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

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980, 5 U.S.C. Section 601, et seq., (RFA) was enacted to ensure that small entities are not unnecessarily burdened by government regulations. The RFA requires agencies to review rules that may have a "significant economic impact on a substantial number of small entities."

The Notice of Proposed Rulemaking (NPRM) issued in connection with this rulemaking contained a certification that the rule, as proposed, would not have a significant impact on a substantial number of small entities and an initial regulatory flexibility analysis was not prepared. In particular, the certification noted that manufacturers of telecommunications equipment and customer premises equipment are required to comply with section 255 of the Telecommunications Act of 1996 to the extent that it is "readily achievable," which means that it is "easily accomplishable and able to be carried out without much difficulty or expense." Questions were included in the notice of proposed rulemaking to elicit information on how the size of an entity should affect what is readily achievable. The notice further provided that the Board would analyze comments received to determine if a final regulatory flexibility analysis would be prepared. Though the Board did not receive comments objecting to the certification, upon review of comments received in response to the proposed rule and the questions contained in the NPRM, the Board has determined that the preparation of a Final Regulatory Flexibility Analysis (FRFA) is appropriate. Accordingly, pursuant to the RFA, the Board's FRFA is as follows:

I. Need For and Final Objectives of the Guidelines.

The Access Board is responsible for developing accessibility guidelines in conjunction with the Federal Communications Commission (FCC) under section 255(e) of the Telecommunications Act of 1996 for telecommunications equipment and customer premises equipment. Telecommunications equipment is equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades). Customer premises equipment is equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications. This includes specialized customer premises equipment as a subset. The guidelines address the access needs of individuals with disabilities affecting hearing, vision, movement, manipulation, speech, and interpretation of information while balancing the resources of manufacturers of telecommunications equipment to provide accessibility features.

The guidelines do not require retrofitting of existing equipment or retooling. These guidelines are applicable only to the extent that it is readily achievable to do so. Manufacturers may consider costs and available resources when determining whether and the extent to which compliance is required.

Implementation of Section 255 of the Telecommunications Act will bring the benefits of telecommunications to potentially 48.9 million Americans with disabilities. It is anticipated that increased access to telecommunications will positively impact employment, education and the quality of life for individuals with disabilities.

II. Summary of Significant Issues Raised By the Public Comments in Response to the Initial Regulatory Flexibility Certification.

The Board received a number of comments regarding the application of the term "readily achievable." The majority of those comments addressed the application of factors to be considered in determining whether compliance with the act was "readily achievable." In particular, questions were raised regarding the resources of a parent company, comparable products, fundamental alteration of a product, monetary resources, and technological expertise. The comments received by the Board in relation to the application of the term "readily achievable" are discussed in further detail in the Supplementary Information section above. (See 1193.3 Definitions.)

Section 255 of the Telecommunications Act defines "readily achievable" as having the same meaning as in the ADA. In the guidelines, "readily achievable" is further defined in Section 1193.3 (Definitions) as "easily accomplishable and able to be carried out without much difficulty or expense." The Board expects that the FCC will ultimately set forth factors that it will use to judge compliance under the readily achievable provisions of the Telecommunications Act. In the interim, the Board has provided a list of factors derived from the ADA as advisory guidance to assist manufacturers in making readily achievable assessments. Those factors include (a) the nature and cost of the action needed to provide accessibility or compatibility; (b) the overall resources of the manufacturer, including financial resources, technical expertise, component supply sources, equipment, or personnel; (c) the overall financial resources of any parent corporation or entity, to the extent such resources are available to the manufacturer; and (d) whether the accessibility solution results in a fundamental alteration of the product. This latter factor, derived by extension from the "undue burden" criteria of the ADA, takes into consideration the effect adding an accessibility feature might have on a given product.

Inherent in the concept of "readily achievable" is a recognition of the differences in the size and resources of manufacturers and readily achievable assessments will necessarily require a case by case determination of the impact of the regulations on small businesses.

