[Published in the Federal Register on February 3, 1998]
ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Part 1193
[Docket No. 97-1]
RIN 3014-AA19

Telecommunications Act Accessibility Guidelines

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Final Rule.

SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board
or Board) is issuing final guidelines for accessibility, usability, and compatibility of
telecommunications equipment and customer premises equipment covered by section 255 of the
Telecommunications Act of 1996. The Act requires manufacturers of telecommunications
equipment and customer premises equipment to ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable. 

When it is not readily achievable to make the equipment accessible, the Act requires
manufacturers to 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.

DATES: Effective date: March 5, 1998.

FOR FURTHER INFORMATION CONTACT: Dennis Cannon, Office of Technical and
Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F
Street, NW., suite 1000, Washington, DC 20004-1111. Telephone number (202) 272-5434
extension 35 (voice); (202) 272-5449 (TTY). Electronic mail address: 
cannon@access-board.gov.

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

Single copies of this publication may be obtained at no cost by calling the Access Board's
automated publications order line (202) 272-5434, by pressing 1 on the telephone keypad, then 1 again, and requesting publication S-34 (Telecommunications Act Accessibility Guidelines Final
Rule). Persons using a TTY should call (202) 272-5449. Please record a name, address,
telephone number and request publication S-34. This document is available in alternate formats
upon request. Persons who want a copy in an alternate format should specify the type of format
(cassette tape, Braille, large print, or computer disk). This document is also available on the
Board's Internet site (http://www.access-board.gov/rules/telfinal.htm).

This rule is based on recommendations of the Board's Telecommunications Access
Advisory Committee (TAAC or Committee). The Committee's report can be obtained by
contacting the Access Board and requesting publication S-32 (Telecommunications Access
Advisory Committee final report). The report is also available on the Board's Internet site
(http://www.access-board.gov/pubs/taacrpt.htm).

Background

On February 8, 1996, the President signed the Telecommunications Act of 1996. The
Access Board is responsible for developing accessibility guidelines in conjunction with the Federal
Communications Commission (FCC) under section 255(e) of the Act for telecommunications
equipment and customer premises equipment. The guidelines are required to principally address
the access needs of individuals with disabilities affecting hearing, vision, movement, manipulation,
speech, and interpretation of information.

Section 255 provides that a manufacturer 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. A provider of
telecommunications services shall ensure that the service is accessible to and usable by individuals
with disabilities, if readily achievable. Whenever either of these is not readily achievable, a
manufacturer or provider shall ensure that the equipment or service is compatible with existing
peripheral devices or specialized customer premises equipment commonly used by individuals
with disabilities to achieve access, if readily achievable. Section 255(f) provides that the FCC
shall have exclusive jurisdiction in any enforcement action under section 255. It also precludes an
individual's private right of action to enforce any requirement of section 255 or any regulation
issued pursuant to section 255.

On April 18, 1997, the Access Board issued a notice of proposed rulemaking (NPRM) in
the Federal Register (62 FR 19178) for accessibility, usability, and compatibility of
telecommunications equipment and customer premises equipment covered by the
Telecommunications Act of 1996. In addition to proposing specific guidelines, the NPRM asked
questions about some of the proposed provisions. The proposed rule was based on
recommendations of the Board's Telecommunications Access Advisory Committee.

The Committee was convened by the Access Board in June 1996 to assist the Board in
fulfilling its mandate to issue guidelines under the Telecommunications Act. The Committee was
composed of representatives of manufacturers of telecommunications equipment and customer
premises equipment; manufacturers of specialized customer premises equipment and peripheral
devices; manufacturers of software; organizations representing the access needs of individuals
with disabilities; telecommunications providers and carriers; and other persons affected by the
guidelines.

The Board received 159 comments in response to the NPRM. Comments were received
from 109 individuals who identified themselves as being hard of hearing. Also, comments were
received from 19 members of the telecommunications industry and industry associations. Some of
these comments were received from manufacturers of specialized customer premises equipment
and peripheral devices, service providers and telecommunications equipment and customer
premises equipment. Additionally, 31 comments were received from organizations representing
persons with disabilities. Comments came from state organizations representing individuals with
disabilities, advocacy organizations, independent consultants and academic organizations. Some
of the comments received were from members of the TAAC.

