36 CFR Part 1193 Telecommunications Act (Section 255) Accessibility Guidelines - Preamble

Section 1193.2 Scoping (Section-by-Section Analysis)

The NPRM stated that section 255 is intended to apply to all equipment since the Board "finds no evidence in the statute or its legislative history that Congress intended individuals with disabilities to have fewer choices in selecting products than the general public" and concluded that all products are subject to the guidelines.

Comment. The majority of comments, including the majority of those from TAAC members, supported the position that all products are subject to the guidelines. Individuals with disabilities and advocacy groups generally said they wanted the opportunity to choose among the features of various products offered to the general public, not to be forced to settle for the features a manufacturer decided to offer on the "accessible" product. "Having all the models of equipment carry accessibility features is a must for me," said one. "My needs are not necessarily the same as another hearing-impaired person's. Among the products that must have accessibility features are pagers, which must have vibrating mode or else they are useless. I want to have the choice to pick the right kind of vibrating pager based on my needs." The Massachusetts Assistive Technology Partnership supported the Board's finding that section 255 applies on a product-by- product basis. It said "[w]ithout a clear requirement that accessibility be provided at the individual product level, customers with disabilities risk being caught forever in the same unacceptable circumstance we have experienced to date: a telecommunications marketplace which segregates accessible products from mainstream products, with all the concomitant problems which "special" production entails -- lesser availability, greater cost, poorer quality and lack of full compatibility. While there will surely be instances where a manufacturer will choose to offer additional accessibility features in one or two products in a product line where it was not readily achievable to offer those features in every product in a product line, the proposed rule in no way prevents a manufacturer from making such an offering. The essential consideration is that accessibility, usability and compatibility must be properly considered at the individual product level . . ."

USTA, the principal trade association of the local exchange carrier industry, and a TAAC member, agreed that all telecommunications products and customer premises equipment should be subject to the guidelines. It stated that "[t]he issue of accessibility must relate to the whole universe of technology. To do otherwise will create a hierarchy of opportunities for customers - a hierarchy that could seriously jeopardize telecommunications service delivery." Bell Atlantic and NYNEX also supported a product-by-product approach to encourage manufacturers of telecommunications equipment and customer premises equipment to make accessible the widest array of functionally different products. Bell Atlantic and NYNEX were concerned that appropriately equipped telecommunications equipment and customer premises equipment should be available to implement or complement their services and that without needed network equipment, service providers could be unable to meet the telecommunications needs of people with disabilities in an efficient manner. Bell Atlantic and NYNEX also made the point that accessibility can often be achieved only through compatible customer premises equipment, operating with network services. They stated that "[u]nless manufacturers are obligated to make a variety of products with different functions accessible, assuming such accessibility is readily achievable, the accessibility options available to service providers and their customers could be severely limited." Bell Atlantic and NYNEX added that even without a legal mandate, adding readily achievable accessibility features to products and services is simply good business.

On the other hand, manufacturers and the Telecommunications Industry Association (TIA) uniformly said the guidelines should by applied to product "lines" or "families" and the Consumer Electronics Manufacturers Association (CEMA) said compliance should take into account the "market as a whole" with respect to accessibility. In particular, Ericsson, questioned the NPRM interpretation by saying "while there is no language in the statute which specifically provides guidance on whether all equipment or some equipment must be made accessible or compatible, there is similarly no language in the legislative history which supports the Board's conclusion". Some manufacturers read the word "equipment" in the statute as plural, which they felt supported their claim for coverage of groups of products rather than individual products.

Several manufacturers drew analogies to portions of facilities covered by the Americans with Disabilities Act (ADA), such as stadium seats, hotel rooms, and telephones in a bank as giving weight that only some telecommunications equipment and customer premises equipment needs to be accessible. The commenters said that the ADA has recognized that proper application of the readily achievable definition, which defines the scope of the obligations under the ADA, will, in some circumstances, result in people with disabilities having accessibility but fewer choices than the general public. The commenters concluded that all products should not be required to be accessible if other models of a similar product with comparable features and at comparable cost are available.

These commenters also added that with a broad range of accessibility needs to be met, it is unrealistic to expect that a manufacturer could provide this range of products within the limits of the readily achievable limitation. These commenters further said that varying and occasionally conflicting accessibility needs of persons with different disabilities virtually dictate a product family approach. The Information Technology Industries Council commented that accessibility issues raised by section 255 require the Board to consider cost impact issues of far greater scope and complexity, involving the recurring costs of designing and manufacturing complex products sold in a highly competitive marketplace characterized by rapid technological innovation. Because competitive profit margins are thin, company survival and continuing research and innovation are extremely sensitive to cost increases. Many telecommunications industry commenters expressed concern that the guidelines will have an inhibiting effect if they discourage equipment manufacturers from developing specialized products targeted to the differing, and sometimes mutually inconsistent, needs of individuals with differing disabilities.

Response. Section 255 requires manufacturers to ensure that telecommunications equipment and customer premises equipment are designed, developed and fabricated to be accessible. Manufacturers seem to argue that the statute can be read as having a second qualifier, in addition to readily achievable. That is, manufacturers argue that some telecommunications equipment and some customer premises equipment should be designed developed and fabricated to be accessible if readily achievable, unless comparable equipment is available.

Manufacturers claim the statute should be read as applying to product "lines" or "families" rather than individual products as long as accessible products with comparable, substantially comparable, or similar features are available at a comparable cost. These commenters did not provide a definition of a product line or family. It is not clear whether all cellular telephones are to be regarded as part of the same product line, so that only one needs to be accessible to a person with a disability, even if it were readily achievable to make others accessible. The comment from CEMA goes further by suggesting that, if one manufacturer makes a cellular phone accessible to blind persons, another manufacturer would not need to even consider whether it were readily achievable to do so.

