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 TELECOMMUNICATIONS
INDUSTRY ASSOCIATION





Grant Seiffert
Vice President, Government Relations
TELECOMMUNICATIONS INDUSTRY 
ASSOCIATION
1300 Pennsylvania Avenue, N.W.
Suite 350
Washington, D.C. 20004






Dated: June 30 , 1998




 


EXECUTIVE SUMMARY
          The purpose of Section 255 is to provide increased access to telecommunications 
and to encourage ease of use of telecommunications products and services by persons with 
disabilities, to the extent "readily achievable."  TIA supports this goal.  TIA believes the goals of 
Section 255 can be best accomplished in a competitive market rather than through intensive 
government regulation.  The telecommunications market has been in fact a source of benefits for 
persons with disabilities.  The telecommunications equipment and CPE markets are highly 
competitive which has caused TIA's members to manufacture an array of sophisticated 
telecommunications devices with increasing capabilities.  The competitive telecommunications 
equipment and CPE markets also have had the effect of making telecommunications devices
more 
accessible to and usable by persons with disabilities.  In addition to features such as vibrating 
pagers; alphanumeric display pagers; speakerphone functionality; screens on cellular and PCS 
phones which allow an entity to receive text messages; and many other features which make 
telecommunications equipment and CPE more accessible to persons with disabilities, TIA 
members have reduced the size and cost of devices which has made such products more
accessible 
to people with disabilities. 
     TIA believes that in adopting a structure for implementation of Section 255 the FCC 
should not impose unnecessary and unrealistic burdens upon the manufacturing community
which 
will serve only to have a detrimental impact on the overall ability of manufacturers to continue to 
provide more features, functionality and capacity at lower prices.  Excessive regulation which 
requires manufacturers to expend resources documenting decisions on why it was not possible to 
incorporate accessibility features into devices covered by Section 255 will reduce the resources 
that can be devoted to developing new and innovative products, including products with more 
accessibility features than exist today.  A framework for Section 255 implementation should 
encourage members of the disability community and the manufacturing community to work 
together to identify specific barriers to accessibility and, thereby accomplish the laudable goals
of 
Section 255.
     The FCC should adopt rules which allow manufacturers to use a product line approach to 
Section 255 rather than a product by product approach.  In this regard, the Commission should 
allow manufacturers to apply the Access Board's 18 point "accessibility checklist" across product 
lines.  Virtually all parties that have participated in the proceedings at the Access Board and in
the 
NOI portion of this proceeding, agree that as a practical matter it is not "readily achievable" to 
make a universally accessible product since features that enhance accessibility for one disability, 
may decrease accessibility for other disabilities.  A regulatory regime that allows manufacturers
to 
devote resources to developing accessibility solutions to families of products with similar
features, 
functionality and price, will ultimately result in greater accessibility being provided to a greater 
number of people with a wider variety of disabilities.  
     With respect to the statutory definitions, the FCC should adapt the definitions of 
"disability" and "readily achievable" taken from the ADA, to the telecommunications context.  
For example, the definition of "disability" should be interpreted to include only those persons
with 
functional limitations that affect their ability to use telecommunications.  Thus, while 
approximately 50 million people in the U.S. may have some type of disability, not all 50 million 
people are precluded from accessing the full panoply of telecommunications services available 
today.  
     Similarly, the FCC should revise the Access Board's definitions of "accessibility," 
"compatibility," and "manufacturer" to avoid undesirable consequences and negative incentives 
that may not be apparent at first glance.  For example, because it is not "readily achievable" to 
manufacture a product which meets all 18 points of the Access Board's accessibility checklist, 
"accessible" should be defined as telecommunications equipment and CPE which enhances the 
ability of a person with a disability to use telecommunications equipment or CPE by
incorporating 
one or more of the factors enumerated in the Access Board's 18 point checklist. 
     Section 255 should be applied only to telecommunications services, as opposed to 
information services and only to telecommunications equipment and CPE to the extent the 
telecommunications equipment and CPE is being used in connection with a telecommunications 
service.    
     The FCC should adopt TIA's dispute resolution process instead of the FCC's proposed 
fast track process.  The proposed fast track deadlines (FCC transmitting complaints within 1 day 
and manufacturers responding thereto within 5 days of the date the complaint was forwarded),
are 
too short to lead to meaningful resolution of perceived accessibility problems.  As a result, the
fast 
track process is not conducive to resolution of complaints and will serve only to put parties in a 
defensive posture.  More importantly, the fast track process will not result in increased 
accessibility.  The FCC should require persons with disabilities who are directly aggrieved by the 
perceived lack of  accessibility of a product to discuss the issue with the appropriate
manufacturer 
before involving the FCC.  Under TIA's proposal the parties would have 60 days within which to 
resolve the issue or the matter can be taken up in a more traditional complaint process.  
     TIA agrees with the FCC that a contact point for Section 255 matters is necessary but 
asserts that the Commission should permit manufacturers flexibility in designating a contact
point.  
TIA urges the FCC to adopt a standing requirement to ensure that frivolous complaints are not 
submitted.  To ensure that the Commission's resources are not burdened and manufacturers do 
not have to respond to "stale" complaints, the FCC should impose a 6 month statute of
limitations 
on the filing of complaints against manufacturers.  To enable manufacturers to provide detailed 
and substantive responses to complaints, complainants should be required to provide detailed 
information about his or her disability as well as steps taken to obtain an accessible product.  
     In the context of defending against complaints, confidentiality is a critical concern to 
manufacturers since much of the information that might have to be submitted in a complaint 
proceeding would include highly proprietary and sensitive cost and financial information
regarding 
a product or product pricing strategies.  For example, when raising a "readily achievable"
defense, 
information which would have to be submitted to prove a case might include product costs, 
electrical current requirements for certain features, ROM space required for certain features, 
licensing fees paid to others, technical details of operation and similar matters which, if put in the 
public domain would have devastating impact on a manufacturer's competitive position in the 
marketplace. 
     The FCC's current "complaint process" which permits a fast track complaint, informal 
dispute resolution, and formal dispute resolution is unjustifiably burdensome to manufacturers.  
The FCC's proposal could result in manufacturers being required to defend themselves in three 
separate actions.  TIA proposes instead that the FCC adopt TIA's proposed dispute resolution 
process, and allow complainants to use a modified formal complaint process in which no 
discovery is allowed. 
     The FCC's proposal to rely on outside information in rendering decisions on fast track 
(and other) complaints is not presently viable.  While there are persons who have many good
ideas 
on how accessibility can be increased in the telecommunications context, there is virtually no 
expertise on whether it is "readily achievable" to incorporate such ideas into any individual 
manufacturer's product.  The design and development process for telecommunications equipment 
and CPE is highly complex and results in numerous experts collaborating on the best manner to 
incorporate numerous features in a given product.
     The FCC should not serve as a clearinghouse for accessibility information nor require 
manufacturers to submit general accessibility information for redistribution to the public and the 
FCC should not or give manufacturers a "seal or other imprimatur" on Section 255 compliance.  
Due to the large number of products introduced on a monthly basis, the FCC does not have the 
resources to keep such information up to date.  The public might believe the act of distributing 
information is an acknowledgement that a manufacturer's product complies in all respects with 
Section 255 when that might not be the case.  Since the marketplace will ensure that accessibility 
information will be distributed, the FCC should not devote its limited resources to such a project. 


TABLE OF CONTENTS

EXECUTIVE SUMMARY   i
I.   INTRODUCTION.  9
II.  THE FCC SHOULD PERMIT MANUFACTURERS TO EXERCISE DISCRETION IN 
INCORPORATING ACCESSIBILITY FEATURES ACROSS PRODUCTS WITHIN A 
PRODUCT LINE.  17
A.   A Product Line Approach Is The Key To Enhanced Accessibility.    17
B.   The FCC's Proposal To Require A Product-By-Product Assessment Is 
Inconsistent With The Practical Reality That No Single Piece Of CPE Can Be 
Accessible To Everyone.  21
C.   The FCC's Proposal Requires Manufacturers To Defend, Through A Series Of 
Piecemeal Complaints, Their Inability To Achieve The Impossible - A Universally 
Accessible Product. 22
D.   The ADA Not Only Supports, But Compels The FCC To Adopt The Product Line 
Approach To Compliance Advocated By TIA And Other Manufacturers. 24
III. DEFINITIONS.   26
A.   The  Definition Of "Disability," Incorporated By Reference From The ADA 
Should Be Interpreted To Include Only Those Persons With Functional 
Limitations That Affect Their Ability To Utilize Telecommunications.  27
1.   By analogy, the ADA supports an interpretation of "disability"  in the 
telecommunications context to include only those persons  with functional 
limitations that affect their ability to use telecommunications. 28
2.   The legislative history supports an interpretation of "disability"  that 
includes only those functional limitations that "substantially limit" a 
person's ability to use telecommunications.  30
3.   In order to be "useful" to manufacturers, service providers, consumers, and 
the FCC, the definition of "disability" must be focused on the functional 
limitations that "substantially limit" a person's ability to use 
telecommunications. 30
B.   The FCC Should Adopt A Definition Of "Accessible" That Minimizes The Amount 
Of Resources Diverted To Documentation And Maximizes The  Accessibility 
Information Made Available To Consumers.     32
1.   The FCC's proposed definition of "accessible" requires manufacturers to 
waste resources defending their inability to achieve the impossible: a 
universally accessible product.    33
2.   The FCC's proposed definition of "accessible" ignores ADA precedent and 
incorrectly refuses to consider the cumulative cost of providing access to 
different disabilities in determining what is "readily achievable."   35
3.   The FCC's proposed definition of "accessible" creates disincentives for 
manufacturers to provide accessibility information - information which 
would be helpful to consumers with disabilities.  37
4.   TIA proposes an alternative definition of "accessible" that  creates 
incentives for manufacturers to provide information  about accessibility 
features to consumers, and recognizes that  such features will be 
incorporated, to the extent "readily achievable," across product lines and 
families. 37
C.   TIA Supports the FCC's Approach to The Definition Of "Compatibility" Yet Is 
Concerned that the Definition Will Not Promote  Innovation and Places Too Great 
a Burden on Manufacturers to Achieve Compatibility.    43
D.   The FCC Should Adapt The Definition Of "Readily Achievable" To The 
Telecommunications Context.   47
1.   Technical feasibility should be considered as part of the "readily 
achievable" analysis.    48
2.   The consideration of "expense" as part of the "readily achievable" analysis 
should include cumulative costs of features that enhance accessibility, as 
well as opportunity costs.    50
3.   TIA supports consideration of "practicality" in the "readily achievable" 
analysis. 51
4.   The concept of "fundamental alteration," used in the ADA, should  be 
modified to the telecommunications context and considered to insure that 
equipment and CPE remain consistent with the fundamental characteristics 
of functionality and price required  by the market segment that the products 
are designed to serve.   51
E.   Manufacturer.  55
1.   Responsible Entity. 55
2.   "Final Assembler."  56
IV.  THE FCC SHOULD INTERPRET SECTION 255 IN A MANNER THAT IS 
CONSISTENT WITH THE LIMITATIONS ON THE FCC'S AUTHORITY 
REFLECTED IN THE COMMUNICATIONS ACT.    57
A.   Section 255 Applies Only to Providers of Telecommunications Services and Not 
Information Services.    58
B.   Equipment Must Comply With Section 255 Only to the Extent It  is Being Used In 
Connection with Telecommunications Services. 61
C.   The Intent of the Manufacturer Must Be Considered in Determining Whether to 
Apply Section 255(c) to "Multi-Use" Equipment or Equipment That is Used 
Incidentally for a Telecommunications Service.    63
V.   IMPLEMENTATION PROCESS.       66
A.   Fast Track Process. 67
1.   Encouragement of Informal Dialogue Between Interested Parties.   69
2.   Contact Point. 73
3.   Fast Track Deadlines are Too Short.     76
4.   Standing. 80
5.   Complaint Format.   81
6.   FCC Decisionmaking Process.   82
7.   Ability to Switch Out of the Fast Track Process.  85
B.   TIA's Proposed Dispute Resolution Process.   85
C.   Use of Traditional Dispute Resolution Processes.  88
1.   Statute of Limitations for Bringing Complaints.   89
2.   Response Time for Informal and Formal Complaints. 90
3.   Confidentiality.    92
4.   Formal Dispute Resolution.    93
5.   Alternative Dispute Resolution Process. 95
6.   Defenses to Section 255 Complaints.     97
7.   Penalties for Non-Compliance. 98
8.   Additional Implementation Issues.  100
VI.  INTERIM TREATMENT OF COMPLAINTS.   101
VII. CONCLUSION.    102











Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C.


In the Matter of   
 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 TELECOMMUNICATIONS
INDUSTRY ASSOCIATION



I.   INTRODUCTION.
          Pursuant to the provisions of Section 1.415 of the Commission's Rules, the 
Telecommunications Industry Association ("TIA") respectfully submits its comments in the 
above-captioned proceeding.   In support of its comments, TIA states as follows:
          TIA is a national trade organization with membership of  900 large and small 
companies that provide communications and information technology products, materials,
systems, 
distribution services and professional services in the United States and around the world.  The 
association's member companies manufacture or supply virtually all of the products used in the 
global communications networks.  TIA member companies have been in the forefront of the 
development of telecommunications equipment and CPE and have, thus, been an integral part of 
the telecommunications revolution that has had a dramatic and positive effect on the manner in 
which citizens conduct their lives.
          As vigorous competitors in the hotly contested marketplace for 
telecommunications equipment and CPE fostered by the Commission's pro-competition policies, 
TIA members have engaged in substantial research and development to provide consumers with 
products with increasing capabilities at ever lower prices.  The dramatic increase in use of 
communications devices of all types for a variety of voice and data services, for example, is the 
result of the efforts of TIA members.  The technological developments resulting from TIA 
members' research and development efforts have served to benefit individuals with disabilities as 
well as the broader marketplace.  
          Advances in micro-technology components have permitted manufacturers to 
provide an increasing array of features for mass market products which serve to make such 
communications devices more accessible to and useable by individuals with disabilities. 
Vibrating 
pagers make it possible for persons with hearing disabilities to be alerted to incoming paging 
messages; display pagers make it possible for persons with hearing disabilities to receive 
messages; alphanumeric pagers make it possible for persons with hearing disabilities to read text 
messages rather than to receive only numeric messages; voice pagers make it easier for persons 
with vision impairments to hear messages; cellular, PCS, enhanced SMR and cordless phones 
allow persons with mobility disabilities to be able to utilize the telecommunications network 
without having to use public phones or phones which may otherwise be located in inconvenient 
places; cellular, PCS and cordless phones often have visual displays and thus serve as devices 
which can receive short data messages; in the not too distant future, cellular and PCS 
telecommunications equipment and other CPE will be used to provide information about the 
user's location to emergency service providers, assisting individuals with functional limitations 
that make it difficult to access emergency services; wireless modems made specifically for use 
with computers and similar devices allow persons with hearing disabilities to use PCs to receive
e-
mails and faxes; voice recognition features permit calls to be initiated hands-free;  speaker phone 
and other hands-free features incorporated into a wide variety of wireline and wireless CPE make 
it easier for persons with motor impairments to access telecommunications networks.  Advances 
in technology also have allowed manufacturers to reduce the size and weight of CPE and at the 
same time lengthen the battery life of portable CPE, thus making it easier and more convenient
for 
all persons, including persons with disabilities, to carry and use portable CPE in their everyday 
activities.  
          Perhaps most importantly, advances and innovation in technology, combined with 
a competitive marketplace, have caused the prices of communications devices, including CPE, to 
be driven dramatically downward towards cost.  This has made a wide variety of devices 
manufactured by TIA members available to all segments of the public, including those persons 
whose disabilities may have otherwise resulted in lower earning power relative to society as a 
whole.
          Features which enhance the accessibility of devices manufactured by TIA
members 
did not commence with Section 255.  As they have competed with each other for customers, 
manufacturers have developed new product features and, through the use of new technology, 
reduced the cost of providing older, more limited product features.  In pursuing a strategy of 
differentiating their products - both from their competitors' offerings and their own prior 
offerings - manufacturers have created products with unique features and combinations of 
features.  In the course of pursuing a marketing strategy of product differentiation, manufacturers 
have introduced products with a variety of features which make them both more attractive in the 
marketplace and more accessible to individuals with disabilities.  The following examples
illustrate 
TIA members' long history in providing products with features which make them more
accessible.  
Voice pagers were first introduced in the late 1950's; the speakerphone was introduced in the 
early 1960's; the vibrating pager was first introduced in the mid-1970's; visual displays on CPE 
were first used in the early 1980's.  Although some apparently believe that these accessibility-
enhancing features were initially developed for people with disabilities and later made their way 
into the general marketplace, this is not the case.  Rather, these features, initially developed for 
other market segments, proved to be useful for individuals with disabilities.  For example, the 
vibrating pager, useful to people with impaired hearing, was initially developed so that factory 
workers in a noisy environment could be alerted to a page.  Similarly, the speakerphone, useful
to 
persons with motor impairments, generally was used in its early years by only a minority of 
executives to conduct group telephone calls in their offices.  In both cases, TIA members, 
competing in the marketplace, invested in developing technology that enables them to provide 
these features-initially high added-price options-in a wide variety of products at small or no 
price premiums.  These examples demonstrate how manufacturers, when granted discretion as to 
how best to incorporate new features across their product lines, can achieve gains in technology 
that will benefit all consumers, both disabled and non-disabled alike.     
          The foregoing examples of some features of products now offered by TIA 
members which enhance the accessibility of their products to individuals with disabilities
illustrates 
how manufacturers' investments in research and development have benefited all consumers, 
including those with disabilities-even without the obligations imposed on manufacturers by 
Section 255.  It also demonstrates how allowing the highly competitive marketplace to operate 
freely has operated to enhance the accessibility of telecommunications equipment and CPE-a 
process that the Commission's implementation of Section 255 should encourage.    
          Moreover, the foregoing examples of product features to enhance accessibility is 
inconsistent with the notion that there has been a significant failure of the marketplace to make 
telecommunications equipment and CPE accessible, to the extent that it is "readily achievable" to 
do so.  Two of the examples often cited as evidence of such marketplace failures-the 
interference of digital wireless telephones with some hearing aids and the incompatibility of
digital 
wireless services and CPE with TTY/TDD devices-are rather the inevitable result of old 
technologies being exposed to radically new and advanced technologies.  Some compatibility 
issues present very challenging technical problems which may not be amenable to solution, no 
matter what the regulatory incentives or what time, effort, and resources are expended to solve 
them based, in part on the continued use of old technology.  
          Intrusive government regulations which impose unnecessary and unrealistic 
burdens upon the manufacturing community will serve only to have a detrimental impact on the 
overall ability of manufacturers to continue to provide more features, functionality and capacity
at 
lower prices.   Excessive regulation which requires manufacturers to expend substantial resources 
documenting decisions on why it was not possible to incorporate accessibility features into 
devices covered by Section 255 does not serve the public interest since that will reduce the 
resources that can be devoted to developing new and innovative products, including products 
with more accessibility features than exist today.
          In making a decision on a framework for Section 255 implementation, it is also 
incumbent on regulators to carefully study the factual premises on which many arguments are 
based.  TIA does not dispute the fact that approximately 50 million people or 25% of the 
population of the United States has some type of disability.  It does dispute the implication that
all 
Americans with disabilities are unable to use telecommunications equipment and CPE.  In fact, 
there are a great many persons with disabilities who are not only fully able to use all 
telecommunications equipment and CPE manufactured today, but who can more easily use 
telecommunications networks as a direct result of the innovation that has been accomplished by 
TIA members.   For example, a person whose legs are paralyzed and may be confined to a 
wheelchair can carry a cellular or PCS phone with them and have total access to the full panoply 
of telecommunications services without having to be concerned about the height of a payphone
or 
winding his or her way through narrow hallways or corridors to gain access to a telephone 
instrument.  In fact, the demonstrations at the Commission's April 2, 1998 Open Meeting at
which 
the instant NPRM was voted, clearly demonstrated that even in the absence of Section 255 and 
implementing regulations being in place, the marketplace is working to meet the needs of
persons 
with disabilities.  Some needs were met by low-cost, mass market products like speakerphones.  
Other needs were met by highly specialized products like the Liberator and the TTY produced by 
small innovative manufacturers with specialized expertise.
          Careful examination of the conclusions of the Access Board are in order inasmuch 
as accessibility for the rapidly changing and evolving telecommunications arena is substantially 
different than for architectural barriers with which the Access Board had prior experience.  
Congress clearly recognized this by requiring the Access Board to develop guidelines for 
telecommunications equipment and CPE "in conjunction" with the FCC.  Thus, the
Commission's 
tentative conclusion that it must give "substantial weight" to the conclusion of the Access Board  
is not only unsupported by Section 255 itself, but is contradicted by the express language of the 
statute which gives the FCC co-equal responsibility in developing guidelines.  The FCC should 
not automatically defer to the Access Board in all matters relative to accessibility.
          TIA members take seriously their public responsibility to make
telecommunications 
equipment and CPE accessible to the extent it is "readily achievable" to do so.  TIA has been an 
active participant in the collaborative process in which representatives of industry, the disabled 
community, and government agencies have explored how best to implement Section 255.  An 
executive with TIA served as Co-Chair of the Telecommunications Access Advisory Committee 
("TAAC") formed by the Architectural and Transportation Barriers Compliance Board ("Access 
Board").  A number of TIA's members actively participated in and were members of the TAAC.  
TIA and numerous members submitted comments in the Commission's Notice of Inquiry 
("NOI") 
on Section 255 implementation as well as the Access Board's NPRM.    TIA and its members 
have had meetings with the staff of the Wireless Bureau and the Commission's Disabilities Task 
Force in an effort to communicate the views of its members.  The staff of former Chairman
Hundt 
specifically requested that TIA develop a proposed regulatory framework which might be used as 
a starting point for the development of a consensus agreement between manufacturers and the 
disability community on the best manner to implement Section 255.   Despite legitimate 
differences in opinion TIA may have with others who have interests in Section 255, TIA does not 
doubt the sincerity of those with different views on the subject, including members of the 
Commission and its staff.  Neither should the Commission or persons with disabilities doubt the 
sincerity of the manufacturing community to comply with the spirit and the letter of the law.
          In these comments, TIA hopes to demonstrate to the Commission and members of 
the disability community that a regulatory framework designed to encourage members of the 
disability community and the manufacturing community to work together is likely to result in 
more accessibility features being made available in a wider variety of products than would be the 
case if an unrealistic regulatory framework is implemented as a result of misperceptions of the 
state of the market and unrealistic views of the ability of manufacturers to make every product 
accessible to every disability. 

II.  THE FCC SHOULD PERMIT MANUFACTURERS TO EXERCISE 
DISCRETION IN INCORPORATING ACCESSIBILITY FEATURES ACROSS 
PRODUCTS WITHIN A PRODUCT LINE.
          TIA believes the most important decision the FCC will make in response to this 
NPRM is whether Section 255 applies on a product-by-product basis to each piece of 
telecommunications equipment and CPE, or whether it applies instead to lines or families of 
products with similar features, functions, and price.  The FCC's NPRM provides no clear 
guidance as to how this issue will be resolved.  

A.

A Product Line Approach Is The Key To Enhanced Accessibility.
          In the NPRM, the FCC proposes to require manufacturers to conduct an 
assessment of whether it is "readily achievable" to incorporate accessibility (defined by the
Access 
Board to include each item on an 18 point "checklist") into each and every product.   At the same 
time, the FCC recognizes that "the ideal of full accessibility is generally limited by feasibility, 
expense, or practicality," in other words, by what is "readily achievable."   The "full
accessibility" 
"ideal" that the FCC recognizes cannot be achieved within the parameters of the "readily 
achievable" standard is a piece of telecommunications equipment or CPE that is accessible to all 
persons with all disabilities.  
          Based on this implicit recognition of the practical reality that no product can be 
accessible to everyone, the FCC acknowledges in the NPRM that: 

In the marketplace, providers must decide what features to 
include and what features to omit.  We believe it is reasonable 
for an informed product development decision to take into 
account the accessibility features of other functionally similar 
products the provider offers, provided it can be demonstrated that 
such a "product line" analysis increases the overall accessibility of 
the provider's offerings. 
This statement by the FCC highlights the importance of granting manufacturers discretion to 
determine how to incorporate accessibility features into their products.  
          TIA agrees that discretion on the part of manufacturers is essential to gaining 
overall increased accessibility.  However, TIA believes that the FCC's proposal to require 
manufacturers to consider the Access Board's 18 point checklist on a product-by-product basis 
does not leave manufacturers sufficient discretion to achieve meaningful gains in accessibility.  
TIA therefore strongly supports consideration of the 18 point checklist across an entire product 
line, as opposed to each and every product.  In practice, this would mean manufacturers would 
attempt to provide, for example, at least one product in a product line that incorporated 
accessibility features for individuals with hearing impairments, at least one product that 
incorporated accessibility features for individuals with vision impairments, at least one product
for 
individuals with mobility impairments, and so on.                
          A product line approach is based on the practical reality that no one product can 
be accessible to everyone; it will, in TIA's view, maximize the resources that are dedicated to 
accessible product design and development, as opposed to documentation and defending 
complaints. 
          TIA commends the FCC for recognizing that, in some circumstances, a 
manufacturer should be deemed in compliance with Section 255 if it makes a "similar product" 
that is accessible.   Rather than placing primary emphasis on a defense, which will come into
play 
only after a complaint is filed, the FCC should recognize the legitimacy of a product line
approach 
to compliance "up front" in defining the scope of manufacturers' obligations under Section 255.  
Manufacturers will be reluctant to rely upon an uncertain similar product defense and therefore 
are unlikely to adopt flexible approaches to increasing accessibility.  Instead, manufacturers will 
take the more certain product-by-product approach and argue that it was not "readily achievable" 
for at least some functional limitations in virtually every case.
          If the FCC were to adopt an "up front" approach to Section 255 that permitted 
each manufacturer to provide a range of functionally equivalent, comparably priced products that 
are accessible to those with different disabling conditions, the FCC would create incentives for 
product differentiation, which is critical to increased accessibility.  A product line approach to 
compliance, which recognizes and endorses the need for manufacturers to exercise discretion to 
increase accessibility, permits greater flexibility for a manufacturer to work within the limits of 
what is "readily achievable."  A product line approach would permit a manufacturer to include 
more accessibility features to accommodate a particular type of disability into selected products.  
For example, a manufacturer seeking to provide access to persons with partial hearing loss could 
include enhanced audio, a speaker jack, and a vibrating feature in a few cellular phones, rather 
than provide enhanced audio only in every phone.  Such an approach might be preferable to 
consumers - both consumers with disabilities and non-disabled consumers who need similar 
features, because, for example, they work in a noisy environment.  
          In this way, a product line approach to compliance could result in the provision of 
more meaningful levels of access for particular functional limitations in a targeted group of 
products, rather than a very superficial level of access in virtually all products.  This example 
demonstrates why the FCC should avoid adopting the excessively inflexible approach to 
accessibility contained in the NPRM.

B.   The FCC's Proposal To Require A Product-By-Product Assessment Is 
Inconsistent With The Practical Reality That No Single Piece Of CPE Can Be 
Accessible To Everyone.
          Throughout the Section 255 implementation process, manufacturers, persons with 
disabilities, the Access Board, and the FCC have acknowledged that it is not possible now, and 
probably not ever, to manufacture a piece of CPE that is accessible to every person with a 
disability.  Different functional limitations generate different, potentially conflicting accessibility 
needs, and even within a single disability, access needs can vary widely.  Moreover, as a
practical 
matter, universal access cannot be accomplished "without much difficulty or expense," and 
therefore, is neither "readily achievable" nor required by Section 255.   Consequently, as the 
TAAC recognized, "because no single interface design will accommodate all disabilities, 
companies must use discretion in choosing among accessibility features."        
          While recognizing that universal access is practically impossible, the FCC has 
essentially defined the accessible telecommunications equipment and CPE as a universally 
accessible product.  The FCC proposes to adopt the definition of accessible developed by the 
Access Board.   The Access Board's 18 point checklist definition relates to the accessibility of 
product inputs, outputs, displays, mechanical and control functions for a variety of functional 
limitations and combinations of functional limitations.   Under the Access Board's definition of 
accessible each of the 18 items on the checklist is mandatory, requiring a manufacturer to
perform 
an independent "readily achievable" calculus for each item. 
          The FCC proposes to adopt this definition and to apply it to each and every 
product, even though it is not "readily achievable" now, and probably not ever, for a
manufacturer 
to make a single piece of telecommunications equipment or CPE that satisfies this definition of 
accessible.   TIA supports use of the 18 point checklist; however, it believes the application of 
the checklist over an entire product line is the only realistic approach to achieving overall 
accessibility.

C.   The FCC's Proposal Requires Manufacturers To Defend, Through A Series 
Of Piecemeal Complaints, Their Inability To Achieve The Impossible - A 
Universally Accessible Product.
          In spite of the unanimous recognition that, as a practical matter no product can be 
accessible to everyone, and that manufacturers will need to exercise discretion in choosing (a) 
among features to enhance access; and (b) the products into which they are incorporated, under 
the FCC's proposal, manufacturers remain vulnerable to complaints about the accessibility of 
every product to every person with every disability.  While recognizing that manufacturers
cannot 
produce universally accessible products, the FCC's proposal would permit a series of piecemeal 
complaints based on different functional limitations and needs that would effectively require 
manufacturers to defend their inability to achieve the impossible - a universally accessible
product 
- not only once, but over and over again.
          Under this regime, manufacturers, even those who attempt to comply with Section 
255 in good faith, are constantly on the defensive.  A manufacturer receives no safe harbor from 
complaints for doing what needs to be done to increase access - exercise discretion to include 
features that enhance access into different products where "readily achievable."
          By making manufacturers vulnerable to complaints about the alleged  
inaccessibility of every product to every functional limitation, the FCC's proposal maximizes the 
number of complaints that can potentially be filed.  Since a manufacturer will need to defend its 
product design decisions concerning what is "readily achievable" for all functional limitations for 
every product, the FCC's proposal similarly maximizes the amount of documentation that a 
conscientious manufacturer will, as a practical matter, be required to keep to defend itself.   
Consequently, the FCC's proposed approach, which requires manufacturers to assess whether 
each of the 18 accessibility criteria are "readily achievable" for each product, is excessively 
burdensome.
          In contrast, the product line approach to compliance, advocated by TIA and other 
manufacturers, recognizes the practical reality that no product can be accessible to all functional 
limitations, and permits more resources to be devoted to accessibility rather than to 
documentation of compliance.

D.   The ADA Not Only Supports, But Compels The FCC To Adopt The Product 
Line Approach To Compliance Advocated By TIA And Other 
Manufacturers.
          As TIA has argued throughout these proceedings, the ADA - which is referred to 
in both the text and the legislative history of Section 255 - provides strong support for the FCC 
to interpret Section 255 up front to require each manufacturer to provide a range of functionally 
equivalent, comparably priced products that are accessible - in other words, to produce a 
representative sample of accessible products - rather than to require that every product be 
"accessible," if "readily achievable."  Under this regime, compliance would be assessed based 
upon the accessibility of product lines or families.
          The FCC has the authority to interpret Section 255 to require accessibility across 
product lines rather than for each product.  The telecommunications and CPE "equipment" 
referred to in Section 255(b) can be interpreted as either singular or plural.  If "equipment" is 
interpreted as being singular, this would suggest that each telecommunications product would 
need to be accessible; whereas an interpretation of the equipment as plural would suggest that 
Section 255 should apply to groups or families of products.
          To resolve this textual ambiguity, the FCC should look to the ADA, which 
strongly supports defining the scope of Section 255 to apply to families or groups of products.  
Both the courts and the government agencies responsible for implementing the ADA have 
recognized that proper application of the "readily achievable" definition, will, in some 
circumstances, result in disabled consumers having accessibility but fewer choices than the
general 
public.
          As TIA has repeatedly pointed out, the ADA regulations related to fixed seating in 
public theaters and stadiums, and to hotel rooms, demonstrate the reality that providing access is 
not inexpensive, and that the "readily achievable" definition does not require that every seat or 
room be accessible.   These regulations demonstrate that access to facilities and services is the 
ultimate goal, rather than access to a particular seat or hotel room.  Similarly, TIA believes that 
access to telecommunications service is the goal of Section 255, rather than access to any 
particular model of pager or telephone.
          Therefore, the ADA compels an interpretation of Section 255 that would permit 
manufacturers to provide a representative sample of accessible products, to the extent "readily 
achievable," that would provide disabled consumers with the same general range of choices as 
non-disabled consumers, such as telecommunications functions, features, quality and cost.  And, 
this interpretation of Section 255 will increase the quality of accessible products available in the 
marketplace over what would be achieved under a product-by-product approach.

III. DEFINITIONS.
          In the NPRM, the FCC requested comment on its proposed definitions of a
number 
of terms contained in Section 255.   TIA comments on a number of definitions.  First, for certain 
statutory terms, the FCC has relied upon definitions taken from the ADA.   TIA urges the FCC 
to adapt certain ADA definitions to the telecommunications context.  This is necessary to address 
the differences between the ADA and Section 255.  Unlike the ADA, which applies in a broad 
range of contexts, including employment and access to public accommodations, the disability 
access provisions of Section 255 apply to a very narrow range of activities by equipment 
manufacturers:  the manufacture, production and design of telecommunications equipment and 
CPE.  The definitions of certain terms used in the ADA are applied in a specific context - 
generally the obligations of employers, government entities, and operators of public 
accommodations.  TIA provides comment on how the principles embodied in these ADA 
definitions should be applied in the context of telecommunications services.
          Second, for other statutory terms, the FCC has relied upon definitions provided by 
the Access Board.   TIA believes these definitions are helpful; however, TIA provides comment 
on how these definitions might be revised to avoid certain undesirable consequences and
negative 
incentives that may not be apparent to the Access Board or the FCC, and will not promote the 
primary goal of increasing accessibility. 
     
A.   The  Definition Of "Disability," Incorporated By Reference From The ADA 
Should Be Interpreted To Include Only Those Persons With Functional 
Limitations That Affect Their Ability To Utilize Telecommunications.
          In the NPRM, the FCC requested comment on its tentative conclusion that the 
definition of disability be adopted, without modification, from the ADA, as well as "additional 
ways of making the definition of `disability' useful to consumers."    In TIA's view, the definition 
of disability must be interpreted to include only those persons with functional limitations that 
affect their ability to utilize telecommunications equipment and CPE.  Such a definition would be 
more consistent with the ADA and the legislative history of Section 255.  Moreover, unless the 
definition of disability is interpreted in this way, it will not be "useful" to industry, consumers, or 
the FCC in implementing Section 255.

1.   By analogy, the ADA supports an interpretation of "disability" 
in the telecommunications context to include only those persons 
with functional limitations that affect their ability to use 
telecommunications.
          The ADA defines the term disability to include those individuals with "a physical 
or mental impairment that substantially limits one or more . . . major life activities"; persons with 
"a record of such an impairment"; and persons "being regarded as having such an impairment." 
          The relevant major life activity for the purposes of Section 255 is the ability to 
utilize telecommunications equipment and services.  Certainly, many disabilities, such as sight
and 
hearing impairments, can substantially limit an individual's ability to access telecommunications 
equipment.   Other disabilities, however, may or may not limit an individual's ability to access 
telecommunications equipment. 
          Although it is estimated that approximately 50 million persons in the United
States 
have some form or degree of disability, not all of these individuals are limited in their ability to
use 
the telephone.  Survey data compiled by the United States Census Bureau indicates that 3.1 
million persons aged 15 years and older, representing approximately 1.6% of all individuals in
that 
age range, either are unable to use the telephone or have difficulty doing so.  Approximately one 
third of these 3.1 million persons are unable to use the telephone, while two-thirds have difficulty 
doing so.  According to the Census Bureau, the remaining approximately 98.4 per cent of the 
population over the age of 15 years and 94 per cent of individuals with disabilities report having 
no difficulty using the telephone.   
          Unlike the ADA, which applies in a broad range of contexts, including
employment 
and access to public accommodations, Section 255 applies only to a very narrow range of life 
activities - the use of telecommunications equipment and services.  To the extent that people are 
substantially  limited with respect to other major life activities, they are protected against 
discrimination by the ADA, not by Section 255. 
          TIA believes Section 255 should be interpreted to require manufacturers to 
provide equipment, to the extent "readily achievable," that is accessible to individuals whose 
disabilities substantially limit their ability to use telecommunications.  Thus, certain categories of 
disabilities that do not impact an individual's ability to use telecommunications, as well as
persons 
who have "a record of  . . .  an impairment" or who are "regarded as having . . . an impairment" 
which could be relevant in the ADA context, need not be considered for Section 255 purposes. 

2.   The legislative history supports an interpretation of "disability" 
that includes only those functional limitations that "substantially 
limit" a person's ability to use telecommunications.
          Similarly, the legislative history of Section 255 supports an interpretation of 
disability in the Section 255 context as applying only to functional limitations that affect a 
person's ability to use telecommunications.  The Senate Report, which borrowed from the ADA 
in the most detail, states that the Committee "intends the definition of disability to principally 
cover individuals with functional limitations of hearing, vision, manipulation, speech, or 
interpretation of information."  S. Rep. No. 104-23 at 52 (1995).   This list of functional 
limitations, though not exhaustive, is clear evidence of Congress' functional approach to the 
definition of disability in the Section 255 context.  Under this functional approach, the definition 
of disability should appropriately be focused upon and limited to those functional limitations that 
substantially limit  a person's ability to use telecommunications, the limitations that Section 255 
requires manufacturers and service providers to consider and to the extent "readily achievable,"
to 
overcome by providing access.

