28456 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR PART 1

[WT Docket No. 96–198; FCC 98–55]

Implementation of Section 255 of the

Telecommunications Act of 1996:

Access to Telecommunications

Services, Telecommunications

Equipment, and Customer Premises

Equipment by Persons With

Disabilities

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: This Notice of Proposed

Rulemaking (NPRM) is an important

step in the Commission’s effort to

increase the accessibility of

telecommunications services and

equipment to Americans with

disabilities. The NPRM proposes a

framework for implementing section

255 of the Communications Act of 1934

(Act), which requires

telecommunications equipment

manufacturers and service providers to

ensure that their equipment and

services are accessible to persons with

disabilities, to the extent it is readily

achievable to do so. In addition, if

accessibility is not readily achievable,

section 255 requires manufacturers and

service providers to ensure

compatibility with existing peripheral

devices or specialized customer

premises equipment commonly used by

individuals with disabilities to achieve

access, to the extent it is readily

achievable to do so. The NPRM first

explores the Commission’s legal

authority to establish rules

implementing section 255. The NPRM

then seeks comment on the

interpretation of specific statutory terms

that are relevant to the proceeding.

Finally, the NPRM seeks comment on

proposals to implement and enforce the

requirement that telecommunications

equipment and services be made

accessible to the extent readily

achievable. The actions proposed in the

NPRM are needed to ensure that people

with disabilities are not left behind in

the telecommunications revolution and

consequently isolated from

contemporary life.

DATES: Comments are due on or before

June 30, 1998, and reply comments are

due on or before August 14, 1998.

Written comments by the public on the

proposed information collections are

due on or before June 30, 1998. Written

comments must be submitted by OMB

on the proposed information collections

on or before July 21, 1998.

ADDRESSES: Federal Communications

Commission, Office of the Secretary,

Room 222, Washington, D.C. 20554. In

addition to filing comments with the

Secretary, a copy of any comments on

the information collections contained in

the NPRM should be submitted to Judy

Boley, Federal Communications

Commission, Room 234, 1919 M Street,

N.W., Washington, DC 20554, or via the

Internet to jboley@fcc.gov, and to

Timothy Fain, OMB Desk Officer, 10236

NEOB, 725–17th Street, N.W.,

Washington, D.C. 20503, or via the

internet to fainlt@a1.eop.gov.

FOR FURTHER INFORMATION CONTACT: John

Spencer, Mindy Littell, or Susan

Kimmel, 202–418–1310. For additional

information concerning the information

collections contained in the NPRM,

contact Judy Boley at 202–418–0214, or

via the Internet at jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the NPRM in WT Docket No.

98–198, FCC 98–55, adopted April 2,

1998, and released April 20, 1998. The

complete text of the NPRM is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room 239), 1919 M

Street, N.W., Washington, D.C., and also

may be purchased from the

Commission’s copy contractor,

International Transcription Services

(ITS, Inc.), (202) 857–3800, 1231 20th

Street, N.W., Washington, D.C. 20036.

Alternative formats of the full text of the

NPRM are available to persons with

disabilities in the following forms:

computer diskette, large print, audio

cassette, and Braille, by contacting

Martha Contee at (202) 418–0260, TTY

(202) 418–2555, or at mcontee@fcc.gov,

or Ruth Dancey at (202) 418–0305, TTY

(202) 418–2970, or at rdancey@fcc.gov.

The full text of the NPRM can also be

downloaded at http://www.fcc.gov/dtf/

section255.html.

All relevant and timely comments

will be considered by the Commission

before final action is taken in this

proceeding. To file formally in this

proceeding, participants must file an

original and five copies of all comments,

reply comments, and supporting

comments. If participants want each

Commissioner to receive a personal

copy of their comments, an original and

nine copies must be filed. Comments

and reply comments will be available

for public inspection during regular

business hours in the Commission’s

Reference Center and through ITS, Inc.,

the Commission’s duplicating

contractor.

For purposes of this proceeding, the

Commission waives those provisions of

the rules that require formal comments

to be filed on paper, and encourages

parties to file comments electronically.

Electronically filed comments that

conform to the guidelines specified in

this summary will be considered part of

the record in this proceeding and

accorded the same treatment as

comments filed on paper pursuant to

Commission rules. To file electronic

comments in this proceeding, parties

may use the electronic filing interface

available on the Commission’s World

Wide Web site at: <http://

dettifoss.fcc.gov:8080/cgi-bin/ws.exe/

beta/ecfs/upload.hts>. Further

information on the process of

submitting comments electronically is

available at that location and at: <http:/

/www.fcc.gov/e-file/>.

Paperwork Reduction Act

The NPRM contains a proposed

information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public and OMB to

comment on the information collections

contained in the NPRM, as required by

the Paperwork Reduction Act of 1995,

Public Law No. 104–13. Public

comments are due on or before June 30,

1998. Written comments must be

submitted by OMB on the proposed

information collections on or before July

21, 1998. Comments should address: (1)

Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(2) the accuracy of the Commission’s

burden estimates; (3) ways to enhance

the quality, utility, and clarity of the

information collected; and (4) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

OMB Approval Number:

Title: 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 Rulemaking, WT Docket No.

96–198.

Form No.:

Type of Review: New Collection.

Respondents: Complainants,

Telecommunications Equipment

Manufacturers, and

Telecommunications Service Providers.

Number of Respondents: 1,000

prospective complainants annually will

report accessibility problems or file

complaints using the Commission’s

‘‘fast-track’’ problem resolution method,
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28457

1Public Law 104–104, 110 Stat. 56 (1996).

2 47 U.S.C. 255.

3 Public Law 101–336, 104 Stat. 327 (1990)

(codified at 42 U.S.C. 12101–12213) (ADA).

and may be asked to provide the

Commission with further information

later in the process. This should take

approximately 2 hours per response, for

a total annual burden of about 2,000

hours. There will be no estimated

annual cost. Approximately 1,000

equipment manufacturers and service

providers annually are expected to be

involved in resolving these complaints.

It is estimated that these steps will take

approximately 6.50 hours per

respondent for a total annual burden of

6,500 hours. The estimated annual cost

is $720,000. Additionally, 78,830

telecommunications equipment

manufacturers and service providers

annually are expected to provide a list

of contacts for disability access

complaints. And it is possible that

78,830 telecommunications equipment

manufacturers and service providers

will have equipment or services which

will receive a seal or other imprimatur

from a consumer or industry group that

identifies the service or equipment as in

compliance with section 255. Satisfying

these burdens will likely take slightly

more than 1 hour per respondent for a

total annual burden of 78,830 hours,

and no annual cost.

Total Number of Respondents: 79,830.

Total Annual Burden: 87,330 hours.

Total Annual Cost: $720,000.

Frequency of Response: Occasional.

Needs and Uses: The information

filed as part of a complaint, if the

proposal made by the Commission in

the NPRM is adopted, will be reviewed

by the Commission and by the pertinent

entity to develop a solution to the

problem. The information filed by the

consumer after a complaint is resolved,

if the proposal made by the Commission

in the NPRM is adopted, will be used by

the Commission to verify that the

complainant is satisfied that either the

impediment to accessibility no longer

exists or that a practical solution could

not be reached. Any demonstrations

made by manufacturers and service

providers that accessibility was

considered in the equipment or service

design process will be used by the

Commission to evaluate compliance

with the intent of section 255. The

interim and final reports submitted by

these entities will be used by the

Commission to track the progress of

resolution of complaints. Rebuttals to

assertions of resource availability will

help determine whether a particular

accessibility measure is a readily

achievable solution to an accessibility

problem. The list of contacts who are

responsible for telecommunications

access complaints in each company will

be used to speed the complaint process

and to increase the likelihood of

settlement between parties before the

complaint reaches the Commission. The

seal or imprimatur from a consumer or

industry group that identifies a service

or equipment as in compliance with

section 255 will be used to inform

consumers about the accessibility of

particular products or services and will

serve as an incentive for compliance by

manufacturers and service providers.

Synopsis of Notice of Proposed

Rulemaking

1. The Commission adopts this NPRM

as an important step in opening the

telecommunications revolution to the 54

million Americans with disabilities.

Section 255 of the of the

Communications Act (section 255), as

added by the Telecommunications Act

of 1996 (1996 Act) 1 mandates that

telecommunications equipment

manufacturers and service providers

must ensure that their equipment and

services are accessible to persons with

disabilities, to the extent that it is

readily achievable to do so.2 This goal

has become increasingly important as

the ability to utilize the benefits of

telecommunications technology has

become more critical to fully

participating in American society.

Congress gave the Commission two

specific responsibilities: (1) to exercise

exclusive jurisdiction with respect to

any complaint filed under section 255,

and (2) to coordinate with the

Architectural and Transportation

Barriers Compliance Board (Access

Board) in developing guidelines for

accessibility of telecommunications

equipment and customer premises

equipment (CPE).

2. This proceeding was initiated by

Notice of Inquiry (NOI) adopted on

September 16, 1996 (61 FR 50465).

Additionally, in February 1998, the

Access Board issued accessibility

guidelines (Access Board Order) with

respect to equipment (63 FR 5608,

February 3, 1998). The NPRM is the

next step in establishing a record on

which to base the Commission’s final

rules implementing section 255.

3. The NPRM first explores the

Commission’s legal authority under

section 255, and tentatively concludes

that the Commission has authority to

establish rules to implement section

255. The NPRM also considers other

issues related to Commission

jurisdiction, including the relationship

between the Commission’s authority

under section 255 and the guidelines

established by the Access Board.

4. The NPRM then seeks comment on

the interpretation of specific statutory

terms that are used in section 255. Many

of the terms are defined elsewhere in

the Act, and the Commission seeks

comment on its tentative view that it is

bound by these definitions in the

context of section 255. Other terms have

been incorporated from the Americans

with Disabilities Act.3 The Commission

seeks comment on how these terms can

be made workable in the context of

telecommunications services and

equipment. In particular, the NPRM

addresses certain aspects of the term

‘‘readily achievable,’’ contained in

section 255. The Commission proposes

to adopt the ADA definition, but also

proposes to establish specific factors to

define ‘‘readily achievable’’ in the

telecommunications context.

5. Finally, the NPRM sets forth

proposals to implement and enforce the

requirement of section 255 that

telecommunications offerings must be

accessible to the extent readily

achievable. The NPRM also contains

proposals based on the requirement

that, if accessibility is not readily

achievable, manufacturers and service

providers must ensure compatibility

with existing peripheral devices or

specialized customer premises

equipment commonly used by

individuals with disabilities to achieve

access, to the extent it is readily

achievable to do so. The centerpiece of

these proposals is a ‘‘fast-track’’ process

designed to resolve many accessibility

problems informally, providing

consumers with quick solutions and

freeing manufacturers and service

providers from the burden of more

structured complaint resolution

procedures. In cases where fast-track

solutions are not possible, however, or

where there appears to be an underlying

failure to comply with section 255, the

Commission would pursue remedies

through more conventional processes. In

both cases, in assessing whether service

providers and equipment manufacturers

have met their accessibility obligations

under section 255, the Commission

would look favorably upon

demonstrations by companies that they

considered accessibility throughout

their development of

telecommunications services and

equipment.

I. Statutory Authority

6. The NPRM considers the scope of

the Commission’s rulemaking authority

and finds that, in section 255, Congress

enacted broad principles that require
28458 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

4 47 U.S.C. 255, 251(a)(2). 5 47 U.S.C. 255(b).

interpretation and implementation in

order to ensure an efficient, orderly, and

uniform regime governing access to

telecommunications services and

equipment. As a result, the Commission

tentatively concludes that this regime

can best be implemented if it adopts

specific guidance concerning the

requirements of section 255, which will

enable the Commission to carry out its

enforcement obligations under the Act

effectively and efficiently.

7. Additionally, the Commission finds

that the language of section 255

indicates that Congress intended to

confer upon the Commission broad

substantive authority to implement the

requirement that telecommunications

equipment and services be accessible,

and gives the Commission exclusive

authority to enforce that mandate. The

Commission views the Access Board’s

equipment guidelines as a starting point

for the implementation of section 255

and stresses the importance of striving

to interpret section 255 in a way that

ensures that telecommunications

services and equipment will be treated

consistently. The Commission seeks

comment on its tentative conclusion

that, while it has discretion regarding

use of the Access Board’s guidelines in

developing its comprehensive

implementation scheme, the

Commission proposes to accord the

guidelines substantial weight in

developing regulations and in

developing a broader structure for

implementation.

