in tactile form.

\(v\) Availability of auditory information for people who are hard of
hearing. Provide audio or acoustic information, including any auditory
feedback tones that are important for the use of the product, through at
least one mode in enhanced auditory fashion (i.e., increased
amplification, increased signal‑to‑noise ratio, or combination).

\(vi\) Prevention of visually‑induced seizures. Visual displays and
indicators shall minimize visual flicker that might induce seizures in
people with photosensitive epilepsy.

\(vii\) Availability of audio cutoff. Where a product delivers audio
output through an external speaker, provide an industry standard
connector for headphones or personal listening devices (e.g., phone‑like
handset or earcup) which cuts off the speaker(s) when used.

\(viii\) Non‑interference with hearing technologies. Reduce interference
to hearing technologies (including hearing aids, cochlear implants, and
assistive listening devices) to the lowest possible level that allows a
user to utilize the product.

\(ix\) Hearing aid coupling. Where a product delivers output by an audio
transducer which is normally held up to the ear, provide a means for
effective wireless coupling to hearing aids.

\(b\) The term *compatibility* shall mean compatible with peripheral
devices and specialized customer premises equipment commonly used by
individuals with disabilities to achieve accessibility to voicemail and
interactive menus, and in compliance with the following provisions, as
applicable:

\(1\) External electronic access to all information and control
mechanisms. Information needed for the operation of products (including
output, alerts, icons, on‑line help, and documentation) shall be
available in a standard electronic text format on a cross‑industry
standard port and 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. The
cross‑industry standard port shall not require manipulation of a
connector by the user.

\(2\) Connection point for external audio processing devices. Products
providing auditory output shall provide the auditory signal at a
standard signal level through an industry standard connector.

\(3\) TTY connectability. 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. It shall also be possible for the user to easily turn any
microphone on and off to allow the user to intermix speech with TTY use.

\(4\) TTY signal compatibility. Products, including those providing
voice communication functionality, shall support use of all
cross‑manufacturer non‑proprietary standard signals used by TTYs.

\(c\) The term *customer premises equipment* shall mean equipment
employed on the premises of a person (other than a carrier) to
originate, route, or terminate telecommunications.

\(d\) The term *disability* shall mean a physical or mental impairment
that substantially limits one or more of the major life activities of an
individual; a record of such an impairment; or being regarded as having
such an impairment.

\(e\) The term *interactive menu* shall mean a feature that allows a
service provider or operator of CPE to transmit information to a caller
in visual and/or audible format for the purpose of management, control,
or operations of a telecommunications system or service; and/or to
request information from the caller in visual and/or audible format for
the purpose of management, control, or operations of a
telecommunications system or service; and/or to receive information from
the caller in visual and/or audible format in response to a request, for
the purpose of management, control, or operations of a
telecommunications system or service. This feature, however, does not
include the capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications for any purpose other than management, control, or
operations of a telecommunications system or service.

\(f\) The term *manufacturer* shall mean an entity that makes or
produces a product..

\(g\) The term *peripheral devices* shall mean devices employed in
connection with equipment covered by this part to translate, enhance, or
otherwise transform telecommunications into a form accessible to
individuals with disabilities.

\(h\) The term *phone to phone internet protocol telephony* shall mean
real time voice telecommunications established between two units of
customer premises equipment (CPE) attached to the Public Switched
Telephone Network (PSTN), in which only part of the connection between
the two units of CPE is routed through the PSTN, and part through a
public or internet protocol network carrying digitally encoded voice
within internet protocol packets.

\(i\) The term *readily achievable* shall mean, in general, easily
accomplishable and able to be carried out without much difficulty or
expense. In determining whether an action is readily achievable, factors
to be considered include:

\(1\) the nature and cost of the action needed;

\(2\) the overall financial resources of the manufacturer or service
provider involved in the action (the covered entity); the number of
persons employed by such manufacturer or service provider; the effect on
expenses and resources, or the impact otherwise of such action upon the
operations of the manufacturer or service provider;

\(3\) If applicable, the overall financial resources of the parent of
the covered entity; the overall size of the business of the parent of
the covered entity with respect to the number of its employees; the
number, type, and location of its facilities; and

\(4\) If applicable, the type of operation or operations of the covered
entity, including the composition, structure and functions of the
workforce of such entity; and the geographic separateness,
administrative or fiscal relationship of covered entity in question to
the parent entity.

\(j\) The term *specialized customer premises equipment* shall mean
customer premise equipment which is commonly used by individuals with
disabilities to achieve access.

\(k\) The term *telecommunications equipment* shall mean equipment,
other than customer premises equipment, used by a carrier to provide
telecommunications services, and includes software integral to such
equipment (including upgrades).

\(l\) The term *telecommunications service* shall mean the offering of
telecommunications for a fee directly to the public, or to such classes
of users as to be effectively available directly to the public,
regardless of the facilities used.

\(m\) The term *usable* shall mean that individuals with disabilities
have access to the full functionality and documentation for the product,
including instructions, product information (including accessible
feature information), documentation, bills and technical support which
is provided to individuals without disabilities.

\(n\) The term *Voice mail* shall mean the capability of answering calls
and recording incoming messages when a line is busy or does not answer
within a pre-specified amount of time or number of rings; receiving
those messages at a later time; and may also include the ability to
determine the sender and time of transmission without hearing the entire
message; the ability to forward the message to another voice massaging
customer, with and/or without an appended new message; the ability for
the sender to confirm receipt of a message; the ability to send,
receive, and/or store facsimile messages; and possibly other features.

**Subpart C \-- Obligations - What must covered entities do?**

§ 7.5 General Obligations

\(a\) Obligation of Manufacturers

\(1\) A manufacturer of telecommunications equipment or customer
premises equipment covered by this part shall ensure that the equipment
is designed, developed and fabricated so that the voicemail and
interactive menu functions are accessible to and usable by individuals
with disabilities, if readily achievable.

\(2\) Whenever the requirements of paragraph (1) are not readily
achievable, the manufacturer shall ensure that the equipment or software
is compatible with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable.

\(b\) Obligation of Service Providers

\(1\) A provider of voicemail or interactive menu shall ensure that the
service is accessible to and usable by individuals with disabilities, if
readily achievable.

\(2\) Whenever the requirements of paragraph (1) are not readily
achievable, the service provider shall ensure that the service is
compatible with existing peripheral devices or specialized customer
premises equipment commonly used by individuals with disabilities to
achieve access, if readily achievable.

§ 7.7 Product design, development, and evaluation.

\(a\) Manufacturers and service providers shall evaluate the
accessibility, usability, and compatibility of equipment and services
covered by this part and shall incorporate such evaluation throughout
product design, development, and fabrication, as early and consistently
as possible. Manufacturers and service providers shall identify barriers
to accessibility and usability as part of such a product design and
development process.

\(b\) In developing such a process, manufacturers and service providers
shall consider the following factors, as the manufacturer deems
appropriate:

\(1\) Where market research is undertaken, including individuals with
disabilities in target populations of such research;

\(2\) Where product design, testing, pilot demonstrations, and product
trials are conducted, including individuals with disabilities in such
activities;

\(3\) Working cooperatively with appropriate disability‑related
organizations; and

\(4\) Making reasonable efforts to validate any unproven access
solutions through testing with individuals with disabilities or with
appropriate disability‑related organizations that have established
expertise with individuals with disabilities.

§ 7.9 Information pass through.

Telecommunications equipment and customer premises equipment shall pass
through cross‑manufacturer, non‑proprietary, industry‑standard codes,
translation protocols, formats or other information necessary to provide
telecommunications in an accessible format, if readily achievable. In
particular, signal compression technologies shall not remove information
needed for access or shall restore it upon decompression.

§ 7.11 Information, documentation, and training.

\(a\) Manufacturers and service providers shall ensure access to
information and documentation it provides to its customers, if readily
achievable.

Such information and documentation includes user guides, bills,
installation guides for end‑user installable devices, and product
support communications, regarding both the product in general and the
accessibility features of the product. Manufacturers shall take such
other readily achievable steps as necessary including:

\(1\) Providing 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;

\(2\) Providing end‑user product documentation in alternate formats or
alternate modes upon request at no additional charge; and

\(3\) Ensuring usable customer support and technical support in the call
centers and service centers which support their products at no
additional charge.

\(b\) Manufacturers and service providers shall include in general
product information the contact method for obtaining the information
required by paragraph (a) of this section.

\(c\) In developing, or incorporating existing training programs,
manufacturers and service providers shall consider the following topics:

\(1\) Accessibility requirements of individuals with disabilities;

\(2\) Means of communicating with individuals with disabilities;

\(3\) Commonly used adaptive technology used with the manufacturer\'s
products;

\(4\) Designing for accessibility; and

\(5\) Solutions for accessibility and compatibility.

**Subpart D \-- Enforcement**

§ 7.15 Generally

\(a\) For purposes of sections 7.15 - 7.23 of this subpart, the term
\"manufacturers\" shall denote any manufacturer of telecommunications
equipment or customer premises equipment which performs a voicemail or
interactive menu function.

\(b\) All manufacturers of telecommunications equipment or customer
premise equipment (CPE) and all providers of voicemail and interactive
menu services, as defined under this subpart, are subject to the
enforcement provisions specified in the Act and the Commission\'s rules.

\(c\) The term \"providers\" shall denote any provider of voicemail or
interactive menu service.

§ 7.16 Informal or formal complaints

Complaints against manufacturers or providers, as defined under this
subpart, for alleged violations of this subpart may be either informal
or formal.

§ 7.17 Informal complaints; form and content

\(a\) An informal complaint alleging a violation of section 255 of the
Act or this subpart may be transmitted to the Commission by any
reasonable means, e.g., letter, facsimile transmission, telephone
(voice/TRS/TTY), Internet e-mail, ASCII text, Internet e-mail,
audio-cassette recording, and braille.

\(b\) An informal complaint shall include:

\(1\) The name and address of the complainant;

\(2\) The name and address of the manufacturer or provider against whom
the complaint is made;

\(3\) A full description of the telecommunications equipment or CPE
and/or the telecommunications service about which the complaint is made;

\(4\) The date or dates on which the complainant either purchased,
acquired or used, or attempted to purchase, acquire or use the
telecommunications equipment, CPE or telecommunications service about
which the complaint is being made;

\(5\) A complete statement of the facts, including documentation where
available, supporting the complainant\'s allegation that: such
telecommunications service, or such telecommunications equipment or CPE,
is not accessible to, or usable by, a person with a particular
disability or persons with disabilities within the meaning of this
subpart and section 255 of the Act; or that the defendant has otherwise
failed to comply with the requirements of this subpart.

\(6\) The specific relief or satisfaction sought by the complainant, and

\(7\) The complainant\'s preferred format or method of response to the
complaint by the Commission and defendant (e.g., letter, facsimile
transmission, telephone (voice/TRS/TTY), Internet e-mail, ASCII text,
audio-cassette recording, braille; or some other method that will best
accommodate the complainant\'s disability)

§ 7.18 Procedure; designation of agents for service

\(a\) The Commission shall promptly forward any informal complaint
meeting the requirements of subsection 4.17 of this subpart to each
manufacturer and provider named in or determined by the staff to be
implicated by the complaint. Such manufacturer(s) or provider(s) shall
be called on to satisfy or answer the complaint within the time
specified by the Commission.

\(b\) To ensure prompt and effective service of informal and formal
complaints filed under this subpart, every manufacturer and provider
subject to the requirements of section 255 of the Act and this subpart,
shall designate an agent, and may designate additional agents if it so
chooses, upon whom service may be made of all notices, inquiries,
orders, decisions, and other pronouncements of the Commission in any
matter before the Commission. Such designation shall include, for both
the manufacturer or the provider, a name or department designation,
business address, telephone number, and, if available TTY number,
facsimile number, and Internet e-mail address.

§ 7.19 Answers to informal complaints.

Any manufacturer or provider to whom an informal complaint is directed
by the Commission under this subpart shall file an answer within the
time specified by the Commission. The answer shall:

\(1\) be prepared or formatted in the manner requested by the
complainant pursuant to section 7.17 of this subpart, unless otherwise
permitted by the Commission for good cause shown;

\(2\) describe any actions that the defendant has taken or proposes to
take to satisfy the complaint;

\(3\) advise the complainant and the Commission of the nature of the
defense(s) claimed by the defendant;

\(4\) respond specifically to all material allegations of the complaint;
and

\(5\) provide any other information or materials specified by the
Commission as relevant to its consideration of the complaint.

§ 7.20 Review and disposition of informal complaints

\(a\) Where it appears from the defendant\'s answer, or from other
communications with the parties, that an informal complaint has been
satisfied, the Commission may, in its discretion, consider the informal
complaint closed, without response to the complainant or defendant. In
all other cases, the Commission shall inform the parties of its review
and disposition of a complaint filed under this subpart. Where
practicable, this information (the nature of which is specified in
subsections (b) - (d) of this section, shall be transmitted to the
complainant and defendant in the manner requested by the complainant,
(e.g., letter, facsimile transmission, telephone (voice/TRS/TTY),
Internet e-mail, ASCII text, audio-cassette recording, or braille).

\(b\) In the event the Commission determines, based on a review of the
information provided in the informal complaint and the defendant\'s
answer thereto, that no further action is required by the Commission
with respect to the allegations contained in the informal complaint, the
informal complaint shall be closed and the complainant and defendant
shall be duly informed of the reasons therefor. A complainant
unsatisfied with the defendant\'s response to the informal complaint and
the staff decision to terminate action on the informal complaint may
file a formal complaint with the Commission, as specified in section
7.22 of this subpart.

\(c\) In the event the Commission determines, based on a review of the
information presented in the informal complaint and the defendant\'s
answer thereto, that a material and substantial question remains as to
the defendant\'s compliance with the requirements of this subpart, the
Commission may conduct such further investigation or such further
proceedings as may be necessary to determine the defendant\'s compliance
with the requirements of this subpart and to determine what, if any,
remedial actions and/or sanctions are warranted.

\(d\) In the event that the Commission determines, based on a review of
the information presented in the informal complaint and the defendant\'s
answer thereto, that the defendant has failed to comply with or is
presently not in compliance with the requirements of this subpart, the
Commission may order or prescribe such remedial actions and/or sanctions
as are authorized under the Act and the Commission\'s rules and which
are deemed by the Commission to be appropriate under the facts and
circumstances of the case.

§ 7.21 Formal Complaints, applicability of Sections 1.720 - 1.736 of the
Rules

Formal complaints against a manufacturer or provider, as defined under
this subpart, may be filed in the form and in the manner prescribed
under Sections 1.720 - 1.736 of the Commission\'s rules. Commission
staff may grant waivers of, or exceptions to, particular requirements
under Sections 1.720 - 1.736 for good cause shown; provided, however,
that such waiver authority may not be exercised in a manner that
relieves, or has the effect of relieving, a complainant of the
obligation under sections 1.720 and 1.728 of the rules to allege facts
which, if true, are sufficient to constitute a violation or violations
of section 255 of the Act or this subpart.

§ 7.22 Formal complaints based on unsatisfied informal complaints

A formal complaint filing based on an unsatisfied informal complaint
filed pursuant to subsection 4.16 of this subpart shall be deemed to
relate back to the filing date of the informal complaint if it is: (1)
filed within ninety days from the date that the Commission notifies the
complainant of its disposition of the informal complaint and (2) based
on the same operative facts as those alleged in the informal complaint.

§ 7.23 Actions by the Commission on its on motion

The Commission may on its own motion conduct such inquiries and hold
such proceedings as it may deem necessary to enforce the requirements of
this subpart and Section 255 of the Communications Act. The procedures
to be followed by the Commission shall, unless specifically prescribed
in the Act and the Commission\'s rules, be such as in the opinion of the
Commission will best serve the purposes of such inquiries and
proceedings.

**(2) §1.1202(d)(2) of Title 47 of the Code of Federal Regulations
(C.F.R.) is amended to read as follows:**

\(2\) Any person who files a complaint which shows that the complainant
has served it on the subject of the complaint or which is a formal
complaint under 47 U.S.C. §208 and §1.721 or 47 U.S.C. §255 and either
§6.17 or §7.17, and the person who is the subject of such a complaint
that shows service or is a formal complaint under 47 U.S.C. §208 and
§1.721 or 47 U.S.C. §255 and either §6.17 and §7.17.

**(3) §1.1204(b)(5) of Part 1 of Title 47 of the Code of Federal
Regulations (C.F.R.) is amended to read as follows:**

\(5\) An informal complaint proceeding under 47 U.S.C. §208 and §1.717
or 47 U.S.C. §255 and either §6.17 or §7.17; and Authority: 47 U.S.C.
Section 1, 154(i), 154(j) 208, 255

**APPENDIX C**

**LIST OF COMMENTERS**

**Comments**

Abols, Bonnie (Warwick RI) (Ocean State Center for Independent Living)

Access Living of Metropolitan Chicago

Access to Independence and Mobility \[AIM\]

AirTouch Communications, Inc. \[AirTouch\]

American Council of the Blind \[ACB\]

American Public Communications Council \[APCC\]

Ameritech

Andrews, Joan (Punta Gorda FL)

Architectural and Transportation Barriers Compliance Board \[Access
Board\]

Association of Access Engineering Specialists \[AAES\]

AT&T Corp. \[AT&T\]

Bechtel, Gene A. (Washington DC)

Bell Atlantic

BellSouth Corporation \[BellSouth\]

Blackseth, Kim

Born, Deanne (Farmington CT)

Brightpoint, Inc. \[Brightpoint\]

Business Software Alliance \[BSA\]

Butler, Mary M. (Lorain OH) (Center for Independent Living)

California Foundation for Independent Living Centers \[CFILC\]

Carpenter, Patricia

Cellular Phone Taskforce \[Taskforce\]

Cellular Telecommunications Industry Association \[CTIA\]

Center for Disability Rights \[CDC\]

Coalition of Citizens with Disabilities in Illinois \[CCDI\]

Computer and Communications Industry Association \[CCIA\]

Consumer Electronics Manufacturers Association \[CEMA\]

CONXUS Communications, Inc. \[CONXUS\]

Coombs, Elizabeth J. (Banning CA)

CPB/WGBH National Center for Accessible Media

DC-SHHH Group

DeVilbiss, George (Falls Church VA)

Dietrich, Nancy A. (Columbia IL)

Eleoff, Susan (Ocean State Center for Independent Living, Warwick RI)

Ericsson Inc. \[Ericsson\]

Figler, Kevin

Garretson, Mervin D. (Bethany Beach DE) (Delaware Association of the
Deaf)

Geeslin, David

Governor\'s Council on Disability, Missouri Dept of Labor and Ind Rel
\[MoGCD\]

Griffith, Robert E. (Springfield IL) (SHHH, Central Illinois Chapter)

GTE

Hernandez, Carmen

Hoffman, Lisa

Hoshauer, Lillian (Deaf-Hearing Communication Centre, Inc., Holmes PA)

Huber, Theodore G. (South Jacksonville IL)

Illinois Deaf and Hard of Hearing Commission

Illinois Department of Human Services \[IDHS\]

Information Technology Industry Council \[ITI\]

Ireland, Joan P. (San Diego CA)

Ismail, Massa Jr.

Janes, Malisa W. (Houston TX)

Justice for All

Kailes, June Isaacson (Los Angeles CA)

Kear, Gail B. (Bloomington IL) (Living Independence for Everyone)

LaPointe, Leo A. (Worthington OH)

Learning Disabilities Association of America \[LDA\]

Lucent Technologies \[Lucent\]

Maroney, Donald E. (Loveland CO)

Mechem, Kirke (San Francisco CA)

Missouri Assistive Technology Council and Project

Mitchell, Laura Remson (CA)

Motorola, Inc. \[Motorola\]

Multimedia Telecommunications Association \[MMTA\]

Mulvany, Dana (Campbell CA)

National Association of the Deaf \[NAD\]

National Council on Disability \[NCD\]

NC Assistive Technology Project

Nelson, David J. (Washington DC)

Nextel Communications, Inc. \[Nextel\]

Northern Telecom Inc. \[Nortel\]

Oklahoma Department of Rehabilitation Services \[OKDRS\]

Perrin, Shelly

Personal Communications Industry Association \[PCIA\]

Philips Consumer Communications LP \[Philips\]

Polotto, John

Powell, Michael

President\'s Committee on Employment of People with Disabilities
\[PCEPD\]

Radtke, Richard

Rank, Arvilla (Landover Hills MD) (National Catholic Office for the
Deaf)

Rochester Institute of Technology; National Technical Institute for the
Deaf \[RIT\]

SBC Communications Inc. \[SBC\]

Self Help for Hard of Hearing People, Inc. \[SHHH\]

Sergeant, Randy (Scottsdale AZ)

Shell, Reginald D. (Brooklyn NY) (Community Options, Inc.)

Siemens Business Communication Systems, Inc.

Sosenka, Lana (Austin TX) (Texas State Independent Living Council)

Storm, Maia Justine (Lansing MI) (Michigan Protection and Advocacy
Service)

Telecommunications for the Deaf, Inc. \[TDI\]

Telecommunications Industry Association \[TIA\]

The Advocacy Center (New Orleans LA)

The Lighthouse Inc. (New York NY) \[Lighthouse\]

The Long Island Center for Independent Living, Inc. (Lavation NY)
\[LICIL\]

Uniden America Corporation \[Uniden\]

United Cerebral Palsy Associations \[UCPA\]

United States Telephone Association \[USTA\]

Universal Service Alliance \[USA\]

Valentine, Patrick

Vickery, Ronald H. (Rome GA)

Vickery, Ronald H. (erratum)

Wilson, Sara Blair (Pearl River NY)

Wisconsin Ass\'n of the Deaf Telecommunications Advocacy Network
\[WI-TAN\]

World Institute on Disability (Oakland CA) \[WID\]

\*\*NOTE: Center for Disability Rights comments contain separate
comments of Patricia Carpenter, Kevin Figler, Carmen Hernandez, Lisa
Hoffman, Ismael Massa Jr. & Shelly Perrin.

