Before the FEDERAL COMMUNICATIONS COMMISSION 

Washington, D. C.

In the Matter of         
Implementation of Section 255 of the    
Telecommunications Act of 1996     
Access to Telecommunications Services,  
Telecommunications Equipment, and  
Customer Premises Equipment        
By Persons with Disabilities  
WT Docket No. 96- 198

          
COMMENTS OF THE NATIONAL ASSOCIATION OF THE DEAF 

I. Introduction

 The National Association of the Deaf (NAD) submits these
comments in response to the Federal Communication Commission's (FCC's or
Commission's) Notice of Proposed Rulemaking (NPRM) regarding access to
telecommunications services, telecommunications equipment, and customer
premises equipment (CPE) by persons with disabilities, WT Docket No. 96- 198
(released April 20, 1998). The NAD applauds the FCC for having taken this
major step toward achieving the effective implementation of Section 255 of
the Telecommunications Act of 1996. 

The NAD is the nation's largest organization safeguarding the accessibility
and civil rights of 28 million deaf and hard of hearing Americans in
education, employment, health care, and telecommunications. The NAD is a
private, non- profit federation of 51 state association affiliates including
the District of Columbia, organizational affiliates, and direct members. The
NAD seeks to assure a comprehensive, coordinated system of services that is
accessible to Americans who are deaf and hard of hearing, enabling them to achieve their
maximum potential through increased independence, productivity, and integration. As our
society moves toward increasingly advanced telecommunications tools, deaf
and hard of hearing people remain unable to access many devices and services
that continue to rely on auditory and verbal input and output. Section 255
of the Telecommunications Act of 1996 was intended to change all this, and
to bring the benefits of the telecommunications revolution to all Americans,
including those who had previously faced physical barriers to
telecommunications products and services. The Commission's implementation of
this section will have a profound effect on the ability of these new
technologies and services to reach Americans with disabilities. We submit
the comments below in the interest of achieving this far-reaching goal, so
that deaf and hard of hearing individuals can utilize telecommunications
advances to expand employment, recreational, and educational opportunities.

II. The FCC has Ample Authority to Adopt Regulations and to Enforce Section
255

 The FCC is correct in concluding that it has sufficient authority to adopt
regulations to enforce Section 255 under Section 255 itself, as well as
Sections 4( i), 201, and 303( r) of the Telecommunications Act. NPRM  para. 27[1]
Rather, specific guidance from the Commission is necessary
to ensure the most efficient implementation of Section 255's mandates. An approach that
provides an efficient, orderly, and uniform regime governing access to
telecommunications services and equipment will best serve both consumers
and industry. NPRM  24. It is not clear, however, that the NPRM, as
drafted, provides the certainty needed for the effective application of
Section 255's mandates. We are hopeful that clear direction on these issues
will be offered by the Commission in its final rules, to avoid inconsistency
and confusion in the implementation of Section 255. 

There is also no doubt that Section 255( f) authorizes the Commission to
receive and resolve administrative complaints against both service providers
and equipment manufacturers. Indeed, this was the very reason that Congress
vested the FCC with exclusive jurisdiction over all complaints under Section 255. III. The FCC
Should Adopt and Enforce theAccess Board Guidelines 

Although there is no question that Congress intended for the FCC to adopt
regulations implementing Section 255, the Legislature intended as well that
the Architectural and Transportation Barriers Compliance Board (Access
Board) would be the primary agency - with the FCC's assistance - to develop
guidelines for telecommunications equipment manufacturers. It was for this
purpose that, as the FCC notes, the Access Board convened the
Telecommunications Access Advisory Committee (TAAC), a committee which
contained balanced representation of equipment manufacturers,
telecommunications providers, software firms, and individuals with
disabilities. See NPRM para.12.  Notwithstanding the very diverse viewpoints
represented by the members of the TAAC, the TAAC produced a number of
agreements for the effective implementation of Section 255, which then
formed the basis for guidelines promulgated by the Access Board on February
3, 1998. These guidelines are further supported by a full administrative
record  the product of notice and comment from approximately sixty one organizations and
individuals. Prior to this FCC proceeding, then, there were extensive opportunities for the various
parties of interest to participate in the development of and contribute to the final Access Board
guidelines. Accordingly, we urge that the FCC adopt these guidelines in
whole, and adapt them where necessary, for telecommunications services. 

In its NPRM, the FCC states that it views the Board's guidelines as its
starting point for the implementation of Section 255. NPRM  30. Yet the
extent to which these guidelines will form the basis for the FCC's
enforcement is vague throughout the NPRM. Although the FCC does propose to
adopt the Access Board's definition of accessibility, including its
requirements for access to input, output, control, display, and mechanic
functions, NPRM 74- 75, the Commission fails to make clear
that efforts to achieve such access functions are affirmatively required of
all telecommunications companies, and not merely suggested as a means for
having achieved compliance only after a complaint has been filed. 

The Access Board's guidelines provide the specificity needed to achieve
access without stifling innovation or competition. By requiring
consideration of individuals with disabilities in market research, product
design, testing, pilot demonstrations and product trials only where such
activities are already undertaken, the guidelines ensure that the needs of
individuals with disabilities will be fully considered and incorporated in
the design, development, and fabrication of products without being
burdensome. 36 C. F. R.  1193.23. These requirements, originally contained
in the TAAC recommendations for manufacturers, can easily be adapted to
service providers, and should be adopted in the FCC's final rules, for
compliance with Section 255 to be fully realized. For similar reasons, we
support the FCC's proposal to adopt the Access Board's requirement for the
pass- through of cross- manufacturer, non- proprietary, industry- standard
codes, translation protocols, formats or other information necessary to
provide telecommunications in an accessible format,  for both manufacturers and
service providers. 

NPRM 74. 2 A. Accessibility and Usability We are concerned about the
FCC's proposal to combine the concepts of accessibility and usability
under the term accessibility, and to define that term in the broad sense
to refer to the ability of persons with disabilities to actually use the
equipment or service by virtue of its inherent capabilities and functions.
NPRM 73. Although the concepts of accessibility and usability are
related, and are both directed at ultimately achieving universal access, we
disagree with the FCC that Section 255 does not establish separate
requirements for accessibility and usability,NPRM para.  para73. In fact, the
requirements of usability are quite distinct from those needed to achieve
accessibility. As the FCC notes, requiring that a product or service is
usable means that individuals must have access to the full functionality
and documentation for the product, including instructions, product
information, (including accessible feature information), documentation, and
technical support. . .NPRM para. 72. The importance of such access cannot be
overstated. An accessible product has little value to an individual who does
not have access to information on how to use that product. 

Yet theNPRM para. is not clear on the extent to which such access to product
information will in fact be required. Although the FCC proposes to adopt the
Access Board's definition of usability,NPRM para. 73, later in theNPRM para., the
FCC states that after a complaint has been filed, a respondent may
demonstrate that it has undertaken good faith efforts to comply with Section
255 by, among other things, providing user information and support features
required by the Board's guidelines.NPRM para. 164- 65.

The FCC goes on to state that it does not expect all firms to adopt all of these usability
requirements. Rather, the FCC explains, each firm should thoughtfully consider the guidelines in
light of the situation and the degree to which its products have or lack accessibility features, and
then adopt those which will help it provide the accessibility Section 255
requires.NPRM para. 166. 