8. The Commission determines that if

Congress had intended to permit

complaints under section 255 only

against common carriers, and not

manufacturers, the statute would say so

explicitly. The Commission seeks

comment on whether there is any basis

for concluding that damages, pursuant

to sections 207 and 208 of the Act or

otherwise, are available with respect to

entities other than common carriers. In

addition, the Commission affirms that

section 255 forecloses civil actions for

damages brought under section 207. The

exclusive jurisdiction established in the

statute for Commission consideration of

complaints, in combination with the

preclusion of private rights of action,

does not allow for private litigation. The

Commission seeks comment on this

conclusion.

II. Statutory Definitions

A. Scope of Statutory Coverage

(1) ‘‘Telecommunications’’ and

‘‘Telecommunications Service’’

9. Section 255 applies to

‘‘manufacturer[s] of telecommunications

equipment or customer premises

equipment’’ and ‘‘provider[s] of

telecommunications service,’’ and

section 251(a)(2) applies only to

‘‘telecommunications

carrier[s’] * * * network features,

functions, or capabilities.’’ 4 The

Commission tentatively concludes that,

to the extent these phrases are broadly

grounded in the Act, they require no

further definition, and the Commission

need only elucidate their application in

the context of section 255. To the extent

specific terms arise solely in connection

with section 255, however, the

Commission will consider whether

further definition or clarification is

appropriate. The Commission notes that

the use of the term

‘‘telecommunications’’ in the statute

may have the effect of excluding from

the coverage of section 255 a number of

services that might be desired by

consumers. Only those services which

are considered to be

‘‘telecommunications services’’ are

subject to regulation under Title II of the

Act. ‘‘Information services,’’ such as

voice mail and electronic mail, are

excluded from regulation.

10. Many services are considered

telecommunications services and,

therefore, are clearly subject to the

requirements of section 255. The

Commission recognizes, however, that

there are some important and widely

used services which, under the

Commission’s interpretation, fall

outside the scope of section 255 because

they are considered information

services. Given the broad objectives

Congress sought to accomplish by its

enactment of section 255, the

Commission seeks comment on whether

Congress intended section 255 to apply

to a broader range of services.

(2) ‘‘Provider of Telecommunications

Service’’

11. Because the Act does not define

‘‘provider of telecommunications

service,’’ the NPRM proposes some

clarifications regarding aspects of this

phrase as used in section 255. With

respect to section 255, the Commission

believes that Congress intended to use

the term ‘‘provider’’ broadly, to include

entities that supply or furnish

telecommunications services, as well as

entities that make available such

services. The Commission therefore

proposes that all entities offering

telecommunications services to the

public should be separately subject to

section 255, without regard to

accessibility measures taken by the

service provider who originates the

offering. For example, the statute does

not exclude resellers from the definition

of telecommunications service provider.

The NPRM seeks comment on this

proposal.

12. Additionally, the NPRM proposes

to subject a provider of

telecommunications service to the

requirements established in sections

255(c) and 255(d) only to the extent that

it is providing telecommunications

services. The Commission seeks

comment on whether this proposal is

practical if a provider is using the same

facilities to offer telecommunications

services and services not meeting the

statutory definition.

(3) ‘‘Manufacturer of

Telecommunications Equipment or

Customer Premises Equipment’’

13. Section 255(b) of the Act provides

that ‘‘[a] manufacturer of

telecommunications equipment or

customer premises equipment shall

ensure that the equipment is designed,

developed, and fabricated to be

accessible to and usable by persons with

disabilities, if readily achievable.’’ 5

(a) Equipment. 14. The NPRM finds

that section 255 does not distinguish

between or set out separate accessibility

requirements for telecommunications

equipment and customer premises

equipment (CPE). The Commission

tentatively concludes that these terms

encompass all equipment used in the

provision of telecommunications

service, whether collocated with a user

or found elsewhere in a

telecommunications system. The

Commission further tentatively

concludes that section 255 applies to all

such equipment the same requirement

of functional accessibility. In short, to

the extent end users must interact with

equipment to use telecommunications

services, section 255 applies. The NPRM

invites comment on this view.

15. The NPRM seeks comment on

possible approaches to resolving

practical difficulties presented when

inaccessibility may be due to multiple

elements of a telecommunications

system.

16. The Commission next proposes

that section 255 apply to multi-use

equipment only to the extent the

equipment serves a telecommunications

function. The NPRM solicits comment

on this proposal, and in particular on

practical aspects of its application.

What, for example, is the obligation of

a manufacturer who produces

equipment apparently intended for a

non-telecommunications application,

but that finds use in connection with a
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28459

6 47 U.S.C. 153(45). 7 47 U.S.C. 153(29). 8 42 U.S.C. 12102(a)(2).

telecommunications service subject to

section 255?

17. Regarding software products, the

NPRM notes that the definition of

telecommunications equipment

includes ‘‘software integral to such

equipment (including upgrades).’’ 6

Given that the focus of section 255

should be on functionality, the

Commission tentatively views software

as simply one method of controlling

telecommunications functions. The

NPRM thus proposes to treat software

integral to telecommunications

equipment the same as equipment or

telecommunications services, and seeks

comment on this proposal.

18. On the other hand, the

Commission notes that the statutory

definition of CPE does not include a

corresponding explicit reference to

software. Where a CPE manufacturer

markets products that include software,

the Commission sees no reason to treat

the bundled software differently from

any other component of the equipment.

Where software to be used with CPE is

marketed separately from the CPE,

however, the Commission believes that

the software itself would not be subject

to section 255, and that it could not

even be considered to fall within the

statutory definition of CPE. Further, the

Commission believes that software

manufacturers would not be directly

subject to section 255 for software

bundled with the CPE of other

manufacturers. The NPRM seeks

comment on these issues, and in

particular on the practical aspects of

applying this distinction.

(b) Manufacturer. 19. The NPRM

tentatively concludes that section 255

should be construed to apply to all

manufacturers offering equipment for

use in the United States, regardless of

their location or national affiliation. The

Commission seeks comment on this

proposal.

20. Regarding the question of how

section 255 should apply to

manufacturers involved in the

production of multiple-source

equipment, the NPRM proposes to adopt

the ‘‘final assembler’’ approach taken by

the Access Board guidelines. The

Commission seeks comment on this

proposal.

21. The NPRM also tentatively

concludes that the term ‘‘manufacturer’’

generally would not include postmanufacturing distribution entities such

as wholesalers and retailers. Where the

manufacturing and distributing entities

are affiliated, however, or where the

distributing entities provide customer

support services commonly offered by

manufacturers of equipment subject to

section 255, the Commission tentatively

finds that it may be desirable either to

treat the distributor as a ‘‘manufacturer’’

or to assign to the final assembler

responsibility for the distributor’s

accessibility efforts. The Commission

seeks comment on the types of

arrangements between manufacturers

and distributors that could present these

situations, including private brand

arrangements, and seeks comment on

effective ways of dealing with them.

(4) ‘‘Network Features, Functions, or

Capabilities’’

22. Section 251(a)(2) of the Act

requires that a telecommunications

carrier not install network features,

functions, or capabilities that do not

comply with the guidelines and

standards established pursuant to

section 255. The Act does not expressly

define ‘‘network features, functions, and

capabilities,’’ but it does provide

examples as part of its definition of

‘‘network element.’’ 7 The Commission

recently explored this area from the

standpoint of interconnection in some

detail in the Local Competition Order

(61 FR 45476, August 29, 1996). The

NPRM therefore tentatively concludes

that the phrase ‘‘network features,

functions, or capabilities’’ does not

require further interpretation in this

proceeding.

23. The NOI sought comment on the

relationship between the duty of carriers

under section 251(a)(2) and the duty of

equipment manufacturers and service

providers under section 255. Based on

the limited comments received on this

issue, the NPRM tentatively concludes

that section 251(a)(2) governs carriers’

configuration of their network

capabilities. It does not make them

guarantors of the decisions of service

providers regarding how to assemble

services from network capabilities, and

it does not impose requirements

regarding accessibility characteristics of

the underlying components.

24. The Commission invites further

comment on these views, on specific

situations that might bring section

251(a)(2) into play, and on

recommended approaches to address

likely problems. The Commission also

seeks comment regarding the

relationship between the enforcement

procedures established by section 252

for interconnection agreements and the

Commission’s exclusive enforcement

authority under section 255.

Additionally, the Commission seeks

comment regard how responsibility for

any guidelines or standards for

accessibility and compatibility of

equipment or services to be adopted in

this proceeding should be apportioned

between (1) the underlying

manufacturer or provider of a network

element; and (2) the carrier that

incorporates that element into its

network to provide a feature, function,

or capability.

B. Nature of Statutory Requirements

25. Other essential terms used in

section 255 are not native to the Act, but

have their roots in the ADA and other

disability law. For these terms, the

Commission takes special note of the

expertise and recommendations of the

Access Board. However, the

Commission tentatively concludes that

it is bound to interpret section 255 in

light of the broader purposes of the 1996

Act and of the Communications Act

itself.

(1) ‘‘Disability’’

26. Section 255(a)(1) of the Act

provides that ‘‘[t]he term ‘disability’ has

the meaning given to it by section

3(2)(A) of the [ADA].’’ The ADA defines

‘‘disability’’ as: 8

• A physical or mental impairment

that substantially limits one or more of

the major life activities of an individual;

• A record of such an impairment; or

• Being regarded as having such an

impairment.

The NPRM proposes to follow what

the Commission considers to be the

mandate of section 255 by using without

modification or enhancement the ADA

definition of ‘‘disability.’’ In order to

provide guidance for equipment

manufacturers and service providers

seeking to increase accessibility of their

offerings, however, the NPRM also

proposes to use the Access Board’s list

of categories of common disabilities that

should be considered in analyzing

equipment and service offerings under

section 255. The Commission notes that

it does not view the list as either

exhaustive or final. The Commission

seeks comment on these proposals, and

invites suggestions for additional ways

of making the definition of ‘‘disability’’

useful to industry and consumers.

(2) ‘‘Accessible to and Usable by’’

27. Section 255 requires that

equipment and telecommunications

services be ‘‘accessible to and usable by

individuals with disabilities, if readily

achievable.’’ The Access Board

guidelines define ‘‘usability’’ as

meaning ‘‘that individuals with

disabilities have access to the full

functionality and documentation for the
28460 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

9 47 U.S.C. 255(d).

product, including instructions, product

information (including accessible

feature information), documentation,

and technical support functionally

equivalent to that provided to

individuals without disabilities,’’ and

define ‘‘accessibility’’ as compliance

with sections 1193.31 through 1193.43

of the Access Board’s rules. The

Commission proposes to adopt the

Access Board’s definition of ‘‘usability’’

as part of the Commission’s definition of

‘‘accessible to and usable by.’’ The

Commission tentatively concludes that

there is no reason to distinguish the two

terms for purposes of section 255, and

will use the term ‘‘accessibility’’ in the

broad sense to refer to the ability of

persons with disabilities to actually use

the equipment or service by virtue of its

inherent capabilities and functions.

28. The Access Board guidelines

define equipment accessibility as

including a list of functions. In addition,

section 1193.37 of the Access Board’s

rules calls for a pass-through of ‘‘crossmanufacturer, non-proprietary,

industry-standard codes, translation

protocols, formats or other information

necessary to provide

telecommunications in an accessible

format.’’ The Commission believes the

Access Board’s definition of

accessibility and the related Appendix

materials in the Access Board’s order

provide an appropriate basis for

evaluating accessibility obligations

under section 255, and proposes to

adopt them as part of the definition of

‘‘accessible to and usable by.’’ The

Commission also proposes that such an

evaluation should include not only use

of the equipment itself, but also support

services akin to what is provided to

consumers generally to help them use

equipment. The NPRM seeks comment

on this proposal and on how the

Commission might apply the Access

Board’s mandate that CPE ‘‘pass

through’’ accessibility information.

Further, the Commission invites

comment on criteria that would

constitute service accessibility.

29. The NPRM next reiterates the

Commission position, as stated in the

NOI, that section 255 reaches only those

aspects of accessibility to

telecommunications over which

equipment manufacturers and service

providers subject to the Commission’s

authority have direct control, such as

the design of equipment or the manner

in which a telecommunications service

is delivered to users. The Commission

seeks comment on this position.

Similarly, if a person with a disability

is able to use CPE such as a screenreading terminal, but finds that a

telecommunications service is not

usable because the terminal cannot

generate a screen display from the data

provided through the service, this

would also present an issue of

inaccessibility, but the cause of the

inaccessibility might be the service, or

the equipment, or both. The

Commission also seeks comment on

what accessibility obstacles are

encountered by persons with disabilities

that are attributable to

telecommunications service or

equipment characteristics. To the extent

that service accessibility is determined

by network equipment, including

integral software, how should the

Commission distinguish between

accessibility obstacles attributable to

network equipment, and those

attributable to service providers?

