**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**

**SELF HELP FOR HARD OF HEARING PEOPLE, INC. (SHHH)**

Donna L. Sorkin

Executive Director, SHHH

7910 Woodmont Avenue, Suite 1200

Bethesda, Maryland 20814

301-657-2248 Voice

301-657-2249 TTY

June 30, 1998

[TABLE OF CONTENTS]{.underline}

[Page]{.underline}

1\. Introduction 1

2\. FCC Authority 2

3\. Access Board Guidelines.. 3

4\. Telecommunications vs. Enhanced Services 5

5\. Telecommunications Equipment.. 8

6\. Manufacturers.. 9

7\. Definition of Disability.. 9

8\. Accessibility and Compatibility Requirements. 10

Usability. 10

Accessibility.. 11

9\. Compatibility. 11

10\. Readily Achievable. 12

Market Considerations. 15

Cost Recovery 17

Timing. 19

11\. Enforcement Authority.. 20

Sections 207-208.. 20

Sections 312 and 501-504 22

12\. Complaint Process. 23

Filing Fees. 23

Standing Requirement. 23

No Time Limit. 24

Complaints Against Manufacturers 24

Regulations Governing Complaints. 25

Need for Respondents to Produce Relevant Documents and Information 25

Five-Month Limit 26

Formal Complaints. 28

Fast Track Problem-Solving Phase. 29

[Page]{.underline}

13\. Defenses to Complaints.. 31

Product vs Product Line.. 31

14\. Penalties for Non-Compliance 32

15\. Conclusion 33

Attachment (The Washington Post, June 25, 1998)

**[1. Introduction]{.underline}**

Self Help for Hard of Hearing People, Inc. (SHHH) hereby submits
comments in response to the Federal Communications Commissions Notice of
Proposed Rulemaking on Access to Telecommunications Services,
Telecommunications Equipment, and Customer Premises Equipment by Persons
with Disabilities.

SHHH is a national educational organization representing people who are
hard of hearing. Its members are people of all ages and degrees of
hearing loss. Through a National office, seven state associations and a
network of 250 chapters and groups across the country, SHHH members
consistently work towards increasing communication access to enable
people who are hard of hearing to continue to function in mainstream
society. Access to telecommunications is integral to being able to
actively participate in todays world.

The Commissions NPRM on Section 255 was long awaited. Since Section 255
became effective on February 8, 1996, the Commissions staff has spent
considerable time discussing accessibility issues with consumer groups,
equipment manufacturers, and service providers. It built a record
through the Notice of Inquiry and has had ongoing consultations with the
Access Board staff, who issued accessibility guidelines for equipment in
February, 1998. It was, therefore, with disappointment and dismay that
we read the proposed rule when it was finally released April 20, 1998.
The major concern is with the lack of proposed regulatory language and
clear-cut rules. The

document asks over seventy questions and in many important areas reads
more like a notice of inquiry than a NPRM.

Additionally, though the Commission acknowledges Section 255 as the most
significant governmental action for people with disabilities since the
passage of the Americans with Disabilities Act, and that Section 255 was
about ensuring that [all]{.underline} Americans can gain the benefits of
advances in telecommunications services and equipment. It then proceeds
to define readily achievable, a key standard for implementing the law,
in such a way as to negate the entire law and call into question the
notion of disability access as we have come to define it in the United
States.

[2**. FCC Authority**]{.underline}

SHHH supports the Commissions tentative ruling that it has more than
ample authority to promulgate rules on how to comply with the equipment
and service accessibility mandates of Section 255. Specifically, Section
4(i) of the Communications Act explicitly permits the Commission to
perform any and all acts, makes such rules and regulations, and issue
such orders, not inconsistent with the Act, as may be necessary in the
execution of its functions as indicated in paragraph 26 of the NPRM. The
statutory language of Section 255 itself, which directs the Access Board
to develop guidelines in conjunction with the Commission and to
periodically review and update the guidelines, also makes clear that
authority.

Not only does the Commission have authority, it should issue regulations
as this is essential to achieving the type of telecommunications access
for individuals with disabilities that was contemplated by Congress. If
we are to change industrys mindset in the way products and services are
designed, taking into consideration multiple users with diverse needs,
then the Commission must provide telecommunications providers

and manufacturers with clear guidelines so that they understand the
extent and nature of their accessibility obligations from the outset.

SHHH and other consumer organizations are well aware that industry does
not want to be regulated and view regulations as impinging on their
culture and way of operating. However, historically market forces have
never worked for people with disabilities and this is the one area where
if progress in accessible products and services is to be made,
regulations in some form are essential.