The majority of TAAC members supported the proposed rule but had recommendations
for changes to specific provisions. The majority of comments received from individuals who
identified themselves as being hard of hearing supported the rule and specifically supported
increasing volume controls on customer premises equipment. A few comments raised by these
individuals included some issues that were not covered in the proposed rule. For example, some
of these comments recommended providing enhanced radio volume, providing a device that
displays through text what is being said on radio stations, providing car radios equipped with
headphone jacks and providing closed captioning for television programs and motion pictures. 
Other comments included recommendations for more efficient and effective telecommunications
relay service operations, designing accessible roadside emergency call boxes which ensure two-way communications by people with hearing or speech disabilities and designing homes with
acoustically absorbent materials. These issues are not covered by section 255 of the
Telecommunications Act and are outside of the Board's jurisdiction in this rulemaking.

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.

Section-by-Section Analysis

This section of the preamble summarizes each of the provisions of the final rule and the
comments received in response to the proposed rule. Where the provision in the final rule differs
from that of the proposed rule, an explanation of the modification is provided. The text of the
final rule follows this section. An appendix provides examples of non-mandatory strategies for
addressing these guidelines.

Subpart A General

Section 1193.1 Purpose

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

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 Act 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.

Section 1193.3 Definitions

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

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

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

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

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

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. Finally, public pay telephones are considered customer premises
equipment.

Manufacturer

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 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

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 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

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

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

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

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

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.

Subpart B General Requirements

Section 1193.21 Accessibility, usability and compatibility

This section provides that where readily achievable, telecommunications equipment and
customer premises equipment shall comply with the specific technical provisions of Subpart C. 
Where it is not readily achievable to comply with Subpart C, telecommunications equipment and
customer premises equipment shall comply with the provisions of Subpart D, if readily achievable. 
This is a restatement of the Act and sets forth the readily achievable limitation which applies to all
subsequent sections of these guidelines.

Comment. Several comments pointed out that the NPRM applied the readily achievable
limitation only to the provisions of Subparts C and D but not to the other provisions in the rule. 
They correctly noted that the statutory requirements for usability are also subject to the readily
achievable limitation. As proposed, the obligations to provide usable documentation seemed to be
absolute. Additionally, the Trace Center pointed out that the NPRM was unclear whether the
requirements of Subpart D (Requirements for Compatibility With Peripheral Devices and
Specialized Customer Premises Equipment) must be met if a product fully complies with the
requirements in Subpart C (Requirements for Accessibility and Usability).

Response. The Board agrees that the statute applies the readily achievable limitation to
usability as well as accessibility and compatibility. Therefore, the title of this section has been
changed and the proposed sections 1193.25, 1193.27 and 1193.29 have been moved to Subpart C and renumbered accordingly. Section 255 does not require telecommunications equipment and customer premises equipment to be both accessible and compatible. Therefore,
telecommunications equipment and customer premises equipment are not required to be
compatible with peripheral devices or specialized customer premises equipment if they comply
with the requirements in Subpart C.

Section 1193.23 Product design, development and evaluation

This section requires manufacturers to evaluate the accessibility, usability, and
compatibility of telecommunications equipment and customer premises equipment and incorporate
such evaluation throughout product design, development, and fabrication, as early and
consistently as possible. Manufacturers must develop a process to ensure that products are
designed, developed and fabricated to be accessible whenever it is readily achievable. Since what
is readily achievable will vary according to the stage of development (i.e., some things will be
readily achievable in the design phase which are not in later phases), barriers to accessibility,
usability, and compatibility must be identified throughout product design and development, from
conceptualization to production. Moreover, usability can be seriously affected even after
production, if information is not provided in an effective manner.

The details of such a process will vary from one company to the next, so this section does
not specify the structure or specific content of a process. Instead, this section sets forth a series
of factors that a manufacturer must consider in developing such a process. How, and to what
extent, each of the factors is incorporated in a specific process is up to the manufacturer.
Comment. The majority of comments supported the provision as proposed but
manufacturers generally objected to intrusions into their proprietary or discretionary activities. 
They also viewed this provision as creating paperwork burdens and criticized the Board for not
using the TAAC recommendation which used the word "should" rather than mandatory language
for this section.

Response. The provision, as proposed, consisted of a set of factors which the Board
considers critical to the development of any plan which seeks to ensure that products will be
designed, developed and fabricated to be accessible. As such, they are more than suggestions. 
On the other hand, the Board is fully aware that different 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. With respect to the "mandatory" nature of the
provision, as explained elsewhere, the Board does not construe its statutory mandate as merely
providing hortatory technical assistance. However, the Board did not ignore the TAAC
recommendation, it merely approached it from a different direction.