(3) ‘‘Compatible With’’

(a) ‘‘Peripheral devices or specialized

CPE’’. 30. Where accessibility is not

readily achievable, section 255(d)

requires that telecommunications

offerings be compatible with ‘‘existing

peripheral devices or specialized [CPE]

commonly used by individuals with

disabilities to achieve access, if readily

achievable.’’ 9 The Access Board defines

‘‘peripheral devices’’ as ‘‘[d]evices

employed in connection with

telecommunications equipment or

customer premises equipment to

translate, enhance, or otherwise

transform telecommunications into a

form accessible to individuals with

disabilities.’’ It defines specialized CPE

as ‘‘[e]quipment, employed on the

premises of a person (other than a

carrier) to originate, route, or terminate

telecommunications, which is

commonly used by individuals with

disabilities to achieve access.’’ The

Board further explains its definitions as

follows:

[T]he term peripheral devices commonly

refers to audio amplifiers, ring signal lights,

some TTY’s, refreshable Braille translators,

text-to-speech synthesizers and similar

devices. These devices must be connected to

a telephone or other customer premises

equipment to enable an individual with a

disability to originate, route, or terminate

telecommunications. Peripheral devices

cannot perform these functions on their own.

Specialized [CPE] should be considered a

subset of [CPE], and . . . manufacturers of

specialized [CPE] should make their products

accessible to all individuals with disabilities,

including the disability represented by their

target market, where readily achievable.

31. The NPRM seeks comment on

these definitions, but tentatively

concludes that it is not necessary to

distinguish between peripheral devices

and specialized CPE. The NPRM further

tentatively concludes that the reference

in section 255(d) to equipment and

devices ‘‘commonly used * * * to

achieve access’’ identifies products with

a specific telecommunications

functionality. In contrast, 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

Act. The NPRM seeks comment on this

issue.

(b) ‘‘Commonly used’’. 32. The NPRM

next considers criteria for determining

when equipment subject to section 255

is ‘‘commonly used.’’ In light of the

specific definitions set out in the Access

Board guidelines, the NPRM seeks

further comment with regard to when

devices and CPE should be considered

‘‘commonly used,’’ as described in the

statute. The NPRM also seeks comment

regarding whether and to what extent

the cost of CPE or peripheral devices

should be considered in determining

whether the CPE or peripheral device

may be deemed to be commonly used by

persons with disabilities. The

Commission’s tentative view is that the

CPE or peripheral device must be

affordable and widely available in order

to be considered ‘‘commonly used’’ by

persons with disabilities. The

Commission also notes that a listing of

such ‘‘commonly used’’ components

could be a valuable source of

information to apprise persons with

disabilities of the available technologies,

and the Commission seeks comment

regarding whether and how a listing

could be maintained.

(c) Compatibility. 33. Several

commenters note that ensuring

compatibility requires coordination

among, e.g., manufacturers of

specialized customer premises

equipment, network equipment and CPE

manufacturers, and service providers.

The Access Board lists five criteria for

determining compatibility, subject to

applicability: (1) External access to all

information and control mechanisms;

(2) connection point for external audio

processing devices; (3) compatibility of

controls with prosthetics; (4) TTY

connectability; and (5) TTY signal

compatibility. The NPRM proposes to

adopt these five criteria. The

Commission recognizes, however, that

these criteria might need to be

broadened to account for likely

technological advances in both

telecommunications and accessibility

products, either now or in the future, as

developments warrant. The NPRM seeks
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28461

10 42 U.S.C. 12181(9).

comment on this proposal, and on these

views.

(d) Other matters. 34. Finally, the

NPRM requests commenters to address

how the definition of ‘‘readily

achievable’’ should apply to the

obligations of manufacturers and service

providers to provide compatibility

pursuant to section 255(d). Specifically,

the NPRM seeks comment regarding the

extent to which the same factors that are

used to determine whether accessibility

is readily achievable can or should also

be used to determine whether

compatibility is readily achievable.

Commenters are also asked to address

how the goal of compatibility can be

met without hampering competition or

the development of new technologies.

(4) ‘‘Readily Achievable’’

(a) General. 35. Section 255 requires

accessibility to the extent it is ‘readily

achievable.’ Section 255(a)(2) provides

that ‘‘[t]he term ‘‘readily achievable’’

has the meaning given to it by section

301(9) of [the ADA],’’ which states: 10

The term ‘‘readily achievable’’ means

easily accomplishable and able to be carried

out without much difficulty or expense. In

determining whether an action is readily

achievable, factors to be considered

include—

(A) the nature and cost of the action

needed under [the ADA];

(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 operation or 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.

The NPRM tentatively concludes that

‘‘readily achievable,’’ as defined by the

ADA and incorporated by section 255,

simply means ‘‘easily accomplishable

and able to be carried out without much

difficulty or expense.’’ The Commission

believes that this broad definition is

applicable to telecommunications

equipment and services.

36. It is also the Commission’s

tentative view that the four factors set

out with the ADA definition of ‘‘readily

achievable’’ should be construed as the

ADA describes them: factors to be

considered in applying the definition in

the ADA setting. Given the differences

between architectural barriers and

telecommunications barriers, it is the

Commission’s tentative view that the

ADA factors should guide, though not

constrain, the development of factors

that more meaningfully reflect pertinent

issues and considerations relevant to

telecommunications equipment and

services. The Commission intends that

any factors developed in this

rulemaking will be applied

appropriately to the facts of particular

cases, and will not operate so as to

inadvertently impede efforts to arrive at

reasonable judgments in each case. The

Commission seeks comment on these

tentative conclusions.

(b) Telecommunications factors. 37.

The Commission believes a useful

framework for analyzing whether a

particular telecommunications

accessibility feature is ‘‘readily

achievable’’ involves looking at three

areas: (1) Is the feature feasible? (2)

What would be the expense of providing

the feature? (3) Given its expense, is the

feature practical? The Commission seeks

comment on these proposed factors. The

Commission especially seeks comment

on the practical implications of various

options: their 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.

38. A difficult aspect of determining

whether a particular accessibility

feature is readily achievable involves

determining whether it is practical,

given the expenses involved. In

determining the practicality of

providing a particular accessibility

feature, the Commission believes it is

appropriate to consider the resources

available to the provider to meet the

expenses associated with accessibility,

the potential market for the product or

service, the degree to which the

provider would recover the incremental

cost of the accessibility feature, as well

as issues regarding product life cycles.

Because the ultimate determination of

whether it is readily achievable to make

a particular product offering accessible

to users with a particular disability may

be complex and will depend on the

particular circumstances of the case, the

nature and extent of section 255

obligations will generally have to be

evaluated and refined on a case-by-case

basis, as the Commission resolves

complaints of non-compliance. The

Commission seeks comment on this

general approach, as well as on the

following specific elements of

practicality.

(i) Resources

39. The NPRM examines various ways

to consider the resources of firms of

varying characteristics, in a manner

which would not distort competitive

incentives, including the relationship

between parent and subsidiary

corporations, and tentatively finds most

compelling the view that the financial

resources of the organization that has

legal responsibility for, and control

over, a telecommunications product

(service or equipment) should be

presumed to be available to make that

product accessible in compliance with

section 255. The NPRM therefore

proposes to establish a presumption that

the resources reasonably available to

achieve accessibility are those of the

entity legally responsible for the

equipment or service that is subject to

the requirements of section 255. The

NPRM also proposes, however, that this

presumption may be rebutted in a

complaint proceeding or other

enforcement proceeding in two different

respects:

• On the one hand, the assets and

revenues of another entity (e.g., parent

or affiliate) that is not legally

responsible for the equipment or service

involved may still be treated as

available for purposes of achieving

accessibility under section 255, if it is

demonstrated that those assets and

revenues are generally available to the

entity that does have legal responsibility

for the equipment or service.

• On the other hand, the general

presumption can also be rebutted by a

respondent showing that the sub-unit

(e.g., corporate division or department)

actually responsible for the product or

service in question does not have access

to the full resources of the corporation

or equivalent organization of which it is

a part.

40. The Commission tentatively

concludes that this presumption may

potentially serve as an effective guard

against evasive practices. In any event,

the NPRM proposes that the

Commission will determine what

resources are reasonably available on a

case-by-case basis in the context of

complaint proceedings or other

enforcement proceedings, because the

variety of organizational forms and

other circumstances make development

of quantitative standards by the

Commission impracticable. The NPRM

seeks comment on these proposals.

(ii) Market Considerations

41. The NPRM discusses the scope of

the accessibility requirement in terms of

how the provision of either conflicting

accommodations for different
28462 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

disabilities, or accommodations that

would address multiple disabilities but

would make the offering technically or

economically impracticable, should be

viewed under the ‘‘readily achievable’’

standard. The NPRM also seeks

comment on how to incorporate market

considerations into an evaluation of

whether particular accessibility features

are practicable. Additionally, the NPRM

invites comment on how accessibility

reductions should be treated.

(iii) Cost Recovery

42. The Commission also believes it is

appropriate to consider the extent to

which an equipment manufacturer or

service provider is likely to recover the

costs of increased accessibility. The

Commission explains that this is not to

say that the equipment manufacturer or

service provider must be able to fully

recover the incremental cost of the

accessibility feature in order for

accessibility to be readily achievable.

Rather, the Commission merely finds

that cost recovery is a factor that a

company should weigh in making its

determination of what is readily

achievable. The NPRM further seeks

comment on the extent that service

providers and manufacturers should

consider affordability of accessible

products when making cost recovery

assessments.

(iv) Timing

43. Several comments address

accessibility obligations over the course

of a product life cycle, especially as it

relates to improved accessibility

technology. The Commission phrases

the timing question broadly, by asking

how product life cycles should be taken

into account in making ‘‘readily

achievable’’ determinations. Given that

section 255 has been in effect since

February 1996, and in light of the

Commission’s tentative conclusion that

timing issues should be considered as

an element of ‘‘readily achievable,’’ the

Commission believes that a general

‘‘grace period’’ for compliance is not

warranted. The NPRM, however, seeks

comment on this view.

III. Implementation Processes

44. The NPRM next proposes

measures that will put section 255 into

action, ensuring manufacturers and

service providers are in compliance

with the requirement that their products

must be accessible, to the extent readily

achievable, and providing relief for

consumers when there are compliance

problems. The Commission’s proposals

rest on two principles: (1)

Responsiveness to consumers; and (2)

efficient allocation of resources. The

NPRM therefore proposes to streamline

the process for addressing accessibility

issues as much as possible, freeing

consumers and industry alike to apply

their resources to solving access

problems, rather than subjecting them to

burdensome procedural requirements.

The Commission has made every effort

to fashion proposals that will reduce

administrative burdens for all who

might be involved in the complaint

process, and invites suggestions for still

further improvements.

45. Thus, the NPRM proposes a twophase program for dealing with

consumer issues arising under section

255. In the first phase, consumer

inquiries and complaints will be

referred to the manufacturer or service

provider concerned, who will have a

short period of time to solve the

complainant’s access problem and

informally report to the Commission the

results of its efforts. Matters or disputes

that remain unresolved may proceed to

a second-phase dispute resolution

process.

A. Fast-Track Problem-Solving Phase

46. An important part of the

Commission’s proposal is an informal,

‘‘fast-track’’ process designed to solve

access problems quickly and efficiently.

If the proposed framework is adopted,

this process would function as follows:

• The process would be initiated by

the submission of a complaint.

• Upon receipt of a complaint, the

Commission would promptly forward

the complaint to the manufacturer or

service provider (or both) whose

offerings are the subject of the

complaint, and set a deadline for a

report of action taken to resolve the

complaint.

• During the period prescribed, or

during an extension period granted for

good cause, the manufacturer or

provider would attempt to solve the

complainant’s problem regarding the

accessibility or compatibility of the

provider’s service or equipment. During

this time, the Commission staff would

be available to both the complainant

and the respondent to provide

information and informal assistance

upon request.

• By the end of the fast-track phase,

the respondent would be expected to

informally report to the Commission the

results of its efforts to solve the problem

that is the subject of the complaint.

• The Commission would evaluate

the respondent’s report. The matter

would be closed if it appeared that the

complainant’s access problem had been

solved and there was no underlying

compliance problem, or if the matter

was outside the scope of section 255.

• On the other hand, the matter

would proceed to a second phase of

dispute resolution processes if the

problem remained unsolved and there

was a question of whether an

accessibility solution was readily

achievable, or if it appeared there was

an underlying problem regarding the

respondent’s compliance with its

section 255 accessibility obligations.

