Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

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

)

In the Matter of )

)

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

of the Communications Act of 1934, as )

enacted by the Telecommunications Act )

of 1996 )

) WT Docket No. 96-198

Access to Telecommunications Services, )

Telecommunications Equipment, and )

Customer Premises Equipment )

By Persons with Disabilities )

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)

**REPLY COMMENTS OF**

**THE INFORMATION TECHNOLOGY INDUSTRY COUNCIL**

The Information Technology Industry Council ("ITI") files these reply
comments in accordance with the Commission's *Notice of Inquiry*[^1]
("*NOI*") in the docket captioned above.

ITI is the leading trade association for manufacturers of computers,
computing devices, office equipment and information services, including
information technology (\"IT\") equipment targeted to the needs of
individuals with disabilities. ITI supports the Commission's efforts to
develop a practicable regulatory framework to ensure that
telecommunications technologies are accessible to all individuals. The
IT industry also remains committed to ensuring that all consumers,
including those with disabilities, benefit from the technological
diversity and innovations produced by the robust competition in the IT
marketplace.

In these reply comments, ITI addresses three aspects of the comments:
first, suggestions that IT manufacturers will not address accessibility
issues without being required to do so; second, those comments seeking
*de facto* reconsideration of the FCC's findings in the *Report and
Order*; and third, comments urging the Commission to exercise ancillary
jurisdiction over non-telecommunications services and equipment.

**A. The IT Marketplace**

Various commenters maintain that manufacturers will not voluntarily
remedy accessibility issues unless compelled to do so by force of
law.[^2] On the contrary, the IT industry already has produced many
accessibility solutions and has many more under development.

Unlike traditional telephony markets, the IT marketplace is
characterized by a \"plug and play\" approach: manufacturers produce an
unprecedented variety of software and hardware components that users can
use to assemble highly-customized system configurations to best meets
their needs. The inherent flexibility of "plug and play," in combination
with vigorous marketplace competition, has produced a broad array of
assistive technologies and sophisticated solutions that use some of the
most advanced information technologies available to those with
disabilities.

Moreover, voluntary standards setting organizations and mechanisms have
been highly successful at developing standards to facilitate the
interoperability of assistive technologies. The following represents
only a small sample of standards activities taken by industry
organizations:[^3]

-   The World Wide Web Consortium, an international industry consortium,
    has developed content accessibility guidelines and strategies for
    making web pages accessible.

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-   The International Telecommunications Union (ITU) is developing an
    extension to the standard for Internet Protocol telephone networks
    that will handle text telephones.

    -   The National Committee for Information Technology Standards,
        hosted by ITI, is assessing potential standards for
        self-adapting interfaces between accessibility devices used by
        people with disabilities and mainstream human-computer interface
        devices (*e.g.,* keyboard, mouse, display).

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-   Individual companies are building accessibility features using the
    Java software standard, such as audio user interfaces that enable
    the use of Java applications by the blind.

In short, the experience of ITI and its members confirms that described
by manufacturers and service providers who filed comments to this
proceeding: The marketplace is producing, and industry is voluntarily
developing, a robust set of accessibility standards and accessibility
solutions. There is simply no factual justification for concluding that
regulation of information technologies and services is necessary to
ensure accessibility.[^4]

> **B. Definition of "Telecommunications Services"**

Some commenters are asking the Commission to re-visit its analysis in
the recent *Report and Order* in this docket regarding the services and
equipment to which Section 255 applies. These commenters argue that the
Commission should expand the scope of Section 255 by regulating services
and equipment based on "functionality."[^5] On this basis, urge these
commenters, text-based services and technologies, including e-mail and
web pages, should be included under Section 255 and subject to FCC
regulation.[^6]

The Commission should not re-visit this issue, for both procedural and
substantive reasons. First, the question of what does or does not
constitute "telecommunications" equipment or services has been
exhaustively considered over the course of this proceeding, by both the
Commission and commenting parties, and was resolved by the Commission in
the *Report and Order*. As a matter of procedural fairness, any
challenges to the decisions reached in the *Report and Order* can and
should be made only through the filing of a petition for reconsideration
of the *Report and Order*.

Second, as a substantive matter, the "functionality" test advocated by
the commenters is overbroad and contrary to the requirements of the
Communications Act. Section 255 refers to "telecommunications services,"
"telecommunications equipment" ("TE"), and "customer premises equipment"
("CPE"). The statutory definitions for TE and CPE clarify that the terms
refer only to equipment used in conjunction with "telecommunications"
and not the "information services" to which the commenters would apply
them. "Information services," as the Commission pointed out in the
*Report and Order*, is defined separately in the Act.[^7] The Commission
properly found that it could "not reinterpret the definition of
telecommunications services" for Section 255 purposes, and there is no
evidence in the legislative history of the 1996 Act that Congress
intended these terms to have any different, specialized meaning under
Section 255.[^8] To the contrary, Congress made clear its intent that
"telecommunications services" and "information services" should remain
mutually exclusive.[^9]

> **C. Ancillary Jurisdiction**

ITI shares the concerns of some commenters[^10] that the Commission
proceed cautiously before asserting ancillary jurisdiction to include
non-telecommunications services and equipment within the scope of
Section 255, and agrees that, at the very least, the Commission should
consistently use the criteria for doing so that the Commission
articulated in the *Report and Order*.