III. Description and Estimate of the Number of Small Businesses to Which These Guidelines Will Apply

Covered Entities

Manufacturers of telecommunications equipment and customer premises equipment are required by §255 of the Telecommunications Act of 1966 to "ensure that the equipment is designed, developed and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable." Section 1193.3 of the guidelines defines a manufacturer covered by §255 as "a manufacturer of telecommunications equipment or customer premises equipment that sells to the public or to vendors that sell to the public; a final assembler." The definitions of customer premises equipment and telecommunications equipment help to further define which manufacturers are covered by §255:

The term "customer premises equipment" means equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications. (See §1193.3 Definitions)

The term "telecommunications equipment" means equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades). (See §1193.3 Definitions)

The Access Board guidelines cover those manufacturers of equipment that function as customer premises equipment and telecommunications equipment. Examples of customer premises equipment may include but are not limited to: wireline and wireless telephones, computers when employed on the premises of a person to originate, route or terminate telecommunications ( i.e., Internet telephony or computer telephone calls with TTY software), or direct dial TTYs which "originate, route or terminate telecommunications". The definition of telecommunications equipment includes switches used to direct telecommunications network services.

This rule pertains only to functions directly related to telecommunications. For example, only a computer with a modem can function as telecommunications equipment or customer premises equipment and only the modem functions are associated with telecommunications. Therefore, the requirements of this rule apply only to the modem functions (hardware and software operation), and incidental functions required for initialization (turning the computer on and launching the telecommunications program), necessary to engage in telecommunications. All other functions of the computer not related to telecommunications are not covered, such as word processing, file searching, operating system commands, and directory manipulation.

Small Businesses

The term "small business' is defined by the RFA as having the same meaning as the term "small business concern" under section 632 of the Small Business Act, 15 U.S.C. Sec. 632. A "small business concern" under Section 632 is defined as "one which is independently owned and operated and which is not dominant in its field of operation." Further, Section 632 (a)(2)(A) provides that the Administrator of the Small Business Administration may provide additional criteria by which a concern "may be determined to be a small business concern."

There are three industry categories established by the Small Business Administration which are applicable to these guidelines:

(1) Establishments primarily engaged in manufacturing wire telephone and telegraph equipment.¹ Included are establishments manufacturing modems and other telephone and telegraph communications interface equipment. Firms primarily engaged in the manufacturing of wire telephone and telegraph equipment are considered to be small businesses if they employ 1,000 or fewer employees. (See 13 CFR 121.201.) Census data indicates that there are 471 such establishments, of which 92% or 432 are small business concerns.²

(2) Establishments primarily engaged in manufacturing electronic computers.³ As determined by the Small Business Administration, a manufacturer of electronic computers is considered to be a small business entity for purposes of the RFA if it has 1,000 or fewer employees. (See 13 CFR 121.201.) According to the U.S. Bureau of the Census data, there are approximately 632 such firms, of which approximately 594 or 94% percent qualify as small businesses.⁴ However, not all of the entities which are engaged in manufacturing electronic computers identified in the Census data are covered entities under the Telecommunications Act. For example, a computer which does not have a modem would not be a product which is subject to the requirements of the Telecommunications Act and therefore, the manufacturing of that computer would not be a function covered by this rule.

(3) Establishments primarily engaged in manufacturing radio and television broadcasting and communications equipment.⁵ These establishments are considered to be small business concerns if they employ 750 or fewer employees. (See 13 CFR 121.201.) Census data indicates that there are 826 establishments engaged in the manufacturing of radio and television broadcasting and communications equipment, of which ninety-one percent or 755 of those firms are considered small business concerns.⁶ Not all of these businesses would be subject to the requirements of these guidelines. The Telecommunications Act addresses the transmittal of information between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received. (See Section 1193.3 Definitions). To the extent that the radio, broadcasting or computer equipment does not meet the definition of "telecommunications", the manufacturing of that equipment is not a covered function subject to the Telecommunications Act or these guidelines.

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

²U.S. Small Business Administration, Industry and Employment Size of Enterprise for 1994, Table 7, SIC 3561 (U.S. Bureau of the Census data under contract to the SBA).

³Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual (1987) (SIC 3571).

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).

⁵Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual (1987) (SIC 3563).

⁶U.S. Small Business Administration, Industry and Employment Size of Enterprise for 1994, Table 7, SIC 3563 (U.S. Bureau of the Census data under contract to the SBA).

IV. Description of Reporting, Recordkeeping and Other Compliance Requirements.

Manufacturers of telecommunications equipment and customer premises equipment are required by Section 255 to "ensure that the equipment is designed, developed and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable." And when it is not "readily achievable" to make products accessible to and usable by individuals with disabilities, the manufacturer shall ensure that the equipment "is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable". [47 U.S.C. 255 (b)(d)] Section 255 also places requirements on telecommunications service providers. Telecommunications service providers requirements are however under the jurisdiction of the FCC and therefore are not addressed in the Access Board guidelines.