[3. **Access Board Guidelines**]{.underline}

It is not clear from the NPRM whether or not the Commission proposes to
adopt the Access Board guidelines. In fact, it appears the Commission is
leaning towards not adopting the guidelines for services and instead
developing its own regulations. The Commission states that it views the
Boards guidelines as our starting point for the implementation of
Section 255. We wonder what starting point means. The NPRM also mentions
that the guidelines will be given substantial weight and that they will
be taken into consideration as good faith actions when complaints are
being investigated. The Commission is concerned that the Access Board
guidelines, written for equipment manufacturers, may not be applicable
to services, and therefore it is leaning towards adapting them for a
better fit. We disagree and strongly urge the Commission to adopt the
Access Board guidelines in full for both manufacturers and service
providers. We believe their adoption was the intent of Congress when it
authorized the Access Board, as the primary agency, to develop
guidelines for equipment manufacturers, and the Commission to enforce
such guidelines. The Access Board has unique expertise in developing
accessibility guidelines for this statute given its past experience with
the Americans with Disabilities Act and the Architectural Barriers Act.
We believe this is why Congress entrusted such responsibility to the
Board and gave enforcement power to the Commission. We also believe that
requiring the adoption of the guidelines for services would facilitate a
coordinated approach to accessibility for both services and equipment.
All interestsindustry, consumers, and the Commissionwill be best served
by a rule that clearly states the requirements of both equipment and
services. The Access Board guidelines provide such clarity. If the
Commission adopts only part of the Access Board guidelines and proceeds
to add its own language, there will be considerable confusion as to
industry responsibilities.

Additionally, Congress gave responsibility for updating the guidelines
to the Access Board. The Access Board cannot undertake such periodic
updates effectively unless it is recognized by the Commission as the
body with such responsibility. As is currently the case with the ADA
Guidelines development and the Department of Justice, the Federal
Communications Commission would need to be intensively involved in
revision activities.

Access to telecommunications is in its infancy and little is available
to guide engineers of products and systems in developing solutions to
access problems. Likewise, concrete measures to indicate when access in
telecommunications has been achieved are virtually nonexistent. Creative
solutions will evolve as engineers routinely design with access in mind
and a body of knowledge and expertise is built up. Meanwhile, the Access
Board guidelines provide concrete goals and some examples of how to
reach such goals without putting constraints on how companies achieve
accessibility. The guidelines are flexible so as to not stifle
innovation, a major concern of industry. The proposal presented by the
Commission in the NPRM is unclear and does not provide adequate
guidance. The Commission should adopt the Access Board guidelines in
full and make them a clear mandate for everyone in the final rule.

[**4**. **Telecommunications vs. Enhanced Services**]{.underline}

Enhanced services like automated voice response systems have become
commonplace in the past five years. Congress could not have intended to
eliminate important and widely used services from the scope of Section
255, as doing so would undermine the very purpose of the law. As the
Commission so rightly states in the NPRM Introduction-Summary, the
inability to use telecommunications equipment and services can be
life-threatening in emergency situations, can severely limit educational
and employment opportunities, and can otherwise interfere with full
participation in business, family, social and other activities.

The Commissions historical distinction between enhanced services and
adjunct-to-basic services has nothing to do with the issue of access to
the world of telecommunications by people with hearing loss. Rather,
that historical distinction has been made in traditional Title II
regulatory concepts such as tariffing, resale, networking, oversight of
customer premises equipment (CPE), distinctions among voice, basic
non-voice (BNV) and enhanced nonvoice (ENV), cross-subsidization issues,
and the like. See [Computer 11]{.underline}, [Non-Accounting Safeguards
Order]{.underline} and [NATA Centrex Order]{.underline} decisions relied
on in the NPRM in applying the historical distinction between enhanced
and adjunct-to-basic services to this proceeding.

Many of the services currently classified as enhanced services do indeed
bring maximum benefit to the public through their incorporation in the
network. Eliminating these services from coverage under Section 255
creates barriers to completing a call for people with disabilities. Many
people with hearing loss do not now have access to enhanced services.
Many of our hard of hearing members have told us they hang up when faced
with voice mail and automated voice response systems. Because these
systems are so commonplace, there are many important calls that hard of
hearing people are unable to complete. Such systems cannot be accessed
by TTY relay services since there is generally insufficient time for the
relay operator to type the choices and receive a response from the
individual using a TTY. Hearing aid users have great difficulty
understanding the message or discriminating between numbers such as 2
and 3. The automated voice response systems go too fast, are not clear
and do not allow for repeats, making them inaccessible for most people
with hearing loss. Further, if such menu systems require quick
responses, they may not be usable by people with other disabilities.
These menus should be set up to allow someone to escape early on by
dialing a standard number such as 0 to talk to a person. This would
appear to be an easy solution but some form of regulation is needed for
this to happen.

Given the broad objectives Congress sought to accomplish by its
enactment of Section 255, we believe Congress intended it to apply to a
broad range of services such as voice mail, automated voice response and
electronic mail. Without appropriate regulations governing enhanced
services, access goes one step forward and two steps backward as more
barriers are created. As services merge, the distinctions between
enhanced, basic and adjunct to basic are superficial at best.
Communication via technology, in whatever form, whether phone calls over
the internet or email received on a phone handset, must be governed by
Section 255 if access is to be achieved in the manner it was intended.

Section 254 of the Telecommunications Act contains the Congressional
mandate for universal service to ensure that all Americans have access
to both basic and advanced telecommunications services. We believe
enhanced services also falls within the scope of Section 255.

[**5**. **Telecommunications Equipment**]{.underline}

We agree with the proposal that Section 255 apply to multi-purpose
equipment when it serves a telecommunications function. When a
manufacturer produces equipment that was intended for a
non-telecommunications application but has use in connection to a
telecommunications service, the obligation should be to the application,
not the intent. As long as the equipment has a telecommunications use,
it is covered by Section 255.

