F
Access to Telecommunications Technology by Americans with Disabilities: Key Laws and Policies

Karen Peltz Strauss*

INTRODUCTION

The earliest federal disability laws enacted in the United States had little to do with ensuring access by people with disabilities to telecommunications technologies. These statutes placed far greater emphasis on providing access to the physical world than to the virtual world of telephone networks. For example, the Architectural Barriers Act of 1968 required federal buildings and facilities to be accessible to people with disabilities,1 while the Rehabilitation Act of 1973 prohibited discrimination on the basis of disability in programs and activities that received federal funds.2 The latter statute requires reasonable accommodations for qualified people with disabilities in federal employment (Section 501)3; by contractors who do business with the federal government (Section 503)4; and by federally assisted programs and activities, such as public schools, colleges and universities, police and fire departments, libraries, prisons, mass transit systems, and museums (Section 504).5 These sections have been interpreted to require the auxiliary

*

Principal, KPS Consulting.

1

P.L. 90-480, 82 Stat. 718 (1968), codified at 42 U.S.C. §4151 et seq.

2

P.L. 93-112, 87 Stat 390 (1973), codified at 29 U.S.C. §791 et seq.

3

29 U.S.C. §791. See also 29 C.F.R. §1614.

4

29 U.S.C. §793. See also 41 C.F.R. Part 60-741.

5

29 U.S.C. §794. Each agency has its own rules governing the programs and activities funded or administered by that agency. The U.S. Department of Justice has guidelines to help implement and oversee compliance with this section. See 28 C.F.R. §§42.503; 42.511.



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The Future of Disability in America F Access to Telecommunications Technology by Americans with Disabilities: Key Laws and Policies Karen Peltz Strauss* INTRODUCTION The earliest federal disability laws enacted in the United States had little to do with ensuring access by people with disabilities to telecommunications technologies. These statutes placed far greater emphasis on providing access to the physical world than to the virtual world of telephone networks. For example, the Architectural Barriers Act of 1968 required federal buildings and facilities to be accessible to people with disabilities,1 while the Rehabilitation Act of 1973 prohibited discrimination on the basis of disability in programs and activities that received federal funds.2 The latter statute requires reasonable accommodations for qualified people with disabilities in federal employment (Section 501)3; by contractors who do business with the federal government (Section 503)4; and by federally assisted programs and activities, such as public schools, colleges and universities, police and fire departments, libraries, prisons, mass transit systems, and museums (Section 504).5 These sections have been interpreted to require the auxiliary * Principal, KPS Consulting. 1 P.L. 90-480, 82 Stat. 718 (1968), codified at 42 U.S.C. §4151 et seq. 2 P.L. 93-112, 87 Stat 390 (1973), codified at 29 U.S.C. §791 et seq. 3 29 U.S.C. §791. See also 29 C.F.R. §1614. 4 29 U.S.C. §793. See also 41 C.F.R. Part 60-741. 5 29 U.S.C. §794. Each agency has its own rules governing the programs and activities funded or administered by that agency. The U.S. Department of Justice has guidelines to help implement and oversee compliance with this section. See 28 C.F.R. §§42.503; 42.511.