Aside from the fact that such an interpretation is not supported by the plain statutory language, it does not answer the question of what is comparable. Suppose a person with a disability wants the features on product A, but product B has the accessibility features. For example, product A is a pager with a lighted display which can be seen in dim light, and product B is a pager without the lighted display but with a vibrator to alert a deaf person. It is not clear what "comparable" feature is the substitute for not having the lighted display. If the deaf person works in a low-light environment, the lighted display may be needed. Moreover, if the deaf person also has a visual impairment, a situation common among older persons, the lighted display may be part of the accessibility that person needs. Similarly, a modem manufacturer might offer V.18 compatibility only on its 9600 bps model, not its 56k bps model. Conversely, it may provide V.18 capability only on its fast modem, but some service providers do not support high speed modems. Furthermore, commenters provided no indication of how much of a price difference is to be considered as comparable. The statute provides only one reason for not making telecommunications equipment and customer premises equipment accessible, usable, or compatible and that is that it is not readily achievable. The clear meaning of the statute is, if it is readily achievable to put a vibrator in product A and product B, and V.18 capability in more than one modem, a manufacturer is required to do so.

The Board has acknowledged that it may not be readily achievable to make every product accessible or compatible. Depending on the design, technology, or several other factors, it may be determined that providing accessibility to all products in a product line is not readily achievable. The guidelines do not require accessibility or compatibility when that determination has been made, and it is up to the manufacturer to make it. However, the assessment as to whether it is or is not readily achievable cannot be bypassed simply because another product is already accessible. For this purpose, two products are considered to be different if they have different functions or features. Products which differ only cosmetically, where such differences do not affect functionality, are not considered separate products. An appendix note has been added to clarify this point.

In drawing analogies from the ADA, the correct connection is between telecommunications equipment and customer premises equipment and the facility, not individual elements within the facility. For example, all theaters in a multi-theater complex must be accessible so that persons with disabilities can choose which films to see, not only a few theaters with "comparable" movies; all stadiums must be accessible, not just one for baseball, one for football, and one for soccer. Disabled persons' seat choices are limited but not whether they can see movie A or movie B. Also, within a phone bank, the one accessible phone is simply at a lower position but it is not merely "comparable" to the other phones in the bank, it is identical.

Finally, many of the commenters contend that certain requirements are not readily achievable if applied across all products. Several mentioned the incompatibility or conflict between solutions for different disabilities, though no examples of such conflicts were provided. If such designs are truly not readily achievable, the guidelines do not require accessibility or compatibility. Thus, the guidelines would be satisfied.

Comment. CEMA wanted the Board to take into account that the cost of retooling an assembly line is prohibitively expensive if done before the production cycle lifespan of a product has come to an end. CEMA recommended that the guidelines should be modified to recognize the need for manufacturers to complete production runs prior to making design changes and asked for a "grace period" after having complied with current guidelines before having to retool their assembly lines and update to any new guidelines.

Response. No explicit "grace period" is needed since it is built into the determination of readily achievable.

Comment. The majority of comments praised the Board for adhering to the recommendations of the TAAC report. However, several comments said the NPRM had converted numerous TAAC voluntary recommendations into mandatory obligations.

Response. The Board's guidelines are rules under the meaning of the Administrative Procedures Act¹ and are appropriately written in mandatory language. Nevertheless, the guidelines maintain the TAAC recommendations insofar as they were written as "shall" or "should." Some of the TAAC recommendations which used "should" were placed in the appendix, such as the recommendation that manufacturers encourage distributors to adopt information dissemination programs similar to theirs, or to incorporate redundancy and selectability in products. Where the Board felt the provision was important enough that it belonged in the text, it was converted to a requirement. How each requirement is implemented will be determined as each manufacturer deems appropriate for its own operation, such as the requirement to consider including persons with disabilities in product trials.

Comment. One commenter recommended that the guidelines be clarified to explain that they apply solely to equipment used primarily for access to telecommunications services.

The commenter pointed out that the Senate report exempted equipment used to access "information services". The commenter indicated that the Senate's definition of telecommunications, as set forth in the report "excludes those services, such as interactive games or shopping services or other services involving interaction with stored information, that are defined as information services."

Response. Information services are not covered by these guidelines. The Act defines what is telecommunications equipment and customer premises equipment. If a product "originates, routes or terminates telecommunications" it is covered whether the product does that most of the time or only a small portion of the time. Of course, only the functions directly related to a product's operation as telecommunications equipment or customer premises equipment are covered by the guidelines. A set-top-box which converts a television so that it can send e-mail or engage in Internet telephony, for example, is customer premises equipment when performing those functions. The Senate report only excludes those services described as "information services". It does not mean any equipment which receives such services is excluded if the product is also customer premises equipment.

Comment. One comment objected to the Board's exclusion of existing products for coverage by the guidelines, noting that the word "new" does not appear in the statute. Many current products will be on the market for some time and should be required to be retrofitted to be accessible or compatible, if readily achievable.

Response. While it is true that the word "new" does not occur in the statute, the Senate report clearly says that the Board's guidelines should be "prospective in nature", intended to apply to future products. In addition, the statute applies to equipment designed, developed and fabricated which the Board interprets to mean that the Act applies to equipment for which all three events occurred after enactment of the Act. There is no requirement to retrofit existing equipment.

¹Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual (1987) (SIC 3561).