We support the interpretation that the focus of Section 255 should be on
functionality and that software is simply one method of controlling
telecommunications functions. Therefore software should be subject to
accessibility requirements to the extent that it provides
telecommunications functions. Customer premises equipment (CPE) is
increasingly dependent on software, and convergence is blurring
historical lines between network functions and telecommunications
appliances. However, we do not agree that software to be used with CPE
that is marketed separately from the CPE should be excluded from
coverage under Section 255. As long as its application is one that
relates to telecommunications, then it should be covered. Software is a
component of the CPE that is required in order to use the device for a
telecommunications function. To complete a call, software is needed. The
accessibility of the CPE depends on the software. Therefore it is not
logical to exclude software which is not initially bundled with the CPE
because it can and will be used with the CPE later. Such an approach
appears to be anticompetitive. If adopted, the Commission would be
promoting a policy that encourages consumers with disabilities to use
bundled software.

**[1. 6. Manufacturers]{.underline}**

We support the view that all equipment marketed in the United States,
regardless of national origin, should have uniform accessibility
requirements. The Access Board guidelines do not distinguish between
foreign and domestic manufacturers. Given the large percentage of
telecommunications equipment that is produced outside of the U.S,
Section 255 would be severely limited if it were not applied universally
to foreign as well as to domestic markets. Laws governing access for
people with disabilities have not distinguished between domestic and
foreign manufacturers. For example, televisions and telephone equipment
are covered regardless of where they were manufactured. Section 255
should be applied to all manufacturers offering equipment for sale in
the United States, regardless of their location or national affiliation.

We support the Commissions definition of manufacturer based on the
Access Board guidelines as fixing responsibility for product
accessibility on the final assembler. Equipment commonly consists of
components manufactured by several different companies. Assuming
assemblers have control over the components they use, they could specify
accessible components from their suppliers and negotiate the cost of
compliance. This approach would reduce the complexity of overseeing
compliance.

**[7. Definition of Disability]{.underline}**

The Commission proposes to adopt the ADAs definition of disability and
the Access Boards list of categories of common disabilities. We support
this proposal.

[**8**. **Accessibility and Compatibility Requirements**]{.underline}

**Usability.** The Commission proposes to use the term accessibility in
the broad sense to refer to the ability of consumers to actually use the
equipment or service by virtue of its inherent capabilities and
functions. SHHH disagrees with this approach. It is important to
preserve the nuances of the two words, usability and accessibility, and
maintain the way the Access Board handles the two definitions.
*Usability* and *accessibility* are two different concepts. Use is
independent of access and there is the potential to overlook usability
when the two are merged together.

The Commission rules should cover not only the engineering of the
product or service, but also the companys business practices as well.
The ability to access customer service, pay a bill, and receive general
product information in accessible formats is integral to using the
products or services and hence must be covered.

Although the Commission proposes to adopt the Access Boards definition
of usability (which requires access to the documentation for the
product, including instructions, product information including
accessible feature information, and technical support), it is not clear
whether the Commission intends to actually impose these as requirements.
Because there is no regulatory language proposed on this issue, one
cannot determine if the Commission intends that these items are
required, or rather options for the service provider that will be looked
favorably upon after a complaint has been filed.

**Accessibility.** The Commission proposes to adopt the Access Boards
definition of accessibility and related appendix materials, including
the requirements for access to input, control, and mechanical functions,
and to output, display, and control functions. The Commission proposes
to use the definition as a basis for evaluating accessibility
obligations for equipment, consumer support services and
telecommunications services. We support using the Access Boards
guidelines to evaluate telecommunications service accessibility as well
as products. However, there is no proposed regulatory language making it
clear that such access is required of all telecommunications
manufacturers and service providers, not merely that the Commission will
look at these factors only if a complaint against a company is filed.
Language to this effect needs to be clearly stated as a rule.

**[9. Compatibility]{.underline}**

The Commission proposes that devices and CPE should be considered
commonly used by people with disabilities when they are affordable and
widely available. We vehemently oppose this definition. Many specialized
devices are not very affordable (e.g., telebrailles that cost several
thousand dollars). Therefore, these devices, are not very widespread.
However, they are critical for deaf/blind people to have access to
telecommunications. Each disability group could easily identify which
devices are functionally effective and are most commonly used by
individuals with a particular disability. SHHH encourages the Commission
to enlist the help of the various disability organizations to compile
and maintain a list of commonly used devices. SHHH would be pleased to
assist in developing a list of devices commonly used by hard of hearing
people for access to telecommunications.

The Commission also proposes that there be a rebuttable presumption that
a device is commonly used when it is distributed in a state equipment
distribution program. We support this proposal.

The Commission proposes to adopt the Access boards list of five criteria
for determining compatibility. We support adoption of these criteria.

**[10. Readily Achievable]{.underline}**

The Commission has markedly altered the definition of readily achievable

(i.e., easily accomplishable and able to be carried out without much
difficulty or expense) compared to how it has previously been
interpreted in disability law. Although the Commission states that
readily achievable as defined by the ADA is applicable to
telecommunications equipment and services, it goes on to propose a
smorgasbord of options that can be considered in the determination of
readily achievable which includes feasibility, expense, practicality
(resources, cost recovery, market considerations) and other
considerations. Some of the proposed factors are appropriate in a
telecommunications environment but others seriously undermine Section
255 and would guarantee that few, if any, accessible products, come to
market.

