**"Minority Report"**

**of the**

**Information Technology Industry Council**

**Submitted by Ken J. Salaets**

**April 1, 2008**

The Information Technology Industry Council, ITI, appreciates the
opportunity to submit additional comments to accompany the report of the
Telecommunications and Electronic and Information Technology Advisory
Committee (TEITAC) entitled "Refreshed Accessibility Standards and
Guidelines in Telecommunications and Electronic and Information
Technology." We support the submission of the report to the U.S. Access
Board (hereafter, "Access Board" or simply "the Board") for the purposes
of advancing the Board's initiative relative to its statutory charter
under Section 508 of the Rehabilitation Act of 1973, as amended.
Nevertheless, we have reservations or concerns regarding certain
provisions and recommendations contained in the report, and welcome this
opportunity to bring them to the attention of the Members of the Access
Board, its staff, our fellow committee members and other interested
parties.

Please note that, in light of the delays that were experienced in
finalizing the draft report for committee review and comment, as well as
ITI's obligation to seek input and recommendations from all of our
members, we have not had sufficient time to vet all of the comments and
suggestions that have been, or may yet be, offered by our members.
Consequently, we are not able to include herein every comment or
suggestion that we believe is worthy of consideration by the Access
Board. Accordingly, we respectfully request the opportunity to forward
additional comments and recommendations for Board review, recognizing
that they may not be included in the final documents that are published
and identified as a product of TEITAC or its members.

**Who We Are**

The Information Technology Industry Council represents the leading
global manufacturers and providers of accessible information technology
(IT) products and services. ITI helps our member companies achieve their
policy objectives through building relationships with Members of
Congress, the Administration and Executive Branch, and foreign
governments; organizing industry-wide consensus on critical policy
issues such as IT accessibility. ITI works to reduce barriers that
stifle innovation, to increase access to global markets, to promote
e-commerce expansion, to protect consumer choice, and to enhance the
global competitiveness of our member companies.

ITI has and continues to work closely with the Access Board, the General
Services Administration, the Department of Justice and other government
agencies, to advance the goals and policy objectives reflected in
Section 508 throughout the United States and around the world. Seven ITI
members had the privilege to actively participate as members of TEITAC.
Through the development and promotion of such tools as the Voluntary
Product Accessibility Template^®^ or VPAT^™^, as well as industry best
practices, ITI remains committed to supporting public policies and
innovating products and services that enable [all]{.underline} citizens
to fully participate in the expanding digital economy.

**Section 508: An Ongoing Success**

By any measure, Section 508 has been successful, and we anticipate that
its impact will continue to deepen and expand as the law and
corresponding standards continue to be embraced by the pubic and private
sectors. The law has contributed significantly to the worldwide growth
of accessible electronic and information technology (E&IT) products and
services. Corresponding standards developed by the U.S. Access Board
remain the most comprehensive set of accessibility guidelines for E&IT
anywhere in the world, and have been adopted or substantially copied by
many state and local governments, a number of foreign governments and by
IT companies and other private businesses.

To the Access Board's credit, the Section 508 procurement standards have
achieved considerable momentum and market relevance, due in large part
to the "equivalent facilitation" concept and other flexible approaches
adopted by the Board. These provide crucial flexibility needed by
manufacturers and service providers for continued product innovation
and, in turn, have helped spur growth of the worldwide market for
accessible products and services.

The IT and telecommunications industries continue to set the pace in
achieving rapid advances of technological development. The increased
demand for accessible E&IT generated by Section 508 and other
procurement requirements around the world have helped expand the market
for accessible products, resulting in a significant array of products
and services that have improved the education and employment
possibilities and overall quality of life for people with disabilities
and age-related limitations.

Consider: Almost every major IT company that does business with the U.S.
government has established accessibility programs that integrate
accessible design into development, marketing and customer support for
their products and services. Section 508 has fostered cooperation and
competition in our industry, leading to greater availability of
accessible products and services for all customers --government,
corporate and individual consumers. Section 508 has also spurred greater
collaboration between E&IT and assistive technology (AT) manufacturers,
further expanding options and opportunities.

Even so, we welcomed the opportunity to serve on the TEITAC, to review
the standards in light of changes and advances in E&IT. We recognize, of
course, that our work is not done simply because the TETIAC phase has
reached completion. ITI's members remain committed to helping the Board
and staff through all phases of the Refresh process, and offer these
comments in that spirit.

**General Comments on the Refresh Process**

In our view, the Section 508 "refresh" provides an excellent opportunity
to build on an already successful set of standards and guidelines and to
consider incremental improvements that will ensure that Section 508
continues to remain in focus [and]{.underline} flexible in a
rapidly-changing global E&IT marketplace. Accordingly, ITI encourages
the Access Board to consider the following as you continue to move
forward through this process:

1.  For Section 508, we urge the Board to retain the "equivalent
    facilitation" proviso which, together with the "fundamental
    alteration" general exception and the functional performance
    criteria, has enabled manufacturers to explore and develop
    innovative alternatives to achieving the same or better functional
    access at a reasonable cost to the government and consumers.

