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 )

**REPLY COMMENTS OF**

**THE NATIONAL ASSOCIATION OF THE DEAF**

**Of Counsel: Jeneba Jalloh Ghatt**

**Anthony Cavalluzzi Angela Campbell**

**Law Student Citizens Communications Center**

**Georgetown University Law Center Georgetown University Law Center**

**600 New Jersey Ave., NW, Suite 312**

**Washington, DC 20001**

**(202) 662-9535**

**Counsel for**

**National Association of the Deaf**

February 14, 2000

**TABLE OF CONTENTS**

**SUMMARY**\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...ii

MMIV. **Internet Protocol telephony is a telecommunications service,
      therefore**

**it is covered by Section 255 and within the jurisdiction of the**

**Commission**\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...2

A.  ***IP telephony offers services that are identical to those
    provided***

***by a telecommunications service and does not become an***

***information service simply because it uses Internet protocol and***

***computer
processing***\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....2

B.  ***Whether IP telephony presents barriers to accessibility is***

***irrelevant to classifying the service as a telecommunications***

***service***\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....4

C.  ***The Commission can classify IP telephony as a***

***telecommunications service for purposes of Section 255 without***

***applying other regulations to the
service***\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...6

I.  **Even if the Commission were to conclude that IP telephony is not
    a**

**telecommunications service Section 255 should still apply through**

**ancillary
jurisdiction**\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....7

II. **The NAD supports involving disabled individuals in the testing
    and**

**development stages of new
technologies**\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....9

III. **The Commission should apply Section 255 to all equipment which**

**provides voicemail or interactive menus regardless of whether the**

**equipment functions through the PBX or a stand alone
computer**\...\...\...\...\...\...\...\...\.....10

**CONCLUSION**\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....10

**SUMMARY**

Internet Protocol ("IP") telephony should be classified by the Federal
Communications Commission (the "Commission")as a telecommunications
service. Classification of IP telephony as a telecommunications service
will make it subject to Section 255 and clearly within the jurisdiction
of the Commission. IP telephony should be classified as a
telecommunications service because IP telephony offers services that are
identical to those provided by a telecommunications service. IP
telephony does not become an information service simply because it uses
Internet protocol and computer processing. The Commission should not
consider whether IP telephony presents any barriers to accessibility in
its decision to classify the service as a telecommunications service
because that factor is only important in the use of ancillary
jurisdiction and not in the definition of a service. Furthermore, the
Commission can classify IP telephony as a telecommunications service for
purposes of Section 255 without applying other regulations to the
service. By classifying IP telephony as a telecommunications service
now, the Commission will preserve its ability to impose any obligations
on the service in the future.

While the NAD prefers the Commission classify IP telephony as a
telecommunications service, the Commission could, alternatively, assert
ancillary jurisdiction over IP telephony if it refuses to classify the
service at this time. IP telephony fulfills all of the requirements for
extension of ancillary jurisdiction, and it is clear that the Commission
has the authority to take immediate action.

The NAD supports the suggestion of other comments that disabled
individuals be involved in the testing and development of new
technologies. Furthermore, the NAD supports the application of Section
255 to all equipment which provides voicemail or interactive menus
regardless of whether the equipment functions through the PBX or a stand
alone computer. This proposition was also supported by several other
comments, and was not discouraged in any that discussed the topic.

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 )

**REPLY COMMENTS OF**

**THE NATIONAL ASSOCIATION OF THE DEAF**

The National Association of the Deaf ("NAD"), by its attorneys,
respectfully submits these reply comments in the above captioned
proceeding on the implementation of Section 255. The NAD submitted
comments during prior phases of this proceeding. The NAD is pleased to
see the number of companies that have expressed their commitment to
providing access to telecommunications services and products to
individuals with disabilities.[^1] However, we are concerned that some
comments are still urging that reliance on market forces and self
regulation alone is sufficient to ensure telecommunications access for
individuals with disabilities. As we demonstrated in an earlier phase of
this procedure, such reliance is entirely unjustified.[^2] Asserting
jurisdiction at this stage would encourage others to follow in the lead
of the VON Coalition even if the Commission decides not to impose any
definite obligations at this time.