Section 1193.23 Product design, development and evaluation

This section requires that, where readily achievable, manufacturers must 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. The details of such a process will vary from one company to the next, and 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. As the capability to evaluate the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment is already available in-house, this provision will not require additional professional skills. Under these guidelines, there are no recordkeeping requirements for this provision.

There are many products for which evaluations can be relatively cursory as long as the company is confident that it is aware of all relevant access issues. At this end of the evaluation spectrum, only one hour of professional time is projected to be required, for an estimated cost of $80. At the other end of this spectrum, if there is a highly complex, convergent, or revolutionary new product this may require as much as 37.5 hours of professional evaluation throughout the product's development cycle, for an estimated cost of $3,000.

Section 1193.33 Accessibility and usability

Section 1193.33 requires that, where readily achievable, manufacturers must (1) provide a description of the accessibility and compatibility features of the product upon request, including, as needed, in alternate formats or alternate modes at no additional charge; (2) provide end-user documentation in alternate format or alternate modes upon request at no additional charge where end-user documentation is provided; (3) ensure usable customer support and technical support in the call centers and service centers which support their products at no additional charge; and (4) include in general product information, the contact method for obtaining the information required in (1) and (2) above.

In addition, where manufacturers provide employee training, they are required to provide training appropriate to an employee's function, where readily achievable. In developing, or incorporating information into existing training programs, consideration must be given to the following factors: accessibility requirements of individuals with disabilities; means of communicating with individuals with disabilities; commonly used adaptive technology used with the manufacturer's products; designing for accessibility; and solutions for accessibility and compatibility.

The greatest cost involved with compliance with this provision is in the production of alternate formats. For persons with a visual impairment, four alternate formats exist: Braille, large print, electronic text, and audio cassette. It is estimated that, where it is readily achievable to do so, the cost of alternate formats for a 10 page user's manual will involve the following:

• Braille: If the production of Braille documents is outsourced, costs range from $.25 to $2 per page, depending on the complexity of material (technical material is more expensive than literature) and the format in which the raw text arrives (print is more expensive than computer files). A reasonable estimate for producing 100 copies of a 10 page user's manual (30 bound pages of Braille) would be $1800. The cost per brailled document is estimated at $18. If Braille is produced in- house, it can be produced by clerical staff, using a standard computer, Braille translation software, and a Braille printer. It is estimated that the cost to produce a ten page document in-house would be $10. Editing a 10 page document will require approximately 15 hours of editorial time by clerical staff.

• Large Print: One hundred copies of a 10 page document would cost approximately $2.50 each to produce. The production of large print documents can be handled with clerical assistance and will involve approximately 15 hours of editorial work for a 10 page document.

• Electronic Text: Providing the information on computer disk will require an average of 15 hours of editorial work per product by clerical staff. The estimated cost of the disk, shipping and handling, is approximately $2.25 each.

• Audio Cassette: Producing the information in an audio cassette format will require approximately 15 hours of editorial work and recording time per product by clerical staff. The estimated cost of the cassette, shipping and handling is approximately $2.90 each.

Section 1193.39 Prohibited reduction of accessibility, usability and ompatibility

Section 1193.39 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. An exception provides that discontinuation of a product is not prohibited.

The costs for this review, would be absorbed in the analysis for the replacement or upgraded product required under 1193.23 and manufacturers should not incur additional costs under this provision.

V. Description of Steps Taken to Minimize the Significant Economic Impact Consistent with the Stated Objectives and Significant Alternatives Considered and Rejected.

In June 1996, the Access Board convened the Telecommunications Access Advisory Committee (TAAC) to assist the Board in fulfilling its mandate under section 255 of the Telecommunications Act. The members of the TAAC included representatives of small and large manufacturers of telecommunications equipment, customer premises equipment, specialized customer premises equipment, peripheral devices, and software; organizations representing the access needs of individuals with disabilities; telecommunication providers and carriers; and other persons affected by the guidelines. In addition, entities and individuals who were not members of the TAAC were invited to participate in several subcommittees and task groups. Once the TAAC had prepared a working draft of its recommendations, that draft was posted on the Internet for interested businesses and individuals to comment on. Subsequent revisions to the draft were also posted on the Internet. The Board established a "listserve" on the Internet for the TAAC to conduct business between its meetings. The listserve was opened to the public to follow and many of the discussion points received from outside parties were also posted on the listserve. The result of the Committee's work was a final report containing recommendations to the Access Board for implementing section 255 of the Telecommunications Act. The Board then issued an NPRM which was based on those recommendations. In addition to a large distribution of the NPRM and the TAAC final report, the NPRM was posted on the Board's Internet page. Comments received in electronic format in response to the NPRM were also posted on the Internet for interested parties to review.

