**Before The**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C.**

In the Matter of )

)

Implementation of Section 255 of the )

Telecommunications Act of 1996 )

) WT Docket No. 96-198

Access to Telecommunications Services, )

Telecommunications Equipment, and )

Customer Premises Equipment )

By Persons with Disabilities )

**COMMENTS OF MOTOROLA, INC.**

+------------------------------------+---+-------------------------------+
| Mary E. Brooner                    |   | Thomas C. Collier, Jr.        |
|                                    |   |                               |
| Assistant Director                 |   | Steven K. Davidson            |
| Telecommunications                 |   |                               |
|                                    |   | Jennifer M. Quinn             |
| Strategy & Regulation              |   |                               |
|                                    |   | Karen E. Lloyd                |
| Office of Government Relations     |   |                               |
|                                    |   | STEPTOE & JOHNSON LLP         |
| MOTOROLA, INC.                     |   |                               |
|                                    |   | 1330 Connecticut Avenue, N.W. |
| Suite 400                          |   |                               |
|                                    |   | Washington, D.C. 20036        |
| 1350 I Street, N.W.                |   |                               |
|                                    |   | \(202\) 429-3000              |
| Washington, D.C. 20005             |   |                               |
|                                    |   | *Its Attorneys*               |
| \(202\) 371-6900                   |   |                               |
+------------------------------------+---+-------------------------------+
| Alfred R. Lucas                    |   |                               |
|                                    |   |                               |
| Vice President and Director        |   |                               |
|                                    |   |                               |
| Spectrum and Standards Strategic   |   |                               |
|                                    |   |                               |
| Planning                           |   |                               |
|                                    |   |                               |
| Messaging, Information and Media   |   |                               |
| Sector                             |   |                               |
|                                    |   |                               |
| Chairperson, Motorola              |   |                               |
|                                    |   |                               |
| Telecommunications Access Council  |   |                               |
|                                    |   |                               |
| MOTOROLA, INC.                     |   |                               |
|                                    |   |                               |
| 3301 Quantum Boulevard             |   |                               |
|                                    |   |                               |
| Boynton Beach, FL 33426            |   |                               |
+------------------------------------+---+-------------------------------+
| Dated: June 30­­, 1998               |   |                               |
+------------------------------------+---+-------------------------------+

**[EXECUTIVE SUMMARY]{.underline}**

"Motorola is committed to providing quality products and services to all
of our customers -- including our customers with disabilities. We want
to take a leadership role in the creative development of new products
which will meet the needs of people with disabilities, and at the same
time make our products easier to use by everyone."[^1] Motorola is
committed to creating a product for every person, one that fits the
needs of the consumer and is the consumer's product of choice in the
marketplace. As a company, we are driven by the opportunity and
challenge of meeting the needs of our customers in creative ways with
quality products and services.

In implementing Section 255, the Federal Communications Commission
("FCC") should focus on the overarching goal of Congress: to increase
the number of Americans with disabilities who can use telecommunications
and to improve the ease of access for those persons. Accessible customer
premises equipment ("CPE") is a means for achieving this goal, not the
end in itself. In order to achieve this overarching goal, the FCC should
adopt a regime that aims to provide a product for every person, not
every product for every person. This will result in better products for
all consumers -- persons with and without disabilities.

The FCC should capitalize upon and encourage the current trend towards
product differentiation in CPE manufacturing as the best way to ensure
that CPE provides effective and efficient access to telecommunications
for persons with a variety of functional limitations. At pages 11 to 15
of these comments, Motorola discusses specific examples of how inclusion
of access features across a product line (pagers) results in CPE
products that provide meaningful -- rather than superficial levels of
access -- to telecommunications for persons with different functional
limitations, and how the FCC's proposed rules could stifle the
development of new products that increase accessibility.

The FCC proposes to define "accessible" CPE as "universally accessible"
to everyone, and to apply that standard to every individual CPE product.
Such an approach hinders, rather than promotes, the product
differentiation that is essential to achieving the goals of Section 255.
It posits universal or "full" accessibility as the "ideal" and requires
manufacturers to justify for each and every product (in defending
against a series of complaints that may allege inaccessibility due to a
variety of different functional limitations) what cannot be done:
"universal accessibility."

The extraordinary burden of complying with the FCC's proposal and the
waste of resources that must be dedicated to reaching this foregone
conclusion might be justified if universally accessible CPE were an
"ideal" consistent with Section 255's overarching goal of access to
telecommunications. It is not. We believe that is an inappropriate
reading of the law that will hinder, rather than encourage, the market
introduction of the full range of accessible product that would meet the
needs of customers. As Motorola's examples in this submission
demonstrate, "universal accessibility" is far less than an "ideal"
strategy for achieving the goal of Section 255 and for providing CPE
that consumers -- persons with and without disabilities -- actually
want. The nature of the access problem (different functional limitations
can generate conflicting access needs), the realities of product design,
and the legal limitation (what is "readily achievable") on
manufacturers' obligation to provide a remedy, all compel the conclusion
that product differentiation, encouraged through a product-line rule for
compliance, is the best strategy for increasing access to
telecommunications.

Similarly, as currently drafted, the FCC's accessibility criteria
require manufacturers to evaluate the accessibility of product inputs
and outputs to a particular functional limitation
[independently]{.underline}, which can potentially generate unintended,
nonproductive requirements, for example, to make product controls
accessible to a person who is blind because it is "readily achievable,"
even though it is not "readily achievable" to make the outputs on the
same product accessible to persons who are blind. These examples
demonstrate that the FCC's proposal ignores the goal of providing
meaningful access to telecommunications services for people with a range
of functional limitations.

Motorola agrees with the FCC that the definition of "readily
achievable," which defines the scope of manufacturers' obligations under
Section 255, should be adapted to the telecommunications context. In
order to formulate regulations that are appropriate to the process that
the FCC intends to regulate -- manufacturing -- the FCC would benefit
from a greater appreciation and understanding of the many inter-related
factors and difficult trade-offs that drive CPE product design and
development. To that end, Motorola has developed a matrix for a typical
product, discussed at pages 27 to 32, which identifies the impact of
typical access strategies that could satisfy the FCC's proposed 18 point
accessibility "checklist" upon the "product drivers" (such as cost,
memory, size, battery (power drain) and features) that drive the product
development process, intended to satisfy the needs of a particular
market segment. "Budgets" are set for each of the "product drivers" to
ensure that the product goals are met. These budgets inter-relate in
complicated ways. For example, many features require memory and power,
which in turn have an impact on cost and size. The matrix demonstrates
that in virtually every instance, inclusion of an access feature would
implicate not just one, but many product drivers.

Consequently, the matrix establishes two points. First, the
extraordinary burden of compliance that will be imposed upon
manufacturers if the FCC adheres to its proposal to require
manufacturers to assess what is "readily achievable" for each of the 18
items on the accessibility "checklist" for each and every product.
Second, the complexities that must be taken into account when making a
determination of what is "readily achievable" -- not just whether
including a particular access feature would fundamentally alter a
product, for example, but also whether any or all of the other product
modifications that would be required to accommodate that access feature
would result in a fundamental alteration.

With respect to the specific factors that define what is "readily
achievable," Motorola proposes three factors that are derived from the
considerations suggested by the FCC. First, as the FCC has proposed,
**technical feasibility** should be expressly recognized as a factor.
Second, in keeping with its recognition that every product cannot
accommodate every disability at the same time, the FCC should modify its
proposal to take into account the **cumulative impact** of removing
barriers to telecommunications through inclusion of access features,
which would be consistent with the approach taken by the Department of
Justice ("DOJ") in the context of the Americans with Disabilities Act
("ADA"). Third, the FCC should recognize, as DOJ did in the ADA context,
that the "readily achievable" standard does not require **fundamental
alteration** of CPE products so that they are less desirable (in terms
of form, functionality and cost) for the target market that they were
designed to serve.

As the FCC recognizes, the nature of the accessibility problem, the
realities of the product design, and the limitations of the "readily
achievable" standard dictate that manufacturers developing CPE products
in a highly competitive market can provide greater accessibility if they
have discretion in incorporating access features across lines of
similar, comparably priced products. Rather than hold manufacturers to
an impossible standard of "universal accessibility" that will not result
in meaningful access solutions for persons with disabilities, the FCC
should adopt a product-line approach to compliance as the rule, rather
than the exception.

**TABLE OF CONTENTS**

**PAGE**

Executive Summary i

I. INTRODUCTION [1](#i.-introduction)

II\. A PRODUCT-LINE APPROACH TO COMPLIANCE SHOULD BE THE RULE, NOT THE
EXCEPTION, BECAUSE IT WILL RESULT IN MORE MEANINGFUL ACCESS SOLUTIONS
FOR PERSONS WITH DISABILITIES.
[6](#ii.-a-product-line-approach-to-compliance-should-be-the-rule-not-the-exception-because-it-will-result-in-more-meaningful-access-solutions-for-persons-with-disabilities.)

A. The FCC's Proposal To Require A Product-By-Product Assessment Of
Whether It Is "Readily Achievable" To Provide Access Is Inconsistent
With The Practical Reality That No Single Piece Of CPE Can Be Accessible
To Everyone. [6](#__RefHeading___Toc423759483)

B. The FCC Should Adopt A Product Line Approach To Compliance, Which Is
Consistent With The Reality That No Product Can Be Accessible To Every
Person -- A Reality That Requires Manufacturers To Exercise Discretion
In Incorporating Access Features Across Product Lines.
[10](#b.-the-fcc-should-adopt-a-product-line-approach-to-compliance-which-is-consistent-with-the-reality-that-no-product-can-be-accessible-to-every-person-a-reality-that-requires-manufacturers-to-exercise-discretion-in-incorporating-access-features-across-product-lines.)

1\. The FCC should implement Section 255 to promote product
differentiation, which is the key to enhanced accessibility.
[10](#the-fcc-should-implement-section-255-to-promote-product-differentiation-which-is-the-key-to-enhanced-accessibility.)

2\. The FCC's proposed regulations do not promote product
differentiation, but instead can lead to unintended, nonproductive
results.
[15](#the-fccs-proposed-regulations-do-not-promote-product-differentiation-but-instead-can-lead-to-unintended-nonproductive-results.)

3\. Only a product-line approach to Section 255 implementation will be
workable and result in meaningful increases in the accessibility of CPE
to persons with disabilities.
[17](#only-a-product-line-approach-to-section-255-implementation-will-be-workable-and-result-in-meaningful-increases-in-the-accessibility-of-cpe-to-persons-with-disabilities.)

C. By Making The Product Line Approach The Rule, The FCC Avoids
Requiring Manufacturers to Waste Time And Money Proving Why Each
Individual Product Is Not "Universally Accessible" - An Impossible Goal.
[19](#c.-by-making-the-product-line-approach-the-rule-the-fcc-avoids-requiring-manufacturers-to-waste-time-and-money-proving-why-each-individual-product-is-not-universally-accessible---an-impossible-goal.)

D. The ADA Not Only Supports, But Compels, The FCC To Adopt The Product
Line Approach Which Will Increase the Number of Accessible Products in
the Marketplace.
[21](#d.-the-ada-not-only-supports-but-compels-the-fcc-to-adopt-the-product-line-approach-which-will-increase-the-number-of-accessible-products-in-the-marketplace.)

III\. MOTOROLA AGREES THAT THE FCC SHOULD ADAPT THE DEFINITION OF
"READILY ACHIEVABLE" TO THE TELECOMMUNICATIONS CONTEXT, SPECIFICALLY BY
FOCUSING ON THE CONCEPTS OF TECHNICAL FEASIBILITY, CUMULATIVE COST OF
ACCESS FEATURES, AND FUNDAMENTAL ALTERATION.
[24](#iii.-motorola-agrees-that-the-fcc-should-adapt-the-definition-of-readily-achievable-to-the-telecommunications-context-specifically-by-focusing-on-the-concepts-of-technical-feasibility-cumulative-cost-of-access-features-and-fundamental-alteration.)

A. The FCC Should Adapt The Definition Of "Readily Achievable" To The
Telecommunications Context.
[24](#a.-the-fcc-should-adapt-the-definition-of-readily-achievable-to-the-telecommunications-context.)

1\. In order to appreciate the complexity of determining what is
"readily achievable," and to formulate appropriate regulations, the FCC
should give greater consideration to the many inter-related factors that
drive product design and development.
[24](#in-order-to-appreciate-the-complexity-of-determining-what-is-readily-achievable-and-to-formulate-appropriate-regulations-the-fcc-should-give-greater-consideration-to-the-many-inter-related-factors-that-drive-product-design-and-development.)

B. In the Telecommunications Context, The Determination Of What Is
"Readily Achievable" Should Focus On Technical Feasibility, Cumulative
Cost, And Fundamental Alterations Involved In Making A Product As A
Whole Accessible To A Particular Functional Limitation.
[33](#b.-in-the-telecommunications-context-the-determination-of-what-is-readily-achievable-should-focus-on-technical-feasibility-cumulative-cost-and-fundamental-alterations-involved-in-making-a-product-as-a-whole-accessible-to-a-particular-functional-limitation.)

1\. The "readily achievable" determination should focus on the actions
required to make a product accessible overall to a person with a
particular functional limitation.
[35](#the-readily-achievable-determination-should-focus-on-the-actions-required-to-make-a-product-accessible-overall-to-a-person-with-a-particular-functional-limitation.)

