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

Section 1193.39 Prohibited reduction of accessibility, usability and compatibility [1193.29 in the NPRM] (Section-by-Section Analysis)

This section provides that no change shall be undertaken which decreases or has the effect of decreasing the net accessibility, usability, and compatibility of telecommunications equipment or customer premises equipment.

Comment. This provision was uniformly supported by disability groups, many of whom cited examples of an accessible feature or design which was later defeated by an alteration. Manufacturers, on the other hand, uniformly objected to it. Several pointed out that it was not a part of the TAAC recommendations and that it unnecessarily restricted design and innovation. For example, it seemed to prevent a manufacturer from even discontinuing an obsolete product if it had an accessibility feature unless the same feature were incorporated in its replacement. This was unreasonable, they claimed, because a newer technology might be better and more efficient but it might not be readily achievable to incorporate the same accessibility feature. Products are discontinued from time to time because they do not sell, but this provision as proposed may have required any product with an accessibility feature to be continued in perpetuity.

Response. Providing that no change shall be undertaken which decreases or has the effect of decreasing accessibility is a common principle in disability access codes and standards and was borrowed from both the ADA Accessibility Guidelines (ADAAG) and the Uniform Federal Accessibility Standards (UFAS). Both of these prohibit alterations which reduce or have the effect of reducing accessibility below the requirements for new construction. Those provisions were intended to apply to alterations to buildings and facilities which have a relatively static base. However, where technology is constantly changing, the principle in this rule, which is analogous to the alterations provisions of ADAAG and UFAS, may need adjusting.

TIA suggested adding language that would refer to the "net" accessibility, usability and compatibility of products. As previously discussed, the statute does not require that a new product be both accessible and compatible, and establishes accessibility as the first priority. Since an alteration never establishes a requirement which is greater than for new construction, the same concept holds true for section 1193.39. For example, it might not be readily achievable to provide accessibility in the first iteration of a particular product, but compatibility is readily achievable. However, in an upgrade, technology or other factors may have changed so that accessibility is now readily achievable. Since the statute does not require a new product to be both accessible and compatible, a change which increased accessibility but decreased compatibility would not be prohibited. The provision has been modified accordingly.

The Board agrees that it would be unreasonable to require obsolete or unmarketable products to be maintained beyond their useful life. Since any new product introduced to replace another would be subject to the statutory requirement to provide accessibility or compatibility if readily achievable, a specific exception has been added to allow for product discontinuation. The Board does not believe this change will significantly affect the availability of accessible products. The Board intends to highlight this item for attention in its market monitoring report to determine if this provision needs to be modified in the future.