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

Subpart A — General (Section-by-Section Analysis)

Section 1193.1 Purpose (Section-by-Section Analysis)

This section describes the purpose of the guidelines which is to provide specific direction for the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment covered by the Telecommunications Act of 1996. Section 255 (b) of the Act requires that manufacturers of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable. Section 255 (d) of the Act requires that whenever it is not readily achievable to make a product accessible, a 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. The requirement for the Board to issue accessibility guidelines is contained in section 255 (e).

No substantive comments were received and no changes have been made to this section in the final rule.

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).

Section 1193.3 Definitions (Section-by-Section Analysis)

With a few exceptions discussed below, the definitions in this section are the same as the definitions used in the Telecommunications Act of 1996.

Accessible (Section-by-Section Analysis)

Subpart C contains the minimum requirements for accessibility. Therefore, the term accessible is defined as meeting the provisions of Subpart C.

Comment. A few commenters suggested making the definition more general by using a definition which did not refer to Subpart C.

Response. Using a more general definition would make the term "accessible" subjective and potentially allow the term to be used to describe products which do not comply with these guidelines. Therefore, the definition has not been changed.

Alternate Formats (Section-by-Section Analysis)

Certain product information must be made available in alternate formats for the product to be usable by individuals with disabilities. Common forms of alternate formats are Braille, large print, ASCII text, and audio cassettes. Further discussion of alternate formats is provided in section 1193.33 and in the appendix.

No substantive comments were received and no changes have been made to this definition.

Alternate Modes (Section-by-Section Analysis)

Alternate modes are different means of providing information to users of products including product documentation and information about the status or operation of controls. For example, if a manufacturer provides product instructions on a video cassette, captioning or video description would be required. Further discussion of alternate modes is provided in section 1193.33 and in the appendix.

Comment. Some commenters noted that the proposed definition did not actually define alternate modes, but simply gave a listing of examples. Also, several commenters, including the American Council of the Blind and the American Foundation for the Blind recommended that the term "audio description" be changed to "video description" because the term "video" more accurately describes the means of providing the information.

Response. A definition is provided for the term "alternate modes" in the final rule. In addition, the term "audio description" has been changed to "video description."

Compatible (Section-by-Section Analysis)

Subpart D contains the minimum requirements for compatibility with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access. Therefore, the term compatible is defined as meeting the provisions of Subpart D.

Comment. One commenter noted that the term "compatible" is too nebulous and broad and recommended substituting the word interoperable for compatible.

Response. The term "compatible" is taken directly from the statute. Therefore, the term has been retained in the final rule.

Customer Premises Equipment (Section-by-Section Analysis)

This definition is taken from the Telecommunications Act. Equipment employed on the premises of a person, which can originate, route or terminate telecommunications, is customer premises equipment. "Person" is a common legal term meaning an individual, firm, partnership, corporation, or organization.

Customer premises equipment can also include certain specialized customer premises equipment which are directly connected to the telecommunications network and which can originate, route, or terminate telecommunications. Equipment with such capabilities is covered by section 255 and is required to meet the accessibility requirements of Subpart C, if readily achievable, or to be compatible with specialized customer premises equipment and peripheral devices according to Subpart D, if readily achievable.

Comment. The proposed rule asked for comments on the definition of customer premises equipment. Some commenters stated that it was unclear whether software was included in the definition. Also, it was suggested by one commenter that the definition include "wireless systems". Some comments from industry, including Matsushita Electric Corporation of America suggested that the definition of customer premises equipment be changed "to confine the applicability of the guidelines . . . to equipment the primary use of which is telecommunications, thus exclud[ing] such products as television receivers, VCRs, set-top boxes, computers without modems, and other consumer products the primary purpose of which is other than for telecommunications." Self Help for Hard of Hearing People (SHHH) and many individuals who are hard of hearing suggested clarifying the definition to include public pay telephones as examples of customer premises equipment.

Response. If a product "originates, routes or terminates telecommunications" it is customer premises equipment and thus covered by the Act whether the product does that most of the time or only a small portion of the time. Only the functions directly related to the product's operation as customer premises equipment are covered. For example, the buttons, prompts, displays, or output and input needed to send and receive e-mail or an Internet telephone call are covered. Other functions not related to telecommunications, such as starting a program on a computer or changing channels on a combination television-Internet device would not be covered. The term "customer premises equipment" is defined in the Telecommunications Act and the definition in the NPRM was taken directly from the Act. The definition has been retained in the final rule without change.

