The Access Law Takes on Meaning
Some reporters … want to know how much it will cost the economy to make sure that telecommunications is accessible to Americans with disabilities. … I say, if you want to talk about cost, think about the cost to our economy if we don’t take steps to make sure that all members of our society can access telecommunications. … Think about the costs to our productivity. Think about the wasted potential. Think about the loss to our society. … I say, think for a moment about the cost of not making telecommunications accessible. And then I tell them we can’t afford not to do this. … Accessibility has to become … second nature to the people who design these products.
—FCC Chairman William E. Kennard
CONGRESS GAVE the Access Board until August 8, 1997, or eighteen months after passage of Section 255 of the Telecommunications Act, to develop accessibility guidelines for telecommunications equipment. To assist with this task, the Board convened a thirty-five member advisory panel, representing telecommunications manufacturers and service providers, disability organizations, software developers, and assistive technology companies.1
On June 12, 1996, members of the new Telecommunications Access Advisory Committee (TAAC) arrived at the group’s first meeting with trepidation, even, some might say, with a sense of impending doom. Consumers feared that industry participants would have little interest in responding to their accessibility needs, and would be focused exclusively on protecting their bottom line profits. Companies, on the other hand, were concerned that consumers would place unreasonable demands on their product design processes that could delay the release of new and innovative products and impose huge expenditures. The preconceived notions that each side brought to the table created an acrimonious start.*
In an attempt to soften some of the resistance that each side felt, disability advocates devoted considerable time at TAAC’s earliest meetings educating industry representatives about their decades-long struggles for telecommunications access, the consistent failure of the market to respond to disability needs, the string of laws that had provided a regulatory response, and the ways that universal design had made products more useful not only for people with disabilities, but for the general public. Industry participants similarly offered instruction on their product design processes and the importance of not stifling innovation with the new access requirements. Companies also revealed their fears of being put at a competitive disadvantage and having to market products that would be unappealing to mainstream consumers.
Over time, however, the divergent views of each of the stakeholders found some common ground. In order for people with disabilities to keep up with the extraordinary pace of technological developments, most TAAC members agreed that accessibility needed to be considered at the beginning and throughout the processes that each company used to design its products. At the same time, both consumers and industry recognized that accessibility safeguards needed to be sufficiently flexible to respond to the evolving nature of new technologies. To achieve these goals, TAAC focused more on the development of general guidelines that could ensure consideration of disability access needs throughout a product’s development, rather than the specific design features needed for each telecommunications product to be accessible. For example, companies that conducted research, testing and marketing for their products would be expected to include people with disabilities in these operations. Manufacturers would also have to provide disability access training for employees, including engineers, human resources staff and technical support personnel, who might be involved in the production or distribution of products to the public. In order for a product to achieve its accessibility objectives, companies would also need to have ongoing consultation with consumers with disabilities.† One of the biggest mistakes made by companies attempting to develop products for people with disabilities in the past had been to presume to know how best to meet those customers’ needs. For example, after the ADA was enacted, movie theaters across America rushed to install assistive listening systems without first seeking the input of people who were hard of hearing. Only later did the theaters learn that the technologies they had unilaterally chosen were ineffective for much of their clientele.
TAAC also recommended guidelines to ensure accessible input, output, display, and other control functions on telecommunications products. For example, products requiring users to send and receive information by voice would need to be operable through a mode that did not require the user to speak or hear, for example, via text or video.* Similarly, products conveying information through beeps, tones, or other types of auditory cues would have to provide the same information in a visual, and where appropriate, tactile format.† Aural information would also have to be available with amplification, and be compatible with hearing assistive technologies, including hearing aids, cochlear implants, and assistive listening devices. Finally, in order to meet Section 255’s requirement for products to be usable (as well as accessible) by people with disabilities, the advisory group agreed that informational materials, including customer bills, user guides, and websites would have to be available in alternative formats, and that company service centers that handled orders, billing, technical support, and repairs would have to be fully functional for people with disabilities.
Though fairly successful in achieving resolution of the above matters, TAAC was less able to reach consensus on other significant issues concerning the implementation of Section 255. First, consumers and industry vehemently disagreed on whether manufacturers should have an obligation to evaluate each and every product for accessibility (a “product by product” approach) or whether they should be permitted to evaluate where and how to incorporate accessibility across an entire line of products (a “product line” approach). The latter, for example, would require a manufacturer to provide access to only certain cell phones within a full “product line” of cell phones, each of which might have different functions and features.
Manufacturers insisted that it would be futile to review each and every product for accessibility because it would be impossible to incorporate access for all types of disabilities in every single product. However, consumers argued that Section 255 imposed on industry the responsibility to evaluate and incorporate access in all products where it was “readily achievable” to do so. The whole point of universal design was to provide people with disabilities the same ability to choose from the same selection of products—with their varied features, functions, and prices—as was available to people who were not disabled. If companies were permitted to choose which products within a product line were appropriate for the inclusion of access features, consumers feared they might incorporate access in some products and not consider access at all in others. This would produce a separate tier of “specialized” accessible products that were likely to be more expensive and harder to find.2
A second point on which TAAC could not agree was the extent to which companies should be safe from enforcement actions when they were unable to produce accessible products, but were able to demonstrate that they had made a good faith effort to follow the Section 255 guidelines. For this purpose, companies proposed executing a “Declaration of Conformity” for each product, which would attest to the company’s good faith efforts in evaluating the product for accessibility. The declaration would create a presumption, or a “safe harbor,” that would automatically protect the company from FCC penalties. While consumers acknowledged that good faith efforts needed to be given considerable weight, they preferred that any accessibility documentation instead take the form of an “Accessibility Impact Statement” (AIS), which would document the steps that a company had taken to achieve access, including information about the company’s efforts to consult and perform product testing with people with disabilities and descriptions of the product’s accessible features, as well as the extent to which the product was compatible with assistive devices. If the product was not accessible, the AIS could also include an explanation for why accessibility was not readily achievable, as well as plans for achieving accessibility in the future.3 Though unlike the Declaration of Conformity, the production of an AIS would not automatically create a presumption of compliance, it could provide a paper trail that would speed the resolution of Section 255 complaints. Some companies (though not enough to create a consensus) also believed that this type of documentation could provide a means by which manufacturers would be able to gauge the effectiveness of their various approaches to achieving accessibility.*
From June to December 1996, the Telecommunications Access Advisory Committee, convened by the Access Board and comprised of disability, industry, and government representatives, was able to reach consensus on some, but not all of the guidelines needed to implement Section 255’s accessibility mandates for telecommunications products.