The term readily achievable was adopted from the ADA as an enforcement
standard for Section 255. However, although the term is borrowed, the
determining factors proposed by the Commission are markedly different
from those that have traditionally been applied under the ADA. In
response to the Commissions Notice of Inquiry questions were raised by
commenters as to how applicable the concept readily achievable, as used
in the built environment, is to the telecommunications arena. Several
commenters noted that the definition should be adapted when applied to
telecommunications. This reasoning results from viewing access as an
expense and a negative feature rather than as an opportunity. There are
sound business reasons for accessible design. There may in fact be value
added to a product from built-in accessibility features. For example,
accommodations made in the built environment such as elevator bells and
lights, voice announcements, and curb cuts are found to have a high
percentage of users without disabilities. There is no reason to believe
that this will not be replicated in telecommunications. One obvious
example is the volume control feature on telephones which everyone finds
useful in noisy situations or when the other party has a very low voice.
Accommodations in telecommunications provide alternative modes of
operation which could be attractive to a variety of users who are not
necessarily disabled.

Historically, the definition of readily achievable in the disability
arena government and agency interpretation has been based on the
resources of the facility. Though readily achievable is a lower standard
than undue burden, the Department of Justice uses the same factors in
determining both. The Commission proposes that the same factors used
under the ADA\-\-- resources including financial, staff, facilities, and
other\-- available to the provider to meet the expenses associated with
accessibility may be taken into consideration. Following the ADA, the
Commission proposes to establish a presumption that the resources
reasonably available to achieve access are those of the entity legally
responsible for the equipment or service which is subject to Section
255. The resources of a parent company may be considered only to the
extent those resources are available to the subsidiary. We believe this
is a fair and reasonable determination.

Technical feasibility (lack of available technology or physical
impossibility) is also a reasonable factor in a readily achievable
determination specific to telecommunications. However, this should be an
evolving concept. As new technology is developed, designing a particular
access solution that is not possible today may become possible in the
future and therefore could no longer be used as a rationale for not
providing access. Industry should have an obligation to continually
assess the accessibility of its products. We support the Commissions
statement in footnote 200. Although existing accessibility solutions
are, by definition, feasible, we do not propose to determine that a
solutions is unfeasible simply because the solution has not yet been
found.

The Commission also states that there might be legal impediments to
implementing some features. In the event of proprietary and standards
issues creating barriers to designing access, the Commission should
create a process to reduce regulatory impediments within the Commission
and require anyone asserting this defense to demonstrate their efforts
to overcome legal impediments.

The two factors that significantly and dramatically undermine the
Congressional intent of the statute are **market considerations** and
**cost recovery.**

**[1.]{.underline} Market Considerations.** These are defined as
including the potential market for the more accessible product, and the
extent to which the more accessible product could compete with other
offerings in terms of price and features.

[**1.**]{.underline}

It is difficult to understand why market considerations were included in
the list of readily achievable determinations. The underlying premise
for including Section 255 in the Telecommunications Act of 1996 was
precisely because market forces rarely work for people with
disabilities. Every improvement of significance in making
telecommunications accessible has come about as a result of legislative
requirements not market forces.

[**1.**]{.underline}

Telecoils and volume control in voice telephones, decoding capability in
TVs, and telecommunication relay services are just a few examples of
legislation that has enabled people with hearing loss to use
telecommunications and without which such changes would not have
occurred. All came about as a consequence of federal mandates. Indeed,
FCC Commissioner Harold Furchtgott-Roth, despite his general support of
deregulation, conceded that, This particular area of regulation may well
be a rare instance of where the involvement of the federal government
introduces efficiencies unlikely to develop in the market. If, under the
readily achievable test, manufacturers are exempt from making accessible
products in instances in which there is a perceived or relatively small
market, then we will never achieve the changes in access that Congress
intended for people with disabilities under Section 255.

[**1.**]{.underline} One relevant example is the introduction of talking
caller ID. This provides access to caller ID for blind people. If market
factors had been taken into consideration, talking caller ID would never
have been developed. If industry is permitted to compare the market
potential of an accessible product with that of other mainstream
products, (which are often inaccessible), then the Commission is in
effect sanctioning the sale of inaccessible products. **Such market
comparisons have no place in the determination of readily achievable and
are in direct conflict with the underlying premises for the law.**

[**1.**]{.underline}

The Access Board guidelines provide that no change shall be undertaken
which decreases or has the effect of decreasing the net accessibility,
usability, or compatibility of telecommunications equipment or CPE. The
Commission is concerned that this principle should not operate in such a
way as to prevent legitimate feature trade-offs as products evolve, nor
should it stand in the way of technological advances. Clearly it is not
in anyones best interest to interfere with technological development.
However, it is critical that a particular access function is retained,
even if it is achieved differently. No matter how a product or service
is changed, the basic access function should be retained in whatever
mode makes access possible. There are many such examples of disability
access going backwards, resulting in people being relegated to second
class status. Blind people lost access to computers when graphic user
interface was first introduced. Hard of hearing people lost access to
phones when digital wireless handsets were introduced. As a society, we
must ensure that as technology advances, the needs of people with
disabilities are addressed appropriately. Such access has been long in
coming in America and we cannot afford to go backwards. We encourage
innovation and development and want to be sure that designers plan for
access, either through existing access functions or via other innovative
solutions

**Cost Recovery.** This is defined by the Commission as the extent to
which an equipment manufacturer or service provider is likely to recover
the costs of increased accessibility. Introducing cost recovery as a
factor in assessing readily achievable is wholly inappropriate and will
likely result in few accessible products being developed for all of the
reasons detailed above. Section 255 was adopted by Congress precisely
because the market has traditionally not worked for people with
disabilities. In America we recognize that there is a greater good in
ensuring that people with disabilities have access to work, medical
care, travel, and everyday living. Telecommunications are central to
ones ability to function as a productive citizen in America and
consequently we have determined that there is a greater good to society
in ensuring that such access is mandated and provided, if it is feasible
to do so.