The guidelines do not differentiate between hardware, firmware or software implementations of a product's functions or features, nor do they differentiate between functions and features built into the product and those that may be provided from a remote server over the network. The functions are covered by these guidelines whether the functions are provided by software, hardware, or firmware. As the NPRM indicated, customer premises equipment may also include wireless sets.²  Finally, public pay telephones are considered customer premises equipment.³

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).

Manufacturer (Section-by-Section Analysis)

This definition is provided as a shorthand reference for a manufacturer of telecommunications equipment and customer premises equipment.

Comment. Several commenters recommended that the definition be modified to include subcomponent manufacturers, manufacturers of component parts which can convert a piece of equipment into customer premises equipment, and software manufacturers that design software to be used in telecommunications or customer premises equipment. The National Association of the Deaf recommended that the definition of manufacturer be flexible so that it does not unduly restrict the type of entity that is covered by section 255. Another commenter recommended that the term manufacturer be defined to include those who assemble the component parts into a final product.

Response. For the purposes of these guidelines, a manufacturer is the entity which makes a product for sale to a user or to a vendor who sells to a user. This would generally be the final assembler of separate subcomponents; that is, the entity whose brand name appears on the product. Acme Computers, for example, would be responsible for ensuring accessibility to any of its computers which can originate, route or terminate telecommunications. Such a computer might include a General Products modem which is itself a manufacturer because it sells General Products modems directly to the public. Acme Computers would be responsible for ensuring that it obtained the accessible General Products modem for inclusion in its computers. Also, Acme would ensure, through contractual provisions, purchase order stipulations, or any other method it chooses, that subcomponent suppliers who were not themselves manufacturers, provided accessible subcomponents where available. Thus, Acme can share or distribute responsibility for design, development and fabrication of accessible products. The definition has been clarified in the final rule.

Peripheral Devices (Section-by-Section Analysis)

Section 255 (d) of the Act provides that when it is not readily achievable to make telecommunications equipment or customer premises equipment accessible, manufacturers 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. No definition is provided in the Act but the term peripheral devices commonly refers to audio amplifiers, ring signal lights, some TTYs, refreshable Braille translators, text-to-speech synthesizers and similar devices. These devices must be connected to a telephone or other customer premises equipment to enable an individual with a disability to originate, route, or terminate telecommunications. Peripheral devices cannot perform these functions on their own.

No substantive comments were received and no changes have been made to this definition.

Product (Section-by-Section Analysis)

This definition is provided as a shorthand reference for telecommunications equipment and customer premises equipment.

No substantive comments were received and no changes have been made to this definition.

Readily Achievable

Comment. Many comments from persons with disabilities and their organizations wanted the Board to apply stricter criteria, such as "undue burden," rather than readily achievable. The National Association of the Deaf (NAD) said it is critical that the readily achievable analysis under section 255 be performed on a case-by-case basis, rather than through a numerical or other standard formula for all telecommunications equipment. NAD also supported the NPRM proposal to consider design expertise, knowledge of specific manufacturing techniques, or the availability of certain kinds of technological solutions among a company's available resources. Further, a readily achievable determination made under section 255 should parallel a readily achievable analysis under the Americans with Disabilities Act (ADA) in that it should consider the entire operations and resources of a parent corporation and its subsidiaries in determining the manufacturer's resources.

Manufacturers, on the other hand, did not feel the resources of a parent company should be taken into account. They pointed out the unique financial configurations of telecommunications companies as being divided into separate design units, each with its own budgetary resources and fiscal responsibilities.

Response. The use of the term readily achievable rather than undue burden is a statutory requirement. The Board cannot change the term. What the guidelines can do is provide some guidance to manufacturers as to how to relate the readily achievable factors from the ADA to the telecommunications industry.

Both the statutory definition of readily achievable and the Department of Justice (DOJ) regulations include the resources of a parent company as a factor. However, such resources are considered only to the extent those resources are available to the subsidiary. If, for example, the subsidiary is responsible for product design but the parent company is responsible for overall marketing, it may be appropriate to expect the parent company to address some of the marketing goals. If, on the other hand, the resources of a parent company are not available to the subsidiary, they may not be relevant. This determination would be made on a case-by-case basis.