On January 15, 1997, TAAC presented its final recommendations to the Access Board, after six months of laborious meetings.4 The Board swiftly turned the recommendations into proposed guidelines and issued them for public comment.5 However, action stalled after that, and it was not until September 1997, a month past the statutory deadline, that the Access Board finally shared the guidelines with the Office of Management and Budget (OMB) for approval. Unfortunately, once at OMB, the guidelines again sat idle, until consumers began protesting and Senator Ron Wyden (D-Ore.), concerned that the delay was preventing the FCC from being able to enforce Section 255’s mandates, formally urged OMB’s director to move the rules along.6
By the time that the Access Board finally released its guidelines on February 3, 1998, more than a year had passed since TAAC had submitted its recommendations.7 Nevertheless, many consumers felt it had been worth the wait. The guidelines effectively fulfilled Congress’s intent to achieve universal design, adopting nearly all of TAAC’s recommendations, and requiring individual accessibility evaluations for each and every product. Rejecting industry’s “product line” approach, the Access Board explained that the very reason that manufacturers offered multiple products within a product line was to give the public a range of options. It found no evidence that Congress intended for people with disabilities to have any fewer choices than the general public in making their product selections.*
In addition to adopting the many TAAC proposals on product design, marketing, training, consumer consultation, and usability, the Access Board agreed to require the development of periodic “Market Monitoring Reports,” to identify existing barriers faced by people with disabilities, as well as a snapshot of accessible products available in the telecommunications marketplace to overcome those barriers. The reports would be intended to provide a clear picture of the market’s successes and failures, and allow consumers, industry, and the federal government to identify research, technical, and regulatory solutions needed to improve accessibility. Unfortunately, only one of these reports, released in January 2000, was ever conducted.†
Over to the Commission
While Section 255 directed the Access Board to provide accessibility guidelines for telecommunications products, the board lacked authority to either enforce these guidelines or to issue rules for telecommunications services; it was assumed that the FCC would fulfill these responsibilities. To this end, in September 1996, while TAAC was still meeting, the FCC initiated its own Section 255 proceeding with the release of a notice of inquiry.8 But at that time, the Commission questioned the need for it to adopt enforceable regulations, and asked whether it might not be sufficient to simply issue policy guidelines, or rely on consumer complaints to enforce Section 255. Companies, quite pleased with the prospect of having to follow only voluntary guidelines rather than stringent mandates, jumped at the chance to tell the FCC that inflexible rules would freeze technological development at a time when innovation was most needed. Voluntary guidelines, they insisted, would do just fine.‡
Consumer advocates had spent decades fighting hard for telecommunications access and they believed that history had shown that nonbinding guidelines would not be sufficient to achieve industry compliance. To help convince the FCC of the urgent need for regulatory mandates, the NAD provided the agency with first-hand accounts from individuals who had been denied various forms of telecommunications access. In October 1996, Harvey Goodstein and Pam Holmes solicited from the NAD’s members a laundry list of new technologies that remained inaccessible to deaf and hard of hearing consumers: voice mail, call waiting, recorded voice messages, call forwarding, caller ID, digital wireless services, automated voice response systems, and telephone alarm systems.9 Rather than stifle innovation, consumers insisted that Section 255 would jump-start the development of creative and readily achievable access solutions for these and other telecommunications features.
That the role of the FCC was open to debate at all was the result of an apparent error in the final version of Section 255, as approved by the House-Senate Conference Committee and passed by Congress. Although the final version of Section 255 clearly directed the Access Board to issue its guidelines “in conjunction with the Commission,” there were questions about whether Section 255 contained an explicit requirement for the FCC to adopt accessibility regulations.10 Consumers argued this was a mere oversight because when the individual House and Senate bills had been sent to that Conference Committee, each had still contained language specifically requiring FCC rules.11 The only difference between the House and Senate versions of Section 255 was that the Senate bill had required the initial input of the Access Board, while the House bill had made the FCC fully responsible for developing rules. Additionally, passages in both the Senate and Conference reports referred to the relocation, rather than the deletion of the FCC’s mandate to issue Section 255 rules:
The Committee has elsewhere assigned responsibility for promulgating regulations for this new section to the Commission. The Committee envisions that the guidelines developed by the Board will serve as the starting point for regulatory action by the Commission, much as, for example, the Board prepares minimum guidelines on accessibility under section 504 of ADA that serve as the basis for rulemaking by the U.S. Department of Justice.12
After confirming this interpretation in telephone conversations with the members of Congress who had shepherded Section 255 through their committees, consumers were able to dispel further concerns about the FCC’s authority to promulgate enforceable mandates. This helped to clear the way for the FCC to finally release its proposed Section 255 rules, by a unanimous vote of all five commissioners, on April 20, 1998.13 But while consumers were pleased with the FCC’s decision to develop enforceable mandates, and were further relieved that the agency’s proposals largely mirrored the original TAAC recommendations, they found considerable fault with several of the agency’s recommendations.
Section 255 requires access to “telecommunications” services and products, defined as “the transmission, 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.”14 For years, both Congress and the FCC had distinguished these types of services from “information” services (also called “enhanced” services), the latter defined as services that involved generating, storing, transforming, processing, or restructuring information.15 The FCC’s Section 255 proposals recommended covering basic telephone services (“plain old telephone service” or “POTS”), along with a few more advanced telephone features, including speed dialing, call forwarding, call monitoring, caller ID, call tracing, call blocking, call return, repeat dialing, call tracking, Operator Services for the Deaf, and computer-provided directory assistance, all of which were considered telecommunications services under other Commission rules. However, the FCC was reluctant to extend Section 255’s protections to voice mail, interactive voice response (IVR) systems, and e-mail services, claiming these to be information services that fell outside of the statute’s intended scope.