2\. Technical feasibility, cumulative cost, and fundamental alteration
should guide the determination of what is "readily achievable" and
therefore be required by Section 255.
[35](#technical-feasibility-cumulative-cost-and-fundamental-alteration-should-guide-the-determination-of-what-is-readily-achievable-and-therefore-be-required-by-section-255.)

a\) Motorola agrees with the FCC that technical feasibility should be
considered.
[35](#a-motorola-agrees-with-the-fcc-that-technical-feasibility-should-be-considered.)

b\) Any determination of what is "readily achievable" must take into
account the cumulative impact and cost of features that enhance
accessibility for the same or different disabilities.
[37](#b-any-determination-of-what-is-readily-achievable-must-take-into-account-the-cumulative-impact-and-cost-of-features-that-enhance-accessibility-for-the-same-or-different-disabilities.)

c\) The concept of "fundamental alteration" should be modified to the
telecommunications context to ensure that CPE products remain consistent
with the fundamental characteristics of functionality and price required
by the market they are designed to serve.
[38](#c-the-concept-of-fundamental-alteration-should-be-modified-to-the-telecommunications-context-to-ensure-that-cpe-products-remain-consistent-with-the-fundamental-characteristics-of-functionality-and-price-required-by-the-market-they-are-designed-to-serve.)

IV\. MOTOROLA'S PROPOSED DEFINITIONS OF KEY STATUTORY TERMS, INCLUDING
"ACCESSIBLE" AND "COMPATIBLE" WILL PROMOTE INCREASED ACCESS FOR PERSONS
WITH DISABILITIES.
[41](#iv.-motorolas-proposed-definitions-of-key-statutory-terms-including-accessible-and-compatible-will-promote-increased-access-for-persons-with-disabilities.)

A. Motorola Endorses TIA's Proposed Definition Of "Accessible," Which
Would Maximize The Accessibility Information Made Available To Consumers
And Minimize The Amount Of Resources Diverted To Documentation.
[41](#a.-motorola-endorses-tias-proposed-definition-of-accessible-which-would-maximize-the-accessibility-information-made-available-to-consumers-and-minimize-the-amount-of-resources-diverted-to-documentation.)

1\. TIA has proposed an alternative definition of "accessible."
[42](#tia-has-proposed-an-alternative-definition-of-accessible.)

2\. Motorola endorses the alternative definition of "accessible"
proposed by TIA because it creates a workable framework that generates
incentives for manufacturers to provide useful information about
accessibility features to consumers, and recognizes that such features
will be incorporated, to the extent "readily achievable," across product
lines and families, and provides useful product information for
consumers.
[45](#motorola-endorses-the-alternative-definition-of-accessible-proposed-by-tia-because-it-creates-a-workable-framework-that-generates-incentives-for-manufacturers-to-provide-useful-information-about-accessibility-features-to-consumers-and-recognizes-that-such-features-will-be-incorporated-to-the-extent-readily-achievable-across-product-lines-and-families-and-provides-useful-product-information-for-consumers.)

B. The Definition Of Compatibility Should Be Modified So That It Not
Only Accounts For, But Encourages, Advances In Technology That Will
Ultimately Increase Access For Persons With Disabilities.
[47](#b.-the-definition-of-compatibility-should-be-modified-so-that-it-not-only-accounts-for-but-encourages-advances-in-technology-that-will-ultimately-increase-access-for-persons-with-disabilities.)

V. THE FCC SHOULD ADOPT A FAIR AND EFFICIENT COMPLAINT PROCESS THAT
FOCUSES ON THE ACCESS NEEDS OF SPECIFIC INDIVIDUALS AND PROTECTS THE
CONFIDENTIALITY OF PROPRIETARY INFORMATION SUBMITTED IN THE COMPLAINT
PROCESS.
[50](#v.-the-fcc-should-adopt-a-fair-and-efficient-complaint-process-that-focuses-on-the-access-needs-of-specific-individuals-and-protects-the-confidentiality-of-proprietary-information-submitted-in-the-complaint-process.)

A. Motorola Endorses TIA's Comments Related To The Complaint Process.
[50](#a.-motorola-endorses-tias-comments-related-to-the-complaint-process.)

B. A Standing Requirement For Filing A Complaint Is Essential.
[51](#b.-a-standing-requirement-for-filing-a-complaint-is-essential.)

C. In Fairness, The FCC Must Recognize And Accommodate Manufacturers'
Legitimate Concerns About The Confidentiality Of Information Disclosed
In The Complaint Process.
[54](#c.-in-fairness-the-fcc-must-recognize-and-accommodate-manufacturers-legitimate-concerns-about-the-confidentiality-of-information-disclosed-in-the-complaint-process.)

VI\. CONCLUSION [55](#vi.-conclusion)

**Before The**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C.**

In the Matter of )

)

Implementation of Section 255 of the )

Telecommunications Act of 1996 )

) WT Docket No. 96-198

Access to Telecommunications Services, )

Telecommunications Equipment, and )

Customer Premises Equipment )

By Persons with Disabilities )

**COMMENTS OF MOTOROLA, INC.**

# I. INTRODUCTION

Motorola is committed to providing quality products and services to all
of our customers -- including our customers with disabilities. We want
to take a leadership role in the creative development of new products
which will meet the needs of people with disabilities, and at the same
time make our products easier to use by everyone.

Robert Growney

Chief Operating Officer[^2]

Motorola opens its comments in this proceeding with a statement of our
commitment to provide products and services to all our customers because
we believe it is important for the FCC, the Congress, service providers
and the public who use our products to know that we embrace the spirit
and intent of Section 255.

*Total Customer Satisfaction* is Motorola's fundamental objective.
Guided by fundamental principals of respect for the individual and
uncompromising integrity, the strategies we employ to achieve this
objective define Motorola. Over the years, Motorola has initiated a
number of critical key initiatives, including Six Sigma Quality for our
products, Total Cycle Time Reduction, and forty hours of training for
every Motorola associate, every year. These initiatives, strategies
really, focus Motorola on the basics of customer satisfaction, in an
environment of constant change in products, services and technologies.
Part of the challenge which our industry faces today is meeting the
needs of more consumers who have an increased desire for product
choices, more access to telecommunications services and greater ease of
use.

To meet the needs of persons with disabilities, Motorola established the
Motorola Telecommunications Access Council ("MTAC") in late 1996. MTAC
is comprised of representatives of the Motorola businesses which have
products and services for which greater access and usabilty is desired.
It includes all of the businesses which we believe are impacted by
Section 255 of the Act, and the customer services operations as well as
corporate functions which have synergistic expertise, such as research,
training, human resources, quality and product safety. Working together,
we have identified internal and external strategies to increase
accessibility and usability of Motorola products and services.

In cooperation with consumers who have disabilities and who assisted in
course development, Motorola University has developed an introductory
training course (with additional courses to follow) for Motorola
employees. The purpose of the course is to help associates better
understand and meet the needs of customers with functional limitations
and to develop an understanding of how easier to use products are good
for all consumers. Motorola expects associates in engineering,
marketing, customer service, research and many other classifications to
take this training in the next year.

Motorola also has increased the involvement of customers with
disabilities in product trials and research as an important strategy for
understanding how our products can be made more usable. In the last year
Motorola introduced its narrowband PCS product, the *Portable Answering
Machine (*"talking pager*").* Working with a carrier, Motorola provided
a group of 15 consumers who are blind or have visual impairments with
the *Portable Answering Machine* for three months. During the trial, the
consumers kept notes to suggest product features that could be made more
usable in the next generation of the product. In addition, at the
American Council of the Blind and the American Foundation for the Blind
Leadership Institute in Washington, DC this spring, Motorola and ConXus
(the service provider for this product in the Washington area) provided
*Pocketalk™* talking pagers to anyone attending the conference for the
duration of the conference. Instructions were available in Braille,
large print or audio cassette, as well as via an 1+800 number and
on-site assistance. After the Leadership Institute, we conducted phone
interviews with users. The valuable feedback received from participants
will help us in making our next generation of products easier to use.

In the area of customer service, Motorola provides cellular and PCS user
manuals upon request in Braille, large print or audio cassette.
*Portable Answering Machine* (*Pocketalk™* or *VoiceNow™*) manuals are
also available in alternative format for persons with visual
impairments. All of Motorola's over 50 call centers in the US will be
equipped, and call center associates trained, in the use of TTYs by the
beginning of the third quarter of 1998. The TTYs will have dedicated
telephone lines.

Motorola has also committed to research initiatives for people with
functional limitations. Motorola now provides a Hearing Aid Compatible
analog cellular telephone and is beta testing a digital PCS product for
use with hearing aids in the acoustic mode. The digital PCS products
utilize a battery with a built-in antenna, designed with the user of a
hearing aid in mind. The "antenna battery" design minimizes interface to
the hearing aid, and fits any of Motorola flip phones as well as other
models. In addition, we have a human factors research effort underway in
cooperation with several organizations which advocate for and serve
persons with disabilities. Motorola human factors scientists recently
attended the Self Help for Hard of Hearing convention and will attend
the National Association of the Deaf and American Council of the Blind
conventions to gather data from members on how Motorola products are
used today and could be made more usable in the future.

Motorola is committed to creating a product for every person, one that
fits the needs of the consumer and is the consumer's product of choice
in the marketplace. This is a team effort involving Motorola, service
providers and consumers. The initiative is complex and comprehensive. As
a company, we are driven by the opportunity and challenge of meeting the
needs of our customers in creative ways with quality products and
services.

Motorola's comments on select issues raised by this NPRM reflect an
underlying theme: Results-oriented incentives, combined with the freedom
to attain such results, drive competitive innovation in the
telecommunications market, thereby increasing access to
telecommunications products and services for persons with
disabilities.[^3] Detailed product-by-product process regulation, rather
than overall goal regulation, will discourage the innovation needed to
achieve Congress' overarching goal of increasing the number of Americans
with disabilities who can access telecommunications and the ease of
access for those persons. Motorola's comments fall into four broad
categories.

Section II of these comments addresses the issue that is of paramount
importance to Motorola and other manufacturers: the need for the FCC to
apply Section 255 accessibility requirements across lines or families of
products, rather than to each individual piece of telecommunications
equipment. [^4] The FCC's NPRM is unclear on this key point. The FCC
proposes that accessibility must be considered for [each]{.underline}
product, but that manufacturers can rely upon a product family based
approach to compliance [if]{.underline} the approach results in an
overall increase in accessibility.[^5] Section II of these comments
demonstrates that only product differentiation will ultimately promote
meaningful access for a range of disabilities, differentiation that is
inconsistent with the individual product-by-product paradigm tentatively
proposed by the FCC.

Section III endorses the FCC's general proposal to adapt the definition
of "readily achievable," which defines the scope of manufacturers'
obligations under Section 255, to the telecommunications context. With
respect to the specific factors that should be considered in determining
what is "readily achievable," Motorola suggests some modification to the
FCC's proposal based upon ADA precedent.

Section IV offers alternate definitions of key statutory terms,
including "accessible" and "compatible," which will promote increased
access for persons with disabilities.

Section V advocates a fair and efficient complaint process.
Specifically, Motorola advocates a standing requirement for filing a
complaint, as well as measures to insure the confidentiality of
proprietary information submitted by manufacturers in the complaint
process.

# II. A PRODUCT-LINE APPROACH TO COMPLIANCE SHOULD BE THE RULE, NOT THE EXCEPTION, BECAUSE IT WILL RESULT IN MORE MEANINGFUL ACCESS SOLUTIONS FOR PERSONS WITH DISABILITIES.

From Motorola's perspective, the most important decision that the FCC
will make in response to this NPRM is whether Section 255 applies to
each piece of telecommunications equipment, or to lines or families of
products with similar features, functions, and price. Unfortunately, the
FCC's proposed rules do not take into account, "up front," the need for
manufacturers to exercise discretion in incorporating access features
across products in a product line.[]{#__RefHeading___Toc423759483
.anchor}

## A. The FCC's Proposal To Require A Product-By-Product Assessment Of Whether It Is "Readily Achievable" To Provide Access Is Inconsistent With The Practical Reality That No Single Piece Of CPE Can Be Accessible To Everyone.

As the FCC recognizes, "the **ideal of full accessibility** is generally
limited by feasibility, expense, or practicality,"[^6] in other words,
by what is "readily achievable."[^7] The "ideal" that the FCC apparently
has in mind is a piece of CPE that is accessible to all persons, with
all disabilities -- in other words -- a universally accessible product.
In fact, the FCC's proposed definition of "accessibility," which would
require that product inputs, outputs, displays, mechanical and control
functions be usable by persons with a wide range of functional
limitations or combinations of functional limitations,[^8] is consistent
with the model of a universally accessible product.[^9] While the model
of a universally accessible product may be appealing in the abstract,
this "ideal" does not provide meaningful guidance as to how Section 255
should be implemented and applied to the realities of manufacturing or
of purchasing CPE in a manner useful to consumers with disabilities. In
practice, adoption of a regime in which manufacturers are required to
make every product accessible to every person, or demonstrate why it is
not "readily achievable" to do so, requires manufacturers to defend
their inability to achieve the impossible -- a universally accessible
product. Moreover, the regulatory scheme proposed by the FCC will in
some cases lead to unintended, nonproductive results, demonstrating why
a product-line approach to compliance is the only realistic way to
implement Section 255.

Throughout the Section 255 implementation process, manufacturers,
persons with disabilities, the Access Board, and the FCC have
acknowledged that Section 255 does not require manufacturers to make
universally accessible products. This recognition is based upon two
principles.

First, manufacturers' ability to make a universally accessible product
is limited by the nature of the accessibility problem itself. As the
TAAC acknowledged, "no single interface design will accommodate all
disabilities."[^10] It is not possible now, and probably not ever, to
manufacture a piece of CPE that is accessible to every person with a
disability. Different functional limitations generate different, often
conflicting accessibility needs, [^11] and even within a single
disability, access needs can vary widely.

Second, Section 255 does not obligate manufacturers to make universally
accessible products as a matter of law. As the FCC recognizes in the
NPRM, universal access generally cannot be accomplished "without much
difficulty or expense," and therefore, is neither "readily achievable"
nor required by Section 255.[^12] Universal accessibility is not
"readily achievable" within the meaning of Section 255, because it is
not technically feasible, would fundamentally alter the nature of the
equipment, or is simply too expensive.