[**1.**]{.underline}

Protection from incurring an excessive cost burden is already provided
by the readily achievable language, which is interpreted to mean: easily
accomplished and able to be carried out without much difficulty or
expense. Indeed, this cheap and easy interpretation, which has
traditionally been used under the ADA is now suggested for Section 255,
is already a low standard. Readily achievable is considerably less
burdensome than the undue burden standard implying significant
difficulty or expense that is applied to public entities under the ADA.

[**1.**]{.underline} There may well be some costs in providing such
access that are not covered by

increased sales to people with disabilities. These costs can be spread
out over the

thousands or millions of users to ensure that people with disabilities
can fully

participate in todays society. Such is the case with the
Telecommunications Relay

Services (TRS) for which all of us pay a small amount (i.e., 10 cents)
each month on

our monthly phone bill to support such services for people who are hard
of hearing,

deaf, or speech impaired.

**[1.]{.underline} In summary, although certain economic and cost
factors are appropriate in the**

**determination of readily achievable (i.e., overall resources of the
entity, nature and**

**cost of the action), cost recovery and market considerations have no
place in the**

**consideration of disability access. These are concepts that would not
only**

**undermine the intent of Section 255 but could also negatively impact
the general**

**approach to disability access as it has evolved in the United States
in the past 10**

**years.**

**Timing.** If a product is introduced without accessibility features
because such access features were not possible at the time, the
Commission states that Section 255 does not require that the product be
modified to incorporate subsequent, readily achievable access features.
We do not believe this was the intent of the law. Congress could not
have intended that access be put off forever. Timing should not be a
defense in itself. Section 255 applies to the design and development of
a product. Access should be incorporated in the early stages of design.
When such features are not possible, there is an ongoing obligation for
the company to stay abreast of technological advances and incorporate
the appropriate access solution when it is technically feasible to do
so. Readily achievable should be a determination throughout the design
and development stage, no matter how long or short that is. The Access
Board guidelines require incorporation of access when there are
significant upgrades of products. This requirement should be
incorporated into the Commissions rules for both products and services.

Given the wide range of telecommunications products emerging constantly,
the unique nature of disabilities, and the status of access solutions
SHHH agrees that readily achievable determinations should be made on a
case by case basis.

**[1. 11. Enforcement Authority]{.underline}**

SHHH supports the Commissions view that in vesting the agency with
exclusive jurisdiction to undertake enforcement of Section 255, Congress
intended that the agencys full complement of enforcement powers would be
available. These include Sections 207-208, 312 and 501-504 of the
Communications Act.

**Sections 207-208.** The Conference Report makes explicit reference to
the use of Sections 207-208 in the enforcement of Section 255:

The remedies available under the Communications Act,

including the provisions of Sections 207 and 208, are

available to enforce compliance with the provisions of

Section 255.

Conf. Rep. 104-230, 104^th^ Cong., 2d Sess. (1996) at 135.

The importance of this reference cannot be overstated. These sections
have been on the

law books since the Commission was founded in 1934 and, indeed, were
taken from the

Interstate Commerce Act adopted in the 1800s as amended in 1909, 24
Stat. at 382.

Paglin, [A]{.underline} [Legislative History of the Communications Act
of 1934,]{.underline} Oxford University

Press (1989) at 37. They are a basic means by which citizens have
protection from

federally regulated industries, and Circuit Court review of agency
disposition of their

complaints is a basic means by which citizens have protection from
action contrary to

law by federal regulators.

This venerable statutory and regulatory scheme is versatile and
adaptable to needs ranging from major litigation between industry
parties to the resolution of complaints filed by individuals citizens,
e.g., a complaint about violation of a provision of the Act against
divulging the contents of a persons private telephone conversation in
Long Beach, California, [Elehue and Lucilee Freemon v.
AT&T]{.underline}, 75 RR2d 1165 (1994); refusal to accept an order for
service from a teenager in Pittsburg, Kansas, [Richard]{.underline}
[Johnson v. Southwestern Bell Telephone Co]{.underline}., 16 RR2d 941
(1969); and an overcharge to an individual in Los Angeles for a single
long distance call, [Charles Spencer Williams]{.underline}\_[v. Pacific
Telephone and Telegraph Co]{.underline}., 28 RR2d 1022 (1973).