We oppose such an approach. Without clear regulatory requirements for
usability, full access to a product cannot be achieved. It is critical that
the FCC include, in its final rules, specific regulatory language defining
the obligations of manufacturers and service providers to make their
offerings usable. Toward that end, we strongly urge adoption, in whole, of
the Access Board guidelines contained at 36 C. F. R.  1193.33, requiring
access to product and service information and documentation on the product
itself and its accessibility features, including information contained in
user and installation guides. Among other things, this guideline also
requires that to the extent that such information is made available to the
general public, it should be made available in accessible formats or modes
upon request at no extra charge, and that manufacturers should include the
name and contact means for obtaining information about accessibility
features, as well as the means of obtaining documents in alternate formats,
in general product information. Finally, this section provides guidance for
employee training and requires customer and technical support provided at
call and service centers to be accessible by people with disabilities. All
of these features will be critical to the effective implementation of
Section 255 and should be required by the FCC. For people who are deaf and
hard of hearing, the Appendix to this Access Board guideline explains that
this section might require captioning on video cassettes containing product
instructions, direct TTY access to customer service lines, text
transcriptions for audio output on Internet postings, and automated 
authority have direct control.NPRM para. 79. 

TTY response systems that detect whether a caller is using voice or TTY,
all features vital to usability for the consumer. [3] B. Compatibility Section 255 requires that
where accessibility is not readily achievable, telecommunications offerings
must be compatible with peripheral devices or specialized CPE commonly used
by individuals with disabilities to achieve access, if readily achievable.
The FCC proposes to adopt the Access Board's list of five criteria as a
starting point for determining compatibility.NPRM para. 92. We support this
proposal, but urge the Commission to make clear that the factors contained
in the Access Board guideline on compatibility contained at 36 C. F. R. 
1193.51, are required, where applicable, rather than options to be
considered in a good faith determination after a complaint has been filed. 

The Commission suggests that it is not necessary to distinguish between
peripheral devices commonly used . . . to achieve access and specialized
CPE because both identify products with a specific telecommunications
functionality.NPRM para.      84. For the most part, this is consistent with prior
constructions of these terms; thus, we support this FCC proposal. 

However, the FCC also proposes that devices and specialized CPE should be
considered commonly used by people with disabilities when they are
affordable and widely available. We oppose this definition. First, many
specialized devices - e. g. telebrailles (telephone devices for individuals
who are deaf and blind) - are not very affordable, costing as much as
several thousand dollars each. Second, because of the limited populations using
these devices, often these devices are not what would commonly be considered widespread. In
place of the FCC's definition, the NAD proposes that, in determining whether
a device or specialized CPE is commonly used, the FCC should consider
whether people with disabilities would use the device if available, and the
extent to which the device would be functionally effective among the
disability group for which the product was intended. Such a definition would
eliminate ineffective fringe devices that would not likely be used by
individuals with disabilities, yet would also encompass new and efficient
technologies which might not yet be widespread. Consistent with this
approach, we do support the FCC's proposal that there be a rebuttable
presumption that when a device is distributed through a state equipment
distribution program, it is commonly used by people with disabilities. 

Finally, the Commission asks whether and how a list of commonly used
components should be maintained so that individuals with disabilities may be
apprised of available technologies.NPRM para. 90. The existence of such a
list would be very useful for people with disabilities. The pooled expertise
of a variety of disability organizations and specialized equipment
manufacturers would, with the assistance of the FCC's Disabilities Issues
Task Force (DITF), be capable of compiling such a list. Additionally, the
recently formed Association of Access Engineering Specialists may be an
appropriate mechanism, again in conjunction with DITF, to maintain and
update such a list. Notice of the availability of such a list, and the list
itself, if posted on the Internet, would provide an invaluable resource for
consumers and industry alike.

IV. Telecommunications Services Should be Defined in a Manner Consistent with the 
Objectives of Section 255 to Expand Access to Advanced Telecommunications
Services. The FCC proposes to cover two types of telecommunications services
under its Section 255 rules: basic services and adjunct- to- basic services.
NPRM 35- 43. The FCC questions, however, the extent to which enhanced, or information
services, fall into the category of telecommunications services that must be accessible under
Section 255. A. 

A Narrow Construction of Telecommunications Services Would Defeat the 
Purposes of Section 255. Through its passage of Section 255, Congress
contemplated that all advanced telecommunications services, including many,
if not all, services that have historically been categorized as enhanced or
information services, would become accessible to individuals with
disabilities, if readily achievable. It was the overarching intent of
Congress, through its enactment of this section, to bring Americans with
disabilities into the mainstream of the technological age by ensuring access
to new telecommunications advances that will be used in our schools,
employment and recreational activities. To limit people with disabilities to
only basic or adjunct- to- basic services would defeat this very goal. This
is evidenced, in part on the Senate's own report on this accessibility
provision: 

The Committee recognizes the importance of access to communications for all
Americans. The Committee hopes that this requirement will foster the design,
development, and inclusion of new features in communications technologies
that permit more ready accessibility of communications technology by
individuals with disabilities. The committee also regards this new section
as preparation for the future given that a growing number of Americans have
disabilities. [4] That Congress intended for new, rather than dated, technologies to be
accessible to individuals with disabilities is evidenced as well by the fact
that previous federal legislation had already addressed, to a large extent,
access to basic voice telephony. [5] Certainly the Legislature intended that
the scope of this new law would exceed that of its predecessors. 

The FCC may be concerned about having different interpretations of 
telecommunications services for different FCC proceedings. But the FCC
will be acting well within accepted legal doctrines if it chooses to broaden
the scope of services that are covered under Section 255 while maintaining
other existing interpretations of telecommunications services. Patterned
after the ADA, Section 255 was intended to be a civil rights provision which
would end discrimination against individuals with disabilities who, prior to
Section 255 could not access telecommunications products and services.
Courts have consistently interpreted civil rights statutes liberally, to
effectuate the remedial purposes for which these statutes were created. See
e. g., Gates v. Collier (liberally construing Civil Rights Attorneys' Fee
Awards Act) [6] ; United States v. DeRosier (liberally interpreting Civil
Rights Act of 1964). [7]

When viewed in this light, one must, first and foremost, consider the
objectives for which Section 255 was created. As we move into the 21st
century, we are all too aware that advanced telecommunications technologies
will continue to change the way we conduct our lives on a daily basis.
Congress, too, was aware of the pervasive influence that these advancements
would have on our daily existence and wished to ensure the inclusion of
people with disabilities in the enjoyment of these benefits. 

This would not be the first time that an application of prior FCC rulings
needed to be adjusted for the purpose of ensuring access by individuals with
disabilities. For example, in the Telecommunications for the Disabled Act of
1982, 8 Congress modified the FCC's decision to 11 detariff customer premises equipment (CPE)
nationwide, so that individuals with disabilities  could continue to afford specialized
telecommunications equipment. The 1982 Act was a response to the FCC's ruling in its Second
Computer Inquiry (Computer II), one of the proceedings upon which the FCC is again relying in
drawing its distinction between telecommunications and enhanced services. In Computer II, the
Commission had ordered telephone companies to separate the sale and rental of their equipment
from their regulated services. 9 By detariffing CPE and requiring users to pay the full cost of that
equipment, the FCC had hoped to create competition among the sellers of CPE which
would, in turn, drive down prices. However, because many telephone companies
had been offsetting the high costs of providing specialized customer
premises equipment with revenues from other services, individuals with
disabilities would now be faced with having to pay the full costs when
buying this equipment. The 1982 Act reversed the Computer II ruling for
equipment used by individuals with disabilities, expressly allowing the
states to require carriers to continue providing subsidies for such
equipment. The goal was to ensure that individuals with hearing, speech,
vision, and mobility disabilities would have continued telecommunications
access. 