Because no single CPE product can be accessible to everyone, both the
TAAC and the FCC have recognized that manufacturers will need to
exercise discretion in incorporating access features that accommodate
different functional limitations. As the TAAC recognized, "because no
single interface design will accommodate all disabilities, companies
**must use discretion** in **choosing** among accessibility
features."[^13] Similarly, the FCC acknowledges that:

**In the marketplace, providers must decide what features to include and
what features to omit. We believe** **it is reasonable for an informed
product development decision to take into account the accessibility
features of other functionally similar products the provider offers**,
provided it can be demonstrated that such a "product line" analysis
increases the overall accessibility of the provider's offerings.[^14]

Motorola commends the FCC for recognizing that, in at least some
circumstances, a manufacturer should be permitted to take a
"product-line" approach to compliance. Motorola believes, however, that
the product-line approach should be the rule, rather than the exception.
In marketplace terms, the FCC should embrace the policy of "a product
for every person, not every product for every person."

Instead of placing primary emphasis on a "similar product"
[defense]{.underline}, the FCC should recognize the legitimacy of a
product-line approach to compliance "up front" in defining the scope of
manufacturers' obligations under Section 255. Rather than rely upon an
uncertain defense at the "back end," manufacturers designing future
products will likely rely on the more certain defense that it was not
"readily achievable" to make an individual product accessible to some or
all functional limitations.[^15] Because it is impossible to make a
universally accessible product, the "readily achievable" defense will
have some merit with respect to [every]{.underline} product. By allowing
manufacturers to look across the range of their similar products as they
do their design on the "front-end," the FCC will permit flexibility and
product differentiation that is critical if the goal of increased
accessibility is to be achieved. The product-line approach reflects the
limitations of the legal obligation imposed by Section 255 and practical
realities. Moreover, use of the attainable product-line approach, rather
than an unattainable ideal, will maximize the resources that are
dedicated to accessible product design and development, as opposed to
documentation and defending complaints.

## B. The FCC Should Adopt A Product-Line Approach To Compliance, Which Is Consistent With The Reality That No Product Can Be Accessible To Every Person -- A Reality That Requires Manufacturers To Exercise Discretion In Incorporating Access Features Across Product Lines.

### 1. The FCC should implement Section 255 to promote product differentiation, which is the key to enhanced accessibility.

If the FCC were to adopt an approach to Section 255 that required each
manufacturer to provide a range of functionally similar, comparably
priced products that are accessible, the FCC would create incentives for
product differentiation, which is critical to increased accessibility
for persons with disabilities.

The individual product-by-product paradigm proposed by the FCC as the
presumptive method for complying with Section 255 fails to recognize
that certain kinds of products and technologies are inherently
better-suited to meeting the needs of people with certain functional
limitations than other products and technologies. For this reason, it
will often be a waste of resources to require a manufacturer to
incorporate features that accommodate different functional limitations
into a single product or to document why the manufacturer has determined
that it is not "readily achievable" to do so. A few concrete examples
taken from Motorola's product line demonstrate this point.

Motorola's *Portable Answering Machine* product is a pager with voice
output that functions much like a mobile voice mailbox.[^16] This
product has been recognized as being helpful to persons who are blind or
who have low vision because it permits them to receive pages and to
review messages without any need to read text. Instead of appearing on a
pager screen, the messages received are played audibly. In addition, the
*Portable Answering Machine* product contains many audio cues and
prompts that are quite useful to people with low or no vision.

Even though the addition of the *Portable Answering Machine* to the line
of pagers substantially increased the usability of pagers to persons
with one kind of disability, under the FCC's proposed product-by-product
regulations, Motorola's incentives to create such a product could be
reduced. Under a product-by-product or universal access approach,
Motorola would have been: (a) required, as part of its design process,
to determine whether it was "readily achievable" to make the product
accessible to the other functional limitations identified on the 18
point accessibility "checklist;" and (b) vulnerable to a complaints by
persons with other disabilities alleging that the product is not
accessible to them.

For example, a person who is completely deaf could file a complaint
about the *Portable Answering Machine* product, even though a large
number of other Motorola pagers, which typically include message display
screens and vibrating alert functions, are ideal for a person who is
deaf and wishes to receive text messages. In defending against such a
complaint, Motorola might need to demonstrate why it was not "readily
achievable" to make the *Portable Answering Machine* product usable to
persons without hearing without reference to the access features
included in these other pagers. Moreover, the issues that would likely
be raised by a "readily achievable" defense for the *Portable Answering
Machine* product would be complex. To make the *Portable Answering
Machine* accessible to people who are deaf, while, at the same time
retaining the features that make it accessible to people who are blind
or visually-impaired, Motorola would, at a minimum, need to incorporate
a voice to text software, a visual display, as well as visual or
vibrating counterparts for all of the audio features of the product into
the *Portable Answering Machine* product. These additions would have
made the *Portable Answering Machine* too expensive and complex to
build, and it might never have been produced, resulting in less access
to paging technology for people who are blind.

Focusing only on the voice to text feature for a moment, and assuming
for the sake of argument that this single accessibility feature had to
be incorporated into the CPE pager,[^17] including this "accessible"
function would have the following ramifications on the product design:

-   Addition of parts required to construct visual text display

-   Increased size because of inclusion of text display

-   Voice recognition software and/or hardware to convert voice to text
    software

-   Additional chip capacity or memory to accommodate voice to text
    software

-   Additional chip capacity or memory to generate visual display

-   Increased size because of additional memory chips or greatly
    increased cost to incorporate similar size chip with increased
    memory capacity

-   Greater power drain on the product, requiring a larger battery
    (resulting in an increase in size and creating the potential for
    greater interference),[^18] a more expensive battery that has more
    power but is the same size, or a significant reduction in product
    use time

If Motorola were to incorporate the features required to provide access
to a person who is deaf into the *Portable Answering Machine*, the end
result would be a product that is bigger, more expensive, and has a
shorter battery life -- in short -- is less desirable for all users,
disabled and non-disabled alike.

Most importantly, the futility -- for manufacturers, consumers and the
FCC -- of this inquiry into the accessibility of the *Portable Answering
Machine* to just [one]{.underline} of the many functional limitations
identified on the 18 point "checklist," becomes apparent when one
recognizes the existence of other paging products that optimize visual
features that are accessible to people who are deaf -- alpha numeric
pagers. An alpha-numeric pager would provide an equivalent function
(deliver a message), be smaller in size, cost less, and should be
preferable for deaf persons to use as a means of accessing paging
technology.

Similarly, even though alpha-numeric pagers are extremely useful to
persons who are deaf or hard of hearing, Motorola, under the FCC's
proposal, would: (a) be required, as part of its design process, to
determine whether it was "readily achievable" to make the product
accessible to the other functional limitations identified on the 18
point accessibility "checklist;" and (b) be vulnerable to complaints by
persons with other disabilities alleging that the product is not
accessible to them.

The same people who are blind or have low vision, and should find the
*Portable Answering Machine* pager useful, for example, could complain
that alpha-numeric products are not accessible to them. Motorola, as
part of its design process, and subsequently the FCC, in the context of
evaluating a complaint, would need to determine whether it was "readily
achievable" to include a voice chip to convert text to voice into the
alpha-numeric pager. Incorporating the text to voice feature would have
the same consequences, in terms of increased size, greater cost, shorter
battery life and product use time, as the *Portable Answering Machine*
example described above. Moreover, inclusion of features to provide
access to people who are blind or visually impaired would fundamentally
alter the nature of the product. Alpha-numeric pagers are designed to be
worn on the belt or on the wrist (in a watch) in order to achieve
"unconscious carry" by the user. If the text to voice feature were
included on the alpha-numeric pager, resulting in increased product
size, the alpha-numeric pager would not be able to achieve "unconscious
carry" -- which is a fundamental characteristic of what the
alpha-numeric pager is and what the market that purchases the product --
persons with and without disabilities alike -- wants. In effect, both
people who are blind and people who are deaf would get a product that is
less usable, less attractive and more expensive than the products that
are currently offered.

To summarize the above points, it is clear that sight impaired
individuals can best receive information in voice, while hearing
impaired people can most easily use text. At the present time, there are
technologies that send voice messages well and **different**
technologies that send text well. The most efficient way to get the
right message format to the consumer is to use the right technology.
Converting from text to voice or vice versa in the pager is inefficient
and expensive, and makes no sense when there is such an easy way to
accomplish the desired result using distinct products, each
incorporating one type of technology.

### 2. The FCC's proposed regulations do not promote product differentiation, but instead can lead to unintended, nonproductive results.

Other examples demonstrate that unintended, nonproductive requirements
could be imposed upon manufacturers under an individual
product-by-product approach. Under the definition of "accessibility"
proposed by the FCC, a manufacturer would be required to assess whether
it was "readily achievable" to accomplish each of the 18 items on the
access "checklist" [independently]{.underline}.[^19] This scheme, which
forces manufacturers to assess the accessibility of inputs to a
particular functional limitation [independently]{.underline} or in
isolation from the accessibility of the product's outputs to the same
functional limitation could lead to results that do not, in actuality,
increase accessibility.

Consider for example, Motorola's *Pagewriter™2000.*[^20] The
*Pagewriter™2000* is a two-way paging product that permits the user to
send and receive pages, email, and access the internet in text format.
Because of these features, the *Pagewriter™2000* should be extremely
useful to people who are deaf or hard of hearing; the *Pagewriter™2000*
can perform many functions that would otherwise need to take place over
a telephone. The *Pagewriter™2000* looks like a pager-sized
computer;[^21] it has a screen and a keypad. Assume, for the sake of
argument, that it is "readily achievable" to include a zoom feature that
would increase the size of the text on the product screen so that the
product "output" would be readable by a person who is visually impaired.
At the same time, it is not "readily achievable" to make the keypad
accessible to persons with low vision, because the buttons would need to
be so much larger that it would triple the size and fundamentally alter
the product. Under the FCC's proposal, which endorses the Access Board's
independent assessment of whether it is ready achievable to make product
inputs and product outputs accessible to the same functional limitation
-- Motorola would be required to incorporate the zoom feature even
though a person who is blind or has low vision could not use the product
because of its inaccessible inputs.

As the *Pagewriter™2000* example demonstrates, the FCC's proposed regime
would lead to nonproductive results. People with disabilities would not
benefit if a manufacturer were to incorporate some access features into
a product, but could not incorporate others that would make the product
actually usable, useful, and desirable to people with the disability at
issue. In fact, such actions would lead to consumer frustration and
encourage the misperception that the manufacturer does not understand
functional limitations or how people with those functional limitations
interact with CPE. By adding useless features, it would make the product
less attractive and more expensive without any added benefit. It would
be a waste of resources and a poor result for consumers with
disabilities to require a manufacturer to incorporate the "readily
achievable" access feature in this example.

### 3. Only a product-line approach to Section 255 implementation will be workable and result in meaningful increases in the accessibility of CPE to persons with disabilities.

Someone may respond to this discussion by arguing that Motorola has
simply identified several examples where it was not "readily achievable"
to modify the individual product to provide the desired access to
telecommunications. That is exactly the point. Because it is impossible,
and therefore not "readily achievable" to make the particular product
accessible to everyone, manufacturers' inability to make "accessible"
product, as the FCC proposes to define that term, will be the rule, not
the exception. As a result, it is: (1) inconsistent with Section 255's
goal of increased accessibility; (2) unfair to manufacturers; (3) a
waste of limited compliance resources; and (4) counterproductive to
subject manufacturers to complaints about the accessibility of every
product to every functional limitation.

Because of the legal and practical limitations on what manufacturers are
required to do to enhance accessibility, only a product-line approach to
compliance makes sense to achieve the goal of increased access to
products and service for persons with disabilities. A product-line
approach to compliance makes sense both in terms of enhancing the
accessibility of products available to persons with disabilities, and in
terms of making products that all people, disabled and non-disabled,
want. The best way to meet access needs and to make desirable products
is to permit product differentiation through the inclusion of access
features across product lines. Why should everyone's choice of pagers be
limited to a *Portable Answering Machine* with an alphanumeric display?
Why shouldn't a person who is deaf or hard of hearing be able to buy the
smallest alpha-numeric pager on the market, which is fully accessible to
him or her and meets his or her telecommunications needs?

As these examples demonstrate, the FCC's "ideal" of "full accessibility"
in a single product is not ideal at all. The trend in CPE manufacturing
is to make products that are increasingly personal and customized to
meet the needs of specific classes of users. To the extent "readily
achievable," these classes of users include persons with disabilities.

A product-line approach to compliance, which recognizes and endorses the
need for manufacturers to exercise discretion to increase accessibility
across a product line, permits greater flexibility for a manufacturer to
work within the limits of what is "readily achievable." A product-line
approach would permit a manufacturer to include more accessibility
features to accommodate a particular type of disability into selected
products. For example, a manufacturer seeking to provide access to
persons with partial hearing loss could include enhanced audio, a
speaker jack, and a vibrating feature in certain cellular phone models,
rather than provide only enhanced audio in every phone. Such an approach
would be preferable to consumers -- both consumers with disabilities
[and]{.underline} non-disabled consumers, who need similar features, for
example, because they work in a noisy environment. In this way, an "up
front" product-line approach to compliance could result in the provision
of more meaningful levels of access for particular functional
limitations in a targeted group of products, rather than a very
superficial level of access in virtually all products.

## C. By Making The Product Line Approach The Rule, The FCC Avoids Requiring Manufacturers to Waste Time And Money Proving Why Each Individual Product Is Not "Universally Accessible" - An Impossible Goal.

In spite of the unanimous recognition that no one product can be
accessible to everyone, under the FCC's proposal, manufacturers would
apparently be vulnerable to complaints about the accessibility for every
product to every person with every disability. While recognizing that
manufacturers cannot produce universally accessible products, the FCC's
proposal would permit a series of piecemeal complaints based on
different functional limitations and needs that would effectively
require manufacturers to defend their inability to achieve the
impossible -- a universally accessible product -- not only once, but
over and over again.