**Late-Filed Comments:**

American Foundation for the Blind \[AFB\]

California Public Utilities Commission

Campaign for Telecommunications Access

Center for Independent Living of Northeastern Minnesota \[CILNM\]

Commonwealth of the Northern Mariana Islands \[CNMI\]

Lake County Center for Independent Living (Mundelein IL)

LaPointe, Leo A. (Worthington OH)

Office of Management and Budget \[OMB\]

Oklahoma Assistive Technology Project \[Ok-ATP\]

Schmittroth, Nicholas R. III

Services for Independent Living (Columbia MO) \[SIL\]

Trace Research & Development Center, University of Wisconsin-Madison
\[Trace\]

Tucker, Barbara J. (Banning CA)

Welter, Carrie (Augusta GA)

Witkin, Martin J. (Evanston IL)

sushom@toad.net

**Replies**

Alliance for Public Technology \[APT\]

American Foundation for the Blind \[AFB\]

Ameritech

Arch Communications Group, Inc. \[Arch\]

AT&T

Blackburn, Kathy

Business Software Alliance \[BSA\]

Cellular Telecommunications Industry Association \[CTIA\]

Consumer Electronics Manufacturers Association \[CEMA\]

Council of Organizational Representatives \... Deaf \[COR\]

GTE

Information Technology Industry Council \[ITI\]

Institute on Disabilities

League for the Hard of Hearing

Lucent Technologies Inc. \[Lucent\]

Microsoft Corporation \[Microsoft\]

Motorola, Inc. \[Motorola\]

Multimedia Telecommunications Association \[MTA\]

National Association of the Deaf / Consumer Action Network \[NAD/CAN\]

National Council of State Agencies for the Blind\... \[NCSAB\]

National Council on Disability \[NCD\]

Nextel Communications, Inc. \[Nextel\]

Nokia Inc. \[Nokia\]

Personal Communications Industry Association \[PCIA\]

Redcom Laboratories Incorporated \[Redcom\]

SBC Communications Inc. \[SBC\]

Self Help for Hard of Hearing People, Inc. + Bechtel \[SHHH/Bechtel\]

Sprint Corporation \[Sprint\]

Tandy Corporation \[Tandy\]

Telecommunications for the Deaf, Inc. \[TDI\]

Telecommunications Industry Association \[TIA\]

Uniden America Corporation \[Uniden\]

United States Telephone Association \[USTA\]

World Institute on Disability \[WID\]

**Late-Filed Replies:**

LaPointe, Leo A.

Campaign for Telecommunications Access

Trace R&D Center \[Trace\]

**APPENDIX D**

**Final Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (RFA),[^351] an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of
Proposed Rulemaking (*Notice*) issued in this proceeding.[^352] The
Commission sought written public comments on the proposals included in
the *Notice*, including comment on the IRFA, which set forth the
possible significant economic impact on small entities of the policies
and rules proposed in the *Notice*. This Final Regulatory Flexibility
Analysis (FRFA) accompanies the present *Report and Order* and conforms
to the RFA.[^353]

**A. Need for, and Objectives of, the *Report and Order* and Rules
Adopted Therein**

This rulemaking proceeding was initiated to propose means of
implementing and enforcing section 255 of the Communications Act, as
added by the Telecommunications Act of 1996.[^354] section 255 is
intended to ensure that telecommunications equipment and services will
be accessible to persons with disabilities, if such accessibility is
readily achievable. If accessibility is not readily achievable, then the
telecommunications equipment and services are to be made compatible with
specialized customer premises equipment (CPE) or peripheral devices to
the extent that so doing is readily achievable.

Given the fundamental role that telecommunications has come to play in
today\'s world, we believe that the provisions of section 255 represent
the most significant governmental action for people with disabilities
since the passage of the Americans with Disabilities Act of 1990
(ADA).[^355] Inability to use telecommunications equipment and services
can be life‑threatening in emergency situations, can severely limit
educational and employment opportunities, and can otherwise interfere
with full participation in business, family, social, and other
activities. We must do all we can to ensure that people with
disabilities are not left behind in the telecommunications revolution
and consequently isolated from contemporary life.

In the *Notice*, we set forth proposals to implement and enforce the
requirement in section 255 that telecommunications offerings be
accessible to the extent readily achievable. We proposed a
\`\`fast-track\'\' process for resolving accessibility complaints
informally and quickly and more conventional remedial processes for
cases where fast-track solutions are not possible, or where there
appears to be an underlying noncompliance with section 255. We noted
that, in either case, we would look favorably upon demonstrations by
companies that they had considered accessibility throughout the
development of telecommunications products when assessing whether
service providers and equipment manufacturers have met their
accessibility obligations under section 255. In the accompanying *Report
and Order* we have made the following decisions.

\(1\) We have incorporated most of the Access Board guidelines into our
rules with two minor exceptions and have applied them to the services
covered;

\(2\) We have asserted our ancillary jurisdiction to extend Section
255\'s coverage to voicemail and interactive menu services and service
providers and equipment used to provide these services.

\(3\) We have clarified that Section 255 applies to each piece of
equipment and all service offerings, but have noted that the industry
has the discretion to determine which accessibility features should be
incorporated in all products and which ones can be less than universally
deployed, so long as all that is readily achievable is done; and

\(4\) We have adopted enforcement rules patterned after our
long-standing rules governing complaints filed against common carriers
under Section 208 of the Act, with certain modifications we have
concluded are necessary to fulfill the goals of Section 255.

**B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA**

We noted in the IRFA that the resources of the regulated entity are
taken into account in the determination of whether accessibility of a
given product or service is readily achievable and that there is thus an
inherent consideration of the financial burden on the entity in its
obligation to provide accessibility: if not readily achievable, the
obligation is removed.[^356] Nevertheless, we acknowledged that all
regulated entities would be required to assess whether providing
accessibility is readily achievable and that an important issue for RFA
purposes is thus not the absolute cost of providing accessibility, but,
rather, the extent to which the cost of performing an assessment as to
whether an accessibility feature is readily achievable is unduly
burdensome on small entities.

We received four comments specifically captioned as being in response to
the IRFA. In its comments to the IRFA, CEMA states that \"the Commission
must take all steps necessary to ensure that any Section 255
implementation rules are not unduly burdensome to small manufacturers;
it should also adopt those rules that serve to minimize the economic
impact of this rulemaking on small entities.\"[^357] These steps are
detailed in Section E of this IRFA, *infra*. Lucent\'s comments question
the apparent conflict between Section 1193.43 of the Access Board\'s
Guidelines and Section 68.317 of the Commission\'s rules dealing with
telephone volume control standards, especially in view of the
Commission\'s tentative conclusion in the *Notice* that the Access
Board\'s Guidelines do not overlap, duplicate or conflict with existing
Commission Rules.[^358] Motorola comments that the Fast Track process
imposes a substantial information collection requirement on
manufacturers at each decisional point in the product design,
development and fabrication process.[^359] Both Motorola[^360] and
TIA[^361]contend that the cost of this information collection
requirement should be considered as part of the readily achievable
analysis. As discussed, *infra*, we believe that the information
collection requirement on manufacturers has been minimized by the
implementation of informal complaint procedures.[^362]

**C. Description and Estimate of the Number of Small Entities to Which
the Rules Adopted in the *Report and Order* Will Apply**

The RFA directs agencies to provide a description and, where feasible,
an estimate of the number of small entities that may be affected by the
rules adopted in the accompanying *Report and Order*. The RFA generally
defines the term \`\`small entity\'\' as having the same meaning as the
terms \`\`small business,\'\' \`\`small organization,\'\' and \`\`small
governmental jurisdiction.\'\'[^363] In addition, the term \`\`small
business\'\' has the same meaning as the term \`\`small business
concern\'\' under the Small Business Act.[^364] A small business concern
is one that: (1) is independently owned and operated; (2) is not
dominant in its field of operation; and (3) satisfies any additional
criteria established by the Small Business Administration (SBA).[^365] A
small organization is generally \`\`any not‑for‑profit enterprise which
is independently owned and operated and is not dominant in its
field.\'\'[^366] Nationwide, as of 1992, there were approximately
275,801 small organizations.[^367]

The rules adopted in the *Report and Order* will apply to manufacturers
of telecommunications equipment and CPE to the extent it provides
telecommunications, voicemail and interactive menu functions. In
addition, telecommunications service providers of many types will be
affected, including wireline common carriers and commercial mobile radio
service (CMRS) providers.[^368] To the extent that software performs a
telecommunication function, software developers or manufacturers may
also be affected.[^369] Below, we describe and estimate the number of
small entity licensees and other covered entities that may be affected
by the rules adopted in the *Report and Order*.[^370]

**1. Equipment Manufacturers**

The following chart contains estimated numbers of domestic entities that
may be affected by the rules promulgated in this proceeding. It is
based, in part, on firm counts that reflect product lines not involved
in telecommunications, as defined by the 1996 Act, and reflects
overlapping firm counts and firm counts that have been deliberately
commingled to avoid disclosing the value of individual firms\' equipment
shipments for the reporting period.[^371]

+----------------------+-----------------------+----------------------+
| **PRODUCT**          | **PRODUCT**           | **ESTIMATED**        |
|                      |                       |                      |
| **CLASS/CODE**       | **DESCRIPTION**       | **FIRM COUNT**       |
+======================+=======================+======================+
| 3571[^372]           | Personal computer,    | 546                  |
|                      | terminals and         |                      |
|                      | workstations          |                      |
+----------------------+-----------------------+----------------------+
| 3661[^373]           | Telephone and         | 540                  |
|                      | telegraph equipment   |                      |
+----------------------+-----------------------+----------------------+
| 3663[^374]           | Communications        | 938                  |
|                      | systems and equipment |                      |
+----------------------+-----------------------+----------------------+
| 3577[^375]           | Computer peripheral   | 259                  |
|                      | equipment, not        |                      |
|                      | elsewhere classified  |                      |
+----------------------+-----------------------+----------------------+
| 3577[^376]           | Parts and             | 72                   |
|                      | subassemblies for     |                      |
|                      | computer peripherals  |                      |
|                      | and input/output      |                      |
|                      | equipment             |                      |
+----------------------+-----------------------+----------------------+

**2. Software Manufacturers**

Due to the convergence between telecommunications equipment,
telecommunications services and the software used to control and
regulate each, software developers and producers may be viewed as
regulated entities under section 255. This is particularly true of
software that is used to make traditional telecommunications devices
operate with CPE designed for specific disabilities.[^377] We sought
comment in the IRFA on the impact of our proposed rules on the small
businesses within this industrial category. No comments on this issue
were forthcoming. The SBA has two small business size standard to be
used for software publishers: (1) entities that design, develop or
produce prepackaged software have a size standard of \$18 million in
average annual revenues;[^378] and, (2) entities that sell existing,
off-the-shelf prepackaged software as a finished product have a size
standard of 500 employees or less.[^379] [^380] According to the
Software Information Industry Association (SIIA), there are
approximately 8,000 publishers of packaged software. Of these 8,000, we
estimate that only about 500 are involved in the production of software
specific to telecommunications. We do not have information on the number
of these publishers that are not independently owned and operated, or
have more than 1,500 employees, and thus are unable at this time to
estimate with greater precision the number of software publishers that
would qualify as small business concerns under the SBA definition.
Consequently, we estimate that there are equal to or fewer than 500
telecommunications software publishers that will be affected by Section
255.

**3. Telecommunications Service Entities**

**a. Introduction**

The United States Bureau of the Census reports that, at the end of 1992,
there were 3,497 firms engaged in providing telephone services for at
least one year.[^381] This number contains a variety of different
categories of carriers, including LECs, IXCs, CAPs, cellular carriers,
other mobile service carriers, operator service providers, pay telephone
providers, personal communications services (PCS) providers, covered
specialized mobile radio (SMR) providers, and resellers. In the IRFA, we
noted that some of those 3,497 telephone service firms may not qualify
as small entities or small incumbent LECs because they are not
\`\`independently owned and operated.\'\' As an example, we cited a PCS
provider that is affiliated with an IXC having more than 1,500 employees
and tentatively concluded that fewer than 3,497 telephone service firms
are small entity telephone service firms or small incumbent LECs.

According to the Telecommunications Industry Revenue: Telecommunications
Relay Service Fund Worksheet Data (*TRS Worksheet*), there are 3,604
interstate carriers.[^382] These carriers include, *inter alia*, LECs,
wireline carriers and service providers, IXCs, CAPs, operator service
providers, pay telephone providers, providers of telephone toll service,
providers of telephone exchange service, and resellers. In the IRFA we
sought information regarding how many providers of telecommunications
services, existing and potential, are considered small businesses. We
did not receive comment on this issue, so we conclude that this data is
acceptable to the industry. We noted that the SBA has defined a small
business for Radiotelephone Communications (SIC 4812) and Telephone
Communications, Except Radiotelephone (SIC 4813), as a small entities
having no more than 1,500 employees, and sought comment as to whether
this definition is appropriate for our purposes here. Additionally, we
requested that each commenter identify whether it is a small business
under this definition and, if a subsidiary of another entity, provide
this information for both itself and its parent corporation or entity.

**b. Wireline Carriers and Service Providers**

The Census Bureau reports that there were 2,321 such telephone companies
in operation for at least one year at the end of 1992.[^383] According
to the SBA definition, a small business telephone company other than a
radiotelephone company is one employing no more than 1,500 persons. All
but 26 of the 2,321 non‑radiotelephone companies listed by the Census
Bureau were reported to have fewer than 1,000 employees.

Thus, even if all 26 of those companies had more than 1,500 employees,
there would still be 2,295 non‑radiotelephone companies that might
qualify as small entities or small incumbent LECs. We noted in the IRFA
that we did not have information regarding which of these carriers are
not independently owned and operated, and thus were unable to estimate
with greater precision the number of wireline carriers and service
providers that would qualify as small business concerns under the SBA
definition. Consequently, we estimated that there are fewer than 2,295
small telephone communications companies other than radiotelephone
companies.

**(1) Incumbent Local Exchange Carriers**

Neither the Commission nor the SBA has developed a definition for small
providers of local exchange services. The closest applicable definition
under the SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies.[^384] The most reliable source of
information of which we are aware regarding the number of LECs
nationwide appears to be the data that we collect annually in connection
with the *TRS Worksheet*. According to our most recent data, 1,410
companies reported that they were engaged in the provision of local
exchange services.[^385] Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 em­ploy­ees, we are unable at this time to estimate with greater
precision the number of LECs that would qualify as small business
concerns under the SBA definition. Consequently, we esti­mate that there
are equal to or fewer than 1,410 small incumbent LECs. Because the small
incumbent LECs subject to these rules are either dominant in their field
of operations or are not independently owned and operated, they would be
excluded from the definition of \"small entity\'\' and \`\`small
business con­cern,\'\' consistent with our prior prac­tice.[^386]

**(2) Interexchange Carriers**

Neither the Commission nor SBA has developed a definition of small
entities specifically applicable to providers of interexchange services.
The closest applicable definition under the SBA rules is for telephone
communications companies except radiotelephone (wireless) companies. The
most reliable source of information regarding the number of IXCs
nationwide is the data that we collect annually in connection with the
*TRS Worksheet*. According to our most recent data, 151 companies
reported that they were engaged in the provision of interexchange
services.[^387] We do not have information on the number of these
carriers that are not independently owned and operated, or have more
than 1,500 employees, and thus we are unable at this time to estimate
with greater precision the number of IXCs that would qualify as small
business concerns under the SBA definition. Consequently, we estimate
that there are equal to or fewer than 151 small entity IXCs.

**(3) Competitive Access Providers and** **Competitive Local Exchange
Carriers**

Neither the Commission nor SBA has developed a definition of small
entities specifically applicable to providers of competitive access
services (CAPs) and competitive local exchange carriers (CLECs). The
closest applicable definition under the SBA rules is for telephone
communications companies except radiotelephone (wireless) companies. The
most reliable source of information regarding the number of CAPs and
CLECs nationwide is the data that we collect annually in connection with
the *TRS Worksheet*. According to our most recent data, 129 companies
reported that they were engaged in the provision of competitive access
services.[^388] We do not have information on the number of these
carriers that are not independently owned and operated, or have more
than 1,500 employees, and thus are unable at this time to estimate with
greater precision the number of CAPs and CLECs that would qualify as
small business concerns under the SBA definition. Consequently, we
estimate that there are equal to or fewer than 129 small CAPs and CLECs.

**(4) Operator Service Providers**

Carriers engaged in providing interstate operator services from
aggregator locations (OSPs) currently are required under section
226(b)(1)(D) of the Communications Act of 1934, as amended, 47 U.S.C. S
226, to ensure that each aggregator for which such provider is the
presubscribed OSP is in compliance with the posting required of such
aggregator. OSPs also are required under section 226 to file and
maintain informational tariffs at the Commission. The number of such
tariffs on file appears to be the most reliable source of information of
which we are aware regarding the number of OSPs nationwide, including
small business concerns, that will be affected by decisions and rules
adopted in this Second Report and Order. As of July 12, 1999,
approximately 760 carriers had informational tariffs on file at the
Commission. The SBA has developed a definition of small entities for
telecommunications companies other than radiotelephone (wireless)
companies (Telephone Communications, Except Radiotelephone). According
to the SBA\'s definition, a small business telephone company other than
a radiotelephone company is one employing no more than 1,500
persons.[^389] Although it seems certain that some of these entities are
not independently owned and operated, or have more than 1,500 employees,
we are unable at this time to estimate with greater precision the number
of OSPs that would qualify as small business concerns under SBA\'s
definition. Consequently, we estimate that there are fewer than 760
small entity OSPs that may be affected by the decisions and rules
adopted in this *Report and Order*.[^390]

**(5) Pay Telephone Providers**

Neither the Commission nor SBA has developed a definition of small
entities specifically applicable to pay telephone providers. The closest
applicable definition under SBA rules is for telephone communications
companies except radiotelephone (wireless) companies. The most reliable
source of information regarding the number of pay telephone providers
nationwide is the data that we collect annually in connection with the
*TRS Worksheet*. According to our most recent data, 509 companies
reported that they were engaged in the provision of pay telephone
services.[^391] We do not have information on the number of these
carriers that are not independently owned and operated, or have more
than 1,500 employees, and thus are unable at this time to estimate with
greater precision the number of pay telephone providers that would
qualify as small business concerns under SBA definition. Consequently,
we estimate that there are equal to or fewer than 509 small pay
telephone providers.

**(6) Resellers (Including Debit Card Providers)**

Neither the Commission nor SBA has developed a definition of small
entities specifically applicable to resellers. The closest applicable
SBA definition for a reseller is a telephone communications company
except radiotelephone (wireless) companies. The most reliable source of
information regarding the number of resellers nationwide is the data
that the Commission collects annually in connection with the *TRS
Worksheet*. According to our most recent data, 369 companies report that
they are engaged in the resale of telephone service.[^392] We do not
have information on the number of these carriers that are not
independently owned and operated, or have more than 1,500 employees, and
thus we are unable at this time to estimate with greater precision the
number of resellers that would qualify as small entities or small
incumbent LEC concerns under the SBA definition. Consequently, we
estimate that there are equal to or fewer than 369 small entity
resellers.

**(7) 800 and 800-Like Service Subscribers.**[^393]

Neither the Commission nor the SBA has developed a definition of small
entities specifically applicable to 800 and 800-like service (\"toll
free\") subscribers. The most reliable source of information regarding
the number of these service subscribers appears to be data the
Commission collects on the 800, 888, and 877 numbers in use.[^394]
According to our most recent data, at the end of January 1999, the
number of 800 numbers assigned was 7,692,955; the number of 888 numbers
that had been assigned was 7,706,393; and the number of 877 numbers
assigned was 1,946,538. We do not have data specifying the number of
these subscribers that are not independently owned and operated or have
more than 1,500 employees, and thus are unable at this time to estimate
with greater precision the number of toll free subscribers that would
qualify as small business concerns under the SBA\'s definition.
Consequently, we estimate that there are fewer than 7,692,955 small
entity 800 subscribers, fewer than 7,706,393 small entity 888
subscribers, and fewer than 1,946,538 small entity 877 subscribers.

**c. International Service Providers**

The Commission has not developed a definition of small entities
applicable to licensees in the international services. Therefore, the
applicable definition of small entity is the definition under the SBA
rules applicable to Communications Services, Not Elsewhere Classified
(NEC).[^395] This definition provides that a small entity is one with
\$11.0 million or less in average annual receipts. According to the
Census Bureau, there were a total of 848 communications services, NEC,
in operation in 1992, and a total of 775 had annual receipts of less
than \$9.999 million.[^396] The Census report does not provide more
precise data. Many of these services do not have specified uses and it
is uncertain, at this point in time, whether they will ultimately
provide telecommunications services.

**(1) International Public Fixed Radio (Public and Control Stations)**

Commission records show there are 3 licensees in this service.[^397] We
do not request or collect annual revenue information, and thus are
unable to estimate the number of international public fixed radio
licensees that would constitute a small business under the SBA
definition. Consequently, we estimate that there are equal to or fewer
than 3 small entities that are international public fixed radio
licensees.

**(2) Fixed Satellite Transmit/Receive Earth Stations and Fixed
Satellite Small Transmit/Receive Earth Stations**

Based on actual payments, there are approximately 3,100 earth station
authorizations, a portion of which are Fixed Satellite Transmit/Receive
Earth Stations[^398] and a portion of which are Fixed Satellite Small
Transmit/Receive Earth Stations.[^399] We do not request or collect
annual revenue information, and thus are unable to estimate the number
of the earth stations of either category that would be owned by a small
business under the SBA definition. Consequently, we estimate that there
are equal to or fewer than 3,100 small entities that hold such
authorizations.