Comment. Commenters almost uniformly misconstrued the provision as requiring
extensive activities and documentation, which it does not. One manufacturer interpreted the
section as requiring a "checklist" which would need to be completed for each product.

Response. While there is nothing to prevent a manufacturer from using extensive
activities and documentation, this approach is neither required nor suggested. A "checklist"
seems to envision an after-the-fact evaluation activity which is certainly not the best way to
achieve access. It also seems to assume that such evaluation is to be applied to existing products. 
As explained in section 1193.2, these guidelines apply to products designed, developed and
fabricated after the effective date of this rule. Of course, in the beginning, before designers and
developers are knowledgeable and familiar with access, some checklist procedure may be useful. 
Ultimately, however, the goal is for designers to be aware of access and incorporate such
considerations in the conceptualization of new products. When an idea is just beginning to take
shape, a designer would ask, "How would a blind person use this product? How would a deaf
person use it?" The sooner a manufacturer makes its design team cognizant of design issues for
achieving accessibility and proven solutions for accessibility and compatibility, the easier this
process will be. But, again, how this is done is up to the manufacturer.

Comment. Manufacturers also believed the provision required extensive marketing and
testing programs, well beyond what they might currently provide.

Response. The 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 manufacturer has a large 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.

Comment. TIA noted that the NPRM discussion assumes the impact will be low because
manufacturers are only required to achieve what can be accomplished easily, without much
difficulty or expense. "This appears," says TIA, "to omit consideration of the costs of making
readily achievable determinations in the first place, prior to any expenditures on design,
development and fabrication."

Response. As stated above, in the beginning manufacturers may spend some time
evaluating products and the difficulty and expense of doing so may contribute to a finding that
accessibility is not readily achievable. These costs have not been omitted, they are explicitly
included in deciding whether an action is readily achievable, a determination which is to be made
by the manufacturer not the Board. Moreover, as designers become more familiar with access
and as technological solutions are found, the process should become more and more automatic. 
The Board has a positive regard for manufacturers of telecommunications equipment and
customer premises equipment as enterprising innovators who desire to provide access because
they view it as the right thing to do, and because it is good business, not just because there is a
Federal requirement. Indeed, recent announcements by telecommunications companies suggests
this is true.

Comment. SBC Communications commented that the complex interrelationship between
equipment and services in providing accessibility to telecommunications suggests that
coordination and cooperation between manufacturers and service providers will be beneficial.
SBC agreed that involving individuals with disabilities in the product development process will
encourage appropriate design solutions to accessibility barriers and permit the exchange of
relevant information. It believed that the same benefits would flow from interchanges with service
providers.

Response. The Board agrees that it would be desirable for manufacturers to consult with
service providers during the design phase. As SBC points out, the solution to a particular barrier
might be better addressed by the service or might involve a combination of service and equipment
designs. Accordingly, the recommendation has been added to the appendix to include service
providers in any consultation process.

Comment. The American Council of the Blind (ACB) strongly supported the provision
that manufacturers include individuals with disabilities in market research, product design, and
testing. ACB felt that including individuals with disabilities is important but that manufacturers
should consult with representatives from a cross-section of disability groups, particularly
individuals whose disabilities affect hearing, vision, movement, manipulation, speech, and
interpretation of information. ACB believed that it was important to remind manufacturers that
they should work with a broad cross-section of disability groups and not just some.

Response. The Board agrees that a cross-section of disability groups should be included
in an evaluation of the accessibility and usability of telecommunications equipment and customer
premises equipment. However, since the provision is meant to be general, no change has been
made in the final rule.

Subpart C Requirements for Accessibility and Usability

Section 1193.31 Accessibility and usability

This section provides that, subject to section 1193.21, manufacturers must design, develop
and fabricate their products to meet the specific requirements of sections 1193.33 through
1193.43. As discussed under section 1193.21, some sections related to usability 
have been moved to this subpart to reflect that they are subject to the readily achievable
limitation. The title has been changed and the sections renumbered accordingly.

Comment. Several manufacturers suggested replacing "shall" with "should" throughout
and placing all the requirements in an appendix, not in the guidelines.

Response. As discussed previously, the guidelines are not merely advisory technical
assistance.