Similarly, the arguments for narrowly defining telecommunications services,
to the exclusion of enhanced or information services, cannot withstand
scrutiny when applied in the context of telecommunications access for people
with disabilities. Indeed when one considers the principal reason for
construing telecommunications services narrowly, one can readily see that
this reason does not stand up in the context of disability access.
Specifically, in its report to Congress on universal service, the FCC
established the need to encourage competition as the primary, if not the
only reason for excluding information services from its definition of 

9 Second Computer Inquiry (Computer II), 77 FCC 2d 384, 446- 47 (1980),
recon. 84 FCC 2d 50 (1981), further recon. 88 FCC 2d 512 (1981), affd sub
nom. Computer & Communications Indus. Assoc. v. FCC, 693 F. 2d 198 (D. C.
Cir. 1982), cert. denied, 461 U. S. 938 (1983) 12 telecommunications services. 10 For example,
the report quotes Senator
McCain as stating that it was not Congress's intent in enacting the supposedly pre- competitive,
de-regulatory 1996 Act to extend the burdens of current Title II regulation to Internet services. 11
Because a primary goal of the 1996 Act (with the clear exception of Section 255) was to diminish
regulatory burdens as competition grew, 12 certain U.
S. Senators have steadfastly wished to avoid expanding traditional telephone
regulation to information services. Along this line, in determining that
telecommunications and information services are mutually exclusive, the FCC
concluded, in its universal service report, that to subject information
services to the broad range of Title II constraints, could seriously
curtail the regulatory freedom that the Commission concluded in Computer II
was important to the healthy and competitive development of the enhanced-
services industry. 13 As held true with respect to the FCC's decision to
de-tariff CPE in its Computer II ruling, the FCC's reliance upon Computer II
for distinguishing between telecommunications and information services falls
apart under an analysis that fosters increased access by individuals with
disabilities. In contrast to most sections of the 1996 Act, Section 255 was
not intended to reduce regulatory burdens or to foster competition by
eliminating regulatory constraints. Rather, Section 255, in the interest of
expanding telecommunications access, created new regulatory obligations for
service providers. 14 Indeed, the de-regulatory and pro-competitive goals of
the  actually offering telecommunications services, in that they are creating
virtual transmission paths between various points on the public switched
telephone network. 17 The FCCs report explains that an entity offering a
simple, transparent transmission path, without the capability of providing
enhanced functionality, offers telecommunications.  18 For many of the
services otherwise considered to be information or enhanced services for the
general population, access will in fact create only a simple transmission
path for people with disabilities. Without Section 255 coverage, there will
be no path at all. If these services are excluded, individuals with
disabilities will be able to initiate calls, but will not be able to complete those calls, thus defeating
the purpose and intent of Section 255 to provide telecommunications access for all Americans. 

definition of telecommunications services; rather it will be assisted by
such a definition, as this will expand the current pool of
telecommunications users. 

10 In the Matter of Federal- State Joint Board on Universal Service, Report
to Congress, FCC 9867, CC Dkt. 96- 45 (April 10, 1998) (Report to Congress).

11 Report to Congress    37 (emphasis in original). 

12 Report to Congress    38 (quoting Senators Ashcroft, Ford, John F. Kerry,
Abraham, and Wyden). 13 Report to Congress   46. 

14 Competition was not at issue in the Legislatures consideration of
Section 255. In any event, however, competition in the telecommunications
industry will not be impeded by a broad 

13 1996 Act, 15 to which the Commission repeatedly alludes in its universal
service report have no  place in Section 255. Other language in the FCCs universal service
report also supports a broad interpretation of telecommunications services under
Section 255. First, in that report, the Commission left open the issue of
whether protocol processing should be treated as an information service. 16
Second, the Commission left open the issue of whether Internet telephony
service providers using the network for phone- to- phone service, are

15 Report to Congress    47. 

16 Report to Congress    52. 

17 Report to Congress    89- 92. 

18 Report to Congress    39. 

14 B. The FCCs Definition of Adjunct- to- Basic Services Dictates Inclusion
of Additional  Enhanced Services for Purposes of Section 255. Even under the FCCs own
definition of adjunct- to- basic services, many of the services otherwise
considered to be enhanced or information services for the general population
necessarily fall within the scope of Section 255s coverage for individuals
with disabilities. The FCC defines adjunct- to- basic services as services
which facilitate the establishment of a transmission path over which a
telephone call may be completed, without altering the fundamental character
of the telephone service,NPRM para.    39, and which bring[] maximum
benefit to the public through its incorporation in the network.NPRM para.      40.
Deaf and hard of hearing people are presently unable to complete telephone
calls that use interactive voice responses and audiotext information
services, two types of services which the FCC says may not be covered by
Section 255. These services are not TTY accessible 19 and relay systems are
illequipped to handle their speed. Thus, despite their proliferation
throughout educational, recreational, and governmental services across
America, deaf and hard of hearing people remain without access to these
types of advanced telecommunications services. 20 

19 Although a technology does exist to allow an interface between TTYs and
interactive telephone systems, this technology has rarely been utilized. 20
Repeated efforts by consumer groups to convince the Department of Justice
(DOJ) and the FCC to require access to these automated telephone systems
have not been successful. For example, in the course of its rulemaking on
Title II of the ADA, the DOJ received many comments about the inability of
relay systems to provide access to automated telephone systems using touch
tone prompts. Acknowledging that the problem existed, the DOJ nevertheless
declined to rule on the matter, concluding that it is more appropriate for
the [FCC] to address these issues in its rulemaking under Title IV. 56 Fed.
Reg. 35693, 35712. The FCC, however, has consistently held that these
enhanced services are merely encouraged, but not required, even if they
are technically feasible. In the Matter of Telecommunications Services for
Individuals with Hearing and Speech Disabilities, and the Americans with
Disabilities Act of 1990, CC Dkt No. 90- 571, Report and Order   20 (July 26,
1991). 

15 It cannot be disputed that access to these services would bring maximum
benefit to  deaf and hard of hearing persons wishing to access the network. Indeed,
access is needed to bring any benefit to these individuals. With access,
calls may be completed; without access, calls are effectively blocked for
these populations. 

Similarly, theNPRM para. states that the Commission has consistently
categorized a service option or feature as adjunct- to- basic, and thus
subject to Title II regulation if that option or feature is clearly basic in
purpose and use.NPRM para.   40. Again, it cannot be more obvious that access to
advanced service features is basic in purpose and use for individuals with
disabilities. This holds true for interactive and audiotext telephone
services as well as for other services labeled as enhanced, such as voice
mail and electronic mail. If the Commissions test for adjunct services is
whether or not the service provides the information necessary for a
subscriber to place a call (as holds true for directory assistance services
and Operator Services for the Deaf) then various services which are
considered enhanced for other purposes must fall within the FCCs
definition of adjunct to basic services for the purposes of Section 255.
SeeNPRM para. 

     40- 41. The test, then, for purposes of Section 255 coverage, should
be whether access to a service is needed to achieve communication by people
with disabilities, i. e., whether access to a service is needed to achieve
the objectives of Section 255. 

In sum, the Commission should not base its final Section 255 rules on
interpretations made in proceedings - such as the Second Computer Inquiry
and the Implementation of the NonAccounting Safeguards 21 - which were
decided without accessibility in mind. Rather, it should create rules which
respond to the objectives of Section 255. Should the Commission exclude all
enhanced or information services from Section 255s coverage, it will
effectively be denying to 

21 Implementation of the Non- Accounting Safeguards of Sections 271 and 272
of the Communications Act of 1934, as amended, First Report and Order and
Further Notice of Proposed Rulemaking, CC Dkt. No. 96- 149, 11 FCC Rcd 21905
(1996). 