3.   In order to be "useful" to manufacturers, service providers, 
consumers, and the FCC, the definition of "disability" must be 
focused on the functional limitations that "substantially limit" a 
person's ability to use telecommunications.
          A definition of disability is only useful to the extent that it clarifies manufacturers' 
obligations under Section 255.  Accessibility and compatibility are an issue only for those
persons 
who, because of functional limitations, face barriers in accessing telecommunications equipment 
and services.  Section 255 requires manufacturers and service providers to remove those barriers, 
to the extent "readily achievable."  A useful definition of  disability would focus attention on the 
functional limitations that create those barriers to telecommunications.  A definition of disability 
that includes a record or perception of an impairment, for example, provides no meaningful 
guidance to manufacturers and service providers.  There is nothing that a manufacturer can do in 
the design, development or fabrication of telecommunications equipment to improve its 
accessibility to individuals with a  record or perception of an impairment.  Consequently, these 
components of the ADA definition are not useful in implementing Section 255.
          The FCC's definition of disability also is overbroad in that it overstates the
number 
of people with disabilities who face barriers in accessing telecommunications equipment and
CPE.  
Manufacturers have already developed many products that have made telecommunications 
services more accessible, and thereby improved the quality of life, for many persons with 
disabilities.  Some barriers remain.  TIA's 900 member companies embrace their obligation under 
Section 255 to remove those barriers, to the extent "readily achievable," and expect that many of 
those barriers will fall as a result of the heightened efforts by individual member companies and 
collectively by industry, as well as technological developments that provide, for example, greater 
microprocessor processing power at decreasing costs.  TIA also discourages the FCC from 
adopting an overbroad definition of disability, suggesting that there is a large, untapped market
of 
people with disabilities for accessible equipment, because an overbroad definition lends itself to 
concepts such as "cost recovery" which should not be considered in an FCC enforcement 
process.  

B.   The FCC Should Adopt A Definition Of "Accessible" That Minimizes The 
Amount Of Resources Diverted To Documentation And Maximizes The  
Accessibility Information Made Available To Consumers.
          In the NPRM, the FCC proposes to adopt the definition of accessible adopted by 
the Access Board.   The definition, an 18 point checklist, relates to the accessibility of product 
inputs, outputs, displays, mechanical and control functions for a variety of functional limitations.  

Under the Access Board's definition of accessible, each of the 18 items on the checklist is 
mandatory, so that a manufacturer must perform an independent "readily achievable" calculus for 
each item on the checklist.   The FCC has requested comment on this proposal. 
          TIA believes that the Access Board's definition of accessible has an important role 
to play in implementing Section 255.  However, unless that definition is used differently, TIA 
believes the definition will divert excessive resources to compliance and will provide
disincentives 
to manufacturers to provide persons with disabilities with the product accessibility information 
that they need to identify the products that meet their accessibility requirements.
          With respect to the definition of accessible, TIA believes that the FCC should 
adopt an approach that minimizes the manufacturer resources diverted to compliance 
documentation and maximizes the ability of persons with disabilities to purchase products that 
meet their needs by making available information about product accessibility features.
          
1.   The FCC's proposed definition of "accessible" requires manufacturers 
to waste resources defending their inability to achieve the impossible: 
a universally accessible product.
          TIA believes that the FCC's proposed definition of accessible will require 
manufacturers to waste resources defending their inability to achieve what is practically 
impossible:  a universally accessible product.  As the TAAC recognized, "because no single 
interface design will accommodate all disabilities, companies must use discretion in choosing 
among accessibility features."   
          The recognition that it is impossible to make a piece of telecommunications 
equipment or CPE accessible to every person with a disability is grounded upon several
principles.  
Most importantly, no single product can be accessible to everyone because different functional 
limitations generate conflicting accessibility needs.  For example, multiple selectable access 
features would likely run afoul of the requirement that the product be accessible to persons with 
cognitive disabilities.   Further, universal accessibility is not "readily achievable"  within the 
meaning of Section 255, because it is not technically feasible, or would fundamentally alter the 
nature of the equipment, or is simply too expensive.
     In spite of the virtual universal recognition that no single piece of equipment can 
be accessible to everyone, that is how the Access Board defined, and the FCC proposes to define, 
accessibility.  The Access Board's "checklist" approach to the definition of accessible requires 
manufacturers to make each product accessible to each disability, if "readily achievable."  In
other 
words, the manufacturer has to make the equipment accessible to every functional limitation on 
the checklist or be able to demonstrate that it was not "readily achievable" to do so.  
     Consequently, the proposed definition of accessible dictates that a manufacturer 
will be subject to complaints about the alleged inaccessibility of its equipment for every one of
the 
functional limitations identified on the checklist.  In essence, this approach leaves a manufacturer 
to defend, through a series of piecemeal complaints, its inability to accomplish the impossible,
and 
what is not "readily achievable" - a universally accessible product.  This approach is particularly 
problematic because, while recognizing that manufacturers must exercise discretion in 
incorporating accessibility features among various products, the FCC has failed to provide 
manufacturers with a "safe harbor" from complaints for doing what must be done - exercising 
discretion - to meet the needs of people with disabilities.
          By leaving manufacturers vulnerable to complaints about the accessibility of
every 
product to every disability, the FCC's proposed regime forces manufacturers to divert  resources 
from providing access to documenting their decisions about what it and is not "readily
achievable" 
and to defending themselves against complaints.  TIA does not believe this approach will be 
helpful to consumers with disabilities.  To date, both the Access Board and the FCC have failed
to 
recognize the substantial expense that manufacturers will incur in documenting their decisions 
whether to incorporate access features based upon whether it was "readily achievable" to do so.   
Even if these documentation costs continue to be ignored, the FCC cannot deny that 
manufacturers will incur substantial expenses in receiving and responding to complaints.  TIA 
recognizes that complaints have a legitimate role in implementing Section 255 and that
complaints 
may have merit.  However, the FCC's proposed definition of accessibility, which maximizes the 
number of complaints that can be filed, is fundamentally inconsistent with the manner that 
manufacturers can and must implement Section 255 by incorporating different access features 
across a range of products.  

2.   The FCC's proposed definition of "accessible" ignores ADA precedent 
and incorrectly refuses to consider the cumulative cost of providing 
access to different disabilities in determining what is "readily 
achievable."
          Furthermore, the FCC's proposed definition of accessible, which requires an 
independent "readily achievable" calculus for each functional limitation on the checklist, is not 
supported by Section 255 and is inconsistent with ADA precedent.
          As a threshold matter, the language of Section 255 does not require that every 
piece of equipment  be accessible to every disability, if "readily achievable."  Rather, Section 255 
requires that equipment be "designed, developed and fabricated to be accessible to and useable
by 
individuals with disabilities, if `readily achievable.'"  Section 255 refers to people with
disabilities 
as a group, not on a disability-by-disability basis.
          Moreover, in the ADA context, the Department of Justice, in its regulations 
implementing the ADA, recognized that the "readily achievable" definition did not mandate the 
immediate removal of all barriers.   
          The FCC's proposed definition of accessible, which would require an independent 

"readily achievable" determination for each type of functional limitation, is fundamentally at
odds 
with the ADA approach and with Section 255.  The FCC's proposed definition of accessible 
would improperly segment the Section 255 obligation so that manufacturers might be forced to
do 
more than what is "readily achievable" or accomplishable without much difficulty or expense.   
To avoid this, it is essential that the FCC's rules permit manufacturers to consider the cumulative 
costs of accessibility features.  Moreover, the FCC's rules should not require manufacturers to 
incorporate features that fundamentally alter a product's characteristics.  Most importantly, TIA 
believes that requiring manufacturers to apply the Access Board's 18 point checklist on a 
product-by-product basis would result in manufacturers being required to do more than what is 
"readily achievable."  If the FCC were to interpret the definition of accessible in this way, the
FCC 
would be abusing its discretion.

3.   The FCC's proposed definition of "accessible" creates disincentives 
for manufacturers to provide accessibility information - information 
which would be helpful to consumers with disabilities.
          By proposing to adopt the Access Board's definition of accessible, the FCC 
creates disincentives for manufacturers to provide persons with disabilities with information
about 
accessibility features.  Manufacturers cannot create a product that is "accessible" under the 
Access Board's definition; even if manufacturers focus on specific functional limitations, such as 
hearing impairments, the wide range of individuals with a given disability will effectively
preclude 
manufacturers from representing that a product is accessible to individuals with that disability.  
Manufacturers will therefore be reluctant to provide accessibility information about their product, 
particularly in light of potential legal exposure they may face under Section 255.   
          Without specific, technical information about the nature of the accessibility 
features included in a piece of equipment, consumers with disabilities will not be able to insure 
that the product they are purchasing meets their highly individualized accessibility needs.  This 
lack of information will, in turn, generate more complaints by persons with disabilities who have 
purchased the "wrong" product, e.g. a product that is not accessible to them. 

4.   TIA proposes an alternative definition of "accessible" that 
creates incentives for manufacturers to provide information 
about accessibility features to consumers, and recognizes that 
such features will be incorporated, to the extent "readily achievable," 
across product lines and families.
          As an alternative to the FCC's proposal to adopt the Access Board's definition of 
accessible, TIA proposes a definition that is more consistent with the scope and purpose of 
Section 255.  TIA's proposal recognizes and is consistent with the reality that manufacturers must 
have discretion to incorporate access features across product lines, and be somewhat insulated 
from complaints for exercising this unavoidable discretion, because every product cannot be 
accessible to every person.

          TIA's proposed definition would provide as follows:

 "Accessible:" Telecommunications equipment and CPE is 
"accessible" to the extent that it enhances the ability of a person 
with a disability to use the telecommunications equipment or CPE 
by incorporating one or more of the following features or 
functionalities, to the extent readily achievable:
Input, control, and mechanical functions.  Input, control, and 
mechanical functions shall be locatable, identifiable, and operable in 
accordance with each of the following, assessed independently:
          (a) OPERABLE WITHOUT VISION.  Provide at least one mode that does not 
     
          require user vision.
          
          (b) OPERABLE WITH LOW VISION AND LIMITED OR NO HEARING.  
     
          Provide at least one mode that permits operation by users with visual acuity 
     
          between 20/70 and 20/200, without relying on audio output.
          
          (c) OPERABLE WITH LITTLE OR NO COLOR PERCEPTION.  Provide at 
     
          least one mode that does not require user color perception.

          (d) OPERABLE WITHOUT HEARING.  Provide at least one mode that does not 
               require user auditory perception.

          (e) OPERABLE WITH LIMITED MANUAL DEXTERITY.  Provide at least one 
          mode that does not require user fine motor control or simultaneous actions.

          (f) OPERABLE WITH LIMITED REACH AND STRENGTH.  Provide at least 
     
           one mode that is operable with user limited reach and strength.

          (g) OPERABLE WITHOUT TIME-DEPENDENT CONTROLS.  Provide at least 
          one mode that does not require a response time.  Alternatively, a response time 
     
          may be required if it can be by-passed or adjusted by the user over a wide range.
          
          (h) OPERABLE WITHOUT SPEECH. Provide at least one mode that does not 
     
          require user speech.
          
          (i) OPERABLE WITH LIMITED COGNITIVE SKILLS.  Provide at least one 
     
          mode that minimizes the cognitive, memory, language, and learning skills
          required of the user. 

Output, display, and control functions.  All information 
necessary to operate and use the product, including but not limited 
to, text, static or dynamic images, icons, labels, sounds, or 
incidental operating cues, shall comply with each of the following, 
assessed independently:
          (a) AVAILABILITY OF VISUAL INFORMATION.  Provide visual information 
     
          through at least one mode in auditory form.

          (b) AVAILABILITY OF VISUAL INFORMATION FOR LOW VISION 
          
          USERS.  Provide visual information through at least one mode to users with 
     
          visual acuity between 20/70 and 20/200 without relying on audio.
     
          (c) ACCESS TO MOVING TEXT.  Provide moving text in at least one static 
     
          presentation mode at the option of the user.

          (d) AVAILABILITY OF AUDITORY INFORMATION. Provide auditory 
     
          information through at least one mode in visual form and, where appropriate, in 
     
          tactile form.

          (e) AVAILABILITY OF AUDITORY INFORMATION FOR PEOPLE WHO 
     
          ARE HARD OF HEARING.  Provide audio or acoustic information, including 
     
          any auditory feedback tones that are important for the use of the product, through 
     
          at least one mode in enhanced auditory fashion (i.e., increased amplification, 
     
          increased signal-to-noise ratio, or combination).  For transmitted voice signals, 
     
          provide a gain adjustable up to a minimum of 20 dB.  For incremental volume 
     
          control, provide at least one intermediate step of 12 dB of gain.  

          (f) PREVENTION OF VISUALLY-INDUCED SEIZURES.  Visual displays and 
     
          indicators shall minimize visual flicker that might induce seizures in people with 
     
          photosensitive epilepsy.

          (g) AVAILABILITY OF AUDIO CUTOFF.  Where a product delivers audio 
     
          output through an external speaker, provide an industry standard connector for 
     
          headphones or personal listening devices (e.g. phone-like handset or earcup) 
     
          which cuts off the speaker(s) when used.

          (h) NON-INTERFERENCE WITH HEARING TECHNOLOGIES.  Reduce 
     
          interference to hearing technologies (including hearing aids, cochlear implants, 
     
          and assistive listening devices) to the lowest possible level that allows a user to 
     
          utilize the product.
     
          (i) HEARING AID COUPLING. Where a product delivers output by an audio 
     
          transducer which is normally held up to the ear, provide a means for effective 
     
          wireless coupling to hearing aids. 
Under TIA's proposal, accessible is defined in terms of features that perform accessibility-
enhanced functions, utilizing the criteria developed by the Access Board. 
          Although TIA's proposal, like the FCC's NPRM, incorporates the Access Board's 
guidelines for accessibility, TIA's proposal uses the guidelines in a different way.  TIA's proposal 
uses the guidelines to identify those product features that enhance the accessibility of products
for 
persons with disabilities.  TIA believes that its approach has several advantages.
          First, TIA's proposal, unlike the FCC's, encourages manufacturers to provide 
specific, technical information about the accessibility features included in products.  Under the 
FCC's proposal, manufacturers cannot represent that a product is accessible even if it complies 
with Section 255 because it is impossible to make any product accessible to everyone.  A 
statement that a product is accessible, to the extent "readily achievable," provides no useful 
information to a person with a disability.  
          In contrast, under TIA's proposal, manufacturers are not constrained from making 
representations concerning how many decibels of audio gain a product can produce, the font size 
and typeface used on a display, the size of buttons on a keypad, or whether the product has a 
voice chip or a vibrating feature.  In fact, under TIA's definition, manufacturers will be motivated 
to include information on the various features that "enhance" the ability of persons with 
disabilities to use their products.  These are features that enhance the accessibility of products 
which can be described in specific technical terms useful to persons with disabilities.  Generally, 
persons with disabilities are well informed about the performance criteria that a product must 
meet in order to be accessible to their unique functional limitations.  TIA believes this specific 
information will likely be helpful in their purchasing.  The FCC's proposed regime, while not 
precluding manufacturers from providing information about product features that enhance 
accessibility, fails to create any incentives for the provision of such information.
          Second, TIA's proposal is consistent with both the limitations of the "readily 
achievable" standard and the practical reality that every product cannot be accessible to
everyone.  
Under TIA's definition, each item on the Access Board's checklist would not be mandatory.  
Rather, a manufacturer would be required to do what was "readily achievable," a determination 
based upon, among other "readily achievable" criteria, the cumulative cost of accessibility 
features, as defined by the Access Board's guidelines, included in a product.  In so doing, TIA's 
definition of accessible would apply the "readily achievable" standard in the same way as that
term 
has been applied and defined in the ADA context.   Moreover, TIA's definition is consistent with 
the reality that it is not technically feasible, and therefore not "readily achievable," to have a 
universally accessible product.  Instead, TIA's definition would recognize that manufacturers 
must exercise discretion in incorporating accessibility features across product lines.  In addition, 
this approach would provide an incentive for manufacturers to differentiate products so as to 
provide truly meaningful access for different disabilities, rather than a very superficial level of 
access  in virtually every product.
          In this respect, TIA's approach is consistent with a similar product defense, which 
would provide a manufacturer a safe harbor from complaints as long as the manufacturer made 
another product with comparable functions, features, and price that was accessible to the 
complainant.  Furthermore, by ensuring that persons with disabilities and other consumers have 
the information to determine whether a product is accessible to them, TIA's approach would 
eliminate complaints based on lack of knowledge about available products.   In these two ways, 
TIA's proposed definition of accessibility would reduce the amount of manufacturer resources 
that are diverted to demonstrating compliance, while at the same time, encouraging increased 
accessibility.

C.

TIA Supports the FCC's Approach to The Definition Of "Compatibility" Yet 
Is Concerned that the Definition Will Not Promote  Innovation and Places 
Too Great a Burden on Manufacturers to Achieve Compatibility.
          Where accessibility is not "readily achievable," manufacturers have an obligation 
under Section 255 to ensure that their telecommunications equipment and CPE are "compatible 
with existing peripheral devices or specialized customer premises equipment commonly used by 
persons with disabilities . . . if readily achievable."  Section 255 clearly contemplates that 
specialized CPE ("SCPE") will continue to play a legitimate role in providing access to 
telecommunications for some persons with some disabilities.  This continued role for SCPE
could 
only be based on Congress' implicit recognition that it will not be "readily achievable," and 
therefore not required under Section 255, for manufacturers to provide access for some severe or 
unique functional limitations.          
          In the NPRM,   the FCC suggests there is no need to distinguish between
SPCE and 
peripheral devices; the FCC takes the position both should be defined as equipment and devices 
"commonly used to achieve access."   The FCC further explains that "equipment used in direct 
conjunction with CPE, such as amplifiers for persons with hearing disabilities, or screen readers 
for persons with visual disabilities, would be considered either peripheral devices or specialized 
CPE[,] [while] . . . devices such as hearing aids, which have a broad application outside the 
telecommunications context, may be used in conjunction with peripheral equipment or
specialized 
CPE, but are not themselves considered specialized CPE or peripheral devices under the 1996 
Act." 
          TIA supports the FCC's approach to defining specialized CPE and peripheral 
devices.  TIA believes it is useful to clearly delimit the difference between CPE and specialized 
CPE, so that manufacturers will know their responsibilities under the Act.  TIA agrees with the 
FCC that SPCE will continue to play an important role in providing access to
telecommunications 
for some persons with some disabilities.
          TIA believes, however, that compatibility between equipment in place is properly 
under the jurisdiction of the appropriate industry standard board rather than extensive regulation 
by the FCC.  The FCC's proposed definition of compatibility, taken from the Access Board's 
guidelines,  will hinder innovation.  Yet, despite the virtually universal recognition that 
technological innovation is needed in order to increase accessibility and compatibility for persons 
with disabilities, the FCC, like the Access Board, is heavily weighting its definition of 
compatibility towards outdated TTY technology.   Two of the five components of the FCC's 
proposed definition of compatibility relate to TTY compatibility.   
          The FCC "recognize[s] that . . . compatibility criteria need to be broadened to 
account for likely technological advances in both telecommunications and accessibility 
products."   TIA agrees.  Promoting technological innovation requires that the FCC not require 
manufacturers to expend limited resources available for enhancing accessibility to finding a way
to 
make digital networks TTY compatible.  To date, this compatibility has proven extremely
difficult 
for digital wireless telephones.  
          As the FCC has recognized in other proceedings, digital technology is the wave of 
the future and will benefit all of the public.  Specifically, digital technology has permitted 
enhanced access to telecommunications by persons with disabilities.  Both alphanumeric paging 
(accessible to the hearing impaired) and the new narrowband PCS voice paging (accessible to the 
sight-impaired) utilize digital technology.
          To promote new digital technology, the FCC has established a timetable for 
phasing in digital television broadcasting.   Ultimately, the FCC's rulemaking will require 
virtually every household in America to purchase a new television set, because existing sets will 
be incompatible with the new digital technology.
          For the same reason, the FCC should not perpetuate TTY technology by requiring 
compatibility.  Rather, the FCC should consider phasing out the compatibility obligation for such 
outdated technologies.  In fact, the FCC currently recognizes the need for innovation beyond the 
Baudot format used in TTYs.  In its rules related to Telecommunications Relay Services, the
FCC 
requires such services to be capable of communicating with both ASCII and Baudot formats.   In 
order to promote the technology that will ultimately increase access, the FCC should not simply 
look at which kinds of SCPE are subsidized by state and local governments,  but should create 
incentives, through its compatibility criteria, for the use of SCPE that is consistent with new 
telecommunications technologies.
          TIA also is concerned that, under the NPRM, manufacturers of 
telecommunications equipment are required to bear too much responsibility for compatibility.  
Under the NPRM, the entire burden for achieving compatibility is placed on the manufacturer.  
TIA believes it is unrealistic to expect manufacturers to create compatible products on their own; 
the burden for achieving compatibility should be shared with manufacturers of SCPE and 
peripheral devices. 

D.   The FCC Should Adapt The Definition Of "Readily Achievable" To The 
Telecommunications Context.
           "Readily achievable" is defined under Section 255 as "easily accomplishable and 
able to be carried out without much difficulty or expense."   TIA whole-heartedly supports the 
FCC's tentative decision to adapt the definition of "readily achievable," incorporated by reference 
from the ADA, to the unique context of telecommunications.   Under the FCC's proposed 
approach, "the ADA factors should guide, but not constrain . . . development of factors that more 
meaningfully reflect pertinent issues related to telecommunications equipment and services."   
          In the NPRM, the FCC proposes a three-part framework for determining whether
a 
particular telecommunications accessibility feature is "readily achievable":

? Is the feature feasible?
? What would the expense be of providing the feature?
? Given its expense, is the feature practical? 
In the NPRM, the FCC requested comment on these proposed factors, especially their "practical 
implications," and "effect on the development and marketing of accessibility features, on the
pace 
of innovation, and on the administrative costs associated with implementation and enforcement 
measures." 
          TIA agrees with many of the concepts that underlie the FCC's proposed three-part 
approach.  TIA wishes to highlight several points:  first, TIA strongly supports consideration of 
technical feasibility in the "readily achievable" analysis; second, TIA believes that the
cumulative 
costs of access features should be part of the consideration of the expense of providing 
accessibility; third, TIA endorses the FCC's consideration of the practicality of accessibility 
features; and finally, TIA proposes that what is "readily achievable" be limited by one further 
concept: fundamental alteration.

1.   Technical feasibility should be considered as part of the "readily 
achievable" analysis.
          TIA supports the FCC's recognition that the practical application of achievability 
in the context of telecommunications includes the concept of technical feasibility.   TIA 
commends the FCC for recognizing that technical feasibility is a distinct, express factor used in 
determining what is "readily achievable."   As a practical example, one TIA member discovered 
the impact of the limits of technical feasibility in the context of the technical specifications for 
volume control.  While the FCC technical specifications currently require a volume control with
a 
minimum gain of 12 dB,  the Access Board's Guidelines require manufacturers to provide 
adjustable gain up to a minimum of 20 dB.  Evaluation of the same 3 models of telephones that 
were used by the consultants referenced in the Access Board's Guidelines revealed that the 
phones could not accommodate both the 20 dB standard and the other telephone performance 
standards required by the FCC. 
          TIA further agrees with the FCC's tentative conclusion that retrofitting of 
products that have already been introduced to market without certain accessibility features should 
not be required.  As the Access Board and the TAAC recognized, the requirement that the 
technical feasibility of access features be reassessed every time a product is upgraded in a
manner 
that substantially affects its functionality will ensure that accessibility features can be
incorporated 
into products that remain popular in the marketplace for long periods of time.   TIA agrees with 
the FCC's tentative conclusion that technical feasibility should not be reassessed after a product
is 
introduced to market.   The FCC's proposed rules should make it clear that because Section 255 
imposes compliance obligations on the design, development, and fabrication of equipment and 
CPE, technical feasibility must be assessed at the time the design, development and fabrication 
process for a new product or a substantial upgrade for an existing product begins.  Retrofitting 
products that have already begun the design process should not be required under any 
circumstances.   Any requirement to retrofit would waste limited compliance resources, delay 
product time to market, and slow the pace of innovation in a rapidly changing marketplace where 
products quickly become obsolete.  Any enforcement strategies utilized by the FCC should be 
proactive rather than punitive, in order best to promote the goal of increasing the availability of 
accessible equipment and CPE in the marketplace.

2.   The consideration of "expense" as part of the "readily achievable" 
analysis should include cumulative costs of features that enhance 
accessibility, as well as opportunity costs.
          TIA agrees that consideration of the expense of providing accessibility features is
a 
necessary part of the "readily achievable" analysis.  TIA urges the FCC to include consideration
of 
cumulative costs of accessibility features in that analysis.  There is support for this approach in
the 
ADA:  in connection with the "readily achievable" analysis with respect to barrier removals, the 
Department of Justice has stated that "it is appropriate to consider the cost of other barrier 
removal actions as one factor in determining whether a measure is readily achievable."  
          By contrast, the FCC's proposal does not explicitly account for the costs of 
including other accessibility features in the "readily achievable" analysis.  By adopting the
Access 
Board's definition, which appears to require an independent "readily achievable" evaluation for 
each accessibility feature, the FCC is downplaying the cumulative costs of accessibility features.  
This approach is unrealistic.
          Additionally, TIA agrees with the FCC that it is appropriate to consider several 
other expenses in the "readily achievable" analysis.  For example, there are significant
opportunity 
costs associated with increasing accessibility features.  Time and money spent developing 
accessibility features are necessarily diverted from other innovation.  Moreover, accessibility 
features affect battery life, the size of a product and its memory.  Finally, development of 
accessibility features is costly in terms of development time, which could delay introduction of 
new products into the market. 

3.   TIA supports consideration of "practicality" in the "readily 
achievable" analysis.
          As the third prong of its "readily achievable" analysis, the FCC proposes 
consideration of the practicality of incorporating a particular accessibility feature.  The 
practicality consideration would include factors such as:  (1) the resources available to meet the 
expenses associated with accessibility; (2) the potential market for the product or service; (3) the 
degree to which the provide would recover the cost of the accessibility feature; and (4) issues 
regarding product life cycles.  TIA supports the consideration of practicality as part of the
"readily 
achievable" determination.  TIA believes the goals of accessibility cannot be divorced
completely 
from practical realities in the marketplace; thus, practical considerations are appropriate.  As TIA 
has noted, however, TIA disagrees that cost recovery is an appropriate consideration. 

4.   The concept of "fundamental alteration," used in the ADA, should 
be modified to the telecommunications context and considered to 
insure that equipment and CPE remain consistent with the 
fundamental characteristics of functionality and price required 
by the market segment that the products are designed to serve.
          TIA asks the FCC to recognize that what is "readily achievable" is further limited 
by the concept of fundamental alteration, taken from the ADA.  TIA proposes that Section 255 
not be applied such that fundamental characteristics of equipment and CPE, which include 
functionality and price, are required to be changed by accessibility features. 
          In the preamble to the ADA regulations, DOJ determined that fundamental 
alterations were not required by the "readily achievable" definition.  DOJ reached this conclusion 
by drawing a comparison to the "undue burden" standard, which defines the scope of a public 
accommodation's duty to provide "auxiliary aids and services" such as sign language interpreters, 
text telephones, and assistive listening devices.  The undue burden and "readily achievable"  
determinations depend upon the same factors; however, the undue burden standard requires a 
higher level of effort to achieve compliance than does the "readily achievable" definition.   Since 
the undue burden standard excuses actions that would fundamentally modify goods and services, 
DOJ concluded that the "readily achievable" definition would excuse such actions as well, even 
though this is not specifically stated in the regulations.   
          The Access Board, in its guidelines, recognized that the concept of fundamental 
alteration was useful and appropriate in determining whether accessibility is "readily
achievable."  
The Access Board acknowledged that under the "readily achievable" standard, fundamental 
alteration of products to provide access is not required.   Although the FCC's proposal alludes to 
the fundamental alteration concept,  the FCC does not expressly recognize this factor from the 
ADA.  TIA believes that fundamental alteration should be expressly recognized because it will 
play a critical role in determining what is "readily achievable" for telecommunications.
          In TIA's view, the concept of fundamental alteration should be applied in the 
telecommunications context to identify the fundamental characteristics of a product that it is not 
"readily achievable" to change, including core features and price desired by the target market.  
TIA recognizes that expense is one of the statutory elements of the "readily achievable"
definition.  
In TIA's view, however, the incremental cost of incorporating accessibility features into a
product 
will not be useful unless that cost is placed in context so that its ready achievability can be 
assessed.  
          TIA's proposal is grounded upon the practical reality that telecommunications 
equipment and CPE are not designed, developed or fabricated in the abstract, but for a specific 
market segment that wants certain core features and is willing to purchase the product as long as 
the price falls within a very narrow range.  Just as the inclusion of large buttons on the smallest 
wireless handset would fundamentally alter the nature of the product, which depends upon its 
compactness and portability for its popularity, so too, the inclusion of accessibility features that 
increase the price of the product beyond the price that the target market is willing to pay would 
fundamentally alter the nature of that product by making it unsuitable for its target market.  For 
the same reason, manufacturers should not be required to eliminate core features that the target 
market wants in order to incorporate accessibility features, because the omission of those core 
features would similarly render the product unsuitable for its target market.
          TIA's proposal would not relieve manufacturers of all obligations to include 
accessibility features into their products.  Manufacturers will often be able to incorporate features 
that enhance accessibility without increasing the product price beyond what the target market
will 
bear.  Manufacturers should have the discretion to choose which access features to incorporate 
across a line of products with comparable features and price.  This approach is most likely to 
promote increased access.  
          For example, suppose that a manufacturer is designing a cellular handset for the 
market segment that wants a wireless phone that also functions as a vibrating pager with caller
ID.  
Market research demonstrates that the target market segment for this product consists primarily 
of factory workers in noisy environments.  As part of its evaluation of accessibility features, the 
manufacturer considers enhanced audio for the telephony function and a zoom feature which 
permits increased font size on the caller ID visual display for the sight impaired.  If the 
manufacturer includes the zoom feature, the name of the caller comes up on the display first, and 
then after a button is pressed, the number called from appears.  The manufacturer learns, 
however, that most of the target market, which works in a potentially dangerous factory 
environment, would not want the handset/pager if it takes an additional 10 seconds to scroll 
through a second screen of large type because of the zoom feature on the caller ID function.  
          Under these circumstances, the zoom feature should not be considered "readily 
achievable" for the product because it would make the product unsuitable for the market that it 
was designed to meet.  The manufacturer should be permitted, however, to incorporate the zoom 
feature into a smaller subset of the handset/pager product line that is targeted at another market 
segment that would not be deterred from buying the product because of this feature.  
          
E.   Manufacturer. 
1.   Responsible Entity.
          In the NPRM, the FCC proposes to evaluate whether it is "readily achievable" to 
incorporate a particular telecommunications accessibility feature into telecommunications using 
three factors: (1) feasibility; (2) expense and (3) practicality.   With regard to the element of 
practicality, the FCC properly notes that the "resources" of a manufacturer should be taken into 
consideration.   TIA agrees with the FCC's tentative view that the "resources reasonably 
available" to achieve accessibility should be taken into account and that this should be done on a 
case by case basis.   TIA disagrees, however, that the FCC should use the concept of "legal 
responsibility" combined with two rebuttable presumptions to make the judgment.  The 
presumption of the resources of a parent being available to a subsidiary, affiliate, or division will 
unnecessarily increase the complexity of the complaint process since many complaints will get 
bogged down in "rebutting" the two FCC proposed presumptions.
          Large and small manufacturing entities utilize a variety of organizational
structures 
to manufacture products.  Some companies choose to have separate subsidiaries manufacture 
particular products or families of products while others choose to set up different divisions
within 
a single corporate structure.  Decisions on how to structure a manufacturing organization are 
costly and complex decisions made without regard to regulatory compliance.  The parent of a 
subsidiary or division may ultimately be "legally responsible" for a product.  However, all 
decisions and responsibility (including financing, product support, marketing support and similar 
matters) relative to whether a product is manufactured, or if manufactured, with what features 
and functionalities will be included in the product, will often be made by a subsidiary or affiliate.
          Thus, while TIA has no objection to making case by case determinations on 
whether the resources of a parent should be included in evaluating whether it was "readily 
achievable" to incorporate a given accessibility function, it does not believe that there should be
a 
presumption in that regard.  In the alternative, the FCC should provide manufacturers and others 
with specific guidelines on what factors will be used in evaluating whether the resources of a 
parent or affiliate will be considered in making the decision. 

2.

"Final Assembler."
          TIA agrees that the definition of final assembler includes all equipment marketed
in 
U.S., regardless of national origin.  For multiple source equipment, TIA supports the final 
assembler approach, i.e,. the entity that introduces the product into the market for sale in its final 
form.  In its December, 1997 proposal to the Commission, TIA proposed to define a 
manufacturer of telecommunications equipment or CPE as:

The division, business unit, subsidiary, or other business entity that 
is responsible for introducing, directly or through distribution 
agreements, related telecommunications equipment or CPE into the 
United States marketplace in its final form or has direct control 
over the design and development, fabrication, and costs and 
expenses associated with such products.
          However, in those instances where an entity brands and markets the equipment of 
an unrelated manufacturer as its own, the consumer has no way of knowing the identity of the 
actual assembler of the product should the consumer wish to contact the manufacturer or file a 
complaint.  In those instances, it would be easiest if potential complainants and the Commission 
can contact the entity whose brand name appears on the product.  The responsibility for 
responding to a Section 255 contact or any liability resulting from noncompliance can be 
apportioned by the firms contractually prior to introducing the product into the market.  This 
approach will permit consumers to continue to have a single point of contact for any piece of 
equipment in the market.

IV.

THE FCC SHOULD INTERPRET SECTION 255 IN A MANNER THAT IS 
CONSISTENT WITH THE LIMITATIONS ON THE FCC'S AUTHORITY 
REFLECTED IN THE COMMUNICATIONS ACT.
A.   Section 255 Applies Only to Providers of Telecommunications Services and 
Not Information Services.
          In the NPRM, the Commission correctly observes that compliance with Section 
255(c) is required only by telecommunications providers supplying "telecommunications 
services."   Providers supplying non-telecommunications services (i.e., services not meeting the 
statutory definition) are not subject to Section 255.  Indeed, the Commission's interpretation is 
consistent with the language of Section 255(c), which refers to a provider of
"telecommunications 
service." 
          It would be inconsistent with both the legislative history and language of the 
Telecommunications Act of 1996 to apply Section 255(c) to providers of
non-telecommunications 
services, such as providers of cable services or the private mobile radio service ("PMRS").   
First, in Section 255, Congress relied on well-defined terminology to delimit the section's 
coverage.   Thus, telecommunications services are specifically covered, while information 
services are not.  
          Additionally, Section 255, which is located in Title II of the Act which applies to 
common carriers, was not intended to apply to providers of non-telecommunications services or a 
non-common carrier service.  Had Congress intended to apply Section 255 to both common 
carriers and non-common carriers, it would have placed the language of current Section 255 in 
Title I of the Act,  i.e., "General Provisions."  Thus, by including Section 255 in Title II,
Congress 
decided to limit its access requirements to common carriers and providers of telecommunications 
services.  
          Consistent with this interpretation of the statutory language, TIA also supports the 
Commission's initial conclusion that "`[i]nformation services' are excluded from regulation"
under 
Section 255.   Indeed, a conclusion that information services are covered by Section 255 would 
directly contradict the conclusions recently reached by the Commission in its report to Congress 
concerning Universal Service.   In this Report, the Commission addressed "head-on" the issue of 
whether information services were a type of telecommunications service, as defined under the 
Telecommunications Act of 1996.  In the Commission's words:

After careful consideration of the statutory language and its 
legislative history, we affirm our prior findings that the categories 
of "telecommunications services" and "information service" in the 
1996 Act are mutually exclusive. 
Further, the Commission concluded that subjecting information services to Title II constraints, 
which are reserved for telecommunications carriers providing telecommunications services,
would 
be detrimental to the information service industry:

We note that our interpretation of "telecommunications services" 
and "information services" as distinct categories is also supported 
by important policy considerations.  An approach in which a broad 
range of information service providers are simultaneously classed as 
telecommunications carriers, and thus presumptively subject 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.   
          An interpretation that "information services" are covered by Section 255 would 
contradict the Commission's conclusion in the Universal Service Report.  Such an interpretation 
would also subject information services to an obligation under Title II - a result the Commission 
explicitly sought to avoid.  Further, subjecting information services to Section 255 would place
in 
doubt the Commission's conclusions in other proceedings with regard to the regulatory
distinction 
between information and telecommunications services.   The Commission should endeavor to 
remain consistent in its interpretation of the terms "telecommunications services" and 
"information services."
          Regardless of whether Congress had "broad objectives" for Section 255 or not, the 
language it used in setting forth those objectives clearly indicates that its scope is limited to 
"telecommunications services."   If Congress wanted information services to be covered, it 
would have said so explicitly.  Instead, it only used the term "telecommunications services," a 
term it has defined separately from "information services."

B.   Equipment Must Comply With Section 255 Only to the Extent It 
is Being Used In Connection with Telecommunications Services.
          TIA agrees with the Commission that it is important to delineate precisely what 
kinds of telecommunications equipment and CPE are subject to the requirements of Section 255.  
It is imperative that clear distinctions are made so that manufacturers know their obligations.  
Accordingly, TIA supports the Commission's conclusion that equipment manufactured for 
services that "[do] not appear to fall within the scope of Section 255" (i.e., non-
telecommunications services or non-common carrier services) does not need to be manufactured 
in accordance with Section 255(c). 
          TIA notes that the term "telecommunications equipment" is defined by Congress 
as equipment that is used for telecommunications services:

The term `telecommunications equipment' means equipment, other 
than customer premises equipment, used by a carrier to provide 
telecommunications services, and includes software integral to 
such equipment (including upgrades).   
Further, in TIA's view, the Commission correctly refers to CPE with respect to 
"telecommunications services" as well.   As a result, if the subject equipment is not used for 
telecommunications services or common carrier services, then it is not "telecommunications 
equipment" or "CPE" and is not subject to the access requirements of Section 255(b).   For 
example, equipment manufactured exclusively for use in connection with PMRS (i.e., a non-
telecommunications service) should not be covered by Section 255(b).  While TIA's members are 
prepared to produce its telecommunications equipment and CPE in compliance with the 
Telecommunications Act of 1996 , it agrees with the Commission that equipment manufactured 
for non-telecommunications services does not need to be produced in conformity with Section 
255.

C.