**(3) Fixed Satellite Very Small Aperture Terminal (VSAT) Systems**

These stations operate on a primary basis, and frequency coordination
with terrestrial microwave systems is not required. Thus, a single
"blanket" application may be filed for a specified number of small
antennas and one or more hub stations. The Commission has processed 377
applications.[^400] We do not request or collect annual revenue
information, and thus are unable to estimate the number of VSAT systems
that would be owned by a small business under the SBA definition.
Consequently, we estimate that there are equal to or fewer than 377
small entities that hold such authorizations.

**(4) Mobile Satellite Earth Stations**

There are 11 licensees.[^401] We do not request or collect annual
revenue information, and thus are unable to estimate whether either of
these licensees would constitute a small business under the SBA
definition. Consequently, we estimate that there are 11 or less small
entities that hold such licenses.

**(5) Space Stations (Geostationary)**

There are 43 space station licensees.[^402] We do not request or collect
annual revenue information, and thus are unable to estimate the number
of geostationary space stations that would be owned by a small business
under the SBA definition. Consequently, we estimate that there are equal
to or fewer than 43 small entities that hold such licenses.

**(6) Space Stations (Non‑Geostationary)**

There are twelve Non‑Geostationary Space Station licensees, of which
only two systems are operational.[^403] We do not request or collect
annual revenue information, and thus are unable to estimate the number
of non‑geostationary space stations that would be owned by a small
business under the SBA definition. Consequently, we estimate that there
are twelve or less small entities that hold such licenses.

**(7) Mobile Satellite Services (MSS)**

Mobile Satellite Services or Mobile Satellite Earth Stations are
intended to be used while in motion or during halts at unspecified
points. These stations operate as part of a network that includes a
fixed hub or stations. The stations that are capable of transmitting
while a platform is moving are included under Section 20.7(c) of the
Commission\'s rules[^404] as mobile services within the meaning of
sections 3(27) and 332 of the Communications Act.[^405] Those MSS
services are treated as CMRS if they connect to the Public Switched
Network (PSN) and also satisfy other criteria in Section 332. Facilities
provided through a transportable platform that cannot move when the
communications service is offered are excluded from Section 20.7(c) of
the rules.[^406]

The MSS networks may provide a variety of land, maritime and
aeronautical voice and data services. There are eight mobile satellite
licensees.[^407] At this time, we are unable to make a precise estimate
of the number of small businesses that are mobile satellite earth
station licensees and could be considered CMRS providers of
telecommunications service. Consequently, we estimate that there eight
or less small entities that hold such licenses.

**d. Wireless Telecommunications Service Providers**

198\. The Commission has not yet developed a definition of small
entities with respect to the provision of CMRS services. Therefore, for
CMRS providers not falling within any other established SBA category
(*i.e*., Radiotelephone Communications or Telephone Communications,
Except Radiotelephone), the applicable definition of a small entity
would be the SBA definition applicable to the "Communications Services,
Not Elsewhere Classified." This definition provides that a small entity
is one with \$11.0 million or less in average annual receipts.[^408] The
Census Bureau estimates indicate that of the 848 firms in the
"Communications Services, Not Elsewhere Classified" category, 775 are
small businesses. It is not possible to predict which of these would be
small entities (in absolute terms or by percentage) or to classify the
number of small entities by particular forms of service.

**(1) Cellular Radio Telephone Service**

The Commission has not developed a definition of small entities
specifically applicable to cellular licensees. Therefore, the applicable
definition of a small entity is the SBA definition applicable to
radiotelephone companies, which provides that a small entity is a
radiotelephone company employing no more than 1,500 persons.[^409] The
size data provided by SBA do not enable us to make a meaningful estimate
of the number of cellular providers that are small entities because it
combines all radiotelephone companies with 500 or more employees.[^410]
We therefore have used the 1992 Census of Transportation,
Communications, and Utilities, conducted by the Bureau of the Census,
which is the most recent information available. That census shows that
only 12 radiotelephone firms out of a total of 1,178 such firms
operating during 1992 had 1,000 or more employees.[^411] Therefore, even
if all 12 of these large firms were cellular telephone companies, all of
the remainder would be small businesses under the SBA definition.

There are presently 1,758 cellular licenses. However, the number of
cellular licensees is not known, since a single cellular licensee may
own several licenses. In addition, we note that there are 1,758 cellular
licenses; however, a cellular licensee may own several licenses. In
addition, according to the most recent *Telecommunications Industry
Revenue* data, 732 carriers reported that they were engaged in the
provision of either cellular service or Personal Communications Service
(PCS) services, which are placed together in the data.[^412] We do not
have data specifying the number of these carriers that are not
independently owned and operated or have more than 1,500 employees, and
thus are unable at this time to estimate with greater precision the
number of cellular service carriers that would qualify as small business
concerns under the SBA\'s definition. Consequently, we estimate that
there are 732 or fewer small cellular service carriers that may be
affected by the rules, herein adopted.

**(2) Broadband Personal Communications Service**

The broadband PCS spectrum is divided into six frequency blocks
designated A through F, and the Commission has held auctions for each
block. The Commission defined \"small entity\'\' for Blocks C and F as
an entity that has average gross revenues of less than \$40 million in
the three previous calendar years.[^413] For Block F, an additional
classification for \"very small business\" was added and is defined as
an entity that, together with their affiliates, has average gross
revenues of not more than \$15 million for the preceding three calendar
years.[^414] These regulations defining \"small entity\'\' in the
context of broadband PCS auctions have been approved by the SBA.[^415]
No small businesses within the SBA-approved definition bid successfully
for licenses in Blocks A and B. There were 90 winning bidders that
qualified as small entities in the Block C auctions. A total of 93 small
and very small business bidders won approximately 40% of the 1,479
licenses for Blocks D, E, and F.[^416] Based on this information, we
conclude that the number of small broadband PCS licensees will include
the 90 winning C Block bidders and the 93 qualifying bidders in the D,
E, and F blocks, for a total of 183 small entity PCS providers as
defined by the SBA and the Commission\'s auction rules.

**(3) Narrowband PCS.**

The Commission has auctioned nationwide and regional licenses for
narrowband PCS. There are 11 nationwide and 30 regional licensees for
narrowband PCS. The Commission does not have sufficient information to
determine whether any of these licensees are small businesses within the
SBA-approved definition for radiotelephone companies. At present, there
have been no auctions held for the major trading area (MTA) and basic
trading area (BTA) narrowband PCS licenses. The Commission anticipates a
total of 561 MTA licenses and 2,958 BTA licenses will be awarded by
auction. Such auctions have not yet been scheduled, however. Given that
nearly all radiotelephone companies have no more than 1,500 employees
and that no reliable estimate of the number of prospective MTA and BTA
narrowband licensees can be made, we assume, for purposes of this IRFA,
that all of the licenses will be awarded to small entities, as that term
is defined by the SBA.[^417]

**(4) Specialized Mobile Radio**

Pursuant to Section 90.814(b)(1) of the Commission\'s Rules,[^418] the
Commission has defined "small entity" for geographic area 800 MHz and
900 MHz SMR licenses as a firm that had average gross revenues of less
than \$15 million in the three previous calendar years. This regulation
defining "small entity" in the context of 800 MHz and 900 MHz SMR has
been approved by SBA.[^419]

The rules promulgated in the *Report and Order* may apply to SMR
providers in the 800 MHz and 900 MHz bands. We do not know how many
firms provide 800 MHz or 900 MHz geographic area SMR service, or how
many of these providers have average annual gross revenues of less than
\$15 million.

The Commission recently held auctions for geographic area licenses in
the 900 MHz SMR band. There were 60 winning bidders who qualified as
small entities under the Commission\'s definition in the 900 MHz
auction. Based on this information, we conclude that the number of
geographic area SMR licensees affected by the rules promulgated in the
*Report and Order* includes these 60 small entities.

Based on the auctions held for 800 MHz geographic area SMR licenses,
there are 10 small entities currently holding 38 of the 524 licenses for
the upper 200 channels of this service. However, the Commission has not
yet determined how many licenses will be awarded for the lower 230
channels in the 800 MHz geographic area SMR auction. There is no basis
to estimate, moreover, how many small entities within the SBA definition
will win these licenses. Given the facts that nearly all radiotelephone
companies have fewer than 1,000 employees and that no reliable estimate
of the number of prospective 800 MHz SMR licensees can be made, we
assume, for purposes of our evaluations and conclusions in this FRFA,
that all of the licenses will be awarded to small entities, as that term
is defined by SBA.

**(5) 220 MHz Radio Service \-- Phase I Licensees.**

The 220 MHz service has both Phase I and Phase II licenses. Phase I
licensing was conducted by lotteries in 1992 and 1993. There are
approximately 1,515 such non‑nationwide licensees and four nationwide
licensees currently authorized to operate in the 220 MHz band. The
Commission has not developed a definition of small entities specifically
applicable to such incumbent 220 MHZ Phase I licensees. To estimate the
number of such licensees that are small businesses, we apply the
definition under the SBA rules applicable to Radiotelephone
Communications companies. This definition provides that a small entity
is a radiotelephone company employing no more than 1,500 persons.[^420]
According to the Bureau of the Census, only 12 radiotelephone firms out
of a total of 1,178 such firms which operated during 1992 had 1,000 or
more employees.[^421] Therefore, if this general ratio continues in 1999
in the context of Phase I 220 MHz licensees, we estimate that nearly all
such licensees are small businesses under the SBA\'s definition.

**(6) 220 MHz Radio Service \-- Phase II Licensees.**

The Phase II 220 MHz service is a new service, and is subject to
spectrum auctions. In the *220 MHz Third Report and Order*, we adopted
criteria for defining small businesses and very small businesses for
purposes of determining their eligibility for special provisions such as
bidding credits and installment payments.[^422] We have defined a small
business as an entity that, together with its affiliates and controlling
principals, has average gross revenues not exceeding \$15 million for
the preceding three years. Additionally, a very small business is
defined as an entity that, together with its affiliates and controlling
principals, has average gross revenues that are not more than \$3
million for the preceding three years.[^423] The SBA has approved these
definitions.[^424] An auction of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998.[^425] Nine hundred
and eight (908) licenses were auctioned in 3 different‑sized geographic
areas: three nationwide licenses, 30 Regional Economic Area Group
Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses
auctioned, 693 were sold. Companies claiming small business status won:
one of the Nationwide licenses, 67% of the Regional licenses, and 54% of
the EA licenses. As of January 22, 1999, the Commission announced that
it was prepared to grant 654 of the Phase II licenses won at
auction.[^426] A re-auction of the remaining, unsold licenses was
completed on June 30, 1999, wherein 222 of the remaining licenses were
sold,[^427] but have yet to be licensed.

**(7) Paging**

To ensure the more meaningful participation of small business entities
in the auctions, the Commission adopted a two‑tiered definition of small
businesses in the *Paging Second Report and Order*, stating that: (1) an
entity that, together with affiliates and controlling interests, has
average gross revenues for the three preceding years of not more than
\$3 million; or (2) an entity that, together with affiliates and
controlling interests, has average gross revenues for the three
preceding years of not more than \$15 million.[^428] In December 1998,
the Small Business Association approved the two‑tiered size standards
for paging services set forth in the Second Report and Order. [^429]

[MEA and EA Licenses]{.underline}

In the Final Regulatory Flexibility Analysis incorporated in Appendix C
of the Second Report and Order, the Commission anticipated that
approximately 16,630 non‑nationwide geographic area licenses will be
auctioned. While we are unable to predict accurately how many paging
licensees meeting one of the above definitions will participate in or be
successful at auction, our Third CMRS Competition Report estimated that,
as of January 1998, there were more than 600 paging companies in the
United States.[^430] The Third CMRS Competition Report also indicates
that at least ten of the top twelve publicly held paging companies had
average gross revenues in excess of \$15 million for the three years
preceding 1998.[^431] The Commission expects that these ten companies
will participate in the paging auction and may employ the partitioning
or disaggregation rules. The Commission also expects, for purposes of
the evaluations and conclusions in this Final Regulatory Flexibility
Analysis, that a number of paging licenses will be awarded to small
businesses, and at least some of those small business licensees will
likely also take advantage of the partitioning and disaggregation rules.
We are unable to predict accurately the number of small businesses that
may choose to acquire partitioned or disaggregated MEA or EA licenses.
The Commission expects, however, that entities meeting one of the above
definitions will use partitioning and disaggregation as a means to
obtain a paging license from an MEA or EA licensee at a cost lower than
the cost of the license for the entire MEA or EA.

[Nationwide Geographic Area Licenses]{.underline}

The partitioning and disaggregation rules pertaining to nationwide
geographic

area licenses adopted in the Third Report and Order will affect the 26
licensees holding nationwide geographic area licenses to the extent they
choose to partition or disaggregate, as well as any entity that enters
into a partitioning or disaggregation agreement with a nationwide
geographic area licensee. No parties, however, commented on the number
of small business nationwide geographic area licensees that might elect
to partition or disaggregate their licenses and no reasonable estimate
can be made. While we are unable to state accurately how many nationwide
geographic area licensees meet one of the above small business
definitions, our Third CMRS Competition Report indicates that at least
eight of the top twelve publicly held paging companies hold nationwide
geographic area licenses and had average gross revenues in excess of
\$15 million for the three years preceding 1998.[^432] The Commission
expects at least some of these eight companies to employ the
partitioning or disaggregation rules, and also expects, for the purposes
of evaluations and conclusions in this Final Regulatory Flexibility
Analysis, that nationwide geographic area licensees meeting one of the
above definitions may use the partitioning or disaggregation rules.
While we are unable to predict accurately the number of small businesses
that may choose to acquire partitioned or disaggregated licenses from
nationwide geographic area licensees, the Commission expects, for
purposes of the evaluations and conclusions in the Final Regulatory
Flexibility Analysis, that entities meeting one of the above small
business definitions will use partitioning and disaggregation as a means
to obtain a paging license from a nationwide geographic area licensee.

**(8) Air-Ground Radiotelephone Service**

The Commission has not adopted a definition of small business specific
to the Air-Ground Radiotelephone Service, which is defined in Section
22.99 of the Commission\'s rules.[^433] Accordingly, we will use the SBA
definition applicable to radiotelephone companies, *i.e.*, an entity
employing no more than 1,500 persons.[^434] There are approximately 100
licensees in the Air-Ground Radiotelephone Service, and we estimate that
almost all of them qualify as small under the SBA definition.

**(9) Local Multipoint Distribution Service (LMDS)**

LMDS licensees may use spectrum for any number of services. We
anticipate that the greatest intensity of use will be for either radio
telephone or pay television ser­vices. SBA has de­vel­oped defi­ni­tions
appli­cable to each of these services; however, because pay television is
not a telecommunications service subject to section 255, that definition
is not relevant to this FRFA.

The Commission has adopted a definition of small entities applicable to
LMDS licensees, which is a new service.[^435] In the *LMDS Order* we
adopted criteria for defin­ing small busi­ness­es for determining bidding
credits in the auction, but we believe these criteria are applicable for
evaluating the burdens imposed by Section 255. We defined a small
busi­ness as an enti­ty that, together with affiliates and controlling
principals, has average gross reve­nues not ex­ceed­ing \$40 million for
the three preceding years.[^436] Ad­di­tion­ally, small entities are those
which to­gether with their affili­ates and controlling principals, have
average gross reve­nues for the three preceding years of more than \$40
million but not more than \$75 mil­lion.[^437]This definition has been
approved by the SBA.[^438]

Upon completion of the LMDS auction, 93 of the 104 bidders qualified as
small entities, smaller businesses, or very small businesses. These 93
bidders won 664 of the 864 licenses. We estimate that all of these 93
bidders would qualify as small under the SBA definitions, but cannot yet
determine what percentage would be offering telecommunications services
subject to the requirements of section 255.

**(10) Rural Radiotelephone Service**

The Commission has not adopted a definition of a small entity specific
to the Rural Radiotelephone Service. A significant subset of the Rural
Radiotelephone Service is the Basic Exchange Telephone Radio Systems
(BETRS).[^439] Thus, we will use the SBA\'s definition applicable to
radiotelephone companies, *i.e*., an entity employing no more than 1,500
persons.[^440] There are approximately 1,000 licensees in the Rural
Radiotelephone Service, and we estimate that almost all of them qualify
as small entities under the SBA\'s definition.

**(11) Wireless Communications Services**

This service can be used for fixed, mobile, radiolocation and digital
audio broadcasting satellite uses. The Commission defined small business
for the wireless communications services (WCS) auction as an entity with
average gross revenues of \$40 million for each of the three preceding
years, and a very small business as an entity with average gross
revenues of \$15 million for each of the three preceding years.[^441]
The Commission auctioned geographic area licenses in the WCS service. In
the auction, there were seven winning bidders that qualified as very
small business entities, and one that qualified as a small business
entity. We conclude that the number of geographic area WCS licensees
affected includes these eight entities.

**(12) 39 GHz Band**

In the *39 GHz Band NPRM and Order*,[^442] we proposed to define a small
business as an entity that, together with its affiliates and
attributable investors, has average gross revenues for the three
preceding years of less than \$40 million. We have not yet received
approval by the SBA for this definition. Therefore, the applicable
definition of a small entity is the SBA definition applicable to
radiotelephone companies, which is a radiotelephone company employing no
more than 1,500 persons.[^443]

As noted previously, the 1992 Census of Transportation, Communications,
and Utilities, conducted by the Bureau of the Census, shows that only 12
radiotelephone firms out of a total of 1,178 such firms which operated
during 1992 had 1,000 or more employees.[^444] Therefore, a majority of
39 GHz entities providing radiotelephone services could be small
businesses under the SBA definition, and we assume, for purposes of our
evaluation here, that nearly all of the 39 GHz licensees will be small
entities, as that term is defined by the SBA.[^445]

**D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

As we have noted, the objective of section 255 is to give persons with
disabilities increased access to telecommunications. Both equipment
manufacturers and telecommunications service providers are obligated to
provide accessibility for persons with any one or more different
disabilities to the extent that it is readily achievable for them to do
so. In the broadest sense, compliance consists of an on-going,
disciplined, and systematic effort to provide the greatest level of
accessibility.

The accompanying *Report and Order* identifies behaviors that would
demonstrate such an effort and that would be looked upon favorably by
the Commission in the event a complaint was filed. However, we have
declined to adopt suggestions that we require manufacturers and service
providers to establish specific internal systems and recordkeeping
practices for purposes of responding to Section 255 complaints and
inquiries or require manufacturers to maintain public files recording
their compliance with section 255 and our rules. We see no need to
burden manufacturers and service providers with detailed processing and
reporting requirements which could hinder rather than hasten the
resolution of accessibility disputes. The only reporting requirement
imposed by the rules is that each covered entity designate an agent or
contact whose principal function will be to ensure the manufacturer\'s
or service provider\'s prompt receipt and handling of accessibility
concerns raised by consumers or Commission staff. We proposed this
requirement in the *Notice,* and it received universal support among the
commenters.

In the *Notice*, the Commission sought comment regarding whether
existing Commission processes (and associated forms) would be efficient
vehicles for any requirements the Commission might develop in this
proceeding, such as information collection, or providing notice to firms
dealing with the Commission that they may be subject to section 255. The
Commission listed the following examples: (1) the Commission\'s
equipment authorization processes under Part 2, Subpart J of the
Commission\'s Rules; (2) equipment import documentation requirements
under Part 2, Subpart K of the Rules; (3) licensing proceedings under
section 307 of the Act for various radio services used by entities
subject to section 255 obligations; and (4) various common carrier
filing processes.

However, we have decided that modifying the current equipment
certification or other existing Commission processes for purposes of
compliance with section 255 is not necessary.[^446] As we have stated in
the *Report and Order* in the discussion on enforcement and the
application of the readily achievable standard, no specific
documentation is being required at this time. Companies may chose to
keep records at their own discretion concerning the way the company has
chosen to implement its own disability initiatives.[^447]

**E. Steps Taken To Minimize Significant Economic Impact on Small
Entities Consistent with Stated Objectives, and Significant Alternatives
Considered**

We noted in the IRFA that the resources of the regulated entity are
taken into account in the determination of whether accessibility of a
given product or service is readily achievable and that there is thus an
inherent consideration of the financial burden on the entity in its
obligation to provide accessibility: if not readily achievable, that
obligation is removed. Nevertheless, we acknowledged that all regulated
entities would be required to assess whether providing accessibility is
readily achievable and that an important issue for RFA purposes is thus
not the absolute cost of providing accessibility, but, rather, the
extent to which the cost of performing an assessment as to whether an
accessibility feature is readily achievable is unduly burdensome on
small entities.

As early as the *Notice of Inquiry*, we sought comment on three possible
approaches for implementing and enforcing the provisions of section 255:
(1) case-by-case determinations; (2) guidelines or a policy statement;
or (3) rules setting forth procedural or performance requirements
intended to promote accessibility.[^448] The *Notice* focused
principally on procedural requirements as a practical, common sense
means to ensure that consumers with disabilities would have access to
telecommunications services and equipment. In the *Notice* we considered
using case-by-case determinations exclusively, in lieu of any rules, but
tentatively discarded this approach because we believed that in a
rapidly changing market with unpredictable technological breakthroughs,
the slow development of case law would be insufficient to guide covered
entities and to provide an understanding of their accessibility
obligations.