16 all Americans with disabilities access to the new and innovative
telecommunications services that the rest of America is coming to enjoy - hardly a result that
could have been contemplated by Section 255. V. Definitions and Other Issues
Affecting Scope of Coverage  

A. Providers of Telecommunications Services The FCC proposes to define
providers of telecommunications services as all entities offering (i. e.,
whether by sale or by resale) telecommunications services to the public, in
addition to the service provider who originates the offering.NPRM para.   43.
We urge that the FCC make clear that subproviders who offer services to
providers, who in turn make those services available to the public, are
covered under this definition. This would avoid defenses by providers who
receive inaccessible services from hiding behind those subproviders. 

The FCC proposes to apply its rules to a service provider only to the extent
that that provider offers telecommunications services, if that provider
offers both telecommunications and non- telecommunications services.NPRM para.

46. We support this application of the rules. 

17 B. Telecommunications Equipment 

The FCC has stated that Section 255 requires functional accessibility of all
equipment used in the provision of a telecommunications service, whether
that equipment is used by an individual (CPE) or found elsewhere in a
telecommunications system (telecommunications equipment).NPRM para.   49. Again,
we support this principle. 

The FCC has proposed that Section 255 apply to multi- use equipment only to
the extent that the equipment serves a telecommunications function.NPRM para.

53. We support this approach, but urge that the FCC apply this test
whether or not the equipment was originally intended for a
telecommunications application. Stated otherwise, it is the functionality of
the equipment, not the intent of the manufacturer that should determine the
equipments coverage. Similarly, we support the FCCs conclusion that CPE
covered under Section 255 includes wireless handsets.NPRM para.  49 n. 107. 

C. Software The FCC has tentatively concluded that software integral to
telecommunications equipment is covered by Section 255.NPRM para.     55. As the
FCC notes, software provides a means of controlling telecommunications
functions. It is for this reason that we disagree with the FCCs decision to
only include software that is bundled with telecommunications products. See
NPRM      56. As holds true for all telecommunications equipment, the test
should be one of functionality, not whether the software is marketed
separately from the CPE. Indeed, it is likely that more and more software
will not be bundled in the future, as software may increasingly control CPE
functions from distant locations through the network. Moreover, any other
standard may invite manufacturers to unbundle software for the sole purpose
of avoiding their Section 255 obligations. 

18 D. Manufacturers 

The FCC proposes that Section 255 apply to all manufacturers offering
equipment for use in the U. S., regardless of their national affiliation.
NPRM      58. We support this application and believe that it is consistent
with prior FCC rulings requiring accessible features on imported telephones
(i. e., hearing aid compatibility) and imported televisions (i. e., decoder
circuitry for closed captioning). 

The FCC proposes to fix responsibility for product accessibility on the
final assembler of the product.NPRM para.    60. We agree that this would give
manufacturers the greatest incentive to specify accessible components from
their suppliers, and to negotiate private arrangements for allocating the
costs of compliance. Id. This will also make the point of contact for
consumers concerned about lack of access easier to locate. 

E. Network Features, Functions, or Capabilities The FCC seeks comment on the
relationship between the enforcement procedures under Section 251 for
interconnection agreements and the Commissions enforcement authority under
Section 255.NPRM para.   66. In comments to the FCC in its interconnection
proceeding, the NAD had, in fact, asked the FCC to condition approval of
interconnection agreements upon compliance with accessibility standards. 

22. The FCC declined to address access issues in its final rule, noting that
it would address these questions in a further notice of proposed rulemaking,
after the Section 255 rules had been issued. 23 Once again, we reiterate our
concerns 

22 In the Matter of Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996, CC Dkt. No. 96- 98, Reply Comments of
the NAD at 6 (May 30, 1996). 

23 See Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, CC Dkt. No. 96- 98, First Report and Order,
998, 11 FCC Rcd 15499 (1996). 

19 that such agreements not be permitted to go forward if a party to such
agreement is not in compliance with Section 255. The FCC also asks how responsibility for
compliance with the accessibility and compatibility guidelines should be
apportioned between network equipment and service providers that incorporate
that equipment into the network.NPRM para.   80. It would seem that this should
be dealt with on a case- by- case basis, considering carefully, in each
instance, the source of the failure to provide access. Where the source is
both, both should be held accountable. 

F. Disability We support use of the ADAs definition of disability, as well
as the Access Boards list of categories of common disabilities. SeeNPRM para.
     70. 

VI. Application of the Readily Achievable Standard Should Parallel
Application of this Standard Under the ADA, Taking into Consideration
Telecommunications- Specific Factors Only. 

Under Section 255, manufacturers and service providers must make their
offerings accessible or compatible if it is readily achievable to do so. As
the FCC notes in itsNPRM para., Section 255( a)( 2) provides that [ t] he term
readily achievable has the meaning given to it by section 301( 9) of [the
ADA].NPRM para.    94. The FCCsNPRM para. offers an extensive analysis of the term
readily achievable, noting that the existence of ADA factors does not
appear to preclude [its] consideration of telecommunications- specific
factors not enumerated in the ADA.NPRM para.     98 n. 198. 

We agree that the telecommunications context may warrant consideration of
certain factors that were not applicable under an ADA analysis of structural
accessibility. However, many, if not most of the newly proposed factors now
proposed for the Section 255 readily achievable standard are not
telecommunications- specific. In fact, many of the new factors suggested
could have easily been applied in the ADA context. 

20 When Congress incorporated the readily achievable standard in Section
255, it did so fully aware of the long line of agency interpretations, administrative
decisions, and court cases that had already applied this standard under the
ADA. For the most part, the analyses applied by these various forums
compared the costs of providing access with the overall resources of the
entities covered by the ADAs provisions. With a few exceptions, the same
test should be applied here. 

A. Feasibility The FCC offers several reasons why a particular access
feature may not be feasible: 1) technical feasibility: i. e., physical
impossibility or where technology is not available to develop an access
solution; 2) legal impediments; or 3) where implementing features to improve
access for one disability might limit access for another.NPRM para.   101. A
discussion of each of these factors follows. 

1. Technical feasibility 

The extent to which adding an access feature is technically feasible, or the
extent to which technology is available to achieve accessibility, are
legitimate considerations in the telecommunications context. First and
foremost, however, in permitting this defense, the FCC should insist upon
proof of technical infeasibility, rather than unsupported assertions that a
technical solution is unavailable. Second, this defense should only be
permitted to the extent that technical feasibility could not be achieved
during the design and development of the product or service. Indeed, the FCC
itself notes the greater difficulties that arise when trying to incorporate
accessibility past these early stages. Under its discussion of timing, the
FCC acknowledges that technological features available at the beginning of
a product development cycle can be incorporated more easily . . . than those
that become available at the end of the development cycle.NPRM para.      120.
A company should not be permitted to assert this readily achievable 

21 defense if the access problem could have been avoided through
incorporation of access features early in the design processes. 2. Legal impediments - While
unclear in theNPRM para., it would seem that the FCCs decision to permit the existence of a
legal impediment as a defense to providing access is designed to protect
companies that are unable to obtain licenses for access solutions, or where
contracts otherwise prevent the incorporation of such solutions. We request
that the FCC elaborate on the use of this defense, so that its meaning is
fully understood, and so that it is not abused in any way. 24 Additionally,
we urge the FCC not to permit this defense unless the company asserting this
factor is able to demonstrate that it has undertaken, though unsuccessfully,
whatever efforts may have been necessary to eliminate the legal obstacles
impeding access. 