Under this regime, manufacturers who attempt to comply with Section 255
in good faith are constantly on the defensive. A manufacturer receives
no safe harbor from complaints for doing what needs to be done to
increase access -- exercise discretion to include features that enhance
access into different products where "readily achievable." The FCC's
regulations do not recognize what the FCC concedes: that it is not
feasible to make every product accessible to every disabled individual.
On the other hand, if manufacturers and service providers were permitted
to evaluate the accessibility features of an entire product line, the
result would be product lines which include a variety of products that
are accessible or compatible with various functional limitations.

By making manufacturers vulnerable to complaints about the alleged
inaccessibility of every product to every functional limitation, the
FCC's proposal maximizes the number of complaints that can potentially
be filed. Since a manufacturer will need to defend its product design
decisions concerning what is "readily achievable" for all functional
limitations for every product, the FCC's proposal similarly maximizes
the amount of documentation that a conscientious manufacturer will, as a
practical matter, be required to generate and to keep to defend
itself.[^22] Consequently, the FCC's proposed approach, which requires
manufacturers to assess whether each of the eighteen "accessibility"
criteria are "readily achievable" for each product is excessively
burdensome. This FCC's proposed regime will ultimately undermine the
goals of Section 255 by diverting limited resources from design and
development of a variety of products that provide meaningful access for
a variety of functional limitations and towards compliance documentation
and defense.

In contrast, the product-line approach to compliance, advocated by
Motorola and other manufacturers, recognizes the practical reality that
no product can be accessible to all functional limitations, and reduces
the amount of documentation and complaints that will be generated by
Section 255 so that more resources can be directed towards the design
for accessibility -- the intent and spirit of Section 255. By focusing
on manufacturer's accessible outputs rather than detailed regulation of
manufacturing processes, the product-line approach will
[increase]{.underline} the incentives and abilities of manufacturers to
produce meaningful access for a wide range of disabilities.

## D. The ADA Not Only Supports, But Compels, The FCC To Adopt The Product-Line Approach Which Will Increase the Number of Accessible Products in the Marketplace.

As Motorola has pointed out throughout these proceedings, the ADA --
which is referred to in both the text and the legislative history of
Section 255 -- provides strong support for the FCC to interpret Section
255 "up front" to require each manufacturer to provide comparably priced
products that are accessible for each product line offered -- in other
words, that provide representative access to each type of service. Under
this regime, compliance would be assessed based upon the accessibility
of product lines or families. The number of accessible products, and in
particular, the quality or degree of accessibility would increase by
implementing this approach.

The FCC has the authority to interpret Section 255 to require
accessibility across product lines. The telecommunications and customer
premises "equipment\" referred to in the text of Section 255(b) can be
interpreted as either singular or plural. To resolve this textual
ambiguity, the FCC should look to the ADA; it strongly supports defining
the scope of Section 255 to apply to families or groups of products.
Both the courts and the government agencies responsible for implementing
the ADA have recognized that proper application of the "readily
achievable" definition, will, in some circumstances, result in disabled
consumers having comparable access but fewer choices than the general
public.

As Motorola has repeatedly pointed out, the ADA regulations related to
fixed seating in public theaters and stadiums and hotel rooms
demonstrate that government agencies, as well as the courts, have
recognized the reality that providing access can carry substantial costs
and require significant physical modifications, so that the "readily
achievable" definition does not require that every seat or room be
accessible.[^23] Consequently, disabled patrons have fewer choices than
the general public. Whereas the general public can choose from any seat
in the stadium or theater, disabled patrons\' choices are limited to a
representative sample of seats that are accessible. While a person with
a disability may have fewer choices of seating locations available in a
particular theater or stadium, he/she still has the choice of going to a
variety of theaters or stadiums with accessible seating. So too a person
with a disability, under the product-line approach, would have a
representative sampling of products with accessible features from one
manufacturer, as well as an even broader range of choices of products
with different and similar access features in the marketplace as a
whole.

The Access Board rejected manufacturers' position that the ADA supports
a product-line approach to compliance, stating:

In drawing analogies from the ADA, the correct connection is between the
telecommunications equipment and CPE and the facility, not individual
elements within the facility. For example, all theaters in a
multi-theater complex must be accessible so that persons with
disabilities can choose which films to see, not only a few theaters with
"comparable" movies . . . Disabled persons' seat choices are limited but
not whether they can see movie A or movie B.[^24]

The Access Board's reasoning, rather than disproving the product-line
approach, actually supports it. Accessible CPE is not an end in itself.
Rather, CPE is simply a vehicle for persons with disabilities to access
a variety of telecommunications services such as wireless telephony and
paging. To use the Access Board's analogy, the CPE is not the movie --
the telecommunications service is. The range of CPE available in the
marketplace is like the seats in the theater: each is slightly different
but serves the same essential function -- in the Section 255 context --
accessing telecommunications service.

Therefore, contrary to the Access Board's conclusion, the ADA compels an
interpretation of Section 255 that would require manufacturers to
provide a representative sample of accessible products, to the extent
"readily achievable," that would provide disabled consumers with the
same range of basic choices as non-disabled consumers, such as
telecommunications functions, quality and cost. Furthermore, this
reading of Section 255 will dramatically increase the number of
accessible products available in the marketplace.

# III. MOTOROLA AGREES THAT THE FCC SHOULD ADAPT THE DEFINITION OF "READILY ACHIEVABLE" TO THE TELECOMMUNICATIONS CONTEXT, SPECIFICALLY BY FOCUSING ON THE CONCEPTS OF TECHNICAL FEASIBILITY, CUMULATIVE COST OF ACCESS FEATURES, AND FUNDAMENTAL ALTERATION.

## A. The FCC Should Adapt The Definition Of "Readily Achievable" To The Telecommunications Context.

Motorola supports the FCC's tentative decision to modify and adapt the
ADA definition of "readily achievable," to the unique context of
telecommunications.[^25] Under the FCC's proposed approach, "the ADA
factors should guide, but not constrain . . . development of factors
that more meaningfully reflect pertinent issues related to
telecommunications equipment and services."[^26]

### 1. In order to appreciate the complexity of determining what is "readily achievable," and to formulate appropriate regulations, the FCC should give greater consideration to the many inter-related factors that drive product design and development.

In order to adapt the "readily achievable" standard appropriately to the
telecommunications context, Motorola believes that the FCC needs a
greater understanding and appreciation for the complexity of the product
design and development process. The design and development of
telecommunications equipment and CPE is an extraordinarily complex
process that involves consideration of inter-related factors and
difficult trade-offs, all in the context of a highly competitive
marketplace. Rather than discuss this process in the abstract, Motorola
provides some specific information about the product design process in
the hope that the FCC will develop regulations that promote the goals of
Section 255 by taking into account the complexities of the product
design process.

While the process of developing new products varies from manufacturer to
manufacturer, the process is typically driven by management and
marketing, using such tools as market research, strategic planning
tools, and considerations related to the company vision or overall
strategy. Normally, a product is developed with a specific customer
niche as a target; [i.e.]{.underline}, the product is designed to meet
the needs of a specific part of the market demographics. Each market
segment is defined by the need for specific core features (function,
size, and appearance); the teenage paging market, for instance, calls
for a much different look and features than does the market for
executives. These core features, in combination with company strategies,
define the fundamental characteristics of the product being developed.

In many companies, the product development process is controlled by a
product definition document called a "contract book." This document
defines the product in terms of overriding goals and sets targets to
achieve those goals such as cost, size, and reliability. In addition,
the product definition document sets a series of product operational and
technical parameters such as features, frequency range, product
registration time,[^27] and audio quality. A product design team's job
is to translate the product definition document into an actual product.
To accomplish this, the product design team translates the product goals
into "product drivers" and sets budgets for accomplishing them.

A hypothetical set of "product drivers" and budgets for CPE product,
might include the following:

-   cost

-   battery life

-   registration time

-   part count[^28]

-   size

-   memory (RAM, ROM)

-   feature set

-   audio quality

These "product drivers," and the corresponding "budgets" established to
achieve these goals, have a complex inter-relationship.

Once the product drivers are identified, the progress of the design
effort is measured in terms of these budgets. For instance, the target
size of the product usually

determines the size of the battery that can be used, and this, with the
desired battery life of the product, determine the amount of power
available to support the product (current drain budget). If the current
drains of product features are added-up and exceed the budget, the
design will have to be changed, so that the overriding current drain
goal will be met. This may involve making trade-offs, and possibly going
back to management to report that a desirable feature might have to be
eliminated to continue the design. In some cases, if the trade-offs
compromise the ability to achieve product goals, the product may be
terminated.

Motorola has developed a matrix to provide a flavor for the complex
effect of the FCC's proposed 18 point "checklist" for defining
accessibility on the product drivers that govern the development
process,. In this matrix, the vertical axis lists the 18 items on the
accessibility "checklist", with some possible implementation strategies
under each one. The horizontal axis lists the \"overriding budgets\"
which are derived from the product drivers. The intersection points for
each of the columns and rows represents the location of an interaction
between the access strategy and the respective design budget. If there
is interaction, the point is marked with an \"X\". The matrix
demonstrates that in virtually every instance, the inclusion of a single
access feature would implicate not just one, but many of the product
drivers.