Comment. Manufacturers were split on the issue of factors to be considered, some saying the ADA factors should be applied without amplification and others saying the unique character of telecommunications required a tailored set of criteria. Ericsson supported the NPRM adoption of the formal definition of readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense." However, Ericsson recommended that any additional language which explains the factors to be considered in determining whether it is readily achievable for a manufacturer to make its equipment accessible or compatible, should be deleted. Ericsson commented that the FCC, pursuant to its complaint jurisdiction, is in a better position than the Access Board to determine what factors in the telecommunications context are relevant to the term readily achievable.

Response. The final rule includes an appendix note that discusses factors to be considered in making a determination whether an action is readily achievable or not. The factors are provided for guidance only and are neither presented in any particular order or given any particular weight. The Board expects that the FCC will set forth the factors which it will use to judge compliance. Once that occurs the Board will revise the appendix to these guidelines, as appropriate. However, in the absence of specific criteria issued by the FCC, the Board believes it is desirable to provide interim guidance.

Comment. Several manufacturers suggested adding readily achievable factors such as weighing the removal of one barrier against another, whether the solution would limit mass market appeal, "user-friendliness," and that one barrier should not be viewed in isolation to the availability of a comparable product that was accessible.

Several also said the removal of a barrier should not result in a fundamental alteration of the product. Motorola cited the DOJ ADA regulation as support that "accessibility or compatibility features that would fundamentally alter the nature of the telecommunications equipment at issue do not fall within the definition of readily achievable and therefore are not required." Motorola said that DOJ reached the conclusion that "fundamental alteration" is a component of "readily achievable" by drawing a comparison to the "undue burden" standard, which defines the scope of a public accommodation's duty to provide auxiliary aids and services. The undue burden and readily achievable determinations depend upon the same factors. The undue burden standard, however, requires a higher level of effort to achieve compliance than the readily achievable limitation does. Since the undue burden standard excuses actions that would fundamentally modify goods and services, Motorola concludes that the readily achievable limitation would excuse such actions as well, even though this is not specifically stated in the regulations. Compactness and portability, Motorola continues, are fundamental characteristics of wireless customer premises equipment and that these attributes are responsible for their popularity. Incorporating accessibility features could, in some cases, result in a significant increase in the size of the customer premises equipment, thus fundamentally altering the nature of the product at issue.

Response. The appendix includes factors derived from the ADA and the DOJ regulations. Several commenters suggested adding additional factors. The Board was not persuaded that the additional factors suggested, such as mass market appeal or "user-friendliness," were consistent with those from the ADA or the DOJ regulations. However, the Board does acknowledge that readily achievable is intended to be a lower standard than "undue burden" and that the latter includes the concept of fundamental alteration. Therefore, consistent with the DOJ interpretation, fundamental alteration is listed as a factor in the appendix.

Comment. Some commenters said that since what is readily achievable will change over time, disability access requirements should be gradually phased-in.

Response. Since the determination whether an action is readily achievable will automatically change over time, with new technology or new understanding, no explicit phase-in is needed. Obviously, knowing about an accessibility solution, even in detail, does not mean it is readily achievable for a specific manufacturer to implement it immediately. Even if it only requires substituting a different, compatible part, the new part must be ordered and integrated into the manufacturing process. A more extreme implementation might require re-tooling or redesign. On the other hand, a given solution might be so similar to the current design, development and fabrication process that it is readily achievable to implement it quickly. To incorporate a specific phase-in period would delay implementation of such a readily achievable solution. Each manufacturer would make its own determination as to what is now readily achievable and proceed according to its own schedule.

Comment. The NPRM asked (Question 2 (e)) whether resources other than monetary should be considered in determining whether an action is readily achievable. Motorola said that "the relative technological expertise of telecommunications manufacturers should not be a factor defining what is readily achievable." Motorola was concerned that measuring technological expertise would be too subjective and that criteria for measuring expertise may not be fairly and consistently applied. On the other hand, TIA said that resources other than monetary should be considered in determining whether an action is readily achievable. TIA suggested that the process of technological innovation is only feasible when the appropriate resources in the appropriate quantities are applied at the appropriate time.

Response. Some commenters seemed to think that the inclusion of technical expertise was to be used in place of financial resources or as a reason for requiring one company to do more than another. This was not the intent but, rather the reverse. That is, a company might have ample financial resources and, at first glance, appear to have no defense for not having included a particular accessibility feature in a given product. However, it might be that the company lacks personnel with experience in software development, for example, needed to implement the design solution. One might reason that, if the financial resources are available, the company should hire the appropriate personnel, but, if it does, it may no longer have the financial resources to implement the design solution. One would expect that the company would develop the technical expertise over time and that eventually the access solution might become readily achievable. The Board has never proposed to make any determinations of whether any activity was readily achievable, only to set forth a series of factors that a manufacturer would consider in making its own determination.

