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

General Issues

This section of the rule addresses general issues raised by comments filed in response to the NPRM. Individual provisions addressed in this rule are discussed in detail under the Section-by-Section Analysis below.

Rulemaking authority of the Board and effect of the guidelines

Section 255(e) of the Telecommunications Act provides that the Access Board shall develop guidelines for accessibility of telecommunications equipment and customer premises equipment in conjunction with the Federal Communications Commission. The Board is also required to review and update the guidelines periodically.

Comment. Several comments from the telecommunications industry raised questions about the relationship between the Board's guidelines and areas within the FCC's jurisdiction. The commenters noted that the FCC has exclusive jurisdiction with respect to any complaint under section 255 and that the Senate report envisioned that the guidelines would "serve as the starting point for regulatory action by the Commission." Some of the commenters suggested that, absent rulemaking by the FCC, the guidelines are not binding.

Response. The Telecommunications Act of 1996 is the result of a conference committee which combined elements of the House and Senate bills. Section 255 is based on section 262 of the Senate bill (S.652) which provided first for the Board to develop accessibility guidelines for telecommunications equipment and customer premises equipment, and then for the FCC to issue regulations consistent with the guidelines developed by the Board. This framework is similar to that established by Congress for implementing the accessibility requirements under the Architectural Barriers Act (ABA) and the Americans with Disabilities Act (ADA). The Board issues accessibility guidelines based on its expertise and experience which serve as the basis for further regulatory action by other agencies (General Services Administration, Housing and Urban Development, Department of Defense, and the U.S. Postal Service for the ABA; DOJ and the Department of Transportation for the ADA). The conference committee bill dropped the provision requiring the FCC to issue rules under section 255, which has resulted in questions raised by the comments. Both the Senate bill and conference committee bill gave the FCC exclusive jurisdiction with respect to complaints under section 255.

The FCC issued a notice of inquiry (NOI) on September 19, 1996, seeking public comment regarding its responsibilities under section 255. The FCC noted that it may select from a variety of approaches for enforcing section 255, including acting on a "complaint-by-complaint basis, without issuing any rules or other guidance, beyond the guidelines issued by the Access Board" or "adopt[ing] the Board's guidelines, either as adopted by the Board or with revisions, as Commission rules after the appropriate Commission proceedings." The FCC ultimately will decide which approach to take. However, regardless whether the FCC proceeds with case-by- case determinations or rulemaking, Congress clearly intended that the FCC's actions be consistent with the Board's guidelines.

Declaration of Conformity

Comment. A few commenters from the telecommunications industry and disability organizations urged the Board to adopt the Declaration of Conformity as recommended by the TAAC. In the NPRM, the Board stated that "since enforcement for section 255 is under the exclusive jurisdiction of the FCC, this rule does not address the Declaration of Conformity". The United States Telephone Association (USTA) believed that the Board should require a Declaration of Conformity and that it would be wrong to merely regard the Declaration of Conformity as a complaint resolution tool. USTA states that a "Declaration of Conformity assures the purchaser of the telecommunications equipment and/or customer premises equipment that the manufacturer has complied with section 255. It can also serve to educate the customer about what to do to communicate with the manufacturer, how to request alternate forms of user information, etc. Without a Declaration of Conformity, a customer may not be able to determine if the product to be purchased has been reviewed for accessibility." The United Cerebral Palsy Associations (UCPA) recommended that the final rule include a requirement for a Declaration of Conformity and that it should be on a separate piece of paper to make it more visible.

Response. The Access Board recognizes that there is a need to have an effective and efficient enforcement process for section 255, including the possible need for a Declaration of Conformity, as recommended by the TAAC. However, it is the FCC, and not the Access Board, which is responsible for enforcing section 255 through a complaint process. The Access Board has not addressed issues in this final rule that are clearly within the FCC's jurisdiction. The information not related to compliance that was recommended to be included in a Declaration of Conformity, primarily the requirement to supply a point of contact, is required by section 1193.33 of this rule.

Accessibility Engineering Specialists

Comment. The NPRM referred to the establishment of an Association of Accessibility Engineering Specialists under the National Association of Radio and Telecommunications Engineers. In its comments, USTA suggested that groups such as this should more appropriately be structured under an organization such as the American National Standards Institute (ANSI).

Response. As stated in the NPRM, the TAAC "report also recommends the creation of a technical subgroup of a professional society which could train and eventually certify ?accessibility specialists' or engineers. As a result of work by several Committee members, such a group has already been created. The National Association of Radio and Telecommunications Engineers (NARTE), a private professional association, recently formed the Association of Accessibility Engineering Specialists. This association is expected to sponsor conferences and workshops, disseminate information, and suggest course curricula for future training and certification." The Board appreciates the fact that NARTE established the Association of Accessibility Engineering Specialists and believes that this group will contribute to advances in the field of accessible telecommunications equipment and customer premises equipment and assist in maintaining a cooperative dialogue among manufacturers, product developers, engineers, academicians, individuals with disabilities, and others involved in the telecommunications equipment design and development process. Commenters who wish to have an association created under the auspices of ANSI, or any similar organization, should approach that organization. The Board encourages any efforts to move accessibility design into the mainstream of telecommunications and will work cooperatively with any established group to further those ends.

Market Monitoring Report

Comment. The NPRM discussed that the Board intends to compile a market monitoring report on a regular basis and make it available to the public. USTA commented that the Board did not offer what type of information it will specifically monitor, how often, and to what end. UCPA supported a market monitoring report and suggested that the Board specify an annual report. UCPA recommended that the report should be structured for rapid turnaround after the close of the monitoring period and that successful access solutions be highlighted.

Response. The Board intends to compile a market monitoring report after the guidelines are published and make it available to the public. At this point, the Board does not have a schedule for when the first report will begin or when it will be issued, since it must be incorporated into the Board's on-going research and technical assistance program. The report will address the state of the art of customer premises equipment and telecommunications equipment and the progress of making this equipment accessible and identify successful access solutions. Since the Board is required to review and update these guidelines periodically, information from this report will assist the Board in determining what provisions of the guidelines may need to be revised or whether new provisions need to be added. In particular, some issues will be targeted for examination, such as redundancy and selectability, the effect of hearing aid interference on bystanders, and whether persons with hearing impairments continue to report having trouble using public pay telephones. These issues are discussed further in the section-by- section analysis.

In addition, the Board intends to investigate whether the report might be compiled in cooperation with another government entity or private sector organization. For example, the National Institute on Disability and Rehabilitation Research (NIDRR) funds a variety of research projects and centers, including a research center devoted to telecommunications. Also, some private sector organizations have begun highlighting accessible products in reports and trade shows. The Board intends to explore whether it would be appropriate to produce the market monitoring report in conjunction with one of those groups or companies.