The Intent of the Manufacturer Must Be Considered in Determining 
Whether to Apply Section 255(c) to "Multi-Use" Equipment or Equipment 
That is Used Incidentally for a Telecommunications Service.
           As to equipment that is capable of performing both telecommunications services 
and non-telecommunications services (i.e., multi-use equipment), the Commission proposes to 
apply Section 255 "only to the extent the equipment serves a telecommunications function."   
Related to this proposal, the Commission seeks comment on the obligation of a manufacturer 
which produces equipment intended for a non-telecommunications service application, but finds 
that the equipment is being used in connection with a telecommunications service subject to 
Section 255.   For example, the Commission notes, "unlicensed devices regulated under Part 15 
of the Commission's Rules may be used as part of a telecommunications service, as where a 
wireless local area network is interconnected with the pubic switched network and offered to 
subscribers for a fee." 
          TIA believes that the appropriate test for deciding whether multi-use equipment, 
such as the unlicensed Part 15 device cited by the Commission, must comply with Section 255 
rests with the intent of the manufacturer in producing the equipment.  TIA does not disagree with 
the Commission that if an equipment manufacturer produces a device intended to be used with 
both telecommunications and non-telecommunications services, the device is subject to Section 
255 to the extent it is used to provide telecommunications services. 
          The Commission must recognize, however, that it is theoretically possible for
most 
equipment that is designed for (and is expected to be used solely with) a private network also to 
be used to provide a telecommunications service.  Accordingly, if the Commission applies a 
"possibility" standard (i.e., if it is "possible" to use a particular device with a telecommunications 
service then it must be subject to Section 255), virtually all equipment that transmits and receives 
data would be subject to compliance with Section 255, regardless of whether the device was 
originally manufactured for use with a non-telecommunications service or not.
          For example, a telephone not registered under Part 68 of the Commission's Rules 
can be legally connected to a private telephone network, such as an intercom system or a 
retirement community local area telephone network.  So long as neither the telephone itself nor 
the network is being used in connection with a telecommunications service, Section 255 would 
not apply.  If, on the other hand, the telephone were even capable of being removed from the 
private network and used in connection with a telecommunications service, it would be under the 
"possibility" test fully subject to Section 255.
          The manufacturer of such a telephone, and analogous devices, is faced with a 
dilemma.  It must either produce the telephone, intended solely for connection to a private 
network, with the appropriate Section 255 features and compete against other comparable 
telephones in the marketplace, which are not subject to Section 255; or it must face the
possibility 
that an action over which it has no control will require it to defend itself against a complaint 
alleging a violation of Section 255 by a user who, for example, interconnects an unregistered 
intercom telephone to the PSTN and uses it in connection with a telecommunications service.
          This choice for manufacturers is not indicated in the legislative history underlying 
Section 255.  Indeed, by its own terms the statute provides that telecommunications equipment 
and customer premises equipment need be designed and developed for compliance with Section 
255 only if such compliance is "readily achievable."  TIA believes that designing and developing 
devices to assure compliance under all imaginable circumstances, including misapplication and 
unintended incidental use, does not constitute "readily achievable" within the meaning of Section 
255.  As a policy matter, the difficulty and expense of conceiving all of these potential uses, as 
well as the expense associated with ensuring compliance of all equipment, including equipment
for 
non-telecommunications services and telecommunications services, would be excessive and 
beyond the "readily achievable" standard. 
          TIA believes that a device manufactured with the primary intent for use with a 
non-telecommunications service should not be subject to Section 255, even if there is a 
conceivable use of the equipment with telecommunications services.  It would be difficult, if not 
impossible, to expect every manufacturer to make a priori determinations regarding the potential 
for misapplication of devices intended solely for use in a private or non-telecommunications 
service environment.  While TIA fully supports the purposes of Section 255, it strongly believes 
that it and other manufacturers should not be held responsible for unlawful or unintended 
applications of their products.
          The Commission should not be concerned that equipment used with non-
telecommunications services will not be accessible to persons with disabilities.  While Section
255 
of the Act may not apply to that equipment, the ADA places an affirmative obligation on 
employers to ensure that an alternative arrangement is made so that persons with disabilities are 
able to perform the essential functions of their positions. 

V.   IMPLEMENTATION PROCESS.       
          TIA agrees that the Commission's overarching goal for Section 255 
implementation should be a process which ensures that more accessible telecommunications 
equipment and CPE is introduced into the marketplace.  TIA also agrees that complaints should 
(1) be resolved with a minimum of government interference; (2) be responsive to those who are 
aggrieved by a lack of accessibility; and (3) efficiently allocate resources to avoid undue burdens 
being placed on the Commission, manufacturers and persons with disabilities.   Review of the 
proposals described in the NPRM, however, does not demonstrate that the Commission will 
accomplish its goal.  Specifically, the proposed "fast track" complaint process does not provide 
consumers or manufacturers with sufficient opportunity or time to engage in meaningful dialogue 
which will reduce the number of informal or formal complaints filed under Section 255.  The fast 
track process puts consumers and manufacturers in a defensive, litigious frame of mind from the 
outset which is neither conducive to the resolution of differences between consumers and 
manufacturers nor productive with regard to enhancing the overall accessibility of 
telecommunications and CPE.    

A.   Fast Track Process. 
          The Commission's fast track complaint process appears to have been modeled
after 
an informal dispute resolution process ("DRP") process developed by TIA and discussed with the 
Staff of the Commission in December, 1997.   As will be described in detail below, the TIA DRP 
proposal is superior to the fast track process because it requires the parties to engage in a 
mandatory 60 day dispute resolution process before the FCC will even consider accepting a 
Section 255 informal or formal complaint.  The 60 day process is sufficiently long to encourage 
dialogue between a person with a disability and a manufacturer which will lead to a better and 
more fully developed understanding of the nature of the problem a person with a disability has in 
using a given product.   The TIA proposal is likely to lead to resolution of a large number of 
non-frivolous, perceived violations of Section 255 without FCC intervention. 
          Under the Commission's fast track complaint process the Commission proposes 
that:  (1) manufacturers be required to provide the FCC with a point of contact for inquiries and 
complaints relative to Section 255 issues; (2) potential complainants be "encouraged" but not 
"required" to first discuss an alleged lack of accessibility with a manufacturer; (3) standing need 
not be established to file a Section 255 complaint (fast track or otherwise); (4) no specific format 
be used for filing a Section 255 complaint; (5) complaints be distributed to manufacturers within
1 
day of receipt; (6) manufacturers be required to respond to fast track complaints within 5
business 
days of the date the FCC forwards the complaint (with extensions of time contemplated to the 
extent reasonable efforts are being made to resolve the dispute); (7) outside sources be used by 
the Commission in rendering a decision on a fast track complaint; and, (8) there be some 
mechanism for the parties to a fast track complaint to switch out of the fast track process before it 
is completed and to proceed to the Commission's informal or formal complaint resolution
process.  
The underlying concept of trying to dispose of complaints in a less formal process before more 
formal procedures are used is a sound framework.  However, the fast track process needs to be 
eliminated if the Commission is to be successful in meeting its multiple goals of resolving 
complaints with minimum interference; getting accessible product into the marketplace as
quickly 
as possible; being responsive to persons with disabilities; and conserving the resources of all 
parties involved. 

1.   Encouragement of Informal Dialogue Between Interested Parties.
          In the NPRM the Commission proposes to "encourage" consumers to contact the 
manufacturer directly before filing a complaint under Section 255, noting that this is consistent 
with the TAAC Report.   TIA asserts that the Commission should do more than "encourage" 
members of the public to discuss accessibility problems with manufacturers before they file 
complaints.  The FCC should "require" consumers to discuss accessibility problems with 
manufacturers and allow the parties sufficient time to try and resolve the issues before the FCC 
becomes involved in the dispute resolution process.   This will enhance the possibility that the 
potential complainants and manufacturers can voluntarily resolve the issues in question without 
involving the use of scarce Commission resources.  Indeed, many "complaints" may not be 
complaints at all but rather inquiries consumers make about specific products and accessibility 
features, such as, for example, a consumer needing assistance on how to utilize the "zoom" 
feature  on the visual display of a pager.  Intervention by the Commission in matters which are 
part of the normal process of manufacturers providing customer service is wasteful of 
Commission resources.  Moreover, FCC involvement in such "inquiries" needlessly interferes
with 
manufacturers' provision of meaningful customer services to persons with disabilities, just like 
other customers.
          With regard to issues which are legitimately perceived complaints, the 
Commission's proposal merely to "encourage" rather than "require" the parties to discuss 
accessibility disputes before bringing the matter to its attention is counterproductive for two 
reasons.  First, Commission involvement in the process will have a tendency to affect the attitude 
of the parties involved.  Knowing that the FCC is directly involved in the process will cause 
manufacturers to be more defensive in responding to consumers and to think more about
litigation 
strategy rather than resolving legitimate accessibility disputes.  Knowing that the FCC is directly 
involved in the process will cause consumers to be less responsive to the legitimate explanations 
of  manufacturers since they may believe the Commission's role is to be an advocate for their 
interests.
          Second, TIA is not convinced that Commission involvement in the fast track 
process is conducive to the establishment of the type of dialogue between a consumer and a 
manufacturer that is necessary if the parties are seriously interested in trying to find solutions to 
asserted accessibility problems.  As the Commission notes, many accessibility complaints are
likely 
to be complex issues.   Due to the lack of general accessibility expertise in existence today, it 
may be difficult for the Commission staff to quickly identify the crux of an accessibility problem 
and to precisely articulate the nature of the complaint to a manufacturer.  Notwithstanding the 
acknowledged complexity of issues surrounding Section 255 complaints, a simple example 
demonstrates how Commission involvement in the fast track process may be counterproductive
to 
the quick resolution of Section 255 issues.
          Assume the FCC allows a consumer to submit a fast track complaint before being 
required to discuss the substance of the complaint with the manufacturer in question.  Assume 
further the consumer states that he or she has a hearing disability and alleges that "Manufacturer 
A" does not have a cellular phone which he or she can use.  Based on the Commission's 
commitment to distribute complaints to manufacturers within 1 day of receipt, the complaint as 
stated will be transmitted to the manufacturer.   Under the proposed fast track process the 
manufacturer will be required to respond to the complaint within 5 business days.  But because 5 
business days is too short to fully understand the complaint and/or gather facts relative to the 
complaint, the manufacturer will be forced to answer by stating that it does not have sufficient 
facts on which to respond.  Such an answer will result in the initiation of a more formal
complaint 
at the FCC which could take months to resolve. 
          If, on the other hand, the FCC had required the consumer in question to discuss 
the matter with the manufacturer in the first instance, a dialogue between the manufacturer and 
aggrieved consumer would have ensued.  Through a series of communications which might take 
place over the course of a few weeks, the manufacturer would have been able to ascertain the 
type of hearing loss the consumer has and how significant it is; whether the consumer wears a 
hearing aid and, if so, what kind; where the consumer purchased, or attempted to purchase, the 
product or service.   Based on a dialogue which would have provided answers to those types of 
questions, a manufacturer may have been able to:  (1) identify one of its products which would 
have resolved the problem and/or (2) assist the consumer in finding the product.  The consumer 
and manufacturer may thus have resolved the perceived accessibility problem without resorting
to 
the use of the Commission's resources and processes.  
          To the extent the Commission's view is that more complaints will be similar to the 
example described in the paragraph immediately above, no efficiency will be gained by the 
Commission's involvement at this stage of the dispute resolution process.   In fact, Commission 
involvement in the fast track process will have detrimental effects on the ability of parties to 
resolve accessibility disputes quickly in three respects.  First, in its fast track capacity as 
"intermediary" between a manufacturer and a consumer, the Commission may incorrectly 
communicate the nuances of a complaint and thereby unintentionally undermine the ability of the 
disputants to understand the other's issues.  Second, aside from the accuracy of the information 
transmitted, Commission participation as an intermediary will simply delay the time it takes to 
relay information between a manufacturer and a consumer.  Third, and most importantly, the
FCC 
may not ask all of the questions necessary to elicit the information the manufacturers need in 
order to solve the problem.

2.   Contact Point.
          TIA supports the Commission's proposal to require manufacturers to provide the 
Commission with a point of contact or multiple points of contact for matters relating to 
Section 255.  Having a publicly available list of points of contact will facilitate the ability of the 
Commission and members of the public to reach the appropriate persons within a manufacturer's 
organization who can best handle initial queries regarding accessibility matters in a timely
manner.  
It is appropriate for the Commission to require that each manufacturer provide the name of a 
person or an office which will be primarily responsible for fielding matters related to Section
255.  
In addition to the name or office, it is appropriate for the FCC to require manufacturers to 
provide the point of contact's telephone number, e-mail address, TTY number, fax number, and 
other reasonable information designed to enable the public to easily establish contact with the 
point of contact.
          Manufacturers should have the flexibility to list either a name of an individual or 
the office which will serve as the point of contact for a given company.  The Commission should 
not require a manufacturer to list a specific individual as a point of contact.  A company may
have 
numerous individuals charged with the responsibility of being the point of contact at any given 
time.  This might be due to a manufacturer's preference to "rotate" persons responsible for being 
the point of contact or to accommodate business travel, illness, vacation or other situations in 
which an individual is not able to perform that function for a given period of time.
          Similarly, manufacturers should be free to submit to the FCC more than one point 
of contact.  Large companies with many products subject to Section 255 may find it more
efficient 
to have a separate point of contact for separate products or families of products to ensure that 
queries and/or complaints are distributed to the appropriate personnel within a company as 
quickly as possible.  Other manufacturers may choose to use a single point of contact so they can 
more closely monitor and maintain control over matters related to Section 255.
          The NPRM asks for comment on whether the Commission should require the
point 
of contact to be "in-house" or if it should permit companies to delegate the point of contact 
responsibility to outside agents.   TIA's membership consists of large and small companies with 
a variety of organizational structures and resources at their disposal.  While larger companies are 
likely to have in-house points of contact, smaller companies may choose to use outside agents to 
serve in that capacity.  The resource commitment necessary for each manufacturer to have a point 
of contact is likely to be substantial.  In fact, due to illness, travel, vacation and similar 
occurrences, it will be necessary for most manufacturers to have more than one designated point 
of contact to ensure that inquiries regarding accessibility can be handled during normal business 
hours.  As a result, TIA submits that the FCC should allow manufacturers to delegate the point of 
contact function to outside firms.  
          The NPRM also contemplates that the point of contact might be used for purposes 
other than forwarding complaints filed under Section 255.  Specifically, the Commission notes 
that the point of contact can serve a secondary function as a source of accessibility information
for 
the public.  It asks for comment on "..what additional related data, if any, should we collect that 
would advance this function."   TIA opposes Commission adoption of any rule which would 
require manufacturers to provide the FCC with general accessibility information which would be 
made available to the public.
          Section 255 provides the Commission with limited jurisdiction.  The Commission 
is obligated to develop accessibility guidelines in conjunction with the Access Board and it has 
been given exclusive jurisdiction to handle complaints brought under Section 255.  There is no 
affirmative statutory requirement for the Commission to engage in the collection of information 
regarding a company's products.  Even assuming the Commission has independent general 
authority to require the collection of accessibility information not expressly required by the 
enabling statute, adoption of such a rule would not be good public policy for a variety of reasons. 

First, it is unclear precisely what information the Commission might require manufacturers to 
submit and TIA has concerns that the burden on manufacturers, especially small companies, will 
be substantial.  Second, the collection of such information from the thousands of manufacturers 
and service providers who are subject to Section 255 would be a substantial burden upon the 
Commission's own resources.  Third, any database or other source of accessibility information 
would be very difficult to keep up to date, especially given the speed with which products are 
introduced in the marketplace.  Fourth, the public might incorrectly assume that information 
submitted to, and made available by, the FCC about a company's accessible products (or other 
information relating to accessibility in general), has been approved or sanctioned by the 
Commission as fully compliant with Section 255.  Fifth, TIA envisions that information about a 
company's accessible products will be disseminated rapidly throughout the marketplace without 
need for intrusive and burdensome government regulation.  This will occur as a result of the 
voluntary efforts of individual manufacturers, trade associations and groups representing 
individuals with disabilities.  Thus, there appears to be no legitimate reason for the Commission
to 
engage in an information gathering process whose function is likely to be performed by the
private 
sector as a result of marketplace forces.

3.   Fast Track Deadlines are Too Short.
          The Commission proposes to distribute fast track complaints within 1 day and to 
require manufacturers to respond to fast track complaints within 5 business days of the day they 
are "forwarded" to manufacturers.   These timetables are unrealistic and are counterproductive 
to the voluntary resolution of Section 255 complaints.
          The Commission is clearly in control of how quickly it can distribute complaints 
submitted under the fast track process.  With the addition of considerable personnel resources 
specifically to handle Section 255 complaints in addition to the other complaints it receives on a 
daily basis, it is theoretically possible for the Commission to meet its one day goal.  However, 
TIA believes the Commission's one day goal is wholly unrealistic in large part due to the nature
of 
Section 255 complaints that will be received.  For example, TIA assumes that some complaints 
will be submitted in alternate formats such as Braille or audiotape.  If the Commission is going to 
translate the complaint into a format which is usable to the manufacturer,  a substantial amount 
of time will be devoted to the translation process.  Even assuming the translation process is not a 
major impediment, a one day turn around is unrealistic since TIA assumes the Commission will 
not merely log in the complaint and forward it to the manufacturer in question, but will engage in 
some qualitative analysis and evaluation of the complaint.   Any significant analysis of a 
complaint will take more than one day to complete after the complaint is first received.
          Even more unrealistic than the commitment by the Commission to distribute 
complaints within 1 day, is the Commission's proposed 5 day response period.
          First, the fast track process proposes to require a response to be submitted within 
5 business days of the date the complaint was "forwarded."  Any response period should be based 
on the date of receipt of the complaint, especially given the short time period to respond.  It is not 
unusual for documents released by the Commission to be released towards the end of the day.  
Thus, a fast track complaint may be received by a manufacturer after its business day has ended
or 
the contact point has left the office.  Despite the fact that the Commission could send a fax or an 
e-mail to reduce the time it takes for a complaint to be received by a manufacturer, the 
Commission's proposal does not take into consideration delaying factors which are likely to
occur 
in the normal business environment.  The point of contact may be out of the office sick; the point 
of contact may be traveling on business; or the fax machine or e-mail system of the point of 
contact may be out of service. As an example, a complaint may be forwarded to a point of
contact 
on Day 1 but because he or she is out of the office on Day 1, the point of contact would not 
actually receive the complaint until Day 2.  Assuming the complaint had to be sent to Asia for 
review and was sent to Asia on Day 2, it would not be received in Asia until Day 3 due to the
fact 
that the business day in Asia would have already closed by the commencement of business on
Day 
2 in the U.S.  By that time, the manufacturer would only have 2 days within which to evaluate
the 
complaint and prepare a response to be submitted to the FCC.  In order to get the response back 
to the FCC, similar time frames might be encountered making it virtually impossible to respond
to 
a fast track complaint within 5 business days, let alone adequately study a complaint and respond 
substantively thereto. 
          Even where a manufacturer need not communicate with parties located in
far-flung 
areas of the world, other factors suggest that 5 days is too short a period for a response to a fast 
track complaint.  For example, one of the first steps that a manufacturer would make upon 
receiving such a complaint is to contact the person issuing the complaint to find out more about 
the perceived problem.  After making such contact (which might take a day or two assuming the 
complainant is available, which will not always be the case), a substantial number of hours will 
have to be spent evaluating the complaint, drafting a response, clearing the response with senior 
management and legal counsel and filing the response with the FCC.  This process can take 
hundreds of hours which may make it virtually impossible to provide a reasoned response within
5 
business days of the date of a complaint. 
          Second, the Commission acknowledges that many Section 255 complaints will be 
complex.  Each and every complaint will have to be thoroughly evaluated whether it is a fast
track 
or other type of complaint.  If the complaint is not frivolous and there is no similar or accessible 
product, a manufacturer will have to engage in research to determine why it made the 
determination that it was not "readily achievable" to make the product accessible for the
disability 
in question.  For companies that make a large quantity of products, the research is likely to take 
time.  The failure of the FCC to impose a statute of limitations on the time for bringing a 
complaint under Section 255 exacerbates the problem since records on all products will have to
be 
maintained in perpetuity and may be archived for legitimate business reasons. 
          Third, because the complaint process is adversarial with potentially severe legal 
consequences to be imposed on manufacturers who are found to have violated the provisions of 
Section 255, responses to fast track complaints will likely be reviewed internally by management 
responsible for Section 255 implementation as well as in-house and/or outside counsel.  
          For the foregoing reasons, the predominant response to a fast track complaint is 
likely to be that there was insufficient time to adequately review, research and respond to the 
complaint.  This will result in the Commission moving to the next level of complaint process,
even 
if more time to respond may have enabled the parties to come to closure on a given issue.  The 
Commission's proposal to extend the time within which to answer a fast track complaint if 
"substantial efforts" to respond are under way is not a suitable cure for the dilemma described 
above.  Because most fast track complaints will require extensions of time for the reasons 
described above, the Commission will be inundated with requests for extension of time.  The 
requests may have to be translated into accessible formats and, they will have to be evaluated by 
and responded to by the Staff thereby consuming more resources of the Commission and other 
affected parties.  
          It is important for complaints to be handled quickly and to provide relief to 
aggrieved parties when necessary.  However, TIA disagrees with the Commission's tentative 
conclusion that the fast track process accomplishes the result in the most efficient manner. 
Rather 
than arbitrarily insisting on unreasonably short response times under the fast track process, the 
Commission should require dialogue between affected parties without government intervention
in 
the first instance. 

4.   Standing.
          The Commission proposes not to impose a standing requirement for complaints 
filed under Section 255 based on the fact that it does not want to burden the complaint process 
with disputes relating to standing.   Though it is possible that there will be disputes over 
standing if the Commission adopts a standing requirement, those disputes should be few and far 
between.  On the contrary, the Commission's tentative conclusion to refrain from imposing a 
standing requirement is likely to create significant disruption of the orderly functioning of the 
Section 255 complaint process.
          Due process requires that a complaint contain sufficient specificity in order to 
allow a manufacturer to adequately prepare a defense.  This can only occur if a manufacturer has 
specific facts from a specific complainant about the specific manner in which a product is alleged 
to be inaccessible based on the complainant's specific disability and his or her inability to use a 
device given the disability in question.
          In addition to denying a manufacturer due process, the lack of a standing 
requirement will result in frivolous complaints being filed against manufacturers.  For example,
the 
absence of a standing requirement might encourage the filing of target complaints, i.e.,
complaints 
against a specific manufacturer designed only to hassle that manufacturer as a result of some past 
action or attitude, or to coerce a manufacturer into taking action it would not otherwise take. 
          Similarly, the lack of a standing requirement might result in complaints being
filed 
by persons without any "interest" in disability issues but merely as fishing expeditions to obtain 
material from manufacturers that would otherwise be kept confidential.  For example, 
manufacturers' competitors could use the complaint process to try and discover a company's 
internal equipment design and/or product development processes which are matters wholly 
irrelevant to the intent of Section 255 but which could have immense commercial value in a 
competitive equipment marketplace.  
          Without a standing requirement, there is no way the Commission can nip such 
abusive and anti-competitive actions in the bud, especially given the fact that the Commission's 
one day turn around proposal is not likely to provide the Commission with sufficient time to 
engage in any qualitative review of a Section 255 fast track complaint.  The Commission's 
ultimate goal in developing rules for the implementation of Section 255 should be to get more 
accessible product into the market at the earliest possible time.     
          The Commission should not institute procedures which deny manufacturers due 
process by creating impediments to preparing adequate defenses to complaints or by creating  
incentives to abuse the complaint process, since resources devoted to defending against 
complaints filed by persons who are not directly aggrieved serves only to takes resources away 
from the development of accessibility solutions.

5.

Complaint Format.
          The Commission does not propose a specific complaint format but instead 
proposes to require at a minimum that the fast track complainant identify the equipment, name 
and address of the manufacturer and a description of how the equipment is inaccessible to
persons 
with a disability.   TIA believes the better course of action is for the FCC to adopt a specific 
complaint format and require complaints filed to follow the uniform format.
          The basic requirements proposed in the NPRM do not provide a manufacturer
with 
sufficient facts upon which it can make a reasonable response.  In fact, what the Commission 
would require as a minimum to be included in a complaint denies the respondent due process 
since the information is unreasonably vague.  The basic requirements for alleging a violation of 
Section 255 should include not only the  information proposed in the NPRM, but a detailed 
description of (1) the complainant's disability and (2) the efforts made, if any, to acquire product 
from a retail outlet or service provider.  Only when a manufacturer has sufficiently precise 
information on which to respond, can the manufacturer adequately investigate the complaint and 
respond in a meaningful manner.

6.   FCC Decisionmaking Process.
          The Commission proposes to use a respondent's "resolution report" as well as 
other sources of information to render its decision on a fast track process complaint. 
Specifically, 
the Commission indicates that it ".might also include information requested from the respondent 
or the complainant, discussions with accessibility experts from industry, disability groups or the 
Access Board, or review prior or other pending complaints involving the respondent."   TIA 
asserts that the Commission's proposed decisionmaking process is deficient in two respects.  
     
          First, as noted above, the 5 day response period is entirely too short and will not 
lead to the Commission receiving the type of detailed, substantive information that will enable it 
to make a decision on the merits.  As a result, more often than not, the Commission's fast track 
process will not lead to the rapid resolution of a complaint, but will lead to the initiation of a 
complaint under the Commission's more traditional complaint processes.  This will entail greater 
burdens on all affected parties, including the Commission and will substantially delay the time it 
takes to resolve legitimate complaints.
          Second, and more importantly, the Commission's proposal to rely on outside 
sources in a fast track process is not appropriate.  At this point in time, there is no acknowledged 
group of telecommunications disability experts who have actual knowledge about whether it is 
"readily achievable" for a manufacturer to incorporate accessibility features into 
telecommunications equipment and CPE.  Expertise in accessibility is but one dimension in the 
process of developing and incorporating accessibility features into telecommunications
equipment 
and CPE.  Expertise in manufacturing systems and design of product for the market is also 
essential.  While systems may vary from company to company, all manufacturing systems 
ultimately utilize a "design team" to define a product with the specificity necessary for
production.  
The "design team" consists of numerous personnel, including human factors engineers, RF or 
systems engineers, marketing, and manufacturing engineers, each of whom has expertise that
must 
be melded together to agree on final product definition.  The product definition establishes all of 
the technical specifications (e.g., frequency, bandwidth, technology platform, power source) and 
market specifications (e.g., size, features, weight).  While "accessibility experts" may exist in the 
area of human factors and technological approaches for addressing various functional limitations, 
those experts would likely be uninformed in other areas that go into product design, and their 
conclusions about a particular solution for a particular product made by a particular manufacturer 
may be totally inconsistent or mutually exclusive with other factors that go into the product 
design process.  For example, while an "accessibility expert" may know about the use of voice 
chips, variable size fonts or color contrasts to assist persons with specified disabilities, the 
"accessibility expert" is not likely to understand the impact such factors may have on other
critical 
components of the product definition such as the increased power consumption, memory size or 
chip size.  Thus, Commission reliance on such "experts" is of questionable validity at best and at 
worst could lead to wholly erroneous and subjective conclusions on whether it was "readily 
achievable" for a manufacturer to make a product accessible for a given disability.
          Moreover, unless, a manufacturer is given the opportunity to submit comment "on 
the record" regarding information provided to the Commission by outside sources who are not 
parties to the proceeding, it would be denied procedural due process in an administrative 
proceeding.  If, on the other hand, a manufacturer is allowed to provide comment on such 
discussions and/or documents, the "fast track" process would be delayed further.  Thus, the better 
course of action would be for the Commission to use TIA's DRP process which requires the 
parties to engage in direct, substantive dialogue before the matter even comes to the attention of 
the Commission.  Only after good faith efforts at resolving their differences fail, should the 
Commission institute one of its more traditional dispute resolution processes.

7.   Ability to Switch Out of the Fast Track Process.
          In the NPRM the Commission asks for comment ".on how to provide a 
mechanism for either party (or the Commission, for that matter) to terminate the fast track phase 
and proceed to traditional dispute resolution processes, where it appears the fast track process is 
not leading to a mutually satisfactory resolution."   The fact that the FCC calls for comment on 
this issue is an acknowledgment that the fast track process has potential flaws for the reasons 
described above.  Thus, TIA does not believe the Commission is asking the correct question here. 

Rather than attempting to provide a mechanism by which parties can switch out of fast track if it 
is not producing the desired result (which will certainly result in wasted resources of all affected 
parties), the Commission should evaluate whether the fast track process concept is likely to 
accomplish the desired result in the first place.  TIA asserts the Commission's fast track proposal 
will not accomplish the desired result.  

B.   TIA's Proposed Dispute Resolution Process.
          Instead of implementing the FCC's proposed fast track process, the public would 
be better served if the FCC were to adopt TIA's DRP, as slightly modified in these comments 
from December 1997 proposal distributed to the staff of the Wireless Telecommunications 
Bureau, the Commission's Disabilities Task Force and other interested parties.   The DRP is 
specifically designed to accomplish the dual objectives expressed by the Commission that a 
compliance program for Section 255 complaints should (1) be responsive to consumers and (2)
be 
an efficient allocation of resources.  
     TIA's DRP  has the following basic characteristics:

Manufacturers are required to establish at least one point of contact to be 
the person responsible for receiving complaints and otherwise fielding 
inquiries regarding accessibility issues;

Manufacturers are required to provide the FCC, and upon request to 
individuals with disabilities and their representatives, with a point or points 
of contact;

The FCC is required to advise aggrieved parties that they must first engage 
in the TIA DRP process as a prerequisite to filing an informal or formal 
complaint under Section 255; 

Manufacturers are required to establish contact with the aggrieved party 
within 5 business days after the point of contact has been contacted by the 
aggrieved party and to enter into good faith discussions with the aggrieved 
party thereafter to try and resolve the issue; 

Manufacturers are required to provide a complete, detailed response to the 
aggrieved party, with a copy to the FCC, as promptly as possible but in no 
event later than 60 days after receipt of the aggrieved party's initial contact 
with the manufacturer, providing the solution to the complaint or stating 
the specific reasons why the complaint could not be satisfied; 

The FCC is required to consider complaints brought pursuant to Section 
255 only if the complainant has first contacted the manufacturer and the 60 
day time for a response has expired (or such shorter period of time if the 
manufacturer has submitted a response in less than 60 days).

          TIA's DRP is responsive to consumers' needs.  It provides sufficient time to allow 
a manufacturer and aggrieved party to engage in the type of dialogue necessary for the 
manufacturer to fully understand and evaluate a particular complaint and for the consumer to 
understand the manufacturer's issues.  To the extent a perceived complaint involves a service 
provider, the 60 day (or less) resolution period also enables the parties to contact the service 
provider to receive its input.  
          TIA agrees that "accessibility delayed is accessibility denied."   However, as 
described above, it does not believe that arbitrarily short response deadlines create an
environment 
or process which expedites the ultimate provision of accessibility.  In fact, TIA believes the fast 
track process will create the opposite result.  The dialogue which must take place between an 
aggrieved party and a manufacturer (and perhaps with service providers as well) will be
especially 
important in the early days of Section 255 implementation.  At the present time there is a very 
small book of knowledge on telecommunications accessibility issues.  Though the learning curve 
will increase rapidly as telecommunications accessibility issues are discussed and evaluated for a 
wide variety of disabilities, there will be a period of time during which persons with disabilities 
and manufacturers will learn each other's respective needs and the practical limitations of making 
accessible products in today's competitive marketplace.
          In addition to the foregoing, nowhere in the NPRM does the Commission commit 
to resolve fast track complaints within 30 days, 60 days or any other period.  Unless there is a 
commitment on the part of the Commission to resolve fast track complaints within a short period 
of time, there is no guarantee that unreasonably short time periods for manufacturers to respond 
to fast track complaints will lead to less delay in providing accessibility solutions than if the
parties 
are given a reasonable period of time to resolve the issues themselves. 
          The TIA DRP also serves to conserve resources of the Commission and industry.  
By allowing a period of time during which manufacturers can discuss accessibility complaints
with 
persons with disabilities free of Commission involvement, the Commission can devote its staff 
resources to resolving legitimate complaints filed under its formal or informal complaint 
processes.  From the manufacturer's standpoint, more design resources can be devoted to 
ensuring accessible products are produced for a wide variety of disabilities than are devoted to 
participating in expensive and time consuming complaint proceedings.  

C.

Use of Traditional Dispute Resolution Processes.
1.   Statute of Limitations for Bringing Complaints.
          The NPRM does not propose to impose a statute of limitations on the filing 
complaints under Section 255 (whether a complainant uses the fast track, informal or formal 
complaint process) but asks for comment on whether the 2 year statute of limitations in 
Section 415 should be applied to manufacturers.   TIA does not agree with the Commission's 
tentative conclusion that no statute of limitations should be imposed for Section 255 complaints.  
The longer the period of time after the design and development process is commenced for a
given 
product that a complaint under Section 255 can be brought, the greater the burden will be for a 
manufacturer to respond to the complaint.  This is due to the fact that records for a given product 
may be archived or personnel involved in the process of determining what accessibility features
in 
a product were "readily achievable" are no longer employed by the manufacturer.  Most 
importantly, the telecommunications equipment market continues to evolve at an accelerating 
pace.  There are hundreds, if not thousands, of new products being introduced on a monthly
basis.  
CPE typically has a typical product life of approximately 12 months and, on average, is only 
produced for that period of time.
          In addition, as time goes on, it will be "readily achievable" to build more 
accessibility features into telecommunications equipment and CPE.  Moreover, the alleged 
inaccessibility of a product which is no longer in production may be rendered moot if other more 
recently developed and introduced products presently being manufactured will have the 
accessibility features desired.  Nonetheless, unless the Commission imposes a statute of
limitations 
on the ability to file a complaint under Section 255, manufacturers will have to devote substantial 
resources to responding to some complaints which prove to be unnecessary.   TIA asserts that 
the Commission should adopt a statute of limitations for bringing a complaint under Section 255 
(whether fast track, informal or formal) under which complaints tendered pursuant to Section 255 
will be barred if they are filed more than 6 months subsequent to the complainant's initial 
purchase of a device subject to Section 255.  TIA's proposal provides balance between the right 
of a person with a disability to file a Section 255 complaint within a reasonable amount of time 
after purchase   and a manufacturer's right to avoid having to respond to obviously stale 
complaints which are wasteful of resources. 

2.   Response Time for Informal and Formal Complaints.
          The NPRM proposes to require respondents to provide answers within 30 days of 
the date of the complaint and complainants to respond thereto within 15 days  rather than 10 
days and 5 days as provided for in the Commission's general pleading rules.  The basis for the 
longer time periods is due to the Commission's acknowledgment that Section 255 informal and 
formal complaints are likely to be more complex than complaints typically filed with the 
Commission.  TIA agrees that Section 255 complaints will be complex and that a longer period
of 
time is necessary to answer a complaint and to respond to an answer.   However, TIA submits 
that 30 days and 15 days are not sufficient periods within which to file answers and replies for a 
number of reasons.  First, as noted in the discussion on fast track complaints, it may be necessary 
to translate the answer and response to formats that the respondent and the complainant can both 
understand.  Second, it may take a substantial amount of time to evaluate the complaint and to 
identify those parties within an organization who were primarily responsible for making a 
determination on the addition of accessibility features in a given product.   Third, because there is 
no present body of law or precedent with regard to Section 255, neither complainants nor 
respondents know what showings will satisfactorily support their respective cases.  As a result, 
parties are likely to spend more time evaluating the proper factual information that must be 
submitted to demonstrate a violation of Section 255 or to defend against the same.  For the 
foregoing reasons, TIA submits that answers to complaints should be filed within 60 days of 
receipt thereof, and responses to the answers should be filed within 30 days thereof.
          To the extent the Commission implements TIA's DRP proposal which requires 
parties to engage in a mandatory 60 day (or less) resolution period before informal or formal 
complaints can be filed, the 30 day answer and 15 day response periods proposed are reasonable.  
This is due to the fact that the dialogue between the parties in the mandatory pre-filing discussion 
stage will have served to enable manufacturers to engage in research regarding the factual
matters 
alleged and to narrow the focus of the complaint which will have provided both sides with a 
substantial amount of information about the other's position thus reducing the time necessary to 
respond.

3.   Confidentiality.
          The confidentiality of information submitted in the context of the Section 255 
complaint process (whether in the fast track, informal or formal complaint process) is a critical 
concern to manufacturers.  Information on why it was not "readily achievable" to make a product 
accessible or to incorporate a particular accessibility feature goes to the very core of a 
manufacturer's product design and development process.  It can also include highly proprietary 
and sensitive cost and financial information regarding a product or product pricing strategies. For 
example, especially when raising the "readily achievable" defense, information which would
have 
to be submitted to prove a case might include product costs, current drains required for certain 
features, ROM space required for certain features, licensing fees paid to others, technical details 
of operation and similar matters of a highly proprietary and confidential nature, which, if put in 
the public domain would have devastating impact on a manufacturer's competitive position in the 
marketplace. 
          TIA is concerned that existing rules which are designed to protect disclosure of 
confidential information are not sufficient to protect manufacturers' legitimate interests.  TIA is 
further concerned that unless the Commission takes strong steps to prevent the disclosure of 
confidential information, the Section 255 complaint process might be used by unscrupulous 
entities (including other manufacturers) as fishing expeditions to try and surreptitiously obtain 
information to their competitive advantage. 
          For the foregoing reasons, TIA proposes that the Commission should adopt a 
presumption that trade secrets and commercial or financial information submitted to the 
Commission by a manufacturer in connection with a "readily achievable" defense to a Section
255 
complaint will be treated as confidential as a matter of course  and that it will treat such material 
as falling within exemption 4 of the Freedom of Information Act.  Further, TIA proposes that 
the FCC impose the following additional procedural rules to protect a manufacturer's confidential 
information:  (1) no confidential materials will be required to be disclosed unless the
complainant 
executes a confidentiality agreement; (2) complainants shall not be allowed to make copies of
any 
material deemed confidential; and (3) confidential materials should be reviewed only in
connection 
with FCC personnel in attendance.  Lastly, without limiting the range of sanctions that the FCC 
has at its disposal for violations of its rules or orders, TIA proposes that the FCC dismiss any 
complaint in which a party thereto violates rules or orders regarding confidentiality.  TIA also 
asks the FCC to consider additional sanctions, including fines or preclusion from appearing
before 
the FCC, for any party that violates confidentiality orders after a case has been completed. 