We also considered issuing guidelines or a policy statement, but
tentatively discarded this approach, as well, because of our view that a
greater degree of regulatory and administrative certainty would best
serve the interests of both consumers and businesses that must comply
with section 255. Although we acknowledged that a policy statement might
serve the purpose of informing case-by-case determinations in complaint
proceedings and lend some predictability to the process, we tentatively
decided that, in order for accessibility to be addressed in a pro-active
manner, equipment manufacturers and service providers should have clear
expressions of the demands that section 255 places on their operations
before the beginning of the design process. Therefore, we tentatively
concluded that the potential drawbacks of exclusive reliance on
case-by-case determinations as a means of implementing Section 255 would
not be sufficiently diminished by the adoption of guidelines or a policy
statement.

We also considered and tentatively rejected the option of promulgating
specific performance requirements. Such an approach, under which the
Commission would attempt to establish an array of specific parameters
for features and functions across a broad range of telecommunications
services and equipment, was viewed as potentially burdensome to covered
entities. We also considered it to be fraught with other potential
problems, such as rapid changes in technology, that would require
frequent revision of the performance requirements and could cause
confusion in the telecommunications marketplace. We tentatively decided
that the promulgation of specific rules governing the design process
would also impose burdens on covered entities whose resources would be
better spent in achieving and improving accessibility.

As a result of our tentative decision to rely primarily on procedural
rules, we took several steps in the *Notice* to minimize the burdens on
all regulated entities. First, we sought to provide incentives to
industry for early and on-going consideration of accessibility issues by
indicating that we would look favorably upon efforts to implement the
Access Board\'s guidelines by such means as formalizing self-assessment,
external outreach, internal management, and user information and support
to address accessibility issues. Second, we attempted to unravel the
statutory terminology to give guidance on the interpretation of key
language within the telecommunications context.[^449] Third, we proposed
a two-phase process for dealing with section 255 consumer
complaints.[^450] In the first phase, which we referred to as the
\"fast-track,\" we proposed that Commission staff be required to refer
any complaint or inquiry to the manufacturer or service provider
concerned, who would have a period of five business days to address the
problem.[^451] Where fast-track efforts failed to produce a satisfactory
solution, we proposed to apply complaint processes similar to those used
in Section 208 complaint proceedings.[^452]

Although we initially viewed the \"fast-track\" process as an efficient,
consumer-friendly means of dealing with problems associated with
accessibility compliance, parties representing both consumer and
industry interests criticized the proposed mandatory \"fast-track\"
mechanism as burdensome and confusing and agreed that our section 208
processes provide an appropriate model for Section 255 enforcement.
Hence, in the *Report and Order*, we decided to abandon the 5-day \"fast
track\" proposal and to adopt rules modeled after our Section 208
complaint rules, thus reducing the implicit burden placed on both
consumers and industry alike.

Under the procedures adopted by the *Report and Order*, consumer
complaints filed pursuant to Section 255 will be handled through an
informal complaint process where the staff refers complaints to the
manufacturers or service providers involved. The focus at this stage
will be on addressing the accessibility needs of the complainant.
Because the nature or complexity of certain accessibility disputes may
not be susceptible to informal resolution by the disputing parties,
complainants have the option of seeking the formal adjudication of a
problem or dispute with a manufacturer or service provider at any time
pursuant to our existing section 208 complaint rules.[^453]

As outlined *supra*, in the *Report and Order* we have declined to
promulgate specific rules governing the design process, although certain
of the Access Board Guidelines that we have may require manufacturers to
include persons with disabilities in any group testing performed during
the design process.[^454]

We believe we have reduced regulatory burdens wherever possible. For
burdens imposed by achieving accessibility, the structure of the statute
inherently acknowledges varying degrees of economic impact. The "readily
achievable" standard is proportional, not absolute, and adjusts the
burden of providing accessible features commensurate with the resources
of the covered entity. For burdens associated with enforcement, we
anticipate that the informal complaint process will significantly reduce
the number of complaints, thus minimizing the burden on all covered
entities of providing a legal defense. Moreover, the range of choices
for resolving complaints is designed to reduce costs to the opposing
parties. Encouraging the use of streamlined, informal complaints or
alternative dispute resolution primarily benefits individual plaintiffs
who may be persons with disabilities with limited financial resources,
but should also enable covered entities to defend themselves at a lower
cost.

**[Report to Congress]{.underline}**: The Commission will forward a copy
of the *Report and Order*, including this FRFA, in a report to be sent
to Congress pursuant to the Small Business Regulatory Enforcement
Fairness Act of 1996; *see* 5 U.S.C. 801(a)(1)(A). In addition, the
Commission will forward a copy of the *Report and Order*, including this
FRFA, to the Chief Counsel for Advocacy for the Small Business
Administration. A copy of the *Report and Order* and FRFA (or summaries
thereof) will also be published in the [Federal Register]{.underline}.
*See* 5 U.S.C. § 604(b).

**Statement of**

**Chairman William E. Kennard**

*Re: Rules & Policies for the Telecommunications Equipment & Services
for People with Disabilities.*

Today\'s action represents the most significant opportunity for people
with disabilities

since the passage of the Americans with Disabilities Act in 1990. In the
Telecommunications

Act of 1996, Congress fashioned the ADA of the Information Age. The
framework we

announce today is an essential step in making a meaningful difference in
the lives of people

with disabilities. We build upon the work of the Access Board and follow
the ADA\'s

precedent. Now, just as persons with disabilities can navigate our
public streets because of

the ADA\'s requirements for curb cuts, all our citizens can navigate the
information

superhighway without confronting barriers that stop them cold. Simple
solutions such as big

buttons on phones for the blind, phones with volume control for the
deaf, talking caller ID for

those who cannot see or move quickly, pagers that send TTY messages and
phones with

headsets for those who cannot hold the receiver, could be made
available. In addition, today,

we initiate a Notice of Inquiry that looks to the future. In this
dynamic industry, as

technology changes with the blink of an eye, we need to ensure that the
future is accessible as

well.

Our rules today are workable and practical and will allow industry to
focus on what\'s

really important: making its products and services accessible. Our rules
give service

providers and manufacturers a great deal of flexibility in determining
how to best deploy their

resources to carry out the statutory mandate, as long as they do all
that is readily achievable

and make modest changes to every product where it is easy to do so. We
do not require

specific documentation or filings. Indeed, we are mandating ends, not
means ‑ and we urge

industry to step up and innovate to realize the accessibility goal.

We look forward to moving ahead, building from our common vision of what
we must

accomplish, and building to an accessible world we all can share.

**Separate Statement**

**of**

**Commissioner Susan Ness**

Re: *In the Matter of Implementation of Sections 255 and 251(a)(2) of
the Communications Act of 1934, as enacted by the Telecommunications Act
of 1996; Access to Telecommunications Service, Telecommunications
Equipment, and Customer Premises Equipment by Persons with Disabilities*

For the nondisabled, it takes little effort to dial a telephone number
on a telephone touchpad; scroll through an automatic voice response
system to check your bank account balance; leave a simple voicemail
message on a colleague\'s or friend\'s answering machine; or even to
scan a mobile phone\'s visual display to ascertain who is calling you or
whether you dialed the correct telephone number. Unfortunately, in this
day and age, the same cannot be said for people who are disabled.
Accessing telecommunications equipment or services to perform these
seemingly routine tasks that most of us take for granted is a
frustrating exercise at best and potentially a life-threatening barrier
at worst for people who are disabled.

In this respect, as in others, passage of the Telecommunications Act of
1996 marks a new beginning. Section 255 requires telecommunications
equipment and services to be made accessible to the disability
community, and today we adopt implementing rules to fulfill Congress\'
intent.

These accessibility rules could not have been adopted at a better time.
We are in the midst of a revolution that is reshaping not only
telecommunications but our economy and society as well. The timing of
this ruling is fortuitous because these accessibility rules will apply
to the next generation data networks that are on the drawing boards
today. If accessibility can be designed in from the \"get-go,\" it will
be easier and more cost effective than trying, later in the process, to
make compensating or retrofitting adjustments.

Related to the design of the next generation data networks are the
individual telecommunications products and services that will
communicate with and provide services using those data networks. In
concept, our action today adopts the universal design or the so-called
\"product approach,\" rather than the \"product line\" approach, to
making telecommunications products and services accessible. The goal is
to ensure that as many products as possible will be accessible, if
readily achievable.

I have been delighted by the cooperation we have seen between the
disability community and the manufacturers and service providers to
reach a common understanding. The key insight on which widespread
agreement has been achieved is that manufacturers and service providers
must *consider* accessibility concerns in designing *all* products and
services, not just relegate such considerations to a narrow subset of
models or services, even if ultimately a particular accessibility
feature cannot practically be incorporated in any given product or
service. This fundamental change in the mindset of manufacturers and
service providers will open product and service design to new and
exciting possibilities.

The benefits to the disability community will be substantial. But just
as with curb cuts, closed captioning, and volume controls on pay phones,
the nondisabled will benefit too. Indeed, in examining one
manufacturer\'s Section 255 offerings during the CTIA convention, I was
struck by the utility of a mobile phone with the microphone suspended
around the neck. This \"hands-free\" unit would be ideal for many of us,
disabled or not. And now we can reasonably expect that the future will
be brightened by many other similar examples, with products and services
competing on the basis of their accessibility features.

Moreover, the nondisabled will benefit in other ways as well. Metcalfe
teaches that the value of a network is directly related to the number of
users. Making telecommunications accessible will facilitate access by
the estimated 54 million people who are disabled, thereby increasing the
value of the network for *everyone* \-- disabled and nondisabled alike.

I want to thank the Architectural and Transportation Barriers Compliance
Board (\"the Access Board\"), the disability community, the
manufacturers, the service providers, and our own staff for all the hard
work that has culminated in this order.

**Separate Statement of Commissioner Harold W. Furchtgott-Roth**

**Concurring in Part and Dissenting in Part**

**Re:** *In the Matter of Implementation of Sections 255 and 251(a) of
the Communications Act of 1934, Enacted by the Telecommunications Act of
1996 - Access to Telecommunications Services, Telecommunications
Equipment and Customer Premises Equipment by Persons with Disabilities,
WT Docket No. 96-198, Report and Order*

Today\'s action brings to a close the first chapter in what I consider
to be one of the most important proceedings I have had the privilege to
act upon here at the Commission. I want to complement the staff of the
FCC for an extraordinary effort in dealing with a host of highly
technical issues and doing so in a professional, thorough and dignified
manner.

Further, I fully support most of the conclusions reached in today\'s
order. They will redound not only to the benefit of those with
disabilities, who have been deprived of full access to basic
telecommunications services for far too long, but to all Americans. I am
confident that industry will seize this opportunity, as it has in the
past, to design and manufacture products that will have widespread
appeal and enhance the quality of life for us all.

It is, however, with very great reluctance that I must dissent from two
small parts of today\'s Order. Prior to joining the Commission, I had
the great honor and privilege of serving on the House Commerce Committee
during the drafting and enactment of the Telecommunications Act of 1996.
Several Members of Congress, themselves persons with disabilities or
keenly aware of needs of those with disabilities through the experiences
of family members, took great interest in the accessibility provisions
of the Act. There is absolutely no doubt in my mind that the literal
words of Section 255 embody precisely what its authors \-- those Members
\-- intended.

By its terms, Section 255 covers access to telecommunications. Period.
No where in any relevant statutory provisions do we find any reference
to information services, a term with which the Act\'s authors were
certainly familiar (they even provided a definition for it). Congress
chose it words carefully after great deliberation. The Commission should
heed them. Yet today this Commission chooses to ignore the words of the
statute, extending Section 255 to voicemail and interactive menus
(indisputably information services), through an assertion of the
Commission\'s ancillary jurisdiction. To be sure, voicemail and
interactive menus are becoming increasingly important to communicate
effectively in today\'s society. Nonetheless, despite how laudable our
intentions may be, we run the very serious risk of endangering all that
we have accomplished today by disregarding the statute.[^455] When this
Commission usurps for itself the role of rewriting a statute which is
clear on its face, we can no longer credibly claim that we are
discharging faithfully our duty \"to execute and enforce\" the
statute.[^456] We substitute our judgment of what the law is for the
judgment of those who were elected to make the laws in the first
instance.

For very similar reasons, I must also object to the Commission\'s
conclusion that \"software\" can be read into the definition of customer
premises equipment (CPE) by somehow importing its meaning from the
definition of telecommunications equipment provided in the statute. The
statute again provides all the guidance we need. The definition of
telecommunications equipment explicitly excludes CPE from its
ambit.[^457] Moreover, if that were not the end of the matter, the
statute further clarifies that telecommunications equipment is that used
by carriers, while CPE applies to equipment employed by persons other
than carriers,[^458] further illuminating that the two definitions are
mutually exclusive. Finally, while the definition of telecommunications
equipment explicitly refers to software, no such reference exists in the
definition of CPE. Unfortunately, the Commission today chooses to ignore
once again the plain language of the statute in favor of a so-called
\"better interpretation\" - to read into the definition of CPE software
integral to its operation. In my view, however, the language is
susceptible of only one interpretation. By straying from the explicit
terms of the law, the Commission again casts a shadow on the progress
and achievements we have made in the rest of today\'s Order.

\*\*\*\*\*

**SEPARATE STATEMENT OF COMMISSIONER MICHAEL POWELL**

*Re: Implementation of Section 255 of the Telecommunications Act of 1996
\-- Access to Telecommunications Services, Telecommunications Equipment,
and Customer Premises Equipment by Persons with Disabilities, Report and
Order and Notice of Inquiry (WT Docket No. 96-198)*

I fully support this initiative to implement the mandates of Section 255
of the Communications Act, which was added by Congress as part of the
landmark Telecommunication Act of 1996. The 1996 enactment was just the
beginning, but this item, in terms of enforcing Section 255, is not just
the start. Our action today comes after more than three years of
striving toward the accessibility objectives of this important statutory
provision by many consumer and industry participants.

I commend those who have participated tirelessly in this effort to reach
workable solutions on many of these difficult issues. We are presented
today with the fruits of such efforts. Thank you.

Over the past several weeks, I have had the great pleasure of meeting
with and hearing from many of the people who are being helped by the
inclusion of 255 in the 1996 Act. The many meetings, e-mails and letters
have been helpful and informative. I have learned even more about the
frustrations that persons with disabilities are still experiencing when
trying to place telephone calls. For example, I completely understand
the importance of access to voicemail and interactive menus.

People with disabilities can be hampered daily by lack of access to
services others take for granted \-- leaving a message for a colleague,
reaching the desired person at a business, or simply receiving a phone
call. As one commenter in the proceeding said so eloquently, \"without
access to certain enhanced services, such as automated voice response
systems and voice mail services, individuals who are deaf or hard of
hearing will continue to be barred from enjoying even basic access to
the telecommunications network.\"

This all reminds me about what it was like at one time for me. As I said
before when we adopted the notice in this proceeding, I know personally
the frustrations of being relegated to the outskirts of \"normal\"
society because of the inability to access the necessary instruments of
daily life. Following a serious jeep accident, I recall vividly the
feelings of helplessness brought on by the inability to help myself with
basic life functions. During my year-long convalescence I found myself
preferring the hospital over my home. Home was the real world of
difficult stairways to navigate, rather than the ramps of the hospital.
It was bathrooms that were a nightmare to get to and use, and it was
inhospitable beds and chairs. It was a place where I watched fully
functional people move easily in and out of every day, living normal
unencumbered lives. But as I reflect and tell some astonished people, it
was the best thing that ever happened to me. That experience has guided
me in this proceeding in part because it allowed me to experience first
hand how much of a jungle the world can be to someone who is disabled.

I have also been very pleased by the input from the telecommunications
industry and the manufacturers. Moreover, I have been extremely
impressed by the initiative and leadership of several organizations and
companies that, in consultation with consumer groups and disabled
persons, have already implemented Section 255\'s requirements. These
law-abiding entities (which I would suggest represent a vast majority of
our corporate citizens subject to Section 255) will have no fear of our
actions today or enforcement actions of tomorrow.

I understand the industry\'s remaining concerns as much as I understand
the concerns of consumers that would want us to go as far as we can in
making all communications services and equipment accessible to all. But,
despite our legal wrangling here today, we are duty-bound to consider
all of these remaining concerns and we are duty-bound to act within the
terms delegated to us by the elected members of Congress.

In this vein, I have grave concerns about the draft item's use of
\"ancillary jurisdiction\" to extend the accessibility requirements of
Section 255 to providers of voicemail and interactive menu services, as
well as to manufacturers of telecommunications equipment and CPE which
perform such functions. I think the draft order before us today has
chosen to primarily rely on the least sustainable course for covering
such services and may have placed much of the good work embodied in this
item at unnecessary risk.

I definitely support the result that we are striving for with regard to
voice mail and interactive menus. I agree that we should take all
reasonable and aggressive steps to ensure that people with disabilities
are unimpeded from using telecommunications due to barriers created by
voice mail systems and interactive voice menus. The problem has been
identified, it is real, and should be remedied as quickly as possible.
However, the draft order's primary approach, in my mind takes a grave
step. The draft item seems to concede that voice mail and voice menu
services are excluded from section 255, yet is comfortable reaching for
ancillary jurisdiction to rewrite the provision more to its liking,
admittedly for perhaps the worthiest of causes. I am uncomfortable with
this assertion of unbridled, plenary authority to legislate coverage,
especially where Congress appears to have by the terms of its Act,
excluded certain areas from coverage. I am unconvinced that such an
unrestrained application of ancillary jurisdiction has been sanctioned
by the courts, nor do I believe it to be consistent with our own
precedents. Accordingly, while I support 99.99 percent of this item and
everything that it achieves, I must dissent from its assertion of
ancillary jurisdiction.

I believe there are a number of theories that potentially would have
allowed us to provide these services within the terms of the statute and
without usurping the legislative prerogatives of Congress. I accept the
Chairman's invitation to continue exploring these alternative
approaches. I am sorry that we are not able to rely on these other legal
theories without resorting to the use of ancillary jurisdiction. I can
only hope that the decision to rely, in whole or part, on ancillary
jurisdiction does not result in litigation that delays the availability
of the relief which is sorely needed.

**Separate Statement of Commissioner Gloria Tristani**

*Re: Implementation of Section 255 of the Telecommunications Act of 1996
\-- Access to Telecommunications Services, Telecommunications Equipment,
and Customer Premises Equipment by Persons with Disabilities, Report and
Order and Notice of Inquiry (WT Docket No. 96-198)*

I\'ve spoken before about the importance of access in our information
society. Telecommunications is increasingly so much more than how we
communicate \-- it is how we teach, how we learn, how we work. To be
denied access to these activities is to be relegated to the sidelines of
our national life. And so I have fought hard to ensure access in other
contexts \-- E-rate and universal service. So, too, here. The
opportunity to make decisions like these \-- and to see the meaningful
effect in individuals\' lives \-- is what makes this job worthwhile.

Congress, of course, made the first important decision here: the
decision to require that all telecommunications services and equipment
be accessible to people with disabilities, if readily achievable. But we
have the obligation to bring Congress\' intent to life, through our
implementation and enforcement. Section 255 is a true corollary to the
ADA, which mandates accessibility in employment and public
accommodations. Knowing that full participation in our national life
means more than eliminating physical barriers, Congress did not stop
there. Section 255 builds upon the progress of the ADA by removing
barriers to communication and information. The rules we adopt today will
have a substantial effect on the quality of life for all Americans with
disabilities.

I have approached this rulemaking with these goals in mind. The rules we
adopt provide manufacturers and service providers with both certainty
about their obligations and flexibility in how they meet them. As
manufacturers consider accessibility throughout the design and
development of new products and services, I have no doubt that the
intelligence and innovation of this industry will prevail in amazing,
unforeseen ways. As a lawyer, it\'s one of the things I appreciate about
engineers. We lawyers are trained to create problems. Engineers love to
solve them. So I have every confidence that industry will create greater
accessibility and greater inclusiveness that will benefit us all.

I am particularly pleased about one aspect of our decision. I firmly
believe that we have the jurisdiction, and indeed, the obligation under
the Communications Act, to include voicemail and interactive voice menus
in our rules. These services are more than commonplace. They are often
the only means of completing a simple phone call today. When I call a
bank or an airline, a theater or a credit card company, interactive
voice menus are the means by which I complete my call. Often a live
human is available, if at all, only by navigating that system. Those who
are hard of hearing, or who have mobility or cognitive disabilities,
simply may not be able to respond as quickly as the system demands. A
TTY-user, working with a communications assistant, may have to spend
forty-five minutes, and endless phone calls, to re-enter the system and
repeat the prompts just to check an account balance. When these
individuals are disconnected, or do not have sufficient time to respond
to a prompt, it is a fiction to say that that phone call is accessible
because, in the technical sense, it has been terminated at the number
dialed. In no purposeful sense is that call accessible to the person
placing it. Voicemail and interactive voice menus are so integral to the
use of telecommunications services today that their inaccessibility can
render telecommunications services themselves inaccessible. By reading
the statute with its purpose in mind and covering these vital services,
we ensure real and meaningful access.

[^1]: ^?^ 47 U.S.C. §§ 255, 251(a)(2).

[^2]: ^?^ Telecommunications Act of 1996, Pub. L. No.104-104, 110 Stat.
    56 (1996).

[^3]: ^?^ Americans With Disabilities Act of 1990, Pub. L. No.101-336,
    104 Stat.327 (codified in scattered sections of 42 U.S.C.). *See*
    *e.g.,* Title III, governing Public Accommodations, 42 U.S.C. §
    12181(7) (ADA).

[^4]: ^?^ U.S. Department of Commerce, Bureau of the Census, Series
    P-70, #8; Survey SIPP, 1984.

[^5]: ^?^ U.S. Department of Commerce, Bureau of the Census,
    \"Projections of the Population of the United States, by Age, Sex
    and Race: 1983 to 2080\" (*see* years: \"1990-2050\").