The Board received 159 comments in response to the NPRM. A further discussion of the types of comments received may be found in the Background section of this rule. The Board has addressed the majority of the comments received in General Issues and Section-by-Section Analysis above.

Efforts to minimize impact

(1) In implementing Section 255 of the Telecommunications Act, the Board has sought to minimize any disproportionate burdens imposed on small businesses. As previously discussed, inherent in the concept of "readily achievable" is a recognition of the differences in the size and resources of manufacturers. Assessments of what is readily achievable for a manufacturer to accomplish under the Telecommunications Act will necessarily require a case by case determination. In addition, where possible, the guidelines developed by the Board are written as performance standards rather than prescriptive requirements. The guidelines require an outcome, but do not prescribe in detail the process each entity much follow to achieve that outcome. As a result, small businesses will have more latitude and choice in how they comply with the requirements of the guidelines. For example, Section 1193.23 (Product design, development and evaluation) requires manufacturers to evaluate the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment and incorporate such evaluation throughout the product design, development, and fabrication, as early and consistently as possible. The Board is fully aware that different size 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.

(2) The Board has included an Appendix with a list of strategies to make telecommunications equipment accessible. This list is advisory, not mandatory, and provides potential solutions for small manufacturers that do not have the resources to research and develop solutions for accessible products.

(3) Several changes were made to the final rule to reduce the impact of the rule on all manufacturers in general, and small manufacturers in particular. Those modifications include the following:

(a) The final 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 large manufacturer has an extensive 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. (See 1193.23 Product design, development and evaluation.)

(b) Section 1193.35 (Redundancy and selectability) has been reserved in the final rule in recognition of the complexity such a requirement might add to the design process, as well as the equipment itself. While this provision was highly supported by the disability community, the Board felt it may be premature to impose the requirement in the early stages of this regulation. Initially, manufacturers will have enough difficulty finding a single readily achievable solution to many accessibility problems. In particular, small businesses with limited resources and design staff would be hard pressed to develop multiple solutions. Instead, the Board is planning to focus its first market monitoring report on this issue and then decide whether a requirement is needed.

(c) Section 1193.37 was modified in the final rule to reduce the obligation for equipment to be designed to pass through all information for access. As proposed, the provision might have required manufacturers to constantly monitor information characteristics of all types of peripheral equipment. The final rule only requires the pass through of information presented in standard industry formats.

(d) Section 1193.39 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. In response to concerns raised by manufacturers that this provision might prevent a manufacturer from discontinuing an obsolete product if it had an accessibility feature unless the same feature were incorporated in its replacement, an exception was added to allow for product discontinuation. In addition, the language as proposed was modified to reference the "net" accessibility, usability and compatibility of products.

(e) Finally, section 1193.43(e) of the final rule adopts the private sector ANSI standard for the volume level to be achieved, rather than the higher level proposed in the NPRM.

Efforts to maximize benefits

Both large and small manufacturers will be among the beneficiaries of the Telecommunications Act and these guidelines by virtue of the expanding market for accessible telecommunication products. The Electronic Industries Foundation, in its "Resource Guide for Accessible Design of Consumer Electronics", 1996, notes "Today, one factor contributing to market share is the increasing number of potential customers who experience functional limitations as a result of aging or disabling conditions.... While no product can be readily used by everyone, accessible design can impact market size and market share through consideration of the functional needs of all consumers, including those who experience functional limitations as a result of aging or disabling conditions." A National Center for Health Statistics (NCHS) survey also indicates that people with disabilities are potentially an untapped market for the telecommunications industry. As accessibility is incorporated into new products they will be easier to use by the broadest audience possible.

Significant alternatives that were rejected

Based on the comments received in response to the NPRM, the Board considered the application of the guidelines 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. However, the statutory language of the Telecommunications Act requires that all covered products must be made accessible unless it is not readily achievable to do so. As the Telecommunications Act did not provide a qualifier other than readily achievable, the guidelines developed by the Board apply to all covered products, as opposed to product lines or families. (See Section 1193.2 Scoping above for further discussion.)

VI. Report to Congress.

The Access Board will forward a copy of this Final Regulatory Flexibility Analysis along with this Final Rule in a report to Congress pursuant to Section 251 of the Small Business Regulatory Enforcement Fairness Act. (5 U.S.C. 801(a)(1)(A)). A copy of this FRFA is also published in this final rule. (5 U.S.C. 604(b)).