3. Impeding other types of accessibility - Consumers with disabilities most
certainly have an interest in not curtailing one type of access for another.
Nevertheless, this concern, although legitimate, would be more appropriately
considered elsewhere in the FCCs rules, as it is separate and apart from
the extent to which it is readily achievable to make a product or service
accessible. 

B. Expense We agree that it is reasonable to consider any tangible and
actual costs that must be incurred in achieving accessibility. SeeNPRM para.
     103- 104. The costs of engineering staff, fabrication facilities,
and licensing fees are examples of costs that companies may incur in
achieving access, and which legitimately may be considered in a readily
achievable analysis. 

24 For example, contracts specifically designed to avoid Section 255
compliance should not be tolerated. 

22 We disagree, however, that companies should be able to consider
opportunity costs, loosely defined by the FCC as the costs associated with decreasing access
with respect to another disability, or otherwise reducing product or service
performance in another way. These costs are highly subjective. Without
clearly defined and objective measures for determining these costs,
consumers are left at the mercy of companies who, on their own, may
determine that the opportunity costs for achieving a certain type of
access are prohibitive. 

Similarly, we oppose consideration of the additional income that an access
feature will provide in a readily achievable analysis. Although we
understand the FCCs well- intended objective to have companies consider the
additional income they will bring in as the result of adding access, in fact
this factor may result in providing companies with an added excuse not to
incorporate access, where it is expected that such access is not likely to
bring in much income. This might occur, for example, where the market of
individuals with disabilities is small, as may be true for products or
services designed for individuals with multiple disabilities, such as
deafblindness. Although the ADA permits consideration of a wide variety of
expenses, no cases or agency interpretations to date have used opportunity
costs or projected income as permissible factors in a readily achievable
determination. 25 Nor has the FCC justified the need for consideration of
this factor in the telecommunications context only. 

C. Practicality Under the Section 255 readily achievable standard, the FCC
proposes to allow consideration of whether an access feature is practical,
given the expenses involved.NPRM para. 

     106. Here, the FCC lists a number of factors: 25 Nondiscrimination
on the basis of disability by public accommodations and in commercial
facilities. 56 Fed. Reg. 35543, 35594 (July 26, 1991); 28 C. F. R. Part
36.104; see also discussion of court cases on readily achievable below. 

23 1. Resources - A provider should be permitted to consider its resources,
including, but  not limited to, its financial resources, staff resources, and the facilities that it has
available to meet the expenses associated with accessibility.
SeeNPRM para.  106. The FCC proposes to establish a presumption that the
resources reasonably available to achieve accessibility are those of the
entity . . . legally responsible for the equipment or service that is
subject to the requirements of Section 255.NPRM para.      109. It goes on to
state that this presumption may be rebutted where either the assets and
revenues of a parent or affiliate are available to the provider (and may
thus be taken into consideration) or where a respondent may show that a sub-
unit does not have access to the full resources of the legally bound
corporation. We support the FCCs analysis on these points, as it is
consistent with that of the Department of Justice under the ADA, 26 and case
law interpreting the ADA. For example, in Arnold v. United Artists Theater
Circuit Inc. (United Artists), plaintiffs had challenged conditions at
several movie theater locations all owned by the same corporate defendant,
United Artists. The court concluded that  whether a proposed change is deemed readily
achievable under the ADA depends on the defendant firms overall financial resources. 42 U.
S. C.  12181( 9)( b)[ B]; 28 C. F. R. 

36.104. For multi- site companies such as UA, the ADA expressly requires
that defendant assess the financial condition, not just of the sites
involved, but of the entire corporation. 27 

2. Market Considerations 

The FCC proposes to allow companies to consider 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.NPRM para.

     115. While obviously not intended to do 26 56 Fed. Reg. at 35553- 54. The Department of
Justices analysis explained that in some instances, resources beyond those of the local facility
where the barrier must be removed may be relevant in determining whether an action is readily
achievable, and that the resources of the parent corporation
should be considered to the extent those resources may be allocated to the
local facility. Id. 

27 7 ADD 1165, 1187 (1994), citing 42 U. S. C.  12181( 9)( C); 28 C. F. R. 36.104. 

24 so, consideration of this market factor may well defeat the entire
purpose of Section 255. 

Long ago - indeed in its very first piece of federal legislation expanding
telecommunications access for individuals with hearing disabilities, the
Telecommunications for the Disabled Act of 1982 - Congress acknowledged the
problems of relying on competition in the marketplace as a means of
achieving accessibility. As noted above, the 1982 Act was designed to permit
continued cross- subsidization of specialized telephone equipment with
service revenues, notwithstanding the FCCs Computer II prohibition against
such subsidies. Congress explained that reliance on market forces to keep
the costs of such equipment down would not work for individuals with
disabilities: 

For most ratepayers, deregulation may indeed ensure a competitive market in
telephone sets and eliminate subsidies for such sets from local rates. For
the disabled, however, the ban on cross- subsidization could mean
unregulated price increases on the costly devices that are necessary for
them to have access to the telephone network. Disabled persons who are
unable to afford the full costs of this equipment will lose access to
telephone service. 28 

Indeed, the very reason that Section 255 - as well as the ADA and other
disability laws have been needed at all has been that the marketplace has
not responded to the needs of individuals with disabilities. To now suggest
that manufacturers may not be required to create accessible products where
such products are not likely to receive a great reception in the market
negates the whole purpose of Section 255. Moreover, the FCCs proposal to
permit consideration of the extent to which an accessible product can
compete with other, inaccessible products simply sanctions the sale of
inaccessible products that are more likely to bring in a greater share of
the market. 

The FCC should remember that even if this market factor is eliminated, there
will be no competitive disadvantage for companies complying with Section
255. Because the law is evenly 28 H. Rep. No. 97- 888, 97 th Cong. 2d Sess. 3- 4 (1992). 

25 applied across the marketplace, it will affect all companies similarly.
Rather, a balancing of the costs of providing access with the resources available to the covered
entity will protect companies whose resources are unable to handle accessibility
expenses. 

On a related matter, the FCC has raised concerns about an Access Board
guideline which states that no change in a product shall be undertaken that
has the effect of decreasing the accessibility, usability, or compatibility
of telecommunications equipment or CPE. 29 Specifically, the FCC seeks to
ensure that this principle not operate to prevent legitimate feature trade-
offs as products evolve, nor should it stand in the way of technological
advances.NPRM para. 

     114. The FCCs statement appears to assume that disability access
will stand in the way of technological advances. This, of course, is an
incorrect premise, as we have, on several occasions, shown that
accessibility features can enhance the desirability of a product or service.
We are concerned with the FCCs position for another reason. The needs of
individuals with disabilities have, more often than not, been afforded
second class status. Although individuals with disabilities certainly do not
wish to stifle innovation and technological advances for the general
population, nor do we wish to take steps backwards as these advances are
made. At a minimum, then, the NAD urges the Commission to adopt a rule
requiring that access functions already incorporated into products and
services not be lost as these offerings are upgraded. Stated otherwise,
where products and services are changed or improved, the means of providing
access for a particular disability may need to change as well, but under no
circumstances should individuals who once had access to a particular
offering lose access altogether. To do otherwise would directly contravene
the very objective of Section 255, to increase, not decrease, accessibility
for individuals with disabilities. 

3. Cost Recovery 

29NPRM para.   114, citing to 36 C. F. R.  1193.39( a). 