Consumers felt that limiting the scope of Section 255 in this manner would defeat Congress’s intent to bring Americans with disabilities into the mainstream of the technological age.16 As technological innovations blurred the distinctions between different types of communications services, a narrow interpretation of Section 255 could diminish the number and types of innovative services that would be covered, to the point where the statute would have little, if any effect. This was of particular concern to Gregg Vanderheiden, director of the University of Wisconsin’s Trace Research and Development Center and member of TAAC. Having witnessed the consequences of failing to design products with accessibility for years, he tried to convince the FCC that a “seamless continuum” existed across various communication technologies. Coverage of some, but not other advanced technologies would create an uneven playing field for the industry and result in confusion for consumers.17 According to Vanderheiden, the marvels of low-cost electronics, miniaturization, and programmable phones promised to make designing equipment for people with disabilities relatively easy, and therefore should be required.18
Of particular concern to people with disabilities was whether the FCC’s new rules would require access to IVR and voice mail systems. These systems use automated voice prompts to direct users through a call, and are typically incompatible with TTYs, sometimes have audio quality that is too poor to be used effectively by people who are hard of hearing, and do not give relay operators enough time to convey choices to callers, receive back their selections, and make the desired connections. Despite their disadvantages for millions of people with disabilities, by the time that the FCC began considering the scope of Section 255’s coverage, IVR services had become pervasive throughout thousands of government offices, schools, transportation facilities, libraries, and retail establishments. To the extent that businesses made recordings on these interactive systems their only method of providing telephone information to the public, people with disabilities were effectively shut out.
Although the FCC classified IVR systems as “information services,” advocates knew that these systems were so integral to the provision of telecommunications services that their exclusion from the FCC’s Section 255 rules would thwart the very purpose of the 1996 statute. To prevent this from happening, we offered the FCC various legal theories to extend its accessibility protections to these services. Under a doctrine known as “ancillary jurisdiction,” the FCC is permitted to exercise jurisdiction over matters that are not expressly within the scope of a particular statutory mandate, but are still needed to execute the Commission’s obligations under that mandate. Because inaccessible IVR or voice mail systems blocked one’s ability to complete basic telephone calls that were already covered by Section 255, we argued that extending the accessibility mandates to these systems was well within this extended FCC authority.
Alternatively, advocates asserted that Section 255 was a civil rights statute, patterned after the ADA and intended to fill its gaps. Federal courts had always interpreted civil rights statutes broadly, seeking wherever possible to sustain the rights created by their protections. The FCC was asked to do the same in the quest to end telecommunications discrimination against people with disabilities.
Another matter that concerned consumers was the standard by which companies could be excused from their disability obligations. Section 255 only required companies to provide access where it was “readily achievable” to do so, a standard which, under the ADA, compared the size, type, and resources of a business against the nature and cost of the structural changes needed to provide access to that business’s facilities. The FCC’s proposals added new criteria to this equation, which advocates believed would facilitate avoidance of a company’s Section 255 obligations. Specifically, in addition to the above criteria, a company would be permitted to consider the projected income expected from an accessible product or service, the ability to recover the costs of incorporating access features, and “opportunity costs,” defined as the costs associated with reducing the product’s or service’s performance for other people.
Advocates feared that including these market factors in a readily achievable analysis could have disastrous consequences. Indeed, DOJ already had rejected loss of profit as a legitimate consideration for readily achievable determinations under the ADA.* Consumers also questioned the highly subjective nature of opportunity costs, fearing overblown assessments by companies who would declare that access efforts were shifting their focus away from other projects. TDI said that the FCC should instead focus on the high costs of inopportunity, that is, the costs to society of creating inaccessible products.19 These included not only the lost productivity of persons with disabilities, but heavy expenses incurred by employers, educators, and other members of the public for the purchase of adaptive equipment, when mainstream products were not accessible. For example, stand-alone captioning decoders and TTYs went for several hundred dollars, and Telebrailles, devices used by deaf-blind people to talk over the telephone, cost approximately $6,000. By striking contrast, incorporating access had always resulted in exceptional benefits to society, in the form of increased tax revenues, reduced disability payments, and expanded independent living.
More than 200 sets of comments were submitted in response to the FCC’s Section 255 proposals, accompanied by an untold number of consumer and industry visits to the Commission. But as 1998 wore on, rather than move toward a final resolution of these rules, the FCC’s progress only seemed to slacken. Disputes over the readily achievable definition, the scope of the rules, and the adoption of either the product-by-product approach in the Access Board’s guidelines or the product line approach preferred by the industry continued to intensify, until the Commission’s efforts to please all constituencies on these and other issues resulted in complete gridlock.
In an effort to break the stalemate, during the fall of 1998, Motorola and TIA approached a few disability advocates about working out a compromise on the outstanding issues.* Though we spent the next three months in an intense series of closed negotiations that successfully produced consensus on many of the issues,† attempts to sell the agreement to the wider disability community and other industry segments proved to be a failure and a public relations fiasco. The negotiations had purposely been conducted in private and contained within a small group of individuals, in the hope of reaching a swift consensus. When the proposed agreement was finally shared with other consumer and industry leaders, they reacted with surprise and even annoyance that there had been an attempt to achieve resolution on the outstanding issues behind closed doors.
By December 1998, although nearly three years had passed since the enactment of the Telecommunications Act, still no formal FCC guidance on Section 255 was forthcoming. Future efforts at collaboration with the industry seemed unlikely; during the weeks since we had abandoned our attempts at reaching a consensus, the extremely divergent views of our respective constituencies had once again created divisions in our positions that appeared difficult, if not impossible, to narrow. In the months that followed, each side again tried to win over the Commission by resorting to more traditional and lengthy written pleadings.20
In March of 1999, disability advocates were approached by a different industry group—this time by the Personal Communications Industry Association (PCIA).21 Initially consumers were skeptical of the association’s intentions, having already failed so many times before at achieving reconciliation with the industry on the remaining Section 255 matters. But a few weeks after the initial contact was made, advocates were delighted to learn that the association had reconsidered its position with respect to the inclusion of interactive and voice mail systems under Section 255, and was actually contemplating support for expanding the scope of the FCC’s regulations to cover these services.22 If even a segment of the telecommunications industry sided with consumers on this issue, it could be just enough to sway the FCC. But advocates remained cautiously optimistic; PCIA’s Washington, D.C., representatives informed us that they still needed to win the approval of the association’s member organizations before making this support public.