?.  **Internet Protocol telephony is a telecommunications service,
    therefore it is covered by Section 255 and within the jurisdiction
    of the Commission.**

The comments are divided on the question of whether Internet Protocol
("IP") telephony is a telecommunications service, and thus subject to
Section 255, or an information service to which presumably Section 255
would not apply. The NAD strongly believes that IP telephony is a
telecommunications service and thus covered under Section 255. There are
several factors involved in classification of IP telephony as a
telecommunications service. For example, the services offered by IP
telephony are identical to the services offered by a telecommunications
service. Furthermore, finding a specific barrier to accessibility is not
necessary to the classification of IP telephony as a telecommunications
service. The NAD believes this classification is not a threat to IP
telephony because the Commission can stop at application of Section 255
without regulating the industry.

A.  ***IP telephony offers services that are identical to those provided
    by a telecommunications service and does not become an information
    service simply because it uses Internet protocol and computer
    processing.***

The VON Coalition ("Coalition") argued that, because IP telephony
providers use Internet Protocol and computer processing, the service
should be classified as an information service.[^3] However, the
Coalition admitted that IP telephony is functionally equivalent in many
respects to voice services that are presently classified as
telecommunications services.[^4] Despite those similarities the
Coalition argued that the technologies involved distinguished IP
telephony from other telecommunications services.

The NAD believes the distinction pointed out by the Coalition between IP
telephony and other voice services is superficial. If the services
provided are functionally identical, then the classification should be
the same, regardless of the means by which those services are provided.

In a 1998 *Report to Congress,*[^5] the Commission stated that the key
distinction between telecommunications and information services is in
the functional nature of the services provided to the end user.[^6] The
Report to Congress was in response to a request that the Commission
discuss its position with regard to Internet services.[^7] Part of that
discussion involved IP telephony. The report stated, and the NAD agrees,
that IP telephony involves nothing more than pure transmission, which is
the basic criteria for defining a telecommunications service.[^8] The
basic criteria for defining an information service was the provision of
enhanced functionality, such as manipulation of information and
interaction with stored data by the user.[^9] IP telephony services do
not include enhanced functionality. The Commission put off making any
decision with regard to IP telephony because there was not a complete
enough record, however, with the present proceeding the NAD believes the
record is now strong enough for the Commission to take appropriate
action.

It is true that IP telephony is based on the Internet Protocol and
transports information in packets through the network just as
information services do, however, simply because IP telephony uses these
technologies does not in any way make it an information service. Several
of the other comments submitted, including those from members of the
telecommunications and IP telephony industries, agreed that IP telephony
should be classified as a telecommunications service.[^10] The NAD urges
the Commission to follow these recommendations and classify IP telephony
as a telecommunications service, if anything, to at least preserve its
ability to impose requirements at a later stage.

B.  ***Whether IP telephony presents barriers to accessibility is
    irrelevant to classifying the service as a telecommunications
    service.***

Several Comments stated that IP telephony presents no barriers to
individuals with disabilities.[^11] This position is based on the claim
that no **specific** barriers to accessibility have yet been discovered.
While this fact, if true, would be important in the Commission's
decision to extend ancillary jurisdiction over a new technology,[^12] it
is irrelevant to the determination of whether IP telephony is a
telecommunications service or an information service.

If, as we contend, IP telephony is a telecommunications service then
service providers are obligated to ensure accessibility to individuals
with disabilities when readily achievable. If IP telephony presents no
accessibility barriers, then that obligation has already been met.
However, if barriers to accessibility do exist then Section 255 will
require IP telephony service providers to take steps to make their
service accessible and to ensure full participation by individuals with
disabilities. The formation of the Coalition is a sign that IP telephony
providers have already taken some steps to make their service
accessible, however, the Commission needs to be involved to ensure that
such access is provided across the board. Classification of IP telephony
as a telecommunications service will allow the Commission to oversee the
development and deployment of the service and act in the event providers
begin to ignore the needs of individuals with disabilities, including
the needs of deaf and hard of hearing persons.

To allow IP telephony to develop without considering the needs of deaf
and hard of hearing individuals would undermine the goals of Section
255. Two important goals of Section 255 are preventing the exclusion of
disabled individuals from access to telecommunications services, as well
as preventing the need for unnecessary retrofitting.[^13] As IP
telephony develops deaf and hard of hearing individuals may be excluded
if Section 255 does not apply. Efforts to make IP telephony accessible
to deaf and hard of hearing individuals after its use has become
widespread would include retrofitting the service to make sure it is
fully accessible. If Section 255 is not applied to IP telephony, then
the goals of the section will be undermined. Moreover, asserting
jurisdiction now allows the Commission to step in if it determines
efforts are not being made to make the technology accessible.