47. The Commission believes that the

proposed fast-track process will

frequently permit complainants and

respondents to resolve disputes before

requiring any use of additional

Commission processes. In addition, the

burden on all parties is intended to be

minimal under the Commission’s

proposal, and the process encourages

the rapid, informal solution of access

problems. The Commission seeks

comment on the general outline and on

the more specific aspects of this fasttrack process.

(1) Initial Contact With Commission

48. The NPRM first proposes to

encourage any consumer who has not

directly contacted the manufacturer or

service provider before contacting the

Commission to do so, and the

Commission will provide contact

information for that purpose.

Consumers would also be invited to

contact the Commission again if the

problem is not resolved satisfactorily.

The Commission seeks comment on this

proposal.

49. Further, because section 255

complaints will involve offerings

overseen by various Commission

bureaus and offices, and because

consumers may be unfamiliar with these

organizational differences, the

Commission anticipates establishing a

central Commission contact point for all

section 255 inquiries and complaints.

The NPRM seeks comment on measures

the Commission should take to ensure

that persons with disabilities are made

aware of their opportunity to address

inquiries and complaints to a central

contact point at the Commission.

50. The NPRM proposes that persons

with disabilities may submit their

complaints by any accessible means,

including, for example, letter, Braille,

facsimile, electronic mail, internet, TTY,

audio cassette, or telephone call. The

NPRM also proposes, however, to make

available a complaint form, but not to

require its use for the initiation of a

section 255 complaint. In whatever form

a complaint is received, however, the

Commission will need to ascertain at

least the following information before it

can proceed:

• Complainant contact information:

Name, mailing address, and preferred
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28463

contact method (letter, telephone

number, TTY number, facsimile

number, or electronic mail address).

• Identification of the equipment or

service complained of, and the name

(and, if known, the address) of its

manufacturer or provider.

• A description of how the equipment

or service is inaccessible to persons

with a particular disability or

combination of disabilities.

The Commission seeks comment on

what additional information, if any,

would tend to provide a clearer

description of the difficulty complained

of, without requiring excessive or

irrelevant information. In any event, the

Commission would retain discretion to

request from complainants additional

information that would help it to

rapidly address the request.

(2) Provider Contact

51. The Commission’s fast-track

proposal envisions initially referring

complaints to the manufacturer or

service provider (or both, as

appropriate). This will necessitate

obtaining a list of contact points for

each manufacturer and service provider

subject to section 255. The NPRM

solicits comment on a range of questions

pertinent to the establishment and

maintenance of such a list of contacts

and on whether to require firms to

provide accessibility contact

information directly to consumers and,

if so, how. The Commission seeks

comment on these matters and also on

whether the process should include a

notification to the complainant that the

complaint has been referred and, if so,

what information the notification

should include.

(3) Solution Period; Report

52. Upon receipt of a complaint, the

Commission would promptly forward it

to the manufacturer or service provider

(or both) whose offerings are the subject

of the complaint, and set a deadline for

a report of action taken to resolve the

complaint. The NPRM seeks comment

on appropriate customer service

standards for complaint forwarding. The

NPRM also seeks comment on whether

the Commission should forward

complaints as submitted, regardless of

format, or whether it should forward

‘‘translations’’ or transcripts of

complaints submitted in formats such as

Braille.

53. The NPRM next proposes an

action report deadline of five business

days from the date the complaint is

forwarded, as a reasonable balance

between providing sufficient time for

respondents to study the complaint,

gather relevant information, identify

possible accessibility solutions, and,

most importantly, work with the

complainant to solve the access problem

if possible, and providing accessibility

as soon as practicably possible. The

NPRM invites comment on this

proposal.

54. The NPRM also proposes that a

provider may file an interim report and

a request for additional time in

situations where a period of five

business days (for example) may be

enough time for a provider to assess a

problem and begin to resolve it, but may

not be long enough to complete the

resolution. The Commission seeks

comment on this proposal and also on

how to provide a mechanism for either

party (or the Commission) 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.

55. By the end of the fast-track

process, the manufacturer or service

provider is expected to report

informally to the Commission regarding

whether the complainant has been

provided the access sought, and if not,

why it has not. To put the

circumstances of the particular

accessibility complaint in context, it

might also be appropriate for the

respondent to report generally its

procedures for ensuring product

accessibility. In order to provide

flexibility in this process, the

Commission proposes that such reports

may be submitted by telephone call,

electronic mail, facsimile or hard-copy

letter. The Commission seeks comment

on this proposal.

56. Finally, to ensure the integrity of

the fast-track process by encouraging a

sharing of information between

complainant and respondent, the NPRM

proposes to require that respondents

provide copies of their reports to

complainants. To avoid formalizing and

stifling the process, however, the NPRM

also seeks comment not only on this

proposal, but on how to satisfy this

requirement in the case of telephonic or

other oral reports.

(4) Commission Evaluation

57. At the end of the fast-track

process, the NPRM proposes that the

Commission would consider both (1)

the success of the respondent in

providing an appropriate access

solution, if possible; and (2) whether

there appeared to be an underlying

compliance problem, regardless of

whether the particular complainant had

been satisfied. That review would

determine whether further action was

required, as follows:

• If it appeared that the complainant’s

access problem had been satisfactorily

solved (or that accessibility was not

readily achievable) and there was no

indication of an underlying problem of

compliance with section 255, the matter

would be closed by the Commission.

• If it appeared that the complaint did

not involve matters subject to section

255, the matter would be closed.

• If it appeared that the complainant’s

access problem had been satisfactorily

resolved but there was an indication of

an underlying compliance problem, the

Commission would undertake further

dispute resolution efforts to determine

the nature and magnitude of the

problem, and take appropriate action.

• If it appeared that the access

problem had otherwise not been

satisfactorily resolved, or if the

respondent failed to submit a timely

resolution report, the Commission

would initiate further resolution

processes.

58. The NPRM also proposes that the

Commission’s evaluation of a resolution

report not necessarily be limited to the

respondent’s initial report, but might

also include additional information

requested from the respondent or the

complainant, discussions with

accessibility experts from industry,

disability groups, or the Access Board,

or review of prior or other pending

complaints involving the respondent.

Further, to the extent a respondent’s

report asserted that accessibility was not

readily achievable, the claim would be

evaluated using the same factors that

would be used during a phase-two

dispute resolution proceeding. The

Commission seeks comment on these

proposals.

59. The NPRM proposes that the

Commission would communicate its

determination to both the complainant

and the respondent in writing. If the

Commission concluded that no further

action was warranted because the matter

lies outside the scope of section 255,

further information may be supplied

that would assist the consumer in

seeking relief through other possible

avenues. If the determination was to

proceed to dispute resolution

proceedings, pertinent information

relating to initiating those processes

would be noted. The Commission seeks

comment on this aspect of the fast-track

proposal.

60. Finally, the NPRM notes that if the

Commission’s fast-track determination

was that the matter should be closed,

information would be provided to assist

a complainant who disagreed with that

determination and wished to pursue the

complaint to phase-two dispute

resolution. The Commission proposes
28464 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

not to require any particular method for

complainants to communicate their

desire to continue to further stages of

dispute resolution, but to leave the

method to the complainant’s discretion,

in the same manner as the complaint

filing above. The NPRM seeks comment

on these proposals.

B. Use of Traditional Dispute Resolution

Processes

(1) Informal Dispute Resolution

Process

61. For those section 255 complaints

that are not resolved under fast-track

procedures, the NPRM proposes to

resolve most of these complaints

pursuant to informal, investigative

procedures, which the Commission

considers to be more efficient and

flexible than formal procedures. To

accommodate special circumstances,

however, the NPRM also proposes to

establish formal adjudicatory

procedures, to be employed only where

the complainant requests such

resolution and the Commission

consents. Finally, the Commission also

proposes to allow use of alternative

dispute resolution procedures in cases

in which the Commission and all parties

agree that such procedures are

appropriate. The NPRM seeks comment

on this general procedural framework,

and on other specific issues discussed

in the full text of the NPRM.

62. The NPRM seeks comment on the

Commission’s proposal not to impose a

standing requirement for complaints

under section 255, whether by virtue of

being a person with a disability, being

a customer of the entity that is the

subject of the complaint, or otherwise.

The NPRM also proposes not to

establish any time limit for the filing of

a complaint under section 255. The

Commission seeks comment on these

proposals, on the relationship of section

415 of the Act to the Commission’s

complaint authority in section 255, and

on the need for regulatory parity

between equipment manufacturers and

service providers.

63. In order to avoid confusion

regarding when a respondent must

answer a complaint in the dispute

resolution phase, and to provide an

efficient transition from the phase-one

fast-track process to the phase-two

dispute resolution process, the NPRM

proposes to specify the due date in the

Commission’s written notice initiating

the dispute resolution phase. Given the

likely complexity of many section 255

complaints, the Commission proposes

generally to allow 30 days for a

respondent to answer a complaint,

computed from the date of the written

notice. The Commission would,

however, retain the discretion to specify

a shorter or longer response date based

upon the nature of the complaint and

the totality of the circumstances. The

NPRM also proposes to require that a

respondent must serve a copy of the

answer on the complainant and on any

other entity it implicates in its answer.

The NPRM additionally proposes a

reply period of 15 calendar days for the

person who filed the original pleading

to respond to answers, subject to

Commission adjustment in specific

cases. The NPRM seeks comment on

these proposals.

64. In the interest of ensuring that the

dispute resolution processes for section

255 are as accessible as possible, the

NPRM proposes not to require any

particular format for submissions from

complainants or respondents. Because

telephonic and other non-permanent

oral presentations would not provide an

appropriate record for decision making,

however, the Commission proposes to

require that submissions be in a

permanent format. The Commission

seeks comment on these proposals, and

on any other related issues.

65. Commission consideration of

section 255 complaints may often

involve evaluation of information which

may be considered proprietary business

data, including a company’s resources

available to achieve accessibility. The

Commission is sensitive to the need to

protect the confidentiality of such

information, and does not want to

discourage its submission where

relevant to the decision-making process.

The Commission’s rules already provide

confidentiality for proprietary

information in certain cases. (See, e.g.,

47 CFR 0.457(d), 0.457(g), 0.459, and

1.731.) The Commission seeks comment

on whether, in the particular context of

section 255, existing rules and

procedures for review of confidentiality

requests strike the best balance between

reasonable expectations of

confidentiality and open decisionmaking.

(2) Formal Dispute Resolution Process

66. While the Commission anticipates

that most complaints not resolved under

fast-track procedures will be

adjudicated pursuant to the informal

procedures previously discussed, the

NPRM proposes to reserve the right to

apply a more formal, adjudicatory

mechanism in which complainants

accept the primary burden of pursuing

relevant facts, with attendant rights

(such as the right of discovery) and

obligations. The NPRM is not proposing

specific language for section 255

adjudicatory process rules, but proposes

to model them on the common carrier

formal complaint procedures set out in

§§ 1.720 through 1.736 of the

Commission’s Rules, modified

somewhat to take into account the

inherent differences between traditional

common carrier complaint issues and

accessibility issues under section 255,

as specified in the full text of the NPRM.

The Commission seeks comment on

these variations.

67. The NPRM also does not propose

to require a filing fee for informal

resolution of complaints, or for formal

resolution of complaints directed at

equipment manufacturers and service

providers that are not common carriers.

Under the Act, however, the

Commission is required to impose a

filing fee for formal complaints directed

against common carriers, unless it can

be demonstrated that waiving the fee

would be in the public interest. The

NPRM seeks comment on the

circumstances under which the

Commission should waive or lower this

fee, and on other fee-related questions

as indicated in the full text of the

NPRM.

68. The NPRM finds that section 255

complaints need not be resolved within

the five-month deadline established in

section 208(b) of the Act. The NPRM

finds that, because section 255

establishes Commission authority to

prescribe complaint procedures,

separate from authority conferred under

section 208, any time limits for

resolving complaints under section 208

do not apply.

(3) Alternative Dispute Resolution

Process

69. The NPRM proposes to make

available alternative dispute resolution

(ADR) procedures such as arbitration,

conciliation, facilitation, mediation,

settlement negotiation, and other

consensual methods of dispute

resolution for resolving section 255

complaints not resolved under the fasttrack process. The Commission

tentatively concludes that ADR could be

an effective tool for dealing with

conflicts arising under section 255,

while avoiding the expense and the

delay of adversarial proceedings. The

Commission seeks comment on these

views generally, and on related

questions as detailed in the full text of

the NPRM.

70. Apart from their role in an ADR

process, there may be other ways in

which neutral parties with special

expertise in accessibility matters could

help the Commission resolve

complaints. Outside experts and

committees can perform a valuable

consultative function, helping

businesses and consumers to develop
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28465

accessibility solutions as

telecommunications products and

services are being developed. The

NPRM invites comment on the role that

such parties could serve to help speed

resolution of complaints.

