28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Telecommunications. (Section-by-Section Analysis)

The Department is proposing to reorganize § 36.303(d) and make several substantive changes that reflect changing terminology and technology.

The heading "Telecommunications devices for the deaf (TDD's)" currently at § 36.303(d) is replaced by the broader heading "Telecommunications."  Paragraph (d)(1) is retitled, "Telephones" and altered to address situations in which a public accommodation must provide an effective means to communicate by telephone for individuals with disabilities, including the use of automated attendant systems, which are electronic, automated systems and that are a common method for answering and directing incoming calls to places of public accommodation.  The Department has become aware that individuals with disabilities who use TTYs or telecommunications relay services--primarily those who are deaf or hard of hearing or who have speech-related impairments--have been unable to use automated attendant systems because they are not compatible with TTYs or telecommunications relay services.  Automated attendant systems often disconnect before the individual using one of these calling methods can complete the communication.  The Department, therefore, proposes a new § 36.303(d)(1)(i) that requires that individuals using telecommunications relay services or TTYs must be able to connect to and use effectively any automated attendant system used by a public accommodation.

The Department declined to address this issue in the 1991 regulations because it believed that it was more appropriate for the Federal Communications Commission (FCC) to address this in its rulemaking under title IV of the ADA.  See 56 FR 35544, 35567 (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.

As mentioned above in the discussion of § 36.303(b), the Department is replacing the term "telecommunications devices for the deaf (TDD's)" wherever it occurs throughout the proposed regulation with the term "text telephones (TTYs)."  Thus, § 36.303(d)(2) is entitled, "Text telephones (TTY)," and where "TDD" is used in this portion, it is replaced by "TTY."  Aside from these updates to terminology and adjustments to the section numbering, proposed § 36.303(d)(2) is unchanged substantively from current § 36.303(d).