+---+---+---+---+---+---+---+---+---------------------------------------------+
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| A |   |   |   |   |   |   |   |                                             |
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| D |   |   |   |   |   |   |   |                                             |
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| A |   |   |   |   |   |   |   |                                             |
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| T |   |   |   |   |   |   |   |                                             |
| D |   |   |   |   |   |   |   |                                             |
| R |   |   |   |   |   |   |   |                                             |
| I |   |   |   |   |   |   |   |                                             |
| V |   |   |   |   |   |   |   |                                             |
| E |   |   |   |   |   |   |   |                                             |
| R |   |   |   |   |   |   |   |                                             |
| S |   |   |   |   |   |   |   |                                             |
| * |   |   |   |   |   |   |   |                                             |
| * |   |   |   |   |   |   |   |                                             |
+===+===+===+===+===+===+===+===+=============================================+
|   | > | > | > | > | > | > | > |                                             |
|   |   |   |   |   |   |   |   |                                             |
|   | * | * | * | * | * | * | * |                                             |
|   | * | * | * | * | * | * | * |                                             |
|   | T | M | P | R | B | S | C |                                             |
|   | i | e | a | e | a | i | o |                                             |
|   | e | m | r | g | t | z | s |                                             |
|   | r | o | t | i | t | e | t |                                             |
|   | i | r | > | s | e | * | * |                                             |
|   | n | y |   | t | r | * | * |                                             |
|   | g | > | C | r | y |   |   |                                             |
|   | * |   | o | a | > |   |   |                                             |
|   | * | ( | u | t |   |   |   |                                             |
|   |   | R | n | i | L |   |   |                                             |
|   |   | A | t | o | i |   |   |                                             |
|   |   | M | * | n | f |   |   |                                             |
|   |   | , | * | > | e |   |   |                                             |
|   |   | > |   |   | * |   |   |                                             |
|   |   |   |   | T | * |   |   |                                             |
|   |   | R |   | i |   |   |   |                                             |
|   |   | O |   | m |   |   |   |                                             |
|   |   | M |   | e |   |   |   |                                             |
|   |   | ) |   | * |   |   |   |                                             |
|   |   | * |   | * |   |   |   |                                             |
|   |   | * |   |   |   |   |   |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Input, Control & Mechanical Functions**   |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/o Vision**                     |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * | * | * | * |   | * | * | * | **voice chip**                              |
| * | * | * | * |   | * | * | * |                                             |
| x | x | x | x |   | x | x | x |                                             |
| * | * | * | * |   | * | * | * |                                             |
| * | * | * | * |   | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   | * | **nib on 5 key**                            |
|   |   |   |   |   |   |   | * |                                             |
|   |   |   |   |   |   |   | x |                                             |
|   |   |   |   |   |   |   | * |                                             |
|   |   |   |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   | * |   |   | * | * | **Braille key pad**                         |
|   |   |   | * |   |   | * | * |                                             |
|   |   |   | x |   |   | x | x |                                             |
|   |   |   | * |   |   | * | * |                                             |
|   |   |   | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/ low vision**                  |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * | * | * | * |   | * | * | * | **voice chip w/ enhanced audio**            |
| * | * | * | * |   | * | * | * |                                             |
| x | x | x | x |   | x | x | x |                                             |
| * | * | * | * |   | * | * | * |                                             |
| * | * | * | * |   | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * |   | * | * |   | * | * | * | **voice chip w/ speaker jack**              |
| * |   | * | * |   | * | * | * |                                             |
| x |   | x | x |   | x | x | x |                                             |
| * |   | * | * |   | * | * | * |                                             |
| * |   | * | * |   | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   | * | * | **zoom w/ enhanced audio**                  |
|   |   | * |   |   |   | * | * |                                             |
|   |   | x |   |   |   | x | x |                                             |
|   |   | * |   |   |   | * | * |                                             |
|   |   | * |   |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   | * | * | **zoom w/ speaker jack**                    |
|   |   | * |   |   |   | * | * |                                             |
|   |   | x |   |   |   | x | x |                                             |
|   |   | * |   |   |   | * | * |                                             |
|   |   | * |   |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/ little or no color            |
|   |   |   |   |   |   |   |   | perception**                                |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **no exclusive use of color to designate    |
|   |   |   |   |   |   |   |   | key functions**                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   | * | **enhancements to contrast on visual        |
|   |   |   |   |   |   |   | * | displays**                                  |
|   |   |   |   |   |   |   | x |                                             |
|   |   |   |   |   |   |   | * |                                             |
|   |   |   |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/o hearing**                    |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * | * |   | * | * | * | **vibrating feature**                       |
|   |   | * | * |   | * | * | * |                                             |
|   |   | x | x |   | x | x | x |                                             |
|   |   | * | * |   | * | * | * |                                             |
|   |   | * | * |   | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   |   | **visual cues**                             |
|   |   | * |   |   |   |   |   |                                             |
|   |   | x |   |   |   |   |   |                                             |
|   |   | * |   |   |   |   |   |                                             |
|   |   | * |   |   |   |   |   |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/ limited manual dexterity**    |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   | * | * | **big buttons**                             |
|   |   |   |   |   |   | * | * |                                             |
|   |   |   |   |   |   | x | x |                                             |
|   |   |   |   |   |   | * | * |                                             |
|   |   |   |   |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * | * | * |   |   | * |   | * | **speaker phone**                           |
| * | * | * |   |   | * |   | * |                                             |
| x | x | x |   |   | x |   | x |                                             |
| * | * | * |   |   | * |   | * |                                             |
| * | * | * |   |   | * |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   | * | * | * | * | * | * | * | **voice-activated features**                |
|   | * | * | * | * | * | * | * |                                             |
|   | x | x | x | x | x | x | x |                                             |
|   | * | * | * | * | * | * | * |                                             |
|   | * | * | * | * | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable with limited reach or strength** |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   | * | * | * | * | * | * | * | **voice-activated features**                |
|   | * | * | * | * | * | * | * |                                             |
|   | x | x | x | x | x | x | x |                                             |
|   | * | * | * | * | * | * | * |                                             |
|   | * | * | * | * | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * | * | * |   |   | * |   | * | **speaker phone**                           |
| * | * | * |   |   | * |   | * |                                             |
| x | x | x |   |   | x |   | x |                                             |
| * | * | * |   |   | * |   | * |                                             |
| * | * | * |   |   | * |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/o time-dependent features**    |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   | * | **ability to opt-out of time-dependent      |
|   |   | * |   |   |   |   | * | features**                                  |
|   |   | x |   |   |   |   | x |                                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | * |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/o speech**                     |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * | * |   |   | * | * | **text inputs**                             |
|   |   | * | * |   |   | * | * |                                             |
|   |   | x | x |   |   | x | x |                                             |
|   |   | * | * |   |   | * | * |                                             |
|   |   | * | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Operable w/ limited cognitive skills**    |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   | * | **expanded number storage/memory**          |
|   |   | * |   |   |   |   | * |                                             |
|   |   | x |   |   |   |   | x |                                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | * |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Output, Display & Control Functions**     |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Availability of visual information**      |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * |   | * | * |   | * | * | * | **voice chips**                             |
| * |   | * | * |   | * | * | * |                                             |
| x |   | x | x |   | x | x | x |                                             |
| * |   | * | * |   | * | * | * |                                             |
| * |   | * | * |   | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   | * | **incorporation of auditory cues**          |
|   |   | * |   |   |   |   | * |                                             |
|   |   | x |   |   |   |   | x |                                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | * |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Availability of visual info \... low      |
|   |   |   |   |   |   |   |   | vision users**                              |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * | * |   |   | * | * | **zoom features**                           |
|   |   | * | * |   |   | * | * |                                             |
|   |   | x | x |   |   | x | x |                                             |
|   |   | * | * |   |   | * | * |                                             |
|   |   | * | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Access to moving text**                   |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   | * | **\"freeze-frame\" function**               |
|   |   | * |   |   |   |   | * |                                             |
|   |   | x |   |   |   |   | x |                                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | * |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Availability of Auditory Information**    |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * | * |   |   | * | * | **text display**                            |
|   |   | * | * |   |   | * | * |                                             |
|   |   | x | x |   |   | x | x |                                             |
|   |   | * | * |   |   | * | * |                                             |
|   |   | * | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Availability of auditory info\... hard of |
|   |   |   |   |   |   |   |   | hearing**                                   |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * |   | * | * |   | * | * | * | **enhanced audio**                          |
| * |   | * | * |   | * | * | * |                                             |
| x |   | x | x |   | x | x | x |                                             |
| * |   | * | * |   | * | * | * |                                             |
| * |   | * | * |   | * | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * | * |   |   | * | * | **text display**                            |
|   |   | * | * |   |   | * | * |                                             |
|   |   | x | x |   |   | x | x |                                             |
|   |   | * | * |   |   | * | * |                                             |
|   |   | * | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   | * | **visual cues**                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | x |   |   |   |   | x |                                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | * |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Prevention of visually-induced seizures** |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   | * |   |   |   |   | * | **ability to deselect flashing features**   |
|   |   | * |   |   |   |   | * |                                             |
|   |   | x |   |   |   |   | x |                                             |
|   |   | * |   |   |   |   | * |                                             |
|   |   | * |   |   |   |   | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Availability of auditory cutoff**         |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   | * | * | **ability to shut off volume**              |
|   |   |   |   |   |   | * | * |                                             |
|   |   |   |   |   |   | x | x |                                             |
|   |   |   |   |   |   | * | * |                                             |
|   |   |   |   |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Non-interference w hearing technologies** |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * |   | * | * |   |   | * | * | **EME emissions do not generate             |
| * |   | * | * |   |   | * | * | interference**                              |
| x |   | x | x |   |   | x | x |                                             |
| * |   | * | * |   |   | * | * |                                             |
| * |   | * | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+
|   |   |   |   |   |   |   |   | **Hearing Aid Coupling**                    |
+---+---+---+---+---+---+---+---+---------------------------------------------+
| * |   |   | * |   |   | * | * | **all product outputs hearing aid           |
| * |   |   | * |   |   | * | * | compatible**                                |
| x |   |   | x |   |   | x | x |                                             |
| * |   |   | * |   |   | * | * |                                             |
| * |   |   | * |   |   | * | * |                                             |
+---+---+---+---+---+---+---+---+---------------------------------------------+

The interaction between the access solution or feature and the budget
often requires a complex design analysis and decision. The interaction
may result in the following required actions:

1.  If the impact of the access solution or feature on the budget is
    known, it must be reviewed to make sure that it does not cause an
    overall problem in the product meeting its target.

2.  If the access solution or feature causes the budget to be exceeded,
    the design must be reviewed to see if other changes can be made to
    permit the inclusion of the feature.

3.  If the access solution or feature is not technically feasible, a
    case must be made for why it is not, and this must be carefully
    documented.

4.  If an access solution or feature is not known, the literature must
    be searched or internal technical experts must be sought to find a
    viable approach; this often requires lengthy investigations,
    including iterative design and testing.

5.  If a access solution or feature is known, its effectiveness for the
    particular product must be tested to confirm that it works; this may
    require extensive testing of prototypes using actual market tests.

6.  If the access solution or feature is found to be not "readily
    achievable\" for any reason, the analysis resulting in that
    determination must be documented.

As can be seen in the matrix, the FCC\'s recommended approach requires
dozens of these design exercises to take place. Typically, making a
product accessible to a particular functional limitation will not be a
question of "tweaking" one product feature -- but many -- inputs,
outputs, controls, etc., further complicating this analysis.
Furthermore, this matrix would be different for every product. It should
be noted that rarely are the many hundreds of design decisions that take
place today documented in any manner that can be retrieved. The
guidelines are particularly onerous if all 18 tests are applied to every
product, as is suggested in the FCC's NPRM.

Referring again to the matrix, an example of how this might work is to
look at the first item on the Access Board/FCC accessible "checklist,"
"Operable without Vision." Here the engineers listed the use of a voice
chip, a nib on the "5" key, and a Braille key pad as possible strategies
for compliance. In looking at the voice chip, there are a significant
number of \"budget interactions\" which might be considered. Adding the
voice chip adds a significant number of components and software, so it
affects current drain, size, component count, cost, memory, etc.
Consequently each of the budgets must be evaluated to see if it can
\"accept\" this new requirement. In the case of the voice chip, the
audio quality must be tested and verified. This requires testing with
human subjects, because there are no \"lab tests\" for audio quality.
This type of exercise would then have to be repeated, for the remaining
17 items on the accessibility checklist and for each strategy which
might accomplish the checklist items. [^29]

This is an oversimplified example. However, it makes the point that the

design process is a complex, interactive analysis and decision making
exercise. The addition of the Access Board/FCC proposal to this process
is stifling and overwhelming. It adds significant time to the design
process in an industry in which design cycle-times must be continuously
reduced to maintain competitiveness. The FCC\'s approach has added
nearly 100 interactions (in this example) in the evaluation of the
accessibility of the product. Some of these interactions are
straightforward; most of them are very complex. The FCC proposal adds
exponentially to the complexity of the design process, and the added
burden of documentation and management/legal review to position the
company to defend itself in the light of potential complaints is
non-valued added activity. The proposed approach forces activities away
from creative design, and puts the company energies into defensive
documentation and internal legal reviews.

Moreover, the impact of access features upon each of the product drivers
demonstrates the impact, in terms of "difficulty" and particularly,
"expense" on product design and development. A determination of what is
"readily achievable," for example, in terms of cost requires
consideration of not only the cost of the access feature itself, but
also includes:

-   the cost of any increased requirements for power or memory capacity.

-   the cost of additional quality control measures caused by increased
    errors due to higher part count.

-   opportunity costs when features that could be subject to tiering
    (sold for an additional fee) are sacrificed to include access
    features.

Similarly, a determination of whether an access feature would
"fundamentally alter" the nature of the product requires consideration,
for example of any increase in size caused not only by the access
feature itself, but also any increase in size caused by increased
requirements for power or memory capacity.[^30]

## B. In the Telecommunications Context, The Determination Of What Is "Readily Achievable" Should Focus On Technical Feasibility, Cumulative Cost, And Fundamental Alterations Involved In Making A Product As A Whole Accessible To A Particular Functional Limitation.

In the NPRM, the FCC proposes a three-part framework for determining
whether a particular telecommunications accessibility feature is
"readily achievable:"

-   Is the feature feasible?

-   What would the expense be of providing the feature?

-   Given its expense, is the feature practical?[^31]

    In the NPRM, the FCC requested comment on these proposed factors,
    especially their "practical implications," and "effect on the
    development and marketing of accessibility features, on the pace of
    innovation, and on the administrative costs associated with
    implementation and enforcement measures."[^32]

    Motorola agrees with many of the concepts that underlie the FCC's
    proposed three-part approach, but proposes an alternative three part
    framework that more accurately reflects ADA precedent and would be
    more efficient and effective for the FCC to implement. Motorola's
    proposal would make the determination of what is "readily
    achievable" based upon three areas of inquiry:

-   Technical feasibility

-   Cost

-   Fundamental alteration

Motorola believes that this proposed approach more accurately adapts the
concept of what is "readily achievable" based upon the ADA analogy.

### 1. The "readily achievable" determination should focus on the actions required to make a product accessible overall to a person with a particular functional limitation.

As a threshold matter, Motorola objects to the FCC's proposed framework
because it focuses on whether an individual access feature is "readily
achievable," instead of whether a product can be made accessible overall
to a consumer with a particular functional limitation. In the
*Pagewriter™2000* hypothetical, for example, even if it were "readily
achievable" to make the product output (text on the screen) accessible
to a person who is blind or visually impaired, it is unproductive to
expend the cost and effort to do so because the product inputs -- its
keypad -- will never be accessible to the visually impaired because of
its size. If the FCC is truly interested in increasing the availability
of accessible CPE in the marketplace, it should focus on whether it is
"readily achievable" to make a product accessible overall to a
particular functional limitation, not on individual access features. Any
other approach is inconsistent with the FCC's interest in implementing
Section 255 in a way that is practical.[^33]

### 2. Technical feasibility, cumulative cost, and fundamental alteration should guide the determination of what is "readily achievable" and therefore be required by Section 255.

#### **a) Motorola agrees with the FCC that technical feasibility should be considered.**

First, Motorola commends the FCC for modifying the Access Board's
guidelines so that technical feasibility is recognized as a distinct,
express factor used in determining what is "readily achievable."[^34]
Like the NPRM, Motorola's proposal includes the concept of technical
feasibility, recognized by the FCC as the practical application of
"achievability" in the context of telecommunications.[^35]

Motorola agrees with the FCC's tentative conclusion that technical
feasibility should not be reassessed after a product is introduced to
market.[^36] The FCC's proposed rules should make it clear that because
Section 255 imposes compliance obligations on the design, development,
and fabrication of equipment and CPE, technical feasibility must be
assessed at the time the design, development and fabrication process for
a new product or a substantial upgrade for an existing product begins.
As the Access Board and the TAAC recognized, the requirement that the
technical feasibility of access features be reassessed every time a
product is upgraded in a manner that substantially affects its
functionality will ensure that accessibility features can be
incorporated into products that remain popular in the marketplace for
long periods of time.[^37]

Redesigning products that have already been designed to take into
account the latest technological developments should not be required
under any circumstances.[^38] Any redesign requirement would deplete
limited compliance resources, delay product time to market, and slow the
pace of innovation in a rapidly changing marketplace where products
quickly become obsolete. For the same reason enforcement strategies
utilized by the FCC should be proactive rather than punitive, directed
towards increasing the availability of accessible equipment and CPE in
the marketplace going forward.

#### **b) Any determination of what is "readily achievable" must take into account the cumulative impact and cost of features that enhance accessibility for the same or different disabilities.**

Based upon the ADA analogy, the FCC must consider the cumulative impact
and cost of access features in determining what is "readily achievable."
The Department of Justice ("DOJ"), in interpreting the ADA, determined
that it is \"appropriate to consider the cost of other barrier removal
actions as one factor in determining whether a measure is "readily
achievable.\"[^39] Nothing in the text of Section 255 supports the FCC
taking a different position on the relevance of cumulative impact in
interpreting the same legal standard.[^40]

Contrary to this ADA precedent, the FCC's proposal refuses to account
for the cumulative cost and impact of incorporating multiple access
features. Under the Access Board's definitions of accessibility and
compatibility, which the FCC proposes to adopt, a manufacturer must
perform an independent "readily achievable" calculus for each item on
the "accessibility" and "compatibility" checklists.[^41] In practice,
this would mean that a manufacturer's efforts to incorporate features to
provide access to people who are blind, for example, would have no
relevance in the determination of whether features to provide access to
people who are deaf also had to be included in the same product. Such an
approach is inconsistent with the manufacturing process, where
tradeoffs, interrelated cost impacts and physical considerations must
all be weighed together.