By the beginning of June 1999, Chairman Kennard had made Section 255 one of his top priorities, and consumers felt confident that their views on the product line and readily achievable issues were being given the consideration that they were due.‡ However, certain segments of the telecommunications industry were now doing everything they could to convince the FCC not to cover any information services in its rules. Two industry associations, USTA and CTIA, were even threatening lawsuits if the FCC attempted to impose access obligations on IVR and voice mail services.23 This threat was not only hurting our chances of getting regulatory safeguards to ensure access to these services; it was delaying the release of the Section 255 rules in their entirety. It was for this reason that disability advocates could not have been more grateful when, on June 24, 1999, Todd Lantor and Mary McDermott of PCIA informed the FCC that their association’s members had, in fact, agreed to endorse Section 255 coverage of these interactive systems.*
To strengthen the impact of PCIA’s announcement, on June 25, 1999, the Telecommunications Advocacy Network (TAN), a national grassroots network of deaf and hard of hearing consumer activists, joined the NAD and TDI in releasing a series of action alerts designed to produce “an avalanche of letters, phone calls, email messages, and faxes” requesting the FCC to eliminate barriers to voicemail and interactive menu systems.24 TAN had been started under the NAD’s auspices by Pam Holmes back in November 1997, with the assistance of Mitch Travers, Toby Silver, TDI’s Board of Directors, and the Association of Late-Deafened Adults. The group’s energy and enthusiasm had been consistently successful in providing local support for national advocacy efforts on telecommunications access issues. This time was no exception. Only a few days after the alerts went out, Dale Hatfield, chief of the FCC’s Office of Engineering and Technology, gave a speech that emphasized the need to empower, not isolate people with disabilities.25 But while two of the FCC’s commissioners, Chairman William Kennard and Commissioner Gloria Tristani were by now squarely in favor of covering interactive phone services, two others, Commissioner Michael Powell and Commissioner Harold Furchgott-Roth still believed that Congress had only mandated disability access for “telecommunications” services, and that extending the law any further would be acting without legislative approval. The two claimed that all of the FCC’s Section 255 rules could be thrown into jeopardy if the industry carried out its threat to challenge coverage of interactive systems.26 Commissioner Ness, the fifth commissioner, remained uncommitted to either point of view.
When the FCC brought the Section 255 rules to a final Commission vote on the morning of July 14, 1999, consumers and industry remained uncertain about the fate of IVR and voice mail services. During the days leading up to the Section 255 vote, Kennard had employed all powers of persuasion to secure a third vote that would bring these within the purview of the new accessibility mandates. He tried to persuade his fellow commissioners that these services were so essential to the ability of people with disabilities to communicate effectively, that failing to require their accessibility would substantially undermine the implementation of Section 255.27 But when the morning of the vote arrived, Kennard still did not have a firm commitment of support from any of the three remaining commissioners. Not knowing which way the final vote would turn, Kennard’s press office took the precaution of preparing two statements for the chairman, one applauding the new rules, and the other complaining of their inadequacies. Intense negotiations continued throughout the morning, until Commissioner Susan Ness finally agreed to support the expanded coverage, only minutes before the commissioners took their final walk to the meeting room.* In their haste to disseminate a press statement once the vote was taken, however, FCC staff inadvertently released the wrong packet of information to reporters. Soon realizing what they had done, they released the corrected copy, putting into circulation two conflicting versions of the vote’s outcome, and confusing many who had been waiting months, if not years, for this pivotal decision!
From left to right, TDI President Roy Miller, TDI Executive Director Claude Stout, and TAN Coordinator Pam Holmes join FCC Chairman Bill Kennard in celebrating the FCC’s approval of Section 255 rules with a breakfast “toast” at TDI’s thirteenth biennial international conference in Seattle, Washington, in July 1999. Kennard said the Commission’s vote was one of the finest moments in the FCC’s history.
When the vote was finally taken, consumers were ecstatic. Kennard proclaimed the Section 255 rules “the most significant opportunity for people with disabilities since the passage of the Americans with Disabilities Act of 1990.”28 The day itself was one of celebration, with FCC demonstrations of closed captioning and talking caller ID devices. Even Vice President Gore released a statement praising the efforts to support greater telecommunications access, and thanking those in the industry who were able to find “common ground on this important issue.”29 The final rules that were approved were set to take effect on January 28, 2000, almost four years after Section 255 was enacted.
Right after the Commission meeting, Kennard flew to Seattle, Washington, where TDI was holding its biennial convention. The following morning, flanked by Pam Holmes, Claude Stout, Roy Miller, and other deaf leaders, Kennard informed an exuberant crowd of the Commission’s vote, calling it one of the finest moments in the FCC’s history.† Later in the day, the chairman gave his formal address, “Defining Vision,” inspiring all in attendance to look forward to a world without telecommunications barriers—a world where “people who are deaf and hard of hearing can no longer be denied access to telecommunications anytime, anywhere, or anyhow.”
FCC Chairman Bill Kennard pauses for a photo at the TDI 1999 biennial convention with FCC Disabilities Issues Task Force staff and the TDI Board. Left to right: Joe Slotnick, Ken Rothschild, Mike Zeldon, Claude Stout, Pam Holmes (front, representing TAN), Roy Miller, Bill Kennard, Meryl Icove (front), Joe Duarte, Pam Gregory, Carol Sliney, Susan Watson. Icove and Gregory, DITF staff, played a major role in advancing telecommunications access issues at the FCC.
But advocates could not yet let down their guard. As expected, the FCC’s decision to cover interactive phone systems prompted members of the telecommunications industry to renew their threats of a legal challenge to the Section 255 rules. In the days leading up to January 19, 2000—the deadline for filing a judicial appeal—Kennard made personal requests to individual industry leaders to let the rules stand. Miraculously, he was successful in turning the companies around; a few days later, he publicly commended industry for focusing its talents on increasing access, rather than pursuing litigation aimed at hindering that access.30
Consumers hailed the FCC’s final rules for the way in which they closely mirrored the Access Board’s guidelines and accurately reflected the extensive deliberations that had taken place between industry and the disability community during the TAAC process.31 In this regard, the rules placed considerable emphasis on the need for universal design, and required every company to evaluate the accessibility, usability, and compatibility of each of its products and services throughout its design, development, and fabrication stages, as early and consistently as possible. Under the new directives, modest accessibility features such as volume control, that could be incorporated into a product’s design with very little or no difficulty, would be universally required in all products within a product line. However, so long as a company generally tried to maximize accessibility, it would have the flexibility to incorporate more complicated access features in selected products across product lines.
The FCC’s order also made clear that, generally, it would be unacceptable to eliminate an accessibility feature that already existed in a product; the very inclusion of that feature indicated that its continued availability was readily achievable.32 It was hoped that this language would prevent a repeat of events that had occurred in the 1960s and 1970s, when the telephone industry had inadvertently eliminated an accessibility feature—in that instance, hearing aid compatibility—when it redesigned its telephone handsets.