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1.  For provisions relative to Section 255 of the Telecommunications Act
    of 1996, we urge the Board to retain the "readily achievable"
    guidelines approach, initially recommended by the Board and
    implemented in the Federal Communication Commission's regulations,
    by calling out functional requirements and staying technologically
    neutral. This approach has encouraged innovation in
    telecommunications products and services, and has been effective in
    helping to create a regulatory environment which enables
    manufacturers to improve both the ease of use and accessibility of
    telecommunications products. Retaining this approach will enable
    manufacturers to continue to focus their resources on creating
    accessible solutions for all stakeholders.

**General Comments on the TEITAC Report**

**Economic Impact**

This is a critical issue that has remained elusive in part because of
the delay in the finalization of the TEITAC report, but also due to the
new complexity and significant changes of many of the provisions. Even
so, ITI believes that several impact statements contained in the report
are inaccurate, typically understating the cost of the proposed changes
not only to manufacturers, but also to Federal agencies. One example is
the impact statement for 3-C: Size, Shape, Location. The report
identifies the impact as: \"Minimal: No current requirement in Section
508.\" New requirements that require product modifications and possibly
changes to evaluation materials and programs clearly will generate
additional costs for manufacturers, and possibly Federal customers.

A second example: The impact statements in Section 3 only take into
account impacts on software and web, failing to consider the potential
significant impact on hardware products. If these provisions do apply to
hardware, then they all should be considered "significant." Further
details are outlined in the next section below.

Clearly, TEITAC did not have time to review the potential economic
impact for every proposed change or addition to Section 508, or to
achieve consensus on the economic impacts cited in the report. ITI and
possibly other industry organizations anticipate being in a better
position to analyze and comment on the impact of the proposed changes in
the coming weeks, and will be happy to share that information with
Members of the Board, the staff and other interested parties in the
coming weeks.

**Requirements for User Interface and Electric Content**

One area where there was a difference of opinion was the application of
the User Interface and Electronic Content requirements to hardware. For
some hardware products, user interfaces are "static" setup or
maintenance tools used during installation or maintenance of a product
and, as such, may not support direct access or connectivity with
assistive technologies (AT). Additionally, the incorporation of such
elements would only drive costs and complexity into the product.

One such example is the On Screen Dialogue (OSD or Menu) found on many
computer monitors. The OSD is a simple control menu used to set-up the
monitor for daily usage. It is simple firmware "burned" into the
systems. It is static, does not communicate with any attached device,
and has no easy way to connect AT. Should this software be forced to be
made accessible when it is not core to the functionality of the system?

**Harmonization**

The importance of harmonization is recognized and the TEITAC should be
commended for its work to engage the variety of accessibility related
standards and guidelines, such as TEITAC provision 3U's alignment with
ISO 9241-171. With that in mind, it should be acknowledged that there
are cases where the proposed regulation does not harmonize with accepted
information technology product standards such as the difference relative
to 1-G text size and the requirements set forth in ISO 9241-4 relating
to size requirements for keyboard keycap legends.

**Testability**

Discussion by the TEITAC regarding testing varied with different levels
of expectations relative to complexity, consistency, and repeatability.
However, the committee did not consensus on the method specified for
Testability in the "additional information" section for each provision.
These methods were selected by the committee's Editorial Working Group
from the IEEE methodology and applied without full committee discussion
and consensus. ITI believes that in specifying the test method it unduly
constrains all parties rather than allowing companies and procurers the
ability to choose a test methodology that best suits the product,
disability and anticipated usage scenario.

**AT-IT Interoperability**

TEITAC spent considerable time discussing the implication of the use of
the term "must" as opposed to "can" relative to Subpart B, Functional
Performance Criteria (FPC). The report contains the following note at
the end of the section:

> *The Committee was unable to come to an agreement on whether items #1
> and #2 above are required (\"must\") or an option (\"can\"). The
> Access Board is requested to make this determination.*

A primary concern relates to the question of what is reasonably
achievable in terms of making a product accessible at the product level
and with AT. In our view, the use of the term "must" places unreasonable
expectations that all facets of a product can be made accessible, with
or without the appropriate assistive technology.

The issue of AT-IT interoperability for both consumers and AT and IT
vendors is biased by past experience. In the past, application
programming interfaces, now commonly called API, did not exist or were
inadequate to achieve actual interoperability with AT (such as screen
readers) without "customized" solutions. Consequently, supporting an API
was not sufficient to achieve interoperability. The original Section 508
standards did not remedy the situation because they were relatively weak
in the area of interoperability. TEITAC's proposed Subpart C, however,
contains AT interoperability technical requirements that are
significantly strengthened over what is in the existing standard,
developed collaboratively by IT and AT committee members.

Newer APIs that either have been, or are being, developed are more
robust than many of the APIs used in the past, and use of them could
reduce or eliminate the need for custom solutions. IT products using
these newer APIs properly may pass the new requirement (3U) with an
increased degree of IT-AT interoperability and thereby eliminate the
need for "custom" solutions, as long as the IT and the AT both support
the same API. More IT will support the newer, more robust APIs. The AT
investment will be reused and leveraged by AT vendors, improving the
business case for providing greater accessibility for consumers. So
looking forward, there is a higher probability that IT and AT will
actually work together based on mutual support of the API.

It is ITI\'s recommendation that bullets #1 and #2 at the beginning of
subpart D use \"can\" and not \"must\" so that IT vendors may identify
on their VPATs which APIs they have implemented to support AT, when
applicable.

**Conclusion**

ITI would welcome the opportunity to provide Board Members and staff
with additional details and examples relative to the comments
highlighted above. Thank you for your time and consideration.