Declining to consider the cumulative costs and impact of access features
is entirely at odds with the practical realities of manufacturing CPE
products. As Motorola's matrix, at page \_\_\_ above, demonstrates,
products are defined in terms of product drivers and budgets. While
inclusion of a single access feature might not "exceed" the cost budget
(or the energy, size or parts budget), the inclusion of several access
features, with their corresponding impact on other product drivers (like
memory and battery life) could easily do so. If the "budget" is exceeded
on any one of these product drivers, there is the risk that the product
will no longer meet the needs of the target market segment that it was
designed to serve, which could result in it being canceled before it is
ever produced.

#### **c) The concept of "fundamental alteration" should be modified to the telecommunications context to ensure that CPE products remain consistent with the fundamental characteristics of functionality and price required by the market they are designed to serve.**

As another factor relevant to determining what is "readily achievable,"
the FCC should rely upon ADA precedent to recognize that Section 255
does not require "fundamental alteration" of products so that they no
longer satisfy the needs (such as function and cost) of the target
market that they were designed to serve. Motorola believes that
fundamental alteration should be expressly recognized because it will
play a critical role in determining what is "readily achievable,"
particularly for wireless CPE.

In the preamble to the ADA regulations, DOJ determined that changes that
result in fundamental alterations are not "readily achievable." DOJ
reached this conclusion by drawing a comparison to the \"undue burden\"
standard, which defines the scope of a public accommodation\'s duty to
provide \"auxiliary aids and services\" such as sign language
interpreters, text telephones, and assistive listening devices.[^42] The
\"undue burden\" and \"readily achievable\" determinations depend upon
the same factors; however, the \"undue burden\" standard requires a
higher level of effort to achieve compliance than the "readily
achievable" definition does.[^43] Since the \"undue burden\" standard
excuses actions that would fundamentally modify goods and services, DOJ
concluded that the \"readily achievable\" definition would excuse such
actions as well, even though this is not specifically stated in the
regulations.[^44]

The Access Board, in its guidelines, recognized that the concept of
fundamental alteration was useful and appropriate in identifying those
instances where accessibility is not "readily achievable."[^45] The
Access Board acknowledged that under the "readily achievable" standard,
"fundamental alteration" of products to provide access is not
required.[^46] Although the FCC's proposal alludes to the fundamental
alteration concept,[^47] the FCC does not expressly recognize it.
Motorola recommends that the FCC expressly recognize the fundamental
alteration concept.

In Motorola's view, the concept of fundamental alteration should be
applied in the telecommunications context to identify the fundamental
characteristics of a product that it is not "readily achievable" to
change, including core features and price desired by the target market
(the "product drivers discussed above"). Motorola's proposal is grounded
upon the practical reality that CPE is not designed, developed or
fabricated in the abstract, but for a specific market segment that wants
certain core features and is willing to pay a fairly inelastic price,
driven by competitive offerings.[^48] Just as doubling the size of a
small wireless handset to include large buttons would fundamentally
alter the nature of the product, which depends upon its compactness and
portability for its popularity, so too, the inclusion of accessibility
features that increase the price of the product so that the target
market is less willing to buy it fundamentally alter the nature of that
product by making it unsuitable for its target market. For the same
reason, manufacturers should not be required to eliminate key product
features in order to incorporate accessibility features, because the
omission of those market-driven features would similarly render the
product unsuitable for its target market.

Motorola's proposal would not relieve manufacturers of all obligations
to include accessibility features into their products. Given the
discretion to incorporate access features to accommodate different
disabilities across the range of products in a product line,
manufacturers will often be able to incorporate features that enhance
accessibility without increasing the product price or changing its size
beyond what the target market will bear. This approach will promote
increased access.

# IV. MOTOROLA'S PROPOSED DEFINITIONS OF KEY STATUTORY TERMS, INCLUDING "ACCESSIBLE" AND "COMPATIBLE" WILL PROMOTE INCREASED ACCESS FOR PERSONS WITH DISABILITIES.

## A. Motorola Endorses TIA's Proposed Definition Of "Accessible," Which Would Maximize The Accessibility Information Made Available To Consumers And Minimize The Amount Of Resources Diverted To Documentation.

As a CPE and telecommunications equipment manufacturer, Motorola wants
satisfied customers -- disabled and non-disabled alike. In order to
achieve the goal of customer satisfaction, Motorola seeks to provide all
customers with the products that meet their specific needs.

With respect to the definition of "accessible," Motorola believes that
the FCC should adopt an approach that facilitates and encourages, rather
than hinders, manufacturers in providing information about product
accessibility features to persons with disabilities. Such an approach
would maximize the ability of persons with disabilities to purchase
products that accommodate their unique functional limitations. The FCC's
proposed definition, which is modeled on the idea of "universal
accessibility," sets a bar that is impossible for manufacturers to meet.
While the FCC's proposed definition does not preclude manufacturers from
providing information about product features that enhance accessibility,
by setting an impossible standard, it leaves manufacturers reluctant,
rather than eager, to promote their accomplishments in providing
increased access. A definition of "accessible" that is consistent with
the realities of what can be accomplished within the "readily
achievable" standard will encourage manufacturers to provide information
about access features to consumers.

### 1. TIA has proposed an alternative definition of "accessible."

In its comments, TIA has proposed a definition of "accessible." TIA's
proposed definition would provide as follows:

"**Accessible**:" Telecommunications equipment and CPE is "accessible"
to the extent that it enhances the ability of a person with a disability
to use the telecommunications equipment or CPE by incorporating one or
more of the following features or functionalities, to the extent readily
achievable:

**Input, control, and mechanical functions.** Input, control, and
mechanical functions shall be locatable, identifiable, and operable in
accordance with each of the following, assessed independently:

\(a\) OPERABLE WITHOUT VISION. Provide at least one mode that does not
require user vision.

\(b\) 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.

\(c\) OPERABLE WITH LITTLE OR NO COLOR PERCEPTION. Provide at least one
mode that does not require user color perception.

\(d\) OPERABLE WITHOUT HEARING. Provide at least one mode that does not
require user auditory perception.

\(e\) OPERABLE WITH LIMITED MANUAL DEXTERITY. Provide at least one mode
that does not require user fine motor control or simultaneous actions.

\(f\) OPERABLE WITH LIMITED REACH AND STRENGTH. Provide at least one
mode that is operable with user limited reach and strength.

\(g\) OPERABLE WITHOUT TIME-DEPENDENT CONTROLS. Provide at least one
mode that does not require a response time. Alternatively, a response
time may be required if it can be by-passed or adjusted by the user over
a wide range.

\(h\) OPERABLE WITHOUT SPEECH. Provide at least one mode that does not
require user speech.

\(i\) OPERABLE WITH LIMITED COGNITIVE SKILLS. Provide at least one mode
that minimizes the cognitive, memory, language, and learning skills
required of the user.

**Output, display, and control functions.** 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,
shall comply with each of the following, assessed independently:

\(a\) AVAILABILITY OF VISUAL INFORMATION. Provide visual information
through at least one mode in auditory form.

\(b\) 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.

\(c\) ACCESS TO MOVING TEXT. Provide moving text in at least one static
presentation mode at the option of the user.

\(d\) AVAILABILITY OF AUDITORY INFORMATION. Provide auditory information
through at least one mode in visual form and, where appropriate, in
tactile form.

\(e\) 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). For
transmitted voice signals, provide a gain adjustable up to a minimum of
20 dB. For incremental volume control, provide at least one intermediate
step of 12 dB of gain.

\(f\) PREVENTION OF VISUALLY-INDUCED SEIZURES. Visual displays and
indicators shall minimize visual flicker that might induce seizures in
people with photosensitive epilepsy.

\(g\) 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.

\(h\) 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.

\(i\) 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.

Furthermore, the evaluation of a product's accessibility shall take into
account accessibility of information, documentation and training, as
well as information pass through, as set forth in the Access Board's
Guidelines, §§ 1193.33 and 1193.37

Under TIA's proposed definition, "accessible" equipment and CPE are
defined in terms of [features]{.underline} that enhance accessibility
according to the criteria developed by the Access Board, instead of
using those criteria to define "accessibility" itself.[^49] In this way,
TIA's proposed definition serves to identify those product features that
enhance the accessibility of products for persons with disabilities.

Furthermore, Motorola endorses TIA's proposal because it is consistent
with both the limitations of the "readily achievable" standard and the
reality that every product cannot be accessible to everyone. Under TIA's
definition, each item on the Access Board's checklist would not be
mandatory. Rather, a manufacturer would be required to do what was
"readily achievable," a determination based upon, among other "readily
achievable" criteria (such as technical feasibility and fundamental
alteration), the cumulative cost of accessibility features (defined by
the Access Board's guidelines) included in a product.[^50] This approach
is also more consistent with a policy of promoting product
differentiation so as to provide truly meaningful access for different
disabilities, rather than a very superficial level of access in
virtually every product.

### 2. Motorola endorses the alternative definition of "accessible" proposed by TIA because it creates a workable framework that generates incentives for manufacturers to provide useful information about accessibility features to consumers, and recognizes that such features will be incorporated, to the extent "readily achievable," across product lines and families, and provides useful product information for consumers.

Most importantly, TIA's proposal, unlike the FCC's, encourages
manufacturers to provide consumers with specific, technical information
about the accessibility features included in products. Manufacturers
cannot represent that their products are "accessible" as the FCC
proposes to define that term, because no product can accommodate all of
the functional limitations identified in the 18 point definition of
"accessible." While a manufacturer could certainly qualify such a
representation by stating that a product has been made accessible to the
extent "readily achievable," this kind of representation is absolutely
useless to a consumer with a functional limitation, because such a
statement provides no information about what a product does and whether
it will in fact be accessible to that consumer. Similarly, the
uniqueness of every individual's disability, and the range of functional
limitation even within a single disability, will inhibit manufacturers
from representing that a product is "accessible" to a particular type or
set of functional limitation.

In contrast, under TIA's proposal, manufacturers' success in providing
access is measured in terms of the features provided, which will
encourage manufacturers to make representations about specific features
that enhance accessibility included in a given product, information that
a consumer with a disability needs in order to determine whether a given
product will be accessible to him or her. A manufacturer can provide,
for example, information concerning how many decibels of gain a product
can produce, the font size, typeface and color used on a display, the
size of buttons on a keypad, or whether the product has a voice chip or
a vibrating feature. These are features that enhance the accessibility
of products that can be described in specific technical terms that are
useful to persons with disabilities, who most often are well informed
about the performance criteria that a product must meet in order to be
accessible to their unique functional limitations.

By ensuring that persons with disabilities and other consumers have the
information to determine whether a product is accessible to them, TIA's
proposed definition of "accessible" would reduce the amount of
manufacturer resources that are diverted to demonstrating compliance,
and at the same time, encourage increased accessibility.

## B. The Definition Of Compatibility Should Be Modified So That It Not Only Accounts For, But Encourages, Advances In Technology That Will Ultimately Increase Access For Persons With Disabilities.

Where accessibility is not "readily achievable," manufacturers have an
obligation under Section 255 to ensure that their telecommunications
equipment and CPE are "compatible with existing peripheral devices or
specialized customer premises equipment commonly used by persons with
disabilities . . . if readily achievable." In the NPRM, the FCC
"recognize\[s\] that . . . compatibility criteria need to be broadened
to account for likely technological advances in both telecommunications
and accessibility products."[^51] Motorola agrees.

The FCC proposes to adopt the same definition of "compatibility"
developed by the Access Board in its guidelines.[^52] That definition
relies upon a five item "checklist" to define compatibility. Two of the
five elements of the FCC's proposed compatibility checklist relate to
TTY compatibility.[^53] To date, this compatibility has proven extremely
difficult for digital wireless technology.[^54] Therefore, for many
digital products TTY compatibility will not be "readily achievable"
because it is not technically feasible.

As the FCC has recognized in other proceedings, digital wireless
technologies are the wave of the future and will benefit all of the
public, including persons with disabilities. Digital technology has made
two-way paging and mobile email access possible -- features that are
extremely useful, for example, to persons who are deaf or hard of
hearing. Digital technology also made the new NBPCS voice paging
possible -- a communication approach which is very useful for someone
who is blind. Digital technology greatly increases the capacity of
telephone systems to serve more users with more functions. If Section
255 had been in effect when digital technology was first being
developed, a requirement that any telecommunications equipment using
this infrastructure be TTY compatible might have significantly impeded
development of this technology which has benefited everyone. In
balancing the public interest objectives of encouraging technological
innovation and increased usability by all members of the public body,
the FCC should ensure that Section 255's compatibility requirement is
not applied in a way that impedes the introduction of new innovations in
technology.

The FCC's recent activity related to digital television broadcasting
provides a useful example of how compatibility criteria should be
applied to new and developing technologies.[^55] The FCC, to promote
digital television broadcasting, has established a phase-in timetable
for use of this technology.[^56] In a thoroughly vetted public process,
the FCC established a phase-in timetable for use of this technology to
promote digital television broadcasting. Ultimately, the FCC's decision
will require virtually every household in America to purchase a new
television set, because existing sets will be incompatible with the new
digital technology.

For the same reason, the FCC should not encourage perpetuation of
outdated TTY technology by requiring compatibility indefinitely. Rather,
the FCC should consider phasing out the compatibility obligation for
such outdated technologies, and should encourage the development of
modern replacement technology. This is a sensitive and difficult issue.
Much careful thought needs to be given to any phase out and phase in of
comparable technologies. The key point here is that the FCC does no
service [in the long run]{.underline} to persons with hearing or speech
disabilities who rely on TTYs today by perpetuating its use.