[^6]: ^?^ 42 U.S.C. § 12101 *et seq.*

[^7]: ^?^ Pub. L. 105-17, June 4, 1997, 11 Stat. 37, *codified in* 20
    U.S.C. § 1401 *et seq.*

[^8]: ^?^ Pub. L. 105-394, Nov. 13, 1998, 112 Stat. 3627, *codified in*
    29 U.S.C. § 3001 *et seq*.

[^9]: ^?^ Pub. L. 105-220, Aug. 7, 1998, 112 Stat. 936, *codified in* 29
    U.S.C. § 2801 *et seq*.

[^10]: ^?^ 29 U.S.C. § 798.

[^11]: ^?^ 47 U.S.C. § 225.

[^12]: ^?^ Pub. L. 100-542, Oct. 28, 1988, 102 Stat. 2721, *codified at*
    40 U.S.C. § 762.

[^13]: ^?^ Pub. L. 100-394, Aug. 16, 1988, 102 Stat. 976, *codified at*
    47 U.S.C. § 610.

[^14]: ^?^ Pub. L. 101-431, Oct. 15, 1990, 104 Stat. 961, *codified in*
    47 U.S.C. §§ 303(a), 330(b).

[^15]: ^?^ 42 U.S.C. § 12131 *et seq.*

[^16]: ^?^ *See* UCPA comments, attachment, p. 3.

[^17]: ^?^ National Organization on Disability and Louis Harris and
    Associates, \"Survey of Americans with Disabilities,\" July 23,
    1998.

[^18]: ^?^ S. Rep. No. 104-23, 104th Cong., 1st Sess. 52 (1995), as
    quoted in NAD comments at 10.

[^19]: ^?^ 47 U.S.C. § 255(a).

[^20]: ^?^ 47 U.S.C. § 255(b).

[^21]: ^?^ 47 U.S.C. § 255(c).

[^22]: ^?^ 47 U.S.C. § 255(d).

[^23]: ^?^ 47 U.S.C. § 251(a)(2).

[^24]: ^?^ 47 U.S.C. § 255(f).

[^25]: ^?^ 47 U.S.C. § 255(e). The Access Board is an independent
    Federal agency whose primary mission is to increase access for
    persons with disabilities. In addition to its duties under the Act,
    the Access Board: (1) develops minimum guidelines and requirements
    for standards issued under the ADA and the Architectural Barriers
    Act; (2) enforces the Architectural Barriers Act; and (3) develops
    accessibility standards for electronic and information standards
    under section 508 of the Rehabilitation Act.

[^26]: ^?^ *See* Access Board, Telecommunications Act Accessibility
    Guidelines for Telecommunications Equipment and Customer Premises
    Equipment, Notice of Appointment of Advisory Committee Members and
    Notice of First Meeting, 61 Fed. Reg. 13813 (Mar. 28, 1996).

[^27]: ^?^ Telecommunications Access Advisory Committee, Access to
    Telecommunications Equipment and Customer Premises Equipment by
    Individuals with Disabilities, Final Report, Jan. 1997 (*TAAC
    Report*).

[^28]: ^?^ 36 C.F.R. Part 1163.

[^29]: ^?^ The Access Board Guidelines organize these product functions
    into the two general categories of (1) input related functions and
    (2) output related functions. For each category the Access Board
    lists the kinds of accessibility solutions that should be evaluated,
    such as the ability to be operated without vision and the ability to
    provide auditory information in visual form.

[^30]: ^?^ Architectural and Transportation Barriers Compliance Board,
    *Telecommunications Act Accessibility Guidelines,* 36 C.F.R. Part
    1193, 63 Fed. Reg. 5608-41 (1998) (*Access Board Order*).

[^31]: ^?^ *Implementation of Section 255 of the Telecommunications Act
    of 1996; Access to Telecommunications Service, Telecommunications
    Equipment, and Customer Premises Equipment by Persons with
    Disabilities*, Notice of Proposed Rulemaking, WT Docket No. 96-198,
    13 FCC Rcd 20391 (1998) (*NPRM*); *Implementation of Section 255 of
    the Telecommunications Act of 1996; Access to Telecommunications
    Service, Telecommunications Equipment, and Customer Premises
    Equipment by Persons with Disabilities*, Notice of Inquiry, WT
    Docket No. 96-198, 11 FCC Rcd 19152 (1996).

[^32]: ^?^ *See* list of commenters and reply commenters in Appendix C,
    *infra*.

[^33]: ^?^ *See* section A.4, *infra.*

[^34]: ^?^ *See* section B.3, *infra.*

[^35]: ^?^ *See* section B.3, *infra.*

[^36]: ^?^ *See* section B.3, *infra.*

[^37]: ^?^ *See* section B.3, *infra.*

[^38]: ^?^ *See* section B.4, *infra.*

[^39]: ^?^ *See* section C, *infra.*

[^40]: ^?^ *See* sections C.2, C.3, *infra.*

[^41]: ^?^ *See* section C.2.a, *infra.*

[^42]: ^?^ *See* section B.5, *infra.*

[^43]: ^?^ *See* section D.1.a, *infra.*

[^44]: ^?^ *See* section D.1.b, *infra.*

[^45]: ^?^ *See* section D.2, *infra.*

[^46]: ^?^ *See* section D.3, *infra.*

[^47]: ^?^ *See* sections E.1, E.2, *infra.*

[^48]: ^?^ *See* section E.3, *infra.*

[^49]: ^?^ *NPRM*, 13 FCC Rcd at 20400, ¶ 26. Specifically, we found
    that it is well established that an agency has the authority to
    adopt rules to administer congressionally-mandated requirements. We
    stated that nothing in section 255 bars the Commission from
    exercising the rulemaking authority granted in sections 4(i),
    201(b), and 303(r) to clarify and implement the requirements of
    section 255.

[^50]: ^?^ *See* Lucent comments at 3; NAD comments at 2; OKDRS comments
    at 1; PCIA comments at 6-7; TDI comments at 5. *But see* BSA
    comments at 15-16; CEMA comments at 5 (citing section 255(e) as
    justification for adopting the Access Board\'s guidelines rather
    than issuing additional rules); Siemens comments at 3 (although the
    Commission has sufficient authority to promulgate rules pursuant to
    section 255, rules would be too rigid and constrain innovation).

[^51]: ^?^ *See* 47 U.S.C. § 255(f); *see also* *NPRM*, 13 FCC Rcd at
    20403-05.

[^52]: ^?^ *AT&T Corp. v. Iowa Util. Bd.,* 119 S.Ct. 721, 730 (1999).

[^53]: ^?^ *See* comments filed in response to the *Notice of Inquiry;*
    CEMA comments at 13; ITI comments at 7; SWBT comments at 2. *See
    also Notice of Inquiry*, 11 FCC Rcd at 19163, ¶ 29 (citing S. 652,
    104th Cong., 1st Sess., 262(g)).

[^54]: ^?^ *See, e.g*., USA comments at 14-15.

[^55]: ^?^ *See, e.g*., ACB comments at 2; Ameritech comments at 6-7;
    CCIA comments at 2; NCD comments at 2; SHHH comments at 2-3; USA
    comments at 14-15 Trace comments at 2.

[^56]: ^?^ *See, e.g.,* ACB comments at 2-3; CPB/WGBH comments at 3;
    IDHS comments at 2; WID comments at 2; Access Board comments at 1-2;
    NAD comments at 4; NCD comments at 2; SHHH comments at 3-5; TDI
    comments at 6; USA comments at 4-5; WI-TAN comments at 2.

[^57]: ^?^ For example, we have declined to adopt the Access Board\'s
    volume control standard because it directly contradicts existing
    Commission rules at 47 C.F.R. § 68.317. *See* ¶ 25*, infra*. In
    addition, we recognize the need to relocate \"accessible with
    prosthetics\" from a compatibility criterion to one of
    accessibility. *See* ¶ 27, *infra*.

[^58]: ^?^ Bell Atlantic comments at 3; BSA comments at 13-14; CEMA
    comments at 7; Lucent comments at 3; Siemens comments at 3-4; Trace
    comments at 2.

[^59]: ^?^ IDHS comments at 1; NAD comments at 4; NCD comments at 2; USA
    comments at 4-5; UCPA comments at 2; WI-TAN comments at 2; CTA
    comments at 9; OkATP comments at 1-2.

[^60]: ^?^ *See, e.g.*, Access Board comments at 3 (departures from the
    guidelines which provide less accessibility would result in FCC
    actions which are inconsistent); AFB comments at 4-5 (Commission
    must show substantial basis for departing from the guidelines based
    on the record).

[^61]: ^?^ The language and legislative history of section 255 are not
    particularly instructive about the role Congress intended for the
    Board\'s guidelines. Although Senate Bill S.652, on which the final
    legislation is modeled, had indicated that the Commission
    regulations should be consistent with the standards developed by the
    Access Board, this language was omitted without explanation from the
    final legislation. In view of the non‑binding nature of guidelines,
    this deletion stripped the guidelines of their status as binding
    standards.

[^62]: ^?^ *See* 5 U.S. C. 553(b)(3)(A); *see also* *Aulenback, Inc. v.
    Federal Highway Admin*., 103 F.3d 156, 168-69 (D.C. Cir. 1997);
    *Telecommunications Research and Action Center v. FCC*, 800 F.2d
    1181 (D.C. Cir. 1986).

[^63]: ^?^ 47 U.S.C. § 255(a)(1), *citing* 42 U.S.C. § 12102(2)(A).

[^64]: ^?^ 42 U.S.C. § 12102(2)(A).

[^65]: ^?^ *Access Board Order*, 63 Fed. Reg. 5608. By way of example,
    traditional voice telephone service may not be accessible to people
    with vision disabilities because dialing is obstructed and visually
    displayed information is inaccessible, and people with cognitive
    disabilities may be unable to interact with short-delay automated
    answering services.

[^66]: ^?^ *See, e.g.,* Air Touch comments at 2; AT&T comments at 7; NAD
    comments at 20; Oklahoma DRS comments at 1; SHHH comments at 9; TDI
    comments at 12; AIM comments at 1; AFB comments at 20.

[^67]: ^?^ TIA comments at 20.

[^68]: ^?^ *Access Board Order*, 63 Fed. Reg. 5608. NAD comments at 20;
    SHHH comments at 9; TDI comments at 12; AFB comments at 20.

[^69]: ^?^ The Access Board\'s input, control and mechanical functions
    at 36 C.F.R. § 1193.41 are:

    -Operable without vision

    -Operable with low vision and limited or no hearing

    -Operable with little or no color perception

    -Operable without hearing

    -Operable with limited manual dexterity

    -Operable with limited reach or strength

    -Operable without time-dependent controls

    -Operable without speech

    -Operable with limited cognitive skills

    The output, display and control functions listed by the Access Board
    at 36 C.F.R. § 1193.43 are:

    -Availability of visual information

    -Availability of visual information for low vision users

    -Access to moving text

    -Availability of auditory information

    -Availability of auditory information for people who are hard of
    hearing

    -Prevention of visually-induced seizures

    -Availability of auditory cutoff

    -Non-interference with hearing technologies

    -Hearing aid coupling

[^70]: ^?^ 36 C.F.R. § 1193.3.

[^71]: ^?^ *Access Board Order*, 63 Fed. Reg. 5616.

[^72]: ^?^ 36 C.F.R. § 1193.37.

[^73]: ^?^ *NPRM*, 13 FCC Rcd at 20427-28, ¶ 75. Several commenters
    recognize that both accessibility and usability are necessary
    factors in enabling a person with disabilities to use
    telecommunications services and equipment, but did not advocate
    distinguishing between them. AIM comments at 1; Bell South comments
    at 7; NC Assistive Technology comments at 1; Trace comments at 6.
    SBC interprets \"accessible to and usable by\" to impose a single
    obligation to ensure that a person with disabilities may actually
    use a telecommunications service or piece of equipment, and that
    functional use generally will require accessible support services
    such as product information and instructions. SBC comments at 6. TIA
    was less concerned over whether the definitions were separate or if
    usability was incorporated into accessibility, as long as it is
    clear that accessible product information and customer support are
    essential and required by section 255 if readily achievable. TIA
    reply comments at 18-19.

[^74]: ^?^ NAD disagrees with the combination of accessibility and
    usability, arguing that the requirements of usability are quite
    distinct from those needed to achieve accessibility. NAD comments at
    6. SHHH argues that it is important to preserve the nuances of
    \"usability\" and \"accessibility,\" and therefore opposes the
    combination of the terms. SHHH comments at 10-11. TDI argues that
    each term has an independent objective and should be treated as
    such, and the Commission should maintain the distinction between the
    two terms as presented by the Access Board guidelines. TDI comments
    at 12-13. *See also* UCPA comments at 7.

[^75]: ^?^ *See* *Access Board Order*, 63 Fed. Reg. at 5616.

[^76]: ^?^ *NPRM,* 13 FCC Rcd at 20428, ¶ 76.

[^77]: ^?^ *See infra* ¶ 25.

[^78]: ^?^ *See* ¶ 26, *infra*.

[^79]: ^?^ Phillips comments at 9; TIA comments at 31.

[^80]: ^?^ *See, e.g.,* AIM comments at 1; AT&T comments at 7; LDA
    comments at 1; NAD comments at 6-7; NCD comments at 17; SHHH
    comments at 11; TDI comments at 13.

[^81]: ^?^ 47 U.S.C. § 610. Under section 68.6 of the Commission\'s
    volume control rules, 47 C.F.R. 68.6, all wireline telephones
    (including cordless telephones) manufactured or imported for use in
    the United States as of January 1, 2000 must have a volume control
    feature in accordance with detailed technical specifications at 47
    C.F.R. 68.317. In general, these technical specifications require
    analog and digital telephones to provide between 12-18 dB of volume
    gain. *See* 47 C.F.R. § 68.317.

[^82]: ^?^ *NPRM*, 13 FCC Rcd at 20443, ¶ 114.

[^83]: ^?^ 36 C.F.R. 1193.51(c).

[^84]: ^?^ Trace comments at 5, 14.

[^85]: ^?^ Trace comments at 5-6.

[^86]: ^?^ *See, e.g.,* AccLiv comments at 2; ACB comments at 3; NAD
    comments at 5-6; SHHH comments at 10; California PUC comments at
    7-8; WID comments at 2-3.

[^87]: ^?^ *See* Appendix B, sections 6.13 and 7.13. *See also* AccLiv
    comments at 2-3; ACB comments at 3-4 ; CPB/WGBH comments at 3-5;
    IDHS comments at 2-3; LDA comments at 1-2; PCEPD comments at 8-9;
    LICIL comments at 2-3; WID comments at 2-3; CILNM comments at 1-3 ;
    Lake Co. comments 1-2; SIL comments at 2-3; AFB comments at n. 4;
    WI-TAN comments at 2-3.

[^88]: ^?^ A TTY is a piece of equipment that employs interactive
    text-based communications through the transmission of coded signals
    across the standard telephone network.

[^89]: ^?^ 63 Fed. Reg. 5615-16 (1998).

[^90]: ^?^ Of course, as the Access Board notes, \"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.\" *Access Board Order*,
    63 Fed. Reg. 5616 (1998).

[^91]: ^?^ 47 U.S.C. § 255(d).

[^92]: ^?^ 36 C.F.R. § 1193.3.

[^93]: ^?^ *Access Board Order*, 63 Fed. Reg. 5613.

[^94]: ^?^ *Id.*

[^95]: ^?^ *Id.* at 5616.

[^96]: ^?^ 36 C.F.R. § 1193.51.

[^97]: ^?^ *NPRM*, 13 FCC Rcd at 20434, ¶ 92.

[^98]: ^?^ AccLiv comments at 3; CPB/WGBH comments at 5; Illinois Deaf
    and Hard of Hearing Commission comments at 3; NAD comments at 7-8;
    SHHH comments at 12; TDI comments at 17.

[^99]: ^?^ *See* ¶¶ 25-27, *supra.*

[^100]: ^?^ Also, as discussed in ¶ 30, *supra*, we have concluded that
    \"specialized CPE\" is a subset of CPE and thus subject to the
    \"accessible to\" and \"usable by\" requirements of the statute.

[^101]: ^?^ *NPRM*, 13 FCC Rcd at 20433, ¶ 90.

[^102]: ^?^ The Assistive Technology Act of 1998, Pub. L. 105-394, at
    section 3(a)(3), defines an assistive technology device as \"any
    item, piece of equipment, or product system, whether acquired
    commercially, modified, or customized, that is used to increase,
    maintain, or improve functionality capabilities of individuals with
    disabilities.\" 29 U.S.C. § 3003(a)(3).

[^103]: ^?^ NAD comments at 7-8.

[^104]: ^?^ TDI comments at 16-17.

[^105]: ^?^ *NPRM*, 13 FCC Rcd at 20433, ¶ 87-90.

[^106]: ^?^ *See e.g*., IDHS comments at 2; Missouri Assistive
    Technology Council and Project comments at 3; NAD comments at 8; NCD
    comments at 19; SHHH comments at 11; UCPA comments at 8; USA
    comments at 12; AIM comments at 2; AFB comments at 22; Ok-ATP
    comments at 2 ; TDI comments at 15; TDI reply comments at 8.

[^107]: ^?^ IDHS comments at 2; Missouri Assistive Technology Council
    and Project comments at 3; NCD comments at 18; TDI comments at 15;
    Lighthouse comments at 3; UCPA comments at 8; Trace comments at 6-7;
    TDI reply comments at 8. *Cf.* NAD comments at 8; SHHH comments at
    12; USA comments at 11-12 (arguing that using state equipment
    distribution programs as guidelines could create a useful rebuttable
    presumption).

[^108]: ^?^ IDHS comments at 3; Missouri Assistive Technology Council
    and Project comments at 3; Motorola comments at 48; NAD comments at
    8; SHHH comments at 11; TDI comments at 15.

[^109]: ^?^ IDHS comments at 2 (list to be posted on the FCC web site);
    ITI comments at 24 (supporting an informational list, but opposing a
    mandatory list); Missouri Assistive Technology Council and Project
    comments at 3; NAD comments at 9 (FCC in conjunction with the Assoc.
    of Access Engineering Specialists), SHHH at 11, TDI at 15 (after
    consultation with consumer groups); USA comments at 12; Ok-ATP
    comments At 2; ITI reply comments at 17 (urging the Commission keep
    the list in order to assure impartiality); MMTA reply comments at
    10-11 (holding that unless there is a list, manufacturers should be
    given broad latitude in deciding what is \'commonly used\'); TIA
    reply comments at 27-29 (preferring a list to provide clear notice;
    and by requiring compliance with industry interoperability standards
    and the use of standard connectors, a list could encourage a forward
    looking approach to compatibility).

[^110]: ^?^ \"Intelligent Network,\" a tutorial sponsored by Telcordia
    Technologies (formerly Bellcore) available at
    [http://www.webforum.com/in/topic01.html]{.underline}.

[^111]: ^?^ *Id*.

[^112]: ^?^ Van Bosse, John G., [Signaling in Telecommunications
    Networks]{.underline}, John Wiley & Sons, New York (1998), pp.
    59-60.

[^113]: ^?^ \"Intelligent Network,\" a tutorial sponsored by Telcordia
    Technologies (formerly Bellcore) available at
    [http://www.webforum.com/in/topic10.html]{.underline} (downloaded
    June 20, 1999).

[^114]: ^?^ 47 U.S.C. § 153 (45)

[^115]: ^?^ *NPRM*, 13 FCC Rcd at 20422-23, ¶ 63.

[^116]: ^?^ 47 U.S.C. § 255(b), (c).

[^117]: ^?^ 47 U.S.C. § 255(d).

[^118]: ^?^ 47 U.S.C. § 255(a)(2).

[^119]: ^?^ 42 U.S.C. § 12181(9).

[^120]: ^?^ 42 U.S.C. § 12182(b)(2)(A)(iv).

[^121]: ^?^ 42 U.S.C. § 12182(b)(2)(A)(v).

[^122]: ^?^ The definition of \"readily achievable,\" as adopted by the
    DOJ at 28 C.F.R. § 36.104, states:

    Readily achievable means easily accomplishable and able to be
    carried out without much difficulty or expense. In determining
    whether an action is readily achievable factors to be considered
    include‑‑

    \(1\) The nature and cost of the action needed under this part;

    \(2\) The overall financial resources of the site or sites involved
    in the action; the number of persons employed at the site; the
    effect on expenses and resources; legitimate safety requirements
    that are necessary for safe operation, including crime prevention
    measures; or the impact otherwise of the action upon the operation
    of the site;

    \(3\) The geographic separateness, and the administrative or fiscal
    relationship of the site or sites in question to any parent
    corporation or entity;

    \(4\) If applicable, the overall financial resources of any parent
    corporation or entity; the overall size of the parent corporation or
    entity with respect to the number of its employees; the number,
    type, and location of its facilities; and

    \(5\) If applicable, the type of operation or operations of any
    parent corporation or entity, including the composition, structure,
    and functions of the workforce of the parent corporation or entity.

[^123]: ^?^ *See* 28 C.F.R. Part 36, App. B at p. 43. The DOJ noted that
    its inclusion of \"parent entity\" was consistent with the House
    Judiciary Committee\'s description of the larger entity of which the
    local facility is a part. *Id., citing* H.R. Rep. No. 485, 101st
    Cong., 2d Sess., Pt. 3 at 40-41, 54-55 (1990). The DOJ also noted
    that its re-ordering of the factors and the addition of the term
    \"if applicable\" was intended to make clear that the line of
    inquiry concerning factors will start at the site involved in the
    action itself. *Id.*

[^124]: ^?^ *Id.* We note that the propriety of considering legitimate
    safety requirements has been recognized in case law arising under
    the Rehabilitation Act of 1973. *See* *School Board of Nassau County
    v. Arline,* 480 U.S. 273 (1987).

[^125]: ^?^ 28 C.F.R. § 36.304(b).

[^126]: ^?^ 28 C.F.R. § 36.304(c).