Sections 207-208 are available for dealing with properly structured
class actions on behalf of similarly-situated parties,
e.g[.]{.underline}, [Phillips v. Grand Trunk Ry]{.underline}., 236 U.S.
662, 665 (1915) (under the Interstate Commerce Act, holding that a
proceeding to determine the reasonableness of a railroad rate was not in
the nature of private litigation between a Lumber Association and the
carriers, but was a matter of public concern in which the whole body of
shippers was interested.); [Certified Collateral]{.underline} [Corp. v.
Allnet Communications Services, Inc]{.underline}., 63 RR2d 1185 (1987);
and [Associated Students of the University of Arizona v.
AT&T]{.underline}, 28 RR2d 805 (1973) (examples of class action
complaints brought under Section 208, albeit unsuccessfully on the facts
of the cases).

The relief sought under Sections 207-208 may be monetary damages, which
can amount to a small sum of money for an isolated individual case or
more substantial sums in industry-complaint cases. The relief may also
be to enjoin a party from engaging in unlawful conduct, e.g., [United
States v. Southwestern Cable Co]{.underline}., 392 U.S. 157 (1968) (FCC
has power to grant injunctive relief under its plenary agency powers in
the Communications Act); [Mocatta Metals Corp. v. ITT World
Communications]{.underline}, [Inc]{.underline}., 28 RR2d 237 (injunction
may lie under Sections 207-208 if monetary damages do not adequately
compensate an aggrieved party).

**Sections 312 and 501-504.** The Conference Report states, without any
reservation, exception or limitation, that the remedies available under
the Communications Act are available to enforce compliance with Section
255. Section 312, in one form or another, has been on the law books
since formation of the Federal Radio Commission in 1927 and continuing
upon formation of the FCC in 1934. Sections 501-502 date back for a
similar period of time; Sections 503-504 date back to an amendment of
the Act adopted in 1960, following which a vigorous monetary forfeiture
program has ensued.

Subsection (a) of 312 provides for revocation of FCC authorizations for
willful or repeated violation or failure to observe any provision of the
Act or FCC regulations implementing the Act. Some members of the service
provider and manufacturer communities to which Section 255 applies, do
hold such FCC authorizations.

Subsection (b) of 312 provides for issuance of cease and desist orders
addressed to anyone who has violated or failed to observe any provision
of the Act or implementing regulations. In the appropriate case, this
subsection can reach any service provider or manufacturer to which
Section 255 applies.

Subsection (b) of 503 provides for monetary forfeitures assessed against
any person who willfully or repeatedly fails to comply with any
provisions of the Act. Section 504 vests collection responsibilities,
which involve federal district court review of the Commissions
determination, in the Department of Justice. In the appropriate case,
these forfeiture provisions can also reach any service provider or
manufacturer to which Section 255 applies.

**[12. Complaint Process]{.underline}**

**Filing Fees.** As an organization representing consumers, SHHH
supports the Commissions proposal not to require filing fees for
complaints directed at equipment manufacturers and service providers
that are not common carriers. We understand that the Commission is
required to impose a filing fee for formal complaints directed at common
carriers under the Communications Act, but may waive the fee if doing so
would be in the public interest. Consumers should not be charged a fee
for efforts to gain access to telecommunications products and services.
This is a different situation from that of companies filing complaints
against each other for business purposes. Therefore, it is in the public
interest to waive the filing fee.

**Standing Requirement.** The Commission has proposed that there be no
standing requirement. This deviates from other accessibility laws, which
allow only individuals with disabilities, or organizations representing
them, to have standing. Leaving standing open can encourage complaints
by companies against other companies. Section 255 is intended to protect
individuals with disabilities against discrimination in
telecommunications. It was not intended to be used by companies to file
complaints against each other. There should be a standing requirement
for filing complaints.

**No Time Limit.** SHHH supports the Commissions proposal not to
establish any time limit for filing complaints. A consumer may not know
whether a product or service is fully accessible until they purchase it
and start to use it. This may be any length of time after the product or
service is introduced. Therefore, it is important that no time limit be
set for when a complaint can be filed.

**[1.]{.underline} Complaints Against Manufacturers.** Congress intended
that Sections 207 and 208 apply to enforcement of Section 255 without
distinction between service providers and manufacturers who might come
within the definition of common carriers and those who might not.
Subsection (b) expresses the obligations of manufacturers; subsection
(c) expresses the obligations of service providers; subsection (e)
grants the Commission exclusive jurisdiction to deal with all complaints
regarding compliance with these obligations, without regard to whether
the complaints are addressed to manufacturers or service providers or
both; and the Conference Report interpreting subsection (e), likewise
without differentiating between manufacturers or service providers or
both, states that Sections 207-208 are available for dealing with
Section 255 complaints.

[**1.**]{.underline}

This clear legislative intent is reinforced by the reality that, in the
rapidly changing present and future telecommunications worlds, to which
the Telecommunications Act of 1996 is addressed, the boundary lines
between classic common carriers and others have become blurred and most
likely will increasingly become more blurred in the future. S. Rep.
104-23, 104^th^ Cong., 1^st^ Sess. (1995) at 2-10, 37-39; H. Rep.
104-204, 104^th^ Cong., 1^st^ Sess. (1995) at 48-55, 97-112; statement
of Senator Leahy in the floor debate of the Telecommunications Act of
1996: I think Congress has been behind the curve in telecommunications.
We need to update our laws to take account of the blurring of the
formerly distinct separation of cable, telephone, computer and broadcast
services. Cong. Rec. S8067 (daily ed. June 9, 1995). For the most
recent, stunning example, see the attached article AT&T Buys TCI, Looks
to One-Stop Future, in *The Washington Post,* June 25, 1998*.*

**Regulations Governing Complaints**. The current grid of regulations
regarding complaints under Sections 207-208, updated in 1988, is
generally suitable for enforcement of Section 255. The modified grid of
regulations, announced in 1997 and currently the subject of
reconsideration and court appeals, with strengthening of discovery
provisions, also is generally suitable for enforcement of Section 255.
The Commissions generic rules for handling informal complaints, not
otherwise covered by the regulations addressed to specific regulatory
programs, obviously will not suffice if that is intended as a permanent
means of dealing with complaints under Section 255. The Commission can
point to no other regulatory program that it administers in which these
catchall informal complaint rules are the sole remedy for aggrieved
parties.