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The Future of Disability in America aids and services needed to ensure effective communication accommodations for people with disabilities, unless doing so would impose an undue hardship (significant difficulty or expense) on the operation of the covered entity.6 Ways to achieve access include, but are not limited to, the use of assistive listening systems, hearing aid compatible (HAC) phones, sign language interpreters, amplifiers, captioning, television decoders, screen readers, and materials in braille. Although a by-product of the Rehabilitation Act was the provision of some telephone access, the first real efforts to secure equal access to telecommunications services actually took place at the state level, through grassroots efforts to reduce telephone rates for teletypewriter (TTY) users.7 At the time, all TTYs (also known as teletypewriters, text telephones, TDDs, or TTs) transmitted at a very slow speed of 60 words per minute. This paled in comparison to the 150 to 180 words per minute at which voice conversations were transmitted, resulting in large disparities between the costs of long-distance calls placed by TTY users and those placed by individuals who used conventional telephones. To compensate for the greater amount of time and toll charges required to complete a TTY call, local advocates launched efforts to secure service discounts from their state public service commissions. The first states to respond were New York, which approved a 25 percent discount for TTY toll charges in July 1977,8 and Connecticut, which authorized a 75 percent reduction in TTY toll charges in December 1977.9 By the end of the mid-1980s, all but three of the states offered such toll reductions.10 In the late 1970s and throughout the 1980s, disability advocates also lobbied their state legislatures, regulatory commissions, and local telephone 6 To determine whether an undue hardship exists, the agency balances the cost and type of the accommodation against the budget, size, and nature of the agency. As noted below, this is the same test used to determine whether an access feature will result in an undue burden under the Americans with Disabilities Act or is readily achievable under Section 255 of the Communications Act. 7 Karen Peltz Strauss, A New Civil Right: Telecommunications Equality for Deaf and Hard of Hearing Americans (Washington D.C.: Gallaudet University Press), 2006: 16. 8 New York Public Service Commission Order 27205 (July 6, 1977). 9 Connecticut Public Utilities Control Authority, Decision in Dkt. No. 77-0526, Application of Southern New England Telephone Company, and No. 77-0520, Petition of the Connecticut Office of Consumer Counsel Regarding Tariffs of the Southern New England Telephone Company Concerning Usage of Teletypewriter Units (December 16, 1977). 10 Karen Peltz Strauss, “Television, Telephones, and TDDs … Access Is the Issue!” Gallaudet Today (Spring 1985): 17, 20. AT&T filed a federal tariff requesting reduction of all interstate TTY rates on August 21, 1981. See W. E. Albert, AT&T Administrator of Rates and Tariffs, letter to Secretary of the Federal Communications Commission, Transmittal 13822, August 21, 1981, referencing Tariff 263. This set the trend for AT&T’s state affiliates, some of which volunteered to reduce their rates (e.g., Illinois and Massachusetts) and others of which were directed to do so by their state commissions (e.g., Arizona and Maine).

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The Future of Disability in America companies for affordable specialized customer premises equipment (SCPE), such as TTYs, amplifiers, light signalers, and artificial larynxes. Although conventional voice telephone users were able to lease telephones for only a few dollars a month, at the time, people with communication disabilities were forced to spend hundreds of dollars for their specialized equipment. In 1979, California and South Dakota became the first states to distribute free or low-cost TTYs to certified deaf and hard-of-hearing individuals.11 Over the next several years, other states followed suit, and by the close of the 1980s, specialized devices were being distributed to thousands of individuals with communication disabilities in about half the states.12 These state equipment distribution programs varied considerably both in their eligibility criteria and in their methods of distribution. Some states offered cost-free leases, others provided low-interest loans or vouchers for equipment, and still others granted outright ownership of the adaptive equipment. In many states, these programs were mandated by law; others were the product of voluntary efforts by local telephone companies. Most of the programs were supported by small surcharges on the telephone bills of the states’ telephone subscribers. It was not until 1982 that the U.S. Congress first responded to the telecommunications needs of people with disabilities at the federal level, when it enacted the Telecommunications for the Disabled Act (TDA).13 In that legislation, Congress relied on the Communications Act of 1934’s universal service obligation to declare telephone access by people with hearing loss to be a priority in our nation’s telecommunications policies. This obligation directs the Federal Communication Commission (FCC) to “make available, so far as possible to all the people of the United States … a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges.”14 Congress explained that the denial of telephone access to people with disabilities “would disserve the statutory goal of universal service [and] deprive many individuals of the opportunity to have gainful employment.”15 It further concluded that the “costs to society of such lost access, including impairment of the quality of life for disabled Americans, [would] far exceed [its] costs.”16 11 See e.g., Senate Bill 597, enacted as Chapter 1142, Statutes of 1979, and incorporated into California Pub. Util. Code §2881. The amount initially collected in California was 15 cents per subscriber; it was reduced to 3 cents after the collection of these charges created a surplus. 12 Peltz Strauss, A New Civil Right: 26-27, 50-51; National Center for Law and the Deaf, “Summary of State TDD Distribution Programs and/or Dual Party Relay Programs” (March 1987, January 1988 editions), unpublished. 13 P.L. 97-410, 94 Stat. 2043 (1982) codified at 47 U.S.C. §610, as amended (1988). 14 47 U.S.C. §151. 15 H. Rep. No. 888, 97th Cong., 2d Sess. 4 (1982). 16 Id.