[^127]: ^?^ *See* 28 C.F.R. Part 36, App. B at page 42.

[^128]: ^?^ Bell Atlantic comments at 5; CEMA comments at 5; PCIA reply
    comments at 7.

[^129]: ^?^ *See* 42 U.S.C. § 12181(9).

[^130]: ^?^ *NPRM*, 13 FCC Rcd at 20437-40, ¶ 100-106.

[^131]: ^?^ *See* Appendix B, sections 6.3 and 7.3 for text of the final
    rule.

[^132]: ^?^ Commenters expressed various views as to which factors
    appropriately could be considered in determining what is readily
    achievable. For example, many from the disability community
    expressed the view that market factors or cost recovery should not
    enter into a readily achievable analysis. *See, e.g*., Access Living
    of Metropolitan Chicago comments at 4; ACB comments at 4; Access
    Board comments at 4-5; Blackseth comments at 1; Center for
    Independent Living comments at 1; Center for Disability Rights
    comments at 2; CEMA comments at 10; CPB/WGBH comments at 7;
    Garretson comments at 2; Geeslin comments at 1; Illinois Deaf and
    Hard of Hearing Commission comments at 4, NAD comments at 21 and 32;
    NCD comments at 21; President\'s Committee on Employment of People
    with Disabilities comments at 13; Rank comments at 1; CILNM comments
    at 4; Philips comments at 5-6. Other commenters encouraged the
    Commission to modify the factors to take into account the
    differences between architectural and transportation barrier
    removal, on the one hand, and the telecommunications industry, on
    the other hand. *See, e.g*., Ameritech comments at 8; AT&T comments
    at 8; Bell South comments at 8-9; ITI comments at 31-32; Missouri
    Assistive Technology Council and Project comments at 4 (however,
    objecting to market considerations as not allowed under ADA);
    Motorola comments at 24-31; MMTA comments at 10; SBC comments at 12
    (compliance with universal design policy may not be measured by
    readily achievable analysis of a finite list of features); *see
    also* Siemens comments at 6; TDI comments at 16; USA comments at
    7-8; Vickery comments at 8; Wi-Tan comments at 4; WID comments at 5;
    CalPUC comments at 8 (start with the ADA but add other factors);
    Oklahoma Assistive Technology Project comments at 3. Finally, some
    commenters thought that a determination of what is readily
    achievable is so fact-specific that no list of factors adequately
    would address the complexity of issues that could arise in
    individual cases. *See, e.g*., Bell Atlantic comments at 5; CCIA
    comments at 1-2.

[^133]: ^?^ Air Touch comments at 4-5. *See also* NAD comments at 21.

[^134]: ^?^ *See*, *e.g.,* Motorola comments at 6-24; CEMA comments at
    8-10; TIA comments at 9-18; Lucent comments at 5, 8-10.

[^135]: ^?^ 47 U.S.C. § 255(b).

[^136]: ^?^ 47 U.S.C. § 255(c).

[^137]: ^?^ AccLiv comments at 3; ACB comments at 3.

[^138]: ^?^ Architectural Barriers Act of 1968, 42 U.S.C. § 4151 *et.
    seq. See also* PL 105-394, section 3(a)(17), November 13, 1998
    (Assistive Technology Act of 1998), which defines \"universal
    design\" as \"a concept or philosophy for designing products and
    services that are usable by people with the widest possible range of
    functional capabilities, which include products and services that
    are directly usable (without requiring assistive technologies), and
    products and services that are made usable with assistive
    technologies.\" 29 U.S.C. § 3003(a)(17).

[^139]: ^?^ For some examples of accessible design features, *see* *EZ
    Access Strategies for Cross-Disability Access to Kiosks, Telephones
    and VCRs,* available at the Trace web site
    ([http://www.trace.wisc.edu]{.underline}).

[^140]: ^?^ 42 U.S.C. § 12181(9)(A).

[^141]: ^?^ *NPRM*, 13 FCC Rcd at 20441-47, ¶ 111-121.

[^142]: ^?^ *Id.*

[^143]: ^?^ Access Board comments at 4.

[^144]: ^?^ *See* Blackseth comments at 1; Geeslin comments at 1;
    Ireland comments at 11; Kailes comments at 2; LDA comments at 2;
    Missouri Assistive Technology Council and Project comments at 4;
    Sergeant comments at 2; USA comments at 10; Wilson comments at 1;
    Meecham comments at 1.

[^145]: ^?^ *See*, *e.g*., Motorola comments at 37.

[^146]: ^?^ *See* 28 C.F.R. Part 36, App. B at page 45.

[^147]: ^?^ The term \"cumulative cost\" would include both the
    incremental cost of the accessibility feature for the specific
    product or service and the total costs of the entity\'s section 255
    compliance efforts during the same fiscal period.

[^148]: ^?^ *See, e.g.,* Phillips comments at 7; Lucent comments at 5;
    CEMA comments at 14.

[^149]: ^?^ *See* letter of Karen Peltz Strauss, NAD, et al. to Magalie
    Roman Salas, FCC, dated January 20, 1999 (NAD Ex Parte) at 6.

[^150]: ^?^ *Access Board Order* at 63 Fed. Reg. 5633 (1998).

[^151]: ^?^ *Access Board Order* at 63 Fed. Reg. 5614 (1998).

[^152]: ^?^ TIA comments at 49-50; SHHH reply comments at 3; TDI reply
    comments at 13; TIA reply comments at 4.

[^153]: ^?^ *See generally Southeastern Community College v. Davis*, 442
    U.S. 397 (1979); *Alexander v. Choate* 469 U.S. 287 (1985).

[^154]: ^?^ *See, e.g.,* SHHH comments at 14.

[^155]: ^?^ BellSouth comments at 9. For example, standards under Part
    68 of our rules designed to prevent harm to the network may render a
    proposed feature infeasible, if the proposed feature would need to
    exceed Part 68 signal strength limitations. *See also* CTIA comments
    at 7 (bundling restrictions for wireline services may affect
    feasibility).

[^156]: ^?^ AFB comments at 23.

[^157]: ^?^ AFB comments at 24; Bell South comments at 9; Campaign for
    Telecommunications Access comments at 14; CTIA comments at 7-8; NAD
    comments at 4, 21-22; NCD comments at 24; Nortel comments at 8; SHHH
    comments at 14 (asserting that it is not sufficient to demonstrate
    that others have not found a feasible solution); UCPA comments at
    11.

[^158]: ^?^ *See* 28 C.F.R. Part 36, App. B at page 43.

[^159]: ^?^ *See* 28 C.F.R. Part 36, App B at p. 44: \". . .the line of
    inquiry concerning factors will start at the site involved in the
    action itself . . . . the overall resources, size, and operations of
    the parent corporation or entity should be considered to the extent
    appropriate in light of the geographic separateness, and the
    administrative or fiscal relationship of the site or sites in
    question to any parent corporation or entity.\"

[^160]: ^?^ In this regard, the geographical separateness and the
    administrative or fiscal relationship of the entities would be
    considered*. See*, *e.g.*, SBC comments at 11-12; Bell Atlantic
    comments at 6-7.

[^161]: ^?^ *See* 28 C.F. R. Part 36, App. B. at p. 43.

[^162]: ^?^ Lucent Comments at 9.

[^163]: ^?^ Bell Atlantic comments at 7; CEMA reply comments at 4-5;
    USTA reply comments at 12.

[^164]: ^?^ *NPRM*, 13 FCC Rcd at 20440-41, ¶ 109.

[^165]: ^?^ NAD comments at 24; SHHH comments at 14; Lighthouse comments
    at 3; TDI comments at 18-19; COR reply comments at 9; NCD reply
    comments at 5; GTE comments at 9; SBC comments at 11 (supporting
    proposal). *Cf*. USA comments at 11; USA reply comments at 12; TIA
    comments at 50-51; ITI comments at 28; ITI reply comments at 21
    (objecting to proposal).

[^166]: ^?^ *Cf.* 28 C.F.R. Part 36, App. B at p. 44: \"The obligation
    to engage in readily achievable barrier removal is a continuing one.
    Over time, barrier removal that initially was not readily achievable
    may later be required because of changed circumstances.\"

[^167]: ^?^ By a product \"cycle,\" we generally mean the life of the
    product from the time the product is first designed to the time it
    is distributed to consumers, and we do not intend to include the
    expected life of the product, once purchased by the consumer, as
    within the product \"cycle.\"

[^168]: ^?^ We caution, however, that some \"cosmetic\" changes, such as
    changes to the font or characters printed on a product, could have
    an adverse impact on accessibility.

[^169]: ^?^ *See* NAD Ex Parte in WTB Docket 96-198 at 4.

[^170]: ^?^ 47 U.S.C. § 255.

[^171]: ^?^ 47 U.S.C. § 153(43).

[^172]: ^?^ 47 U.S.C. § 53(46).

[^173]: ^?^ *NPRM*, 13 FCC Rcd at 20409-10, ¶ 36.

[^174]: ^?^ *See, e.g.* Bell Atlantic comments at 4; GTE comments at 4;
    ITI comments at 8; SBC comments at 3; Microsoft reply comments at 4.

[^175]: ^?^ *See Non-Accounting Safeguards Order*, 11 FCC Rcd at 21958.

[^176]: ^?^ *See* *North American Telecommunications Association
    Petition for Declaratory Ruling under Section 64.702 of the
    Commission\'s Rules Regarding the Integration of Centrex, Enhanced
    Services, and Customer Premises Equipment*, ENF No. 84-2, Memorandum
    Opinion and Order, 101 FCC 2d 349 (1985) (*NATA Centrex Order*),
    *recon*., 3 FCC Rcd 4385 (1988).

[^177]: ^?^ *NATA* *Centrex Order*, 101 FCC 2d at 359-61.

[^178]: ^?^ *See, e.g.,* Blackseth comments at 1; IDHS comments at 2;
    Kailes comments at 3; PCPED comments at 11; USA comments at 8. Some
    commenters urged the inclusion of certain enumerated information
    services in the definition of \"telecommunications services.\" *See,
    e.g.,* Dietrich comments at 1; Ireland comments at 2; Lapointe
    comments at 2-3; TDI comments at 8; WI-TAN comments at 4.

[^179]: ^?^ *NPRM,* 13 FCC Rcd at 20413, ¶ 42.

[^180]: ^?^ The Act defines an \"information service\" as \"the offering
    of a capability for generating, acquiring, storing, transforming,
    processing, retrieving, utilizing, or making available information
    via telecommunications, and includes electronic publishing, but does
    not include any use of any such capability for the management,
    control, or operation of a telecommunications system or the
    management of a telecommunications service.\" Section 3(20), 47
    U.S.C. 153(20). We note that information services consist of all
    services that the Commission previously considered to be enhanced
    services under the regulatory structure it had established in the
    1980 *Computer II* proceeding. Amendment of Section 64.702 of the
    Commission\'s Rules and Regulations (*Computer II*), Docket No.
    20828, Final Decision, 77 FCC 2d 384, 435 (1980), *recon*., 84 FCC
    2d 50 (1980), *further recon*., 88 FCC 2d 512 (1981), *aff\'d sub
    nom*. Computer and Communications Industry Ass\'n v. FCC, 693 F.2d
    198 (D.C. Cir. 1982), *cert. denied*, 461 U.S. 938 (1983). Enhanced
    services are defined in section 64.702(a) of the Commission\'s rules
    as \"services, offered over common carrier transmission facilities
    used in interstate communications, which employ computer processing
    applications that act on the format, content, code, protocol or
    similar aspects of the subscriber\'s transmitted information;
    provide the subscriber additional, different, or restructured
    information; or involve subscriber interaction with stored
    information,\" and include, among other things, such services as
    voice mail, electronic mail, facsimile store-and-forward,
    interactive voice response, protocol processing, gateway, and
    audiotext information services.

[^181]: ^?^ *NPRM*, 13 FCC Rcd at 20409, ¶ 35

[^182]: ^?^ In re Federal-State Joint Board on Universal Service, CC
    Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501 (1998)
    (*Report to Congress*).

[^183]: ^?^ *Report to Congress*, 13 FCC Rcd at 11507, ¶ 13.

[^184]: ^?^ *NPRM*, 13 FCC Rcd at 20414-15, ¶ 44-45.

[^185]: ^?^ *See e.g.*, NAD comments at 17; UCPA comments at 5-6;
    Ameritech comments at 7-8; SBC comments at 5.

[^186]: ^?^ 47 U.S.C. § 153(44).

[^187]: ^?^ *Id.*

[^188]: ^?^ 47 U.S.C. § 153(45).

[^189]: ^?^ 47 U.S.C. § 153(14).

[^190]: ^?^ *NPRM*, 13 FCC Rcd at 20419, ¶ 55.

[^191]: ^?^ *See, e.g.,*AFB comments at 15; AIM comments at 1; Mulvaney
    comments at 6; NAD comments at 18.

[^192]: ^?^ 47 U.S.C. § 153(14).

[^193]: ^?^ *NPRM*, 13 FCC Rcd at 20419, ¶ 56.

[^194]: ^?^ ITI comments at 12; Microsoft reply comments at 7.

[^195]: ^?^ AccLiv comments at 3; ACB comments at 3-4; ILDEAF comments
    at 3; LDA comments at 2; CILNM comments at 2-3; CPB/WGBH comments at
    5; IDHS comments at 3; Lake County comments at 2; Lighthouse
    comments at 3; NAD comments at 11; NCD comments at 15-16; PCEPD
    comments at 9-10; SHHH comments at 8; SIL comments at 3; TDI
    comments at 11; TRACE comments at 11; UCPA comments at 6-7; USA
    comments at 6; WI-TAN comments at 3; WID comments at 3-4.

[^196]: ^?^ *See* NCD comments at 13-14 (arguing that if the
    functionality of telecommunications equipment or CPE is the issue in
    determining a device\'s accessibility, then distinctions among
    hardware, firmware and software are pointless, and that it hardly
    matters to the CPE user whether software was sold with the CPE, or
    was purchased later from a different source at the election of the
    user for use with the CPE); SHHH comments at 8 (arguing that
    software is a component of the CPE that is required in order to use
    the device for a telecommunications function, and it is not logical
    to exclude software that is not initially bundled with the CPE
    because it can and will be used with the CPE later); IDHS at 3
    (arguing that all software should be covered and made accessible if
    it is used as a telecommunications device); USA comments at 5
    (arguing that from a consumer\'s point of view, there is no
    difference in whether a telecommunications function is accomplished
    through hardware, software, or a combination thereof). *See also*
    AFB comments at 15; CPB/WGBH comments at 5; NAD comments at 18; TDI
    comments at 11; Trace comments at 5; WI-TAN comments at 3; WID
    comments at 3-4; TDI comments reply at 6.

[^197]: ^?^ *See* Trace reply comments at 12.

[^198]: ^?^ *See* Trace reply comments at 12.

[^199]: ^?^ *See* ITI comments at 12; BSA comments at 9.

[^200]: ^?^ *Access Board Order*, 63 Fed. Reg. at 5612.

[^201]: ^?^ AFB comments at 13; AIM comments at 1; AFB reply comments at
    11-12.

[^202]: ^?^ *Access Board Order*, 63 Fed. Reg. at 5612.

[^203]: ^?^ NAD comments at 18; SHHH comments at 8 (arguing that we
    would be encouraging evasion of section 255 obligations if we were
    to determine a manufacturer's compliance based upon its subjective
    intent about how the product should be used).

[^204]: ^?^ CEMA comments at 8; TIA comments at 57-59; CEMA reply
    comments at 9; Lucent reply comments at 3-4; Motorola reply comments
    at 20; TIA reply comments at 49.

[^205]: ^?^ *NPRM*, 13 FCC Rcd at 20420, ¶ 57.

[^206]: ^?^ 36 C.F.R. § 1193.3.

[^207]: ^?^ *Acc*ess Board Order, 63 Fed. Reg. at 5613.

[^208]: ^?^ BellSouth comments at 6; Sprint comments at 5-6; Tandy reply
    comments at 5-7.

[^209]: ^?^ *Access Board Order*, 63 Fed. Reg. at 5613.

[^210]: ^?^ Bell Atlantic comments at 5.

[^211]: ^?^ *See* ITI comments at 13-14.

[^212]: ^?^ NAD comments at 19 (stating that such action is consistent
    with prior Commission rulings requiring accessible features on
    imported telephones (*i.e.*, hearing aid compatibility), and
    imported televisions (*i.e.* decoder circuitry for closed
    captioning)); SHHH comments at 9 (noting that, given the large
    percentage of telecommunications equipment that is produced outside
    the U.S., section 255 would be severely limited if it were not
    applied universally to foreign as well as domestic markets). We
    decline, however, to adopt ITI\'s suggestion that we extend the
    reach of section 255 to importers. *See* ITI comments at 12-13. As
    already stated, post-manufacturing entities such as importers, are
    not covered by section 255.

[^213]: ^?^ *NPRM*, 13 FCC Rcd at 20420, ¶ 58.

[^214]: ^?^ *See* 36 C.F.R. § 1193.3.

[^215]: ^?^ Implementation of the Non-Accounting Safeguards of Sections
    271 and 272 of the Communications Act of 1934, as amended, CC Docket
    No. 96-149, First Report and Order and Further Notice of Proposed
    Rulemaking, 11 FCC Rcd 21905, 21955, ¶ 102 (1996) (\"all of the
    services that the Commission has previously considered to be
    \'enhanced services\' are \'information services\'\"), Order on
    Reconsideration, 12 FCC Rcd 2297 (1997), *further recon. pending*,
    Second Report and Order, 12 FCC Rcd 15756 (1997), *aff\'d sub nom.
    Bell Atlantic Telephone Companies, et al v. FCC, et al*., 131 F.3d
    1044 (D.C. Cir. 1997).

[^216]: ^?^ *Computer and Communications Industry Association v. FCC*,
    693 F.2d 198, 213 (D.C. Cir. 1982), *cert. denied*, *Louisiana
    Public Service Commission v. FCC*, 461 U.S. 938 (1983). Pending
    before the court were several FCC orders, known broadly as *Computer
    II*, in which the Commission asserted ancillary jurisdiction over
    information service. The court designated the following orders as
    comprising the *Computer II* decision: \"Final Decision, In re
    Amendment of Section 64.702 of the Commission\'s Rules and
    Regulations (Second Computer Inquiry), 77 F.C.C. 2d 384 (1980)
    (Co*mputer II Final Decision*); Memorandum Opinion and Order,
    Amendment of Section 64.702 of the Commission\'s Rules and
    Regulations (*Second Computer Inquiry*), 84 F.C.C. 2d 50 (1980)
    (*Computer II Reconsideration Decision*); Memorandum Opinion and
    Order on Further Reconsideration, Amendment of Section 64.702 of the
    Commission\'s Rules and Regulations (*Second Computer Inquiry*), 88
    FCC 2d 512 (1981) (*Computer II Further Reconsideration
    Decision.*)\" *Id*. at n.1

[^217]: ^?^ *Computer and Communications Industry Association,* 693 F.2d
    at 213.

[^218]: ^?^ *Id*. at 213, *referring* to *United States v. Southwestern
    Cable Co.*, 392 U.S. 157, 88 S.Ct. 1994, 2005 (1968) (Commission has
    jurisdiction over that which is \"reasonably ancillary to the
    effective performance of the Commission\'s various
    responsibilities\").

[^219]: ^?^ *Id*.

[^220]: ^?^ *See generally* *United States v. Southwestern Cable Co.*,
    392 U.S. 157, 88 S.Ct. 1994 (1968); *see also* *Second Computer
    Inquiry,* 77 FCC 2d. at 432, ¶ 126.

[^221]: ^?^ *In Computer III*, the Commission adopted a new regulatory
    regime that substituted \"nonstructural\" safeguards for *Computer
    II*\'s requirements that information services be offered only
    through a separate subsidiary. The Commission determined that
    information services could be offered by carriers on an integrated
    basis, provided that those previously subject to separation
    requirements file a plan for \"comparably efficient
    interconnection\" (CEI). *See* Amendment of Section 64.702 of the
    Commission\'s Rules and Regulations (*Computer III*), CC Docket No.
    85-229, Phase I, 104 FCC 2d 958, 118-21 (1986) (*Phase I Order*),
    *recon*., 2 FCC Rcd 3035 (1987) *(Phase I Recon. Order*), *further
    recon*., 3 FCC Rcd 1135 (1988) *(Phase I Further Recon. Or*der),
    *Phase I Order* and *Phase I Recon. Order vacated, California v.
    FCC*, 905 F.2d 1217 (9th Cir. 1990); Phase II, 2 FCC Rcd 3072 (1987)
    (*Phase II Order*), *recon*., 3 FCC Rcd 1150 (1988) (*Phase II
    Recon. Order*), *Phase II Order*, *vacated, California v. FCC*, 905
    F.2d 1217 (9th cir. 1990); Computer III Remand Proceedings, 5 FCC
    Rcd 7719 (1990) (*ONA Remand Order*), recon., 7 FCC Rcd 909 (1992),
    *pets. for review denied, California v. FCC*, 4 F.3d 1505 (9th Cir.
    1993); Computer III Remand Proceedings: Bell Operating Company
    Safeguards and Tier 1 Local Exchange Company Safeguards, 6 FCC Rcd
    7571 (1991) (*BOC Safeguards Order*); *BOC Safeguards Order vacated
    in part and remanded, California v.* FCC, 39 F.3d 919 (9th Cir.
    1994) (*California III*). Since that requirement took effect,
    carriers have filed numerous CEI plans covering both voice mail and
    interactive menus, among other services. *See, e.g.,* Bell Operating
    Companies Joint Petition for Waiver of Computer II Rules, 10 FCC Rcd
    13758, 13770-13774, App. A (Com.Car.Bur. 1995) (*BOC CEI Plan
    Approval Order*).