**Need for Respondents to Produce Relevant Documents and Information**.
Citizens who file complaints often must rely on circumstantial evidence
concerning the actions of respondent parties relative to compliance with
legal obligations. The vast majority of the relevant evidence, if not
all of it, will likely be in the private possession of the respondent
service provider or manufacturer or both. The modified grid of
regulations announced in 1997 recognizes this and allows complainants to
rely on circumstances for which they do not have first-hand information,
so long as the basis for their complaints is set forth fully. However,
under those regulations, the responding parties need only provide
information and documents on which they rely for their position, which
allows them to pick and choose the evidence that best serves their
interests. The better and fairer course is to require the respondents to
provide documents and information that are relevant to the complaint
rather than only those documents and information on which they choose to
rely. Indeed, the courts have held that in litigation situations, where
relevant documents within the private possession of a party are
withheld, the presumption may be made that those documents, if produced,
would be adverse to that partys interests. [Interstate Circuit, Inc. v.
United States]{.underline}, 306. U.S. 208 (1938).

**Five Month Limit.** We believe Congress intended that the five-month
deadline for agency action (on complaints under Section 208) applies to
complaints relative to Section 255. That deadline applies to
investigations of practices of parties governed by the section. While
the previous 12-month deadline under subpart (b) of Section 208 may have
been intended to apply only to tariff matters when enacted in 1988,
since that time much of the nations telecommunications activity has been
de-tariffed. Moreover, in the Telecommunications Act of 1996, Congress
established an open competition landscape in which additional, vast
de-tariffing has taken and is taking place. Further, in the
Telecommunications Act of 1996, Congress cut the 12-month deadline to
five months along with a very large number of other statutory time lines
based on the perception by Congress that the Commission has been taking
too long to transact its business. Under these circumstances, if
Congress intended the five-month deadline to apply only to the narrow
category of relatively few tariffed practices that remain in todays
telecommunications world, it surely would have said so. In identifying
Section 208 as an enforcement mechanism for Section 255 complaints,
Congress would have identified only subsection (a) of 208. Instead,
Congress identified the entire Section 208 including subsection (b)
containing the five-month deadline for action on complaints regarding
practices of a respondent party.

The passage of time before action is taken on a Section 255 complaint
can be specially harmful. Complaints for a traditional Title 11 matter
such as the reasonableness of rates charged for telecommunications
services often are remedied by an ultimate monetary award including
interest accruing during the time period of the delay. Complaints under
Section 255, if unduly delayed, can cause incalculable harm to consumers
with hearing loss that will never be compensated by an ultimate monetary
award. Already, more than two years have passed since enactment of
Section 255. This has been, and will continue to be a time of explosive
growth in the development, manufacture, marketing and provision of
telecommunications equipment and services. During the time period when a
Section 255 complaint lies pending and unacted upon before the agency,
that explosive activity will continue. The complaint may ultimately be
determined to have merit, yet the non-conforming equipment/services
complained of proliferate and have become imbedded in the
telecommunications system, causing harm from a violation of the statute
that cannot be undone. Non-conforming equipment/ services are in the
system and may remain there for years to come. Experience has shown that
attempts at education of consumers with disabilities about a
nonconforming product or service to be avoided is no substitute for
preventing the nonconforming activity in the first place.[^1]

While injunctive relief is available under Section 208, the basis for
that is often difficult to establish in advance of the adjudication of a
complaint on its merits. Moreover, to enjoin equipment/service pending
ruling on a complaint, which ultimately is held to be [without
merit]{.underline}, is no more fair to the manufacturer/service
community than the unfairness to consumers with hearing loss of allowing
equipment/service to go forward when the complaint ultimately is
[upheld.]{.underline} The answer is for the Commission to be prepared to
act promptly within the statutory deadline.

**Formal Complaints.** Formal complaints should not be conditioned on
Commission approval. While it is hoped that most concerns will be
addressed in the fast-track procedure or in resolving informal
complaints, parties who have standing in the matter must have the right
to go forward with a formal complaint procedure if the matter warrants
it and they have the means to do so. Otherwise, the Commission would
have a veto power over the exercise of a procedure that historically has
provided discovery and other rights essential for the protection of
citizens in dealing with regulated industries.

If Congress wanted to so circumscribe the ability of people with
disabilities to seek enforcement of Section 255 by the Commission, it
surely would have said so. To the contrary, the Congress made clear that
the venerable complaint and remedy procedures under Section 207 and 208
would be available.