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The Future of Disability in America The TDA set the stage for a string of federal telecommunications laws requiring telephone and television access, many of which were similarly based on the FCC’s obligation to provide universal service to the general public.17 Through passage of the Hearing Aid Compatibility Act of 1988,18 the Telecommunications Accessibility Enhancement Act,19 Title IV of the Americans with Disabilities Act (ADA),20 the Television Decoder Circuitry Act,21 Sections 255 and 305 of the Telecommunications Act,22 and Section 508 of the Rehabilitation Act,23 Congress has consistently mandated that individuals with disabilities be included in the benefits of modern telecommunications, so that they can fully participate in employment, education, recreation, and other aspects of everyday life. These statutes have created mandates for hearing aid compatibility, telecommunications relay services, closed captioning, and other accessible telecommunications products and services in an effort to promote the independence, privacy, and productivity of the individuals for whom they have been enacted. Federal mandates for accessibility have been a response to the failure of market forces to bring about much needed disability access features in telecommunications products and services. The reasons that markets have not worked well are several. They include the smaller market size of each disability group, the generally lower incomes of these groups, and the frequent need for people with disabilities to obtain expensive assistive technologies to get mainstream technologies to meet their needs.24 Where market forces have failed, Congress has stepped in with regulatory mandates for telecommunications access, even where, in the same breath, it has deregulated other aspects of the telecommunications industry. Congress has assigned the FCC the primary responsibility for implementing these various statutes, although collaborative consumer-industry forums have also played a significant role in helping to shape the nation’s telecommunications policies. For example, the Telecommunications Access Advisory Committee (a federal advisory committee made up of telecommunications manufacturers and service providers, disability organizations, software developers, and assistive technology companies) worked with the Architectural Transportation Barriers Compliance Board (also known as the Access Board) from June through December 1996 to develop guidelines that formed the basis for the FCC’s guidelines on Section 255, which re- 17 Peltz Strauss, A New Civil Right: 34-35. 18 P.L. No. 100-394, 102 Stat. 976 (1988), codified at 47 U.S.C. §610. 19 P.L. No. 100-542, 102 Stat. 2721(1988), codified at 40 U.S.C. §762. 20 P.L. No. 101-336, 104 Stat. 327 (1990), codified at 47 U.S.C. §225. 21 P. L. No. 101-431, 104 Stat. 960 (1990), codified at 47 U.S.C. §§303(u); 330(b). 22 P.L. No. 104-104, 110 Stat. 56 (1996), codified at 47 U.S.C. §§255; 713. 23 P.L. 105-220, Title IV, §508(b), 112 Stat. 936 (1998), codified at 29 U.S.C. §794d. 24 Peltz Strauss, A New Civil Right: 4.

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The Future of Disability in America quires all telecommunications products and services to be accessible. A few years later, the Electronic and Information Technology Advisory Committee, again operating under the aegis of the Access Board, reached consensus on guidelines for electronic and information technology access by federal agencies under Section 508. Similarly, an FCC-appointed negotiated rulemaking committee in 1995 produced recommendations for making wireline phones in most workplaces HAC under the TDA. In addition to these regulatory activities, nongovernmental, standards-setting organizations have been called upon to define technical compliance with telecommunications access laws. The Electronics Industry Association (EIA) worked with captioning providers and television manufacturers to develop standards for the display of closed captions for both analog and digital television sets.25 Similarly, since the mid-1990s, the Alliance for Telecommunications Industry Solutions has worked with telecommunications manufacturers and carriers and disability advocates to resolve technical issues associated with providing hearing aid and TTY access to wireless and cordless phone technologies. Finally, the Web Accessibility Initiative of the World Wide Web Consortium continues to coordinate discussion among disability and industry representatives, researchers, and governmental entities on solutions for making the Internet accessible to individuals with disabilities.26 FEDERAL LAWS Telecommunications for the Disabled Act of 1982 Historical Background and Legislation As noted above, the first federal law to specifically address telecommunications access was the TDA of 1982. This legislation was prompted by two major events that raised concerns about the future of telecommunications access for people with disabilities. The first was a decision by AT&T and other major telephone manufacturers to alter the internal composition of their telephones; the second was the divestiture of AT&T. 25 EIA later changed its name to the Electronics Industry Alliance. The analog standard is contained at Television Receiver Performance Specification for Basic Closed Captioned Services, Draft Revision 6.0, EIA Standards Proposal, EIA/CEG Television Receiver Committee (R-4) (December 7, 1990), and was the basis for the FCC’s analog captioning technical standards at 47 C.F.R. §15.119. The digital standard is contained at EIA-708-A, “Digital Television Closed Captioning” (November 23, 1998), revised at EIA-708-B, “Digital Television Closed Captioning” (December 1999), and was the basis for the FCC’s digital captioning technical standards at 47 C.F.R. §15.122. 26 See http://www.w3.org/WAI.