[^222]: ^?^ *See* Attachment to Letter from Brian F. Fontes, CTIA, to
    Chairman William E. Kennard, dated July 7, 1999 (*ex parte*
    submission in WT Docket No. 96-198).

[^223]: ^?^ 47 U.S.C. § 151.

[^224]: ^?^ 47 U.S.C. § 152.

[^225]: ^?^ 47 U.S.C. §§ 153(33), 153(51).

[^226]: ^?^ *See*, e.g., AccLiv. comments at 2-3; NAD comments at 16-17;
    NCOD comments at 1-2; Kear comments at 2; Mulvany comments at 3;
    Nelson comments at 3; Vickery comments at 2-3; MiATC comments at 2;
    Illinois Deaf and Hard of Hearing Commission comments at 3-4; DDTP
    comments at 4-5; CPB/WGBH National Center for Accessible Media
    comments at 6, LaPointe comments at 2-3, Janes comments at 3; ACB
    comments at 4; WID comments at 4-5; Lake County Center for
    Independent Living comments at 3-4; Dietrich comments at 1; Ireland
    comments at 2; The Lighthouse comments at 2; UCPA comments at 3-4;
    AFB comments at 6-8; Oklahoma Department of Rehabilitation Services
    comments at 2-3.

[^227]: ^?^ *See, e.g.,* Petition for Emergency Relief and Declaratory
    Ruling Filed by the BellSouth Corp., 7 FCC Rcd. 1619 (1992) (ruling
    that the Georgia Public Service Commission was preempted from
    interfering with BellSouth\'s provision and marketing of voicemail
    service under the terms and conditions set forth in its FCC-approved
    CEI plan).

[^228]: ^?^ *See* Amendment of Section 64.702 of the Commission\'s Rules
    and Regulations (*Second Computer Inquiry*), Memorandum Opinion and
    Order, 84 FCC 2d 50 at ¶ 144, (1980).

[^229]: ^?^ *Computer and Communications Industry Association,* 693 F.2d
    at 213.

[^230]: ^?^ *See, e.g.*, Blackseth comments at 1; Dietrich comments at
    1; Garretson comments at 3; Hoshauer comments at 1; Ireland comments
    at 2; Janes comments at 3; Kear comments at 2 ; LaPointe comments at
    2-3; MiATC comments at 1; Nelson comments at 2; PCEPD comments at
    2-4; CDC comments at 1-2; OKDRS comments at 1; NCOD comments at 1-2;
    SHHH comments at 6; TDI comments at 8; LICIL comments at 3; AIM
    comments at 1; SHHH reply comments at 16-17; TDI reply comments at
    5; Kailes comments at 3; CCDI comments at 2-3; Mulvaney comments at
    3; Vickery comments at 3; AIM comments at 1; AFB comments at 9; Born
    comments at 2; Witkin comments at 1; DeVilbiss comments at 2; AccLiv
    comments at 3; MoGCD comments at 3; ACB comments at; CPB/WBGH
    comments at 6; ILDEAF comments at 3-4; IDHS comments at 3; LDA
    comments at 2; CILNM comments at 3-4; Lake County comments at 1; SIL
    comments at 3-4; NAD comments at 15-16; NCD comments at 10; WI-TAN
    comments at 4; WID comments at 4; UCPA comments at 11.

[^231]: ^?^ COR reply comments at i.

[^232]: ^?^ APT reply comments at 4.

[^233]: ^?^ BUTLER comments at 2; CFILC comments at 2; CDR comments at
    2; CCDI comments at 1 (noting statute affects 54 million Americans
    with disabilities); Eleoff comments at 1; Huber comments at 1;
    Mitchell comments at 1; NC -ATP comments at 1; Radke comments at 1
    (fully employed person with quadriplegia who has relied on advanced
    telecommunications for opportunities to learn, work and participate
    in the community); Mutuum comments at 2 (\"You might as well call
    all nourishment except bread and water \'enhancement\'.\"); CNMI
    comments at 1-2; Andrews comments at 2.

[^234]: ^?^ UCPA comments at 11.

[^235]: ^?^ Dietrich comments at 1; Ireland comments at 2; Janes
    comments at 3; Kear comments at 2; LaPointe comments at 2-3 ; MiATC
    comments at 1; OK-DRS comments at 1 ; NCOD comments at 1-2; SHHH
    comments at 6; TDI comments at 8; LICIL comments at 3; AIM comments
    at 1; SHHH reply comments at 16-17; TDI reply comments at 5;
    Lapointe reply comments at 1; Kailes comments at 3; Mulvaney
    comments at 3; Vickery comments at 3; AIM comments at 1; AFB
    comments at 9; Born comments at 2; Witkin comments at 1; DeVilbiss
    comments at 2; AccLiv comments at 3; ACB comments at 4; CPB/WBGH
    comments at 6; ILDEAF comments at 3-4; LDA comments at 2; CILNM
    comments at 3-4; Lake County comments at 1; SIL comments at 3-4; NAD
    comments at 15-16; NCD comments at 10; WI-TAN comments at 4; WID
    comments at 4.

[^236]: ^?^ Mulvaney comments at 3

[^237]: ^?^ *See, e.g.,* Ireland comments at 2 (\"Voice mail and
    automated voice response systems, so common today, are impossible
    for many hard of hearing people to understand. Ears affected by
    hearing loss, even when properly fitted with hearing aids, cannot
    process sound as quickly as normal ears; by the time the first word
    or two are deciphered, the speaker is already on to the next
    sentence.\")

[^238]: ^?^ CILMN comments at 3-4.

[^239]: ^?^ A number of carriers have made a similar point in comments
    submitted in other proceedings where they have argued that various
    messaging services are \"integral\" to the telecommunications
    services provided by the carrier, and that services such as
    voicemail therefore should be treated differently than other
    information services. (Petition of Bell Atlantic at 7-8, Petition of
    NTCA at 6-7, Petition of Primeco at 6-7, Petition of SBC at 7,
    Petition of TDS at 6, filed in Telecommunication Carriers\' Use of
    Customer Proprietary Network Information and Other Customer
    Information, CCB Docket 96-115 (*CPNI Proceeding*)).

[^240]: ^?^ *Southwestern Cable*, 392 US at 175-77.

[^241]: ^?^ BSA reply comments at 3-4; CEMA comments at 9; CTIA reply
    comments at 10; GTE comments at 3; ITI comments at 9; Microsoft
    reply comments at 7-8; PCIA reply comments at 4-5; SBC reply
    comments at 2,4; SBC comments at 3; Sprint reply comments at 3-4;
    TIA reply comments at 43; USA comments at 4.

[^242]: ^?^ *Mobile Communications Corp. of America v. FCC*, 77 F.3d
    1399, 1404-05 (D.C. Cir. 1996 (citiations omitted)), *cert. denied
    Mobile Telecommunication Technologies Corp. v. FCC*, 519 U.S. 823
    (1996).

[^243]: ^?^ 47 U.S.C. § 309(j)(13)(D)(iv).

[^244]: ^?^ *Mobile Communications Corp. of America*, 77 F.3d at 1404
    (citation omitted).

[^245]: ^?^ *Id* at 1405 (citation omitted).

[^246]: ^?^ *Id*.

[^247]: ^?^ In *United Video, Inc. v. FCC,* 890 F.2d 1173, 1183 (D.C.
    Cir. 1989), the court also sustained our ancillary jurisdiction in
    the face of an argument akin to [expressio unius]{.underline}. At
    issue was the FCC\'s syndicated exclusivity rule, which was
    predicated upon our section 303(r) powers and ancillary
    jurisdiction. Petitioners had suggested that any such authority was
    constrained by the enactment of the 1984 Cable Act. Because the
    Cable Act did not affirmatively authorize the syndex rules,
    petitioners argued that they were impermissible. The court
    disagreed: \"\[the syndex rules\] clearly fall within the Act\'s
    general authority, the regulation of interstate and foreign
    communication by wire or radio\... \[and\] were reasonably adopted
    in furtherance of a valid communications policy goal. Hence, they
    fall under the Commission\'s section 303(r) powers unless they are
    \'inconsistent with law\'.\" *Id*. Thus, even where Congress has
    enacted legislation addressing a subject, that does not bar the
    Commission from using its ancillary jurisdiction where reasonably
    required to further a valid statutory goal - - in this case, the
    effective implementation of sections 255 and 251(a)(2).

[^248]: ^?^ BSA reply comments at 4-5.

[^249]: ^?^ ITI reply comments at 11-12; Microsoft reply comments at
    4-5; Sprint reply comments at 4.

[^250]: ^?^ *See, e.g.*, BSA comments at 14-15; CEMA comments at 24-26;
    TIA comments at 97-98.

[^251]: ^?^ *See, e.g.*, BSA comments at 15; CEMA comments at 24-26; TIA
    comments at 97-98.

[^252]: ^?^ *See, e.g.*, Ameritech comments at 10-11.

[^253]: ^?^ *See, e.g.*, Ameritech comments at 10-11.

[^254]: ^?^ *See, e.g.*, Ameritech comments at 10-11.

[^255]: ^?^ *See, e.g.*, NAD comments at 39-40; NCD comments at 35; AIM
    comments at 3; Oklahoma DRS comments at 2.

[^256]: ^?^ 47 U.S.C. § 207.

[^257]: ^?^ *See, e.g.* BSA comments at 15; CEMA comments at 24-26; SBC
    comments at 27.

[^258]: ^?^ *NPRM*, 13 FCC Rcd at 20408, ¶ 32-33.

[^259]: ^?^ *See* 47 U.S.C. § 153(10) (term \"common carrier\" or
    \"carrier\" means any person engaged as a common carrier for hire,
    in interstate or foreign communications by wire or radio or in
    interstate or foreign communication by wire or radio).

[^260]: ^?^ Commenters argued that the Conference Report accompanying
    Section 255 specifically references the availability of damages
    awards pursuant to Section 207 to remedy violations of Section 255
    and makes no distinction between manufacturers and service
    providers, demonstrating that Congress clearly intended for
    manufacturers and service providers to be treated uniformly for all
    purposes under Section 255. *See, e.g.,* NAD comments at 39-40. .

[^261]: ^?^ *Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.*, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781 (1984).

[^262]: ^?^ *Id*.

[^263]: ^?^ *See Bell Atlantic Tel. Cos. v. FCC,* 131 F.3d 1044 (D.C.
    Cir. 1997).

[^264]: ^?^ *See, e.g.*, Uniden comments at 8-9, TIA reply comments at
    64-67.

[^265]: ^?^ *See, e.g.*, Business Software Alliance comments at 15; CEMA
    comments at 24-26; TIA comments at 97-98; SBC comments at 27.

[^266]: ^?^ *See., e.g.*, SBC comments at 27.

[^267]: ^?^ *See., e.g.*, USTA reply comments at 19; PCIA reply comments
    at 8-9.

[^268]: ^?^ 47 U.S.C. § 503 (containing the general forfeiture
    provisions under the Act). The Act also contains specific forfeiture
    provisions relating to certain activities or omissions by common
    carriers. *See, e.g.,* 47 U.S.C. §§ 202(c), 203(e), 205(b). Under
    the general forfeiture provisions contained in section 503(b)(1)(B),
    any person who willfully or repeatedly fails to comply with any of
    the provisions of the Communications Act or any rule, regulation, or
    order issued by the Commission under the Act, may be liable to the
    United States for a forfeiture penalty. Section 503(b)(2)(B)
    authorizes the Commission to assess forfeitures against common
    carriers of up to one hundred thousand dollars for each violation,
    or each day of a continuing violation, up to a statutory maximum of
    one million dollars for a single act or failure to act. In
    exercising such authority, the Commission is required to take into
    account \"the nature, circumstances, extent, and gravity of the
    violation and, with respect to the violator, the degree of
    culpability, any history of prior offenses, ability to pay, and such
    other matters as justice may require\" 47 U.S.C. §§ 503(b)(1)(B),
    (b)(2)(B).

[^269]: ^?^ *See* 47 U.S.C. § 503(b)(5). The section further provides,
    however, that the restriction \"shall not\" apply if, among other
    things, the person involved is engaging in activities for which a
    license, permit, certificate, or other authorization is required.
    *Id.*

[^270]: ^?^ In addition, section 503(b)(2)(B) authorizes the Commission
    to assess forfeiture penalties against common carriers up to
    \$100,000 for each violation or each day of a continuing violation,
    up to a maximum of \$1,000,000 for any single act or failure to act
    as described in section 503(b)(1). 47 U.S.C. § 503(b)(2)(B).
    Conversely, an equipment manufacturer or other non-common carrier
    subject to section 255 which does not hold any authorization issued
    by the commission, may only be assessed forfeiture penalties
    (pursuant to the procedures set forth in section 503(b)(5)) of up to
    \$10,000 for each violation or each day of a continuing violation up
    to a maximum of \$100,000 for any single act or failure to act as
    described in section 503(b)(1). 47 U.S.C. § 503(b)(2)(C).

[^271]: ^?^ *See., e.g.*, SBC comments at 27.

[^272]: ^?^ *NPRM*, 13 FCC Rcd at 20448-49, ¶ 124.

[^273]: ^?^ *NPRM*, 13 FCC Rcd at 20448-53.

[^274]: ^?^ *TAAC Report*, §§ 6.7.4.1 and 6.7.4.2, at 32.

[^275]: ^?^ *See., e.g.*, AT&T reply comments at 7-8; BSA reply comments
    at 7; PCIA reply comments at 9-10; TIA reply comments at 63. The NAD
    and COR, on the other hand, are opposed to any rule that would
    require consumers to first notify manufacturers and service
    providers before filing a complaint with the Commission; NAD reply
    comments at 6; COR comments at 4-5.

[^276]: ^?^ *See* 47 C.F.R. §§ 1.716 - 1.718. In administering the
    informal complaint rules, Commission staff works cooperatively with
    consumers and carriers to ensure meaningful solutions to problems
    raised by consumers and to address any underlying compliance
    concerns. In many instances, informal complaints are satisfactorily
    resolved by carriers with little direct involvement by Commission
    staff. We note further that Commission staff routinely meets with
    carrier representatives and consumer groups to discuss the informal
    complaint process and identify improvements that will better serve
    the needs of consumers and the industry.

[^277]: ^?^ *See* 47 C.F.R. § 1.720; 47 U.S.C. § 208.

[^278]: ^?^ *See., e.g*., NAD comments at 25-30; BellSouth comments at
    16-17.

[^279]: ^?^ ATSI comments at 8; BellSouth comments at 9; CBT comments at
    7; CompTel comments at 5; GST comments at 5; KMC comments at 5.

[^280]: ^?^ As required by the Rehabilitation Act of 1973, as amended,
    the Commission has a responsibility to prohibit discrimination on
    the basis of disability in its programs and activities. See 47
    C.F.R. §§ 1.1801 - 1.1870.

[^281]: ^?^ *See e.g.*, AirTouch comments at 7; Bell Atlantic comments
    at 9; Brightpoint comments at 5-6; BSA comments at 12; CEMA comments
    at 17-19 and reply comments at 11-12; CTIA comments at 15-17;
    Motorola comments at 50-52; PCIA comments at 15-16; Phillips
    comments at 12-14; SBC comments at 20-22; USTA comments at 14-15;
    Lucent reply comments at 1; TIA comments at 77; Nextel comments at
    8-9; Nokia reply comments at 4-7; Redcom reply comments at 4-5; MTA
    reply comments at 11.

[^282]: ^?^ *Id.*

[^283]: ^?^ *See* 47 U.S.C. § 153(33) (the term person includes \"an
    individual, partnership, association, joint-stock company, trust, or
    corporation\").

[^284]: ^?^ 47 U.S.C. § 208. This section, applicable to complaints
    against common carriers, specifically states that \"no complaint
    shall at any time be dismissed because of the absence of direct
    damage to the complainant.\"

[^285]: ^?^ *NPRM*, 13 FCC Rcd at 20426, ¶ 71.

[^286]: ^?^ We note that common carriers are required under section 413
    of the Act, 47 U.S.C. § 413, to designate agents within the District
    of Columbia, upon whom service of all notices and processes and all
    orders, decisions, and requirements of the Commission may be made
    and to file such designation with the secretary of the Commission.
    We emphasize that the contact designation required in this Order is
    in addition to the obligation under section 413.

[^287]: ^?^ See Appendix B, rules 6.18, 7.18. We encourage industry
    trade associations, such as CEMA, CompTel, TIA, CTIA, TRA, and USTA,
    to file this information on behalf of their members if they so
    desire. The Commission would consider such group submissions to be
    in full compliance with this requirement and would appreciate
    receiving such submissions both in hard copy and on a computer disk.

[^288]: ^?^ *See., e.g*., TIA comments at 68.

[^289]: ^?^ *See., e.g*., AFB comments at 33, reply comments at 13-14.

[^290]: ^?^ *See* USTA comments at 13.

[^291]: ^?^ *See* ¶ ¶ 24-36, *supra*.

[^292]: ^?^ *See., e.g.*, AFB comments at 33.

[^293]: ^?^ *See, e.g*., AFB comments at 7; NAD comments at 16-17.

[^294]: ^?^ *See e.g*., TIA reply comments at 58.

[^295]: ^?^ *See, e.g*., NAD comments at 4-5; TDI comments at 6;
    Advocacy Center comments at 4.

[^296]: ^?^ *See e.g.*, sections 4(i) and 403 of the Act, 47 U.S.C. §§
    154(i), 403.

[^297]: ^?^ Amendment of Rules to be Followed When Formal Complaints are
    filed Against Common Carriers, First Report and Order, CC Docket No.
    96-238, 12 FCC Rcd 22497 (1997) (*Formal Complaints Order*), *pets.
    for recon. pending*.

[^298]: ^?^ *Formal Complaints Order*, 12 FCC Rcd at 22514-22517, ¶¶
    39-42.

[^299]: ^?^ *Formal Complaints Order,* 12 FCC Rcd at 22541-22554, ¶¶
    102-132.

[^300]: ^?^ *Formal Complaints Order,* 12 FCC Rcd at 22587-22608, ¶¶
    214-274.

[^301]: ^?^ *See, e.g*., CEMA comments at 21.

[^302]: ^?^ Historically, for reasons primarily of cost, expedition, and
    simplicity, consumers have found the filing of informal complaints
    rather than formal complaints to be generally preferable. For
    example, during 1997, Commission staff processed over 44,000 written
    complaints and inquiries concerning various common carrier
    practices; the vast majority of these were filed by individual
    consumers. During this same period, the Commission received fewer
    than 100 formal complaints against common carriers, only 2 of which
    were filed by or on behalf of individual consumers.

[^303]: ^?^ See *Formal Complaints Order*, 12 FCC Rcd at 25538-25539, ¶¶
    93-95.

[^304]: ^?^ *Amendment of Rules Governing Procedure to be Followed When
    Formal Complaints are filed Against Common Carriers*, Second Report
    and Order, CC Docket No. 96-238, 13 FCC Rcd 17018 (1998)
    (*Accelerated Dockets Order*).

[^305]: ^?^ *Accelerated Dockets Order*, 13 FCC Rcd at 17024, ¶ 10.

[^306]: ^?^ *Accelerated Dockets Order*, 13 FCC Rcd at 17024-17025, ¶¶
    10-11.

[^307]: ^?^ *Cf. Accelerated Dockets Order*, 13 FCC Rcd at 17024, ¶ 10.

[^308]: ^?^ In our *Accelerated Dockets Order*, we stated that while
    section 208 complaints are handled by both the Common Carrier Bureau
    and the Wireless Telecommunications Bureau, we would initially
    exercise our discretion to apply the accelerated docket rules to
    formal complaints handled by the Common Carrier Bureau. *Accelerated
    Dockets Order*, 13 FCC Rcd at 17022, ¶ 6, n.9. We added, however,
    that after gaining experience with the application of the rules by
    the Common Carrier Bureau, we may, in our discretion, make the
    accelerated docket procedures available for the adjudication of
    complaints against commercial mobile radio service (CMRS) providers
    and other wireless carriers. *Id*. We see no reason in this instance
    to delay use of our accelerated docket procedures for section 255
    complaints against CMRS providers and equipment manufacturers.
    Therefore, Commission staff will entertain requests for accelerated
    resolution of disputes concerning commercial mobile radio service
    providers and manufacturers and other wireless carriers and
    manufacturers will be handled by the Wireless Telecommunications
    Bureau.

[^309]: ^?^ *NPRM*, 13 FCC Rcd at 20465, ¶ 162.

[^310]: ^?^ *Id.*

[^311]: ^?^ *Id.*

[^312]: ^?^ *Id.*

[^313]: ^?^ *See, e.g*., PCIA comments at 17.

[^314]: ^?^ *See, e.g*., TIA comments at 95-96.

[^315]: ^?^ *See, e.g*., AT&T comments at 15-16.

[^316]: ^?^ NCD comments at 34.

[^317]: ^?^ TDI comments at 23.

[^318]: ^?^ *NPRM*, 13 FCC Rcd at 20465, ¶ 162.

[^319]: ^?^ *See, e.g*., Bellsouth comments at 11-12.

[^320]: ^?^ *See, e.g*., Business Software Alliance comments at 11-12.

[^321]: ^?^ 47 U.S.C. § 415(b). This section provides, in pertinent part
    that \"\[a\]ll complaints against carriers for the recovery of
    damages not based on overcharges shall be filed with the Commission
    within two years from the time the cause of action accrues, and not
    after\....\"

[^322]: ^?^ *See, e.g*., BellSouth comments at 11-12; Ameritech comments
    at 9-10; TIA comments at 86-87.

[^323]: ^?^ *See, e.g*., National Assistive Technology Project comments
    at 2; CCD comments at 1; Center for Disability Rights comments at 2.