**Fast Track Problem-Solving Phase.** The Commission states that the
fast-track process is the heart of their proposal. We like the fact that
the Commission is proposing to assist consumers with informal complaints
and facilitate resolution of problems as quickly as possible. How fast
this realistically can be accomplished is the issue. Even assuming that
the company has already set up internal processes for monitoring access,
it may well not be possible for a company to assemble the documentation
in five days. Having said that, we also do not want to drag out the
process if the complaint can be easily resolved and there is a solution
that would enable the consumer to get access quickly. Therefore, we
recommend giving companies ten working days to respond on the fast
track. We also believe there should be an outside limit on the length of
this fast-track period; we recommend that it not extend beyond a maximum
of 30 days. Extensions beyond the initial ten days may be requested but
the process should be brought to a close or moved into the informal or
formal complaint process at 30 days.

There may be situations in which a complaint has been registered against
a particular company before and a pattern and practice is emerging of
the company making no serious efforts towards accessible products and
services. In such instances, consumers should be advised to skip the
fast track and go to the informal or formal complaint process directly.

The complainant should be notified that a complaint has been referred to
a company in the fast track, and they should also be given information
about the time expected for a response and any other action the
Commission intends to take. In the event that the complaint is not
resolved, the consumer should have the right to proceed to dispute
resolution at 30 days or before.

The Commission proposes establishing a central Commission contact point
for all Section 255 inquiries and complaints. In order to ensure that
consumers are aware of the opportunity to address inquiries and
complaints to this central contact point, the Commission will need to
advertise and disseminate widely the 800 number to call. In order for
the Commission to be responsive to consumers inquiries, the call center
staff handling complaints should have expertise not only in Section 255
but also disability access issues, including other disability laws. They
also need to be trained in communicating with consumers in a variety of
formats including TTY, relay, and Braille. Such staff should also be
trained in communication techniques to facilitate the contact with
individuals with a variety of disabilities. The Commission should
initiate a campaign to educate consumers about Section 255. Technical
assistance materials should be developed and disseminated widely. The
information should include the 800 number to contact the Commission; the
requirements under Section 255 for telecommunications service providers
and manufacturers; procedures for filing complaints; contact information
for manufacturers and service providers among other things.

**[13. Defenses to Complaints]{.underline}**

**Product vs. Product Line**. We agree with the Commissions
interpretation that Section 255 requires manufacturers and service
providers to consider providing accessibility features in
[each]{.underline} product they develop and offer. Section 255 is
designed to change the way products and services are manufactured and
delivered. It is intended to be the impetus to have accessibility on the
radar screen when engineers are designing new products and services. The
ultimate goal is to have products and services universally designed for
multiple users and away from the need for accessories and assistive
technology. When a company has truly attempted to make each product and
service as accessible as possible during product development and has
demonstrated those good faith efforts, we agree with the Commission that
this is the starting point of a readily achievable defense. In the event
that this has been found to be not readily achievable, only then do we
believe it is reasonable to do a product line analysis. Product line
should not be the trigger for decisions on providing access features at
the outset. Rather, product line should be the second tier approach when
product by product has failed. At that point, industry may take into
account the accessibility features of other functionally similar
products that are already offered or may be offered, so long as such a
product line analysis increases the overall accessibility of the
providers offerings.

There is also the pricing issue. A product line offering should not be
at the low end or the high end of a product line. The consumer should
not be forced to buy the cheapest and most feature-slim option, nor the
most expensive and feature-rich product in order to have an accessible
product or service they can use.

**[14. Penalties for Non-Compliance]{.underline}**

The Commission proposes, given the importance of the accessibility
mandate, to employ the full range of penalties available under the
Communications Act in enforcing Section 255. The development of the law
of monetary damage to a complaining party caused by a violation of
Section 255 by a respondent party must be developed on a case by case
basis. It is anticipated that most remedies for such violations will be
injunctive relief and cease and desist orders. Given the Commissions
effective use of monetary forfeitures in broadcast and other areas under
Section 503 of the Communications Act, with collection responsibility in
the Justice Department under Section 504, an aggressive forfeiture
program may also be useful in the administration of Section 255.

The Commission seeks comment on whether it has a basis to order the
retrofit of accessibility features into products that had been developed
without such features, where their inclusion would have been readily
achievable. Retrofit should be pursued as a remedy. Retrofitting is not
a winning situation for either industry or consumers. It is hoped that
companies which are forced to retrofit will recognize the importance and
benefits of considering access at the outset of their design and
development.

**[15. Conclusion]{.underline}**

The need for regulations to implement the requirements of Section 255
are critical. SHHH appreciates the opportunity to submit comments in
this very important proceeding.

Respectfully submitted,

Donna L. Sorkin

Executive Director

Self Help for Hard of Hearing People, Inc. (SHHH)

7910 Woodmont Avenue, Suite 1200

Bethesda, Maryland 20814

301-657-2248 Voice

301-657-2249 TTY

Of Counsel:

Gene A. Bechtel

Bechtel, & Cole, Chartered

1501 L Street N.W., Suite 250

Washington, DC 20036

202-833-4190

June 30, 1998

[^1]: For example, currently many wireless phones do not include
    telecoil compatibility as built-in options. Educational efforts by
    SHHH and other organizations cannot eradicate the continuing
    purchase of these phones by hearing aid users and the ignorance of
    the issue itself by audiologists who counsel such users.