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

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.