26 The FCC has proposed yet a third factor - cost recovery - under the
concept of 

practicality. This is defined as the extent to which an equipment
manufacturer or service provider is likely to recover the costs of increased
accessibility.NPRM para.      115. This factor is troubling, as it permits a
company to consider whether it expects to recover the incremental cost of
the accessibility feature, and the extent to which absorbing the cost would
provide a disincentive to offering the product. Put simply, these are
considerations which are quite foreign to the concept of readily achievable
as applied under the ADA, and which are likely to provide a significant
escape route for covered entities seeking to avoid their Section 255
obligations. It is critical to note here that the Department of Justice
expressly rejected a similar consideration in its application of the readily
achievable standard to entities covered under the ADA. In the preamble to
its final rules implementing Title III of the ADA for places of public
accommodation, DOJ explained that it had originally proposed a rule which
would have stated that barrier removal is not readily achievable if it
would result in significant loss of profit or significant loss of efficiency
of operation. 30 DOJ deleted this section from its final rules, explaining
that [ m] any commenters objected to this provision because it
impermissibly introduced the notion of profit into a statutory standard that
did not include it. 31 Having patterned Section 255s readily achievable
language on application of this standard under the ADA, Congress similarly
could not have intended cost recovery or profit to be included as a factor
for consideration by the FCC. There is nothing unique to telecommunications
that warrants inclusion of this factor at this time. An example will
demonstrate this point. 

Under Title III of the ADA, stadiums must be accessible to individuals with
disabilities. Under the FCCs analysis, the owners of a stadium in a small
town that has only a few citizens 

30 56 Fed. Reg. at 35569, citing proposed rule 28 C. F. R.  36.304( f)( 1).
31 Id. 

27 who use wheelchairs would be able to argue that they should not be
required to provide  accessible seating because they may not be able to recover the costs of
providing such access. Under an ADA analysis, however, so long as these
owners have resources available to provide such access - whether on their
own or through a lucrative parent corporation - they would be required to
provide the accessible seating. The owners of the stadium would not be
permitted to consider the likelihood of recovering their costs, and the
disabled citizens of and visitors to the town would gain much needed access
to the stadium. 

The analysis that we put forth today is substantiated by federal courts that
have interpreted the readily achievable test. In Pinnock v. International
House of Pancakes (Pinnock), for example, the court deferred to the specific
factors enumerated in the ADA itself and the analysis set forth by the DOJ
in weighing the financial resources and economic strength of the defendant
with the costs of the requested accommodations. 32 There, the court
determined that requiring the owner of a restaurant to make its restroom
accessible to persons in wheelchairs did not constitute a taking of private
property without just compensation. Similarly, in Slaby v. Berkshire, a case
involving barriers to a golf course, the court explained that the readily
achievable standard balances the cost of construction and ability of the
business to pay against the need of the disabled persons at the facility.
33 Although the respondent in Slaby prevailed because it had already taken
reasonable measures to provide accessibility, the ability of the country
club housing the golf course to recover its costs simply was not at issue.
See also Neff v. American Dairy Queen Corp., 34 (scope of injunctive relief
if ADA violation is proven would depend in part on the financial strength of
the defendant); United Artists (court emphasized the 

32 3 ADD 482, 491, 844 F. Supp. 574 (1993). 33 928 F. Supp. 613 (1996) 34 58
F. 3d. 1063 (5 th Cir. 1995) 

28 availability of the defendant corporations resources in certifying
plaintiffs class action against the movie theater chain). 

29 4. Timing 

The FCC notes that because access features available at the beginning of a
product development cycle can be incorporated more easily than those
available at the end of a cycle, a company should be permitted to consider
the periods of time needed to incorporate new access solutions in products
under development.NPRM para.  120. While we generally agree with this
approach, it is important for the FCC to recognize, and for covered entities
to be reminded, that the Access Board guidelines direct manufacturers to
evaluate accessibility, usability, and compatibility throughout product
design, development, and fabrication. . . 35 There may, in fact, be times
where, although it had not been technically feasible to include access
during the design stage of a product or service, a readily achievable
technical solution is located later on in the development of the product. In
this instance, the company, under the readily achievable analysis, should be
required to incorporate access if its resources can handle it. In other
words, although a company would be wise to search for access solutions as
early as possible in the design process, the company should not be permitted
to end that search prematurely; rather, efforts should continue throughout
the design, development, and fabrication of the product or service. It may,
however, be permissible for a company to assert, as a timing defense, that
incorporation of an access feature (i. e., late in the production process)
would result in an extensive delay in the release of the product or service
on the market, (i) if such a delay would actually ensue, and (ii) if that
delay could not have been prevented by earlier consideration of access
needs. 

The FCC has tentatively concluded that once a product is introduced on the
market without accessibility features that were not readily achievable,
Section 255 does not require subsequent modification of the product.NPRM para.
120. In a related vein, however, the Access 35 36 C. F. R.  1193.23( a). 
30 Board guidelines apply to both new products and existing products which
undergo substantial  change or upgrade, or for which new releases are distributed.
36 This guideline, originally offered as a TAAC recommendation, is intended to apply
to changes that affect the functionality of the product, rather than
cosmetic or minor changes. Such a provision is critical. It is needed to
ensure that where modifications to products are substantial, efforts to
incorporate access will be undertaken. We urge its inclusion in the FCCs
final rules. 

Finally, the FCC has concluded that a grace period for compliance with
Section 255 is not warranted. (    121) We strongly support this conclusion,
given the considerable amount of time that has already passed since
enactment of this section.  

D. Other Considerations We agree with the FCC that readily achievable
determinations should be made on a caseby- case basis.NPRM para.      122. Indeed,
at least one court has rejected any type of numerical formula for a readily
achievable analysis. In Pinnock, the court cited to the DOJ language on this
point: 

The Department has declined to establish in the final rule any kind of
numerical formula for determining whether an action is readily achievable.
It would be difficult to devise a specific ceiling on compliance costs that
would take into account the vast diversity of enterprises covered by the
ADAs public accommodation requirements and the economic situation that any
particular entity would find itself in at any moment. 37 

Because the covered entities under Section 255 are similarly diverse, a
single numerical test would make little sense under Section 255. 

In conclusion, the readily achievable test should remain one that, for the
most part, compares the costs of providing access with the overall resources
available to the covered entity 

36 36 C. F. R.  1193.2. 

37 3 ADD at 491, citing 28 C. F. R.  36.104, App. B, at 577. 

31 on a case- by- case basis, taking into account any technological or legal
barriers to achieving such access. To rule otherwise would be to contravene the intent of Congress
which, when it adopted the readily achievable standard, believed that it had
patterned that standard after its application under the ADA. 

VII. Modifications to the Complaint Resolution Process Are Necessary to
Ensure the Efficient and Effective Enforcement of Section 255. 

A. Fast Track Because the Commission intends to rely on consumer complaints
as one of its primary means of monitoring and enforcing compliance with the
Section 255 requirements, accessible and efficient complaint procedures are
necessary to ensure that all Americans gain the benefits of advances in
telecommunications services and equipment. Toward this end, the Commission
proposes that its involvement in the enforcement process begin with a fast
track.NPRM para.  

126- 143. The fast track complaint procedure, if
implemented correctly, could significantly aid consumers, manufacturers and
service providers in addressing accessibility problems swiftly and easily,
thereby helping to ensure access to telecommunications services and
equipment for persons with disabilities. The NAD agrees with the Commission
that it should handle complaints in a streamlined, consumer- friendly
manner, with an eye toward solving problems quickly,NPRM para.  3, and
offers the following suggestions to assure the success of a fast track
process. 