The FCC should modify the "commonly used" criterion[^57] so that
manufacturers may be relieved of the obligation to provide compatibility
with one kind of SCPE ([e.g.,]{.underline} TTY) that is not consistent
with a new telecommunications technology ([e.g.]{.underline} digital
wireless), where another kind of telecommunications equipment, CPE or
SCPE that is consistent with the new telecommunications technology can
be designed to provide the same telecommunications functions. In order
to promote the technologies that will ultimately increase access, the
FCC should not simply look at which kinds of SCPE are subsidized by
state and local governments today,[^58] but should create incentives,
through its compatibility criteria, for the use and development of SCPE
that is consistent with new telecommunications technologies.[^59]

Finally, Motorola asks the FCC to clarify several aspects of the
compatibility requirement. First, if the FCC were to adopt the product
line approach for accessibility as advocated by Motorola, the
compatibility requirement would not come into play at all, so long as a
manufacturer can demonstrate it has an accessible product in its product
line that serves the particular individual's functional limitation. This
is clearly supported by the language of Section 255, which requires
compatibility only when accessibility is not readily achievable.[^60]
Second, Motorola asks the FCC to clarify that a product line approach
also is applicable to all five elements of the compatibility
requirement. That would mean that manufacturers of telecommunications
equipment and CPE would be required to consider incorporating the five
elements across product lines, rather than a product by product basis.
Motorola believes the compelling reasons for adopting a product line
approach with respect to accessibility apply with equal force to the
compatibility requirement.[^61]

# V. THE FCC SHOULD ADOPT A FAIR AND EFFICIENT COMPLAINT PROCESS THAT FOCUSES ON THE ACCESS NEEDS OF SPECIFIC INDIVIDUALS AND PROTECTS THE CONFIDENTIALITY OF PROPRIETARY INFORMATION SUBMITTED IN THE COMPLAINT PROCESS.

## A. Motorola Endorses TIA's Comments Related To The Complaint Process.

In response to this NPRM, TIA has submitted extensive comments related
to the complaint process proposed by the FCC. Rather than reiterate
TIA's comments here, Motorola indicates its strong support for TIA's
comments, particularly its criticisms of the fast-track complaint
process, which would permit consumers to file "complaints" with the FCC
without first being required to contact the manufacturer of the
allegedly inaccessible product. On two issues of special importance,
however, Motorola submits its own comments in addition to those of TIA:
(1) the need for a standing requirement; and (2) the need for measures
to insure the confidentiality of proprietary information submitted in
the complaint process.

## B. A Standing Requirement For Filing A Complaint Is Essential.

First, and most importantly, Motorola urges the FCC to adopt a standing
requirement for filing a complaint.[^62] Congress did not, in the
Telecommunications Act of 1996, indicate that a standing requirement was
unnecessary. Case law suggests that while Congress has the authority to
dispense with a standing requirement in the context of administrative
agencies, in the absence of a clear directive from Congress, agencies
are constrained from doing so by the Administrative Procedure Act
("APA").[^63] Absent a more broad grant of standing by Congress, the
persons who are permitted to file complaints before administrative
agencies should be limited to "interested parties."

Standing should be limited to "interested parties." To determine whether
a complainant is an "interested party" entitled to standing, an agency
should consider the following factors: (1) the nature of the interest
asserted by the potential participant; (2) the relevance of this
interest to the goals and purposes of the agency; (3) the qualifications
of the potential participant to represent this interest; (4) whether
other persons could be expected to represent adequately this interest;
and (5) whether special considerations indicate that an award of
standing would not be in the public interest.[^64]

Consideration of these factors in the Section 255 context suggests that
standing should be limited to "interested parties," defined to mean: (1)
a person with a disability, or someone filing a complaint on behalf of a
specific, identifiable individual with a disability (such as an
organization that represents persons with disabilities,[^65] or a parent
or legal guardian); and (2) who has purchased or used or has attempted
to purchase or use a specific, identifiable piece of telecommunications
equipment or CPE.

Such a standing requirement would ensure that: (1) the nature of the
interest asserted by the complainant would be increased accessibility,
rather than competitive or economic interests; (2) the complainant's
interest would be relevant to the goals and purposes of Section 255; and
(3) the complainant, as a person asserting specific, identifiable access
needs would be qualified to represent this interest, because access
issues cannot be resolved in the abstract. [^66]

A standing requirement is particularly necessary in the context of
Section 255 because the functional limitations of persons with
disabilities, even within a single disability, are highly individual and
unique. As a result, it is simply too difficult and vague for
manufacturers to consider the "accessibility" of equipment or CPE in the
abstract. Rather, the FCC can only provide meaningful review of
accessibility when confronted with a person with specific functional
limitations and accessibility needs who wants to use a particular
product.

The lack of a standing requirement also opens up manufacturers and
service providers to a wide variety of complaints, some frivolous, and
some that do not aim to achieve greater accessibility. These complaints
will necessarily divert attention and resources from [bona]{.underline}
[fide]{.underline} complaints from consumers. Motorola is particularly
concerned that entities may use the complaint process to obtain
proprietary and confidential information from manufacturers and service
providers.

Motorola therefore urges the FCC to adopt a baseline standing
requirement that the complainant must be: (1) a person with a
disability, or someone filing a complaint on behalf of a specific,
identifiable individual with a disability (such as a parent or legal
guardian or representative organization that meets the legal standing
requirements); and (2) who has purchased or used or has attempted to
purchase or use a specific, identifiable piece of telecommunications
equipment or CPE.

## C. In Fairness, The FCC Must Recognize And Accommodate Manufacturers' Legitimate Concerns About The Confidentiality Of Information Disclosed In The Complaint Process.

Manufacturers and service providers have great concerns about
confidentiality of information provided as part of the complaint
process, as noted by the FCC in the NPRM.[^67] In order to defend
complaints, especially complaints in which the "readily achievable"
defense has been invoked, manufacturers and service providers may have
to provide proprietary and confidential information concerning their
decisions whether to incorporate particular features into particular
products or services. As Motorola's discussion of hypothetical "product
drivers" and budgets[^68] demonstrates, much of the information relevant
to such a defense -- such as product memory and cost information -- is
likely to be highly confidential for competitive reasons. Particularly
in light of the lack of a standing requirement in the FCC's proposal,
manufacturers and service providers may be required to provide this
information to a wide variety of entities, including potential
competitors.

The FCC requested comment on ways to protect the confidentiality of
information provided during the complaint process, referencing
confidentiality protections provided in its regulations in connection
with FOIA requests and discovery. [See]{.underline} 47 C.F.R. §§
0.457(d), 0.457(g) and 1.731. Section 1.731 limits disclosure of
information obtained through discovery, that is designated proprietary,
to particular persons for use only in the complaint proceedings, and
only to the extent necessary to assist in prosecution or defense of such
complaint.

However, § 1.731 places the burden of proof on the party designating
documents as proprietary to prove they are such if challenged. Motorola
believes that disputes over the proprietary nature of information
submitted as part of the complaint process will divert resources from
the goals of Section 255. Motorola therefore requests that where the
"readily achievable" defense has been invoked, all information submitted
by the manufacturer should be treated as proprietary without a
requirement that the manufacturer designate it as such. This treatment
of all information as proprietary will in no way limit complainants'
ability to prosecute their claims; on the other hand, it will provide
significant protection for manufacturers and service providers.

In addition, Motorola believes that the FCC should adopt strict
penalties for improper disclosure of confidential information disclosed
in the complaint process. Such penalties might include:

-   imposition of fines;

-   dismissal of the complaint; and

-   precluding the complainant from filing complaints in the future.

# VI. CONCLUSION

For the reasons stated above, the FCC should: (1) adopt a product-line
approach to compliance that encourages product differentiation to
provide access to persons with disabilities; (2) define what is "readily
achievable" in the telecommunications manufacturing context in terms of
technical feasibility, cumulative cost, and fundamental alteration; (3)
modify its proposed definitions of key statutory terms such as
"accessible" (by adopting TIA's proposed definition) and "compatible"
(by creating incentives for the development of new access technologies)
to promote increased access in the long-run and to minimize the need for
filing complaints; and (4) adopt a fair and efficient complaint process
that: (a) includes a standing requirement in order to focus on the
specific access needs of a particular individual and particular
allegedly inaccessible product(s); and (b) protects manufacturers
against disclosure of confidential and proprietary information.

Respectfully Submitted,

**MOTOROLA, INC.**

+---------------------------------+---+---------------------------------+
| \_\_\_\_\_\_\_\_\_\             |   | Mary E. Brooner                 |
| _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |   |                                 |
|                                 |   | Alfred R. Lucas                 |
| Thomas C. Collier               |   |                                 |
|                                 |   | MOTOROLA, INC.                  |
| Steven K. Davidson              |   |                                 |
|                                 |   | Suite 400                       |
| Jennifer M. Quinn               |   |                                 |
|                                 |   | 1350 I Street, N.W.             |
| Karen E. Lloyd                  |   |                                 |
|                                 |   | Washington, D.C. 20005          |
| STEPTOE & JOHNSON LLP           |   |                                 |
|                                 |   | \(202\) 371-6900                |
| 1330 Connecticut Avenue, N.W.   |   |                                 |
|                                 |   |                                 |
| Washington, D.C. 20036          |   |                                 |
|                                 |   |                                 |
| \(202\) 429-3000                |   |                                 |
|                                 |   |                                 |
| *Its Attorneys*                 |   |                                 |
|                                 |   |                                 |
| Dated: June 30, 1998            |   |                                 |
+---------------------------------+---+---------------------------------+

**CERTIFICATE OF SERVICE**

I, Karen E. Lloyd, do hereby certify that on this 30th day of June 1998,
a copy of the foregoing Comments of Motorola, Inc. has been served, via
hand delivery, upon the following:

Meryl Icove

Disabilities Task Force

Federal Communications Commission

2033 M Street, N.W.

Room 910

Washington, D.C. 20036

Dan Phytheon

Wireless Bureau Chief

Federal Communications Commission

2025 M Street, N.W.

Room 5002

Washington, D.C. 20036

Elizabeth Lyle

Senior Legal Advisor

Wireless Telecommunications Bureau

Federal Communications Commission

2025 M Street, N.W.

Room 5002

Washington, DC 20036

John Cimko

Chief, Policy Division

Wireless Telecommunications Bureau

Federal Communications Commission

2025 M Street, N.W.

Room 5202

Washington, DC 20036

John Spencer

Attorney Advisor

Wireless Telecommunications Bureau

Federal Communications Commission

2025 M Street, N.W.

Room 7130

Washington, D.C. 20036

Susan Kimmel

Attorney Advisor

Wireless Telecommunications Bureau

Federal Communications Commission

2025 M Street, N.W.

Room 7112

Washington, D.C. 20036

International Transcription Service

Suite 140

1919 M Street, N.W.

Washington, D.C. 20036

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Karen Lloyd

[^1]: ^?^ Robert Growney, Chief Operating Officer of Motorola.

[^2]: This statement introduces a training video presently in production
    for Motorola employees which will address how Motorola can better
    serve the needs of people first, specifically people who have
    disabilities or functional limitations.

[^3]: In addition to these comments, Motorola endorses the comments
    submitted by the Telecommunications Industry Association ("TIA") in
    response to this NPRM.

[^4]: For the purpose of these comments, Motorola refers to
    telecommunications equipment and CPE interchangeably to refer to
    equipment that is subject to Section 255, unless otherwise
    indicated.

[^5]: [See]{.underline} NPRM at ¶¶ 169-170.

[^6]: NPRM ¶ 170 (emphasis added).

[^7]: Feasibility, expense, and practicality are the three components of
    the "readily achievable" definition proposed by the FCC. NPRM ¶ 100.

[^8]: Architectural and Transportation Barriers Compliance Board
    ("Access Board") Guidelines §§ 1193.41, 1193.43. These functional
    limitations relate to speech, vision, hearing, movement and
    processing of information.

    The FCC has proposed to adopt the definition of "accessible"
    developed by the "Access Board." NPRM ¶ 75. The Access Board's
    definition of "accessible," 36 C.F.R. § 1193.3, consists primarily
    of requirements related to the accessibility of product inputs and
    outputs to a variety of functional limitations. 36 C.F.R. § 1193.41
    (establishing nine criteria for product input, control, and
    mechanical functions); § 1193.43 (establishing nine criteria for
    product output, display and control functions). In addition, the
    Access Board's definition includes requirements related to "pass
    through" of codes and information "necessary to provide
    telecommunications in an accessible format," 36 C.F.R. § 1193.37,
    and a prohibition against changes to products that would decrease
    "the net accessibility" of CPE, unless the product is discontinued.
    36 C.F.R. § 1193.39. For convenience, Motorola refers to the
    elements of the definition of "accessible" as the "18 point
    checklist," even though the definition in fact establishes more than
    18 requirements to achieve accessibility.

[^9]: Under the proposed definition of accessibility, each of the
    eighteen items on the "checklist" is mandatory, so that a
    manufacturer must perform an independent "readily achievable"
    calculus for each item on the checklist. [See]{.underline} NPRM ¶ 75
    (requesting comment on this proposal).

[^10]: NPRM ¶ 15 (citing TAAC Final Report § 5.2.1 at 20).

[^11]: For example, multiple selectable access features would likely run
    afoul of the requirement that the product be accessible to persons
    with cognitive disabilities. [See]{.underline} Access Board's
    Guidelines 1193.41(i).

[^12]: NPRM ¶ 100; 42 U.S.C. §  12181(9) (definition of "readily
    achievable").

[^13]: NPRM ¶ 15 (citing TAAC Final Report § 5.2.1 at 20) (emphasis
    added).