Under the new mandates, each company would be charged with reviewing its products and services for accessibility at the time of their conception and at “natural opportunities” in their products’ ongoing development, for example when these were substantially revised, upgraded or newly distributed.* In addition, the FCC agreed to the consumers’ suggestion to consider the extent to which making a product accessible was readily achievable at the time that the product was designed. The Commission acknowledged that it would be unfair to allow a company to ignore its access obligations early on and then, once the product was fully manufactured, assert that retrofitting was no longer readily achievable. When it was not readily achievable to incorporate access at all, companies would need to make the product or service in question compatible with specialized equipment, such as TTYs and light signalers, so long as providing such compatibility was readily achievable.
Final Section 255 (and 251) FCC Rules
47 C.F.R. Parts 6 and 7
Equipment and Services Covered:
•Customer premises equipment—equipment used by a person to originate, route or terminate telecommunications, including wireline and wireless telephones, pagers, fax machines, answering machines, direct-connect TTYs; software integral to equipment
•Basic telecommunications services and “adjunct to basic” services—includes, but not limited to call waiting, call forwarding, Caller ID, return call, speed dialing, repeat dialing, and call tracing
•Interactive voice response systems and voice menus (equipment and services)
Accessibility (subject to readily achievable standard)
•Access to input, control and mechanical functions
•Access to output, display and control functions
•Products and services to be evaluated at design stages and other “natural opportunities”
•Access in alternative formats to general product information, including bills, user guides
•Access to information about general and accessibility features
•Access to technical support services, including consumer hotlines, repair and billing services, and customer support centers
Compatibility (subject to readily achievable standard)
•When not readily achievable to provide access, equipment or service must be compatible with specialized customer premises equipment or existing peripheral devices commonly used by people with disabilities
•Equipment must connect with TTYs and other external audio processing devices
•Equipment must be compatible with TTY signals
Telephone Network Access
•Public switched network, including databases, local loops and switching hardware that route telecommunications services must not impede access
•Telecommunications equipment and CPE must pass through codes, protocols and formats needed to provide telecommunications in an accessible format, if readily achievable
Coordination with people with disabilities
•People with disabilities must be included in market research, product design, testing, trials, pilot demonstrations, and validation of access solutions where these are conducted
•Telecommunications providers and manufacturers must designate points of contact for consumer inquires and complaints about their services. Points of contact are available on disabilities page of the FCC’s website, www.fcc.gov
In another win for consumers, the Commission’s final rules abandoned criteria that relied on market factors and opportunity costs to determine whether an access feature was readily achievable. The rules focused instead on criteria that were more in line with the ADA, though they also permitted a company to consider whether a particular access feature would create technical difficulties, substantially alter a product’s size, weight, shape, or functionality, or otherwise deter use of the product by other individuals. As was true under the ADA, companies that had greater resources would need to undertake greater changes to achieve compliance under this standard.
Unfortunately, the FCC, succumbing to aggressive lobbying by the telecommunications industry, decided not to require companies to provide documentation of their efforts to incorporate access, either in a product’s packaging or in submissions to the FCC.33 Still, the FCC made clear that it expected companies to maintain records of their accessibility efforts “in the ordinary course of business,” so that they could demonstrate Section 255 compliance if complaints were filed against them.34
By the time that the FCC released its Section 255 rules, several companies had already begun to respond to the accessibility directives of the 1996 statute.35 Some of these had adopted universal design principles, adding access features to the already long list of criteria considered in the design of their products.36 Others had initiated training programs for their employees, and had begun adding customers with disabilities to their product trials and research efforts.37 Industry access review boards, in-house accessibility teams and external advisory councils, as well as accessibility booths at industry trade shows also increased in number, as companies began to see the value of using these methods to facilitate coordination with the disability community.38 Finally, some companies, such as Nokia, had begun to recognize the benefits of producing accessible products for burgeoning markets of senior citizens. According to Nokia, 76 million American baby boomers born between 1946 and 1964 would benefit from “products that are easier on weakening eyes and on ears fitted with hearing aids.”39 AARP agreed that senior citizens who grew up with access to consumer electronics would not want to lose that access as their vision and hearing begin to fade.40
Readily Achievable Standard
FCC Section 255 Report and Order
16 FCC Rcd 6417 ¶¶43-74
The following are considered in determining whether an access feature is readily achievable:
•Nature and cost of action needed
•Overall financial resources of the company, number of persons employed, effect on expenses and resources, impact action will have on company operations
•Overall financial resources of parent of company, overall size of parent’s business with respect to number of employees, and number, type and location of its facilities
•Type of operation of company, including composition, structure, functions of workforce, and geographic separateness, administrative or fiscal relationship of company in relation to parent company
•Fundamental alteration—whether access would reduce substantially functionality of product, render other features of the product inoperable, impede substantially or deter its use by other people, or alter substantially and materially the shape, size, or weight of the product
•Technical feasibility of the access feature, though company must provide empirical evidence or documentation of infeasibility to prove this defense.
Readily achievable determinations are to be made on a case-by-case basis at the time the product is initially designed and at other natural opportunities, including redesigns, upgrades, and substantial modifications. Cosmetic or other very minor changes will not trigger a readily achievable assessment.
One direct outcome of the new rules was the creation of an Interactive Voice Response Forum by Jim Tobias in June of 2000.* Over the next several years, this group, consisting of manufacturers, service providers, consumers, and government officials, worked to identify accessibility barriers and solutions for IVR telephone systems, and to educate consumers about their rights to these services. But while the forum successfully developed ways to assess and resolve IVR accessibility, IVR manufacturers have since given little heed to these solutions. The absence of consumer complaints or enforcement by the FCC on this issue have kept inaccessible interactive systems in far greater supply than consumers had hoped when they prevailed in getting these systems covered under the FCC’s Section 255 rules. In all probability, the number of FCC complaints has remained low because of the difficulties that consumers confront in ascertaining the names and addresses of IVR manufacturers. For example, if a consumer calls a bank and reaches an interactive phone system, there is no way for that consumer to find out the manufacturer of that system and file a Section 255 complaint against that entity. While the consumer in this instance might file a complaint with DOJ against the bank under Title III of the ADA (for the bank’s failure to provide effective communication with people with disabilities), DOJ can only direct the bank to provide access; it has no authority to require the IVR manufacturer to make its system accessible. In an effort to achieve greater compliance with this portion of its Section 255 rules, the FCC released a public notice in September of 2000, reminding manufacturers and providers of voice mail and interactive menu products and services of their accessibility obligations.41 Three months later, FCC Chairman Kennard wrote to Attorney General Janet Reno urging stepped up enforcement of ADA rules requiring local governments and public accommodations to provide effective telephone communication for people with disabilities who are not able to access IVR systems.42 However, shortly after the letter was sent out, the presidential administration changed parties, causing the letter never to be answered. Since that time, the FCC has done little else to secure compliance with its Section 255 IVR obligations. By any standard, more needs to be done to have made the battles fought to secure this access worth their effort.
