[Federal Register Volume 63, Number 99 (Friday, May 22, 1998)]
[Proposed Rules]
[Pages 28456-28473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13806]



[[Page 28455]]

_______________________________________________________________________

Part II





Federal Communications Commission





_______________________________________________________________________



47 CFR Part 1



Telecommunications Act of 1996, Section 255, Implementation: Access to 
Telecommunications Services and Equipment, and Customer Premises 
Equipment by Persons With Disabilities; Proposed Rule

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

[[Page 28456]]


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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.

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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 <a href="/cdn-cgi/l/email-protection#563c34393a332f1630353578313920"><span class="__cf_email__" data-cfemail="6208000d0e071b220401014c050d14">[email protected]</span></a>, and to Timothy Fain, 
OMB Desk Officer, 10236 NEOB, 725-17th Street, N.W., Washington, D.C. 
20503, or via the internet to <a href="/cdn-cgi/l/email-protection#4224232b2c1d1d360223736c272d326c252d34"><span class="__cf_email__" data-cfemail="f89e999196a7a78cb899c9d69d9788d69f978e">[email protected]</span></a>.

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 <a href="/cdn-cgi/l/email-protection#f298909d9e978bb2949191dc959d84"><span class="__cf_email__" data-cfemail="b2d8d0ddded7cbf2d4">[email protected]</span>cc.gov</a>.

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 
<a href="/cdn-cgi/l/email-protection#127f717d7c667777527471713c757d64"><span class="__cf_email__" data-cfemail="c9a4aaa6a7bdacac89afaaaae7aea6bf">[email protected]</span></a>, or Ruth Dancey at (202) 418-0305, TTY (202) 418-2970, 
or at <a href="/cdn-cgi/l/email-protection#512335303f323428113732327f363e27"><span class="__cf_email__" data-cfemail="93e1f7f2fdf0f6ead3f5f0f0bdf4fce5">[email protected]</span></a>. 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: <<a href="http://
dettifoss.fcc.gov">http://
dettifoss.fcc.gov</a>: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,

[[Page 28457]]

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) 
<SUP>1</SUP> 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.<SUP>2</SUP> 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).
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    \1\ Public Law 104-104, 110 Stat. 56 (1996).
    \2\  47 U.S.C. 255.
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    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.<SUP>3</SUP> 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.
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    \3\  Public Law 101-336, 104 Stat. 327 (1990) (codified at 42 
U.S.C. 12101-12213) (ADA).
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    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

[[Page 28458]]

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.'' <SUP>4</SUP> 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.
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    \4\ 47 U.S.C. 255, 251(a)(2).
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    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.'' <SUP>5</SUP>
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    \5\ 47 U.S.C. 255(b).
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    (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

[[Page 28459]]

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).'' <SUP>6</SUP> 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.
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    \6\ 47 U.S.C. 153(45).
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    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 post-manufacturing 
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.'' <SUP>7</SUP> 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.
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    \7\ 47 U.S.C. 153(29).
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    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: <SUP>8</SUP>
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    \8\ 42 U.S.C. 12102(a)(2).
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    <bullet> A physical or mental impairment that substantially limits 
one or more of the major life activities of an individual;
    <bullet> A record of such an impairment; or
    <bullet> 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

[[Page 28460]]

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 ``cross-manufacturer, 
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 screen-reading 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.'' <SUP>9</SUP> 
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:

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

[[Page 28461]]

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: <SUP>10</SUP>

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

    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:
    <bullet> 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.
    <bullet> 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

[[Page 28462]]

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 two-phase 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:
    <bullet> The process would be initiated by the submission of a 
complaint.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 fast-track 
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:
    <bullet> Complainant contact information: Name, mailing address, 
and preferred

[[Page 28463]]

contact method (letter, telephone number, TTY number, facsimile number, 
or electronic mail address).
    <bullet> Identification of the equipment or service complained of, 
and the name (and, if known, the address) of its manufacturer or 
provider.
    <bullet> 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:
    <bullet> 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.
    <bullet> If it appeared that the complaint did not involve matters 
subject to section 255, the matter would be closed.
    <bullet> 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.
    <bullet> 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

[[Page 28464]]

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 decision-making.
(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 Secs. 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 fast-track 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

[[Page 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:
    <bullet> 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 * * *.''
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Sections 207 and 208 of the Act provide for the award of 
damages for violations by common carriers and, arguably, others.
    <bullet> 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:
    <bullet> Establishment of a clearinghouse for current information 
regarding telecommunications disabilities issues.
    <bullet> 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.
    <bullet> Expansion of the information provided on the Internet at 
the Commission's Disabilities Issues Task Force Web site (<a href="http://
www.fcc.gov/dtf">http://
www.fcc.gov/dtf</a>).
    <bullet> 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.