[^14]: NPRM ¶ 170 (emphasis added).

[^15]: A manufacturer might be deterred from adopting a product-line
    approach, for example, because of the potential disruption of its
    business that might result if the FCC were to determine that the
    manufacturer failed to provide the "overall increase in
    accessibility" required to justify product line compliance under the
    FCC's approach. What would the FCC impose as a remedy? Would the
    manufacturer subsequently be required to demonstrate
    product-by-product compliance?

[^16]: The *Portable Answering Machine* is currently marketed by Page
    Net under the name *VoiceNow™* and by ConXus under the name
    *Pocketalk™*. A product information sheet for the *Portable
    Answering Machine* is attached as Appendix A to these comments.

[^17]: ^?^ As a threshold matter, the FCC would be faced by a difficult
    question of allocating responsibility for providing access to people
    who are deaf between the carrier and the manufacturer, because voice
    to text conversion can be accomplished either: (1) through a change
    in the infrastructure, accompanied by some changes to the pager; or
    (2) exclusively through far more extensive changes to each and every
    *Portable Answering Machine* on the market, which would have a
    serious impact on the product size, memory, and power drain.

[^18]: Under the proposed definition of "accessibility," manufacturers
    must, to the extent "readily achievable," avoid generating
    interference with hearing aids and other assistive listening
    devices. [See]{.underline} Access Board Guidelines § 1193.43(h). The
    higher the power level and the higher the computing power that a
    product operates at, the more likely that it is to generate
    interference. As this example shows, by making the *Portable
    Answering Machine* accessible to a person who is deaf, Motorola
    might actually make it less useful to a person who is
    hearing-impaired, who might otherwise be able to use the product
    (for example at its maximum volume level) as it is currently
    marketed.

[^19]: Access Board Guidelines § 1193.41, § 1193.43.

[^20]: A product information sheet for the *Pagewriter™2000* has been
    attached as Appendix B to these comments.

[^21]: Its dimensions are: 3.6\" x 2.8\" x 1.2\".

[^22]: Without question, the five day "fast-track" complaint procedure
    proposed by the FCC, NPRM ¶¶ 126-143 will dictate that a
    manufacturer create and maintain files of purely prophylactic
    documentation in order to respond to any complaints forwarded by the
    FCC in a timely manner. The "fast-track" process destroys the
    validity of the FCC's tentative conclusion that the proposed rules
    impose no information collection requirements other than designation
    of a point of contact. [See]{.underline} Initial Regulatory
    Flexibility Act Analysis, NPRM Appendix E, at E22. As Motorola
    pointed out in its comments on the Access Board's NPRM, each of the
    eighteen "accessibility" criteria on the checklist will surface at
    each decision-making crossroads in the product design, development
    and fabrication processes. A prudent manufacturer will want to
    document the reasons why any action that had an impact on
    accessibility was taken to show that the manufacturer has done what
    was "readily achievable" to promote access. The FCC's tentative
    refusal to recognize these significant documentation costs,
    implicitly required by the NPRM, permits the FCC to avoid asking the
    question whether such documentation costs should be considered in
    determining what is "readily achievable," and to ignore the
    practical reality that the diversion of limited resources to
    documentation and defense will inevitably reduce the resources
    available to provide access.

[^23]: ^?^ Under the guidelines promulgated by the Access Board, and
    adopted by the Department of Justice (\"DOJ\"), theater and stadium
    owners are not required to make every single seat wheelchair
    accessible. Department of Justice Standards for Accessible Design
    (\"JDSAD\"), 28 C.F.R., Part 36, App. A, §  4.33.3; 28 C.F.R. § 
    36.308, DOJ Preamble to Regulation on Non-Discrimination on the
    Basis of Disability (\"DOJ Preamble\"), 28 C.F.R. Part 36, App. B
    (commenting on §  36.308). Even as applied to new construction,
    which is subject to more stringent requirements than existing
    facilities, the ADA has been interpreted to require that: (1) a
    certain percentage of accessible seats be provided; (2) the
    accessible seats must be integrated into the seats available to the
    general public; and (3) the accessible seating must be dispersed
    throughout the stadium or arena so that disabled patrons are offered
    the same general range of choices, including sight lines and price,
    that are available to the general public. [Id.]{.underline};
    [Paralyzed Veterans of America v. Ellerbe Beckett Architects &
    Engineers, P.C.]{.underline}, 950 F. Supp. 393, 398-405 (D. D.C.
    1996) (discussing these requirements and applying them to the MCI
    arena in the District of Columbia), [aff'd]{.underline} 117 F.3d 579
    (D.C. Cir. (1997), [cert.]{.underline} [denied]{.underline} 118 S.
    Ct. 1184 (1998).

[^24]: 63 Fed. Reg. at 5612.

[^25]: NPRM ¶¶ 98, 99.

[^26]: NPRM ¶ 98.

[^27]: Product registration time is the interval between the moment that
    the product is acti-vated by the user and the time that it is
    actually capable of performing its various functions. For example,
    the first time a user turns on a cellular phone or two-way pager,
    the device initiates a "handshake" or registration with the system
    switch. This can take several minutes and until completed, the
    system will not recognize the user's unit.

[^28]: In manufacturing, part count has a highly significant impact on
    product reliability and quality. The fewer parts involved, the fewer
    errors that are likely to be generated in the manufacturing process.
    At Motorola part count has been the leading strategy for meeting Six
    Sigma quality in all our products. Adding parts also increases the
    size of the product circuit board and thus, the size of the product.

    In addition to the basic part count driver there are other practical
    issues related to manufacturing difficulties and costs. Even an
    accessibility feature, like a speaker jack (which is perceived as
    "simple" because the components may not be very expensive and the
    change may not interfere with use of the product by a person who
    does not need that feature) may involve substantial, costly changes
    to the product assembly line. On an assembly line, components that
    are similar in size and shape can typically be incorporated into a
    product by the same robot. A speaker jack, for example, which is a
    one of a kind component, typically requires a custom placement,
    either manually (by a human being) or by another specially
    programmed robot, which can add significant assembly and product
    costs.

[^29]: The complexity of the determination of what is "readily
    achievable" in virtually every instance demonstrates that the FCC's
    position that its proposed rules do not require any documentation
    other than establishment of a point of contact is incorrect.
    [See]{.underline} Initial Regulatory Flexibility Analysis, Appendix
    E to the NPRM at E22. The need for such documentation will arise not
    only in the context of a complaint process, but also internally.
    Many conscientious manufacturers will attempt to monitor compliance
    with Section 255 within their own organizations. Certainly, the FCC
    should want manufacturers to take such actions to ensure compliance
    without FCC involvement. The discussion above, however, should
    demonstrate the onerous system that the FCC will establish if it
    adheres to its proposed 18 point mandatory checklist for
    accessibility, which would require manufacturers to conduct the
    complicated "readily achievable" calculus described above for each
    of the 18 items on the checklist.

[^30]: A product battery, for example, occupies between 20 and 60% of
    the total product size.

[^31]: NPRM ¶100.

[^32]: [Id.]{.underline}

[^33]: NPRM ¶ 106. The FCC's formulation of "practicality," however,
    suggests that this consideration is based upon the cost of a given
    access feature. [Id.]{.underline} ("Perhaps the most difficult
    aspect of determining whether a particular accessibility feature is
    "readily achievable" involves determining whether it is practical,
    given the expense involved."). As Motorola's examples demonstrate,
    there are likely to be many situations where an accessibility
    feature is not practical regardless of how much it costs.

[^34]: [See]{.underline} NPRM at ¶ 102 (discussing Access Board's
    decision not to recognize feasibility as a separate factor).

[^35]: NPRM ¶ 101.

[^36]: [See]{.underline} NPRM ¶ 120.

[^37]: 36 C.F.R. § 1193.2; TAAC § 4.2.

[^38]: [See]{.underline} [id.]{.underline}

[^39]: DOJ Preamble, 28 C.F.R. Part 36, App. B (commenting on § 
    36.104).

[^40]: In fact, the text of Section 255 supports Motorola's
    interpretation that a manufacturer's efforts to provide access
    should be evaluated in terms of the efforts taken to accommodate
    persons with disabilities as a group. Section 255 requires
    manufacturers to "design, develop, and fabricate" equipment and CPE
    that is "accessible to and usable by persons with disabilities, if
    readily achievable." If Congress had intended an independent
    assessment of what was "readily achievable" for different functional
    limitations, rather than for persons with disabilities as a whole,
    it could have identified different functional limitations and
    indicated that the statutory obligation applied independently to
    each.

[^41]: [See]{.underline} NPRM ¶ 75 (requesting comment on this
    proposal).

[^42]: In addition to requiring public accommodations to remove
    architectural and communications barriers "that are structural in
    nature . . . where such removal is readily achievable," 42 U.S.C. §
    12182(b)(2)(C)(2)(A)(iv), the ADA requires public accommodations to
    provide auxiliary aids and services, such as sign language
    interpreters, unless it can "demonstrate that taking such steps
    would fundamentally alter the nature of the good, service, facility,
    privilege, advantage, or accommodation being offered or would result
    in an undue burden." § 12182(b)(2)(C)(2)(A)(iii).

[^43]: Although what is "readily achievable" and what is an "undue
    burden" are defined in terms of the same factors, the undue burden
    standard is more stringent. Whereas "readily achievable" is defined
    to mean without [much]{.underline} difficulty or expense," (emphasis
    added), "undue burden means "[significant]{.underline} difficulty or
    expense." 28 C.F.R. § 36.104 (regulations defining "readily
    achievable" and "undue burden"); [see]{.underline}
    [also]{.underline} 28 C.F.R. Part  36, App. B (commenting on
    relationship of two standards).

[^44]: [See]{.underline} 28 C.F.R. Part  36, App. B (commenting on
    relationship of two standards).

[^45]: Because the "readily achievable" standard is less stringent that
    the undue burden standard, from which the fundamental alteration
    concept is derived, a manufacturer should not be required to prove
    that a fundamental alteration would result from a proposed product
    modification in order to show that it was not "readily achievable"
    to modify the product as proposed. Even if a manufacturer cannot
    reach the "fundamental alteration" threshold, the FCC should
    consider the impact of a proposed modification to provide access on
    the product's marketability in determining whether the modification
    is "readily achievable."

[^46]: Appendix to 36 C.F.R. Part 1193 (comment 3 on the definition of
    "readily achievable," § 1193.3).

[^47]: [See]{.underline} NPRM ¶¶ 104, 106, 113, 114.

[^48]: Any market segment includes individuals with disabilities.

[^49]: NPRM ¶¶ 74-75; Access Board Guidelines §§ 1193.41, 1193.43.

[^50]: In so doing, TIA's definition of "accessible" would apply the
    "readily achievable" standard in the same way as that term has been
    applied and defined in the ADA context. [See]{.underline} DOJ
    Preamble, 28 C.F.R. Part 36, App. B (commenting on §  36.104)
    (indicating that it is \"appropriate to consider the cost of other
    barrier removal actions as one factor in determining whether a
    measure is readily achievable.\").

[^51]: NPRM ¶ 92.

[^52]: [See]{.underline} 36 C.F.R. § 1193.51.

[^53]: NPRM ¶ 91.

[^54]: Invented in the 1960s (using much older technology as a
    platform), TTY machines encounter numerous compatibility problems
    with modern computer and information technology. TTYs have not
    changed significantly since they were first designed. The modulation
    speed for example, of most TTYs is simply too slow to be effectively
    handled by today's high-speed computer modems.

[^55]: [See]{.underline} 63 Fed. Reg. 15774 (1998) (to be codified at 47
    C.F.R. pt. 73) (setting target date of 2006 for completion of the
    transition to digital television).

[^56]: [Id.]{.underline}

[^57]: [See]{.underline} NPRM ¶ 90 (requesting comment on when SCPE
    should be considered "commonly used," triggering the Section 255
    compatibility obligation).

[^58]: [See]{.underline} [id.]{.underline} (suggesting such a criterion
    for "commonly used").

[^59]: Motorola supports the concept of a definitive list of "commonly
    used" SCPE and peripherals developed and periodically updated by the
    FCC so that manufacturers' compatibility obligation is clearly
    defined.

[^60]: 47 U.S.C. § 255(d).

[^61]: [See]{.underline} Section II, supra.

[^62]: [See]{.underline} NPRM ¶ 148.

[^63]: [See]{.underline} [Ecee, Inc. v. Federal Energy Regulatory
    Commission]{.underline}, 645 F.2d 339, 350 (5^th^ Cir. 1981)
    (holding that § 555(b) of the APA, which states that an "interested
    person" may appear before an agency in connection with an agency
    function, applied to limit standing before FERC). [But]{.underline}
    [see]{.underline} [Block v. Securities and Exchange
    Commission]{.underline}, 50 F.3d 1078, 1085 (D.C. Cir. 1995) (on
    issue of whether an "interested person" could compel discretionary
    agency action, holding § 555(b) only applies to intervention in
    ongoing proceedings).

[^64]: [See]{.underline} [Koniag Inc. v. Andrus]{.underline}, 580 F.2d
    601, 616 (D. C. Cir. 1978) (Bazelon, J. concurring).

[^65]: ^?^ Where an organization files a complaint, it should be
    required to identify specific members who access needs allegedly are
    not met by specific products, in accordance with the ordinary rules
    governing organizational standing. [E.g.,]{.underline} [Sierra Club
    v. Morton]{.underline}, 405 U.S. 727, 735 (1972) (holding that
    alleged injury to ideological interests of organization are not
    sufficient to confer standing; organization must allege injury to
    specific members of organization who would have standing to sue on
    their own behalf).

[^66]: [See]{.underline} [Koniag, Inc.]{.underline}, 580 F.2d at 616.

[^67]: [See]{.underline} NPRM ¶ 153.

[^68]: [See]{.underline} discussion of "readily achievable" standards,
    Section III [infra]{.underline}.