4.   Formal Dispute Resolution.
          The NPRM proposes to provide potential complainants three opportunities to 
submit complaints under Section 255 rather than two opportunities that are available under the 
Commission's existing rules.  With regard to complaints filed against common carriers, a 
complainant today has the ability to file an informal complaint and if that is not satisfied, to 
institute the formal complaint process.  The Commission's Section 255 proposal is substantially 
different because a complainant can file a fast track complaint and if that is not satisfied it can
file 
an informal complaint and if the informal complaint is not concluded satisfactorily the
complainant 
can file a formal complaint.  The process proposed in the NPRM is, therefore, more burdensome 
on potential respondents than any other complaint procedure established by the Commission. 
          Requiring manufacturers to defend against a Section 255 complaint three times is 
an undue and unjustified burden which is clearly inconsistent with the Commission's goal of 
making the Section 255 implementation process one which is an efficient allocation of resources. 

Allowing complainants to have three bites of the apple is especially burdensome to smaller 
manufacturers who may not have the internal or external resources to commit to defending 
themselves three times based on a single allegation.
          Consumers are also adversely affected by the FCC's proposal since they, too, will 
be required to expend resources in each of the three levels of complaint processes proposed in the 
NPRM.  Though the fast track and informal complaint processes would cause the Commission 
and manufacturers to expend more resources than consumers, the same is not true for the formal 
complaint process.  In the formal complaint process the complainant has the burden of moving
the 
case forward, including carrying the financial and resource costs of engaging in the discovery 
process and costs associated with being represented by counsel in administrative litigation.
          The Commission recognized that it is not efficient to require entities to expend 
substantial resources responding to complaints when such resources could be put to better use 
providing more accessible products.    Thus, rather than allowing three levels of complaints to 
be filed for violations of Section 255, TIA suggests the number be reduced to two.  It further 
suggests that the first phase should be TIA's proposed DRP since, as discussed above, it provides 
the right environment for the voluntary resolution of disputes over accessibility with a minimum
of 
government intervention.  The second level in the Section 255 complaint process should be 
establishment a modified formal complaint process.  
          For Section 255 complaints, the FCC should use a modified common carrier 
formal complaint process which would be ".resolved on a written record consisting of a 
complaint, answer and joint statement of stipulated facts, disputed facts and key legal issues."  
but without some of the more burdensome provisions of the common carrier formal complaint 
process such as discovery which would be costly to both manufacturers and consumers.  Thus, 
the modified formal complaint process has the benefit of allowing the Commission to make a 
decision on the basis of pleadings and other "on-the-record" information submitted to the 
Commission on the one hand without requiring all parties to expend substantial funds to engage
in 
the discovery process.

5.   Alternative Dispute Resolution Process.
          In addition to fast track and the use of informal/formal complaint processes, the 
Commission proposes to use Alternative Dispute Resolution ("ADR") procedures as the third 
prong of its Section 255 enforcement effort.   TIA does not object to the Commission adopting 
rules which provide for ADR of  Section 255 complaints.  However, TIA asserts that the use of 
ADR techniques should not be used for the first few years after final rules in this proceeding are 
adopted. 
          The Commission correctly points out that ADR techniques are not necessarily 
appropriate in every case, specifically in (1) precedent setting cases; (2) cases bearing on 
significant new policy questions; (3) cases where maintaining established policies is of special 
importance; (4) cases significantly affecting persons or organizations who are not parties to the 
proceeding; (5) cases where a formal record is essential; and, (6) cases where the agency must 
maintain continuing jurisdiction with authority to alter its disposition in light of changed 
circumstances.   With regard to complaints filed pursuant to Section 255, virtually all of the 
factors listed above are present since few complaints have been submitted to the Commission and 
none have been decided by the Commission or appealed to higher judicial authority.  Until the 
FCC has issued enough decisions on a sufficiently wide variety of accessibility complaints, there 
will be no general body of knowledge on which experts can rely.
          Furthermore, while there are persons and organizations which can provide useful 
thinking about potential accessibility solutions in the context of telecommunications in general
and 
Section 255 specifically, there are no persons or organizations that can legitimately claim they
are 
"expert" in determining whether it is "readily achievable" to incorporate one or more
accessibility 
features into telecommunications equipment and CPE.  Until the Commission, manufacturers and 
affected members of the public agree that a sufficiently large body of knowledge exists on what
is 
or is not "readily achievable" in the context of complex issues of "technology, economics and 
medicine,"  the Commission should not delegate to outside sources the authority expressly 
granted to it by Congress to resolve complaints filed under Section 255.
          Similarly, at this point in time it is premature for the Commission to refer
inquiries 
and complaints to a joint industry/disability advisory panel for opinion.  As noted above, there is 
very little expertise in this area today and it is doubtful that a joint industry panel would be able
to 
be helpful in the early years of resolving Section 255 complaints.
 
6.   Defenses to Section 255 Complaints.
          TIA supports the concept that it is appropriate to give weight to the good faith 
efforts of a manufacturer to comply with Section 255 by taking actions that show it has
attempted 
to make products more accessible in the evaluation of Section 255 complaints.   It specifically 
supports the Commission's proposal to use four broad categories of measures which, if taken by 
manufacturers, are evidence of their good faith efforts, i.e., (1) self-assessment of whether it is 
"readily achievable" to incorporate accessible features in products; (2) external outreach efforts
to 
ascertain accessibility needs and possible solutions; (3) internal processes to ensure early and 
continuing consideration of accessibility concerns; and (4) user information and support.   In 
fact, manufacturers who engage in these types of activities and others which show that they are 
sincere about "doing the right thing," should be given a rebuttable presumption that they have 
complied with Section 255. 
          Commission evaluation of Section 255 complaints should place a great deal of 
emphasis on the types of efforts described above, especially in the first few years after rules are 
adopted by the Commission.  Greater emphasis on the "processes" used by manufacturers may be 
more important than the level of accessibility that can be readily achieved since it will take some 
time for manufacturers to engage in the outreach process and come to a more complete 
understanding of the needs of persons with disabilities and then to evaluate how best to 
incorporate accessibility features into products which meet those needs.
          With regard to outreach and the ability of smaller companies to engage in that 
process, TIA supports the Commission's proposal to look favorably upon outreach conducted by 
consortia or trade associations.   In fact, TIA supports the ability of manufacturers of any size to 
be able to take advantage of the outreach efforts of consortia and trade associations.  Because the 
ultimate goal of Section 255 implementation is to make telecommunications equipment and CPE 
more accessible to persons with disabilities, the Commission should be concerned that
companies, 
both large and small, make whatever efforts are necessary to gain the knowledge which will 
enable them to increase accessibility.

7.

Penalties for Non-Compliance.
          The Commission lists those provisions of the Communications Act of 1934, as 
amended, which provide it with authority to impose penalties on manufacturers and others who 
are subject to Section 255.   TIA does not dispute the Commission's listing but does note that 
the language of the NPRM is ambiguous on the entities to which they are applied.  In the NPRM 
the Commission states:

Section 312 of the Act also provides for the issuance of a cease and desist order to 
a station licensee or construction permit holder, for the willful or repeated 
violation of or failure to observe any provision of the Communications Act.  We 
believe Sections 4(i) and 208 of the Act provide a basis for such an order with 
respect to non-licensees.

Sections 207 and 208 provide for the award of damages for violations by common 
carriers and arguably others.  We seek comment on the relationship between 
Sections 207 and 208 and Section 255, and between implementing rules under 
each.  We ask commenters to specifically address what circumstances would 
warrant imposition of damages where Section 255 is found to have been violated, 
and how such damages could be calculated. 

          The Commission's use of the terms "non-licensees" and "common carriers and 
arguably others" are of concern to TIA.  TIA assumes that the references to "non-licensees" and 
"common carriers and arguably others" are references to entities other than manufacturers since 
there is no legal authority to apply Sections 312, 207 and/or 208 to manufacturers absent 
Congress amending the Communications Act.  Section 312 is expressly applicable to Title III 
radio licensees while Sections 207 and 208 are expressly applicable to common carriers. 
Because 
the language of Sections 312, 207 and 208 are clear and unambiguous on their face, the 
Commission can not expand the express and literal language of those sections to include 
manufacturers of telecommunications equipment and CPE to the extent that they are not 
otherwise Title III licensees or common carriers.  In addition, TIA opposes the FCC's suggestion 
that retrofitting is an appropriate penalty for noncompliance. 

8.   Additional Implementation Issues.
          The FCC should refrain from establishing itself as a clearinghouse for disabilities 
issues, including product information and accessibility solutions.  The burden imposed on the 
Commission to collect and maintain such information will be considerable.  Moreover, there are 
outside organizations from industry, the disability community and elsewhere which will provide 
that information.  Absent compelling reasons to become involved in a process which is already 
being provided and will continue to be provided by private, non-governmental sources, the 
Commission should devote its limited resources to other areas of Section 255 implementation.
          Similarly, the FCC should not publish information on the performance of 
manufacturers in providing accessible products, especially based on statistics generated by the 
Commission's fast track process.  Neither should the FCC institute any program of awarding a 
"seal or other imprimatur"  of compliance by a manufacturer.
          As discussed above, the Commission's fast track process is not likely to result in 
the resolution of many complaints because, among other things, it will not provide manufacturers 
sufficient detail on the nature of the violation and will not provide sufficient time to respond in 
detail to a complaint.  As a result, the statistics derived from the fast track process are likely to be 
flawed.  For example, Manufacturer A (who may have an overall good record of making 
accessible products) may "lose" two of three fast track complaints while Manufacturer B (who 
has a bad record of overall Section 255 compliance) may "win" two of three fast track
complaints.  
If the Commission were to publish statistics showing that Manufacturer A is worse than 
Manufacturer B or if the Commission were to give Manufacturer B a "seal or other imprimatur" 
of Section 255 compliance based on the fast track process, the public would be deceived into 
believing Manufacturer B was "better" than Manufacturer A in providing accessible products.  
Such actions could artificially distort the operation of an otherwise competitive market and could 
have an unfair and material adverse impact on Manufacturer A.
          Disability organizations are keenly aware of manufacturers' obligations under 
Section 255.  Moreover, there are private organizations that currently distribute information
about 
accessible technologies and accessible products.  As time goes on, more and more information 
about accessible products and technologies will be available from private sources.  Similarly, it 
will not take long before the public learns which manufacturers have a good record of
compliance 
and which do not.  As a result, TIA asserts that the Commission should refrain from using its 
resources to provide information which (1) may be statistically invalid and (2) is otherwise 
available from private sources.

VI.  INTERIM TREATMENT OF COMPLAINTS.
          TIA supports the Commission's conclusion that there is no need to adopt interim 
complaint procedures.  Furthermore, TIA believes the Commission should make it abundantly 
clear that restraint should be exercised before filing complaints under Section 255.  Filing 
complaints in advance of the Commission's adoption of rules implementing Section 255 will not 
serve the public interest for two reasons.  First, because the Commission has no specific 
procedures for handling Section 255 complaints at the present time, the process will lead to 
inefficient handling of complaints.  Second, the resources of the Commission, manufacturers and 
others will be devoted to handling litigation rather than trying to come up with solutions to 
increasing accessible products.

VII. CONCLUSION.
          In conclusion, TIA wishes to reaffirm the commitment of its member companies
to 
the goal of increased access to telecommunications for individuals with disabilities.  TIA
believes 
access will be increased over time by market forces as well as the force of technological 
innovation in this competitive industry.  The foregoing comments represent TIA's beliefs as to 
how the FCC's rules can best work to provide the industry with incentives to incorporate 
accessibility features in its products and services, without also stifling the very innovation that is 
necessary to reach the ultimate goal.
          Towards that end, TIA strongly encourages the FCC to adopt a product line rather 
than a product-by-product approach to the accessibility requirement.  It is only by providing 
manufacturers with discretion as to how to incorporate accessibility features that meaningful 
access can be provided to the diverse group of individuals with disabilities.  TIA further urges
the 
FCC to tailor the definitions of certain key statutory terms to the context of the 
telecommunications industry.  Definitions adopted verbatim from the ADA, for example, may
not 
prove as useful in this context.  Finally, TIA asks the FCC to adopt TIA's DRP instead of the 
FCC's fast track proposal for resolving access problems.  TIA believes there is much to be gained 
from allowing manufacturers to attempt to address any problems through direct contact with 
consumers, rather than involving the FCC at first instance.



                                   Respectfully submitted,

                                   TELECOMMUNICATIONS INDUSTRY 
     
                                   ASSOCIATION

                                   ____________________
                                   Grant Seiffert,
                                      Vice President, Governmental Relations
                                   Matthew J. Flanigan
                                     President
                                   1300 Pennsylvania Avenue, NW
                                   Suite 350
                                   Washington, D.C. 20004
                                   (202) 383-1483


CERTIFICATE OF SERVICE

          I, Karen E. Lloyd, do hereby certify that on this 30th day of June 1998, a copy of 
the foregoing Comments of the Telecommunications Industry Association has been served, via 
hand delivery, upon the following:
          
          Susan Kimmel
          Attorney Advisor
          Wireless Telecommunications Bureau
          Federal Communications Commission
          2025 M Street, N.W.
          Room 7002
          Washington, D.C. 20036

          International Transcription Service
          Suite 140
          1919 M Street, N.W.
          Washington, D.C. 20036


          
                              ________________________
                              Karen Lloyd




     STRATEGIC
POLICY
           RESEARCH

              7500 OLD GEORGETOWN ROAD  SUITE 810   BETHESDA, MARYLAND 
20814       (301) 718-0111       (301) 215-4033  fax
                                                        EMAIL 
spri-info@spri.com




An Evaluation of the
Access Board's Accessibility Guidelines


                    TABLE OF CONTENTS

EXECUTIVE SUMMARY   i
ABOUT THE AUTHORS   iv
INTRODUCTION   1
PUTTING THE PROBLEM IN PERSPECTIVE 3
Mobility Disabilities    4
Vision Disabilities 4
Hearing Disabilities     4
Motion Disabilities 6
Cognitive Disabilities   7
Exceptional Cases   7
Concluding Thoughts 8
POTENTIAL ADVERSE CONSEQUENCES OF THE PROPOSED RULES   9
Slowing Innovation  9
Biasing Firm Size   10
Exporting Jobs 10
Encouraging Development of Hard-to-Use Equipment  11
Compliance Costs    13
EQUITY AND MARKET CONCERNS    13
Market Failures     14
Transaction Costs   14
Deficiencies in Training Designers 15
Information Failures at Time of Purchase     15
Equity Concerns     15
Affordability  15
Appearances    16
ECONOMIC CRITIQUE OF THE PROPOSED GUIDELINES 16
Competitive Markets for Telecommunications Equipment Have Produced Substantial 
Benefits for All Consumers    16
Costs of Requiring That Every Product Be Engineered to Meet Every Need     18
The Costs of Universal Redundancy and Selectibility    18
The Costs of Establishing Affirmative Duties Throughout the New Product Development 
Process   19
The Need to Optimize Technical and Economic Tradeoffs in the Implementation of 
Section 255    20
COSTS OF THE PROPOSED GUIDELINES   21
Estimating Compliance Costs   22
Description of the Production Process   22
Impacts on Work Activities    23
Estimates of Compliance Costs 25
Sizing the Market   25
A Lower Bound  27
Modeling Compliance Costs     30
Product-Specific Costs   32
Synopsis  33
ADVERSE CONSEQUENCES ON INNOVATION 33
WHY BUILDING-ACCESS ANALOGIES ARE MISLEADING 34
AN ALTERNATIVE APPROACH  36
Flaws in the Proposed Approach     36
Solutions 38
Recommendations     39
The FCC's Role In Compliance  40
The FCC as Market Monitor     40
FCC Role in Fostering Accessibility Improvements  42
APPENDIX  45



EXECUTIVE SUMMARY

Accessible Design is a balancing act.  To begin with, we must 
acknowledge that it is not possible to design everything so that it 
can be used by everyone.
                                   Gregg C. Vanderheiden 


The Access Board has proposed rules to implement Section 255 of the 1996 Telecommunications 
Act.  Unfortunately, these proposed rules would, in the long run, do more harm than good to 
people with disabilities and would impose several significant costs on our economy. 
Specifically, 
the proposed rules would:

    Damage the innovation process,
    Distort the telecommunications and consumer electronics industries towards inefficiently
     small firms,
    Encourage the export of design and manufacturing employment, 
    Force equipment to include a complex assortment of multiple and sometimes conflicting 
     features, and
    Impose substantial costs as firms attempt to assure that their design processes meet the
     criteria of the proposed rules and in resolving disputes if any party expresses 
     dissatisfaction with the outcome.

Innovation is at the heart of economic progress.  The telecommunications manufacturing industry 
has been an especially rich source of practical benefit to Americans with disabilities.  These 
innovations have been the natural fruit of an industry has been left largely unregulated and is 
fiercely competitive. The proposed rules would impose a significant burden on the innovation 
process and therefore should be especially suspect.  We urge the Commission to adopt policies 
which harness, not dampen, the energies of the market in this regard. 

We also fear that the proposed rules would distort the marketplace.  Smaller firms would be able 
to argue that they lack the resources and staff needed to carefully document compliance with the 
proposed rules.  Similarly, the Commission would probably be less likely to press hard in 
enforcing such rules a smaller manufacturer.  A natural consequence of such effects would be to 
burden disproportionally innovation efforts in larger organizations and move the economy away 
from economic efficiency.

We also believe that the rules create a back-door incentive to export jobs.  If a product is 
assembled in the United States from high-level subassemblies, the assembler can rightfully claim
to 
be the manufacturer.  In documenting the design process, the manufacturer can point to the 
capabilities of the high-level subassemblies as defining what is readily achievable.  An overseas 
manufacturer who wishes to sell a product in the United States can provide the product as a 
collection of high-level subassemblies to a manufacturer in the United States.  Such a two-step 
distribution process designed to get around the rules requiring consideration of effects on people 
with disabilities would be hard to distinguish from other similar activities that are carried out for 
sound economic purposes.  

The Access Board's Guidelines seem to rest on an interpretation of Section 255 that requires that 
every new telecommunications product address be designed according to strict accessibility 
norms.  As proposed, the Guidelines suggest going even further: that every product address every 
accessibility requirement by means of an engineering philosophy known as "Universal
Redundancy 
and Selectibility."  By this approach, each product would be endowed with the ability to switch 
between modes, each mode providing a different user interface configuration for a different 
constellation of disabilities.   The epigram above, from one of the world's leaders in the design of 
equipment to meet the needs of the disabled community, recognizes the impossibility of such a 
mandate.

Consider a widely used communications product - the pager.  Most pagers notify people that 
someone is trying to call them and provide them  with a short numeric message telling the user 
what number to call back.  But, there are also other pagers that provider users with voice 
messages or with  text messages.  While pagers are widely used and accepted, few understand the 
difficult technical challenges that have to be met in order for pagers to operate reliably, to
support 
long battery life, and to be able to detect pages even in inside offices in an office building. 
Making 
every pager accessible to the blind would increase their size, decrease battery life, and increase
the 
cost.  Individuals with vision impairments have other alternatives, such as voice pagers or PCS 
phones, that offer them  similar communications alternatives.  Requiring every pager to be useful 
to everyone, no matter what his or her disability, would reduce the options available to the 
hearing-impaired and sight-impaired alike.

Finally, we believe that the out-of-pocket costs of complying with the proposed rules and 
establishing the fact of such compliance in an adversarial setting will be high.   

The  proposed Guidelines require that distinct, affirmative  regulatory obligations arise under the 
Act at every stage of activity in the development of new telecommunications products.  We 
estimate the scale of the development process affected by the proposed regulations.  We also 
develop a model of the development process including the effects of the proposed rules.  This 
model indicates that the added development costs would fall in the range of $450 to $750 million 
per year.  As a check on this calculation, we consider similarities with the formal compliance 
required of manufacturers in Parts 68 and 15 and show that the numbers calculated by our model 
are consistent with the FCC's experiences in these programs.  We also consider the added costs
of 
making all products accessible to all consumers.  We briefly sketch examples of typical products 
altered to address merely two modes of disability, at an annual industry-wide cost of $250
million 
in materials alone. 

We conclude with a discussion of alternative approaches the Commission might consider, based 
on previous Commission undertakings that have been widely accepted as successful.  We
propose 
that the Commission conduct annual reviews of the state of accessibility to the nation's 
telecommunications infrastructure and act as a clearinghouse for identifying shortcomings in 
accessibility and new techniques for addressing them.  Similar approaches have enjoyed 
considerable success, for example, in establishing access to satellite video distribution in
outlying 
areas of the country otherwise not served by multichannel video distributers.  We argue that an 
outcome-based regulatory regime would clearly meet the intentions of the statute and would
likely 
result in the sort of economic activity likely to generate accessibility instead of bureaucracy


ABOUT THE AUTHORS

Charles Jackson earned his PhD in electrical engineering from MIT.  He worked as a digital 
designer and computer programmer in industry before working in government at the FCC and for 
the House Commerce Committee.  He has written on policy issues of accessibility for people
with 
disabilities, contributed to research projects to develop accessible electronic mail systems for the 
deaf and hard of hearing, and has testified on hearing aid compatibility before the Senate 
Commerce Committee.  Also among his activities was a term on the board of directors of the 
Northern Virginia Resource Center for the Hearing Impaired.

Ross M. Richardson recently became Vice President of Rates & Tariffs at Zephyr 
Telecommunications, Inc.  Dr. Richardson was formerly a principal in Strategic Policy Research, 
Inc., and closely involved in the preparation of this report.  Prior to joining SPR, he was a 
Member of Technical Staff in the Network Systems Division at AT&T Bell Laboratories and for 
Network Architecture at Southwestern Bell Corporation (SBC).  At AT&T, he developed new 
telecommunications network services based on Integrated Services Digital Network (ISDN), 
Intelligent Network (IN), and conventional telephony technologies.  At SBC, he studied IN 
performance and developed strategic architecture plans for SBC's mobile, landline, paging and 
video networks in the United States and overseas.

John Haring is a principal in Strategic Policy Research, Inc.  Dr. Haring formerly served as Chief 
Economist of the Federal Communications Commission and as Chief of the Commission's Office 
of Plans and Policy.  He has prepared studies on a wide range of subjects including a large
number 
of papers dealing with telecommunications economics and regulation.  He is the author of five 
papers in the FCC's Office of Plans and Policy Working Paper Series and the 
"Telecommunications" entry in the Fortune Encyclopedia of Economics.  He is the coauthor 
(with Ronald Cass) of a recently published book on international trade in telecommunications 
equipment in the American Enterprise Institute's Studies in Telecommunications series (MIT 
Press).

This report was prepared for the Telecommunications Industry Association.  However, the views 
in this report are those of the authors and do not necessarily represent the views of TIA or any 
member of TIA.

The authors have extensive experience in the areas of telecommunications and economics.  In 
addition to basic research and information gathering from a variety of relevant public sources 
(including the FCC), this report reflects interviews with engineering and management staff from 
several telecommunications equipment manufacturers and various data they provided.  We 
focused our study efforts in three areas:  (1) understanding the scope and extent of the 
communications needs of persons with disabilities, (2) identifying the potentially beneficial and 
adverse consequences of different types of remedies, and (3) estimating the costs of compliance 
with what we regard as the flawed approach embodied in the proposed Guidelines.  We
developed 
several alternative means of getting a handle on compliance costs and, at different times,
reviewed 
our analyses with TIA members to supply a reality check.  While we wish to acknowledge and 
express our appreciation for useful input and comments from TIA members and the cooperation 
and support of TIA, we wish to make clear that the analysis and our conclusions are our own.


INTRODUCTION

By any reasonable cost-benefit calculus, the benefits of improvements in communications
services 
to people with disabilities flow to every American.  Every person without disabilities is only a 
moment away from acquiring a disability - a slip in the bathtub or on the ice, an opportunistic 
infection, an immune disorder, or normal accompaniments of aging that can cause a disability.  
Thus, every person benefits (at least in an expected-value or option-value sense) from 
improvements in communications for people with disabilities.

Similarly, almost every improvement in communications technology aimed at the general 
population helps many of those with disabilities.  First, people with disabilities participate
directly 
in the larger market for communications equipment and services.  In many cases individuals with 
and without disabilities can use the same equipment.  A person requiring a scooter to get around 
may have no limitations in using desktop telephone equipment.  In other cases, many product 
features made possible by technology enhance the usability of general market equipment by 
persons with disabilities.  Second, people with disabilities benefit when communications 
technology permits the economy to operate more efficiently - thus lowering the cost of the 
goods and services they consume.  Similarly, people with disabilities benefit from the use of 
improved communications technologies by those with whom they communicate.  For example, 
longer battery lives in wireless telephones means that the people they wish to contact are more 
likely to have their portables turned on.

In Section 255 of the Telecommunications Act of 1996 Congress imposed an obligation on 
manufacturers of telecommunications equipment and customer premises equipment to ensure
that 
such equipment is "designed, developed, and fabricated to be accessible to and usable by 
individuals with disabilities, if readily achievable."  While Congress assigned enforcement of this 
statutory provision to the Federal Communications Commission,  Section 255 charges the 
Architectural and Transportation Barriers Compliance Board with developing, in conjunction
with 
the Commission, "guidelines for accessibility" of the equipment in question.  Section 255 reflects 
Congress's view that the market alone cannot be counted on to adequately serve the needs of 
those with disabilities.  We concur with that view - but we are deeply concerned that regulations 
designed ensure that products are accessible will result in a long-run loss of benefits to those with 
disabilities as well as more general harm to our economy.  

Two prototypical problems - hearing aid compatibility and access to windowed computer 
operating systems and the World Wide Web by those vision disabilities - illustrate the problems 
of accessibility for telecommunications and information services.   It is also our opinion that
these 
specific problems lie at the heart of concerns about accessibility  to telecommunications.  We 
explain each of these problems briefly.  

Telephones without magnetic fields do not couple to the telecoils in many hearing aids. 
Relatedly 
hearing aids with telecoils can act as radio receivers and can receive interference from digital 
cellular phones.   Regulations, in place for many years, require that telephones be built to 
support telecoils.  The problem of interference is much harder - the most cost-effective solution 
is to modify the design of hearing aids to eliminate their susceptibility to such interference.  
However, this solution does not deal with the problems of existing hearing aids.

Programs running under Windows 95 and other similar graphics interfaces are difficult or 
impossible for those with vision disabilities to use.   This is not simply a question of operating 
system design.  Although these operating systems permit software applications to be designed to 
support both text-based and graphics controls, applications designers, many of them independent 
of Microsoft or any hardware manufacturer, often fail to take advantage of such options.  
Similarly, many applications and websites on the World Wide Web are difficult or impossible for 
those with vision disabilities to use. 

A moment's reflection should allow one to empathize with someone who buys a cellular 
telephone only to find that her daughter cannot use the cellular phone because the hearing aid 
receives interference from the digital cellular signal or with the frustration of someone who is 
blind and is finding services on the Internet less and less accessible as more visual elements are 
incorporated into web pages.

It appears that specific accessability problems such as these prompted the enactment of Section 
255.  Their solution should be achievable at low cost and provide significant potential benefit to 
those with disabilities.

Although we agree with Congress's determination that failures may occur in the 
telecommunications equipment market leading to harms to those with disabilities, we believe that 
great care must be taken not to do even more harm with a highly generalized approach to 
attempting to correct those market failures.  

PUTTING THE PROBLEM IN PERSPECTIVE

The Census Bureau reports that there are about 50 million Americans with some form of
disability 
and 25 million with severe disabilities.   A small fraction of these people have problems using 
the telephone.  The Census Bureau reports that about 3 million people have difficulty using the 
telephone and about 1 million people are unable to use the telephone.   Different disabilities 
create quite different needs.  Disabilities may affect mobility, vision, hearing, hand motion, 
cognition, or other activities.  Let us consider some of the communications needs associated with 
several of those disabilities.  

Mobility Disabilities
Consider first a person with a mobility disability - for example, someone who normally uses a 
wheelchair.  A cordless telephone or a cellular/PCS phone provides great value to such a person.  
When the telephone rings, he or she does not need to rush to answer it.  Clearly, though, if one 
must carry around a portable telephone, size, weight, and battery life are important.  In most such 
cases, a smaller unit with a longer battery life would serve the consumer's needs best.

Vision Disabilities
Consider a person with a vision disability - for example, someone who finds it hard to read text 
unless the print is large and the contrast high.  A person with such a disability would find it hard 
to read the small LCD displays on many cellular telephones.  Similarly, a person with an even 
more severe vision disability may be unable to use the graphical interfaces on many computers
and 
may prefer telephones with larger keys permitting use of larger type on the keys.  

Hearing Disabilities
Third, consider a person with a hearing disability.  If the disability is severe, such a person would 
not be able to use a telephone.   Several important accessibility issues arise from the needs of 
the deaf and hearing-impaired community.  We will discuss three of them briefly: telecoils,
TTYs, 
and alerting devices.  

Many hearing aids are equipped with a capability, called a telecoil, to pick up electrical signals 
directly from telephones.  A telecoil makes hearing telephone calls easier.  Telecoils are built
into 
behind-the-ear and body aids, but not in-the-ear and in-the-canal aids.  Telecoils were developed 
decades ago and took advantage of an extra, unintended magnetic field created by the telephone 
receivers in use at that time to connect hearing aids to telephones.   

Several problems have developed with telecoils, including the incompatibility of some
telephones 
with telecoils and interference to telecoils from electronic equipment.  Some more recent 
telephone receiver technologies do not generate the magnetic fields needed for operation of the 
telecoil.  This problem became significant in the late 1970s and early 1980s, and Congress 
amended the Communications Act in 1983 to establish telecoil compatibility requirements.   A 
second problem with telecoils is their ability to respond to magnetic fields generated by
electronic 
and electrical equipment.  In particular, hearing aids with telecoils can act as tiny radio receivers 
and can pick up digital cellular radio transmissions or static from nearby electronic equipment.   
As a consequence, some hearing aid users are unable to use digital cellular and PCS telephones 
because of a severe buzzing induced by the unwanted reception of digital signals.  

Many deaf individuals use equipment called TTYs or TDDs to communicate with their family
and 
friends.   TTYs are terminal devices with displays, keyboards, and modems that connect to 
telephones and permit written (typed) conversation over telephone connections.  The original 
TTYs were converted obsolete teletype machines using the 5-bit Baudot code that had been 
replaced by ASCII.  These machines were donated to the deaf community by the operators of 
teletype networks and were often refurbished by volunteers from the industry. Modern TTYs are 
electronic devices, but they still use the old Baudot code for compatibility with other TTYs.

TTYs encounter a number of compatibility problems in working with modern computer and 
information technology equipment.  In addition to the fact that TTYs do not represent letters 
using the same patterns of bits that modern computers use (the Baudot code is so limited that it 
does not distinguish between upper and lower case), the data modulation used by TTYs is 
different from the modulation used by most computer modems - hence, a TTY cannot dial in to 
standard computer ports (the modulation used for TTYs was a reasonable design choice in the 
1960s, but is too slow for today's computer communications needs).  The digital modulation used 
by TTYs cannot be recorded by some digital answering machines that were designed to store 
human voice, not abstract tones.  Similarly, the TTY tones are usually not compatible with the 
voice coding used on digital cellular phones.

The deaf and severely hearing impaired cannot hear the ringing of a normal telephone.  Instead, 
they need visual indicators, such as a flashing light or particularly loud ringing to alert them that
a 
call is coming in (for their TTY, for example).  

Motion Disabilities
Another form of disability is a limit on the range or speed of motion or on the accurate control of 
hands and fingers.  The needs of people with motion disabilities vary.  Some individuals have 
limits on their range of motion and benefit from the use of compact control panels that require 
little movement.  Others, with difficulties in control, benefit from the use of control panels with 
larger, separated buttons.  The text below, taken from a web site on disability access, describes 
some of the alternative keyboards available to those with motion disabilities.

Manufacturers provide small keyboards for people with limited range of motion  
more generally, there are a wide variety of keyboards designed to match different 
disabilities.

                            ALTERNATIVE KEYBOARDS
Mini Keyboard (TASH) is a small keyboard for a PC. It is designed 
for individuals who have difficulty using a standard keyboard due to 
limited range of motion. 
Intellikeys (IntelliTools) is a large programmable keyboard with a variety of 
overlays designed for individuals with limited fine motor control. Only light 
pressure is required to activate the keys. Software is available to design custom 
overlays. Both Macintosh and PC versions are available. 
The Dvorak One-handed Keyboard (Typewriting Institute for the 
Handicapped) allows a person with use of only one hand to type efficiently on 
a PC. Left- and right-handed versions are available. Software that re-maps 
keyboards to Dvorak layouts is also available.  
Individuals with motion difficulties also benefit from the use of windowed "point-and-click" 
controls of computer systems.  Pointing devices have been developed that follow the point a 
person is looking at on the screen.  Using such a pointing device and a switch, actuated with the 
chin or by blowing on a straw, a quadriplegic can control a computer or use a computer to dial 
telephone calls. 

Cognitive Disabilities
Some individuals have defects in information processing capabilities that affect memory or 
reasoning.  Increased complexity of communications devices, with telephones having multiple 
operating modes or the need to remember passwords and command sequences, reduces 
accessibility for such individuals.   

Exceptional Cases
Combined or especially severe disabilities create added difficulties that cannot be easily dealt 
with using off-the-shelf solutions.  Consider the plight of an individual who is both a
quadriplegic 
and blind.  Tools using point-and-click displays, usually of great value to a quadriplegic, cannot
be 
used nor can Braille readers.  Rather, solutions must be based upon audio signalling and limited 
control from chin switches or sip switches.  Obviously, the market for such solutions is very 
limited - because people with multiple disabilities that limit communications comprise a small 
subset of those with disabilities.  Yet, such individuals comprise a large portion of those that
have 
difficulty using telecommunications.

The lack of off-the-shelf equipment to meet the needs of people with multiple disabilities is 
not a result of a market failure.   Rather, such devices are naturally expensive because they must 
be customized.  The solution is direct subsidy either by philanthropy or the government.  

Concluding Thoughts
A wide range of disabilities limit people's abilities to use telecommunications.  Modern 
communications equipment (more generally information technology) has brought enormous 
benefits to people with disabilities.  Unfortunately, the world is not perfect.  The telephone is 
poorly matched to the needs of the deaf.  Windows and the graphic web pages are wonderful for 
the motion disabled but create difficulties for the vision impaired.  Some people need small keys, 
and some people need big keys.  Any attempt to improve the current situation by regulation must 
take into account two fundamental truths:

    Innovations in information and communications technologies have brought 
enormous benefits to those with disabilities.  Any policy that weakens the incentives for 
innovation will harm both those with disabilities and the larger society.

    Disabilities create conflicting needs.  Unlike the case with building 
accommodation, where a visual alerting system does not interfere with an access ramp, a 
manufacturer cannot simultaneously build a PCS phone with both large, separated keys 
and small, closely spaced keys.  

POTENTIAL ADVERSE CONSEQUENCES OF THE PROPOSED RULES

    This report provides an economic assessment of the Telecommunications Accessibility 
Guidelines the Access Board has adopted and the FCC has proposed.   Our analysis suggests 
that the approach embodied in the Accessibility Guidelines is not likely to enhance access to 
telecommunications and customer premises equipment for persons with disabilities who have 
difficulty using the telephone or are unable to do so.  Indeed, the proposed approach may well 
thwart advances in accessibility as suppliers act to minimize regulatory risks in optimizing their 
investments in new product technologies.  At the same time, the approach embodied in the 
Guidelines would carry high compliance costs; such costs represent resources that might 
alternatively contribute to greater well-being for persons with disabilities affecting the use of the 
telephone under a more productive approach. 

We have identified five economic harms that would follow as a consequence of implementing 
the FCC's implementing the Access Board's guidelines:  

    Damage to the innovation process,
    An inefficient shift in the balance between larger and smaller firms in the electronics
     industry,
    Encouragement of the export of design and manufacturing employment,
    Forced inclusion in equipment of a complex assortment of multiple and sometimes
     conflicting features, and
    Substantial compliance costs.

We consider each of these five harms in turn.

Slowing Innovation
Innovation is an engine of economic process and is an area in which the United States has a 
comparative advantage.  Any regulation that would affect the innovation process should be 
suspect because modern assistive technology rests upon the foundation of general innovation in 
information technology.  

The Access Board's guidelines would insert additional steps for review and documentation in 
the product design process.  These additional steps would slow the movement of products to 
market and may make some marginal but otherwise potentially viable products unprofitable.  
Indeed, under the proposed rules, some innovations would never make it to the marketplace.  For 
example, a small cellular/PCS phone with small keyboard, small display and no backlighting, 
might be quite useful for people with mobility disabilities who desire the convenience of small
size 
and long battery life.  But, such a unit would be less accessible to those with vision disabilities 
than would other designs with larger keyboards and backlit displays.

Biasing Firm Size
Enforcement of the proposed rules would probably result in a disproportionate differential 
burden on large firms.  Small firms have more informal management structures and are less
likely 
than large firms to put in place formal compliance programs.  In addition, it is unlikely that the 
FCC or advocates for the disabled would have the political will to impose significant penalties on 
small firms. Establishing regulatory programs that bias this balance are likely to harm our 
economy.

Exporting Jobs
Although the proposed rules appear to take into account concerns that design and 
development would be undertaken outside the United States and are written to apply to 
equipment so designed, we see significant loopholes.  One loophole is generated by the practice
of 
building equipment out of high-level subassemblies or kits.  If a domestic manufacturer chooses
to 
build a system using high-level subassemblies, such as a display screen or a keyboard, the 
manufacturer can reasonably argue that its design process was limited to the selection of that 
subassembly from among those available on the world market.  A product could consist of a 
collection of a few such high-level subassemblies together with some software and custom 
enclosures.  The design of the subassemblies would not fall under the proposed rules.  