First, the NAD supports the Commissions proposal to encourage, but not
require, consumers to directly contact a manufacturer or service provider
before submitting a complaint to the FCC.NPRM para.    128. By directly contacting
the manufacturer or service provider, the consumer may be able to resolve
the problem quickly and easily, without involving the Commission. However,
to be able to do this, consumers must know whom to contact and how.
Manufacturers and service providers should be required to designate
representatives to handle 32 Section 255 complaints. 38 Depending on the size of the company
and the array of products and 

services offered, manufacturers and service providers may want to designate
a single contact point for the company or designate different contact points
for different product offerings. The Commission should make the names and
methods for contacting these representatives available to the public, either
through the FCC or through the manufacturers and service providers
themselves, and should make the submission of such data mandatory. SeeNPRM para.
     134. 

Without this list, consumers will be without information vital to the
informal resolution of many complaints that need not reach the FCC.
Similarly, we agree with the Commission that equipment manufacturers and
service providers should be required to establish multiple contact methods,
accessible to as many disabilities as possible.NPRM para.   133. 

We also support the Commissions proposal to establish a central FCC contact
point for all Section 255 inquiries and complaints.NPRM para.    130. A
central contact point is critical to enable consumers to register their
complaints and obtain information about accessibility issues. The Commission
should take measures to ensure that people with disabilities are aware of
the FCCs central contact point through its webpage and other outreach
efforts. Additionally, consumer groups stand ready to assist in distributing
information about this contact point to people with disabilities through our
newsletters and Internet sites. 

It is critical for the Commission set up a comprehensive training program
for staff members assigned to handle Section 255 complaints and inquiries.
The legal and technological 

38 See generally         132- 33, proposing accessible contact points
for manufacturers and service providers. Designating a specific
representative is similar to the broadcasters childrens liaison, a
designated individual at each television station responsible for handling
inquires and complaints regarding compliance with childrens programming
requirements. The name and method of contacting the childrens liaison must
be made available to the public. 47 C. F. R.  73.3526( a)( 8)( iii); See
Policies and Rules Concerning Childrens Television Programming; Revision of
Programming Policies for Television Broadcast Stations, Report and Order, MM
Docket No. 93- 48, August 8, 1996, 11 FCC Rcd 10660, 10690. 

33 issues concerning Section 255 can be complex; having a knowledgeable
staff, familiar with 

Section 255 and accessibility issues in general, is vital to the successful
enforcement of Section 255. Additionally, FCC staff appointed to receive
complaints should have the means of keeping records of such complaints, so
that patterns and practices of noncompliance are brought to the Commissions
attention. 

Keeping consumers informed and involved is of primary importance throughout
the complaint resolution process. The Commission should notify consumers
when it has referred their complaints to manufacturers or service providers.
SeeNPRM para.  133. Included with this notification should be information
on the time allotted for a response by the manufacturer or service provider,
the FCCs evaluation procedure, and options available to the consumer if the
problem cannot be resolved through the fast track process. SeeNPRM para.      142.
Where the FCC determines that a complaint is outside the scope of Section
255, it should also inform consumers about avenues of redress that may be
available elsewhere. Id. 

The Commission should require manufacturers and service providers to submit
a report to the FCC responding to the complaint, with copies to the
complaining party, explaining whether it has provided access, and if not,
why not.  139. A report will be necessary for the complainant to
decide whether the manufacturer or service provider has addressed the
accessibility problem satisfactorily and whether to pursue the second phase
of complaint resolution. Because the consumer may need this report during
the second phase, we oppose the Commissions suggestion that respondents be
able to submit their reports via telephone call.NPRM para.  138. The
respondents report should be in a permanent format, whether that is via
electronic mail, facsimile, written correspondence, or other format
accessible to the complainant. 

The Commission has proposed a five- day response period for the fast track
procedure.NPRM para.     136. If manufacturers and service providers keep
accurate records regarding their 

34 efforts for ensuring product and service accessibility, they should not
need a great deal of time to 

respond to consumer complaints. However, given the likely complexity of many
Section 255 complaints, the period proposed by the Commission may not
provide manufacturers and service providers adequate time to evaluate and
address accessibility problems. The result is likely to be endless requests
for extension of time, which would defeat the purposes of Section 255.
Accordingly, the NAD proposes that the Commission allow ten working days for
manufacturers and service providers to briefly respond to consumer
complaints, with an outside limit of thirty calendar days for this fast
track period if extensions are requested. SeeNPRM para.    137. If a complaint
cannot be resolved within thirty days, it should move on to the second phase
of dispute resolution. We support the decision by the FCC to close the
matter only if (i) the access problem is resolved or (ii) there is no
underlying compliance problem, in which case the matter will go to the
second phase of dispute resolution processes, where the FCC can determine
the nature and magnitude of problem, and take appropriate action.NPRM para.
     140. This will provide a much needed safeguard for consumers, and
will reveal patterns of noncompliance. 

The NAD wishes to note as well that we believe that the following features
of the FCCs fast track phase will work toward achieving a streamlined,
consumer- friendly complaint process: 

 Allowing persons with disabilities to submit complaints by any accessible
possible means,NPRM para.     129; 

 Allowing complaints to be brought without any time limitNPRM para.,      149; 

 Distribution of an FCC sample complaint form that is not otherwise
required by the FCC,NPRM para.     131; 

 The willingness of the FCC to initiate discussions with consumer or
industry access experts and the Access Board, for the purpose of reviewing
specific complaints and access questions,NPRM para.         141, 161; 

 Requiring that Section 255 complaints need only be submitted once, with no
requirement for re- filing at the end of the informal process as a condition
for moving to formal dispute resolution,NPRM para.     154; 

35 

 Permitting the joinder of respondents. This is especially important, since
there may be situations where a complaint will be brought against both a
service provider and a manufacturer for the same violation,NPRM para.      154;
and 

 Permitting the joinder of complaints, and complaints involving different
accessibility aspects of the same products,NPRM para.  154. 

B. Informal and Formal Complaints As a consumer complaint moves to the
second phase for either informal or formal resolution, the FCC needs to
continue to establish time limits for the complaints resolution. Toward
this end, the NAD strongly urges the Commission to apply the five- month
deadline established under Section 208 of the Communications Act.NPRM para.     156
39 The Conference Report for the Telecommunications Act of 1996 explained
that 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. 40 Insofar as Section 208 is directly
applicable to the enforcement of Section 255, it follows that the five-
month time period should also apply to Section 255 complaints. 

Even were the Commission to conclude that Section 208 does not apply to all
Section 255 complaints, it should nevertheless issue a rule that requires it
to resolve Section 255 complaints within five months, following the guidance
that Section 208 provides. By recently tightening the time for the
resolution of Section 208 complaints from twelve to five months and
eliminating extensions in complex cases, Congress has made clear its
interest in achieving swift adjudication at the FCC. Additionally, as the
Commission itself has recognized, accessibility delayed is accessibility
denied,NPRM para.  124, and an outer time limit for the resolution of 

39 See 47 U. S. C.  208( b)( 1). 40 S. 652, Conf. Rep., 104- 230, 104th
Cong., 2d Session 135 (1996). 

36 accessibility complaints by the FCC is necessary to ensure that persons
with disabilities can 

enjoy the benefits of advances in telecommunications services and equipment.
The FCC states that it will establish formal adjudicatory procedures only
where the complainant requests those procedures, and where the Commission,
in its discretion, permits the complainant to invoke [those] procedures.
NPRM      147. The NAD is gravely concerned about the Commissions tentative
decision to condition formal complaints upon FCC approval. In its Notice of
Inquiry on Section 255, the Commission made clear that Congress has
established in Section 255 the right of aggrieved parties to file complaints
against any person who has allegedly violated Section 255. 41 However, in
itNPRM para., the Commission proposes to undermine that right without any
justification. This appears to be both unprecedented and discriminatory
against individuals with disabilities. 42 Section 255 already removes the
private right of action from consumers. Insofar as the Commission has
exclusive jurisdiction over enforcement, removing the automatic right to
bring a formal FCC complaint raises serious concerns regarding the denial of
due process for individuals with disabilities. 