Unfortunately, the economic decline that hit the telecommunications industry during the first few years of the twenty-first century also took its toll on accessibility, and compliance with Section 255 became increasingly sporadic as companies began cutting programs to recoup their financial losses. Competitive pressures to devote limited resources to the production of fancier, multipurpose gadgets capable of attracting large followings pushed accessible design down on the list of industry priorities.† The inability to bring Section 255 lawsuits, coupled with the FCC’s lax enforcement of Section 255, were also factors in what most consumers perceived to be a downward spiral in accessibility compliance during this period. While the FCC accepts both informal and formal complaints, the latter are more akin to lawsuits, requiring lengthy pleadings and extensive discovery. With no means of recovering the legal fees and costs associated with these formal complaints, lawyers have not been eager to take on this potentially complex litigation for free. As a consequence, during the first eight years after the 1996 statute was passed, only two formal Section 255 complaints were brought to the FCC.*
Although it was easier for consumers to file Section 255 informal complaints, the FCC did little or nothing with the few complaints that arrived at the Commission up until the year 2000. Most, if not all, of the complaints that arrived before that time were lost in the thousands of informal telephone-related complaints filed annually with the FCC. During that period, the FCC also took little initiative in assessing Section 255 compliance on its own motion. Around the winter of 2000, the FCC’s new Disability Rights Office put into place a protocol for handling complaints and inquires on disability issues and Jenifer Simpson, who had been instrumental in achieving passage of Section 255 and was now an FCC employee, became chiefly responsible for securing resolution of the newer arrivals. But only in 2004, four years after this, did the FCC’s Enforcement Bureau begin engaging in earnest efforts to step up enforcement of Section 255. Unfortunately, even today, many remain critical of the FCC’s minimal efforts to secure compliance with these mandates.
Application of Section 255 to IP-Enabled Services
When the FCC issued its final Section 255 rules, it also released a further notice of inquiry seeking feedback on the extent to which these rules should extend to services and computer equipment used to send real-time voice transmissions over the Internet. Initially, heavy industry resistance to regulating the Internet discouraged the FCC from finalizing this proceeding. However, in 2003, when new “voice over Internet Protocol” or “VoIP” technologies began replacing traditional telephone services in many homes and businesses, the FCC began to take a second look (through forums and rulemaking proceedings) at the extent to which Section 255’s protections needed to be applied to these new forms of telephony.43
Traditional telephone communications that use the PSTN send entire conversations over a single dedicated path from the point of their origination to their point of destination. By contrast, VoIP technologies break up conversations into many digitized “packets,” which travel separately over various Internet paths. Once all the packets have reached their destination, they reunite, enabling the receiving party to receive the message intact. From an accessibility perspective, sending messages over the Internet has a number advantages. IP-based services allow users to choose from among a variety of communication modes—voice, text, or video—depending on the circumstances, and even have the capacity to enable individuals to use multiple conversational modes during a single conversation or to change modes mid-transmission, if needed to enhance accessibility.
But along with their considerable promise, IP technologies can create significant barriers for people who are deaf and hard of hearing if they are not designed to be accessible. Although the extent to which Section 255’s mandates will be applied to new IP-based technologies hangs in the balance, Section 508 of the Rehabilitation Act already requires federal agencies to make their IP-based technologies accessible to federal employees and members of the public with disabilities who use their services.44 As our nation’s communications venues shift from the public switched network to the Internet, both Congress and the FCC are grappling with how the accessibility safeguards secured in the past can be carried over to the technologies of the future, so that all Americans, including Americans with disabilities, will have equal access to all of our nation’s communications systems.
1. Access Board, Telecommunications Act Accessibility Guidelines for Telecommunications Equipment and Customer Premises Equipment, Notice of Appointment of Advisory Committee Members and Notice of First Meeting, 61 Fed. Reg. 26155 (May 24, 1996). I served on this federal advisory committee as a representative of the Council of Organizational Representatives (COR).
2. Pacific Telesis was one of the few companies that agreed with this approach. See generally Pacific Telesis Comments in WT Dkt. 96-198 (October 28, 1996), 26.
3. See, for example, Comments of the NAD on Section 255 proposed Access Board guidelines (June 2, 1997), 9–11. The NCD and various other advocacy groups agreed with this approach.
4. Telecommunications Access Advisory Committee, Access to Telecommunications Equipment and Customer Premises Equipment by People with Disabilities, Final Report (January 1997). Available at http://www.access-board.gov/telecomm/commrept/taacrpt.htm. Roberta Breden officially transmitted the TAAC final report to the Access Board on February 26, 1997. The final TAAC steering committee compiling the recommendations included Judy Brewer of the Massachusetts Assistive Technology Partnership, Gerry Nelson of Lucent Technologies, Leigh Thorpe of Northern Telecom, and the author representing COR.
5. Telecommunications Act Accessibility Guidelines, Proposed Rule, 62 Fed. Reg. 19178 (April 18, 1997).
6. Although the guidelines had been under OMB’s review as of September 10, 1997, the Access Board did not formally transmit them to OMB until November 12, 1997. In October 1997, disability advocates met with Sally Katzen of OMB to find out why the guidelines were being held up. Senator Ron Wyden then sent his letter to Franklin D. Raines, director of OMB on November 21, 1997.
7. Telecommunications Act Accessibility Guidelines, Final Rule, 63 Fed. Reg. 5608 (February 3, 1998), codified at 36 C.F.R. Part 1193. The guidelines were set to become effective on March 5, 1988. Dennis Cannon, David Capozzi, and Elizabeth Stewart were largely instrumental in bringing the guidelines to fruition at the Access Board. Doug Wakefield was later brought on to provide technical assistance on these guidelines.