A second loophole occurs if a product is highly successful outside the United States.  
Consider a hypothetical example involving the telecopier, which has become almost ubiquitous
for 
businesses.  Assume that the telecopier had not yet been brought to the market but that firms
were 
considering bringing such a product to the market.  A firm subject to the proposed rules might 
hesitate -fearing that it would be unable to demonstrate that it had fully complied with the 
requirements for accessability for the blind.  However, once the telecopier had succeeded outside 
the United States, consumer and firms would bring pressure to bear to allow the import of such 
equipment (or consumers would purchase such equipment overseas and bring it to the United 
States as personal property).  Successful products developed outside the reach of the proposed 
rules cannot be kept secret from American consumers.  Consequently, markets for such products 
would open in this country, but, manufacturers in the United States would have lost the first-
mover advantage.

Encouraging Development of Hard-to-Use Equipment
The Accessibility Guidelines call for efforts (i.e., expenditure of scarce resources) to endow 
each product model with the capacity simultaneously to address the needs of persons with many 
different kinds of disabilities.  Where such efforts are impractical, the Guidelines require efforts 
(again entailing expenditure of scarce resources) to document that impracticality, presumably in a 
manner sufficiently thorough as to withstand legal challenge and avoid financial penalty.

Instead of breaking a big problem into a series of more solvable smaller ones, the approach 
embodied in the Accessibility Guidelines make every problem a big one not easily amenable to 
practical solution.  Instead of promoting growth in markets for specialized products capable of 
producing improved access for individuals with disabilities, the current approach raises barriers
to 
market growth and innovation for all products.

Consider the problems of making a pager accessible to both the deaf and the blind.  Standard 
alphanumeric pagers are quite convenient for the deaf and profoundly hearing impaired.  They
can 
carry short messages in text form and can alert the user that a message has been received through 
silent vibrations.  A similar pager is almost useless for a blind individual - the message on the 
LCD display is unreadable.  However, the blind have other options -including pagers that deliver 
spoken messages and cellular and PCS phones.  Requiring that every pager be capable of
meeting 
the needs of both deaf individuals and of blind individuals would burden every pager with 
unnecessary elements.  Putting more modes in equipment -as suggested by the proposed rules 
-would make products harder for all consumers to use.  These increased difficulties are likely to 
disproportionately affect those with cognitively disabilities.  Additionally, costs would rise.  

An alternative approach - permitting firms and markets to create a portfolio of 
communications products and permitting consumers to select from that portfolio the product that 
best meets their needs - is far more likely to meet the need of those with disabilities than a one-
size-fits-all mandate.

One of the most telling critiques of the one-size-fits-all approach was offered in comments to 
the Board by the American Speech-Language Hearing Association to the Access Board:

ASHA supports the scope of the Section 255 guidelines regarding application to 
all telecommunications equipment and customer premise equipment (CPE). 
ASHA, however, would disagree to a blanket application of these guidelines to the 
manufacturers of specialized customer premise equipment (SCPE). We find no 
reference in the Communications Act of 1996 indicating SCPE are covered; 
therefore, the Access Board's recommendations go beyond the intent of Congress. 
The reference to SCPE in the current guidelines should be omitted as it is not part 
of the legislative intent and may unintentionally cause harm to the individuals this 
legislation is written to protect.
                                   ASHA Comments Docket 97-1 

ASHA goes on to argue that the design of CPE requires tradeoffs and that it is unwise to 
burden this design tradeoff with extra requirements for universal access:

SCPE is by definition and nomenclature "specialized;" SCPE is often tailor-made 
to fit the needs and lifestyle demands of a given individual.  SCPE manufacturers 
are the innovators in the area of telecommunications accessibility, designing 
technology to meet user needs regardless of market size or potential for mass 
distribution.  Due to this extreme regard for individualization, SCPE 
manufacturers' financial assets, staff resources, and market size are often 
significantly less than that of the more generalized CPE manufacturer.  SCPE 
permits accessibility for a given defined set of users who need a different format to 
input/output telecommunications information. SCPE permits a specific format and 
mode of communication which differs from that used by general population.  
Changing that format or adding other modes may not be technologically or 
financially feasible and unnecessary in meeting the needs of the defined user.  In 
fact such changes may even be detrimental to the purpose of the equipment.
                                      ASHA Comments Docket 97-1 (emphasis added.)

We could provide other quotes from manufacturers of SCPE.   But, the point is clear - 
advocates for the disability community recognize that applying a one-size-fits-all approach to the 
design of some communications devices would harm rather than help those with disabilities.  The 
conclusion to be drawn from such analysis is much more general:  applying the one-size-fits-all 
philosophy to the general market would harm all consumers - those with and without disabilities. 


Compliance Costs
The proposed rules would generate substantial compliance costs.  Firms would have to 
document their product design and development process.  Perhaps most costly, a mechanism 
would have to be put in place to review complaints about possible noncompliance and to referee 
disputes between manufacturers and others regarding noncompliance.  While we believe that
they 
constitute the smallest element in the negative impacts of the proposed rules, the compliance
costs 
are easier to quantify than the other costs of the proposed rules.  In Section VI below, we discuss 
this in greater detail.

EQUITY AND MARKET CONCERNS
In this section, we describe the social and market concerns created by accessibility needs and 
communications services and technologies.  We believe that market failures account for only a 
fraction of the situations where people with disabilities do not obtain the telecommunications 
equipment and services best suited to their needs .   We think the principal concerns arise from 
the following:
    Market failures:
     -    Transaction cost problems;
     -    Deficiencies in training designers; and
     -    Informational failures at the time of purchase.
    Equity concerns:
     -    Affordability for uncommon cases; and
     -    Perception of individuals with disabilities.

Market Failures
Market failures are often ascribed to markets that fail to produce the results commentators 
desire.  But, technically speaking, a market failure occurs when the a competitive market does
not 
produce an efficient supply of particular goods.   One common cause of market failure is 
transaction costs - for example, it may cost a consumer more to search out a product than that 
product delivers in value.  We believe that several specific market failures play a significant role
in 
limiting access by those with disabilities to telecommunications products and services.

Transaction Costs
A rough calculation illustrates the nature of such failures.  There are approximately one 
million payphones in the United States and about one million hearing aid users who use telecoils. 

If we assume that a payphone has a life in the field of five years, then 200,000 new units are 
placed in the field each year.  Expanding the capabilities of a payphone to support a telecoil adds 
about one dollar to the cost of a payphone.  The added cost works out to 20 cents/year - 
roughly half the cost of a payphone call - to give each telecoil user the option of using every 
payphone.  Based upon reflection and conversations with telecoil users, we judge that telecoil 
users would be willing to pay this small amount.  The problem is not that these users are not 
willing to pay but that the market does not permit their preferences to be expressed efficiently.  
Similar problems abound.  Consider the issue of making telephones in hotels and other public 
places hearing-aid compatible.  The arithmetic is similar - but assuring hearing-aid compatibility 
for telephones in hotels would be more costly because there are more hotel-room telephones.  

Consider, in contrast, the alternative of putting a TTY in every hotel room.  TTYs cost about 
$200, and there are three million hotel rooms and one million TTY users.  If a TTY lasted five 
years, the cost putting a TTY in every hotel room works out to $120 per TTY user per year.  
Given that many TTY users carry their own portable unit with them and that hotels can purchase 
a few TTYs and provide them to consumers at the time of check in, it appears clear that 
installation of TTYs in all hotel rooms would be wasteful.  Most of the benefits of such universal 
installation can be gained by less costly approaches.  The lack of TTYs in every hotel room is not 
evidence of a market failure, but rather is economically rational - the need is not compromised, 
but is provided at a lower overall cost to society.

Deficiencies in Training Designers
One intervention that would increase the supply of accessible telecommunications equipment 
is to train designers in accessability needs and the principles of accessible design.  Here, the 
demonstration that such training would remedy a market failure is difficult.  Nevertheless, it is
our 
opinion that such is probably the case.  Training generates no bureaucratic follow-on, and 
operates in the earliest stages of the product life cycle - when changes are least costly.

Information Failures at Time of Purchase
Failures can also occur at the point of purchase.  For example, if retailers fail to explain 
limitations of communications equipment or fail to point out equipment that would better serve 
the needs of a consumer with a disability, then such consumers would be unlikely to obtain the 
equipment that best serves their needs.  Similarly, if consumers are unaware of the alternatives 
available in the market, they may settle for equipment that is suboptimal.  Education of sales 
people and improvements in advertising, point-of-sales displays, and sales literature are the steps  
are most likely to remedy this shortcoming.  Such training could be a formidable challenge 
because many retailers have high staff turnover and manufacturers, for the most part, do not own 
the retail outlets that provide their products.

Equity Concerns
In addition to market failures, there are concerns about equity - to what extent should we as 
a society ensure access to telecommunications equipment and services over and above that which 
would be provided by the market? 

Affordability
The fact that mass market products do not meet needs of those with multiple disabilities or 
exceptionally rare disabilities is not due to market failure.  Rather such individuals need 
specialized or custom solutions.  For example, providing an effective communications terminal
for 
someone who is both blind and suffers from cerebral palsy in all probability will require unique 
equipment to meet the needs of that individual.  Similarly, individuals with such multiple 
disabilities often have limited incomes and thus a limited ability to pay - thereby reducing the 
feasibility of market solutions. We believe that the economically rational tool to deal with such 
unique needs is subsidy - either through private philanthropy or public subsidy.  Several such 
programs exist. 

Appearances
People are also concerned about perceptions and equal treatment.  Some would prefer a world 
where those with disabilities can satisfy as many of their needs as possible with off-the-shelf 
equipment meant for general consumption - even if such arrangements sacrifice efficiency.  We 
disagree with this view.  We believe that restricting the supply of products to assure that products 
appear equal harms many with commensurate benefits.

ECONOMIC CRITIQUE OF THE PROPOSED GUIDELINES
Competitive Markets for Telecommunications Equipment Have Produced 
Substantial Benefits for All Consumers
Product improvements and market innovation have enhanced accessibility and increased 
economic welfare for all telecommunications equipment consumers.  To the extent that the 
process of innovation is inhibited, all consumers are likely to suffer losses of economic welfare
as 
a consequence of their not having new and improved products and services for use on a timely 
basis.

The proposed Accessibility Guidelines raise a variety of barriers to new product development 
and innovation.  By increasing product development costs, they raise the revenue hurdle a 
successful innovation must traverse.  By diffusing development efforts, they inhibit productive 
specialization of effort and function.  By raising the prospect of regulatory second-guessing of 
managerial decision making, they discourage risk taking and encourage compliance efforts that 
follow the path of least resistance.

Accessibility guidelines should attempt first to do no harm and to afford dynamic forces of 
market competition maximum scope for enhancing accessibility capabilities.  If the past serves as
a 
guide, policies designed to spur rapid product development and innovation hold the greatest 
promise for meeting the telecommunications accessibility needs of persons with disabilities.

Costs of Requiring That Every Product Be Engineered to Meet Every Need
The Accessibility Guidelines require that equipment possess certain characteristics to be 
deemed accessible by individuals with disabilities.  To be accessible, equipment must be
operable 
without by those vision, hearing, or speech and with limited manual dexterity or limited
cognitive 
skills.  Defining specific disabilities that equipment capable of meeting various accessibility
needs 
would address is unexceptionable.  The problem with the Guidelines is that they are interpreted
to 
mean that every piece of equipment is subject to the requirements for accessibility and,
moreover, 
that each piece of equipment must be engineered so as to satisfy all of the disparate (and often 
conflicting) accessibility needs of persons with different disabilities.

Telecommunications equipment manufacturers produce a large number of different equipment 
models.  To require that significant resource expenditures be incurred to ensure that each and 
every model complies with the requirements for accessibility would impose substantial
compliance 
costs.  Economically rational compliance efforts would, in contrast, likely focus on the discovery 
and embodiment of particular modifications to particular equipment models to enable them to 
serve the accessibility needs of individuals with particular disabilities or combinations of 
disabilities.  A strategy that requires that costs be incurred to attempt to engineer every piece of 
equipment to meet every accessibility need would, in all likelihood, not produce the desired
results 
and would waste scarce resources that could be more productively deployed in advancing 
accessibility needs.

The barriers to new product development and innovation that would occur as a byproduct of 
this approach would frustrate the primary source of progress in addressing the accessibility needs 
of persons with disabilities - new products with expanded and improved capabilities.

The Costs of Universal Redundancy and Selectibility
Requirements for the inclusion of multiple capabilities pose difficult design issues.  Consider, 
for example, the provision of enhanced audio for persons with hearing disabilities.  One approach 
might be to extend the volume range, thus affording the listener greater ability to increase the 
volume.  If a person without impaired hearing accidentally turns the volume control up with this 
capability, he or she might experience discomfort or disturb others with the extra loud audio.  
Alternatively, provision of this capability might be triggered by a switch, but added selectivity 
raises cognitive problems as the complexity of equipment increases.  Demonstrations that
multiple 
objectives such as these (e.g., provision of multiple selective features and simplicity of operation) 
are not readily achievable would not likely be simple or inexpensive, especially when account is 
taken of the need for such analysis to withstand external scrutiny.

Instead of simplifying the tasks that need to be addressed to produce real progress, the 
proposed approach would complicate the search for solutions and set the bar so high that few 
suppliers, behaving rationally, are likely try to jump over it.  The prudent tack would be simply
to 
avoid altogether the heightened risk of capital expenditures in the new environment and divert 
engineering resources to the task of documenting why the laws of physics and economics do not 
permit ready resolution of incompatible objectives.

The Costs of Establishing Affirmative Duties Throughout the New Product 
Development Process
The Guidelines compel attention to accessibility issues at all stages of product development 
and manufacture for every product.  In contrast to tests for compliance of equipment with various 
well-established technical standards such as those for radio interference, the "readily achievable" 
criterion presents formidable challenges for compliance.  Consider an analysis of whether a 
particular functionality can be provided without audio.  It may be technically feasible to insert a 
voice chip and convert voice into text.  A person with a hearing disability could then use this 
voice-to-text translation.  Suppose, however, that the attendant cost increase threatens the 
economic viability of the product.  If a company judges that incorporating accessibility features
is 
not readily achievable because the required changes make the product likely to fail in the market, 
it would have to build a file documenting that judgment.  That decision calculus would
necessarily 
be subject to second-guessing.  An objective threshold for economic viability is hard to conceive 
in the absence of a market test.  Tests for economic viability are hard to specify and differ among 
producers.

Tests for product compliance would also have to be developed and their legal viability 
assessed.  Compliance would be less readily achievable the stricter the standards for compliance.  
Thus, in addition to costs associated with determining whether accessibility functions are readily 
achievable and, if not, documenting their infeasibility - what might be termed the direct costs of 
compliance - there are also likely to be substantial indirect costs.  Firms would need to develop 
administrative and scientific authentication processes to address compliance requirements.

The Guidelines envision that as new capabilities are invented, their inclusion in particular 
products would be required if "readily achievable."  Such inclusion may increase production
costs, 
raise prices, reduce product demand, and lower profitability.  Whether the increase in costs
would 
be sufficient to render such inclusion not readily achievable would depend on the specific 
circumstances and would be difficult to determine.   Verification of achievability would 
presumably entail a market test.  Validity of such a market test could be subject to challenge.   
Was marketing adequate?  Was product design optimal?  The issue could turn on the adequacy of 
documentation; hence, there would predictably be tendencies toward a surfeit of documentation.  
The ultimate result may intensify efforts to ensure that business decisions were thoroughly and 
convincingly documented rather than any expansion of the well-being of persons with
disabilities.

The Act also calls for equipment to be compatible with peripheral devices typically utilized by 
persons with disabilities.  Certain types of equipment of a particular type could be made to 
function compatibly with certain types of peripheral equipment.  A portable phone with a "hands-
free" capability might, for example, work effectively with a hearing aid.  On the other hand, other 
models may not be capable of functioning easily with peripheral equipment.  A portable phone 
held in proximity to a hearing aid may produce an objectionable hum that may be difficult to 
remedy.  Efforts to make the latter type of device compatible with peripheral equipment are
likely 
to be costly and produce minimal benefits in terms of improved functionality; the misallocation
of 
scarce research efforts under this approach would produce a deadweight loss as suppliers are 
compelled to deploy resources to explain why incompatible objectives are not readily achievable.

The need to jump through added hoops would also likely retard the introduction of improved 
products - even those products for which functional compatibility is clearly achievable.  Delays 
in introducing new products reduce consumer welfare, producing economic losses in addition to 
the deadweight losses from nonproductive and thus wasteful documentation exercises.
The Need to Optimize Technical and Economic Tradeoffs in the Implementation of 
Section 255
The Accessibility Guidelines do not take adequate account of the constraints imposed by 
technical and economic tradeoffs in the production and supply of telecommunications equipment. 

Such constraints necessitate choices in technology and product features to address customer 
needs efficiently and economize on scarce productive resources.

While advances in microelectronics create new ways of implementing systems, at any point in 
time there are tradeoffs between physical size and various product capabilities.  Small physical 
size limits memory capacity, battery size, and the number of different functions that can be 
embodied in any electronic device.  To add a function requires additional read-only memory,
more 
power, and more board space.  That entails sacrificing other capabilities or increasing physical 
size.  The imposition of a minimum number of functionalities would restrict a manufacturer's 
ability to offer customers other desirable product features (e.g., light weight, small size, 
convenient storage, ease of operation).  These tradeoffs affect persons with and without 
disabilities. 

The Guidelines require that equipment be usable with various peripheral devices that enable 
their use by persons with disabilities.  One problem for compliance with this aspect of the 
Guidelines is that equipment is highly varied and often not standardized.  Lack of commonality 
makes it difficult for different peripheral devices to interface with other pieces of equipment.  At 
the same time, lack of standardization reflects a highly dynamic marketplace in which new 
products with new capabilities (requiring new serving arrangements) are being introduced all the 
time.  Again, there is a tradeoff that needs to be recognized and optimized:  It is possible to have 
more standardization and the beneficial consequences in terms of the peripheral device 
accessibility associated therewith, but most likely at the cost of reduced market dynamism and 
product innovation.

COSTS OF THE PROPOSED GUIDELINES

In this section we identify the costs that would be imposed on society by implementation of 
the Guidelines.  In thinking about such costs it is useful to divide such costs into two categories- 
actual expenditures (e.g., the cost of added testing) and harmful, although unintentional, 
consequences of having the rules in place (e.g., some products will not make it to the market).  

     Estimating Compliance Costs
To estimate compliance costs likely to be incurred under the Accessibility Guidelines, it is 
useful to describe in general terms the production process typically involved in producing the 
kinds of telecommunications equipment covered by the Act.  This will provide some feel for
kinds 
of work activities performed during the course of product development and manufacture.  While 
the production process varies across product development efforts - with some projects involving 
only simple modifications of existing products with a truncated development period, other 
projects involve major systems and component development over an extended period, and still 
others entail the optimization of difficult design and manufacturing tradeoffs -  it is nevertheless 
possible to generalize in a constructive way.  This generic view then can supply the base from 
which to gauge the effects of the Guidelines' requirements.

The production process for telecommunications equipment can be broken down into a number 
of basic stages.  We describe them in the logical sequence in which they occur, although actual 
production processes tend to be more complex, typically involving any number of information
and 
design feedback loops, frequent design modifications affecting materials and component 
requirements, combinations of required work skills, and the organization of manufacturing and 
shop facilities.  Development processes for software - and equipment in which software 
comprises a large fraction of the value added by the manufacturer - also typically differ 
somewhat from the general description offered here.

Description of the Production Process
Resources are limited, and product development filters the large number of potential products 
down to those for which the technical, financial, and marketplace risks and rewards are deemed 
most attractive.  The product development process entails constant decision making and 
concomitant data collection and analysis.  The process of reducing a fluid idea to decision-
relevant data and specifying the detailed instructions required to fabricate equipment components 
as well as the component fabrication equipment is very costly.  The process of deciding which 
design features to ignore and which to risk spending on for the next stage of development itself 
constitutes a significant cost.

We divide the production process into four stages: research, specification and design, 
prototyping, and manufacturing startup.  Research is the most basic step.  It includes studies of 
physical phenomena (such as how metals harden) and studies of consumer behavior (such as how 
many display menu choices are optimal).  Specification and design is the stage at which the 
concept of a product is conceived and the implementation of the product is developed.  
Prototyping is the building of one or a few test models of the product and the verification that the 
product performs as desired.  Manufacturing startup is the transfer of the design from product 
development to manufacturing.  It includes developing manufacturing processes and support 
materials such as user manuals.  

Impacts on Work Activities
Section 255 requires that manufacturers "design, develop, and fabricate equipment to be 
accessible."   The proposed Guidelines state that "[m]anufacturers shall evaluate the 
accessibility and usability of . . . equipment . . . and shall incorporate such evaluation throughout 
product design, development, fabrication, and delivery as early and consistently as possible."   

The Guidelines require that manufacturers "provide employee training appropriate to an 
employee's function."   This requirement would affect all stages of development.  While the 
clerk or general manager in charge of some common back-office function might, under this
rubric, 
merely require a level of sensitivity training and a survey of accessibility issues, the training 
"appropriate to the function" of an employee in basic research might require the same level of 
scientific sophistication and depth of knowledge that the researcher brings to their other work, a 
significant educational undertaking. 

The Guideline's expectation that the focus groups and samples each firm uses for market 
research include individuals with disabilities would affect the research stage.  The impacts of this 
requirement include not just the reworking of existing marketing and scientific research methods, 
but also the additional work required to regularly locate, assemble, and successfully interact with 
individuals with every type of disability.  While we agree, and recommend below, that firms 
should educate their designers to the needs of people with disabilities, the Guideline's 
requirements appear burdensome and excessive.

The actual process of product specification and design would be significantly altered to 
accommodate accessibility needs for every disability in every product.  For most companies, this 
would also affect existing strategies for market segmentation, entry and exit.  Most important, it
is 
likely that formal procedures would be put in place to document the consideration of each new 
product feature, however tentative, and to demonstrate that each dimension of added accessibility 
either was duly implemented as early as possible into the evolving design or was not readily 
achievable.  Documentation and evaluation efforts would likely expand substantially.

The functional interdependencies among different parts of each product - among multiple 
products on each technological platform, and between the product and the production 
infrastructure in place - are made explicit and subjected to formal corporate decision making at 
the specification and design stage.  Thus, the costs of each new accessibility capability would 
become understood, as would the costs - characterized as common planning expenses - 
incurred earlier in the process in which alternative approaches were abandoned or delayed due to 
universal accessibility concerns.  The prudent corporation would likely install layers of formal 
reviews and documentation to be evaluated by the legal or regulatory departments.

The explicit economic costs of compliance would ultimately be felt most severely by the firm 
in the specification and design and prototyping stages.  The accessibility problem ultimately 
requires actual physical testing of proposed models by disabled individuals.  This can only occur 
after prototypes have become available.  As contemplated by the proposed Guidelines, every 
prototype model would have to be tested for compliance on every dimension of accessibility. 
Due 
to the very nature of the prototyping process,  this evaluation activity must occur before other 
engineering issues have been stabilized.  Presumably, if design parameters change after 
accessibility testing has been performed, this testing must be repeated to ensure the product is
still 
in compliance.  This represents a departure from the distribution of risk in the new product 
development cycle the industry has relied upon to date.  Heretofore, a firm could settle 
fundamental user interface issues at the early prototype stages, then shift attention to issues of 
cost, performance, and ease of manufacture in the later phases of final product design and 
manufacturing startup.  If later changes in design for cost or performance considerations resulted 
in a change in usability for consumers, the firm would at worst face the prospect of reduced 
consumer acceptance or outright product failure.  In the new world proposed by the Guidelines, 
the firm would also be in violation of the law. 

In contrast to other stages of production, the Guidelines have very specific recommendations 
for the distribution, sales, and support of new product introduction. The requirements include not 
only the training of people involved in sales and product support to interact with individuals with 
any of a broad range of disabilities according to standards that are currently unknown and may be 
expected to change and the development of a concomitant spectrum of sales and user information 
in a variety of modalities.  We judge that these elements of the Guidelines would be less 
burdensome; and we doubt that they would have significant negative impacts.  Indeed, we notice 
that many firms are providing such information today.

Estimates of Compliance Costs
Sizing the Market
It is impossible to gauge the full extent of the equipment manufacturing activity that would 
ultimately fall under the yoke of any formal Section 255 compliance requirements.  Indeed, it is 
likely that a whole cottage industry would form around expanding the set of products affected. 
Among the types of telecommunications products currently manufactured for sale or use in the 
United States, it appears that the language of Section 255 could, at a minimum, arguably 
encompass subsets of at least the following:

    Ordinary, portable, mobile, and pay telephones;
-    Telephone central office equipment;
-    Terrestrial, satellite, and cable set-top boxes; 
- Computer software and hardware, including peripheral 
devices such as  video displays, keyboards, printers, and audio speakers;
-    Modems and video codecs; and
-    Pagers and personal communications devices.

Below we use two separate approaches to identify the scale of economic activity affected by 
the Guidelines.  The first approach is based upon Census data and corporate reports.  The second 
approach, which we use as a check on our first approach, is to examine the volume of Part 15 and 
Part 64 devices registered at the FCC each year.

We gathered information on sales and research and development spending from the annual 
reports of three major communications products manufacturers: Motorola, a manufacturer of 
radios, computer chips and network infrastructure equipment; Lucent, the recently independent 
equipment manufacturer that was formerly known as AT&T Technologies and before that was 
known as Western Electric; and Microsoft, the computer software manufacturer whose most 
well-known product, Windows 95, contains software for remote access computing, Internet 
access, faxing, email, and other communications tasks.  The results of this tabulation are shown 
below

Firm
R&D Expenditures
(millions)
Sales
(millions)
R&D Expenditures 
As a % of Sales
Lucent
$4,047
$26,360
15.4%
Microsoft
$1,925
$11,358
16.9%
Motorola
$2,394
$27,937
8.6%
Total
$8,366
$65,655
12.7%

The tabulation above shows that representative firms spend about 10 to 15 percent of their 
gross revenue on R&D activities.  In our analysis below, we assume that product design and 
development costs total 12 percent of industry gross revenue.  

The Census Bureau classifies manufacturing industries by a code known as the standard 
industrial classification (SIC).  SIC codes may be either two-digit, three-digit, or four-digit.  
Three-digit codes are subdivisions of two-digit codes.  For example, SIC code 36 is electronic
and 
other electric equipment and code 361 is electrical distribution equipment. The relevant two-digit 
code for understanding the effects of the proposed rules is SIC 36 - electronic and other electric 
equipment.  The Census Bureau reported that firms with this SIC code accounted for $300 billion 
worth of industry shipments in 1995.   But, clearly this SIC code includes other activities 
besides telecommunications equipment.  The three-digit SIC codes 357 (computer and office 
equipment) and 366 (communications equipment) include the economic activities primarily 
affected by the proposed rules.  The Census Bureau reported that the value of industry shipments 
in 1995 for code 357 was $90.2 billion and the value of shipments for code 366 was $58.8
billion, 
for a total value of shipments of $149 billion.  Assuming a 12 percent ratio of R&D costs to 
shipments, we obtain a figure associated R&D expenditures for these industries of about $18 
billion in 1995.   We believe that roughly two-thirds or $12 billion of this R&D expenditure is
for 
products covered by the Guidelines.  Even a slight burden on this effort would impose substantial 
total costs on our society. 

If we assume a distribution of the scale of project development projects, we can estimate the 
total number of projects associated with $12 billion of development costs.  We have performed 
such a calculation - using the model described in Appendix A.  We estimate that development of 
5,000 products per year would account for $6 to $12 billion in research and development costs.  
We also estimate with this model, that compliance costs alone for these projects would lie in 
the range of $450 to $750 million per year.  We believe that the consumer harms from damages 
to the innovation process would be much higher.

A Lower Bound
To estimate a lower bound on the costs associated with formal compliance with the proposed 
Guidelines, we need as a starting point an estimate of the number of new products introduced 
each year in the United States that are likely to fall within the scope of Section 255.

We use the equipment subject to the FCC's Part 68 and Part 15 rules as a conservative 
surrogate in this regard.  The FCC's rules in Part 68 govern the physical characteristics of devices 
that can be connected to the Public Switched Telephone Network (PST), and the rules in Part 15 
limit the amount and nature of radio frequency interference that a device may generate.  
Manufacturers of telecommunications and electrical equipment must ensure that the products
they 
sell comply with these rules before they are marketed in the United States and, therefore, 
extensive effort is put into designing and testing each product type for compliance.  There is thus 
a strong analogy between the administration of Parts 68 and 15, on the one hand, and the 
compliance regime embodied in the proposed Guidelines on the other.   Moreover, 
administration of Parts 68 and 15 has been in place for decades now and, subject to qualifications 
that we spell out in greater detail below, the pool of equipment affected has the advantage of 
being in many respects a known quantity.  Finally, the implementation of Part 68 and Part 15 had 
provided useful insights into the kinds of impacts the proposed Guidelines are likely to have on 
manufacturers.  

Our first application of the surrogates is to estimate a lower bound on the number of firms and 
new model types that might be affected by the Guidelines.  Turning first to the Part 68 data, in a 
typical year, the FCC estimated that it receives an average of approximately 2,400 Part 68 
applications from approximately 800 firms.   Annual data, however, tend to under represent the 
large number of firms that introduce new products less often than annually. Moreover, firms 
seeking Part 68 registration ("applicants") are usually those firms marketing the equipment in the 
United States, not necessarily those doing the manufacturing.  It is not uncommon for each such 
marketing entity to rely on multiple manufacturers to supply its product; thus, the 800-applicant 
figure is much lower than the number of manufacturers affected by Part 68 requirements.  If we 
instead consider data from the Commission's twenty years of operating the program and 
conservatively assume that the ratio of applicants to manufacturers remains constant, we can 
estimate that the 800 applicants relied on approximately 1,800 manufacturers, some of them 
vertically integrated, to produce their products.

Certification and type acceptance data for 1996 similarly show that approximately 1,500 firms 
applied for certification under Part 15 and other programs. 

As we have stated, Part 15 affects equipment capable of causing electromagnetic interference 
with radio frequencies, and Part 68 deals only in equipment that is to be directly connected to the 
PSTN.  In contrast, our ultimate purpose is to gauge the level of economic activity affected by
the 
Board's Section 255 Guidelines, which address the accessibility of all telecommunications and 
customer premises equipment.  How valid a surrogate are Part 15 and Part 68 models?

Part 15 and Part 68 models likely represent a very conservative lower bound for purposes of 
gauging costs of compliance under the proposed Guidelines. Most Section 255-affected 
equipment does not connect directly to the PSTN.  Indeed, for any connection to the PSTN via a 
Part 68-affected device, there will likely be many multiples of Section 255-equipment types that 
will use that device to connect to the PSTN.  Thus, the number of model types that would be 
affected by the Guidelines (each corresponding to a thread of some length through the new 
product development path) would likely be some large multiple of the number of equipment 
model types affected by Part 68.

A survey of 1996-type acceptances and certifications under Part 15 reveals that nearly half of 
the applications centered on computer or computer peripheral equipment.  In a day when nearly 
every computing device sold is capable of connection directly or indirectly to other computers, it 
is difficult to believe that these devices and those connected to them will not fall within the ambit 
of Section 255.  However, in order to generate a conservative lower bound, we culled the 1996 
data to include only applications falling within Equipment Class Descriptions that might include 
pagers, cordless telephones, and other equipment of an ambiguously classical
telecommunications 
nature.  Of the 66 Equipment Classes represented in the 1996 data, we chose only applications 
falling within the following categories:

Telecommunications Equipment Classes



Class
Description
Class
Description
CXX
Communications Receiver
PCE
Nonbroadcast Transmitter
CYY
Low-Power Communications Device Receiver
PCF
Nonbroadcast Transmitter
DSS
Spread Spectrum Transmitter
PCT
Nonbroadcast Transmitter
DXC
Low-Power Transceiver, Rx Certified
PUB
Unlicensed PCS Transmitter
DXT
Low-Power Transceiver, Rx Verified
PUE
Unlicensed PCS Transmitter
DXX
Low-Power Communication Device 
Transmitter
PUT
Unlicensed PCS Transmitter
ETB
Cordless Telephone Base Transceiver
TNB
Nonbroadcast Transmitter
ETR
Cordless Telephone Remote Transceiver
TNE
Nonbroadcast Transmitter
ETS
Cordless Telephone System
TNF
Nonbroadcast Transmitter
PCB
Nonbroadcast Transmitter
TNT
Nonbroadcast Transmitter

This has the net effect of reducing the 9,218 total 1996 applications in our pool to 
approximately 2,500.  Viewing the Part 68 and Part 15 as a whole and ignoring (once again, with 
conservative effect) that equipment in one may not necessarily fall in the other, we can model 
annual new product output in the United States for telecommunications equipment as 2,500 new 
product introductions per year from, for the sake of argument, 1,200 manufacturers.  Of course, 
there are many telecommunications products that do not require Part 15 or Part 68 certification 
(e.g., web browser software or a central office voice mail module).  Consequently we know that 
the above count significantly underestimates the number of products affected by a substantial 
factor - probably somewhere in the range of two to five.

Notice that our two estimates are consonant - the count of FCC activities of 2,500 products 
per year (a count that must miss many products is biased low) and the estimate of 6,500 products 
per year based upon industry sales - fit together reasonably well.  

Modeling Compliance Costs
At a minimum, the proposed Guidelines envision a regime in which the Access Board 
maintains a constantly lengthening checklist of performance parameters for device inputs and 
outputs.  The prudent manufacturer would have little choice but to respond to these requirements 
by establishing a cadre of lawyers and  regulatory experts to follow the constantly shifting 
standards, represent the company's interests in the ongoing process, and ensure that new 
standards are implemented within the firm.  A test laboratory would also need to be established, 
with engineers versed in the science behind each new standard, to test each final model for 
compliance.  We now turn our attention to gauging these more formal costs of complying with 
the proposed Guidelines.

The annual costs associated with Part 68 and Part 15 compliance are significant.  The FCC 
itself, which merely has to test these final products for compliance against well-established 
technical standards using a stable base of equipment, has a laboratory of 35 employees with a $2 
million annual budget.  It is not surprising that manufacturers, who must actually design,
develop, 
and manufacturer the equipment in compliance with these standards, spend several times more
per 
year.  One large, vertically integrated manufacturer we interviewed designs, develops, and 
manufactures over 100 new U.S. product models a year.  It estimated that the formal aspects of 
Part 68 and Part 15 compliance and the associated engineering and regulatory activity require 50 
full-time staff equivalents combined with $50 million worth of lab equipment.  This works out to 
about $50,000 per product approved.  If same cost applied to all 5,000 products affected by the 
Guidelines, the cost would total $250 million per year.

How suitable are these Part 68 and Part 15 data as a surrogate for compliance costs under the 
Guidelines as contemplated?  As we have already observed, Part 68 and Part 15 compliance is 
based on a compact, well-defined engineering problem expressed in terms of established 
technology and administered according to stable, well-established law and regulations.  The 
compliance effort suggested by the Guidelines is likely to be substantially larger.  First, the 
problem is quite the opposite of compact:  its is entirely open-ended.  From the perspective of an 
engineer who must ultimately array physical and material phenomena in a single, well-defined 
way,  there is no stable, objective, closed technical definition of disability, let alone such a 
definition of accessibility.  Indeed, there is no clear method of developing either.  Second, the 
Guidelines contemplate a shifting, continually evolving body of requirements on manufacturers 
that, presumably, would closely follow the cutting edge of science and technology.  Third, the 
vague yet mandatory decision-making dynamic envisioned by the Guidelines would be no help
in 
establishing stability for these standards, but would instead be the opposite.  A firm or group of 
firms that decide that an interface is acceptable if 8 of 10 of the disabled in the affected class can 
satisfactorily distinguish between two states of an output device would inevitably be challenged
by 
complainants who believe that the appropriate standard should be 18 out of 20.

We developed a simple model that considers the development process to be divided into four 
stages:
    Research, 
    Specification and Design, 
    Prototyping, and 
    Manufacturing Startup.

The model considers four different scales of projects:  
    Simple repackaging of existing products,
    New models of existing products,
    Next generation of simple products or upgrades to complex products, and
    Major new technology platforms.

The model inputs consist of estimates, developed with industry experts, of the fraction of 
projects that fall into each category, the level of effort and duration of each of the four stages,
and 
the percentage cost increase from compliance with the Guidelines at each of the four stages.  

Our model predicts that the added costs of compliance will fall in the range of $450 to $750 
million per year.  Notice that this is comparable to the per product costs associated with Part 15 
and Part 64 compliance.

Product-Specific Costs
Our focus has thus far been exclusively on process costs.  To get a feel for direct effects on 
product prices from implementation of accessibility features, a few examples may suffice.

The FCC estimated that each year 25 million cordless telephones and another 25 million 
corded telephones are sold in the United States.  Let us consider only the materials costs 
ultimately borne by the market of universal compliance with only two of the Guidelines' more 
conventional, well-defined requirements:  the installation of a standard jack for interface to
special 
peripheral equipment and the installation of a motor to allow for a vibrating alert mode. 
Standard 
jacks and associated circuitry are very well understood from an engineering viewpoint and might 
be added for a unit price of perhaps 50 cents.  The motors and mechanical subassembly
associated 
with vibrators - which, incidentally, require a good deal of engineering before the overall 
product can meet conventional product lifetime standards - might conceivably be had for $4.50 
per unit, for a total of $5.00 per unit, yielding total cost in parts alone of a quarter of a billion 
dollars per year for simply these two of a manifold number of products potentially affected.


Average Per Model
Industry-wide
Impacts on Product 
Development
$70,000 to $115,000
$450 M to $750 M
Illustrative Product Costs
$5.00 per unit
$250 M

Synopsis
Based on conservative assumptions, our analysis suggests that a lower bound estimate of 
compliance costs under the Access Board's approach could easily run to more than a billion 
dollars per year (see table above). 