C.  ***The Commission can classify IP telephony as a telecommunications
    service for purposes of Section 255 without applying other
    regulations to the service.***

Some members of the IP telephony industry expressed concern over the
Commission beginning to regulate what they consider an Internet
service.[^14] They proposed the Commission maintain its "hands-off"
approach to Internet services and not set a "bad example" for other
countries with regard to Internet regulation.[^15] They fear that
applying Section 255 to IP telephony is the first step towards
regulation of the Internet.[^16] That fear is not a reason to define IP
telephony as an information service.

Simply because IP telephony uses an IP network does not make it an
Internet service. The Commission would not be regulating an Internet
service by applying Section 255 to IP telephony. The Commission would
simply be ensuring a telecommunications service that uses the Internet
is accessible to the individuals with disabilities. Applying Section 255
does not require the Commission to regulate Internet content, rates, or
indeed any other aspect of the Internet. It only requires IP telephony
providers to make their service accessible to disabled persons where
readily achievable. The Commission can make its position very clear,
that they are maintaining a "hands-off" policy as to all other aspects
of the Internet, and only getting involved in the accessibility of IP
telephony to disabled individuals and in particular deaf and hard of
hearing persons.

The Commission can indeed apply accessibility requirements to IP
telephony without regulating other aspects of the industry. The
Commission has the ability to forbear regulation of a telecommunications
service if regulation is not necessary (1) to ensure "just and
reasonable" nondiscriminatory charges, (2) "for the protection of
consumers," and that (3) forbearance is "consistent with the public
interest."[^17] IP telephony does not require regulation with regard to
charges or protection of consumers. Forbearance by the Commission would
be consistent with the public interest and avoid the fears of the
Internet service industry.

IV. **Even if the Commission were to conclude that IP telephony is not a
    telecommunications service Section 255 should still apply through
    ancillary jurisdiction.**

Classification of IP telephony as a telecommunications service is
clearly the most effective way of dealing with this new service.
However, the Commission can, alternatively, apply Section 255 to IP
telephony through ancillary jurisdiction. The Commission recently used
ancillary jurisdiction to apply Section 255 to voicemail and interactive
menus, and the NAD believes it can assert ancillary jurisdiction here as
well. Several comments argued against the assertion of ancillary
jurisdiction over IP telephony citing the absence of widespread use and
the absence of proven problems of compatibility.[^18] However,
considering all the factors involved, we believe the Commission should
take steps to assert ancillary jurisdiction over IP telephony.

The Commission can assert ancillary jurisdiction over a technology when;
a) the technology involves a transmission over wire or radio, and; b)
the technology would undermine a goal of the Commission absent
regulation.[^19] It is clear that IP telephony is a technology which
involves transmissions over wire or radio. Thus, the question is whether
IP telephony will undermine a goal of the Commission absent regulation.

IP telephony has the potential to become an important means of global
communications. One comment suggested that the IP network will become as
pervasive as electricity, making IP telephony the preferred method of
telecommunications.[^20] The service is becoming a competitive
alternative to the present long distance system, and major long distance
providers are beginning to develop IP networks as part of their
systems.[^21] While specific barriers to accessibility may not be easily
documented, potential problems with regard to TTY transmissions have
been identified.[^22]

The use of TTYs among deaf and hard of hearing individuals is very
widespread. Ignoring any potential IP telephony connectivity problems
with TTYs could lead to the exclusion of many deaf and hard of hearing
individuals from access to Internet communications. One example of a TTY
problem would be garbled messages.[^23] Garbled messages often cause the
TTY user to confuse a service problem with a device problem.[^24] Unless
Section 255 is applied, the service may develop without discovering the
specific problem that caused the garbled messages.

To allow IP telephony to develop without addressing these problems early
on would undermine the previously mentioned goals of Section 255.[^25]
As IP telephony develops, accessibility to deaf and hard of hearing
individuals may not be fully taken into account resulting in unnecessary
retrofitting. Because the development of IP telephony will undermine the
previously mentioned goals of Section 255 absent application of the
Section to the service, the Commission should assert ancillary
jurisdiction. Thus, in the event the Commission is unable to assert
primary jurisdiction, it would have another basis to step in and ensure
access to IP telephony for deaf and hard of hearing individuals.

V.  **The NAD supports involving disabled individuals in the testing and
    development stages of new technologies.**

One comment discussed including disabled individuals in the testing
stage of new technologies as a means of making those technologies
accessible.[^26] The NAD supports this recommendation. Including
disabled individuals early on in the testing and development stages will
prevent the deployment of any technology without considering the needs
of individuals with disabilities and thus avoid the need for
retrofitting.