Section 1193.33 Information, documentation and training [1193.25 in the NPRM]

Paragraph (a) of this section requires that manufacturers provide access to information
and documentation. This information and documentation includes user guides, installation guides,
and product support communications, regarding both the product in general and the accessibility
features of the product. Information and documentation are what make a product usable by
anyone and, if such information is provided to the public at no charge, it must be provided to
people with disabilities at no additional charge. Alternate formats or alternate modes of this
information are also required to be available, upon request. Manufacturers are also required to
ensure usable customer support and technical support in the call centers and service centers,
which support their products.

Comment. The American Council of the Blind (ACB) commented that the provision as
proposed was unclear if alternate formats must be available at no additional charge. They also
added that the alternate format provided should be of the customer's choosing, that alternate
formats are not interchangeable, and that a manufacturer cannot determine which format is
appropriate for any particular customer.

Response. The Board agrees that the provision may have been unclear in the NPRM. The
final rule has been revised to clarify that additional charges may not be required for the description
of accessibility and compatibility features of the product, end-user product documentation, and
usable customer support and technical support. There is nothing prohibiting a manufacturer from
charging everyone for these services. However, people with disabilities may not be charged an
additional fee above the fee charged to everyone.

The specific alternate format or mode to be provided is that which is usable by the
customer. Obviously, it does no good to provide documentation in Braille to someone who does
not read it. While the user's preference is first priority, manufacturers are not expected to stock
copies of all materials in all possible alternate formats and may negotiate with users to supply
information in other formats. For example, Braille is extremely bulky and can only be read by a
minority of individuals who are blind. Audio cassettes are usable by more people but are difficult
for users to find a specific section or to skip from one section to the next. Documentation
provided on disk in ASCII format can often be accessed by computers with appropriate software,
but is worthless if the information sought is how to set up the computer in the first place. Of
course, if instructions are provided by videotape, appropriate video description would be needed
for persons who are blind and captions would be needed for persons who are deaf or hard of
hearing.

Comment. Some commenters said customer support lines should be made accessible to
people with hearing loss. Specifically, they pointed out that automated voice response systems go
too fast, are not clear and do not allow for repeats making them inaccessible for most people with
hearing loss. They recommended that menus should be set up to allow someone to escape early
on by dialing a standard number such as "0" to talk to a person.

Response. Providing a quick means to "opt out" of a voice mail menu system is a useful
feature to make such systems more usable by people who are hard of hearing. In addition,
ensuring usable customer support may mean providing a TTY number, since the current
automated voice response systems cannot be used by individuals who are deaf either. Such
systems cannot be accessed by TTY relay services since there is generally insufficient time for the
operator to type the choices and the deaf caller must wait until the end before responding. Also,
if such menu systems require quick responses, they may not be usable by persons with other
disabilities. An appendix note has been added recommending that automated voice response
systems should be set up to allow someone to escape early on. The appendix also provides
guidance on how to provide information in alternate formats and modes.

Paragraph (b) requires manufacturers to include in general product information the name
and contact means for obtaining the information required by paragraph (a).

Comment. The NPRM specified a telephone number but some commenters pointed out
that e-mail and Internet methods might be equally valid methods of contacting a manufacturer for
information.

Response. More and more companies have access to e-mail but all companies do not. 
The final rule has generalized this requirement to allow for different ways other than just a
telephone number to contact a manufacturer. However, a phone number is the preferred method
of contact since many more people have telephones than have access to e-mail or the Internet.
Additional ways of contacting a manufacturer are encouraged but are not required. The name of
the contact point can be an office of the manufacturer rather than an individual.

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

Comment. Several manufacturers claimed the guidelines contemplate costly training of
manufacturers' employees. Several comments pointed out that the NPRM applied the readily
achievable limitation only to the provisions of Subparts C and D but not to the other requirements
of this rule.

Response. The key to usability is information and the manufacturer's employees must
know how to provide it in an effective manner. This is especially true for good technical support,
if persons with disabilities are to receive adequate information on how to use the new accessibility
features of telecommunications equipment and customer premises equipment. The guidelines,
however, do not require a specific training program, only that certain factors be considered and
incorporated to the extent deemed appropriate by a given manufacturer.

Obviously, not every employee needs training in all factors. Designers and developers
need to know about barriers and solutions. Technical support and sales personnel need to know
how to communicate with individuals with disabilities and what common peripheral devices may
be compatible with the manufacturer's products. Other employees may need a combination of
this training. No specific program is required and the manufacturer is free to address the needs in
whatever way it sees fit, as long as effective information is provided.