ADVERSE CONSEQUENCES ON INNOVATION

The process that leads to conception of new products is stochastic and serendipitous; it is 
apparently not a highly rationalized, consistent process either within any given firm or across 
different firms.  New ideas often appear to be generated almost randomly through a variety of 
means:  customers surveys, market research, and consumer feedback often provide pertinent
input 
information; sometimes new product concepts are the result of individual brainstorming or grow 
out of laboratory research; and sometimes products are natural extensions of existing products.  
In some companies, development of new products is more systematized than in others, but, in 
general, ideas for new products are generated in many different ways.  This is not a process
easily 
amenable to rationalization for particular ends.

The vibrating pager provides a good example of a product that improves the well-being of 
persons with disabilities, but whose conception had little to do with conscious efforts to help 
persons with disabilities.  It resulted from customer feedback indicating that people working in 
noisy environments were missing pages.  These customers could not hear, not because of a 
disability, but because of the environment in which they worked.  Engineers created a small 
vibrating device so that pagers could function effectively in noisy environments.  As it turned
out, 
the market for vibrating pagers turned out to be even larger.  Many people want to be able to 
receive pages during business meetings and conferences without disturbing others.  The market 
grew, and costs declined as economies of size were realized.  Other new features and functions 
were also added (e.g., alpha-numeric displays).  The result is now a set of products that are 
economical to supply and purchase and help improve the well-being of some people with 
disabilities - a good result but one that was not the intended at the outset.

Thus, new technical capabilities primarily occur as a result of experimentation, trial, and error.  
In most markets, new product ideas are generally test marketed.  Sometimes new products and 
processes are subjected to a full-scale market test and fail completely.  Even failures, however, 
often produce valuable lessons.  Successes and failures by some companies produce guideposts 
and examples for other companies besides the initial experimenters.

The approach embodied in the Guidelines promises to make experimentation and innovation 
more costly by raising development costs, increasing the number of criteria new products must 
satisfy, erecting regulatory barriers, and raising the amount of revenue a new product must 
generate.  With the extra requirements and the likelihood of second-guessing and potential 
penalties, the costs and risks associated with new product development would be increased well 
beyond those that already exist.  The Guidelines may thus deter those very activities that are the 
main sources of product improvements and accessibility advances.

If the goal is discovery and enhancement of service features to meet the needs of persons with 
disabilities, a good approach should encourage greater experimentation and risk-taking to 
discover and deploy solutions.  That is not to say that government should not require that 
particular needs be addressed, but the means sanctioned to address those needs should be 
conceived in a manner that holds the greatest promise of producing improvements.  The main 
promise held out by the Accessibility Guidelines is for large amounts of documentation
explaining 
why the desired objectives are not readily achievable and lengthy disputes over the issue of 
whether articulated rationales are sufficiently persuasive.

An approach to accessibility requirements that inhibits product innovation is likely doomed 
from the start.  Such a tack is difficult to understand given the role innovation has historically 
played in generating advances in accessibility for persons with disabilities.

WHY BUILDING-ACCESS ANALOGIES ARE MISLEADING

The literature on communications devices is replete with analogies to building access for those 
with disabilities.  But, such analogies are fundamentally misleading.  In almost all cases, access 
features in buildings advantage some while disadvantaging no one.  My wheelchair ramp does
not 
interfere with your visual alarm.  Consider the following access features and how few they 
disadvantage:

    Door levers instead of round handles,
    Stalls in bathrooms,
    Lowered drinking fountains,
    Visual alarms,
    Ramps parallel to stairways,
    Elevators parallel to escalators, and
    Elevator labels in Braille.

In contrast, with telecommunications and information terminals and services there are many 
clear clashes of needs.  Consider the following tradeoffs:

    Small keyboards versus big keyboards,
    Multiple modes versus cognitive complexity, 
    Portability and light weight versus size of display, and 
    Point-and-click interfaces versus character-oriented controls.

Each choice between these pairs of design elements benefits one group of individuals with 
disabilities but disadvantages another group.  

The readily affordable standard also differs.  In a building, the primary determinant of 
affordability is construction cost.  In contrast, there are multiple determinants of affordability for 
telecommunications equipment, including design costs, manufacturing costs, and lost sales.  This 
third element, lost sales, necessarily has a subjective component.  People differ in their opinions 
on whether or not consumers would accept a larger and more expensive pager with a larger 
display.  Regulators are unlikely to be able to effectively and fairly review a firm's forecasts
about 
the likely marketplace success of specific products.

To recapitulate, analogies from building access, where needs rarely conflict and the cost 
structure differs, are not necessarily applicable to telecommunications equipment and services 
access.

AN ALTERNATIVE APPROACH
Flaws in the Proposed Approach
     The approach embodied in the proposed Guidelines entails very specific proscription of 
compliance efforts in two important ways:  (1) the Guidelines require efforts to make each and 
every product serve the needs of persons with disabilities, and (2) the Guidelines require efforts
to 
make each product simultaneously meet the (sometimes conflicting) needs of persons with 
different disabilities.  It is not a matter of trying to create a variety of specific products to meet
the 
needs of persons with specific disabilities but rather of making every product capable of 
simultaneously meeting the accessibility needs of persons with different disabilities.

As we have remarked, this is not a strategy likely to produce improved equipment or service 
accessibility for persons with disabilities; instead it sets demanding marks for authentication 
efforts to document that equipment or serving arrangements capable of satisfying such disparate 
objectives are, in fact, not readily achievable.  The requirements are probably impossible to 
achieve; therefore, compliance efforts would primarily consist of demonstrating and explaining 
why the requirements are not readily achievable in specific contexts.  The result would likely be
a 
process that is long on creation of paper trails and second-guessing but short on improved 
accessibility for persons with disabilities.  Given the increased costs of and barriers to product 
innovation under the Guidelines, improvements in accessibility may well fall short of what might 
have occurred in the absence of changes in government policy.  It may well be that the welfare of 
all consumers - disabled individuals included - would be significantly reduced on account of 
the reduced product innovation and higher production costs engendered by the added regulatory 
burdens. 

The Accessibility Guidelines do offer firms supplying equipment with the means (perhaps 
illusory) to comply with the statute's mandates.  In particular, as long as firms can document why 
the requirements are not readily achievable, they may ostensibly be judged to be in compliance.  
This is a genuine benefit (although one different from the principal statutory objective of 
improving accessibility for persons with disabilities), but one that is likely purchased at a high 
cost.  In particular, the added layers of compliance bureaucracy add costs but do not contribute to 
enhanced productivity in terms of improved accessibility.  In addition, some means of statutory 
enforcement are required and the government presumably needs some empirical basis on which
to 
base findings about the scope and extent of compliance efforts and the statute's effectiveness in 
achieving its objectives.

Given the shortcomings in the approach embodied in the Accessibility Guidelines, the question 
naturally arises as to what would constitute a more reasonable alternative approach to 
achievement of statutory objectives in lieu of the approach embodied in the Guidelines?  In our 
view, there are two important changes in the Guidelines that could produce significant 
improvements in their effectiveness, both in terms of increasing accessibility benefits for persons 
with disabilities and in terms of reducing deadweight compliance costs.

The first recommended change would entail abandonment of the unachievable objective of 
having each and every product equipped to meet each of the diverse needs of persons with 
disabilities.  That approach is not only likely to prove ineffective in producing advances in 
accessibility, but also likely to impose higher costs on all consumers, including persons with 
disabilities.

The second change we would recommend is for the FCC to seek to ensure achievement of 
legislative objectives through a formal process of monitoring, reporting and review.  The FCC
has 
used this approach successfully in other contexts, and such an approach would be more in
keeping 
with the reliance on market forces that generally characterizes the Telecommunications Act's 
informing philosophy.  This is a case where, given the nature of the goals and the means likely to 
be available to achieve them, detailed proscriptive regulation seems almost bound to fail.  At the 
same time, there is an immense reserve of good will available that can be exploited and directed 
toward the production of improved devices to address the accessibility needs of persons with 
disabilities.  The government can play an important role in providing direction and guidance to 
ensure that such resources are productively deployed and genuine progress is achieved. 

Solutions
We offer solutions to each of the separate problems - market failures, distributional 
concerns, and issues of appearances and recommend modifications to the Section 255
Guidelines.  

Market failures have already been solved for telecoils.  A reasonable case may be made that a 
market failure exists in the training of design staffs.  Requirements that manufacturers institute 
programs for training their design staffs in principles of accessible design and in the needs of 
people with disabilities would also probably serve efficiency. 

The problem of information failures at time of purchase can be addressed by requiring better 
marketing information and the availability of marketing information to those with disabilities.  
Both Section 255 and the Access Board's Guidelines address this problem.  The problem of 
ensuring that retail staffs are properly trained is more difficult.  The proposed rules reach the 
carriers and their marketing staffs but do not deal with the retail distribution of consumer 
electronics.  
 
Distributional concerns associated with meeting the needs created by rare disabilities are 
unlikely to be met by regulation of manufacturers and service providers.  Rather, various forms
of 
direct subsidy are needed for such orphan conditions.

The problem associated with concerns about categorizing or stigmatizing those with 
disabilities appears difficult to solve.  We are concerned that any attempt to solve this would 
result in a reduction in the solutions available to those with disabilities.  Further, a successful 
solution would not eliminate the need for special solutions for many with disabilities.  Reducing 
the supply of equipment explicitly designed to solve problems created by disabilities and
reducing 
the marketing opportunities for such equipment might have the undesired result of reducing the 
supply of equipment to those with the less common disabilities and may also increase any
negative 
images associated with specialized communications equipment.

Recommendations 
We believe that incorporation of the following principals would serve both economic 
efficiency and the needs of persons with disabilities.  

There should be separate treatment of consumer products, and products and services, such as 
payphones, where the consumer has a less direct voice in equipment selection.  In this case 
regulations of telecommunications service providers would usually suffice to ensure that the
goals 
are met.
Consumer products should be subject to a "choice principal."  At the very least, entire product 
lines should be considered.  For example, if a firm provides a speaker phone, the firm should be 
able to provide a similar telephone without the speaker phone capabilities and remain in 
compliance with any rules adopted under Section 255.  Similarly, the reasonable availability of 
product alternatives should remove the need for a manufacturer's product line to meet a specific 
need.  For example, many vendors already supply speaker phones.  There is no need for a 
requirement that all telephone equipment manufacturers supply speaker phones.

If a firm claims that lack of market demand makes providing a specific product not readily 
achievable, the burden of proof should be on any complainants to show that market demand 
exists.  Further, such a showing should be held to a high standard of proof.

Equipment manufacturers should be able to demonstrate compliance with Section 255 for 
consumer products by:

    Accessible labeling, packaging and marketing of all products;
    Having in place a training program that assures that design engineers are familiar with the
     principles of accessible designs, with the needs of people with disabilities, and existing
     with solutions for disability needs; and
    Making a practice of including members of the disability community in their market
     research and product development research. 

Any regulations adopted to implement Section 255 should explicitly recognize the problem of 
conflict between the needs created by disparate disabilities.  Specifically, products containing a 
feature that benefits people with a specific disability (e.g., a small keyboard) should be exempt 
from complaints regarding the unsuitability of that feature for other disabilities. 

Given the wide variety of software providers and the international marketing of software over 
the Internet, software products should be excluded from the rules. 

The FCC's Role In Compliance
Compliance efforts under the proposed Guidelines are likely to be focused primarily on 
documentation of good-faith efforts to incorporate accessibility features and to justify inability to 
achieve mandated results in terms of their being not readily achievable for various technical and 
economic reasons.  Under this approach, a supplier's ability to pass muster is largely reckoned in 
terms of its ability to demonstrate that it strove mightily, notwithstanding any failures to produce 
tangible results, and its ability to present convincing analysis rationalizing the decisions it has 
made to an external observer.

In our view, compliance should instead primarily be reckoned in terms of results rather than 
efforts expended, which is not to say that effort does not provide a reasonable measure of good 
faith.  The issues presented by the accessibility provisions of the Telecommunications Act appear 
to lend themselves to an approach in which the FCC supplies a clearinghouse for exchanges of 
relevant information and differing views and serves as an ombudsman, pointing the way and 
pushing for workable solutions.  This is a role the Commission has successfully performed in
other 
similar venues with salutary results.

The FCC as Market Monitor
In the late 1980s, the FCC was confronted with a problem that was less complex and certainly 
less serious than the unmet needs of persons with disabilities,  but was similar in some relevant 
respects to the problem it now faces in ensuring achievement of the Telecommunication Act's 
goals of product and service accessibility for persons with disabilities.  At that time, satellite
video 
programmers had begun to scramble their signals electronically, thereby preventing persons with 
home satellite dishes from receiving the transmissions of many popular cable network program 
services that had previously been available for the taking.  Satellite dish owners typically reside
in 
rural areas where over-the-air viewing options are often limited and cable television systems
have 
not been installed because it is uneconomic to do so given low population densities.  By
installing 
home satellite dishes, consumers in these areas were able to receive the signals of satellite 
programmers that were being transmitted to cable systems for local distribution elsewhere and, 
thereby, to alleviate their reception difficulties.

Rural interests are well represented in Congress, and satellite signal scrambling resulted in 
significant expressions of Congressional concern about the plight of satellite dish owners, who 
had typically invested substantial amounts to install their home dishes but then found themselves 
largely bereft of programming with the onset of signal scrambling.  Persons who reside in rural 
areas rely heavily upon various communications services to maintain effective links to the
societal 
mainstream, and communications services supply important means by which these people are 
integrated with the broader community.  In this context, Congress wanted to ensure that these 
consumers had access to economically priced signal decoders capable of decrypting encoded 
satellite signals as well as competitively priced program packages offering a full range of
program 
services.

In passing the Satellite Home Viewer Act, Congress called on the FCC to assume an 
important oversight function, in particular, to monitor the evolution and performance of the 
fledgling markets for decoder equipment and multichannel video program packages, to identify 
any problem areas that might develop, and to troubleshoot when remedial actions were needed.  
In short, the Commission was assigned the task of following this particular set of problems and 
ensuring that matters were resolved satisfactorily from the standpoint of the initially adversely 
affected population.  To this end, the Commission was specifically charged with preparing a
series 
of annual status reports to describe evolving conditions in the marketplace, identify any specific 
problems that were developing, and evaluate the prospects for solutions.  In so doing, the 
Commission would serve as a clearinghouse for relevant technical and commercial information, 
could help clarify confused circumstances and establish what was actually transpiring in the 
marketplace, and could proselytize for implementation of effective remedies for specific
problems.

To complete the analogy, in this case Congress was concerned with the marketplace's ability 
to meet the signal accessibility needs of persons with signal reception disabilities resulting from 
the instigation of signal scrambling combined with technical and economic constraints arising for 
reasons of geography, topography, and circumstances that had changed quickly.  The technical 
and marketplace means to address these needs were not givens - there were significant questions 
and uncertainties about decoder technology, the ability of suppliers to ramp up production
rapidly 
and meet demands for decryption capabilities in timely fashion, and the pricing and availability
of 
attractive program packages.  These matters were eventually successfully resolved.  With the 
Commission exposing problems and missteps in some areas and disclosing successful attempts to 
cope in others, marketplace solutions were developed, implemented, and made available to 
consumers in fairly short order.  Efficient decryption technology was perfected, and a plethora of 
program packages were brought to market.  Today living in a rural area no longer carries with it 
any associated disadvantages in terms of access (albeit at a price) to a full range of multichannel 
video program options.

FCC Role in Fostering Accessibility Improvements
The accessibility provisions of the Telecommunications Act have put equipment suppliers on 
notice that they must address the accessibility needs of persons with disabilities.  The process of 
developing accessibility guidelines has sensitized suppliers to the specific kinds of accessibility 
needs that need to be addressed and, in some instances, has broadly pointed the way toward 
technical fixes that might offer promise in meeting specific accessibility needs in some types of 
devices.  

Obviously, much work remains to be done.  In many cases, new technical means of addressing 
needs must be conceived, training programs need to be created and executed, relevant market 
research needs to be undertaken, new testing procedures must be developed and refined, and 
reasonable standards for economic feasibility need to be agreed upon.  In this kind of 
environment, in which there is a considerable technical and economic uncertainty and significant 
expenditures of time and other resources are needed to begin to make progress, there is a clear 
role for the government to play in providing a forum for relevant consumers and producers to 
establish priorities, set a series of interim objectives, and settle upon acceptable approaches to 
making needed product improvements.

In our view, it would make good sense for the Commission, as it has done in previous cases, 
to undertake periodic inquiries into the marketplace's performance in addressing the accessibility 
needs of persons with handicaps.  The Commission should undertake such inquiries with a view 
toward issuing periodic status reports detailing the nature and extent of compliance efforts and 
identifying areas in which progress is being made and areas in which more intensive efforts are 
needed.  Serving as an information clearinghouse, the Commission could identify needs and set 
priorities, thereby helping to ensure that compliance efforts are focused where payoffs are likely 
to be greatest and accessibility benefits are maximized.  It could provide a vehicle for organizing 
collaborative efforts to perfect and implement accessibility solutions, standardized testing 
procedures, and technical equipment specifications.  It could offer a forum in which conflicting 
views and claims are exchanged and held up to public scrutiny.  In this manner, the Commission 
could serve as a governmental ombudsman and as a catalyst, hopefully pushing matters toward a 
successful resolution.  In contrast, attempting to enforce detailed proscriptions of equipment 
design and construction would likely prove to be a regulatory morass.

The instant setting is not one in which answers are known and it is simply a matter of 
implementing them in those cases in which it cannot be demonstrated to be uneconomic to do so. 

This is an area where the questions posed are highly complex and the answers are rarely likely to 
be simple, almost always involving the optimization of difficult economic and technical tradeoffs 
among conflicting design objectives.  Indeed, any simple answer is almost certainly going to be 
wrong.  In this regard, requiring that every product be engineered to meet every need is surely an 
answer only in the abstract.

Practical solutions are inevitably going to embody incremental improvements that address only 
a subset of the universe of accessibility needs.  Even if it were feasible to conceive and create 
products that simultaneously address all accessibility needs, the costs of producing such products 
would likely place them far beyond the wherewithal of even the most wealthy of persons with 
disabilities.  Indeed, such products would likely exceed the willingness to pay of most
consumers.  
It serves little purpose to adopt an approach that has little chance of succeeding, but whose 
pursuit would entail high compliance costs and the stifling of an economic innovative process
that 
has historically been the principal source of improvements in accessibility for persons both with 
and without disabilities.

APPENDIX
Project Design Cost Model

As part of this project, a spreadsheet model was developed to allow checking the calculation 
of the level of affected R&D efforts.  This model considered four different sizes of product
design 
efforts and ranges of levels of effort were estimated for each of the four classes.  The four classes 
of projects were:

A.   Simple repackaging of products such as telephones or modems,
B.   New models of products such as telephones or modems,
C.   Developing next generation of phones or modems or upgrading a major product such as a 
telephone switch, and
D.   Developing major new technology platforms such as a new generation PCS system. 

An estimate of the proportion of product design efforts that fell into each of the four classes 
was developed along with an estimate of the total number of product design projects.  We also 
estimated the fraction that complying with the Guidelines would increase the effort at each of the 
four stages.  Those estimates were:  research - 5 percent, specification and design - 5 percent, 
prototype to manufacturing - 8 percent, and manufacturing startup - 1 percent.  The tables 
below show the calculations from this model.




Program Type

A
B
C
D
Average






% MIX:
31.0
48.8
20.0
.2
100 *








Months

Months

Months

Months

Months
Function
HC
Min
Max
HC
Min
Max
HC
Min
Max
HC
Min
Max
HC
Min
Max
Research
2
0.5
1
4
1
3
10
3
6
20
6
12
5
1.3
3
Specs/Design
3
1
2
6
3
8
20
10
18
100
18
24
8
3.8
8.17
Proto to 
Manuf
3
1
5
6
5
10
20
18
24
100
24
36
8
6.4
11.3
Manuf 
Startup
6
1
2
10
2
8
30
6
12
160
12
24
13
2.5
6.97
Total

3.5
10

11
29

37
60

60
96

14
29.4


Note: HCY stands for head-count year.


Total Industry Development Cost ($M)

Program Type

A
B
C
D
Total
Program Number:
2015
3172
1300
13
6500
Minimum HCY
2,183
19,032
83,417
6,760
111,392
Maximum HCY
5,877
52,867
136,500
10,920
206,164
Minimum $
$164
$1,427
$6,256
$507
$8,354
Maximum $
$441
$3,965
$10,238
$819
$15,462





Function
Expected Cost Increase                                 
to Comply with Guidelines
Research
5%
Specs/Design
5%
Proto to Manuf
8%
Manuf Startup
1%






Total Industry Compliance Cost ($M)

Program Type

A
B
C
D
Total
Program Number:
2015
3172
1300
13
6500
Minimum HCY
84
978
4,561
333
5,956
Maximum HCY
289
2,273
6,825
497
9,884
Minimum $
$6
$73
$342
$25
$447
Maximum $
$22
$170
$512
$37
$741






******************************************************************************
Telecommunications Industry Association


Proposal for FCC Guidelines
for
Implementing Section 255 of the Communications Act

Discussion Draft
December 10, 1997
***************************************************


Implementation of Section 255 of the Communications Act 
Guidelines for Equipment Manufacturers

1.  General.  

Manufacturer guidelines for access by persons with disabilities to telecommunications equipment
and 
customer premises equipment.  

(a)  Definitions.  

(1)   Accessible:  Telecommunications equipment and customer premises equipment is 
accessible when it can be used by individuals with disabilities in its standard manufactured 
and shipped form without having to modify the product or purchase other equipment.  
 
(2)   Compatible:  Customer premises equipment ("CPE") and telecommunications equipment 
is compatible if it conforms with a compatibility interface standard adopted by an 
accredited voluntary consensus standards body, as described in Paragraph 8, for the 
interconnection of such equipment with peripheral devices or specialized CPE commonly 
used by individuals with disabilities to achieve access. 
 
(3)   Manufacturer:  A manufacturer of telecommunications equipment or CPE is the division, 
business unit, subsidiary, or other business entity that is responsible for introducing, 
directly or through distribution arrangements, related telecommunications equipment or 
CPE into the United States marketplace in its final form or has direct control over the 
design and development, fabrication, and costs and expenses associated with such 
products. 

 
(4)   Disability:  As applied to telecommunications equipment or customer premises 
equipment, disability means a current limitation affecting hearing, vision, movement, 
manipulation, speech, or interpretation of information which substantially limits the use of 
telecommunications equipment, customer premises equipment, or telecommunications 
services.  

(5)  Readily achievable:  As applied to telecommunications equipment and CPE, an action 
by a manufacturer to make telecommunications equipment or CPE accessible, usable, or 
compatible is readily achievable if it: 

(i)  Is technically feasible at the time design or development activities for the 
telecommunications equipment or CPE commences;

(ii)  Does not add much to the expense of designing or developing the 
telecommunications equipment or CPE or to the cost or expense of manufacturing 
or marketing its telecommunications equipment or CPE;

(iii)  Does not add much to the time required to design or develop its 
telecommunications equipment or CPE;

(iv)  Does not involve altering a fundamental or essential characteristic of the 
telecommunications equipment or CPE;  

(v)  Would not significantly limit the usefulness, marketability, or volume of sales of 
the telecommunications or CPE; and  

(vi)  is not inconsistent with an existing FCC regulation, technical specification or 
requirement, or stated policy goal and does not conflict with other applicable 
interface standards as described in Paragraph 8. 


2.  Accessibility and compatibility of telecommunications equipment and customer premises 
equipment.

(a)  General.  A manufacturer of telecommunications equipment or CPE shall ensure that the 
equipment is designed, developed, and fabricated to be accessible to and usable by individuals 
with disabilities, if readily achievable.  Whenever such accessibility and usability is not readily 
achievable, such manufacturer shall ensure that the equipment is compatible with existing 
peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve 
access, if readily achievable.  



(b)  Ongoing obligation.  The obligation to evaluate the accessibility of telecommunications 
equipment and CPE is an ongoing obligation that must be accomplished at the beginning of the 
design and development process for new telecommunications equipment and CPE and upgrades 
of existing telecommunications equipment and CPE which materially affect the functionality of 
the equipment.

(c)  Manufacturer's discretion.  These Guidelines recognize that there will be cases where 
manufacturers may not be able to achieve the creation of a single product that addresses 
accessibility for all, or some, combinations or degrees of disabilities.  Therefore, manufacturers 
have reasonable discretion in choosing among those accessibility features to be incorporated 
into telecommunications equipment and CPE.  Notwithstanding the foregoing, manufacturers 
should consider incorporating into another comparable product, an access feature or features 
not addressed in other products. Manufacturers shall make good faith efforts to address the 
limitations which affect the use of telecommunications equipment and CPE by persons with 
disabilities. 

3.  General guidelines for manufacturers.

(a)  Adoption of a process to ensure accessibility and compatibility.

(1)  No later than twelve months following the effective date of these Guidelines, each 
manufacturer of telecommunications equipment or CPE should adopt a process for 
accomplishing the goal of enhancing the accessibility and usability of its equipment.  
Paragraphs 9. and 10. describe those aspects of accessibility and compatibility which 
manufacturers are expected to consider when evaluating whether it is readily achievable to 
make telecommunications equipment and CPE accessible or compatible.  Third party 
certification of such a process shall not be required.  

(2)  Each manufacturer may adopt a process that is most consistent with its unique 
organizational and management structure, provided that the process, at a minimum, will: 

(i)  Identify barriers to the accessibility of the manufacturer's telecommunications 
equipment or CPE resulting from the limitations constituting a disability; 

(ii)  Disseminate information about accessibility needs and barriers to employees and 
others involved in the equipment design and development processes;


(iii)  Consider accessibility early in the design and development processes; and

(iv)  Evaluate designs to remove barriers to accessibility or to enhance the 
accessibility of telecommunications equipment or CPE.

(3)  Each manufacturer shall incorporate into its products those designs to increase 
accessibility identified by its processes to the extent that it is readily achievable to do so.  
When designs to remove barriers to accessibility are not readily achievable, manufacturers 
shall:

(i)  Identify applicable interface standards, adopted in accordance with Paragraph 8., 
governing the connection of telecommunications equipment or CPE with existing 
peripheral devices or specialized customer premises equipment; and

(ii)  Ensure compatibility with such standards, to the extent that it is readily 
achievable to do so.  

(b)  Adoption of measures to ensure usability.

(1)  No later than twelve months following the effective date of the Guidelines, each 
manufacturer shall adopt measures to ensure that individuals with disabilities are provided 
with usable information and documentation about its telecommunications equipment and 
CPE, if readily achievable.  For purposes of these Guidelines, usable information and 
documentation shall include user guides or instructions, installation instructions for end-
user installable devices, and other product support communications, including but not 
limited to call centers.
 
(2)  To the extent that it is readily achievable to do so, information and documentation 
referred to in Paragraph 3. (b) (1):  

(i)  Should include information about accessibility and compatibility features;  

(ii)  Should be generally equivalent to information provided to similarly situated 
individuals without disabilities;

(iii)  Should be provided, upon request, in alternate formats (e.g., Braille, ASCII 
text, large print, audio recording, etc.) or alternate modes (e.g., voice, facsimile, 
relay service, teletype ("TTY"), Internet posting, captioning, etc.), and;


(iv)  May be packaged with the product or may be provided separately upon request, 
if the manufacturer has included in the product package the address of its point of 
contact for accessibility or compatibility information. 

4.  Complaints.

(a)  Informal resolution of inquiries or complaints.  

(1)  Individuals with disabilities and manufacturers of telecommunications equipment and 
CPE are encouraged to resolve informally complaints about the accessibility or 
compatibility of telecommunications equipment or CPE using the following procedures.  

(2)  Each manufacturer of telecommunications equipment and CPE shall establish one or 
more points of contact for inquiries or complaints about the accessibility, usability, or 
compatibility of its telecommunications equipment or CPE.  Within 90 days of the 
effective date of the Guidelines and thereafter within 10 days of a change thereof, each 
manufacturer of telecommunications equipment and CPE shall file with the Commission 
the following information regarding each point of contact:  

(i)  Name or department designation; 

(ii)  Address; 

(iii)  Phone number; 

(iv)  TTY number; 

(v)  Fax number; 

(vi)  Internet address; and 
(vii)  Product(s) or product lines.  

The Commission shall make this information available to any party upon request. 

(3)  Complaints about the accessibility, usability, or compatibility of telecommunications 
equipment or CPE must be submitted in writing (which shall include electronic 
communications such as electronic mail, facsimile transmission, or audio cassette) to 
the manufacturer's point of contact prior to the filing of a formal complaint with the 
Commission. 


(4)  A manufacturer shall respond to informal complaints submitted pursuant to Paragraph 
4. (a) (3) or Paragraph 4. (b) within 60 days of receipt thereof or such later date as may be 
mutually agreed to by the informal complainant ("complainant") and the manufacturer.  

(b)  Commission response to premature complaints.  The Commission will only resolve 
complaints that could not be resolved informally between the informal complainant and the 
manufacturer against whom the informal complaint is lodged.  In the event that the informal 
complainant submits a complaint to the Commission alleging that the telecommunications 
equipment or CPE is not accessible or compatible without having first afforded the 
manufacturer an opportunity to resolve the complaint informally, the Commission shall either 
advise the complainant to contact the manufacturer to resolve the complaint informally and 
provide the complainant with the appropriate method of contacting the manufacturer's point of 
contact or forward the complaint to the manufacturer's point of contact for informal resolution.  

(c)   Formal Commission resolution of complaints.  Only complaints which could not be 
resolved informally between the complainant and the manufacturer following procedures 
described in Paragraph 4. (a) (3) and 4. (b) will be eligible for formal Commission resolution.  

(1)  Complaints submitted to the Commission for formal resolution must: 

(i)  Include copies of the informal complaint or inquiry submitted by the complainant 
to the manufacturer and any written response(s) from the manufacturer to the 
complainant; or

(ii)  Demonstrate that the manufacturer did not respond to the informal complaint 
within 60 days or such other time period as mutually agreed to by the parties or has 
failed to provide a reasonable resolution of the complaint;  

(iii)  State with particularity the specific equipment features that present a barrier to 
accessibility, and

(iv)  If known, describe a specific and applied solution to that barrier.

(2)  Upon receipt of a complaint that meets the criteria of Paragraph 4. (c) (1)  above, the 
Commission shall provide notice to the manufacturer against whom the complaint was 
filed and the complainant by forwarding a copy of the formal complaint to the 
manufacturer's point of contact and the complainant.


5.  Complaint answers.  

(a)  Manufacturer's answer.  A manufacturer shall have 60 days from the date it receives notice 
from the Commission that a formal complaint has been filed against it, to submit its answer to a 
complaint.  The manufacturer shall file a copy of its answer with the Commission and serve a 
copy of its answer on the complainant.  A manufacturer's potential answers to a complaint 
include:

(1)  The complainant failed to exhaust the informal complaint resolution process. 

(i)  The complainant has not made the prerequisite attempt to resolve the complaint 
informally; or 

(ii)  The manufacturer has not been afforded 60 days from receipt of the informal 
complaint to respond thereto.

(iii)  Where the complainant has failed to exhaust the informal complaint resolution 
process, the complaint shall be handled in accordance with Paragraph 4. (b).

(2)  The complaint fails to state a claim that Section 255 has been violated because:

(i)  The product against which the complaint was filed does provide the accessibility 
or compatibility as defined in these Guidelines;

(ii)  One or more of the manufacturer's existing products, or products in the design 
or development stage, with reasonably comparable features and manufacturer's price 
ranges provides, or will provide, the accessibility or compatibility as defined in these 
Guidelines; or 

(iii) The accessibility or compatibility that is the subject of the complaint is not 
readily achievable.

(3)  The Commission and the manufacturer against whom the complaint was filed have 
entered into a consent order, as described in Paragraph 7. (a),  which:

(i)  Concerns the same or substantially similar area of noncompliance alleged in the 
complaint; and

(ii)  For which the final deadline for achieving compliance under the consent order 
has not yet expired


(b)  Effect of consent order.  Where such a consent order exists, the complaint shall be 
dismissed with prejudice.  In dismissing the complaint, the Commission shall notify the 
complainant of the following: 

(1)  The subject matter and the final deadline for compliance under the consent decree; and 
 
(2)  That further complaints (except for complaints alleging non-compliance with such 
consent decree) against the manufacturer concerning the same or substantially similar 
areas of non-compliance are precluded. 

(c)  Rebuttable presumption of compliance.  A manufacturer is entitled to a rebuttable 
presumption of compliance (i.e., that it is not readily achievable to make the particular 
telecommunications equipment or CPE accessible) if the manufacturer satisfactorily 
demonstrates to the Commission that, with respect to the equipment which is the subject of the 
complaint, it has:

(1)  Adopted a disciplined process for evaluating accessibility and compatibility as prescribed 
in Paragraph 3. (a);
 
(2)  Described its process to the Commission and the complainant, either in response to the 
complaint or in another prior communication; and
 
(3)  Utilized that process consistently.

6.  Replies to complaint answers.

(a)  Complainant's reply.  A complainant shall have 60 days from the date of receipt of the 
manufacturer's answer to submit a reply to the manufacturer's answer.  The complainant shall 
file a copy of its reply with the Commission and serve a copy on the manufacturer's point of 
contact.  A reply must include specific evidence that the manufacturer's contention that the 
complaint does not state a claim that Section 255 has been violated is without merit because:

(1)  A substitute product identified by the manufacturer does not possess reasonably 
comparable features and a reasonably comparable range of prices as the product 
complained of, or does not provide the accessibility or compatibility defined in these 
Guidelines; or 
 
(2)  The accessibility or compatibility that is the subject of the complaint was readily 
achievable at the outset of the design and development activities related to the equipment 
that is the subject of the complaint; o


(3)  The manufacturer is not entitled to a presumption of compliance because it did not make 
the demonstration required by Paragraph 5. (c).

7.  Remedies

(a) Where the parties voluntarily agree to settle a complaint or the Commission determines that a 
violation of the Commission's Guidelines has occurred, the Commission shall negotiate an 
agreement with the manufacturer that imposes obligations on the manufacturer to undertake 
specific measures to remedy the alleged or identified area of non-compliance within a specified 
time period.  The outcome of this process shall be a consent order.  
 
(b)  Violation of a consent order, whether entered into after a determination by the Commission 
that a violation of these Guidelines has occurred, or in the absence of such a finding, shall 
subject the consenting party to any and all sanctions which could have been imposed in the 
proceeding resulting in the consent order if all of the issues in that proceeding had been decided 
against the consenting party and to any other sanctions agreed upon in the consent order.  The 
Commission shall have the burden of establishing that the consent order has been violated in 
some material, but not every, respect.  Violation of the consent order shall be the only issue in a 
proceeding concerning such an alleged violation.  

8.  Standards

(a)  Interface Standards.  Telecommunications equipment and CPE shall be deemed to be 
compatible with existing peripheral devices or specialized customer premises equipment 
commonly used by individuals with disabilities to achieve access if it conforms with an 
applicable compatibility interface standard developed by an accredited consensus-based 
standards development process.  

(b)  Consistent with the National Technology Transfer and Advancement Act of 1995, 15 
U.S.C. 3701, any such compatibility interface standards shall be developed by voluntary 
consensus standards bodies.  To ensure that such standards are established using a consensus-
based process open to participation by all affected parties, accreditation by the American 
National Standards Institute ("ANSI"), or other similar accrediting organization with 
comparable accrediting criteria, shall be required of all organizations developing compatibility 
interface standards.


9.  Appendix --Accessibility Guidelines.# 

(a) Telecommunications equipment and CPE shall be accessible to and usable by individuals
with 
disabilities, as described in these Guidelines, if readily achievable.  
 
(b)  Redundancy and selectability.  Telecommunications equipment and CPE shall provide 
redundancy such that input and output functions are available in more than one mode.  Alternate 
input and output modes shall be selectable by the user.  
 
(c)  Input, controls, and mechanical functions.  Input, controls, and mechanical functions shall be 
locatable, identifiable, and operable through at least one mode that complies with the following:

(1)  Operable without vision.  Functions shall not require user vision.

(2)  Operable with low vision.  Functions shall not require user visual acuity better than 
20/70, and shall not rely on audio output.

(3)  Operable with little or no color perception.  Functions shall not require user color 
perception.

(4)  Operable without hearing.  Functions shall not require user auditory perception.

(5)  Operable with limited manual dexterity.  Functions shall not require fine motor control 
or simultaneous actions.

(6)  Operable with limited reach and strength.  Functions shall be operable with limited 
reach and strength.

(7)  Operable without time-dependent controls.  Functions shall not require a sequential 
response less than three seconds.  Alternatively, any response time may be selected or 
adjusted by the user over a wide range.

(8)  Operable without speech.  Functions shall not require speech.


(9)  Operable with limited cognitive skills.  Functions shall minimize the cognitive, 
memory, language, and learning skills required of the user.

(d)  Output, displays, and control functions.  

(1)  Voice telecommunications shall comply with Paragraph 9. (d) (2) (ix) and (x).  

(2)  All information necessary to operate and use the product, including text, static or 
dynamic images, icons, or incidental operating cues, shall be provided through at least one 
mode that complies with the following:

(i)  Availability of visual information.  Information which is presented visually shall 
also be available in auditory form.

(ii)  Availability of visual information for low vision users.  Information which is 
provided through a visual display shall not require user visual acuity better than 
20/70, and shall not rely on audio.

(iii)  Access to moving text.  Text, other than text output of a TTY, which is 
presented in a moving fashion shall also be available in a static presentation mode at 
the option of the user.

(iv)  Availability of auditory information.  Information which is provided in auditory 
form shall be available in visual form and, where appropriate, in tactile form.

(v)  Availability of auditory information for people who are hard of hearing.  
Information which is provided in auditory form shall be available in enhanced 
auditory fashion (i.e., increased amplification, or increased signal-to-noise ratio).

(vi)  Prevention of visually-induced seizures.  Flashing visual displays and indicators 
shall not exceed a frequency of 3 Hz.

(vii)  Availability of audio cutoff.  Products which use audio output modes shall have 
an industry standard connector for headphones or personal listening devices (e.g., 
phone-like handset or ear cup) which cuts off speakers when used.