[[Page 28466]]

    <bullet> 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-but-disclose'' 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.

[[Page 28467]]

    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). <SUP>11</SUP> A small organization is generally 
``any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.'' <SUP>12</SUP> Nationwide, 
as of 1992, there were approximately 275,801 small organizations. 
<SUP>13</SUP> 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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       Estimated                       
 Product class/code     description     firm count        Comments      
------------------------------------------------------------------------
36611...............  Switching and             84  Includes central    
                       switchboard                   office switching   
                       equipment.                    equipment, PBX     
                                                     equipment, cellular
                                                     mobile switching   
                                                     equipment.         
36613...............  Carrier line              89  Includes repeaters, 
                       equipment and                 multiplex          
                       modems.                       equipment, channel 
                                                     banks, subscriber  
                                                     loop and carrier   
                                                     line equipment, and
                                                     modems.            
36614...............  Other telephone          215  Includes single     
                       and telegraph                 line, ISDN, key and
                       equipment.                    public pay         
                                                     telephone sets,    
                                                     cordless handsets, 
                                                     data communications
                                                     equipment, video   
                                                     conferencing       
                                                     equipment, voice   
                                                     and call message   
                                                     processing         
                                                     equipment, call    
                                                     distributors,      
                                                     facsimile          
                                                     equipment.         
36631...............  Communications           346  Includes mobile     
                       systems and                   cellular equipment,
                       equipment.                    conventional and   
                                                     trunked system     
                                                     equipment, SONET-  
                                                     standard equipment.
36632...............  Broadcast,               172  Includes cable      
                       studio, and                   equipment possibly 
                       related                       used to provide    
                       electronic                    telephone service, 
                       equipment.                    such as subscriber 
                                                     equipment.         
35715...............  Personal                  89  Includes personal   
                       computers and                 computers with CPE 
                       workstations.                 capabilities.      
35716...............  Portable                  35  Typically with      
                       computers.                    attached display.  
35771...............  Computer                 259  Excludes common     
                       peripheral                    storage, scanning, 
                       equipment, not                and other          
                       elsewhere                     peripherals        
                       classified.                   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          648  Includes            
                       assemblies.                   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                  57  Includes remote     
                       terminals.                    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                 72  Includes funds      
                       subassemblies                 transfer devices   
                       for computer                  and point of sale  
                       peripherals                   terminals (29      
                       and input/                    firms).            
                       output                                           
                       equipment.                                       
------------------------------------------------------------------------

    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

[[Page 28468]]

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.<SUP>14</SUP> 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.
---------------------------------------------------------------------------

    \14\ Federal Communications Commission, Common Carrier Bureau, 
Industry Analysis Division, Carrier Locator: Interstate Service 
Providers, Figure 1 (Types of Interstate Service Providers) (Nov. 
1997) (TRS Data).
---------------------------------------------------------------------------

    (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.<SUP>15</SUP> 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.
---------------------------------------------------------------------------

    \15\ U.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).
---------------------------------------------------------------------------

    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

[[Page 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 (Non-Geostationary). 112. There are six Non-
Geostationary 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,

[[Page 28470]]

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

[[Page 28471]]

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.<SUP>16</SUP> 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

[[Page 28472]]

employees. Therefore, a majority of 39 GHz entities providing 
radiotelephone services could be small businesses under the SBA 
definition.
---------------------------------------------------------------------------

    \16\ U.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).
---------------------------------------------------------------------------

    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 self-imposed 
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.<SUP>17</SUP>
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 pro-
active 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

[[Page 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, consumer-friendly 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 
``fast-track'' 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 pre-complaint 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


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