71. Other groups with accessibility

expertise may well develop out of the

process by which section 255 is being

implemented and as accessibility efforts

become more widespread. The

Commission might rely on outside

experts to gather and evaluate data

needed to resolve accessibility

questions. The Commission seeks

comment on the utility of relying on

such experts and on what provisions

might be made to accomplish this

objective.

(4) Defenses to Complaints

72. In response to an accessibility

complaint or an investigation conducted

on the Commission’s initiative without

a prior complaint, the Commission

tentatively finds that it seems likely that

the most common defenses mounted by

a manufacturer or service provider

would involve a claim that: (1) The

product in question lies beyond the

scope of section 255; (2) the product in

question is in fact accessible; or (3)

accessibility is not readily achievable.

The first two defenses are relatively

straightforward, but claims of the third

kind are likely to present formidable

difficulties. The Commission believes it

would be useful to set out for comment

some tentative views on use of a

‘‘readily achievable’’ defense.

73. To the extent an offering subject

to section 255 is not accessible, it is

incumbent upon an offeror making a

‘‘readily achievable’’ defense to

establish facts to support the claim. In

addition to the factors used to determine

whether an accessibility action is

readily achievable, it is also appropriate

to give some weight to evidence that a

respondent made good faith efforts to

comply with section 255 by taking

actions that would tend to increase the

accessibility of its product offerings,

both generally and with respect to the

particular product that is the subject of

the complaint. Examples of the sorts of

measures that would be credited by the

Commission are set out in the Access

Board guidelines and in the Appendix

to the Access Board Order. The NPRM

notes, however, that the Board’s

guidelines should not be viewed as a

‘‘laundry list’’ of requirements all firms

subject to section 255 must adopt.

Rather, each firm should consider the

guidelines in light of its situation and

the degree to which its products have or

lack accessibility features, and then

adopt those features that will help it

provide the accessibility section 255

requires.

74. The Commission seeks comment

on these and other accessibility

measures that might be suitable for

equipment manufacturers. Further,

while the Access Board’s focus was

limited to equipment manufacturers, the

measures it describes generally have

analogs applicable to service providers.

The Commission therefore specifically

seeks comment on measures suitable for

service providers. In addition, the

Commission seeks comment on whether

firms subject to section 255 should be

required to provide information

regarding how consumers can contact

them with respect to accessibility

issues, and whether such notice should

also include information involving how

to contact the Commission in case of

accessibility problems, and if so, what

information should be required and how

it should be provided.

C. Penalties for Non-Compliance

75. Section 255, on its face, makes no

special provision for penalties for

manufacturers or service providers

found to violate its requirements. Given

the importance of the accessibility

mandate, the Commission believes that

it should employ the full range of

penalties available under the Act in

enforcing section 255. The Commission

believes that the Act provides for the

following sanctions, which the

Commission proposes to apply, as

appropriate, given the nature and

circumstances of a violation:

• Section 503(b) of the Act provides

a system of forfeitures for willful or

repeated ‘‘failure to comply with any of

the provisions of [the] Act or of any

rule, regulation, or order issued by the

Commission under [the] Act * * *.’’

• At the end of an adjudication, the

Commission would usually issue an

order setting out its findings and

directing prospective corrective

measures. It is conceivable these orders

might be the result of settlements with

respondents, in the nature of consent

decrees, if circumstances warrant. In

any event, violation of a section 255

order could result in the imposition of

a section 503(b) forfeiture.

• Section 312 of the Act provides for

the revocation of a station license or

construction permit, for the willful or

repeated violation of or failure to

observe any provision of the Act.

• Section 312 of the Act also provides

for the issuance of a cease and desist

order directed to a station licensee or

construction permit holder, for the

willful or repeated violation of or failure

to observe any provision of the Act. The

Commission believes Sections 4(i) and

208 of the Act provide a basis for such

an order with respect to non-licensees.

• Sections 207 and 208 of the Act

provide for the award of damages for

violations by common carriers and,

arguably, others.

• The Commission seeks comment on

whether there is a basis for ordering the

retrofit of accessibility features into

products that were developed without

such features, when including them was

readily achievable.

The Commission invites comment

about these and other possible remedies

to enforce section 255 of the Act.

D. Additional Implementation Measures

76. The NPRM notes that other

existing Commission processes (and

associated forms) may provide efficient

vehicles for requirements that may be

developed in this proceeding, such as

information collection, or for providing

notice to firms dealing with the

Commission that they may be subject to

section 255. The NPRM seeks comment

on whether such existing processes

might provide additional options for

fostering product accessibility. Further,

given that sections 207 and 208 of the

Act provide an alternate vehicle for

submitting complaints that section 255

has been violated, in the case of

common carriers, the NPRM seeks

comment on whether to modify the

existing common carrier complaint rules

with respect to section 255 complaints

so as to incorporate the kinds of

processes the NPRM has proposed for

complaints filed under section 255.

77. Finally, the Commission believes

there are other measures the

Commission itself might take, or might

encourage others to take, to foster

increased accessibility of

telecommunications products. These

include:

• Establishment of a clearinghouse for

current information regarding

telecommunications disabilities issues.

• Publication of information

regarding the performance of

manufacturers and service providers in

providing accessible products, perhaps

based on statistics generated through the

fast-track and dispute resolution

processes.

• Expansion of the information

provided on the Internet at the

Commission’s Disabilities Issues Task

Force Web site (http://www.fcc.gov/dtf).

• Efforts by consumer and industry

groups to establish ongoing

informational and educational

programs, product and service

certification, standards-setting, and

other measures aimed at bridging the

gap between disabilities needs and

telecommunications solutions.
28466 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

• Development of peer review

processes to complement the proposed

implementation measures.

The Commission particularly invites

comment regarding the practical aspects

of implementing these or other similar

implementation measures.

IV. Interim Treatment of Complaints

78. As noted earlier, section 255

became effective upon enactment on

February 8, 1996. Until the Commission

adopts procedural rules in this

proceeding, complaints alleging

violations of section 255 may be filed

pursuant to Section 1.41 of the

Commission’s Rules (47 CFR 141) and

other general procedural rules (47 CFR

1.45–1.52). Complaints against common

carriers may also be filed pursuant to

the common carrier complaint rules set

out in Part 1, Subpart E of the

Commission’s Rules (See 47 CFR 1.711,

1.716–1.718, 1.720–1.736).

79. Because the Commission has

existing complaint processes in place

which enable it to address complaints

on a case-by-case basis, the NPRM

declines to establish interim rules.

Furthermore, the NPRM does not find it

necessary to establish specific interim

procedures.

80. Although the Commission

recognizes that the proposals set forth in

the NPRM have no binding effect until

formally adopted, they may serve as

guidance to parties concerning factors

the Commission would likely consider

in a complaint proceeding. The

Commission urges potential

complainants and defendants to take

particular note of interpretations of key

terminology and the emphasis on

accessibility analysis throughout the

design process. In addition, the Access

Board guidelines and the related

Appendix materials may be instructive

to affected entities in determining their

obligations under section 255 during

this interim period.

V. Administrative Matters

A. Ex Parte Presentations

81. The NPRM is a ‘‘permit-butdisclose’’ notice and comment

rulemaking proceeding. Ex parte

presentations are permitted, provided

they are disclosed as provided in

Commission rules. See generally 47 CFR

1.1202 , 1.1203, 1.1206(a).

B. Initial Regulatory Flexibility Analysis

82. As required by section 603 of the

Regulatory Flexibility Act, the

Commission has prepared the following

Initial Regulatory Flexibility Analysis

(IRFA) of the expected impact on small

entities of the proposals suggested in

this document. Written public

comments are requested on the IRFA.

These comments must be filed in

accordance with the same filing

deadlines as comments on the rest of the

NPRM but they must have a separate

and distinct heading designating them

as responses to the IRFA. The

Commission’s Office of Public Affairs,

Reference Operations Division, shall

send a copy of the NPRM, including the

IRFA, to the Chief Counsel for Advocacy

of the Small Business Administration in

accordance with paragraph 603(a) of the

Regulatory Flexibility Act. Public Law

96–354, 94 Stat. 1164, 5 U.S.C. 601 et

seq. (1981).

(1) Need for, and Objectives of,

Proposed Action

83. This rulemaking proceeding was

initiated to propose means of

implementing and enforcing section 255

of the Act, as added by the

Telecommunications Act of 1996. This

section is intended to ensure that

telecommunications equipment and

services will be accessible to persons

with disabilities, if such accessibility is

readily achievable. If accessibility is not

readily achievable, then the

telecommunications equipment and

services are to be made compatible with

specialized customer premises

equipment or peripheral devices to the

extent that so doing is readily

achievable.

84. Given the fundamental role that

telecommunications has come to play in

today’s world, the provisions of section

255 represent the most significant

governmental action for people with

disabilities since the passage of the

Americans with Disabilities Act of 1990.

Public Law 101–336, 104 Stat. 327

(1990) (codified at 42 U.S.C.

12102(2)(A), 12181(9)) (ADA). Inability

to use telecommunications equipment

and services can be life-threatening in

emergency situations, can severely limit

educational and employment

opportunities, and can otherwise

interfere with full participation in

business, family, social, and other

activities. The Commission must do all

it can to ensure that people with

disabilities are not left behind in the

telecommunications revolution and

consequently isolated from

contemporary life.

85. The Commission sets forth

proposals to implement and enforce the

requirement of section 255 that

telecommunications offerings be

accessible to the extent readily

achievable. The centerpiece of these is

a ‘‘fast-track’’ process designed to

resolve many accessibility complaints

informally, providing consumers quick

solutions and freeing manufacturers and

service providers from the burden of

more structured complaint resolution

procedures. In cases where fast-track

solutions are not possible, however, or

where there appears to be an underlying

noncompliance with section 255, the

Commission would pursue remedies

through more conventional processes. In

both cases, in assessing whether service

providers and equipment manufacturers

have met their accessibility obligations

under section 255, the Commission

would look favorably upon

demonstrations by companies that they

considered accessibility throughout the

development of telecommunications

products.

(2) Legal Basis

86. The proposed action is authorized

under sections 1, 4(i), 10, 201, 202, 207,

208, 255, 303(b), 303(g), 303(j), 303(r)

and 403 of the Communications Act, 47

U.S.C. 151, 154(i), 160, 201, 202, 207,

208, 255, 303(b), 303(g), 303(j), 303(r),

403.

(3) Description and Number of Small

Entities Involved

87.The NPRM will apply to

manufacturers of telecommunications

equipment and customer premises

equipment (CPE). In addition,

telecommunications service providers of

many types will be affected, including

wireline common carriers and

commercial mobile radio service

(CMRS) providers. To the extent that

software is integral to a

telecommunication function, software

developers or manufacturers may also

be affected.

88. Commenters are requested to

provide information regarding how

many entities (overall) and how many

small entities would be affected by the

proposed rules in the NPRM. It should

be noted that the resources of the

regulated entity are taken into account

in the determination of whether

accessibility of a given product or

service is readily achievable. Thus,

there is an inherent consideration of the

financial burden on the entity in its

obligation to provide accessibility: if not

readily achievable, the legal obligation

is removed. However, all regulated

entities are required to assess whether

providing accessibility is readily

achievable. Thus, an important issue for

RFA purposes is not the absolute cost of

providing accessibility, but, rather, the

extent to which the cost of performing

an assessment as to whether an

accessibility feature is readily

achievable is unduly burdensome on

small entities.
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28467

11 Small Business Act, 15 U.S.C. 632 (1996).

12 5 U.S.C. 601(4).

13 1992 Economic Census, U.S. Bureau of the

Census, Table 6 (special tabulation of data under

contract to Office of Advocacy of the U.S. Small

Business Administration).

89. The RFA directs agencies to

provide a description of and, where

feasible, an estimate of the number of

small entities that may be affected by

the proposed rules, if adopted. The RFA

generally defines the term ‘‘small

entity’’ as having the same meaning as

the terms ‘‘small business,’’ ‘‘small

organization,’’ and ‘‘small governmental

jurisdiction.’’ In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under the Small Business Act. A small

business concern is one which: (1) Is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) satisfies any additional criteria

established by the Small Business

Administration (SBA). 11 A small

organization is generally ‘‘any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.’’ 12 Nationwide, as

of 1992, there were approximately

275,801 small organizations. 13 The

Commission further describes and

estimates the number of small entity

licensees and other covered entities that

may be affected by the proposed rules,

if adopted.

a. Equipment manufacturers. 90. The

following chart contains estimated

numbers of domestic entities that may

be affected by this rulemaking. The data

from which this chart was developed

includes firm counts that reflect product

lines not involved in

telecommunications, as defined by the

1996 Act, and also includes overlapping

firm counts and firms deliberately

commingled to avoid disclosing the

value of individual firms’ equipment

shipments for the reporting period.