(viii)  Non-interference with hearing technologies.  Products shall not cause 
interference to hearing technologies (including hearing aids, cochlear implants, and 
assistive listening devices) of the user or bystanders


(ix)  Hearing aid coupling.  Products providing auditory output by an audio 
transducer which is normally held up to the ear shall provide a means for effective 
wireless coupling to hearing aids.

(x)  Availability of enhanced audio.  Products shall be equipped with volume control 
that provides an adjustable amplification ranging from 18-25 dB of gain.* 

10.  Appendix -- Compatibility.

(a)  When accessibility is not readily achievable, telecommunications equipment and CPE shall 
be compatible with peripheral devices and specialized customer premises equipment commonly 
used by individuals with disabilities to achieve accessibility and shall comply with the following 
provisions, as applicable:  

(1)  External electronic access to all information and control mechanisms. Information needed 
for the operation of products (including output, alerts, icons, on-line help, and 
documentation) shall be available in a standard electronic text format on a cross-industry 
standard port and all input to and control of a product shall allow for real time operation 
by electronic text input into a cross-industry standard external port and in cross-industry 
standard format.  The cross-industry standard port shall not require manipulation of a 
connector by the user.  Products shall also provide a cross-industry standard connector 
which may require manipulation.  
 
(2)  Connection point for external audio processing devices.  Products providing auditory 
output shall provide the auditory signal at a standard signal level through an industry 
standard connector.
 
(3)  Non-interference with hearing technologies.  Products shall not cause interference to 
hearing technologies (including hearing aids, cochlear implants, and assistive listening 
devices) of the user or bystanders.
 
(4)  Compatibility of controls with prosthetics.  Touch screen and touch-operated controls 
shall be operable without requiring body contact or close body proximity. 

 
(5)  TTY connectability.  Products which provide a function allowing voice communication 
and which do not themselves provide a TTY functionality shall provide a non-acoustic 
connection point for TTYs.  It shall also be possible for the user to easily turn any 
microphone on and off to allow the user to intermix speech with TTY use.
 
(6)  TTY signal compatibility.  Products providing voice communication functionality shall be 
able to support use of all cross-manufacturer non-proprietary standard signals used by 
TTYs. 



****************************************************
Telecommunications Industry Association


Proposal for FCC Guidelines
for
Implementing Section 255 of the Communications Act

Explanation and Supporting Rationale

Discussion Draft 

December 10, 1997 

***************************************************


Introduction

     The purpose of these Guidelines is to provide guidance to manufacturers of 
telecommunications equipment and customer premises equipment ("CPE") in discharging their 
responsibilities under Section 255 of the Communications Act of 1934 and to establish the 
Commission's policy with respect to complaints about the accessibility, usability, or
compatibility 
of telecommunications equipment or CPE.  

     The Telecommunications Act of 1996 ("1996 Act")  added Section 255 to the 
Communications Act of 1934.  Section 255(b) requires manufacturers of telecommunications 
equipment and CPE to "ensure that the equipment is designed, developed, and fabricated to be 
accessible to and usable by individuals with disabilities, if readily achievable."   If accessibility is 
not readily achievable, manufacturers must ensure that the telecommunications equipment and 
CPE are compatible with "existing peripheral devices or specialized customer premises
equipment 
commonly used by individuals with disabilities to achieve access, if readily achievable."  

     Section 255(a)(2) states that the term "readily achievable" has the meaning given 
to it by Section 301(9) of the Americans with Disabilities Act of 1990 ("ADA"), 
42 U.S.C. 12181(9).  Section 255(e) requires the Architectural and Transportation Barriers 
Compliance Board (the "Access Board"), in conjunction with the Commission, to develop 
guidelines for equipment accessibility ("Accessibility Guidelines") within 18 months of
enactment.  
Section 255(f) vests with the Commission "exclusive jurisdiction" over complaints brought 
pursuant to Section 255 and provides that there shall be no private right of action to enforce the 
provisions of Section 255 or any regulations thereunder.  

1.  General -- Definitions.

     The following working definitions are established for the purposes of these 
Guidelines.  

     Accessible.  As applied in the context of telecommunications, the word 
"accessible" is used to mean that the telecommunications equipment and CPE can be used by 
individuals with disabilities in its standard manufactured and shipped form without having to 
modify the product or purchase other equipment.  

     This definition reflects the use of the term "accessible to and usable by" in the 
context of the ADA.  For example, with respect to new construction or alterations of an existing 
facility, "accessible to and usable by" means that patrons and employees of commercial facilities, 
including individuals with disabilities, "are able to get to, enter, and use the facility."  56 Fed.
Reg. 
35544, 35574.  

     Compatible.  Telecommunications equipment and CPE will be considered 
compatible if they conform with a compatibility interface standard for the interconnection of
such 
equipment with peripheral devices or specialized customer premises equipment commonly used
by 
individuals with disabilities that is adopted by an accredited voluntary consensus standards body. 

Without defined interface standards to govern the connection of telecommunications equipment 
and CPE with peripheral devices and specialized CPE, manufacturers of telecommunications 
equipment and CPE will be unable, as a practical matter, to achieve compatibility with peripheral 
devices and specialized CPE.  Where there is no interface standard governing the connection of 
telecommunications equipment or CPE with a particular peripheral device or specialized CPE, 
achieving compatibility between telecommunications equipment and CPE and peripheral devices 
and specialized CPE frequently may be not readily achievable.  

     Manufacturer.  The term "manufacturer" is defined as the division, business unit, 
subsidiary, or other business entity that is responsible for introducing directly, or through 
distribution arrangements, related telecommunications equipment or CPE (often described as 
product lines) into the United States marketplace in their final form or has direct control over the 
design, development, fabrication, and costs and expenses associated with such equipment.  

     This definition of "manufacturer" is most consistent with both the complexity of 
modern corporate organizations as well as the ADA precedent for determinations of financial 
responsibility for the readily achievable removal of architectural and communication barriers.   
Under the ADA, when evaluating whether a specific barrier removal action is "readily 
achievable," courts are instructed to consider "whether the local store was threatened with closure 
by the parent or is faced with job loss. . . ."  House Committee on the Judiciary, H. Rep. No. 485, 
Part 3, 101st Cong., 2d Sess. (1990), at p. 55.  The readily achievable barrier removal obligations 
in the ADA are not intended to result in corporate decisions to close neighborhood stores or 
eliminate jobs.  Congress recognized that, regardless of the financial resources of a corporate 
entity, decisions related to local operations would inevitably reflect the financial performance of 
those local operations.  

     Similarly, the Commission, in assessing the relationship between the financial 
resources of a corporate entity and decisions related to equipment designs, must  bear in mind
that 
decisions to introduce new products or to continue existing ones inevitably reflect the financial 
performance of those individual products.  For manufacturers, individual products or product 
lines are "units of decision," analogous to the local store operations the Congress considered 
when enacting the ADA.  Regardless of the size or financial resources of a corporate parent, 
individual product management teams, business units, or divisions are provided limited financial 
resources.  In evaluating whether it is readily achievable to make a product accessible or 
compatible, product teams, business units, or divisions must consider whether, in light of these 
limited financial resources and the costs of incorporating additional accessibility features, a 
financially prudent decision would be not to introduce a product.  Such an action would be 
analogous to a decision to close a local retail store that does not meet financial targets because of 
the added burdens of the ADA, an effect that Congress did not intend the ADA to have.  
Moreover, because small manufacturers and product teams typically established by larger 
manufacturers typically have similar -- and limited --  resources, the definition of manufacturer 
does not establish disproportionate responsibilities based on the size of the manufacturer. 

     The entity which introduces equipment into the marketplace in its final form should 
be responsible for assuring compliance with Section 255.  In the case of CPE, this generally 
would be the firm under whose brand name the equipment is marketed.  Where a manufacturer 
designs, develops, and fabricates equipment and introduces it into the marketplace under its own 
brand name, the responsibility for compliance with Section 255 is clear.  In other cases, such as 
contract manufacturing (where a firm fabricates equipment designed, developed, and marketed
by 
another firm), private label arrangements (where a firm sets specifications for, and markets under 
its own name, equipment designed, developed, and fabricated by another firm), or license 
agreements (where a firm manufactures and markets equipment designed and developed by 
another firm), holding the firm that introduces the product in its final form into the marketplace 
responsible for compliance with Section 255 will provide all interested parties with a useful 
degree of certainty about the entity responsible for compliance with Section 255.  Of course, the 
parties to arrangements such as those described above are free to apportion, by contract among 
themselves, liability for the consequences of equipment found not to be in compliance with the 
obligations of Section 255.  

     The definition of a manufacturer subject to these Guidelines does not differentiate 
among firms based on their location or national affiliation.  Like other technical or operational 
requirements for telecommunications equipment sold in the United States, these Guidelines will 
apply to all manufacturers of telecommunications equipment or CPE sold in the United States, 
regardless of the location or national affiliation of the manufacturer.  In accordance with long-
standing Commission policy, the definition of a manufacturer does not affect
telecommunications 
equipment or CPE manufactured within the United States for export to other countries.  See, e.g., 

47 C.F.R. 68.4 (providing an exemption for non-hearing aid compatible telephones manufactured 
for export).  

     Disability.  The term "disability" means a current limitation affecting hearing, 
vision, movement, manipulation, speech, or interpretation of information which substantially
limits 
the use of telecommunications equipment, customer premises equipment, or telecommunications 
services.  

     Section 255(a) of the Communications Act of 1934, as amended, incorporates by 
reference the definition of "disability" from the ADA.  The ADA uses a three-pronged definition: 


The term "disability" means, with respect to an individual -- 
(A)  a physical or mental impairment that substantially limits one or more 
of the major life activities of such individual; 
(B)  a record of such an impairment; or
(C)  being regarded as having such an impairment.  

42 U.S.C. 12102(2)(A)-(C).  Although Section 255 of the Communications Act incorporates the 
ADA definition of disability,  the definition is used in a different way than it is used in the ADA.  
The ADA uses this definition of disability to identify those individuals who are entitled to the 
protections of the statute.  The second and third prongs of the definition -- a record of an 
impairment or being regarded as having an impairment -- were included in the ADA to extend its 
provisions to individuals who, although they do not have an impairment which limits a major life 
activity, are, nevertheless, potential victims of discrimination on the basis of at one time having 
had an impairment or being regarded as having an impairment.  House Committee on the 
Judiciary, H. Rep. No. 485, Part 3, 101st Cong., 2d Sess. (1990), at pp. 29-30.  

Section 255 of the Communications Act uses the term "disability" to describe the types of 
impairments that manufacturers must consider when undertaking to make their 
telecommunications equipment and CPE accessible.  In this context, the second and third prongs 
of the ADA definition of disability are not germane.  Unless an individual has an active, current 
disability that "substantially limits" his or her ability to use telecommunications equipment or 
CPE, that individual does not need to make use of accessibility features.  Inasmuch as the 
obligations of Section 255 apply to equipment that is marketed generally to all -- those with and 
without disabilities -- the Guidelines apply only the first prong of the ADA definition and those 
disabilities Congress intended to be included - the functional limitations of hearing, vision, 
movement, manipulation, speech, or interpretation of information.  See Senate Committee on 
Commerce, Science, and Transportation, S. Rep. No. 23, 104th Cong., 1st Sess. (1995), p 74; 
House Committee on the Judiciary, supra, at p. 29.  

     Readily achievable.  An action by a manufacturer to make telecommunications 
equipment or CPE accessible, usable, or compatible is "readily achievable" if it: 

a) is technically feasible at the time design or development activities for the 
telecommunications equipment or CPE commences;
 
b) does not add much to the expense of designing or developing the 
telecommunications equipment or CPE or to the cost or expense of manufacturing 
or marketing its telecommunications equipment or CPE;
 
c) does not add much to the time required to design or develop its 
telecommunications equipment or CPE;
 
d) does not involve altering a fundamental or essential characteristic of the 
telecommunications equipment or CPE;  
 
e) would not significantly limit the usefulness, marketability, or volume of sales of the 
telecommunications or CPE; and   
 
f) is not inconsistent with an existing FCC regulation, FCC technical specification or 
requirement, or stated FCC policy goal and does not conflict with other applicable 
interface standards. 

     The obligation of manufacturers to design, develop, and fabricate 
telecommunications equipment or CPE to be accessible, usable, or compatible is not unlimited.  
Rather, the legal obligation is expressly limited to that which is readily achievable.  Section
255(a) 
(2) incorporates by reference the term "readily achievable" from the ADA where it is defined as 
"easily accomplishable and able to be carried out without much difficulty or expense."  The ADA 
further provides that "in determining whether an action is readily achievable, factors to be 
considered include --
(A) the nature and cost of the action needed under this Act;
(B) the overall financial resources of the facility or facilities involved in the action; 
the number of persons employed at such facility; the effect on expenses and resources, or 
the impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the 
business of a covered entity with respect to the number of its employees; the number, type, 
and location of its facilities; and
(D) the type of operations of the covered entity, including the composition, 
structure, and functions of the workforce of such entity; the geographic separateness, 
administrative or fiscal relationship of the facility or facilities in question to the covered 
entity."  
42 U.S.C. 12181(9).  In view of its origins, it is appropriate to look for guidance about the 
meaning of the term "readily achievable" in the context in which it is used in the ADA.  There,
the 
term "readily achievable" is used to describe the limits on the obligation of operators of public 
accommodations to remove architectural and communications barriers that are structural in 
nature.  Barrier removal is limited to those circumstances where it can be accomplished "easily 
and without much difficulty or expense."  The term addresses "the degree of ease or difficulty
that 
the business operator would experience in removing a barrier. . . ."  House Committee on Energy 
and Commerce, H. Rep. No. 485, Part 4, 101st Cong., 2d Sess. (1990), at pp. 56-57 ("Commerce 
Report").  Examples of the types of actions that would be considered readily achievable include 
"the addition of grab bars, the simple ramping of a few steps, the lowering of telephones, the 
addition of raised letter and Braille markings on elevator control lights, and similar modest 
adjustments."  House Committee on Education and Labor, H. Rep. No. 485, Part 2, 101st Cong., 
2d Sess. (1990), at p. 110.  Congress intended that the ADA require an operator of a public 
accommodation only to take such modest actions to increase the accessibility of the public 
accommodation, even if the end result is something short of full accessibility.  

     The Department of Justice ("DOJ") regulations implementing the provisions of 
Title III of the ADA that require the removal of architectural barriers in existing facilities, where 
readily achievable, provide numerous examples of steps to remove barriers.  28 C.F.R. 36.304(a) 
and (b).  None of these examples are steps which would constitute more than a small fraction of 
the operating expenses of the public accommodation.  The DOJ recommended priorities for 
operators of public accommodations for barrier removal, clearly recognizing that all barriers may 
not be removed at once.  28 C.F.R. 36.304(c). 

     Based on the foregoing, the term readily achievable requires manufacturers to 
make telecommunications equipment and CPE accessible or compatible only to the extent that 
modest features that increase the accessibility of the equipment to individuals with disabilities
can 
be implemented.  It would be inconsistent with the ADA definition and DOJ interpretations to 
require manufacturers of telecommunications equipment or CPE to incorporate accessibility 
features if doing so would add much expense to the cost of designing, developing, or fabricating
a 
product.  Examples of accessibility features that generally would be readily achievable include
the 
use of highly contrasting colors for numbers or letters and their background, making buttons as 
large as practical in view of the size of the equipment, and making wireline handsets that can be 
used by individuals with hearing aids equipped with telecoils.  Other technically feasible features
-- 
voice recognition, for example -- should not be required on simple, low-cost products because
the 
degree of difficulty or expense of providing them currently would exceed the readily achievable 
threshold. 

     Similarly, the addition of accessibility features which add much time to 
manufacturers' product design and development processes for telecommunications equipment
and 
CPE would not be readily achievable.  Nor would the addition of accessibility features which are 
not technically and commercially feasible at the commencement of design and development 
activities.  Because of the competitive environment in the telecommunications industry, 
telecommunications equipment and CPE products have relatively short lives in the marketplace.  
For this reason, manufacturers are under intense pressure to design and develop new products 
quickly.  In such an environment, the addition of some accessibility features, especially those 
features which require the investment of time and resources to develop new technology, can 
extend a manufacturer's normal product design and development time and, as a consequence, can 
cause a manufacturer to miss a window of opportunity in the marketplace, inevitably resulting in
a 
significant loss of sales.  Actions with this result are clearly not readily achievable.  ADA 
precedent confirms this conclusion.  DOJ clearly has indicated that actions to remove barriers to 
accessibility are not readily achievable if they materially degrade a public accommodation's 
operations or revenue.  28. C.F.R. 36.304 (f) (rearrangement of store shelves, display racks, and 
restaurant tables to be wheelchair accessible "is not readily achievable to the extent that it would 
result in a significant loss of selling or serving space.")

     In applying the definition of readily achievable to a particular piece of 
telecommunications equipment or CPE, the Commission should not consider the incorporation of 
multiple accessibility features in isolation one from another.  If a manufacturer incorporates 
features that resolve one identified barrier to accessibility, and the incorporation of features 
resolving additional barriers would involve efforts that, in total, would exceed the readily 
achievable standard -- by, for example, adding much expense to the cost of production -- 
incorporation of the additional accessibility features on that particular piece of equipment would 
not be required.  The DOJ requirements for the ADA are consistent with this approach.  In 
addressing the obligations of operators of public accommodations to remove barriers to 
accessibility to the extent that it is "readily achievable," DOJ determined  that, under the ADA, it 
is "appropriate to consider the cost of other barrier removal actions as one factor in determining 
whether a measure is readily achievable."  DOJ, Final Rule, 56 Fed. Reg. 35544, at 35554.  

     Likewise, it is consistent with Section 255 and the ADA to conclude that the 
readily achievable accessibility of telecommunications equipment and CPE may be achieved 
without modifying each and every product or model within a product line.  Several examples
from 
the ADA context support the proposition that accessibility should be assessed across a product 
line, rather than on a product-by-product basis.  The regulations implementing the ADA do not 
require hotels to make every hotel room accessible to individuals with disabilities who use 
wheelchairs.  Rather the ADA requires hotels to make some rooms of each type (suites, regular 
rooms, etc.) accessible "in order to provide persons with disabilities a range of options equivalent 
to those available to other persons. . . . Factors to be considered include room size, cost, 
amenities provided, and the number of beds provided."  ADA Guidelines for Buildings and 
Facilities, 28 C. F. R. Part 36, App. A at 63.  Likewise, the ADA Guidelines do not require 
theaters to make every seat accessible to persons using wheelchairs.  Rather, the Guidelines 
require theaters and other assembly areas to provide wheelchair seating "so as to provide people 
with physical disabilities a choice of admission prices and lines of sight comparable to those for 
members of the general public," including the option to sit beside the companion of one's choice.  
Id. at 56. 

     Under the definition of readily achievable, telecommunications equipment and CPE 
manufacturers are not required to add accessibility features if doing so would alter fundamentally 
the nature of the equipment.  The DOJ regulations implementing the ADA do not require 
operators of public accommodations to modify their policies, practices, or procedures where "the 
modification would fundamentally alter the nature of the [public accommodation's] goods, 
services, facilities. . . ."  28 C.F.R. 36.302.  For example, a manufacturer of a very small 
communications device intended to meet a market need for such small devices is not required to 
incorporate accessibility features -- for example, large control buttons or visual display on a
wrist-
watch sized paging device -- that would require enlarging the size of the device, thereby altering 
its fundamental characteristic of "smallness."  Similarly, manufacturers should not be required to 
incorporate accessibility features that would materially limit the mass market appeal -- and hence 
the volume of sales -- of a product in the general marketplace.  Incorporating accessibility
features 
that would so limit the appeal of a product would have the effect of changing a mass market 
product into an assistive device of limited application -- thus altering a fundamental
characteristic 
of the product.  

     Finally, a feature or modification to a product is not required if it is inconsistent 
with an existing FCC regulation, technical specification or requirement, or stated policy goal, or
if 
it conflicts with other applicable interface standards.  For example, although it might be feasible
to 
make a product more accessible by modifying the parameters of the product's transmitter, the 
modification would not be required if it is inconsistent with the Commission's rules. 

2.  Accessibility and compatibility of telecommunications equipment and CPE.  

     General.  Section 255(e) requires the Architectural and Transportation Barriers 
Compliance Board ("Access Board"), in conjunction with the Commission, to develop 
accessibility guidelines for the accessibility of telecommunications equipment and CPE.  In 
discharging its portion of this conjoint responsibility, the Access Board convened the 
Telecommunications Access Advisory Committee ("TAAC") to assist in developing these 
accessibility guidelines.  Specifically, the TAAC was charged with making recommendations on 
the following issues:  (1) types of equipment to be covered by the guidelines; (2) barriers to the 
use of such equipment by persons with disabilities; (3) solutions to such barriers, if known, 
categorized by disability; and (4) the contents of the guidelines.  See Notice, 61 Fed. Reg. 13813. 

Following the publication of the TAAC's report, the Access Board proposed and sought public 
comment on its proposed Telecommunications Act Accessibility Guidelines.  See Notice, 62
Fed. 
Reg. 19178.  

     By adopting the substantive provisions of this Proposal for FCC Guidelines 
Implementing Section 255 of the Communications Act, the Commission would discharge its 
portion of the conjoint responsibility imposed on the Commission and Access Board by Section 
255.

     Ongoing obligation:  The obligation to evaluate the accessibility of 
telecommunications equipment and CPE is an ongoing obligation that must be accomplished at 
the beginning of the design and development process for new equipment and upgrades of
existing 
equipment that materially affect the functionality of the equipment.   Early consideration of 
accessibility in the design and development for telecommunications equipment and CPE will
have 
the effect of enhancing accessibility.  Given the speed of technological advances which quickly 
render existing equipment obsolete, retrofitting equipment already in the marketplace would
result 
in a serious misallocation of resources and would stifle innovation. 

     Manufacturer's discretion.  The solutions to accessibility barriers incorporated by a 
manufacturer in a given product are not appropriately considered in isolation from the solutions 
incorporated in its other products.  These Guidelines recognize that there will be cases where a 
manufacturer may not be able to achieve the creation of a single product that addresses 
accessibility for all, or some, combinations or degrees of disabilities.  In fact, products which 
attempt to address all disabilities, even through selectable modes of operation, may become 
difficult for everyone to use and can introduce problems for those with cognitive disabilities.  
Therefore, a manufacturer shall have reasonable discretion in choosing among those accessibility 
features to be incorporated into telecommunications equipment and CPE.  Notwithstanding this 
discretion, a manufacturer should consider incorporating into another comparable product, an 
access feature or features not addressed elsewhere.  Manufacturers shall make good faith efforts 
to address the limitations which affect the use of telecommunications equipment and CPE by 
persons with disabilities.  

     The manufacturer's discretion will be exercised in an environment in which two 
conditions exist.  First, the design of individual items of equipment to incorporate solutions to a 
wide variety of barriers is impractical.  For example, individuals with some types of impaired 
mobility may benefit from a keypad that is larger than the one normally used with telephones, 
while others may benefit from a keypad that is smaller than the keypad normally used.  The 
impracticality of designing a single product with both "solutions" to impaired mobility is
obvious.   
And, second, consumers, including individuals with disabilities, have the ability to choose
among 
manufacturers' offerings in a competitive marketplace.  In the case of buildings and facilities
there 
is little, if any, ability to choose to enter a building on the basis that meets one's unique 
accessibility needs;  therefore all buildings and facilities must be equally accessible.  In contrast, 
CPE generally is used by an individual or a small known group of individuals, is selected to meet 
the unique needs of those specific individuals or small groups of known individuals, including 
individuals with disabilities, and is obtained from among a variety of products available from a 
manufacturer.  In many cases the needs of an individual with disabilities can be satisfied by 
selecting specific equipment from among that generally available in the marketplace.  Examples 
include vibrating pagers (useful both for individuals with impaired hearing and those who wish a 
"silent alert"), volume controls (useful for both those with impaired hearing as well as those 
working in a noisy environment), and speakerphones (useful for both those with certain 
musculatory or skeletal impairments which prevent holding a telephone receiver to the ear as
well 
as those who participate in lengthy conference calls).  

     If manufacturers of telecommunications equipment and CPE were not afforded this 
reasonable degree of manufacturers' discretion in choosing among a wide range of accessibility 
features, the cost of complying with the requirements of Section 255 would be excessive and 
counter-productive to achieving the goals of Section 255.  For example, if manufacturers were 
required to demonstrate either that each product that they sell is accessible or that accessibility is 
not readily achievable, the result could be large, costly, compliance bureaucracies employed by
the 
Commission and by manufacturers, and a diversion of resources from product design and 
development with the inevitable long-term result of reduced accessibility - both an unintended
and 
undesired consequence.  

3.  General guidelines for manufacturers.  

     Adoption of a disciplined process to ensure accessibility and compatibility.  
Recognizing that accessibility is most effectively addressed at the beginning of the product 
introduction process, Section 255 requires manufacturers to ensure that equipment is "designed, 
developed, and fabricated to be accessible to and usable by individuals with disabilities. . . ."    In 
addition, these Guidelines establish an expectation that, no later than twelve months following
the 
effective date of these Guidelines, each manufacturer of telecommunications equipment or CPE 
will adopt a disciplined process for evaluating the means for accomplishing the goal of
enhancing 
the accessibility and usability of its equipment.  

     Generally, design activities commence approximately 24 months prior to the first 
introduction of new CPE into the marketplace, and, in the case of telecommunications
equipment, 
even earlier.  It would be unrealistic to expect that manufacturers would be able to consider the 
Access Board and Commission Guidelines in their equipment designs prior to, or even 
immediately following, the effective date of these Guidelines.  Thus, a twelve month period is 
established for the purpose of enabling manufacturers to:  (i) develop a process for evaluating the 
accessibility of its product designs;  (ii) identify barriers to accessibility;  (iii) incorporate
solutions 
to those barriers to the extent that they are readily achievable; (iv) communicate that process to
its 
equipment designers and developers;  and (v) train its designers and developers in the use of the 
process.  

     Each manufacturer may adopt that disciplined process which is most consistent 
with its unique organizational and management structure, provided that the process, at a 
minimum, will:  (a)  identify barriers to the accessibility of the manufacturer's
telecommunications 
equipment or CPE resulting from the limitations constituting a disability;  (b)  disseminate 
information about accessibility needs and barriers to employees and others involved in the 
equipment design and development processes;  (c)  consider accessibility early in the design and 
development processes; and (d)  evaluate designs to remove barriers to accessibility or to
enhance 
the accessibility of telecommunications equipment or CPE.

     Because of the wide variety of manufacturers' organization structures, the absence 
of generally agreed-upon approaches to identifying the accessibility barriers and solutions, and
the 
very immature state of what could be called "accessibility engineering" principles, third-party 
auditing or certification of manufacturers' processes for identifying and resolving barriers to 
accessibility is not required.  

     The Access Board, at the time it promulgated its ADA Accessibility Guidelines for 
Buildings and Facilities ("ADAAG"), had the benefit of a decade or more of experience in 
discharging similar responsibilities required by the Rehabilitation Act of 1973, 
Pub. L. No. 93-112, 87 Stat. 355.  Moreover, in the case of the construction of accessible 
buildings and facilities, the affected industries had a similar period in which to gain experience in 
constructing facilities to meet the requirements of the predecessors to the ADAAG.  By contrast, 
no similar base of experience exists related to the accessible design, development, or fabrication
of 
telecommunications equipment and CPE.   In view of the uncertainty that necessarily results 
from this lack of experience, requiring third-party audit or certification programs is unnecessary 
and of little or no value.  

     Manufacturers shall incorporate into their equipment those designs to increase 
accessibility identified by their processes to the extent that it is readily achievable to do so.  
Paragraphs 9. and 10. describe those aspects of accessibility and compatibility which 
manufacturers are expected to consider when evaluating whether it is readily achievable to make 
telecommunications equipment and CPE accessible or compatible.  They contain the substantive 
portions of Subparts C and D of the Architectural and Transportation Barriers Compliance 
Board's ("Access Board") proposed Telecommunications Act Accessibility Guidelines.  Notice, 
62 Fed. Reg. 19178.  

     When designs to remove barriers to accessibility are not readily achievable, 
manufacturers shall:  (a) identify applicable interface standards, adopted by accredited standards 
bodies governing the connection of telecommunications equipment or CPE with existing 
peripheral devices or specialized customer premises equipment, and (b)  ensure compatibility
with 
such standards, to the extent that it is readily achievable to do so.  

     Adoption of measures to ensure usability.  Not later than twelve months following 
the effective date of these Guidelines, manufacturers are required to adopt measures to ensure 
that individuals with disabilities are provided with usable information and documentation about 
their telecommunications equipment or CPE, to the extent that it is readily achievable to do so.  

     Because marketing and product communications are not a part of the equipment 
design, development, and fabrication process, they are not covered by Section 255. 
Nevertheless, 
because marketing and product communications, including user guides or instructions,
installation 
instructions for end-user installable devices, and other product support communications like 
customer call centers, are an important aspect of making equipment accessible to and usable by 
individuals with disabilities, manufacturers have voluntarily agreed to provide such information, 
including information about accessibility and compatibility features, in alternate formats.  

4.  Complaints

          General.  Section 255(f) gives the Commission "exclusive jurisdiction" over 
Section 255 complaints.  Section 255 does not permit private lawsuits to enforce Section 255 
requirements.  

          Informal Resolution of Inquiries or Complaints.  The Commission should
establish 
a policy in favor of voluntary resolution of Section 255 complaints.  In many instances, 
manufacturers and persons with disabilities will be able to resolve voluntarily complaints about
the 
accessibility or compatibility of telecommunications equipment and CPE.  A policy that favors 
voluntary resolution of complaints will conserve the limited Commission resources available for 
enforcement.  Moreover,  a cooperative approach between manufacturers and persons with 
disabilities is most likely to promote the goals of accessibility and compatibility established by 
Section 255.

          Each manufacturer subject to Section 255 should be required to establish one or 
more points of contact to answer inquiries, to provide information, and to address complaints 
about the accessibility of its telecommunications equipment or customer premises equipment.  
Each manufacturer should provide its points of contact information to the Commission and, upon 
request, to individuals with disabilities or to their representatives.  This will ensure that there is at 
least one person from each manufacturer who is responsible for receiving and coordinating 
inquiries and complaints from persons with disabilities or the Commission.

          To implement this policy in favor of voluntary resolution of Section 255 
complaints, the Commission should require that all complaints be submitted to the
manufacturer's 
point of contact in the first instance, before they are submitted to the Commission.  In order to 
ensure that complainants receive a prompt response from manufacturers, a manufacturer must 
respond to a written complaint (which may be in electronic form including electronic mail, 
facsimile transmission, or audio cassette) within 60 days after receipt thereof, unless the 
complainant agrees to an extension.

          The Commission should only consider those complaints that cannot be resolved 
informally between a complainant and a manufacturer.  At a minimum, this mandatory attempt at 
informal resolution will require a complainant to submit a complaint to the manufacturer and 
allow the manufacturer 60 days in which to resolve the complaint or formulate a response.  If a 
person with a disability submits a complaint to the Commission without exhausting these 
requirements for informal complaint resolution, the Commission should either return the 
complaint to the complainant with instructions about how to contact the manufacturer, including 
the manufacturer's point(s) of contact information, and how to utilize the informal complaint 
process or forward the complaint to the manufacturer's point of contact for informal resolution.  

          Formal Commission Resolution of Complaints.  
          Pleading requirements.  A complaint must demonstrate on its face that the 
complainant is entitled to formal consideration on the merits.  First, and most important, a 
complainant must demonstrate that he or she has attempted to achieve an informal resolution of 
the complaint as described in the above discussion of the informal resolution of inquiries or 
complaints.  As a result, the complaint must either: (1) include copies of the informal complaint 
submitted to the manufacturer and the manufacturer's response; or (2) demonstrate that the 
manufacturer failed to respond or provide a satisfactory resolution of a complaint within 60 days. 

          
          Second, in order to state a claim that Section 255 has been violated, a complaint 
should state with particularity the barrier to accessibility or compatibility associated with the 
equipment subject to the complaint.  Particularity is necessary to allow both manufacturers and 
the Commission to respond effectively to complaints.  Accordingly, a complainant should be 
required, at a minimum, to identify the specific feature of the equipment that is not accessible or 
compatible.  For example, a complaint indicating that "this phone is inaccessible to me as a
person 
with a hearing impairment" does not demonstrate sufficient particularity.  In contrast, a
complaint 
indicating that "the volume control on this phone cannot be adjusted loud enough so that I can 
hear" is sufficiently particular.

          Additionally, a complainant should, whenever possible: (a) identify a specific 
known solution to the barrier complained of; and (b) demonstrate that incorporating that feature 
would have been readily achievable.  Complainants bear the burden of proving that Section 255 
has been violated.  As a result, those complaints that identify specific, known, readily achievable 
solutions to accessibility or compatibility barriers will be the most compelling.  By including
such 
information, if known, a complainant can focus the Commission's scrutiny upon the specific 
alleged area of non-compliance.  


               Where the Commission determines that a complaint appears on its face to
qualify 
for formal resolution, the Commission shall notify the manufacturer's point of contact and the 
complainant of this determination.  The manufacturer then has 60 days in which to provide a 
written answer to the Commission.

5.  Complaint answers.

               Manufacturer's answer.  A manufacturer shall have 60 days from receipt of
the 
notice from the Commission indicating that a complaint appears to qualify for formal resolution
in 
which to file an answer.  In the answer, a manufacturer may raise several defenses.

               A manufacturer may argue that the complainant has failed to exhaust the 
mandatory voluntary complaint resolution process with the manufacturer.  If a manufacturer's 
response to a complaint demonstrates that either: (1) the complainant has not submitted the 
complaint to the manufacturer; or (2) the manufacturer's 60 days to respond to an informal 
complaint have not yet expired, then the Commission should return the complaint.

               A manufacturer may argue that it is entitled to a presumption of
compliance 
because it has adopted a disciplined process for evaluating and incorporating accessibility and 
compatibility issues as part of the product design process.  Accessibility and compatibility can be 
addressed most easily and economically if considered early in the design process, with the result 
that accessibility or compatibility features are more likely to be readily achievable.  By
establishing 
this presumption, manufacturers have an incentive to adopt such a disciplined process.  A 
manufacturer may invoke this presumption if it has: (1) adopted such a process; (2) described
that 
process either to the Commission or to the complainant; and (3) used that process consistently.

               A manufacturer may assert any of three defenses on the merits.  These
defenses 
identify those circumstances where a manufacturer has complied with its obligation under
Section 
255 by providing equipment that is accessible or compatible, to the extent readily achievable.  
First, a manufacturer should  be permitted to demonstrate that the product complained of is, in 
fact, accessible or compatible for the complainant.  Situations may arise, for example, where a 
product is in fact accessible or compatible if used correctly, but has not been used correctly by
the 
complainant.  

               Second, a manufacturer may demonstrate that one or more of its existing
products, 
or products in the design and development stage, with reasonably comparable features and price 
provide, or will provide, the accessibility or compatibility required by the complainant.  By 
permitting this defense, the Commission recognizes that the readily achievable standard does not 
require every piece of telecommunications equipment to be accessible to every person with a 
disability.  Instead, Section 255 requires each manufacturer to provide a range of functionally 
equivalent, comparably priced products that are accessible to individuals with disabilities.  The 
ADA, the source of the "readily achievable" standard that defines the scope of manufacturers' 
obligations, provides guidance here.  The ADA has been implemented with a recognition that the 
readily achievable definition will, in some circumstances, result in persons with disabilities
having 
accessibility but fewer choices than the general public.  See e.g., Department of Justice Standards 
for Accessible Design, 28 C.F.R.  36.308 (regulations governing fixed seating in public theaters 
and stadiums); 28 C.F.R. Part 36, App. A,  9.1.2 (wheelchair accessibility of hotel rooms); Id. at 
 9.1.3 (requirements related to hotel rooms and accessibility for individuals with hearing 
impairments).  The common thread in these regulations implementing the ADA is that persons 
with disabilities will have a more limited number, but comparable range, of choices in
comparison 
to individuals without disabilities.  

               A product family approach to compliance with Section 255 is warranted
because 
of the varying and occasionally conflicting accessibility needs of persons with different
disabilities.  
This approach to compliance will permit manufacturers to incorporate a range of accessibility
and 
compatibility features to accommodate different disabilities, to the extent readily achievable, 
across the manufacturer's product families.  This approach will maximize the types of equipment 
that are accessible and compatible for persons with different disabilities.

               Third, a manufacturer may demonstrate that the requested accessibility or 
compatibility feature was not readily achievable and therefore not required by Section 255.  
Readily achievable is defined to mean "without much difficulty or expense." In addition, the 
amount of difficulty required cannot easily be quantified.  As a result, what is readily achievable 
and therefore required must necessarily be resolved on a case-by-case basis utilizing the criteria 
set forth in the discussion of the meaning of the term "readily achievable."  

               Where the Commission has entered a consent order and the time for the 
manufacturer to comply with that order has not yet expired, the manufacturer shall be shielded 
from complaints raising the same or substantially the same areas of noncompliance.  The goals of 
accessibility and compatibility established by Section 255 will best be served by a policy which 
favors proactive over retroactive relief.  For this reason, the Commission should  attempt to 
negotiate consent orders with manufacturers that have either: (1) been found to have violated 
Section 255; or (2) voluntarily agree to enter into such consent orders.  Such consent orders shall 
require the manufacturer to undertake specific measures to remedy the identified or alleged area 
of noncompliance within a specified time period.  

               The Commission shall dismiss any complaints that raise the same or
substantially 
the same identified or alleged areas on noncompliance as an existing consent order.  In
dismissing 
a complaint under this section, the Commission shall notify the complainant of the subject matter 
of the consent order and the deadline for compliance.  The Commission also shall notify the 
complainant that subsequent complaints, except complaints alleging failure to comply with the 
consent order, are precluded and will be dismissed.