The Board agrees that the statute applies the readily achievable limitation to usability as
well as accessibility and compatibility. As noted in the discussion in section 1193.21 above, the
title of this section has been changed and the proposed section has been moved to Subpart C and
renumbered accordingly.

Section 1193.35 Redundancy and Selectability [1193.33 in the NPRM]

This section proposed that products incorporate multiple modes for input and output
functions and that the user be able to select the desired mode.

Comment. Manufacturers objected to this provision on the basis that it added unnecessary
and potentially unwanted functions to a product which could affect its marketability and even
result in a "fundamental alteration" of the product. It would also, in their view, cause the product
to be too complicated.

Response. Although this provision was supported by persons with disabilities, it may run
contrary to section 1193.41 (i), which intends to make products accessible to persons with limited
cognitive skills. As a result, the provision is being reserved at this time, with a recommendation
for redundancy and selectability placed in the appendix. The Board intends to consider this
provision further and highlight it for evaluation in its market monitoring report. If the Board's
market monitoring report shows that redundancy and selectability can be provided without
unnecessary complexity, it will re-evaluate the "reserved" status of this provision.

Section 1193.37 Information pass-through [1193.27 in the NPRM]

This section requires telecommunications equipment and customer premises equipment to
pass through codes, translation protocols, formats or other information necessary to provide
telecommunications in an accessible format.

Comment. Most manufacturers pointed out that the provision as proposed could require
manufacturers to anticipate any possible code or protocol another party might devise and to pass
it through. Moreover, some technologies operate through "compression" of one sort or another
and cannot be turned on or off, as suggested by the NPRM preamble. In addition, manufacturers
objected to the one-sided nature of the requirement and wanted manufacturers of peripheral
devices and specialized customer premises equipment to be held accountable, as well. Finally,
CEMA objected to the example of closed captioning cited in the NPRM as implying that
televisions were covered by the guidelines.

Response. The provision in the final rule has been modified by language suggested by the
Trace Center to specify that the information to be passed through must be standardized and non-proprietary. Also, this provision is subject to the readily achievable criteria so that the obligation
is not absolute.

The Board agrees that manufacturers of other types of equipment need to be cognizant of
the capabilities of telecommunications equipment and customer premises equipment, as was
strongly recommended by the TAAC. However, the statute places the responsibility for
compatibility on the telecommunications equipment and customer premises equipment
manufacturer and neither the Telecommunications Act nor any other statute gives the Board
authority to regulate manufacturers of peripheral devices. Specialized customer premises
equipment, on the other hand, is regarded as a subset of customer premises equipment and,
therefore, subject to these guidelines.

Finally, the example of closed captions cited in the NPRM was merely to illustrate the
principle of information pass-through. Closed captioning is covered by other rules and
regulations issued by the FCC and is not a subject of this proceeding.

Section 1193.39 Prohibited reduction of accessibility, usability and compatibility [1193.29 in the
NPRM]

This section 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.

Comment. This provision was uniformly supported by disability groups, many of whom
cited examples of an accessible feature or design which was later defeated by an alteration. 
Manufacturers, on the other hand, uniformly objected to it. Several pointed out that it was not a
part of the TAAC recommendations and that it unnecessarily restricted design and innovation. 
For example, it seemed to prevent a manufacturer from even discontinuing an obsolete product if
it had an accessibility feature unless the same feature were incorporated in its replacement. This
was unreasonable, they claimed, because a newer technology might be better and more efficient
but it might not be readily achievable to incorporate the same accessibility feature. Products are
discontinued from time to time because they do not sell, but this provision as proposed may have
required any product with an accessibility feature to be continued in perpetuity.

Response. Providing that no change shall be undertaken which decreases or has the effect
of decreasing accessibility is a common principle in disability access codes and standards and was
borrowed from both the ADA Accessibility Guidelines (ADAAG) and the Uniform Federal
Accessibility Standards (UFAS). Both of these prohibit alterations which reduce or have the
effect of reducing accessibility below the requirements for new construction. Those provisions
were intended to apply to alterations to buildings and facilities which have a relatively static base. 
However, where technology is constantly changing, the principle in this rule, which is analogous
to the alterations provisions of ADAAG and UFAS, may need adjusting. TIA suggested adding
language that would refer to the "net" accessibility, usability and compatibility of products. As
previously discussed, the statute does not require that a new product be both accessible and
compatible, and establishes accessibility as the first priority. Since an alteration never establishes
a requirement which is greater than for new construction, the same concept holds true for section
1193.39. For example, it might not be readily achievable to provide