In the *Report and Order*, the Commission concluded that it may subject
information services to regulation under Section 255 where services are
"essential to making telecommunications services accessible."[^11] The
Commission concluded that e-mail, electronic information services, and
web pages do not meet this test.[^12] In order to extend Section 255 to
these and other text-based communications (*e.g.* touch screens,
telephones with visual read-outs), the AFB now asks the FCC to redefine
what it means for a service to be an "alternative to" versus a
"substitute for" telecommunications services.[^13]

As discussed in the previous section, attempts in these comments to
challenge or modify the conclusions in the *Report and Order* are
procedurally infirm. At this stage of the proceeding, the Commission has
requested additional information regarding new services and technologies
and their impact on the interests protected by Section 255. ITI supports
those commenters who argue that, before it extends Section 255 to
non-telecommunications services and equipment, the Commission must
provide (i) adequate notice of its proposal to apply Section 255 to such
services or equipment, and (ii) an opportunity for interested parties to
comment. The FCC's ultimate findings should be based on the resulting
record and consistent with the analysis in the *Report and Order*.

## CONCLUSION

The IT marketplace is delivering innovative solutions to accessibility
needs. Attempts to revisit the decisions in the *Report and Order* are
procedurally infirm and substantively unjustified. The record
established in response to the Commission's *NOI* confirms that no
further regulation is required at this time.

Respectfully submitted,

Information Technology Industry Council

> ![](media/image1.jpeg){width="2.453472222222222in" height="0.7in"}

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+---------------------------------+------------------------------------+
| Matt Tanielian                  | Colleen Boothby                    |
|                                 |                                    |
| Director, Government Relations  | Janine Goodman                     |
|                                 |                                    |
| Information Technology Industry | Levine, Blaszak, Block & Boothby,  |
| Council                         | LLP                                |
|                                 |                                    |
| 1250 Eye Street, N.W., Suite    | 2001 L Street, NW, Suite 900       |
| 200                             |                                    |
|                                 | Washington, D.C. 20036             |
| Washington, D.C. 20005          |                                    |
|                                 | 202-857-2550                       |
| 202-626-5751                    |                                    |
+---------------------------------+------------------------------------+

February 14, 2000

/media/pszemraj/PeterTrove/project-files/DATA/ms-word-files/big-DOC/662922.doc

[^1]: *Implementation of Sections 255 and 251(a)(2) of the
    Communications Act of 1934, as Enacted by the Telecommunications Act
    of 1996, Access to Telecommunications Services, Telecommunications
    Equipment, and Customer Premises Equipment By Persons with
    Disabilities*, Report and Order and Further Notice of Inquiry, WT
    Docket No. 96-198, FCC 99-181 (rel. Sept. 29, 1999) ("*Report and
    Order"* or "*NOI*" as applicable).

[^2]: Comments of the American Foundation for the Blind, WT Docket No.
    96-198 (Jan. 13, 2000) at 20 ("AFB Comments"); Comments of Self Help
    for Hard of Hearing People, Inc., WT Docket No. 96-198 (Jan. 13,
    2000) at 3 ("SHHH Comments"); Comments of Trace/Gallaudet, WT Docket
    No., 96-198 (Jan. 13, 2000) at 9 ("Trace/Gallaudet Comments").

[^3]: *See also* Comments of VON Coalition, WT Docket No. 96-198 (Jan.
    13, 2000) at 5-11 ("Von Comments"), which describe various industry
    standards targeted specifically at improving accessibility for the
    hearing impaired and identify potential solutions (*e.g.* Total
    Conversation, V.18 modem standard).

[^4]: As commenters have acknowledged, any assumption that the IT
    industry is an obstacle to the accessibility of IT products, or even
    that such obstacles exist, would be illegitimate. *Trace/Gallaudet
    Comments* at 10-11, 15-16; Comments of Inclusive Technologies, WT
    Docket No. 96-198 (Jan. 13, 2000) at 14-15 ("Inclusive Technologies
    Comments") ("The hardware and operating systems have moved from
    being primary barriers and now are primary enablers of access.")

[^5]: *AFB Comments* at 10. *See also* *Inclusive Technologies Comments*
    at 12; National Association for the Deaf, WT Docket No. 96-198 (Jan.
    13, 2000) at 22 ("NAD Comments"). The Trace Center and Gallaudet
    University ("Trace") even more broadly assert that
    "telecommunications" should include "conversations that are carried
    out using speech, sounds, text and any other modalities that are
    used for carrying out a conversation" regardless of the underlying
    technology. *Trace/Gallaudet Comments* at 3.

[^6]: *AFB Comments* at 9-11; *SHHH Comments* at 9.

[^7]: 47 U.S.C. § 255; *Report and Order* at ¶ 78.

[^8]: *Id.*

[^9]: *Id.* at ¶ 79.

[^10]: *See e.g.*, Comments of Microsoft Corporation, WT Docket No.
    96-198 (Jan. 13, 2000) at 7.

[^11]: *Report and Order* at ¶ 107.

[^12]: *Id.*

[^13]: *AFB Comments* at 12-14.