Comment. Motorola felt that it would be inappropriate for a government entity to "certify" the competence of any manufacturer or its personnel.

Response. There was never any suggestion that any government entity would "certify" any personnel or that any determination would be made by anyone but the manufacturer itself. The question was designed to raise the issue that whether something was readily achievable could be related to more than monetary resources.

Comment. Some commenters said that proprietary accessibility features will frequently have additional costs associated with licensing fees. If rights to use those technologies can be obtained, which is not at all certain, the right to use proprietary technology to provide accessibility will be expensive. In some cases, such proprietary access technologies would not be available for a reasonable price and therefore could not be required.

Response. This cost would be included as part of an assessment of what is readily achievable.

Comment. One commenter stated that a manufacturer could hesitate before introducing a potentially valuable technical innovation if doing so would cause section 255 compliance costs to immediately skyrocket.

Response. Compliance costs would not "skyrocket" since cost is explicit in determining what is readily achievable. If the cost goes over what the manufacturer considers to be readily achievable, the compliance cost drops to zero because the new product is no longer required to be accessible or compatible.

Comment. The NPRM asked (Question 2 (b)) whether large and small manufacturers would be treated differently under the readily achievable limitation and whether this would confer a market advantage on small companies (Question 2 (c)) because they would have fewer resources and, therefore, be expected to do less. Comments uniformly supported the idea that the readily achievable criteria should be applied equally. Several comments pointed out that any advantage a small manufacturer derived would be temporary. A company with few resources, they argued, might be able to claim that providing accessibility was not readily achievable and could manufacture cheaper products. However, any competitive advantage it gained would result in higher sales, increasing its resources, until it could no longer claim access was not readily achievable.

Response. The NPRM question was confusing and apparently gave the impression that the Board was considering developing different criteria for large and small companies. The Board did not intend to suggest that different criteria would be applied to different sized manufacturers.

Comment. The NPRM asked (Question 2 (d)) whether "technological feasibility" should be an explicit factor in determining whether an action is readily achievable. Most comments agreed this is an important factor and said it needed to be included. However, some comments pointed out that if an action were not technologically feasible, it would not be accomplishable at all, let alone "easily accomplishable, without much difficulty or expense." NAD said that, where a manufacturer alleges that providing accessibility for a particular telecommunications product will not be technologically feasible, the manufacturer should be required to demonstrate that it has engaged in comprehensive efforts to overcome the technological problems at hand.

Response. The Board agrees that technological feasibility is inherent in the determination of what is readily achievable and does not need to be explicitly stated. The issue of what a manufacturer must demonstrate is a matter for the FCC to decide in an enforcement proceeding.

Specialized Customer Premises Equipment (Section-by-Section Analysis)

Section 255(d) of the Telecommunications Act requires that whenever it is not readily achievable to make a product accessible, a 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. The Telecommunications Act does not define specialized customer premises equipment. As discussed above, the Act defines customer premises equipment as "equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications".

The Board noted in the NPRM that the Act and its legislative history do not make clear whether Congress intended to treat specialized customer premises equipment differently from peripheral devices. The NPRM also pointed out that certain specialized equipment, such as direct-connect TTYs, can originate, route, or terminate telecommunications without connection to other equipment. The NPRM concluded that if specialized customer premises equipment can originate, route, or terminate telecommunications, it appears that the equipment should be treated the same as customer premises equipment and asked (Question 3) if this should be the case.

Comment. The overwhelming majority of comments including those from the telecommunications industry and disability organizations responded that if specialized customer premises equipment can originate, route, or terminate telecommunications, the equipment should be treated the same as customer premises equipment. The Trace Center commented that TTYs are made primarily for individuals who are deaf and requiring that TTYs provide voice output for all of the information displayed on the screen seems counter productive. One commenter suggested that the term "limited customer premises equipment" replace the term specialized customer premises equipment because it would more accurately describe a device that serves a certain population. Ultratec, a manufacturer of TTYs, commented that the majority of the output criteria, and all of the compatibility criteria, are not applicable to TTYs. Therefore, TTYs should not be considered customer premises equipment.