[^324]: ^?^ *See The TELEPHONE COMPLAINT SCORE CARD (Common Carrier
    Bureau 1998).*

[^325]: ^?^ *Formal Complaints Order* at ¶ 36-37.

[^326]: ^?^ *NPRM*, 13 FCC Rcd at 20465, ¶ 162.

[^327]: ^?^ 47 C.F.R. § § 0.457, 0.459.

[^328]: ^?^ *NPRM*, 13 FCC Rcd at 20465, ¶ 162.

[^329]: ^?^ *See., e.g.*, Lucent comments at 23.

[^330]: ^?^ *See., e.g*., TIA comments at 89-91; Motorola comments at
    54.

[^331]: ^?^ See, e.g., USTA Reply Comments at 17-18; Motorola Comments
    at 53-55; Uniden Reply Comments at 8; Redcom Reply Comments at 5;
    SHHH Reply Comments at 18-19.

[^332]: ^?^ We note that confidentiality issues do not typically arise
    in connection with informal complaints filed against common carriers
    under our section 208 complaint rules.

[^333]: ^?^ *See Examination of Current Policy Concerning Treatment of
    Confidential Information Submitted to the Commission*, CC Docket No.
    96-55, Report and Order, 13 FCC Rcd 24816 (1998).

[^334]: ^?^ *See* section 1.1204 of the rules, 47 C.F.R. § 1.1204.

[^335]: ^?^ We note that our *ex parte* rules specifically authorize the
    Commission or its staff to apply different *ex parte* procedures in
    particular cases if deemed in the public interest. For example, the
    staff could designate an informal complaint as either \"restricted\"
    (which would mean that *ex parte* communications would be strictly
    prohibited) or non-restricted (*ex parte* communications are
    permitted but must be fully disclosed to the Commission and other
    parties to the proceeding) if deemed in the public interest. *See*
    47 C.F.R. §§ 1.1200-1.1208.

[^336]: ^?^ *See* 47 U.S.C. § 1.1208.

[^337]: ^?^ *Id.* As we noted above, our *ex parte* rules specifically
    authorize the Commission or its staff to apply different *ex parte*
    procedures in particular cases if deemed in the public interest.

[^338]: ^?^ *See* our discussion of sanctions and remedies *supra*, at ¶
    ¶ 108-111.

[^339]: ^?^ *See, e.g.*, CEMA comments at 24-26; TIA comments at 98-99.

[^340]: ^?^ *See generally*, 47 U.S.C. § 154(j).

[^341]: ^?^ 29 U.S.C. §§ 791 *et seq.*

[^342]: ^?^ This includes requirements for access to electronic and
    information technologies developed, maintained, procured, or used by
    all Federal agencies, as required by the Workforce Investment Act of
    1998, Pub. L. No 105-220, 112 Stat. 936 (1998); §§ 408(b), 508, 112
    Stat. at 1203-06.

[^343]: ^?^ *See, e.g.,* AirTouch comments at 8.

[^344]: ^?^ *See, e.g.*, Access Living of Metropolitan Chicago comments
    at 2; Illinois Deaf and Hard of Hearing Commission comments at 2-3;
    NAD comments at 34-39.

[^345]: ^?^ *See, e.g.*, SBC comments at 26; TIA comments at 95-96;
    Information Technology Industry Council comments at 42.

[^346]: ^?^ We note that the Commission proposed that Video Relay
    Interpreting (VRI) be a considered \"TRS\" within the meaning of
    Title IV of the ADA. *See* Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals With Hearing and Speech
    Disabilities, Notice of Proposed Rulemaking, CC Docket No. 98-67
    (rel. May 20, 1998). TRS, mandated by Title IV of the ADA (47 U.S.C.
    § 225, requires the Commission to ensure that people with hearing or
    speech disabilities have \'functionally equivalent\' access to the
    telephone network. 47 U.S.C. 225 (a) - (c).

[^347]: ^?^ Letter from Bruce D. Jacobs, Counsel to the VON Coalition,
    to Magalie R. Salas, dated July 7, 1999.

[^348]: ^?^ NAD *Ex Parte* Statement, filed Feb. 5 1999, on behalf of
    Alexander Graham Bell Association , ACB, AFB, American Society for
    Deaf Children, American Speech-Language-Hearing Assoc., Gallaudet
    University, League for the Hard of Hearing, NAD, SHHH, TDI, UCPA,
    WID at 7; AccLiv Comments at 3; ACB at 4; CPB/WBGH Comments at 6;
    ILDEAF Comments at 3-4; LDA Comments at 2; CILNM Comments at 3-4;
    Lake County at 1; SIL at 3-4; NAD at 15; DDTP at 4-5.

[^349]: ^?^ UCPA Comments at 3; AccLiv Comments at 3; ACB Comments at 4;
    CPB/WBGH Comments at 6; ILDEAF Comments at 3-4; LDA Comments at 2;
    CILNM Comments at 3-4 ; Lake County Comments at 1; SIL Comments at
    3-4; NAD Comments at 15-16; WI-TAN Comments at 4; WID Comments at 4.

[^350]: ^?^ 5 U.S.C. § 603.

[^351]: ^?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et
    seq.*, has been amended by the Contract with America Advancement Act
    of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II
    of the CWAAA is the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA).

[^352]: ^?^ *Implementation of Section 255 of the Telecommunications Act
    of 1996; Access to Telecommunications Service, Telecommunications
    Equipment, and Customer Premises Equipment by Persons with
    Disabilities*, Notice of Proposed Rulemaking, 13 FCC Rcd 20391
    (1998) (*NPRM*), Appendix E (*IRFA*).

[^353]: ^?^ *See* 5 U.S.C. § 604.

[^354]: ^?^ Pub. L. 104-104, 110 Stat. 56 (1996) (1996 Act).

[^355]: ^?^ Pub. L. 101‑336, 104 Stat. 327 (1990) (codified at 42 U.S.C.
    §§ 12102(2)(A), 12181(9)).

[^356]: ^?^ *IRFA* at E-2,-3.

[^357]: ^?^ CEMA Comments at 3.

[^358]: ^?^ Lucent Comments at 13. This apparent discrepancy is resolved
    in note 47 of the *Report and Order*.

[^359]: ^?^ Motorola Comments at 20, n. 22.

[^360]: ^?^ *Id.*

[^361]: ^?^ TIA Comments at 16, n. 17.

[^362]: ^?^ *IRFA* at 25-26. *see also* pp. D-25-27, *infra*.

[^363]: ^?^ CWAAA., § 601(6).

[^364]: ^?^ 5 U.S.C. § 601(3) (incorporating by reference the definition
    of \`\`small business concern\'\' in 15 U.S.C. § 632). Pursuant to
    the RFA, the statutory definition of a small business applies
    \`\`unless an agency, after consultation with the Office of Advocacy
    of the Small Business Administration and after opportunity for
    public comment, establishes one or more definitions of such term
    which are appropriate to the activities of the agency and publishes
    such definition(s) in the Federal Register.\'\' 5 U.S.C. § 601(3).

[^365]: ^?^ Small Business Act, 15 U.S.C. § 632 (1996).

[^366]: ^?^ 5 U.S.C. § 601(4).

[^367]: ^?^ Department of Commerce,U.S. Bureau of the Census, 1992
    Economic Census, Table 6 (special tabulation of data under contract
    to Office of Advocacy of the U.S. Small Business Administration).

[^368]: ^?^ *See* *Report and Order* at para. 80.

[^369]: ^?^ *See* *id.* at paras. 80-88.

[^370]: ^?^ We received no response to our request in the IRFA that
    commenters provide us with information regarding how many entities
    overall, and how many small entities, might be affected by the rules
    proposed in the *Notice*.

[^371]: ^?^ *See generally*, U.S. Small Business Administration, Table
    of Size Standards, March 1, 1996; Standard Industrial Classification
    Manual.

[^372]: ^?^ SBA size standard for this classification is 1,000 employees
    or less.

[^373]: ^?^ SBA size standard for the 3661 classification is 1,000
    employees or less.

[^374]: ^?^ The SBA size standard for the 3663 category is 750 employees
    or less.

[^375]: ^?^ The SBA size standard for the 3577 code is 1,000 employees
    or less.

[^376]: ^?^ *Id*.

[^377]: ^?^ *See* *Report and Order* at paras. 37-42.

[^378]: ^?^ 13 C.F.R. S 121.201, Standard Industrial Code (SIC) Code
    7372.

[^379]: ^?^ 13 C.F.R. S 121.201, Standard Industrial Code (SIC) Code
    5045 (Computers and Computer Peripheral Equipment).

[^380]: ^?^ *See* SBA Procedural Notice, SIC Designation of Prepackaged
    Software, Control No. 6000-654, effective November 29, 1995.

[^381]: ^?^ U.S. Department of commerce, Bureau of the Census, 1992
    Census of Transportation, Communications, and Utilities:
    Establishment and Firm Size (1995) (1992 Census).

[^382]: ^?^ FCC, Carrier Locator: Interstate, p.2, indicating number of
    carriers paying into the TRS fund by type of carrier (Jan., 1999)
    (*Carrier Locator).*

[^383]: ^?^ 1992 Census at Firm Size 1-123.

[^384]: ^?^ 13 C.F.R. § 121.201 (SIC 4813).

[^385]: ^?^ *Carrier Locator*.

[^386]: ^?^ *See* Implementation of the Local Competition Provisions in
    the Telecommunications Act of 1996, First Report and Order, 11 FCC
    Rcd 15499 (1996); Implementa­tion of the Local Competition Provisions
    in the Telecommunications Act of 1996, Order, 11 FCC Rcd 11754,
    16144-45, 16150 (paras. 1328-1330, 1342), (1996); *Iowa Utilities
    Board v. F.C.C.*, 109 F3d 418, (8th Cir. 1996), *amended on reh\'g
    on other grounds*, 120 F3d 753 (8th Cir. 1997), *petition for cert.
    filed*, 135 F3d 535 (U.S. Mar. 13, 1998)(No. 97-1519). Accordingly,
    our use of the terms \"small entities\'\' and \"small businesses\'\'
    would not encompass small incumbent LECs. *See id.* at 16150 (para.
    1342). However, out of an abundance of caution, we have considered
    small incumbent LECs within our regu­lato­ry flexibility analysis and
    have used the term \"small incumbent LECs\'\' to refer to any
    incumbent LEC that argu­ably might be defined by SBA as a \`\`small
    business concern.\'\'

[^387]: ^?^ *Carrier Locator*.

[^388]: ^?^ *Id.*

[^389]: ^?^ 13 C.F.R. S 121.201 (SIC 4813).

[^390]: ^?^ In the Matter of Amendment of Policies and Rules Concerning
    Operator Service Providers and Call Aggregators, CC Docket No.
    94‑158, FCC No. 99-171, Appendix C, para. 6, released July 19, 1999.

[^391]: ^?^ *Id.*

[^392]: ^?^ *Id.* Eleven of these have identified themselves as
    \`\`local resellers.\'\'

[^393]: ^?^ We include all toll-free number subscribers in this
    category, including 888 numbers.

[^394]: ^?^ FCC, CCB Industry Analysis Division, *FCC Releases, Study on
    Telephone Trends*, Tbls. 21.2, 21.3 and 21.4 (February 19, 1999).

[^395]: ^?^ 13 C.F.R. § 120.21 (SIC 4899). *See also*, FCC News Release,
    \`\`Broadcast Station Totals as of December 31, 1997.\'\'

[^396]: ^?^ Economic Census Industry and Enterprise Receipts Size
    Report, Table 2D, SIC 4899 (U.S. Bureau of the Census data under
    contract to the Office of Advocacy of the U.S. Small Business
    Administration). The amount of \$10 million was used to estimate the
    number of small business establishments because there was no Census
    category closer to \$11 million. Thus, the number is as accurate as
    it is possible to calculate with the available information.

[^397]: ^?^ *See* Initial Regulatory Flexibility Analysis for *In the
    Matter of Assessment and Collection of Regulatory Fees for Fiscal
    Year 1997*, MD Docket No. 96-200, Report and Order, released June
    18, 1999.

[^398]: ^?^ *Id.*

[^399]: ^?^ *Id.*

[^400]: ^?^ *Id.*

[^401]: ^?^ *Id.*

[^402]: ^?^ *Id.*

[^403]: ^?^ *Id.*

[^404]: ^?^ 47 C.F.R. § 20.7(c).

[^405]: ^?^ 47 U.S.C. §§ 153(27), 332.

[^406]: ^?^ 47 C.F.R. § 20.7(c).

[^407]: ^?^ *Carrier Locator*.

[^408]: ^?^ 13 C.F.R. § 120.21 (SIC Code 4899).

[^409]: ^?^ 13 C.F.R. § 121.201 (SIC Code 4812).

[^410]: ^?^ U.S. Small Business Administration 1992 Economic Census
    Employment Report, Bureau of the Census, U.S. Department of
    Commerce, SIC Code 4812 (radiotelephone communications industry data
    adopted by the SBA Office of Advocacy).

[^411]: ^?^ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
    Census of Transportation, Communications, and Utilities, UC92‑S‑1,
    Subject Series, Establishment and Firm Size, Table 5, Employment
    Size of Firms: 1992, SIC Code 4812 (issued May 1995).

[^412]: ^?^ *Trends in Telephone Service*, Table 19.3 (February 19,
    1999).

[^413]: ^?^ *See Amendment of Parts 20 and 24 of the Commission\'s Rules
    \-- Broadband PCS Competitive Bidding and the Commercial Mobile
    Radio Service Spectrum Cap, Report and Order*, FCC 96-278, WT Docket
    No. 96-59, paras. 57- 60 (released Jun. 24, 1996), 61 FR 33859 (Jul.
    1, 1996); *see also* 47 CFR 24.720(b).

[^414]: ^?^ *See Amendment of Parts 20 and 24 of the Commission\'s Rules
    \-- Broadband PCS Competitive Bidding and the Commercial Mobile
    Radio Service Spectrum Cap, Report and Order*, FCC 96-278, WT Docket
    No. 96-59, para. 60 (1996), 61 FR 33859 (Jul. 1, 1996).

[^415]: ^?^ *See, e.g., Implementation of Section 309(j) of the
    Communications Act \-- Competitive Bidding*, PP Docket No. 93-253,
    *Fifth Report and Order*, 9 FCC Rcd 5532, 5581-84 (1994).

[^416]: ^?^ FCC News, *Broadband PCS, D, E and F Block Auction Closes*,
    No. 71744 (released Jan. 14, 1997).

[^417]: ^?^ 13 C.F.R. s 121.201 (SIC 4812).

[^418]: ^?^ 47 C.F.R. § 90.814(b)(1).

[^419]: ^?^*See* *Amendment of Parts 2 and 90 of the Commission\'s Rules
    to Provide for the Use of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool*, PR Docket No. 89-553, *Second Order
    on Reconsideration and Seventh Report and Order*, 11 FCC Rcd 2639,
    2693-2702 (1995); *Amendment of Part 90 of the Commission\'s Rules
    to Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band*, PR Docket No. 93-144, *Implementation of Sections
    3(n) and 322 of the Communications Act --- Regulatory Treatment of
    Mobile Services*, GN Docket No. 93-252, *Implementation of Section
    309(j) of the Communications Act --- Competitive Bidding*, PP Docket
    No. 93-253, *First Report and Order, Eighth Report and Order, and
    Second Further Notice of Proposed Rulemaking*, 11 FCC Rcd 1463
    (1995).

[^420]: ^?^ 13 C.F.R. § 121.201, Standard Industrial Classification
    (SIC) code 4812.

[^421]: ^?^ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
    Census of Transportation, Communications, and Utilities, UC92‑S‑1,
    Subject Series, Establishment and Firm Size, Table 5, Employment
    Size of Firms; 1992, SIC code 4812 (issued May 1995).

[^422]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd 10943,
    11068‑70, at paras. 291‑ 295 (1997).

[^423]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11068‑69,
    para. 291.

[^424]: ^?^ *See* Letter from A. Alvarez, Administrator, SBA, to D.
    Phythyon, Chief, Wireless Telecommunications Bureau, FCC (Jan. 6,
    1998).

[^425]: ^?^ *See generally* Public Notice, \"220 MHz Service Auction
    Closes,\" Report No. WT 98‑36 (Wireless Telecom. Bur. Oct. 23,
    1998).

[^426]: ^?^ Public Notice, \"FCC Announces It is Prepared to Grant 654
    Phase II 220 MHz Licenses After Final Payment is Made,\" Report No.
    AUC-18-H, DA No. 99-229 (Wireless Telecom. Bur. Jan. 22, 1999).

[^427]: ^?^ WT Report No. 99-19, June 30, 1999.

[^428]: ^?^ *Future Development of Paging Systems, Second Report and
    Order and Further Notice of Proposed Rulemaking*, 12 FCC Rcd
    2732,2811, para. 179 (1997)(*Second Report and Order and Further
    Notice*).

[^429]: ^?^ Letter from Aida Alvarez, Administrator, Small Business
    Administration, to Amy J. Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau of 12/2/98.

[^430]: ^?^ *Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions With Respect to Commercial Mobile
    Services, Third Report*, FCC 98‑9, at 40 (June 11, 1998) (*Third
    CMRS Competition Report*).

[^431]: ^?^ See *Third CMRS Competition Report*, App. C at 5.

[^432]: ^?^ *Id*.

[^433]: ^?^ *See* Section 22.99 of the Commission\'s Rules, 47 C.F.R. §
    22.99.

[^434]: ^?^ 13 C.F.R. § 121.201, SIC 4812.

[^435]: ^?^ In the Matter of Rulemaking to Amend Parts 1, 2, 21, and 25
    of the Commission\'s Rules to Redesignate the 27.5-29.5 GHz
    Frequency Band, to Establish Rules and Policies for Local Multipoint
    Distribution Service and for Fixed Satellite Services. Petitions for
    Reconsideration of the Denial of Applications for Waiver of the
    Commission\'s Common Carrier Point-to-Point Microwave Radio Service
    Rules. CC Docket No. 92-297, *Suite 12 Group Petition for Pioneer
    Preference*, PP-22. Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd
    12545 (1997).

[^436]: ^?^ *See LMDS Order*, 12 FCC Rcd at 12688,12690 (paras.
    345,348).

[^437]: ^?^ *See* *id*. at 12690-91, 12694 (paras. 349, 358).

[^438]: ^?^ Letter from Aida Alvarez, Administrator, Small Business
    Administration, to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau of 1/6/98.

[^439]: ^?^ BETRS is defined in Sections 22.757 and 22.759 of the
    Commission\'s Rules, 47 C.F.R. §§ 22.757, 22.759.

[^440]: ^?^ 13 C.F.R. § 121.201, SIC 4812.

[^441]: ^?^ This standard has not yet been approved by the SBA. For a
    discussion of this issue, *see* F.C.C Public Notice, \"Comment
    Sought On Small Business Size Standards,\" PR Docket No. 93‑61, GN
    Docket No. 96‑228, 14 FCC Rcd. 1330 (1999).

[^442]: ^?^ *Amendment of the Commission\'s Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands*, ET Docket No. 95-183,
    *Notice of Proposed Rulemaking and Order*, 11 FCC Rcd 4930, 4971-72
    (paras. 87-88) (1996) (*39 GHz Band NPRM and Order*).

[^443]: ^?^ We note that the NPRM and associated IRFA preceded SBREFA.
    *See generally* note 1 of this FRFA, *supra*.

[^444]: ^?^ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
    Census of Transportation, Communications, and Utilities, UC92‑S‑1,
    Subject Series, Establishment and Firm Size, Table 5, Employment
    Size of Firms: 1992, SIC Code 4812 (issued May 1995).

[^445]: ^?^ *Amendment of the Commission\'s Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands*, ET Docket No. 95-183,
    *Report and Order and Second Notice of Proposed Rulemaking*, (1997)
    Appen. B, RFA at 18677-79.

[^446]: ^?^ *See* *Report and Order* at para. 163.

[^447]: ^?^ Recognizing that this type of recordkeeping would be
    self-imposed, we nevertheless sought comment on whether this
    implicit burden would need to be recognized, and, if so, whether it
    would have a disproportionate impact on small businesses. Comments
    that were received with respect to our inquiry are addressed in
    Section B. of this FRFA, *supra*.

[^448]: ^?^ *Implementation of Section 255 of the Telecommunications Act
    of 1996: Access to Telecommunications Services, Telecommunications
    Equipment, and Customer Premises Equipment by Persons with
    Disabilities*, WT Docket No. 96-198, Notice of Inquiry, 11 FCC Rcd
    19152, 19163 (para. 7) (1996) (*Notice of Inquiry*).

[^449]: ^?^ For example, the term \`\`readily achievable\'\' was
    discussed in great depth in an effort to explicate feasibility,
    expense, and practicality elements.

[^450]: ^?^ *Notice* at para. 126.

[^451]: ^?^ *Notice* at para. 125.

[^452]: ^?^ *Notice* at para. 126; *see* 47 C.F.R. §§ 1.711 - 1.736.

[^453]: ^?^ *See* 47 C.F.R. §§ 1.720 - 1.736.

[^454]: ^?^ *See, e.g.*, Section 1193.31.

[^455]: ^?^ Further, the cases cited in the Order in support of
    asserting ancillary jurisdiction are quite simply irrelevant when
    the law provides all the guidance this agency needs.

[^456]: ^?^ Section 1 of the Act, 47 U.S.C. § 151.

[^457]: ^?^ *See* Section 3 (45) of the Act, 47 U.S.C. § 153 (45) (\"the
    term \'telecommunications equipment\' means equipment, *other than
    customer premises equipment*\...\") (emphasis supplied).

[^458]: ^?^ *Compare* Section 3 (45) (telecommunications equipment means
    equipment other than CPE \"used by a carrier\") with Section 3 (14)
    of the Act, 47 U.S.C. § 153 (13) (CPE means equipment used by
    \"persons other than carriers\").