Where consumers do file formal complaints under Section 255, we agree with
the FCC that they should not be made to pay a filing fee.NPRM para.   155. The
Commission notes that it is required to impose a filing fee for formal
complaints directed at common carriers, but may waive the fee if doing so
would be in the public interest. 43 The fee, currently $150.00, 44 may in
fact 

41 Implementation of Section 255 of the Telecommunications Act of 1996;
Access to Telecommunications Services, Telecommunications Equipment, and
Customer Premises Equipment By Persons with Disabilities, Notice of Inquiry,
WT Docket No. 96- 198 (September 17, 1996) 36. 

42 For example, no similar requirement for FCC approval exists with respect
to formal complaints brought against common carriers under Section 208. 47
C. F. R.  1.720- 1.735. 43NPRM para.    155 n. 276, citing Section 8( g) of
the Communications Act, 47 U. S. C. 158( g). 

44 47 C. F. R. 1.1105. 

37 discourage consumers from filing formal complaints; this in turn could
undermine enforcement 

of the accessibility mandates. Thus, it is in the public interest for the
Commission to waive the filing fee and we urge the Commission to take such
action. 

38 C. Alternative Dispute Resolution 

After a complainant has initiated an informal or formal complaint, the
complainant should reserve the right to request alternative dispute
resolution at any time.NPRM para.  159. As the Commission is aware, the use of
alternative dispute resolution may bring the matter to a more rapid
conclusion without burdening the resources of the parties or the Commission.
Certain safeguards will be needed to ensure fairness and accessibility
during the alternative dispute resolution process. First, the Commission
should establish guidelines, if none yet exist, for selecting neutral
parties who are able to oversee the process. Second, the Commission must
ensure that the alternative dispute resolution process is accessible to all
parties. Already mandated under the Rehabilitation Act, this will require
the provision of auxiliary aid and services, including, but not limited to,
interpreters, computer- assisted real- time transcription services, and the
provision of materials in alternative formats, where necessary. We encourage
the use of outside experts such as the Association of Accessibility
Engineering Specialists to help speed the resolution of complaints in the
alternative dispute resolution stage. VIII. The Full Range of Commission
Remedies are Available under Section 255 

We agree with the FCC that the Commissions full range of remedies,
including those which exist pursuant to Sections 207 and 208, Section 312,
and Section 503, should be available for Section 255 violations.NPRM para.      172.
The FCC asks whether damages which may be awarded against common carriers
under Sections 207 and 208 may also be available to other entities under
Section 255.NPRM para.   33. 

The Conference Report to Section 255 made clear that 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. 45 Insofar as manufacturers of 

45 Conf. Rep. No. 104- 230, 104th Cong., 2d Sess. 21- 22, 135 (1996) 

39 telecommunications equipment and providers of telecommunications services
are treated 

uniformly throughout Section 255 for all other purposes, there is no reason
to draw a distinction between these covered entities with respect to
remedies available for their noncompliance. Had Congress intended otherwise,
it would have drawn such a distinction. Thus, we urge the FCC to clarify
that the monetary damages available under Sections 207 and 208 are equally
available against all entities covered under Section 255. 

The FCC also seeks comment on whether it has a basis to order a product to
be retrofitted if the product had been developed without access, where
access would have been readily achievable.NPRM para.   172. So long as it
would have been readily achievable to incorporate access into a product or a
service during its design, development, or fabrication, the FCC has a basis
to require that such access be incorporated at a later date, even if this
will require some retrofitting. To rule otherwise would be to ignore the
intent of Section 255s basic objective to expand accessibility. Companies
that are forced to retrofit will soon realize - as will their competitors
-the importance of considering and incorporating access at the outset of
design and development. 

Finally, the NAD supports use of the following measures suggested by the FCC
to foster increased telecommunications accessibility (NPRM  174): 

 establishment of a clearinghouse for product accessibility information and
solutions; 

 publication of information on manufacturer and service provider
accessibility performance; 

 additional information on the Internet at the FCCs Disabilities Issues
Task Force Web site; 

 establishment, by consumer and industry groups, of informational and
educational programs, product and service certification, and standards
setting; and 

 development of peer review processes. VIX. Conclusion 

40 We wish to thank the Commission for the opportunity to submit these
comments and for its commitment to ensuring access to telecommunications products and
services. In order to fulfill that commitment, we urge the Commission adopt
the changes and modifications proposed herein. 

Respectfully submitted, Karen Peltz Strauss Legal Counsel for
Telecommunications Policy National Association of the Deaf 814 Thayer Avenue
Silver Spring, MD 20910- 4500 (301) 587- 1788 Voice (301) 587- 1789 TTY 

Of Counsel: Lori Dolqueist Institute for Public Representation Georgetown
University Law Center 600 New Jersey Avenue Washington, D. C. 20001- 2022
(202) 662- 9535 

June 30, 1998 

1 We support the Commission's decision not to rely on either policy statements
or consumer complaints as the sole means of enforcing Section 255. As a
practical matter, reliance on policy statements will not achieve Congress
goal of securing universal telecommunications access for persons with
disabilities, and consumers with disabilities do not have the resources to
effectively file complaints for all inaccessible products and services.

2 We do not oppose the FCCs suggestion that Section 255 reach only those
aspects of accessibility over which equipment manufacturers and service
providers subject to FCC 

3 The Commission does state that its evaluation of whether a company has met
its accessibility obligations must include not only an individuals use of
the equipment itself, but also access to support services, including direct
TTY access to customer service and help desk lines, and the use of
captioning and video description on tutorial videos. NPRM para.  75-
76. Again, however, it is not clear whether the FCC is proposing these as
                                                                                     requirements, or as options for the covered entity, the provision of which           
will be looked upon favorably if a complaint is brought. 

4 S. Rep. No. 104- 23, 104 th Cong, 1st Sess. 52 (1995) (emphasis added). 5
See e. g., Title IV of the Americans with Disabilities Act, Pub. L. No. 101-
336, codified at 42 U. S. C.  12101 et. seq. (1990) (requiring nationwide
telecommunications relay services); Hearing Aid Compatibility Act of 1988,
Pub. L. No. 100- 394, codified at 47 U. S. C.  610 (1988) (requiring
telephones manufactured or imported into the United States to be hearing aid
compatible); and Telecommunications Accessibility Enhancement Act of 1988,
Pub. L. No. 100- 542, codified at 40 U. S. C.  762 (1988) (expanding, inter
alia, the federal relay service). 

6 616 F. 2d 1268, 1275 (5 th Cir. 1980), rehearing granted in part on other
grounds, 636 F. 2d 942 (5 th Cir. 1981).

7 473 F. 2d 749, 751 (5 th Cir.
1973) 

8 Pub. L. No. 97- 410, codified as amended at 47 U. S. C.  610 (1988)