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The Future of Disability in America Hearing aid compatibility There are two primary ways for a hearing aid to couple with telephones. One is through “acoustic coupling,” which allows the hearing aid’s microphones to pick up and amplify sounds from the phone’s receiver. Because this method frequently does not create a tight seal between the hearing aid and the phone, individuals who use this coupling method can often hear distracting background noise and feedback that results when the hearing aid output is reflected off the handset and reamplified by the microphone. The second method, inductive coupling, allows the hearing aid user to turn off the microphone to eliminate that noise and feedback. Instead, the user’s hearing aid has a small, coiled wire called a telecoil, or “T-coil,” that receives the signal (i.e., telephone conversation) through a magnetic field in the telephone’s handset. In the 1960s, most telephones in America were equipped with receivers that had sufficient magnetic field strength to couple with T-coil-equipped hearing aids. In the 1970s, however, AT&T and GTE began increasing their reliance on lighter telephone handsets that used fewer expensive metallic materials and were more tamper resistant at payphones but that did not have magnetic fields strong enough to couple with hearing aid telecoils. As a consequence, hearing aid users with moderate to severe hearing loss began finding it harder to locate telephones that could inductively couple with their hearing aids. Efforts by people with disabilities to persuade the companies to switch back to the older HAC handsets achieved only moderate success.27 Although the companies did eventually agree to install the new HAC receivers in all future payphones, to retrofit older payphone models, and to provide HAC telephones to individuals upon request, they continued producing the lighter, incompatible receivers and installing these in residences and businesses throughout the country. When hearing aid users continued to complain about the many places where they could not access telephones, the companies created a portable telephone adapter that could convert the acoustic signals from any phone into magnetic signals to achieve inductive coupling. However, this solution was rejected by the hearing aid user community as being stigmatizing, costly, and cumbersome. Many of the affected individuals, especially senior citizens with limited dexterity, found it difficult to create the tight seal needed each time that the adapter had to be strapped onto the handset’s receiver. More importantly, these consumers did not want to be treated differently from the general public; they insisted that it was their right to 27 These efforts were largely spearheaded by a maverick group of senior citizens who called themselves the Organization for Use of the Telephone (OUT).