Response. The statute, not the guidelines, defines customer premises equipment. If specialized customer premises equipment can originate, route, or terminate telecommunications, it is customer premises equipment according to the statutory definition. Therefore, the term "specialized customer premises equipment" is defined in the final rule as "equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications, which is commonly used by individuals with disabilities to achieve access." If specialized customer premises equipment manufacturers are not required to follow the guidelines where readily achievable, then individuals with multiple disabilities, or individuals with disabilities other than deafness who want to communicate with individuals who are deaf may find it difficult or impossible to find specialized customer premises equipment that they can use. For example, even though it may seem "counter-productive," a person who is blind may need to communicate with a TTY user directly, without going through a relay service, and would need auditory output. Whether it is readily achievable to provide auditory output is for the manufacturer to decide. The fact that individuals with multiple disabilities are not the primary market for the specialized customer premises equipment is not persuasive, since this is equally true of all mass market manufacturers.

The provisions for accessibility and compatibility are required only when the feature or function is provided. For example, the requirement to provide a visual output applies only where an auditory output is provided. Thus, if a product provides no auditory output for its operation, a corresponding visual output is not required. Therefore, a TTY should be able to meet the provisions for output and compatibility the same as any other telecommunications equipment or customer premises equipment. A particular manufacturer must make the determination of what is readily achievable on a case-by-case basis.

On balance, the Board concludes that specialized customer premises equipment should be considered a subset of customer premises equipment, and that manufacturers of specialized customer premises equipment should make their products accessible to all individuals with disabilities, including the disability represented by their target market, where readily achievable.

Comment. Ultratec pointed out that, currently, TTYs with direct connect capabilities are analog only units and that consumers cannot use the full capabilities of direct connect TTYs (i.e. auto answer capabilities), unless they install a separate analog port within their digital PBX system. This, Ultratec adds, is a compatibility issue and as a specialized customer premises equipment manufacturer cannot do anything to bring about access at this time in a digital environment.

Response. The Board understands that some manufacturers are working to solve the non- compatibility between analog and digital signals, but that a solution may not be readily achievable at this time. A note has been added to the appendix regarding strategies that can be used to improve the compatibility between TTYs and the telecommunications network in the interim until industry standards are in place.

Telecommunications (Section-by-Section Analysis)

This is the same definition from the Telecommunications Act.

No substantive comments were received regarding this definition and no changes have been made in the final rule.

Telecommunications Equipment (Section-by-Section Analysis)

This is the same definition from the Telecommunications Act.

No substantive comments were received regarding this definition and no changes have been made in the final rule.

Telecommunications Service (Section-by-Section Analysis)

This is the same definition from the Telecommunications Act.

No substantive comments were received regarding this definition and no changes have been made in the final rule.

TTY (Section-by-Section Analysis)

This definition is taken from the ADA Accessibility Guidelines, primarily for consistency with the Board's other guidelines.

No substantive comments were received regarding this definition and no changes have been made in the final rule.

Usable (Section-by-Section Analysis)

This definition is included to convey the important point that products which have been designed to be accessible are usable only if an individual has adequate information on how to operate the product. Further discussion of usability is provided in section 1193.33.

Comment. Ericsson points out that neither the Act, nor its legislative history defines "usable" as meaning access to instructions, product information and documentation relative to products. Ericsson suggests that the term "usable" be stricken from the definitions section. The Trace Center recommended some minor editorial changes to the definition as proposed.

Response. The term "usable" in the Act does not stand alone, but, rather is part of a term of art, "accessible to and usable by" persons with disabilities, which is a standard phrase in disability law and regulation. The term generally means more than "convenient and practicable for use" as Ericsson suggested in its comments. Typically, "accessible" means an element complies with a specific technical specification whereas "usable" means a person with a disability can use the element effectively. Something can be accessible but not usable: a door can be built to correct specifications, with proper maneuvering space, but space can be blocked by furniture or otherwise be made unusable. Conversely, something can be usable but not accessible: a door which does not meet maneuvering space requirements (i.e., is not accessible) can be made usable by adding a power operator.

Telecommunications equipment or customer premises equipment is made usable to a purchaser by having instructions; except for the simplest device, it would not be usable by anyone without instructions. If instructions are not provided for any user, instructions in alternate formats would not be required. Accessible features can be provided, but without instructions, the product could not be used.

Where information or documentation is provided for a product, the information or documentation must be provided in an accessible format that is usable by a person with a disability. Clearly, to be usable by persons with disabilities instructions must be in a form they can use: print information is not very helpful to a person who is blind and auditory information is useless to a person who is deaf. A slight editorial change has been made in response to the comment from the Trace Center.