6.  Replies to complaint answers.  
 
               Complainant's reply.  A complainant shall be provided 60 days in which to
reply to 
the manufacturer's answer.  In order to rebut a presumption of compliance, a complainant should 
be required to present specific factual information demonstrating that the manufacturer in fact:
(1) 
has not adopted a disciplined process; (2) has not described that process either to the
Commission 
or to the complainant; or (3) has not used that process consistently.  
 
               Because a manufacturer's defenses on the merits are fact-based, a
complainant, to 
overcome these defenses, shall be required to provide specific evidence that the manufacturer's 
claimed defense is not factually accurate in one of the following respects: (1) the substitute 
product identified by the manufacturer does not possess reasonably comparable features and
price 
as the product complained of; (2) the substitute product is not accessible to the complainant; or 
(3) the required accessibility or compatibility was readily achievable at the outset of the design 
and development activities related to the equipment subject to the complaint.  
 
               If a complainant fails either to respond or to provide specific evidence
refuting the 
manufacturer's claimed defenses, the complaint shall be dismissed.
 

7.  Remedies.  

               The Section 255 goals of accessibility and compatibility are best achieved
with a 
policy that favors proactive relief over monetary penalties for violations of Section 255.  In 
imposing a penalty for a violation, the Commission should prefer requiring that the manufacturer 
undertake additional obligations to achieve accessibility or compatibility in the future, rather than 
requiring payment of a fine. 

               Therefore, the Commission should, when appropriate, negotiate consent
orders 
with manufacturers that have been found to have violated Section 255.  Such consent orders 
would obligate a manufacturer to undertake specific measures to remedy an identified area of 
noncompliance within a specified time period.  In addition, in exchange for dismissal of a 
complaint, manufacturers may voluntarily agree to a consent order and undertake similar 
obligations for future remedial measures.  These consent orders would be consensual in that they 
permit a manufacturer voluntarily to undertake a program that has been approved by the 
Commission as an appropriate method for remedying an alleged area of noncompliance with 
Section 255.  In both instances, by agreeing to enter into a consent order and adhering to its 
terms, a manufacturer would avoid monetary penalties for noncompliance.  

               Consent orders should establish a specific time period or deadline for the 
manufacturer to fulfill its agreed upon obligations.  Moreover, the manufacturer's obligations 
under the consent order must be sufficiently specific so that the manufacturer's compliance with 
the order, and therefore Section 255, can be accurately assessed at the end of the specified period.

               Where a manufacturer fails to comply with a consent order, the
manufacturer 
should be subject to any and all penalties that could have been imposed in the underlying 
complaint proceeding if all issues had been resolved against the manufacturer.  The Commission 
would bear the burden of proving that the consent order has been violated in some material 
respect.  A manufacturer's failure to comply with a consent order is only material if it has caused 
significant delay or resulted in a failure to accomplish the accessibility or compatibility 
contemplated in the consent order.  Further, proceedings to determine whether a consent order 
has been violated shall be limited exclusively to this issue, and shall not address any additional 
issues related to compliance with Section 255.

8.  Standards.  

     Section 255 of the Communications Act requires that, when it is not readily 
achievable for telecommunications equipment or CPE to be accessible, it must be compatible
with 
existing peripheral devices or specialized CPE commonly used by individuals with disabilities to 
achieve access, if readily achievable.  

     Telecommunications equipment and CPE will be deemed to be compatible with 
existing peripheral devices or specialized customer premises equipment if it conforms with an 
applicable compatibility interface developed by a voluntary consensus-based standards 
development process.  The purpose of this provision is to ensure that all manufacturers, including 
manufacturers of telecommunications equipment and CPE and manufacturers of peripheral 
devices and specialized CPE, have a reasonable degree of certainty regarding the technical means 
of achieving the interconnection of their equipment and an opportunity to participate in the 
development of standard means of interconnection.  Without the certainty afforded by defined 
interface standards, manufacturers of telecommunications equipment and CPE will be unable, as
a 
practical matter, to achieve a significant and predictable degree of compatibility with peripheral 
devices and specialized CPE.  

     Consistent with the National Technology Transfer and Advancement Act of 1995, 
15 U.S.C. 3701, any technical specifications and practices, comprising compatibility interface 
standards for the interconnection of telecommunications equipment or CPE with peripheral 
devices or specialized CPE used to achieve access, should be developed by private, voluntary 
standards-setting bodies.  The telecommunications industry (comprising manufacturers of 
telecommunications equipment and CPE and service providers) has a long history of developing 
standards to ensure the interoperatibility of the many distinct elements of a modern 
telecommunications system using voluntary, accredited, consensus standards organizations such 
as the Telecommunications Industry Association (TIA) and American National Standards
Institute 
(ANSI) Committee T1.  The ANSI program for accrediting voluntary standards development 
organizations is well-developed and widely recognized.  ANSI provides an opportunity for
public 
review and comment on all applications for ANSI accreditation and limits its accreditation to 
those standards-setting organizations that are open to participation by all affected parties, foster 
the development of a consensus position among those affected parties, and operate in accordance 
with generally accepted principles of openness and "due process."  

     In addition, the ANSI accreditation program includes two mechanisms to ensure 
that, once accredited by ANSI, voluntary standards development organizations continue to 
operate in a manner consistent with their ANSI accreditation:  ANSI has an appeals mechanism 
that can be used by any materially affected party with a complaint about an accredited 
organization's standards development process and has implemented a program for auditing 
accredited organizations on a regular basis to ensure that their activities conform with both their 
own accredited procedures and with the current ANSI requirements.  



    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 Proposed Rule Making, WT Docket No. 96-
198, FCC 98-55 (rel. April 20, 1998) (hereinafter "NPRM").
  See generally Charles L. Jackson, Ross M. Richardson & John Haring, Strategic Policy 
Research Inc., An Evaluation of the Access Board's Accessibility Guidelines, attached as 
Appendix A (hereinafter "SPRI Study").
    NPRM  30.
   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, Notice of Inquiry, WT Docket No. 96-198, 
FCC 96-382 (rel. Sept. 19, 1996).
   Architectural and Transportation Barriers Compliance Board Telecommunications Act 
Accessibility Guidelines Notice of Proposed Rulemaking, 62 Fed. Reg. 19178 (April 18, 1997).
  TIA's proposal, dated December 1997, is attached as Appendix B.
  NPRM  168-69.  The FCC quotes the Access Board for the proposition that: "'the 
assessment as to whether it is or is not readily achievable [to provide accessibility in every 
product] cannot be bypassed simply because another product is already accessible.'"  NPRM at  
169 (quoting Access Board Order, 63 Fed. Reg. at 5611).  The FCC proposes to adopt the 
Access Board's definition of "accessibility," which comprises an 18 point checklist of accessible 
product functions which must be assessed independently.  The independent assessment is
whether 
each of the 18 criteria is readily achievable and therefore required under Section 255.  In reality, 
the Access Board's checklist contains more than 18 criteria:  for example, in addition to the 18 
criteria listed, the Access Board included a requirement that "[t]elecommunications equipment 
and customer premises equipment . . . pass through cross manufacturer, non-proprietary, 
industry-standard codes, translation protocols, formats or other information necessary to provide 
telecommunications in an accessible format."  See NPRM  75;  NPRM App. C at C5.  Thus, the 
18 point checklist could actually be considered "18 point-plus."  For purposes of this document, 
reference to the "18 point checklist" includes the 18 points adopted by the Access Board plus the 
others described above.
  Feasibility, expense, and practicality are the three components of the "readily achievable" 
definition proposed by the FCC.  NPRM  100.
  NPRM  170 (emphasis added).
  See id.
  42 U.S.C.   12181(9) (definition of "readily achievable").
  NPRM  15 (citing TAAC Final Report  5.2.1 at 20) (emphasis added).  
  NPRM  74-75;  Access Board Guidelines  1193.41, 1193.43.
  Access Board Guidelines  1193.41, 1193.43.
  See NPRM  75 (requesting comment on this proposal).  TIA proposes an alternative 
definition of accessible in Section III.B.4. infra.  TIA's alternative definition, though preferable to 
that proposed by the FCC, alone does not remedy the problem of forcing manufacturers to defend 
their inability to achieve the impossible.  Taken together, TIA's proposed definition of accessible 
and a product line approach to compliance could remedy this problem.

  For wireless CPE, such as cellular phones and pagers, for example, universal access 
would be extremely difficult, if not impossible.  The popularity of these products depends upon 
portability and compactness.  Even if it were technologically possible to design a universally 
accessible wireless product, it is virtually certain that incorporating accessibility features into that 
product to accommodate all disabilities would fundamentally alter the nature of that product by 
fundamentally increasing its size.  Such a fundamental alteration would not be required by
Section 
255.  See Section III.D.4., infra.
  Without question, the five day "fast-track" complaint procedure proposed by the FCC, 
see NPRM  126, will dictate that a manufacturer maintain files of documentation in order to 
respond to any complaints forwarded by the FCC in a timely manner.  The fast-track process, 
discussed in Section V.A. infra, highlights the inaccuracy of the FCC's tentative conclusion that 
the proposed rules impose no information collection requirements other than designation of a 
point of contact.  See NPRM, App. E (Initial Regulatory Analysis); see also SPRI Study.  As
TIA 
argued in its comments on the Access Board's NPRM, each of the 18 accessibility criteria on the 
checklist will surface at each decision-making crossroads in the product design, development and 
fabrication processes.  A prudent manufacturer will want to document the reasons why any action 
that had an impact on accessibility was taken to show that it had done what was readily
achievable 
to promote access or that access could not readily be achieved.  The FCC's tentative refusal to 
recognize these significant documentation costs, implicitly required by the NPRM, permits the 
FCC to avoid asking the question whether such documentation costs should be considered in 
determining what is readily achievable, and to ignore the practical reality that the diversion of 
limited resources to documentation and defense will inevitably reduce the resources available to 
provide access.
       Under the guidelines promulgated by the Access Board, and adopted by the Department 
of Justice ("DOJ"), theater and stadium owners are not required to make every single seat 
wheelchair accessible.  Department of Justice Standards for Accessible Design ("JDSAD"), 28 
C.F.R., Part 36, App. A,   4.33.3; 28 C.F.R.   36.308, DOJ Preamble to Regulation on Non-
Discrimination on the Basis of Disability ("DOJ Preamble"), 28 C.F.R. Part 36, App. B 
(commenting on   36.308).  Instead, the ADA has been interpreted to require that: (1) a certain 
percentage of accessible seats be provided; (2) the accessible seats must be integrated into the 
seats available to the general public; and (3) the accessible seating must be dispersed throughout 
the stadium or arena so that disabled patrons are offered the same general range of choices, 
including sight lines and price, that are available to the general public.  Id.; Paralyzed Veterans of 
America v. Ellerbe Beckett Architects & Engineers, P.C., 950 F. Supp. 393, 398-405 (D. D.C. 
1996) (discussing these requirements and applying them to the MCI arena in the District of 
Columbia), aff'd, 117 F.3d 579 (D. C. Cir. 1997), cert. denied, 118 S. Ct. 1184 (1998).
  See generally NPRM  35 - 123.
  See e.g.  70 (definition of disability), 97 (definition of readily achievable).
  47 U.S.C.  255(a)(1).
  See NPRM  75 (definition of accessible); 92 (definition of compatibility); 58-61 
(definition of manufacturer).
       See NPRM  70.
  42 U.S.C.  12102(a)(2).
  Cf. 42 U.S.C.  12102(a).
  For example, some wheelchair users, though "disabled" with respect to certain major 
life activities, probably do not have a functional limitation that impairs their ability to use 
telecommunications within the meaning of Section 255.  And, if they are impaired in their ability 
to use telecommunications equipment, Section 255 may not be the remedy.  As the FCC 
tentatively concludes in its NPRM, manufacturers and service providers cannot be accountable, 
for example, for the height of pay telephones, because they do not control placement of the 
phones.  See NPRM  79.  The absence of a remedy under Section 255, however, does not mean 
that a person in a wheelchair is without recourse for inaccessible phone placement.  The ADA 
requires that pay phones in public accommodations be placed in positions that are accessible to 
persons in wheelchairs.  See 28 C.F.R. Pt. 36, App. A; 49 C.F.R. Pt. 37, App. A.  This example 
shows that the definition of disability can and should be narrowly interpreted in the Section 255 
context to draw attention to the functional limitations on the ability to use telecommuni-cations 
that are relevant to Section 255's goals of accessible equipment and service, because the ADA 
provides protections for limitations on other "major life activit[ies]."

  See U.S. Census Bureau Official Statistics Regarding the Disability Status of Persons 
<http://www.census.gov/hhes/www/disable/sipp/disstat.html>.  TIA includes these statistics not 
to minimize the need to provide accessibility to individuals with disabilities that prevent them
from 
access to telecommunications services, regardless of their number.  TIA merely suggests that the 
number 50 million is overly broad.  TIA further points out that the individuals with disabilities
that 
prevent them from gaining access to telecommunications equipment have a wide variety of 
functional limitations.  A product line approach to Section 255 will provide more meaningful 
access to this diverse group of individuals.
  See 42 U.S.C.  12102(a)(2).
  See also H. Rep. No. 104-204 at 14 (1995) (defining disability as "including individuals 
with functional limitations of hearing, vision, movement, manipulation, speech, and
interpretation 
of information"); TAAC Final Report at 11-12 (quoting language from Senate Report).
     See NPRM  115 (requesting comment on whether and how to consider cost 
recovery).  The FCC has proposed the "expense" factor be evaluated in terms of a "net" figure, 
comparing the cost of a feature (including research and development, production and marketing 
costs) with the additional income the feature will provide.  TIA disagrees with such an approach.  
First, the calculation of the net cost of a feature is highly speculative.  The costs are concrete;
they 
are paid by manufacturers upfront.  By contrast, the additional income recovered is merely a 
projection.  TIA disagrees with the consideration of cost recovery in a more fundamental way.  
If 
the market demands a certain feature, manufacturers respond by providing such a feature.  Many 
accessibility features have, in the past, appealed to a broader market that includes non-disabled 
consumers and consequently have been included in more products because they appeal to 
consumers as a whole.  For example, the vibrating feature on pagers, which provides access for 
persons with disabilities but was not designed for their benefit, is now included on most models 
because of its popularity with all consumers, disabled and non-disabled alike.  As this example 
demonstrates, where cost recovery comes into play, the FCC does not need to regulate; the 
market will take care of accessibility features that increase the usability of products for all 
consumers.
  NPRM  74-75;  Access Board Guidelines  1193.41, 1193.43.
  Access Board Guidelines  1193.41, 1193.43.
  Under the Access Board's definition of accessible, each item on the 18 point checklist of 
accessible product functionality must be assessed independently.  Access Board Guidelines 
1193.41, 1193.43.  The independent assessment that the Access Board appears to have in mind is 
whether each of the 18 accessibility criteria, considered in isolation, is readily achievable and, 
therefore, required under  Section 255.  Under this regime, a conscientious manufacturer would 
need to document its decision whether it was readily achievable to satisfy each of the 18 criteria.
  NPRM  75.
  NPRM  15 (citing TAAC Final Report  5.2.1 at 20) (emphasis added).
  Access Board's Guidelines 1193.41(i).
  For this reason, the FCC's position that the proposed rules impose no documentation 
other than maintaining a point of contact is well off the mark.  See NPRM, App. E, at E22 (Initial 
Regulatory Flexibility Act Analysis).
  As TIA has previously pointed out, the "equipment" subject to Section 255 can be 
interpreted both in the singular and in the plural.
  DOJ Preamble, 28 C.F.R. Part 36, App. B (commenting on   36.104) (indicating that it 
is "appropriate to consider the cost of other barrier removal actions as one factor in determining 
whether a measure is readily achievable.").  Regulations issued by the agency charged with 
administering a statute are entitled to considerable weight unless arbitrary and capricious or 
contrary to the statue.  Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 
U.S. 837, 844 (1984). 
  42 U.S.C.  12181(9).
     The FCC technical specification for volume control, 68.317, see  47 CFR Part 68, 
currently requires a volume control with a minimum gain of 12 dB.  On April 1, 1998, a joint 
TIA/MMTA letter was addressed to Geraldine Matise, Head of the Common Carrier Bureau, and 
supports industry understanding and interpretation of the requirements of 68.317.  This 
interpretation is currently being used by both large and small manufacturers for equipment being 
designed today to meet the January 1, 2000 deadline for implementation of 68.317, as required 
by Part 68 of the FCC Rules.

     In contrast, Appendix C of the NPRM, which contains a copy of 1193.43, paragraph (e), 
of the Access Board's Guidelines, released on February 6, 1998, requires manufacturers to 
provide a gain adjustable up to a minimum of 20 dB.  This is a significant discrepancy from the 
point of view of designers of equipment trying to meet the FCC Part 68 deadline.  TIA has 
previously submitted our comments regarding the technical challenge of implementing this 20
dB 
requirement. 

     In an attempt to test the feasibility of the requirement to provide a gain adjustable up to a 
minimum of 20 dB, a TIA member purchased and evaluated samples of the same 3 models of 
telephones that were used by the consultants referenced in the Access Board Guidelines , 36 CFR 
Part 1193 Section-by-Section Analysis portion of the preamble of 1193.43, paragraph (e), and 
frequently conferred with the consultants.  The TIA evaluation of the phones revealed that, when 
measured according to 68.317 requirements, none of these phones could meet the requirement 
of the provision of a gain adjustable up to a minimum of 20dB.  All of these phones
demonstrated 
significant shortcomings in meeting other telephone performance standards.  The performance 
shortcomings are likely due to the attempt of the manufacturers to meet the requirement of the 
provision of a gain adjustable up to a minimum of 20 dB.  Therefore, TIA respectfully requests 
that the FCC resolve this discrepancy by reaffirming the requirements of Section 68.317 as the 
sole and correct interpretation of volume control requirements.

  NPRM  74-75;  Access Board Guidelines  1193.41, 1193.43.
  NPRM  15 (citing TAAC Final Report  5.2.1 at 20) (emphasis added).
  DOJ Preamble, 28 C.F.R. Part 36, App. B (commenting on   36.104) (indicating that it 
is "appropriate to consider the cost of other barrier removal actions as one factor in determining 
whether a measure is readily achievable.").
  Complaints will be reduced because persons with disabilities will have more precise 
information on what accessibility features are included in a product.  This will reduce the 
likelihood that a consumer will purchase a product which is not designed to meet his or her 
disability.
  NPRM  84.
  Id.
  See 36 C.F.R.  1193.51.
  It has proven difficult to achieve compatibility between digital wireless technologies and 
TTYs, whose technology has not changed much since their introduction in the 1960s.  TTYs are 
not yet compatible with most computer modems. 
  NPRM  91.
  NPRM  92.
  See 63 Fed. Reg. 15,774 (April 1, 1998) (setting the year 2006 as the target date for the 
completion of the transition).
  47 C.F.R.  64.604(b)(1).
  See NPRM  90 (suggesting such a criterion for "commonly used").
  47 U.S.C.  255(a)(2) (referencing Section 301(9) of the ADA, 42 U.S.C.  12181(a)). 
  NPRM  98, 99.
  NPRM  98.
  NPRM  100.
  Id.
       NPRM  101.

       See NPRM at  102 (discussing Access Board's decision not to recognize feasibility as a 
separate factor).

       47 C.F.R.  68.317.
 
  See Section III.B.4., n. 40, supra.
  36 C.F.R.  1193.2; TAAC  4.2.
  See NPRM  120.
  See id.
  DOJ Preamble, 28 C.F.R. Part 36, App. B. 
  NPRM  106-121.
  See Section III.A.3., supra.
  28 C.F.R. Part  36, App. B (commenting on   36.104).
  See id.
  Appendix to 36 C.F.R. Part 1193 (comment 3 on the definition of readily achievable, 
 .3).
  See NPRM  104, 106, 113, 114.
  NPRM  100.
  NPRM  109.
  Id.
     NPRM at  46.
     Section 255(c) states:  "A provider of telecommunications service shall ensure that 
the service is accessible to and usable by individuals with disabilities, if readily achievable."  47 
U.S.C.  255(c).  "The term `telecommunications service' means the offering of 
telecommunications for a fee directly to the public, or to such classes of users as to be effectively 
available directly to the public, regardless of the facilities used." 47 U.S.C.  153(46).
     NPRM at  46.
     See 47 U.S.C.  255(c):  "Telecommunications Services - A provider of 
telecommunications service shall ensure that the service is accessible to and usable by
individuals 
with disabilities, if readily achievable."
     Id. at  36.
     See Federal-State Joint Board on Universal Service, Report to Congress, FCC 
98-67 (rel. April 10, 1998)("Universal Service Report").
     Id. at  39.  "The language and legislative history of both the House and Senate 
bills indicate that the drafters of each bill regarded telecommunications services and information 
services as mutually exclusive categories."  Id. at  43.  As the Commission observed in the 
Universal Service Report, the House Bill explicitly stated: "The term `telecommunications 
service' does not include an information service."  Id.  Further, the Senate Report "stated in 
unambiguous terms that its definition of telecommunications `excludes those services. . . that are 
defined as information services."  Id.
  Id. at  46.  "Notwithstanding the possibility of forbearance, we are concerned that 
including information service providers within the `telecommunications carrier' classification 
would effectively impose a presumption in favor of Title II regulation of such providers."  Id. at  
47.  "The classification of information service providers as telecommunications carriers, 
moreover, could encourage states to impose common-carrier regulation on such providers."  Id. 
at  48.  Clearly, the Commission regards information services as distinct from the common 
carrier telecommunications services subject to Section 255.
  See, e.g., Amendment of the Commission's Rules and Regulations Governing Pole 
Attachments, Report and Order, Further Notice of Proposed Rulemaking, CC Docket No. 97-151 
at  33 (rel. Feb. 6, 1998) (finding that Internet access service does not constitute a 
telecommunications service); In the Matter of Implementation of the Telecommunications Act of 
1996; Telecommunications Carriers' Use of Customer Proprietary Network Information and 
Other Customer Information; Implementation of the Non-Accounting Safeguards of Sections 271 
and 272 of the Communications Act of 1934, as Amended, FCC 98-27 at  46 (rel. Feb. 26, 
1998) ("Commission precedent has treated 'information services' and 'telecommunications 
services' as separate, non-overlapping categories, so that information services do not constitute 
'telecommunications' within the meaning of the 1996 Act.").
  NPRM at  42 ("Given the broad objectives Congress sought to accomplish by its 
enactment of Section 255, we seek comment on whether Congress intended Section 255 to apply 
to a broader range of services.").
  Id. at  53.
  See 47 U.S.C.  153(45) (emphasis added).
  See NPRM at  49 ("In short, to the extent end users must interact with equipment to 
use telecommunications services, Section 255 applies.").  Indeed, the term CPE was created and 
has traditionally been used in the context of equipment used to facilitate common carrier
services. 
See, e.g., In the Matter of Amendment of Section 64.702 of the Commission's Rules and 
Regulations (Second Computer Inquiry), Memorandum Opinion and Order on Further 
Reconsideration, 88 F.C.C.2d 512 n.1 (1981)("For purposes of this docket, customer-premises 
equipment includes all equipment provided by common carriers in the fifty states, the District of 
Columbia, Puerto Rico and the Virgin Islands and located on customer premises except over 
voltage protection equipment, inside wiring, coin-operated or pay customer.").
  As proposed by TIA in its comments in the Commission's CC Docket No. 96-254 
proceeding to implement section 273 of the 1996 Act, the Commission should establish a clear 
rule that the development of any firmware or software for hardware that "performs the
function(s) 
of telecommunications equipment" should be considered  "integral" to that equipment and 
therefore included in the definition of telecommunications equipment for purposes of Section
255.  
The NPRM correctly points out that the definition of CPE does not include software and that 
software, marketed separately from CPE, to be used in CPE is not subject to section 255.  NPRM 
at  56.  TIA agrees that a manufacturer is responsible for the functional accessibility of CPE, 
where readily achievable, to the extent it serves a telecommunications function.   The role that 
software in CPE plays to create accessibility should be left to the manufacturer.  A manufacturer 
should be able to make its CPE accessible, when readily achievable, by whatever means is most 
practicable.  Whether a modification to software is the most appropriate way to achieve 
accessibility, or some alternative approach is preferable, should be left to the manufacturer's 
discretion.
  NPRM at  53.
  Id.
  Id. at  53 n. 117.
  42 U.S.C.  12112(b)(5)(A).
    NPRM  124.
    At the request of the staff of former Chairman Hundt, TIA was requested to develop a 
proposal for implementing the Commission's obligations under Section 255.  The proposal was 
designed to be a starting point for discussion between consumers and manufacturers in an
attempt 
to reach consensus on issues related to Section 255.   TIA's "Proposal for FCC Guidelines 
Implementing Section 255 of the Communications Act" and the accompanying "Explanation and 
Supporting Rationale" was presented to the Staff of the Wireless Telecommunications Bureau
and 
the FCC's Disability Task Force in December, 1997. See Appendix B.  Though not formally 
submitted in the record of the NOI leading up to this NPRM, it was provided to members of the 
disability community, including the National Association of the Deaf, the National Association
of 
the Blind, the United Cerebral Palsy Association, the American Foundation for the Blind, the 
World Institute on Disability, Self Help for Hard of Hearing People, the American Council of the 
Blind, the Gallaudet University Assistive Technology Research Center. 
  Of course, the goal of TIA's members is to address and resolve perceived access 
problems as quickly as possible, and thus may not require the full 60 day period in every case.  
However, TIA believes the 60 day period is necessary since some Section 255 complaints are 
certain to be complex.
    NPRM  128.
    It is entirely appropriate for a consumer to seek, and the FCC to provide, the point of 
contact information for a manufacturer to facilitate the initial contact between the consumer and 
the manufacturer.
    A "zoom" feature allows the user of a device to increase the font size of characters on 
a visual display.  
    NPRM  150.
    This is not to disparage the capabilities of the Commission and the staff but to 
acknowledge that there is a dearth of expertise with regard to telecommunications accessibility at 
the present time both within the Commission, in the manufacturing community and in the 
marketplace generally.
    As will be discussed below, TIA assumes that if the FCC's goal is to distribute 
complaints to manufacturers within 1 day of receipt, the Commission is not likely to be able to
do 
more than merely transmit the complaint as received. 
    The time frame to engage in this dialogue can take a matter of weeks because parties 
may not always be available to one another when calls or other types of communications are 
initiated.  Also, if communications need to be translated into or out of accessible formats, some 
delay will occur.  
    NPRM  132.
    TIA expects that any manufacturer who chooses to delegate the function to an 
outside firm will still be held responsible for Section 255 compliance.
    NPRM  134.
    47 USC  255(e) and (f).
  NPRM  136.
    If fast track complaints are not going to be translated into a format useable by a 
manufacturer then the proposed 5 day response period becomes even more unrealistic since a 
manufacturer will need spend time translating a complaint into a format it can understand.
   If the Commission does not engage in a qualitative analysis of the complaint's 
legitimacy, its fast track process will tend to encourage the filing of frivolous complaints.  
Manufacturers will be forced to waste resources defending against such complaints. 
    NPRM   148.
    NPRM   131.
    NPRM  141.
    NPRM  137.
  See Appendix B.
    NPRM  124.
    In these comments, the proposal has been modified and expanded slightly since its 
initial preparation based on consideration of the issues and evaluation of the NPRM.
    NPRM  124.
    NPRM  149.  Section 415 of the Communications Act requires parties to file 
complaints against telecommunications carriers for charges levied within the previous two years.  
Section 415 is not applicable to manufacturers of telecommunications equipment and CPE.
    This is another example where the use of TIA's proposed process for requiring 
mandatory dialogue between a potential complainant and a manufacturer before a complaint is 
filed with the Commission can be put to good use.
    Presumably, shortly after purchase, a person with a disability will know whether the 
product in question is accessible.
    NPRM  150-152.  
    TIA also believes this statement about the complexity of Section 255 complaints 
demonstrates that a 5 day fast track response period is unreasonable on its face.
    In a similar product defense, disclosure of such confidential information would not be 
required.
    Exemption 4 of FOIA, 5 USC  552(b)(4), provides that an agency need not disclose 
information that is "trade secrets and commercial or financial information obtained from a person 
and privileged or confidential."  Bartholdi Cable Company, Inc. v Federal Communications 
Commission and United States of America,114 F.3d 274 (D.C. Cir. 1997).
    NPRM  124.
    See  1.720.
    NPRM  158.
    NPRM  157.
    NPRM  158.
    NPRM  161.
    NPRM  164.
    NPRM  165.  
    NPRM  166, n.297.
    NPRM  172.
 NPRM  172, citations omitted.
  Id.
    NPRM  174.
     Accessible Design of Consumer Products, 1992, Working Draft 1.7,  by Gregg C.
Vanderheiden and 
Katherine R. Vanderheiden.
     The Commission is generally authorized to enforce the Act and amendments at Section
710(a); Section 
255(f) specifically entrusts the Commission with exclusive jurisdiction over complaints arising
under Section 255.
     This problem is not limited to hearing aids with telecoils.  Many types of consumer
equipment can 
similarly pickup interference from radio transmissions unless they are designed to reject such
interference.  Such 
interference became quite acute in the 1970s when CB radio became popular.  Hearing aids
without telecoils may 
also be subject to such interference in some cases.  But, the telecoil is, in essence, designed to be
a small antenna 
and to pick up electromagnetic signals.  In the case of hearing aids and cellular phones, the
hearing aid can pick up 
signals both from the transmitted digital cellular signal and from the digital processing in the
cellular phone.  
Telecoils can also pickup interference from fluorescent lights, electric motors, and computers.
     Microsoft Windows is the best known of such graphical interfaces.  But Apple's
Macintosh and the 
workstation X-Windows system depend in a similar fashion on the use of a mouse and screen
display to control a 
computer.  
     Access to the web by those with vision disabilities has gained considerable attention. 
See, for example, 
the article "On the Web - and Blind," by Don Jellinek, in the Jan/Feb 1998 issue of On The
Internet, or "Bringing 
the Visual World of the Web to the Blind,: by Debra Nussbaum, New York Times, March 26,
1998, page E8.  It is 
also important to train web designers to make their web pages accessible to those with vision
disabilities.
     Relatedly, Microsoft recently teamed up with euroBRAILLE to make the Microsoft
Windows operating 
systems more accessible to those with impaired vision.  (Microsoft Daily News, June 11, 1998)
     Americans with Disabilities: 1994-95, by John M. McNeil, Current Population Reports,
U.S. Department 
of Commerce, Census Bureau P70-61, August, 1997.
     Census Bureau, Disability Status of Persons (SIPP), Table 1, last revised Wednesday,
25-Mar-98, at 
http://www.census.gov/hhes/www/disable/sipp/disstat.html.
     Above, we cited the Census Bureau for the proposition that about 1 million people cannot
use the 
telephone.  That Census Bureau report states that 924,000 people cannot hear normal
conversation and that 
933,000 people cannot use the telephone.  It seems reasonable to conclude that the vast majority
of those who 
cannot use the telephone are hearing impaired.
     The telephone receiver is the speaker or earphone part of the telephone.  The receivers in
use from Bell's 
telephone until recently used coils of wire to generate magnetic fields that moved a sheet or
membrane to vibrate 
air.  Improved designs of such magnetic receivers or use of non-magnetic technologies reduced
or eliminated the 
magnetic fields that telecoils depended upon.
     PL 97-410, 96 Stat. 2043.  This statute was substantially revised in 1988.
     We regard the problem of incidental pickup of cellular transmissions and static from
electronics as a 
transitional problem.  Design changes in hearing aids can suppress this effect at relatively little
cost.  We expect 
that consumers would value such improvements.  
     We also note that the FCC may have the authority under Section 302 of the Act to
regulate the 
interference susceptibility of hearing aids.  That Section gives the FCC authority to  establish
minimum 
performance standards for home electronic equipment and systems to reduce their susceptibility
to interference 
from radio frequency energy.  If hearing aids were classified as home electronic equipment, then
the FCC would 
appear to have authority over their interference susceptibility.  
     The acronym TTY comes from teletypewriter, TDD from telecommunications device for
the deaf.
     See http://www.augmentative.com/acs-swk.htm, which describes the Winmini keyboard
as: "for people 
who need a smaller keyboard than the standard IBM/compatible computer keyboard, a WinMini
plug-in is the 
perfect solution."
     Source: University of Washington, Adaptive Technology Lab in the Computing Resource 
Center (CRC), at http://www.washington.edu/tech_home/atl/DOCS/atl.use.html.
     The same University of Washington website also contained the following statement:
"HeadMaster 
(Prentke Romich Company) and HeadMouse (Origin Instruments) allow hands-free operation of
a Macintosh or 
PC (HeadMouse only). A light-weight headset (HeadMaster) or a reflective dot worn on the
forehead (HeadMouse) 
translates head movement to the mouse pointer. A variety of switches can be connected to
emulate the mouse 
button." 
     Of course, some elements of added complexity, e.g., memory dialing, can alleviate the
problems 
encountered by those with cognitive disabilities.
     In terms of economic jargon, developing specialized terminal equipment for such people
would not meet a 
Kaldor-Hicks criterion - the benefits, measured by willingness to pay, will not match the costs.
     See Telecommunications Act Accessibility Guidelines, 36 CFR Part 1193 [Docket No.
97-1] RIN 3014- 
AA19.
     Commissioner Harold Furthgott-Roth stated "This particular area of regulation may well
be a rare 
instance of where the involvement of federal government introduces efficiencies unlikely to
develop in the market."  
     Similarly, Commissioner Powell stated, "I know that this is an area where free market
forces alone are 
unlikely to address the specific needs of individuals, who solely because of life's unpredictability
and randomness 
find themselves restricted by physical adversity. This is an area where government can help this
community enjoy 
the fruits of independence that the seeds of telecommunications can yield and that the Act
envisioned. The 
principle of universal service is ultimately inclusion, and the disabled community should not be
overlooked."
     We believe that social concerns in this area are motivated by more than simply concerns
about efficiency 
and market failure.  However, a focus on efficiency is key to ensuring that those with disabilities
benefit in the long 
run.
     Many factors, including monopoly, externalities not reflected in the market, transactions
costs, can lead to 
market failure.
     For example, chapters of the National Multiple Sclerosis Society make equipment
available to some 
people with MS and some insurance policies pay for assistive devices.
     Capabilities change over time.  Product lead times are often such that capabilities that are
not readily 
achievable when products are being designed may subsequently become achievable.  The point at
which 
capabilities improve sufficiently to permit specific capabilities to be embodied in equipment is
not a bright line, but 
subject to debate and interpretation - an additional likely bone of contention in terms of justifying
and second-
guessing decision-making.
     For example, persons with mobility disabilities derive significant benefits from
lightweight wireless 
communications equipment.  These benefits are necessarily sacrificed to the extent that added
features to address 
other accessibility needs increase size and dissipate battery lives more rapidly.
     Cf.  Section 255(b): " A manufacturer . . . shall ensure that equipment is designed,
developed, and 
fabricated to be accessible . . . ."
     Guidelines at 1193.23, emphasis added.
     Guidelines 1193.25(c).
     U. S. Department of Commerce, Bureau of the Census, 1995 Annual Survey of
Manufactures, Statistics 
for Industry Groups and Industries, M95(AS)-1, Table 2, page 1-22.
     We note that our analysis using SIC codes 357 and 366 is similar to that used in
Appendix E (Initial 
Regulatory Analysis) of the NPRM to count the number of small business entities that would be
affected by the 
proposed rules.
     We emphasize that the analogy is only that:  an analogy.  We propose to use these costs
merely as surro 
gates, not as starting estimates on the actual costs themselves.  For example, in many places the
Part 68 and Part 
15 costs may include equipment which is arguably outside the scope of Section 255.  The work
involved in 
isolating the impacts of this extraneous equipment would obviate the advantages of using the
surrogate in the first 
place.  And since we argue elsewhere that the actual costs of the Guidelines as proposed is likely
a multiple of the 
lower bound we construct, isolating the extraneous content would merely provide a false
precision.
     Statistics regarding the FCC's Part 15 and Part 68 programs were provided by the FCC.
     The vast bulk of these applications are for equipment under Part 15, but other programs
represented in 
smaller numbers included Parts 18, 22, 74, 80, and 90.  Also, since August 1996 the FCC has
also run a self-
certification program, causing some large number of applications and manufacturers to
"disappear" from the Part 
15 statistics.
     Consider that complexity is a fundamental problem for all consumers today with modern
information 
technology products.
     As the Commission is well aware, delays in the introduction of telecommunications
products and services 
that ultimately prove successful in the marketplace often entail very large consumer welfare
losses.  Different 
estimates of the costs of cellular delay, for example, put a value on the attendant consumer
welfare losses in the 
tens of billions of dollars.  See C.L. Jackson, T. Kelly and J.H. Rohlfs, Estimate of the Loss to
the United States 
Caused by the FCC's Delay in Licensing Cellular Telecommunications, November 8, 1991
(revised) (regulatory 
delay in introduction of cellular service in the United States imposed $86 billion welfare loss on
the economy); and 
J. Hausman, "Valuation and the Effect of Regulation on New Service in Telecommunications,"
November 1997 
(welfare loss from cellular delay estimated at $31-49 billion).
     Such a practice should not be read to require involvement of the disability community in
every 
product development effort.  Rather, the firm should have in place some program for maintaining
knowledge and 
awareness of the needs of those with disabilities. 
     Which is not to belittle Congressional concerns for the rural consumers affected in this
earlier instance.
# Paragraphs 9 and 10 comprise appendices which contain the substantive provisions of 
Subparts C and D of the Architectural and Transportation Barriers Compliance Board's proposed 
Telecommunications Act Accessibility Guidelines.  62 Fed. Reg.19178 (April 18, 1997).  These 
paragraphs are included in this Proposal for the purposes described in Paragraph 3. (a) (1).  

*  This provision is inconsistent with the Commission's existing Rules.  See 47 CFR 
68.317 (a).  
  Pub. L. No. 104-104, 110 Stat. 56 (1996).
  For example, the Access Board's Notice announcing the establishment of its Advisory 
Committee states that the Committee will be charged with identifying the barriers to the use of 
telecommunications and customer premises equipment by persons with various types of 
disabilities and the solutions to such barriers, if known, categorized by type of disability. . . . 
(Emphasis added.)

 
 
(Continued .)


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