Product class/

code

Product

description

Estimated

firm count Comments

36611 ................ Switching and switchboard equipment.84 Includes central office switching equipment, PBX equipment, cellular

mobile switching equipment.

36613 ................ Carrier line equipment and modems 89 Includes repeaters, multiplex equipment, channel banks, subscriber loop

and carrier line equipment, and modems.

36614 ................ Other telephone and telegraph

equipment.

215 Includes single line, ISDN, key and public pay telephone sets, cordless

handsets, data communications equipment, video conferencing equipment, voice and call message processing equipment, call distributors,

facsimile equipment.

36631 ................ Communications systems and

equipment.

346 Includes mobile cellular equipment, conventional and trunked system

equipment, SONET-standard equipment.

36632 ................ Broadcast, studio, and related electronic equipment.172 Includes cable equipment possibly used to provide telephone service,

such as subscriber equipment.

35715 ................ Personal computers and

workstations.

89 Includes personal computers with CPE capabilities.

35716 ................ Portable computers ......................... 35 Typically with attached display.

35771 ................ Computer peripheral equipment, not

elsewhere classified.

259 Excludes common storage, scanning, and other peripherals itemized in

census source document. Intended to include peripherals used for

telecommunication function, and specialized CPE used in conjunction

with computers. Includes keyboards, manual input devices such as

mouses and scanners, voice recognition equipment (88 firms).

36798 ................ Printed circuit assemblies ................ 648 Includes communications printed board assemblies (211 firms) and

‘‘other electronics,’’ including office equipment and point of sales (182

firms) that would commonly involve telecommunications functions.

35751 ................ Computer terminals ......................... 57 Includes remote batch terminals, displays, etc. For distributed computer

systems involved in telecommunications, remote terminals and other

components are probably essential to ensuring accessible telecommunications capabilities.

35772 ................ Parts and subassemblies for computer peripherals and input/output

equipment.

72 Includes funds transfer devices and point of sale terminals (29 firms).

b. Software. 91. Due to the

convergence between

telecommunications equipment,

telecommunications services and the

software used to control and regulate

each, software developers and

producers may be viewed as regulated

entities under section 255. This is

particularly true of software that is used

to make traditional telecommunications

devices operate with CPE designed for

specific disabilities. The Commission

seeks comment on the impact of its

proposed rules on the small businesses

within this industrial category.

c. Telecommunications service

entities. (i) Introduction. 92.

Commenters are requested to provide

information regarding how many

providers of telecommunications

services, existing and potential, will be

considered small businesses. The SBA

has defined a small business for

Radiotelephone Communications (SIC

4812) and Telephone Communications,

Except Radiotelephone (SIC 4813), to be

small entities when they have fewer

than 1,500 employees.

93. The Commission seeks comment

as to whether this definition is

appropriate in this context.

Additionally, the Commission requests

each commenter to identify whether it

is a small business under this definition.

If the commenter is a subsidiary of

another entity, this information should

be provided for both the subsidiary and

the parent corporation or entity.

94. The United States Bureau of the

Census reports that, at the end of 1992,

there were 3,497 firms engaged in

providing telephone services, for at least

one year. This number contains a

variety of different categories of carriers,

including local exchange carriers,

interexchange carriers, competitive

access providers, cellular carriers, other

mobile service carriers, operator service

providers, pay telephone providers,

personal communications services (PCS)

providers, covered specialized mobile
28468 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

14Federal Communications Commission,

Common Carrier Bureau, Industry Analysis

Division, Carrier Locator: Interstate Service

Providers, Figure 1 (Types of Interstate Service

Providers) (Nov. 1997) (TRS Data).

15U.S. Department of Commerce, Bureau of the

Census, 1992 Census of Transportation,

Communications, and Utilities: Establishment and

Firm Size, at Firm Size 1–123 (1995) (1992 Census).

radio providers, and resellers. It seems

certain that some of those 3,497

telephone service firms may not qualify

as small entities or small incumbent

local exchange carriers (LECs) because

they are not ‘‘independently owned and

operated.’’ For example, a PCS provider

that is affiliated with an interexchange

carrier (IXC) having more than 1,500

employees would not meet the

definition of a small business. The

Commission tentatively concludes that

fewer than 3,497 telephone service firms

are small entity telephone service firms

or small incumbent local exchange

carriers.

95. According to the

Telecommunications Industry Revenue:

Telecommunications Relay Service

Fund Worksheet Data (TRS Worksheet),

there are 3,459 interstate carriers.14

These carriers include, inter alia, local

exchange carriers, wireline carriers and

service providers, interexchange

carriers, competitive access providers,

operator service providers, pay

telephone providers, providers of

telephone toll service, providers of

telephone exchange service, and

resellers.

(ii) Wireline Carriers and Service

Providers. 96. The SBA has developed

a definition of small entities for

telephone communications companies

except radiotelephone (wireless)

companies. The Census Bureau reports

that, there were 2,321 such telephone

companies in operation for at least one

year at the end of 1992.15 According to

the SBA definition, as noted, a small

business telephone company other than

a radiotelephone company is one

employing fewer than 1,500 persons. All

but 26 of the 2,321 non-radiotelephone

companies listed by the Census Bureau

were reported to have fewer than 1,000

employees.

97. Thus, even if all 26 of those

companies had more than 1,500

employees, there would still be 2,295

non-radiotelephone companies that

might qualify as small entities or small

incumbent LECs. The Commission does

not have information regarding the

number of carriers that are not

independently owned and operated, and

thus is unable at this time to estimate

with greater precision the number of

wireline carriers and service providers

that would qualify as small business

concerns under the SBA definition.

Consequently, the Commission

estimates that there are fewer than 2,295

small telephone communications

companies other than radiotelephone

companies.

(A) Incumbent Local Exchange

Carriers. 98. Neither the Commission

nor SBA has developed a definition for

small providers of local exchange

services. The closest applicable

definition under the SBA rules is for

telephone communications companies

other than radiotelephone (wireless)

companies. The most reliable source of

information regarding the number of

LECs nationwide of which the

Commission is aware appears to be the

data that the Commission collects

annually in connection with the TRS

Worksheet. According to the

Commission’s most recent data, 1,376

companies reported that they were

engaged in the provision of local

exchange services. Although it seems

certain that some of these carriers are

not independently owned and operated,

or have more than 1,500 employees, the

Commission is unable at this time to

estimate with greater precision the

number of LECs that would qualify as

small business concerns under the SBA

definition. Consequently, the

Commission estimates that there are

fewer than 1,376 small incumbent LECs.

99. Because the small incumbent

LECs subject to these rules are either

dominant in their field of operations or

are not independently owned and

operated, they are excluded (consistent

with the Commission’s prior practice)

from the definition of ‘‘small entity’’

and ‘‘small business concerns.’’

Accordingly, the Commission’s use of

the terms ‘‘small entities’’ and ‘‘small

businesses’’ does not encompass small

incumbent LECs. Out of an abundance

of caution, however, for regulatory

flexibility analysis purposes, the

Commission will consider small

incumbent LECs within this analysis

and use the term ‘‘small incumbent

LECs’’ to refer to any incumbent LEC

that arguably might be defined by SBA

as a ‘‘small business concern.’’

(B) Interexchange Carriers. 100.

Neither the Commission nor SBA has

developed a definition of small entities

specifically applicable to providers of

interexchange services. The closest

applicable definition under the SBA

rules is for telephone communications

companies except radiotelephone

(wireless) companies. The most reliable

source of information regarding the

number of IXCs nationwide is the data

that the Commission collects annually

in connection with the TRS Worksheet.

According to the Commission’s most

recent data, 149 companies reported

that they were engaged in the provision

of interexchange services. The

Commission does not have information

on the number of carriers that are not

independently owned and operated, nor

have more than 1,500 employees, and

thus the Commission is unable at this

time to estimate with greater precision

the number of IXCs that would qualify

as small business concerns under the

SBA definition. Consequently, the

Commission estimates that there are

fewer than 149 small entity IXCs.

(C) Competitive Access Providers and

Competitive Local Exchange Carriers.

101. Neither the Commission nor SBA

has developed a definition of small

entities specifically applicable to

providers of competitive access services

(CAPs) and competitive local exchange

carriers (CLECs). The closest applicable

definition under the SBA rules is for

telephone communications companies

except radiotelephone (wireless)

companies. The most reliable source of

information regarding the number of

CAPs and CLECs nationwide is the data

that the Commission collects annually

in connection with the TRS Worksheet.

According to the Commission’s most

recent data, 119 companies reported

that they were engaged in the provision

of competitive access services. The

Commission does not have information

on the number of carriers that are not

independently owned and operated, nor

have more than 1,500 employees, and

thus is unable at this time to estimate

with greater precision the number of

CAPs that would qualify as small

business concerns under the SBA

definition. Consequently, the

Commission estimates that there are

fewer than 119 small CAPs.

(D) Operator Service Providers. 102.

Neither the Commission nor SBA has

developed a definition of small entities

specifically applicable to providers of

operator services. The closest applicable

definition under the SBA rules is for

telephone communications companies

except radiotelephone (wireless)

companies. The most reliable source of

information regarding the number of

operator service providers nationwide is

the data that the Commission collects

annually in connection with the TRS

Worksheet. According to the

Commission’s most recent data, 27

companies reported that they were

engaged in the provision of operator

services. The Commission does not have

information on the number of carriers

that are not independently owned and

operated, nor have more than 1,500

employees, and thus is unable at this

time to estimate with greater precision

the number of operator service
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28469

providers that would qualify as small

business concerns under the SBA

definition. Consequently, the

Commission estimates that there are

fewer than 27 small operator service

providers.

(E) Pay Telephone Providers. 103.

Neither the Commission nor SBA has

developed a definition of small entities

specifically applicable to pay telephone

providers. The closest applicable

definition under SBA rules is for

telephone communications companies

except radiotelephone (wireless)

companies. The most reliable source of

information regarding the number of

pay telephone providers nationwide is

the data that the Commission collects

annually in connection with the TRS

Worksheet. According to the

Commission’s most recent data, 533

companies reported that they were

engaged in the provision of pay

telephone services. The Commission

does not have information on the

number of carriers that are not

independently owned and operated, nor

have more than 1,500 employees, and

thus is unable at this time to estimate

with greater precision the number of

pay telephone providers that would

qualify as small business concerns

under SBA definition. Consequently,

the Commission estimates that there are

fewer than 533 small pay telephone

providers.

(F) Resellers (Including Debit Card

Providers). 104. Neither the Commission

nor SBA has developed a definition of

small entities specifically applicable to

resellers. The closest applicable SBA

definition for a reseller is a telephone

communications company except

radiotelephone (wireless) companies.

However, the most reliable source of

information regarding the number of

resellers nationwide is the data that the

Commission collects annually in

connection with the TRS Worksheet.

According to the Commission’s most

recent data, 345 companies reported

that they were engaged in the resale of

telephone service. The Commission

does not have information on the

number of carriers that are not

independently owned and operated, nor

have more than 1,500 employees, and

thus the Commission is unable at this

time to estimate with greater precision

the number of resellers that would

qualify as small entities or small

incumbent LEC concerns under the SBA

definition. Consequently, the

Commission estimates that there are

fewer than 345 small entity resellers.

(iii) International Service Providers.

105. The Commission has not developed

a definition of small entities applicable

to licensees in the international

services. Therefore, the applicable

definition of small entity is the

definition under the SBA rules

applicable to Communications Services,

Not Elsewhere Classified (NEC) (13 CFR

120.21). This definition provides that a

small entity is expressed as one with

$11.0 million or less in annual receipts.

According to the Census Bureau, there

were a total of 848 communications

services, NEC, in operation in 1992, and

a total of 775 had annual receipts of less

than $9.999 million. The Census report

does not provide more precise data.

Many of these services do not have

specified uses and it is uncertain, at this

point in time, if they will ultimately

provide telecommunications services.

(A) International Public Fixed Radio

(Public and Control Stations). 106.

There are 15 licensees in this service.

The Commission does not request or

collect annual revenue information, and

thus is unable to estimate the number of

international public fixed radio

licensees that would constitute a small

business under the SBA definition.

(B) Fixed Satellite Transmit/Receive

Earth Stations. 107. There are

approximately 4,200 earth station

authorizations, a portion of which are

Fixed Satellite Transmit/Receive Earth

Stations. The Commission does not

request or collect annual revenue

information, and thus is unable to

estimate the number of the earth

stations that would constitute a small

business under the SBA definition.