8. Implementation of Section 255 of the Telecommunications Act of 1996, Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Notice of Inquiry, WT Dkt.96-198, FCC 96-382, 11 FCC Rcd 19152 (September 19, 1996). The FCC had initiated its proceeding in direct response to a request for assistance from TAAC Co-Chair Breden and Access Board Executive Director Lawrence Roffee.
9. Comments of the NAD in WT Dkt. 96-198 (October 28, 1996), 17; CCD, separate letters to each of the FCC commissioners, October 10, 1996 (urging the need for regulations to make sure that manufacturers and providers fully understood their access obligations).
10. The directive for the Access Board to work with the FCC can be found at 47 U.S.C. §255(e).
11. Section 308(a) of S. 652, passed by the Senate on June 15, 1995, would have required the Access Board to develop guidelines on access to telecommunications equipment and customer premises equipment, and the FCC to adopt a rule that would have been consistent with such guidelines. Section 249(c) of H.R. 1555, the final version of the House bill, had similarly required the FCC, within one year after the date of its enactment, to establish regulations needed to ensure access to equipment and advancements in network services.
12. S. Rep. No. 23, 104th Cong., 1st Sess. 53 (1996). Similar language appeared in the conference report. See Conf. Rep. No. 458, 104th Cong., 2d Sess. 134–35 (1996). The committees’ references to assigning responsibility for FCC regulations “elsewhere” may have been to Section 251(d), which states that “the Commission shall complete all actions necessary to establish regulations to implement the requirements of this section.” 47 U.S.C. §251(d). That section, in turn, refers back to Section 251(a), which prohibits carriers from installing network features that are inconsistent with the Section 255 guidelines.
13. Implementation of Section 255 of the Telecommunications Act of 1996, Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Notice of Proposed Rulemaking, WT Dkt. 96-198, FCC 98-55, 13 FCC Rcd 20391 (April 20, 1998). Hereinafter cited as Section 255 NPRM. During the winter before these rules were released, a number of disability advocates, including Nancy Bloch, Claude Stout, Brenda Battat, Jenifer Simpson, Donna Sorkin, Paul Schroeder, Alan Dinsmore, and the author, made various visits to FCC commissioners, Wireless Telecommunications Bureau Chief Dan Phythyon, and FCC employees Elizabeth Lyle, Meryl Icove, and Pam Gregory to press the case for FCC regulations. The FCC found both specific authority to issue the rules in Section 255 and more general authority under its obligation to execute actions in the public interest. Section 255 NPRM, ¶¶24–28, citing Sections 4(i), 201(b), and 303(r) of the Communications Act.
14. 47 U.S.C. §153(43).
15. 47 U.S.C. §153(20) (definition of “information services”); 47 C.F.R. §64.702 (definition of “enhanced services”).
16. See Comments of the NAD in WT Dkt. 96-198 (June 30, 1998), 9–14, prepared with the assistance of Lori Dolqueist of IPR.
17. Comments of the Trace Research and Development Center in WT Dkt. 96-198 (June 30, 1998), 2.
19. Comments of TDI in WT Dkt. 96-198 (June 30, 1998), 18.
20. Consumer proposals were submitted on January 20, 1999, and February 5, 1999, by the NAD, AG Bell, ACB, AFB, ASDC, ASHA, Gallaudet University, LHH, SHH, TDI, UCPA, and WID. TIA submitted its proposal for a product line approach on January 8, 1999 and rejected the consumer approach in a letter to the Commission on March 9, 1999.
21. Todd Lantor, phone call to the author, March 17, 1999.
22. This was discussed at a meeting held between PCIA and disability advocates on April 7, 1999.
23. See Wigfield, “Industry Awaits.”
24. Claude Stout, Nancy Bloch, and Pam Holmes, “Full Community Effort to Send Communication to the FCC on Section 255,” electronic action alerts, June 25, 1999. In addition, on June 30, 1999, Jim House of TDI sent out sample letters for TDI members to send to the FCC. Other action alerts went out from the NAD on June 23 and July 7, 1999.
25. Heather Forsgren Weaver, “FCC Gets Ready to Adopt Disabilities Rules,” RCR Wireless (July 12, 1999), 10. Hatfield further noted Kennard’s “commitment to seeing that all people receive the benefits of the wonderful technological revolution that is occurring in the telecommunications field.”
26. “FCC Backs Rule on Access for Disabled, Still Fine-Tuning Statement of Authority,” Regulation, Law & Economics, July 15, 1999, A-24.
27. See generally, Implementation of Section 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996, Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Report and Order and Further Notice of Inquiry, WT Dkt 96-198, FCC 99-181, 16 FCC Rcd 6417 (September 29, 1999), ¶¶99–106, codified at 47 C.F.R. §6.1 et. seq., and §7.1 et. seq. Hereinafter cited as Section 255 R&O.
28. Statement of Chairman Kennard, Section 255 R&O.
29. The White House, Statement of Vice President Gore (July 14, 1999).
30. FCC Chairman Kennard Applauds Industry Decision to Provide Telecommunications Access for People with Disabilities,FCC News Release (January 21, 2000); See also “No Lawsuits to Challenge U.S. Phone Access Rules,” Reuters (January 21, 2000).
31. See “Disability Groups Hail Rules on Equipment, Service Access,” Telecommunications Reports, October 4, 1999, 22–23.
32. Section 255 R&O, ¶26. The FCC declined to adopt a more specific Access Board guideline prohibiting companies from making product changes that had the overall effect of decreasing product accessibility. See 36 C.F.R. 1193.39(a). However, the FCC’s final compromise on this point was a significant improvement over its earlier conclusion that this Access Board guideline was inappropriate because it would “stand in the way of technological advances.” Section 255 NPRM, ¶114.
33. Schwartz, “Making Cell Phones,” E-1. (Al Lucas of Motorola was quoted as opposing “onerous record-keeping requirements.”)
34. Section 255 R&O, ¶74.
35. See generally, “FCC Expected to Spell Out Disabled Access Rules,” Reuters (July 7, 1999).
36. Pacific Telesis, SBC, and Bell Atlantic had adopted these practices. A few months after promulgation of the rules, CEOs from forty-six companies of America’s high-technology companies also pledged their support for the government’s efforts to promote access to information and communication products and services for people with disabilities. “An Open Letter on Accessibility from Technology Executives,” September 21, 2000. Signatories included AOL, AT&T, BellSouth, eBay, and Microsoft.