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The Future of Disability in America have all telephones universally compatible through inductive coupling with hearing aids.28 During the 1970s, as the number of telephones without inductive coupling proliferated throughout government agencies and private businesses, hearing aid advocates went to Congress to secure legislation that would require hearing aid compatibility on all telephones.29 Ultimately, they were only partially successful. Rather than require universal compatibility, the TDA of 1982 created a new category of telephones—“essential telephones”—which would have to provide internal compatibility with hearing aids.30 Included in this category were all phones that were coin operated, phones frequently needed for use by persons using hearing aids, and phones provided for emergency use. As a partial compromise for not requiring hearing aid compatibility on all phones, Congress also required all telephone packages to be conspicuously labeled so that consumers could easily locate HAC phones.31 Subsidies for SCPE In addition to addressing the HAC issue, a second and equally important matter addressed in the TDA concerned the availability and affordability of the SCPE needed by people with disabilities to access the telephone network. This stemmed from concerns about a 1980 FCC ruling called the “Second Computer Inquiry,” or “Computer II,” which required local telephone companies to separate the provision of their telephone equipment from their regulated services to prevent the costs of producing telephone products from being subsidized with revenues from telephone services.32 Although the goal of this ruling was to spur greater competition by new entrants into the telephone business, the new arrangement threatened to force people with disabilities to pay the full and sometimes exorbitant costs of SCPE. To prevent this from occurring, the TDA gave states the authority to allow their telephone companies to con- 28 See, e.g., Statement of David Saks, OUT, Hearings on S. 604 and S. 2355 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 97th Cong., 2d Sess. (May 6, 1982): 27. 29 During this period, several bills were introduced, although all failed to achieve passage. See, e.g., H.R. 5022, 96th Cong., 2d Sess. (1979); S. 2642, 96th Cong., 2d Sess. (1979); H.R. 375, 97th Cong, 1st Sess. (1981). 30 P.L. 97-410, 94 Stat. 2043 (1982), codified at 47 U.S.C. §610, as amended (1988). 31 47 U.S.C. §610(d). The House report explained that these labels had to explain “in a clear and understandable manner, whether and how persons with impaired hearing may use such equipment effectively.” H. Rep. No. 888, 97th Cong., 2d Sess. 12 (1982). 32 Second Computer Inquiry, 77 FCC 2d 384 (May 2, 1980), recon., 84 FCC 2d 50 (December 30, 1980), further recon., 88 FCC 2d 512 (1981), aff’d sub nom., Computer and Communications Industry Assn v. FCC, 693 F. 2d 198 (D.C. Cir. 1982), cert. den’d, 461 U.S. 938 (1983), aff’d on second further recon., FCC 84-190 (May 4, 1984), codified at 47 C.F.R. 64.702.

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The Future of Disability in America tinue subsidizing the costs of providing SCPE with the rates received from their general subscribers.33 Congress explained that while deregulation of telecommunications equipment might ensure a competitive market for most ratepayers, this simply would not work for people with disabilities: For most ratepayers, deregulation may indeed ensure a competitive market in telephone sets and eliminate subsidies for such sets from local rates. For the disabled, however, the ban on cross-subsidization could mean unregulated price increases on the costly devices that are necessary for them to have access to the telephone network. Disabled persons who are unable to afford the full costs of this equipment will lose access to telephone service.”34 FCC Regulations FCC rules implementing the hearing aid provisions of the TDA established the magnetic field strength needed to achieve internal inductive coupling with telephones, set forth labeling requirements, and further defined which telephones were deemed to be “essential” under the TDA.35 These phones fell into the following categories: Telephones provided for emergency use, including telephones in isolated locations (e.g., tunnels and elevators); telephones in confined settings (e.g., hospital rooms) needed to notify others about life-threatening or emergency situations, unless the individual had another alternative; and telephones installed with the explicit purpose of being able to contact public authorities in an emergency (e.g., call boxes that connected directly to emergency personnel); Telephones frequently needed by people with hearing loss, including telephones at the employee’s workstation when needed to fulfill regular work duties; telephones in public buildings and businesses; credit card telephones; telephones in nursing homes, hospitals, and prisons where individuals could be confined; and telephones in at least 10 percent of rooms in hotels and motels; and Coin-operated telephones, including phones on public property or semipublic locations (e.g., drugstores, gas stations, and private clubs). After passage of the TDA, the FCC modified its Computer II rule, clear- 33 47 U.S.C. §610(g). 34 H. Rep. No. 888 at 3-4. 35 47 C.F.R. §68.316 contains the technical specifications for hearing aid compatibility, and 47 C.F.R. §68.112 defines essential telephones. This labeling requirement has since been removed from the Code of Federal Regulations because all newly manufactured phones are required to be HAC.

