28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Section 35.161 Telecommunications (Section-by-Section Analysis)

The Department proposes to retitle this section "Telecommunications" to reflect situations in which a public entity must provide an effective means to communicate by telephone for individuals with disabilities, and proposes several other changes. 

The Department proposes to redesignate current § 35.161 as § 35.161(a), and to replace the term "Telecommunication devices for the deaf (TDD's)" with "text telephones (TTYs)."  Although "TDD" is the term used in the ADA, "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  In addition, the proposed regulation updates the terminology in light of modern usage from "individuals with impaired hearing or speech" to "individuals with hearing or speech disabilities."

In § 35.161(b), the Department addresses automated attendant systems that handle telephone calls electronically.  These automated systems are a common method for answering and directing incoming calls to public entities.  The Department has become aware that individuals with disabilities who use TTYs or the telecommunications relay services--primarily those who are deaf or hard of hearing or who have speech-related disabilities--have been unable to use automated telephone trees systems, because they are not compatible with TTYs or a telecommunications relay service.  Automated attendant systems often disconnect before the individual using one of these calling methods can complete the communication. 

In addition, the Department proposes a new § 35.161(c) that would require that individuals using telecommunications relay services or TTYs be able to connect to and use effectively any automated attendant system used by a public entity.  The Department declined to address this issue in the 1991 regulation because it believed that it was more appropriate for the Federal Communications Commission (FCC) to address this in its rulemaking under title IV, 56 FR 35694, 35712 (July 26, 1991).  Because the FCC has since raised this concern with the Department and requested that the Department address it, it is now appropriate to raise this issue in the title III regulation.

The Department has proposed § 35.161(c), which requires that a public entity must respond to telephone calls from a telecommunications relay service established under title IV of the Americans with Disabilities Act in the same manner that it responds to other telephone calls.  The Department proposes adding this provision to address a series of complaints from those who use TTYs or the telecommunications relay systems that many public entities refuse to accept those calls.