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

Section 1193.23 Product design, development and evaluation (Section-by-Section Analysis)

This section requires manufacturers to evaluate the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment and incorporate such evaluation throughout product design, development, and fabrication, as early and consistently as possible. Manufacturers must develop a process to ensure that products are designed, developed and fabricated to be accessible whenever it is readily achievable. Since what is readily achievable will vary according to the stage of development (i.e., some things will be readily achievable in the design phase which are not in later phases), barriers to accessibility, usability, and compatibility must be identified throughout product design and development, from conceptualization to production. Moreover, usability can be seriously affected even after production, if information is not provided in an effective manner.

The details of such a process will vary from one company to the next, so this section does not specify the structure or specific content of a process. Instead, this section sets forth a series of factors that a manufacturer must consider in developing such a process. How, and to what extent, each of the factors is incorporated in a specific process is up to the manufacturer.

Comment. The majority of comments supported the provision as proposed but manufacturers generally objected to intrusions into their proprietary or discretionary activities. They also viewed this provision as creating paperwork burdens and criticized the Board for not using the TAAC recommendation which used the word "should" rather than mandatory language for this section.

Response. The provision, as proposed, consisted of a set of factors which the Board considers critical to the development of any plan which seeks to ensure that products will be designed, developed and fabricated to be accessible. As such, they are more than suggestions. On the other hand, the Board is fully aware that different manufacturers, or even the same manufacturer at different times, must be given the flexibility to tailor any such plan to its own particular needs. Therefore, while this section sets forth the factors which must be considered in approaching how accessibility will be provided, it does not prescribe any particular plan or content. It does not require that such a process be submitted to any entity or that it even be in writing. The requirement is outcome-oriented, and a process could range from purely conceptual to formally documented, as suits the manufacturer. With respect to the "mandatory" nature of the provision, as explained elsewhere, the Board does not construe its statutory mandate as merely providing hortatory technical assistance. However, the Board did not ignore the TAAC recommendation, it merely approached it from a different direction.

Comment. Commenters almost uniformly misconstrued the provision as requiring extensive activities and documentation, which it does not. One manufacturer interpreted the section as requiring a "checklist" which would need to be completed for each product.

Response. While there is nothing to prevent a manufacturer from using extensive activities and documentation, this approach is neither required nor suggested. A "checklist" seems to envision an after-the-fact evaluation activity which is certainly not the best way to achieve access. It also seems to assume that such evaluation is to be applied to existing products. As explained in section 1193.2, these guidelines apply to products designed, developed and fabricated after the effective date of this rule. Of course, in the beginning, before designers and developers are knowledgeable and familiar with access, some checklist procedure may be useful. Ultimately, however, the goal is for designers to be aware of access and incorporate such considerations in the conceptualization of new products. When an idea is just beginning to take shape, a designer would ask, "How would a blind person use this product? How would a deaf person use it?" The sooner a manufacturer makes its design team cognizant of design issues for achieving accessibility and proven solutions for accessibility and compatibility, the easier this process will be. But, again, how this is done is up to the manufacturer.

Comment. Manufacturers also believed the provision required extensive marketing and testing programs, well beyond what they might currently provide.

Response. The guidelines do not require market research, testing or consultation, only that they be considered and incorporated to the extent deemed appropriate for a given manufacturer. If a manufacturer has a large marketing effort, involving surveys and focus groups, it may be appropriate to include persons with disabilities in such groups. On the other hand, some small companies do not do any real marketing, per se, but may just notice that a product made by XYZ Corporation is selling well and, based on this "marketing survey" it decides it can make a cheaper one. Clearly, "involvement" of persons with disabilities is not appropriate in this case. The final provision, therefore, has been revised to make it clear that these activities are not expected to be created where none existed before.

Comment. TIA noted that the NPRM discussion assumes the impact will be low because manufacturers are only required to achieve what can be accomplished easily, without much difficulty or expense. "This appears," says TIA, "to omit consideration of the costs of making readily achievable determinations in the first place, prior to any expenditures on design, development and fabrication."

Response. As stated above, in the beginning manufacturers may spend some time evaluating products and the difficulty and expense of doing so may contribute to a finding that accessibility is not readily achievable. These costs have not been omitted, they are explicitly included in deciding whether an action is readily achievable, a determination which is to be made by the manufacturer not the Board. Moreover, as designers become more familiar with access and as technological solutions are found, the process should become more and more automatic. The Board has a positive regard for manufacturers of telecommunications equipment and customer premises equipment as enterprising innovators who desire to provide access because they view it as the right thing to do, and because it is good business, not just because there is a Federal requirement. Indeed, recent announcements by telecommunications companies suggests this is true.⁴

Comment. SBC Communications commented that the complex interrelationship between equipment and services in providing accessibility to telecommunications suggests that coordination and cooperation between manufacturers and service providers will be beneficial. SBC agreed that involving individuals with disabilities in the product development process will encourage appropriate design solutions to accessibility barriers and permit the exchange of relevant information. It believed that the same benefits would flow from interchanges with service providers.

Response. The Board agrees that it would be desirable for manufacturers to consult with service providers during the design phase. As SBC points out, the solution to a particular barrier might be better addressed by the service or might involve a combination of service and equipment designs. Accordingly, the recommendation has been added to the appendix to include service providers in any consultation process.

Comment. The American Council of the Blind (ACB) strongly supported the provision that manufacturers include individuals with disabilities in market research, product design, and testing. ACB felt that including individuals with disabilities is important but that manufacturers should consult with representatives from a cross-section of disability groups, particularly individuals whose disabilities affect hearing, vision, movement, manipulation, speech, and interpretation of information. ACB believed that it was important to remind manufacturers that they should work with a broad cross-section of disability groups and not just some.

Response. The Board agrees that a cross-section of disability groups should be included in an evaluation of the accessibility and usability of telecommunications equipment and customer premises equipment. However, since the provision is meant to be general, no change has been made in the final rule.

⁴U.S. Small Business Administration, Industry and Employment Size of Enterprise for 1994, Table 7, SIC 3571 (U.S. Bureau of the Census data under contract to the SBA).