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The Future of Disability in America ing the way for continued cross-subsidization of the costs of SCPE, and for states to develop programs for the distribution of specialized equipment. The new rule, in effect to this day, states: Any communications common carrier may provide, under tariff, customer premises equipment (other than hearing aid compatible telephones as defined in part 68 of this chapter), needed by persons with hearing, speech, vision or mobility disabilities. Such equipment may be provided to persons with those disabilities or to associations or institutions that require such equipment regularly to communicate with persons with disabilities. Examples of such equipment include, but are not limited to, artificial larynxes, bone conductor receivers and TTs.36 Hearing Aid Compatibility Act of 1988 Historical Background and Legislation During the years following passage of the TDA, the number of domestic and foreign manufacturers who began selling inexpensive and incompatible telephones in the United States significantly increased. Hearing aid users grew increasingly frustrated with the limited scope of the TDA’s provisions as they watched millions of inaccessible handsets get installed in “nonessential” locations throughout the country. They returned to Congress to renew their attempts to secure passage of a HAC law that would enable them to use any telephone, regardless of where it was located. Although it took an additional 6 years, Congress eventually responded with the Hearing Aid Compatibility Act of 1988, which required all wireline telephones manufactured or imported for use in the United States after August 16, 1989, to have an internal means of providing hearing aid compatibility.37 Manufacturers of cordless telephones were given an additional 3 years to comply, though wireless phones were provisionally exempt pending further FCC review. Again, Congress relied on the FCC’s universal service mandate to conclude that “advances in technology have made communication possible and it is time that hearing impaired persons are included in ‘all the people:’”38 No matter how broadly the FCC defines “essential,” it is impossible to specify in advance all the telephones that a hearing aid user might need. Traveling salespeople, repairmen and women, doctors, and others who make house calls or work outside of an office, for instance, often use telephones that would not be classified as “essential.”… Similarly, it is impos- 36 47 C.F.R. §64.606(a). 37 P.L. 100-394, 102 Stat. 976 (1988), codified at 47 U.S.C. §610. 38 H. Rep. No. 674, 100th Cong., 2d Sess. 6 (1988), referring to 47 U.S.C. §151.

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The Future of Disability in America sible to predict beforehand when an emergency situation may arise…. In short, the situations in which a hearing aid user would need access to a telephone are innumerable.39 FCC Regulations Although advocates were successful in finally securing a universal HAC law, a significant gap between the 1982 and the 1988 HAC statutes left consumers without the access that advocates had sought. Specifically, between the time that the 1982 Act was passed and the time that the 1988 Act went into effect, a huge number of incompatible phones were put into circulation, which left millions of hearing aid users with moderate to severe hearing loss without any means of using the telephone in hospitals, hotels, and many places of business. Hearing aid advocates spent the next several years trying to convince the FCC to expand its definition of HAC-required “essential telephone” locations to close this gap. This culminated in an FCC-led negotiated rulemaking that successfully produced a consensus among disability advocates, businesses, telephone manufacturers, and governmental agencies for a new schedule of deadlines that expanded the scope of existing HAC phones in workplaces, hotels and motels, and health care facilities.40 In addition to inductive coupling, the new regulations (issued in 1996) created a new requirement for volume control on all wireline and cordless telephones manufactured in or imported into the United States after January 1, 2000.41 Authority for this novel mandate was found in statements, contained in the legislative history of both the 1982 and 1988 Acts, confirming Congress’s view that inductive coupling was only one of many ways of achieving hearing aid compatibility (volume control being another), as well as directives by Congress in both statutes encouraging the use of new technologies to achieve access.42 39 S. Rep. No. 391, 100th Cong., 2d Sess. 3 (1988), citing to Testimony of Karen Peltz Strauss, Gallaudet University, before the Communications Subcommittee of the Senate Committee on Commerce, Science, and Transportation. 40 Access to Telecommunications Equipment and Services by Persons with Disabilities, Report and Order, CC Dkt. No. 87-124, FCC 96-285, 11 FCC Rcd 8249 (July 3, 1996), amending 47 C.F.R. §68.112. See also 47 C.F.R. §68.4, containing the general requirements for handsets to be HAC under the 1988 Act. 41 47 C.F.R. §68.6. The technical standards for volume control are contained at 47 C.F.R. §68.317. The FCC rejected arguments that competitive market forces would provide sufficient quantities of amplified telephones. 42 For example, a finding in the 1988 Act “anticipated improvements in both telephone and hearing aid technologies.” P.L. 100-394 §2. In addition, the House report stated that this Act did “not require induction as the sole method of telephone/hearing aid coupling. It is flexible and allows for other methods of compatibility.” H. Rep. No. 674 at 12.