(C) Fixed Satellite Small Transmit/

Receive Earth Stations. 108. There are

4,200 earth station authorizations, a

portion of which are Fixed Satellite

Small Transmit/Receive Earth Stations.

The Commission does not request or

collect annual revenue information, and

thus is unable to estimate the number of

fixed satellite transmit/receive earth

stations may constitute a small business

under the SBA definition.

(D) Fixed Satellite Very Small

Aperture Terminal (VSAT) Systems.

109. These stations operate on a primary

basis, and frequency coordination with

terrestrial microwave systems is not

required. Thus, a single ‘‘blanket’’

application may be filed for a specified

number of small antennas and one or

more hub stations. The Commission has

processed 377 applications. The

Commission does not request or collect

annual revenue information, and thus is

unable to estimate of the number of

VSAT systems that would constitute a

small business under the SBA

definition.

(E) Mobile Satellite Earth Stations.

110. There are two licensees. The

Commission does not request or collect

annual revenue information, and thus is

unable to estimate whether either of

these licensees would constitute a small

business under the SBA definition.

(F) Space Stations (Geostationary).

111. Commission records reveal that

there are 37 space station licensees. The

Commission does not request or collect

annual revenue information, and thus is

unable to estimate of the number of

geostationary space stations that would

constitute a small business under the

SBA definition.

(G) Space Stations (NonGeostationary). 112. There are six NonGeostationary Space Station licensees,

of which only one system is operational.

The Commission does not request or

collect annual revenue information, and

thus is unable to estimate of the number

of non-geostationary space stations that

would constitute a small business under

the SBA definition.

(iv) Wireless Telecommunications

Service Providers. 113. The Commission

has not yet developed a definition of

small entities with respect to the

provision of CMRS services. Therefore,

for entities not falling within other

established SBA categories (i.e.,

Radiotelephone Communications or

Telephone Communications, Except

Radiotelephone), the applicable

definition of small entity is the

definition under the SBA rules

applicable to the ‘‘Communications

Services, Not Elsewhere Classified’’

category. This definition provides that a

small entity is one with $11.0 million or

less in annual receipts (13 CFR 120.21).

The Census Bureau estimates indicate

that of the 848 firms in the

‘‘Communications Services, Not

Elsewhere Classified’’ category, 775 are

small businesses. It is not possible to

predict which of these would be small

entities (in absolute terms or by

percentage) or to classify the number of

small entities by particular forms of

service.

(A) Cellular Radio Telephone Service.

114. The Commission has not developed

a definition of small entities applicable

to cellular licensees. Therefore, the

applicable definition of small entity is

the definition under the SBA rules

applicable to radiotelephone companies.

This definition provides that a small

entity is a radiotelephone company

employing no more than 1,500 persons.

The size data provided by SBA does not

enable the Commission to make a

meaningful estimate of the number of

cellular providers which are small

entities because it combines all

radiotelephone companies with 500 or

more employees.

115. The Commission therefore has

used the 1992 Census of Transportation,

Communications, and Utilities,
28470 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

conducted by the Bureau of the Census,

which is the most recent information

available. That census shows that only

12 radiotelephone firms out of a total of

1,178 such firms which operated during

1992 had 1,000 or more employees.

Therefore, even if all 12 of these large

firms were cellular telephone

companies, all of the remainder were

small businesses under the SBA

definition. The Commission assumes

that, for purposes of its evaluations and

conclusions in this IRFA, all of the

current cellular licensees are small

entities, as that term is defined by SBA.

In addition, although there are 1,758

cellular licenses, the Commission does

not know the number of cellular

licensees, since a cellular licensee may

own several licenses.

(B) Broadband Personal

Communications Service. 116. The

broadband PCS spectrum is divided into

six frequency blocks designated A

through F. Pursuant to Section 24.720(b)

of the Commission’s Rules, the

Commission has defined ‘‘small entity’’

for Block C and Block F licensees as

firms that had average gross revenues of

less than $40 million in the three

previous calendar years. This regulation

defining ‘‘small entity’’ in the context of

broadband PCS auctions has been

approved by SBA.

117. The Commission has auctioned

broadband PCS licenses in all of its

spectrum blocks A through F. The

Commission does not have sufficient

data to determine how many small

businesses under the Commission’s

definition bid successfully for licenses

in Blocks A and B. As of now, there are

89 non-defaulting winning bidders that

qualify as small entities in the Block C

auction and 93 non-defaulting winning

bidders that qualify as small entities in

the D, E, and F Block auctions. Based on

this information, the Commission

concludes that the number of broadband

PCS licensees that would be affected by

the proposals in the NPRM includes the

182 non-defaulting winning bidders that

qualify as small entities in the C, D, E,

and F Block broadband PCS auctions.

Note that the number of successful

bidders is not necessarily equivalent to

the number of licensees, yet it is the best

indicator that is currently available.

(C) Specialized Mobile Radio. 118.

Pursuant to Section 90.814(b)(1) of the

Commission’s Rules, the Commission

has defined ‘‘small entity’’ for

geographic area 800 MHz and 900 MHz

Specialized Mobile Radio (SMR)

licenses as firms that had average gross

revenues of less than $15 million in the

three previous calendar years. This

regulation defining ‘‘small entity’’ in the

context of 800 MHz and 900 MHz SMR

has been approved by SBA.

119. The proposals set forth in the

NPRM may apply to SMR providers in

the 800 MHz and 900 MHz bands. The

Commission does not know how many

firms provide 800 MHz or 900 MHz

geographic area SMR service, or how

many of these providers have annual

revenues of less than $15 million.

120. The Commission recently held

auctions for geographic area licenses in

the 900 MHz SMR band. There were 60

winning bidders who qualified as small

entities under the Commission’s

definition in the 900 MHz auction.

Based on this information, the

Commission concludes that the number

of geographic area SMR licensees

affected by the proposals set forth in the

NPRM includes these 60 small entities.

121. Based on the auctions held for

800 MHz geographic area SMR licenses,

there were 10 small entities currently

holding 38 of the 524 licenses for the

upper 200 channels of this service.

However, the Commission has not yet

determined how many licenses will be

awarded for the lower 230 channels in

the 800 MHz geographic area SMR

auction. There is no basis to estimate,

moreover, how many small entities

within the SBA definition will win

these licenses. Given the facts that

nearly all radiotelephone companies

have fewer than 1,000 employees and

that no reliable estimate of the number

of prospective 800 MHz SMR licensees

can be made, the Commission assumes,

for purposes of its evaluations and

conclusions in this IRFA, that all of the

licenses will be awarded to small

entities, as that term is defined by SBA.

(D) 220 MHz Service.

122. Licensees for 220 MHz services

that meet the definition of CMRS may

be providers of telecommunications

service. The Commission has classified

providers of 220 MHz service into Phase

I and Phase II licensees. There are

approximately 3,800 non-nationwide

Phase I licensees and 4 nationwide

licensees currently authorized to

operate in the 220 MHz band. The

Commission has estimated that there are

approximately 900 potential Phase II

licensees. These licenses were

scheduled to be auctioned in May 1998,

but the auction has been delayed

pending resolution of petitions for

reconsideration.

123. At this time, however, there is no

basis upon which to estimate

definitively the number of 220 MHz

service licensees, either current or

potential, that are small businesses. To

estimate the number of such entities

that are small businesses, the

Commission applies the definition of a

small entity under SBA rules applicable

to radiotelephone companies. This

definition provides that a small entity is

a radiotelephone company employing

no more than 1,500 persons. However,

the size data provided by the SBA do

not allow the Commission to make a

meaningful estimate of the number of

220 MHz providers that are small

entities because they combine all

radiotelephone companies with 500 or

more employees.

124. The Commission therefore uses

the 1992 Census of Transportation,

Communications, and Utilities,

conducted by the Bureau of the Census,

which is the most recent information

available. Data from the Census

Bureau’s 1992 study indicate that only

12 out of a total 1,178 radiotelephone

firms which operated during 1992 had

1,000 or more employees—and these

may or may not be small entities,

depending on whether they employed

more or less than 1,500 employees. But

1,166 radiotelephone firms had fewer

than 1,000 employees and, therefore,

under the SBA definition, are small

entities. However, the Commission does

not know how many of these 1,166

firms are likely to be involved in the

provision of 220 MHz service.

(E) Mobile Satellite Services (MSS).

125. Mobile Satellite Services or Mobile

Satellite Earth Stations are intended to

be used while in motion or during halts

at unspecified points. These stations

operate as part of a network that

includes a fixed hub or stations. The

stations that are capable of transmitting

while a platform is moving are included

under Section 20.7(c) of the

Commission’s Rules as mobile services

within the meaning of sections 3(27)

and 332 of the Act. Those MSS services

are treated as CMRS if they connect to

the Public Switched Network (PSN) and

also satisfy other criteria of section 332.

Facilities provided through a

transportable platform that cannot move

when the communications service is

offered are excluded from 47 CFR

20.7(c).

126. The MSS networks may provide

a variety of land, maritime and

aeronautical voice and data services.

There are eight mobile satellite

licensees. At this time, the Commission

is unable to make a precise estimate of

the number of small businesses that are

mobile satellite earth station licensees

and could be considered CMRS

providers of telecommunications

service.

(F) Paging. 127. Private and Common

Carrier Paging. The Commission has

proposed a two-tier definition of small

businesses in the context of auctioning

licenses in the Common Carrier Paging
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28471

16U.S. Small Business Administration 1992

Economic Census Employment Report, Bureau of

the Census, U.S. Department of Commerce, SIC

4812 (radiotelephone communications industry

data adopted by the SBA Office of Advocacy).

and exclusive Private Carrier Paging

services. Under the proposal, a small

business will be defined as either (1) an

entity that, together with its affiliates

and controlling principals, has average

gross revenues for the three preceding

years of not more than $3 million; or (2)

an entity that, together with affiliates

and controlling principals, has average

gross revenues for the three preceding

calendar years of not more than $15

million. Because the SBA has not yet

approved this definition for paging

services, the Commission will utilize

the SBA’s definition applicable to

radiotelephone companies, i.e., an

entity employing no more than 1,500

persons. At present, there are

approximately 24,000 Private Paging

licenses and 74,000 Common Carrier

Paging licenses. According to the most

recent Telecommunications Industry

Revenue data, 364 carriers reported that

they were engaged in the provision of

either paging or other mobile services,

which are placed together in the data.

The Commission does not have data

specifying the number of these carriers

that are not independently owned and

operated or have more than 1,500

employees, and thus is unable at this

time to estimate with greater precision

the number of paging carriers that

would qualify as small business

concerns under the SBA’s definition.

Consequently, the Commission

estimates that there are fewer than 364

small paging carriers that may be

affected by the proposed rules, if

adopted. The Commission estimates that

the majority of private and common

carrier paging providers would qualify

as small entities under the SBA

definition.

(G) Narrowband PCS. 128. The

Commission has auctioned nationwide

and regional licenses for narrowband

PCS. The Commission does not have

sufficient information to determine

whether any of these licensees are small

businesses within the SBA-approved

definition. At present, there have been

no auctions held for the MTA and Basic

Trading Area (BTA) narrowband PCS

licenses. The Commission anticipates a

total of 561 MTA licenses and 2,958

BTA licenses will be awarded in the

auctions. Those auctions, however, have

not yet been scheduled. Given that

nearly all radiotelephone companies

have fewer than 1,500 employees and

that no reliable estimate of the number

of prospective MTA and BTA

narrowband licensees can be made, the

Commission assumes that all of the

licenses will be awarded to small

entities, as that term is defined by the

SBA.

(H) Air-Ground Radiotelephone

Service. 129. The Commission has not

adopted a definition of small business

specific to the Air-Ground

Radiotelephone Service, which is

defined in Section 22.99 of the

Commission’s rules. Accordingly, the

Commission will use the SBA definition

applicable to radiotelephone companies,

i.e., an entity employing no more than

1,500 persons. There are approximately

100 licensees in the Air-Ground

Radiotelephone Service, and the

Commission estimates that almost all of

them qualify as small under the SBA

definition.

(I) Local Multipoint Distribution

Service (LMDS). 130. LMDS licensees

may use spectrum for any number of

services. It is anticipated that the

greatest intensity of use will be for

either radio telephone or pay television

services. SBA has developed definitions

applicable to each of these services,

however, because pay television is not

a telecommunications service subject to

section 255, it is not relevant to this

IRFA.

131. The Commission has not

developed a definition of small entities

applicable to LMDS licensees, which is

a new service. In the LMDS Order (62

FR 16514, Apr. 7, 1997) the Commission

adopted criteria for defining small

businesses for determining bidding

credits in the auction, but the

Commission believes these criteria are

applicable for evaluating the burdens

imposed by section 255. The

Commission defines a small business as

an entity that, together with affiliates

and controlling principals, has average

gross revenues not exceeding $40

million for the three preceding years.