37. Motorola and Nokia adopted training programs along these lines.
38. For example, Microsoft developed extensive in-house accessibility teams to monitor and address the accessibility of its products and services.
39. Kathy Chen, “FCC to Issue Rules to Help the Disabled In the Use of Telecommunications Gear,” Wall Street Journal, July 14, 1999, p. B6 (quoting Bill Plummer of Nokia).
40. John Schwartz, “Making Cell Phones Disabled-Friendly,” Washington Post, July 14, 1999, E-1 (quoting Jeff Kramer of AARP).
41. See Reminder to Manufacturers and Providers of Voice Mail and Interactive Menu Products and Services of Their Accessibility Obligations Under New Part 7 of the Commission’s Rules, FCC Public Notice, DA 00-2162 (September 22, 2000).
42. FCC Chairman William E. Kennard, letter to the Honorable Janet Reno, December 27, 2000.
43. For example, on December 1, 2003, the Commission held the Voice Over Internet Protocol Forum, which gave Gregg Vanderheiden, director of the Trace Center, an opportunity to explain the many ways that VoIP services can benefit people with disabilities and the importance of applying the FCC’s disability access rules to these services. At a second forum, the VoIP Solutions Summit, Focus on Disability Access Issues, on May 7, 2004, various disability advocates came forward to urge the Commission to continue safeguarding disability protections as VoIP services replace traditional telephone services provided over the public switched telephone network. Included among the speakers at this event were many of the disability leaders who had spent decades advocating for equal access, including Brenda Battat (SHHH), Claude Stout (TDI), Jim Tobias (Inclusive Technologies), Paul Schroeder (AFB), Ed Bosson (Texas PUC), and once again, Vanderheiden. During this period, the FCC also released various notices of proposed rulemaking seeking public feedback on how best to guarantee disability access in an Internet-enabled world. See, for example, IP-Enabled Services, Notice of Proposed Rulemaking, WC Dkt. 04-3, FCC 04-28 (March 10, 2004).
44. 29 U.S.C. §794d; 36 C.F.R. Part 1194.
Epigraph. FCC Chairman William E. Kennard, “Defining Vision” (speech, 13th Biennial TDI International Conference: “Every time, Everywhere, Everyone: Expanding Telecommunications Access into the Next Millennium,” Seattle, Wash., July 15, 1999).
* Roberta Breden of the Telecommunications Industry Association (TIA) and Paul Schroeder of AFB were given the challenging task of serving as chairs of the new committee. Fortunately, their poise, fortitude, and patience fostered a collaborative environment that, over time, helped shed some—though not all—of the feelings of mistrust and skepticism.
† Companies could seek this input by hiring people with disabilities and creating disability advisory groups. Industry could also monitor the success of products through surveys, focus groups, and customer service lines.
* By way of illustration, voice mail and other interactive voice response telephone menus could be made accessible to people who were deaf by adding TTY prompts.
† One example might be a paging device that provides a vibratory alert for people who are hard of hearing.
* Pacific Telesis, NYNEX, and Siemens were among the companies who supported the creation of an AIS, in comments later submitted to the FCC.
* The only disappointment was the Access Board’s decision not to require manufacturers to provide documentation on their accessibility processes. While the Access Board did not dispute the many benefits of an AIS, it concluded that the FCC, as the agency responsible for enforcing Section 255, should determine whether this type of record-keeping was needed.
‡ Two of the industry’s largest trade associations, TIA and CTIA, adopted this position. Lucent Technologies also questioned whether the FCC had sufficient experience to issue rules, and U.S. West wanted the agency to rely exclusively on complaints to enforce the new law.
* When DOJ first proposed ADA rules to end discrimination in places of public accommodation, it suggested that barrier removal not be considered readily achievable if it would result in a significant loss of profit. 56 Fed. Reg. 35569 (July 26, 1991), citing proposed rule 28 C.F.R. 36.304 (f)(1). DOJ decided to eliminate this section from its final rules after it was vigorously opposed by consumers.
* Participants to these negotiations were Paul Schroeder of AFB, Brenda Battat of SHHH, Mary Brooner and Al Lucas of Motorola, Grant Sieffert of TIA, and the author representing the NAD. Pam Ransom served as mediator of our group.
† Among other things, a November 23, 1998, agreement would have required manufacturers to prepare written plans for achieving the accessibility and usability of their equipment, and would have applied Section 255 to most, but not necessarily all products within a product line.
‡ By then, FCC employees Ellen Blacker, Elizabeth Lyle, Meryl Icove, and Pam Gregory had been tasked with bringing the various Section 255 issues to closure.
* Claude Stout of TDI, Alan Dinsmore of AFB, and I, representing the NAD, sat in an FCC meeting room and watched in awe as Lantor and McDermott made this declaration to the FCC’s Blackler, Icove, and Thomas Wyatt. Rob Hoggarth of PCIA (though not at the meeting) had also been helpful in obtaining PCIA’s support. The FCC’s very positive reaction to PCIA’s announcement confirmed the significant impact that we had expected this news to have.
* Commissioners Powell and Furchgott-Roth dissented from this portion of the ruling, uncomfortable with the majority’s decision to rely on the FCC’s ancillary jurisdiction to reach these enhanced services. All five of the commissioners decided not to extend the mandates to other information services, such as e-mail and web pages, because they considered these to be alternative, rather than essential to telecommunications access.
† In a comical moment, Kennard “toasted” the crowd, while those around him held up toast from the morning’s breakfast.
* These assessments would not be triggered, however, when products received merely cosmetic changes, such as a change in their name or color.
* The forum was created under the auspices of the Alliance for Telecommunications Industry Solutions.
† Some have also questioned whether more specific standards, rather than the general performance guidelines that were adopted by the Access Board and codified by the FCC, would have achieved greater Section 255 results. This theory says that the providers and manufacturers would have been more compliant if explicitly directed to incorporate specific access features.
* The first of these was brought by Bonnie O’Day, a blind disability advocate, against Audiovox and Verizon Wireless, for failing to produce a cell phone that voiced prompts and other information that appeared on its screen. The case was handled on an entirely pro bono basis by the Washington, D.C., law firm of Spiegel & McDiarmid, with Scott Strauss as the lead attorney for the plaintiff. It produced a settlement, after which Verizon Wireless and other companies began offering cell phones that were accessible to people with vision disabilities. The second formal complaint, against OnStar for its failure to provide access to TTY users, resulted in a confidential settlement.