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The Future of Disability in America Wireless Telephones Just as the struggle to obtain HAC wireline phones was reaching its final resolution, Americans began discovering the benefits of mobile telephones. The earliest wireless phones introduced in the United States relied on analog transmissions and did not pose a problem for hearing aid users. However, when digital wireless phones began to be deployed with increasing frequency in about the mid-1990s, it was discovered that these created electromagnetic interference that made their use with T-coil-equipped hearing aids very difficult. Digital wireless technologies produce pulsing signals as they send messages, which, when picked up by hearing aids, can cause buzzing or other high-pitched noises. Because the 1988 Act had exempted all wireless handsets from the hearing aid compatibility mandates, manufacturers were not engaging in efforts to eliminate this type of interference. Initial attempts to convince the wireless phone industry to resolve this problem produced few or no results, and in 1995, hearing aid advocates filed a petition with the FCC to lift the HAC exemption for these phones. Although the FCC expressed serious concerns about the new accessibility barrier, the agency feared taking any regulatory action that would delay the rollout of wireless technologies in the United States. Instead, the FCC merely directed the wireless industry to work with consumers to resolve the new hearing aid compatibility problem on its own. But negotiations between the wireless industry and consumer advocates over the next 5 years failed to achieve a consensus on a solution for the mobile handset issue, and by the turn of the century, the precipitous decline in the availability of analog phones threatened to eliminate all wireless telephone access for these hearing aid wearers. By now, not only was more than 40 percent of the American public reliant on digital wireless telephone technologies, but these technologies promised far greater sound quality, versatility, and pricing than their analog predecessors. In 2000, consumers went back to the FCC to renew their request for a wireless hearing aid compatibility requirement. Again, years went by without FCC action. Finally, during the summer of 2002, the FCC announced its intent to eliminate its “analog rule,” a rule originally put into place in the early 1980s requiring all wireless carriers to provide analog service.43 The FCC determined that the rule was no longer needed to foster competition and was now impeding innovation by forcing wireless carriers to operate in both the analog and digital modes. The FCC directed the wireless industry to gradually phase out these tech- 43 Year 2000 Biennial Regulatory Review—Amendment of Part 22 of the Commission’s Rules to Modify or Eliminate Outdated Rules Affecting the Cellular Radiotelephone Service and other Commercial Mobile Radio Services, Report and Order, WT Dkt No. 01-108, 17 FCC Rcd 18401 (September 24, 2002), Order on Reconsideration, FCC 04-22 (February 12, 2004).

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The Future of Disability in America The Access Board’s standards also lay out various requirements for video and multimedia information to be captioned and video described, and for certain televisions, tuners, and computer equipment with television receivers to have built-in decoders for the receipt and display of closed captions and secondary audio program circuitry for the playback of video descriptions (narrative verbal descriptions inserted into the natural pauses of a video program to describe visual events that are not part of a program’s audio track).104 In addition, under the Section 508 guidelines, software applications and operating systems must be accessible,105 as must information and documentation about the technologies used by the government, including user manuals, installation guides, and customer and technical support. Television Decoder Circuitry Act Historical Background and Legislation Television programs began adding closed captioning to their programs in March 1980 when three networks—NBC, ABC, and PBS—entered into an agreement with the National Captioning Institute to provide 16 to 20 hours of captioned programming weekly. The agreement also provided for Sears to produce and sell stand-alone television decoders that would be capable of receiving and displaying closed captions.106 Over the next decade, the number of programs containing captions jumped to about 200 programs per week, largely because of the millions of dollars in grants for closed captioning distributed by the U.S. Department of Education.107 Despite the growth of this service, by the close of the decade, closed captioning faced a crisis. Less than 200,000 decoders had been purchased, far below the initial projections of 100,000 a year. With so small a viewing audience, television networks began questioning the wisdom of continuing to invest in this service. The discrepancy between the possible market for decoders, which was 104 36 C.F.R. §1194.24. 105 36 C.F.R. §1194.21. In addition, products that transmit information or communication, shall “pass through cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide the information or communication in a usable format. Technologies which use encoding, signal compression, format transformation, or similar techniques shall not remove information needed for access or shall restore it upon delivery.” 36 C.F.R. §1194.23(j). 106 Sears offered two decoders; one was an “adapter unit” for $249 that connected to a television set, and the second was an “integrated TV receiver” that was built into a 19-inch color TV set and that sold for $500. 107 “General Information About the Closed-Captioning Services,” nci for your information [sic] (July 1987):3. These grants accounted for approximately one-third of the cost of providing captioning; the remaining two-thirds of the costs were picked up by television networks, producers, programmers, and advertisers.