Additionally, small entities are those

which together with affiliates and

controlling principals, have average

gross revenues for the three preceding

years of more than $40 million but not

more than $75 million.

132. Upon completion of the auction

93 of the 104 bidder qualified as small

entities, smaller businesses, or very

small businesses. These 93 bidders won

664 of the 864 licenses. The

Commission estimates that all of these

93 bidders would qualify as small under

the SBA definitions, but the

Commission cannot yet determine what

percentage would be offering

telecommunications services.

(J) Rural Radiotelephone Service. 133.

The Commission has not adopted a

definition of small entity specific to the

Rural Radiotelephone Service. A

significant subset of the Rural

Radiotelephone Service is the Basic

Exchange Telephone Radio Systems

(BETRS). The Commission will use the

SBA’s definition applicable to

radiotelephone companies, i.e., an

entity employing no more than 1,500

persons. There are approximately 1,000

licensees in the Rural Radiotelephone

Service, and the Commission estimates

that almost all of them qualify as small

entities under the SBA’s definition.

(K) Wireless Communications

Services. 134. This service can be used

for fixed, mobile, radiolocation and

digital audio broadcasting satellite uses.

The Commission defined small business

for the wireless communications

services (WCS) auction as an entity with

average gross revenues of $40 million

for each of the three preceding years,

and a very small business as an entity

with average gross revenues of $15

million for each of the three preceding

years. The Commission auctioned

geographic area licenses in the WCS

service. In the auction, there were seven

winning bidders that qualified as very

small business entities, and one that

qualified as a small business entity. The

Commissin concludes that the number

of geographic area WCS licensees

affected includes these eight entities.

(L) 39 GHz Band. 135. The

Commission has not developed a

definition of small entities applicable to

39 GHz band licensees. Therefore, the

applicable definition of small entity is

the definition under the SBA rules

applicable to radiotelephone companies.

This definition provides that a small

entity is a radiotelephone company

employing no more than 1,500 persons.

Since the Regulatory Flexibility Act

amendments were not in effect until the

record in this proceeding was closed,

the Commission was unable to request

information regarding the potential

number of small businesses interested

in the 39 GHz frequency band and is

unable at this time to determine the

precise number of potential applicants

which are small businesses.

136. The size data provided by SBA

does not enable the Commission to

make a meaningful estimate of the

number of cellular providers which are

small entities because it combines all

radiotelephone companies with 500 or

more employees.16 The Commission

therefore has used the 1992 Census of

Transportation, Communications, and

Utilities, conducted by the Bureau of the

Census, which is the most recent

information available. That census

shows that only 12 radiotelephone firms

out of a total of 1,178 such firms which

operated during 1992 had 1,000 or more
28472 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules

17 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,

Notice of Inquiry, 11 FCC Rcd 19152, 19163 (para.

7) (1996) (Notice of Inquiry).

employees. Therefore, a majority of 39

GHz entities providing radiotelephone

services could be small businesses

under the SBA definition.

137. However, in the 39 GHz Band

NPRM and Order, 61 FR 02452, Jan. 26,

1996, the Commission proposed to

define a small business as an entity that,

together with affiliates and attributable

investors, has average gross revenues for

the three preceding years of less than

$40 million. The Commission has not

yet received approval by the SBA for

this definition. The Commission

assumes, for purposes of its evaluations,

that nearly all of the 39 GHz licensees

will be small entities, as that term is

defined by the SBA.

(4) Reporting, Recordkeeping, and Other

Compliance Requirements

138. As the Commission has noted,

the objective of section 255 is for

persons with disabilities to have

increased access to telecommunications.

Both equipment manufacturers and

telecommunications service providers

are obligated to provide accessibility for

persons with any one or more of

different disabilities to the extent that it

is readily achievable for them to do so.

So, in the broadest sense, compliance

consists of the on-going, disciplined,

and systematic effort to provide the

greatest level of accessibility. Much of

the NPRM deals with behaviors which

demonstrate that such effort and would

be looked upon favorably in the event

of a filed complaint.

139. The only actual recordkeeping

requirement that the Commission

proposes is for each covered entity to

provide a point of contact for referral of

consumer problems. This person would

represent the covered entity during the

‘‘fast-track problem-solving’’ phase

which would precede the filing of any

form of complaint. In the NPRM, the

Commission suggests and seeks

comment on a one-week period in

which the manufacturer or service

provider should resolve the customer’s

problem. Although the Commission

wishes to encourage speedy responses,

it recognizes that there may be

circumstances which call for an

extension of the time period. In such

instances, the Commission reserves the

discretion to grant requests. The

Commission seeks comment on whether

the one-week time period, and whether

the informal means of requesting

extensions would be disproportionately

burdensome on small businesses.

140. Despite the lack of any formal

recordkeeping requirement, in order to

respond to ‘‘fast-track’’ inquiries,

companies may chose to keep records at

their own discretion on the way the

company has chosen to implement its

own disability initiatives. This selfimposed recordkeeping will enable

them to respond in a more timely

fashion. Likewise the Commission seeks

comment on whether this implicit

burden needs to be recognized, and, if

so, whether there is a disproportionate

impact on small businesses.

141. An additional recordkeeping

requirement for which the Commission

seeks comment would be to have

equipment manufacturers acknowledge

their section 255 obligations on the

same form used for filing for equipment

authorization with the Office of

Engineering and Technology. (See 47

CFR 2.901–2.1093.) Similarly, the

Commission seeks comment on which

of the filings for telecommunications

service providers would provide a

comparable opportunity to indicate

awareness of their own section 255

obligations. Another option, beyond the

scope of section 255 and thus requiring

a separate rulemaking, might be to

design a consolidated form to be used

by service providers for reporting all

required information to the Commission

and including awareness of entities’

section 255 obligations as one small

part. Although the Commission

perceives the section 255 reporting

burden to be minimal, as in checking off

a box on a form required for other

purposes, the Commission requests

comment on how such requirements can

be modified to reduce the burden on

small entities and still meet the

objectives of this proceeding.

(5) Steps Taken To Minimize

Significant Economic Impact on Small

Entities, and Significant Alternatives

Considered

142. In the Notice of Inquiry, the

Commission sought comment on three

possible approaches for implementing

and enforcing the provisions of section

255: (1) Rely on case-by-case

determinations; (2) issue guidelines or a

policy statement; or (3) promulgate rules

setting forth procedural or performance

requirements intended to promote

accessibility.17

143. The NPRM principally proposes

procedural requirements as a practical,

common sense means to ensure that

consumers with disabilities have access

to telecommunications services and

equipment.

144. The use of case-by-case

determinations exclusively, in lieu of

any rules, was considered but

tentatively discarded in the NPRM

because it was believed that in a rapidly

changing market with unpredictable

technological breakthroughs, the slow

development of case law would not be

sufficient to guide covered entities to an

understanding of their accessibility

obligations.

145. The issuance of guidelines or a

policy statement was also considered

but tentatively discarded, because of the

Commission’s view that a greater degree

of regulatory and administrative

certainty will best serve the interests of

both consumers and businesses

(including covered entities) that must

comply with section 255. Guidelines or

a policy statement might serve the

purpose of informing case-by-case

determinations in complaint

proceedings and lending some

predictability of outcomes in these

proceedings. Moreover, the Commission

tentatively decided that, in order for

accessibility to be addressed in a proactive manner, equipment

manufacturers and service providers

should have clear expressions of the

demands section 255 places on their

operations before the beginning of the

design process. The Commission

tentatively concluded, however, that the

potential drawbacks of exclusive

reliance on case-by-case determinations

as a means of implementing section 255

would not be sufficiently diminished by

the adoption of guidelines or a policy

statement.

146. Also considered and tentatively

rejected by the Commission was the

option of promulgating specific

performance requirements. Such an

approach—under which the

Commission would attempt to establish

an array of specific parameters for

features and functions across a broad

range of telecommunications services

and equipment—was viewed as

potentially burdensome to covered

entities, as well as being fraught with

other potential problems. For example,

rapid changes in technology could make

Commission performance requirements

obsolete in rapid fashion. This would

make it necessary for the Commission to

frequently revise its performance

requirements in order to attempt to keep

pace with these technological changes.

These frequent revisions would impose

burdens on covered entities and

potentially cause confusion in the

telecommunications marketplace. In

addition, the Commission tentatively

has decided that the promulgation of

rules governing the design process,

would impose burdens on covered

entities whose resources would be better
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed Rules 28473

spent in achieving and improving

accessibility.

147. As a result of the Commission’s

tentative decision to rely primarily on

procedural rules, it has taken several

steps to minimize burdens on all

regulated entities. First, the Commission

has sought to provide incentives to

industry for early and on-going

consideration of accessibility issues. In

particular, the Commission will look

favorably upon efforts to implement the

Access Board’s guidelines such as

formalizing self-assessment, external

outreach, internal management, and

user information and support to address

accessibility issues. Second, the

Commission has attempted to unravel

the statutory terminology to give

guidance on the interpretation of key

language within the

telecommunications context. For

example, ‘‘readily achievable’’ is

explored in great depth to explicate

feasibility, expense, and practicality

elements. Third, the Commission has

intended to fashion efficient, consumerfriendly means of dealing with

problems. By instituting a pre-complaint

process in a fast-track, problem-solving

phase, the Commission is attempting to

implement the objectives of the statute

in a cooperative, as opposed to

adversarial, manner. The Commission

welcomes comments on the extent to

which the tentative approach it has

adopted in the NPRM is likely to further

the goals of section 255 without creating

an unfair economic impact on small

entities.

148. The Commission believes it has

reduced burdens wherever possible. For

burdens imposed by achieving

accessibility, the structure of the statute

inherently acknowledges varying

degrees of economic impact. The

‘‘readily achievable’’ standard is

proportional, not absolute, thereby

adjusting the burden of providing

accessible features to be commensurate

with the resources of the covered entity.

149. For burdens associated with

enforcement, the innovation of the ‘‘fasttrack’’ problem solving phase is an

outgrowth of the desire to find

immediate, practical solutions to

consumers’ problems in obtaining

accessible or compatible equipment and

services. It is anticipated that the precomplaint process will significantly

reduce the number of complaints, thus

minimizing the burden on all covered

entities of providing a legal defense.

Furthermore, the range of choices for

resolving complaints is designed to

reduce costs to the opposing parties.

Encouraging the use of streamlined

informal complaints or alternative

dispute resolution processes is

primarily to benefit individual plaintiffs

who may be persons with disabilities

with limited financial resources, but

should similarly enable covered entities

to defend at lesser cost.

150. To minimize any negative

impact, however, the Commission seeks

comment on the nature of incentives for

small entities, which will redound to

their benefit. The Commission will

continue to examine alternatives in the

future with the objectives of eliminating

unnecessary regulations and minimizing

significant economic impact on small

entities. The Commission seeks

comment on significant alternatives

interested parties believe it should

adopt.

(6) Federal Rules Which Overlap,

Duplicate, or Conflict With These Rules

151. Section 255(e) directs the Access

Board to develop equipment

accessibility guidelines ‘‘in conjunction

with’’ the Commission, and to

periodically review and update the

guidelines. The Commission views

these guidelines as a starting point for

the implementation of section 255, but

because they do not cover

telecommunications services, the

Commission must necessarily adapt

these guidelines in its comprehensive

implementation scheme. As such, it is

the Commission’s tentative view that

the proposed rules do not overlap,

duplicate, or conflict with the Access

Board Final Rule, 36 CFR Part 1193.

VI. Ordering Clauses

152. Accordingly, it is ordered,

pursuant to sections 1, 4(i), 8(d), 8(g),

201, 202, 207, 208, 251(a)(2), 255,

303(r), 307, 312, 403 and 503(b) of the

Communications Act, 47 U.S.C. 151,

154(i), 158(d), 158(g), 201, 202, 207,

208, 251(a)(2), 255, 303(r), 307, 312,

403, 503(b), that notice is hereby given

of the proposed regulatory changes

described in the NPRM, and that

comment is sought on these proposals.

153. It is further ordered that the

Commission’s Office of Public Affairs,

Reference Operations Division, shall

send a copy of this NPRM, including the

Initial Regulatory Flexibility Analysis,

to the Chief Counsel for Advocacy of the

Small Business Administration.

List of Subjects in 47 CFR Part 1

Administrative practice and

procedure, Individuals with disabilities,

Reporting and recordkeeping

requirements, Telecommunications.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–13806 Filed 5–21–98; 8:45 am]

BILLING CODE 6712–01–P