VI. **The Commission should apply Section 255 to all equipment which
    provides voicemail or interactive menus regardless of whether the
    equipment functions through the PBX or a stand alone computer.**

Every comment submitted which discussed equipment functioning through a
stand alone computer agreed that it should be subject to Section
255.[^27] Such equipment performs the same function whether it is
through a PBX or a stand alone computer. Therefore, the Commission
should ensure that both forms of equipment are accessible to individuals
with disabilities.

**CONCLUSION**

The NAD commends the Commission for its commitment to ensuring that
individuals with disabilities have access to telecommunications products
and services. In order to fulfill that commitment, the NAD urges the
Commission to classify IP telephony as a telecommunications service, or,
in the alternative, assert ancillary jurisdiction over the service so
that Section 255 will apply. Furthermore, the NAD suggests the
Commission encourage the inclusion of individuals with disabilities in
the testing and development stages of new technologies. Moreover, the
NAD urges the Commission to apply Section 255 to all equipment which
provides voicemail or interactive menus regardless of whether the
equipment functions through the PBX or a stand alone computer.

[^1]: See, e.g., Comments of AT&T Corp. at 1; Comments of Microsoft
    Corporation at 3; Comments of Level 3 Communications, LLC at 2;
    Comments of Teleglobe Communications Corporation at 1; Comments of
    iBasis Inc. at 3; Comments of MCI Worldcom, at 3; Comments of Bell
    Atlantic at 1.

[^2]: Reply Comments of the National Association of the Deaf and The
    Consumer Action Network submitted Aug 14, 1998.

[^3]: The VON coalition incorporated its "White Paper on IP Voice
    Services" into its comments by reference; Comments of the VON
    Coalition at 12 FN16.

[^4]: Id. at 1.

[^5]: Federal-State Joint Board on Universal Service, *Report to
    Congress,* 13 FCC Rcd 11501, ¶¶83-85 (1998).

[^6]: Id. at ¶86.

[^7]: Id. at ¶1.

[^8]: Id. at ¶89.

[^9]: Id. at ¶39.

[^10]: Comments of MCI Worldcom, Inc. at 5; Comments of Bell Atlantic at
    2; Comments of Inclusive Technologies at 11.

[^11]: Comments of the VON Coalition at 13; Comments of Teleglobe
    Communications Corporation at 2.

[^12]: [U.S. v. Southwestern Cable Co.]{.underline} 392 U.S. 157, 178.

[^13]: Section 255 Report and Order and FNOI at ¶50.

[^14]: See, e.g., Comments of the VON Coalition at 13; Comments of
    Teleglobe Communications Corporation at 4; Comments of iBasis, Inc.
    at 4; Comments of Level 3 Communications, LLC at 7.

[^15]: Comments of the VON Coalition at 13; Comments of Level 3
    Communications, LLC at 4; Comments of Teleglobe Communications
    Corporation at 6; Comments of iBasis, Inc. at 4.

[^16]: Comments of the VON Coalition at 13; Comments of Level 3
    Communications, LLC at 4; Comments of Teleglobe Communications
    Corporation at 6; Comments of iBasis, Inc. at 4.

[^17]: 47 USC §160.

[^18]: Comments of the VON Coalition at 13; Comments of Teleglobe
    Communications Corporation at 2.

[^19]: [U.S. v. Southwestern Cable Co.]{.underline}, *supra* note 11;
    Section 255 Report and Order and FNOI at ¶13.

[^20]: Comments of Trace/Gallaudet at 4.

[^21]: Comments of MCI Worldcom, Inc. at 3; Comments of Trace/Gallaudet
    at 7.

[^22]: Comments of Trace/Gallaudet at 10.

[^23]: Comments of Trace/Gallaudet at 10.

[^24]: Comments of Trace/Gallaudet at 10.

[^25]: *Supra* note 12.

[^26]: Comments of Telecommunications for the Deaf, Inc. and the
    Consumer Action Network at 9.

[^27]: Comments of Trace/Gallaudet at 19; Comments of Inclusive
    Technologies at 24; Comments of Telecommunications for the Deaf,
    Inc. and The Consumer Action Network at 11; Comments of The
    Multimedia Telecommunications Association at 2; Comments of Self
    Help for Hard of Hearing People, Inc. at 6.