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The Future of Disability in America estimated to be approximately 100 million people, and the number of these devices that had been purchased was attributed to a number of factors.108 First, many people with hearing loss were simply unaware of the existence of decoders or where to purchase them. In addition, the complications involved in hooking up these devices to a television set, video cassette recorder, and cable box discouraged some consumers, especially senior citizens, from purchasing decoders. But the primary reason cited by consumers for not purchasing decoders was simply that there were not enough closed-captioned television programs to justify their cost. Although by that year the number of hours of programming with closed captioning totaled 390 per week, including nearly all prime-time programs on the major networks, a mere 90 of 1,400 local newscasts were closed captioned, and most daytime and basic cable programming was not captioned at all.109 The proponents of captioning believed that increasing the number of programs with captions would expand decoder purchases and audiences who used captioning, but an attempt to incorporate a requirement for television captioning in the ADA, which was then under consideration by the Congress, was rejected outright. Powerful lobbying by the motion picture and television industries made clear that the inclusion of such a mandate could kill the omnibus disability rights legislation. A report released by the Commission on Education of the Deaf suggested a different solution.110 It proposed that if all television sets were equipped internally with circuitry that decoded closed captions, the larger audiences that would be able to use this technology would create a strong incentive for the television industry to increase its captioned programming. More specifically, the new audiences would attract greater advertising revenues that could, in turn, help defray the costs of the networks’ captioning investments. It was this reasoning that prompted consumers to push for the passage of legislation that would require captioning circuitry to be built into all new television sets. Advocates achieved success with the passage of the Television Decoder Circuitry Act of 1990, which required all televisions manufactured or imported into the United States with screens 13 inches or larger to be capable of displaying closed captions.111 108 Many of these reasons were revealed in a survey conducted by the U.S. Department of Education in the spring of 1989. Renee Z. Sherman and Joel D. Sherman, Analysis of Demand for Decoders of Television Captioning for Deaf and Hearing-Impaired Children and Adults (Washington, D.C.: Pelavin Associates, June 1989). 109 See, generally, S. Rep. No. 393, 101st Cong., 2d Sess. 2 (1990). 110 Commission on Education of the Deaf, Frank Bowe, ed., Toward Equality: Education of the Deaf (Washington D.C.: Government Printing Office, 1988). 111 P.L. 101-431, 104 Stat. 960 (1990), codified at 47 U.S.C. §§303(u), 330(b). The statute became effective on July 1, 1993. For an overview of the history behind and intent of this legislation, see Sy DuBow, “The Television Decoder Circuitry Act—TV For All,” Temple Law Review 64, No. 2 (1991): 609; Peltz Strauss, A New Civil Right: 226-245.

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The Future of Disability in America FCC Regulations In December 1990, the FCC issued standards that defined the size, font, color, placement, and intelligibility of the captions received and displayed by decoder circuitry in analog television sets.112 Among other things, these required italicized or slanted standard characters, smooth scrolling of captions, upper- and lowercase letters, up to four lines of captions anywhere on the screen, a black background, and prominent labeling of captioning features with television receivers. A subsequent ruling by the FCC also made clear that when computers equipped with television circuitry are sold together with monitors that have viewable pictures measuring at least 13 inches, the computers must also be capable of receiving and displaying closed captions.113 In July 2000, the FCC updated its captioning specifications for digital television programming.114 The new guidelines give viewers several new options, including the ability to choose among three caption sizes (standard, large, and small captions), eight fonts, eight background and foreground colors (white, black, red, green, blue, yellow, magenta, and cyan), various levels of background opacity (transparent, translucent, solid, and flashing), five character edges (none, raised, depressed, uniform, or drop shadowed), and up to six captioning services.115 These standards apply to screens that measure 7.8 inches vertically, roughly the equivalent of a 13-inch diagonal analog screen. The mandates cover digital televisions that are sold with 112 Amendment of Part 15 of the Commission’s Rules to Implement the Provisions of the Television Decoder Circuitry Act of 1990, Report and Order, GEN Dkt. No. 91-1, FCC 91-119, 6 FCC Rcd 2419 (April 15, 1991), recon. granted in part, Memorandum Opinion and Order, 7 FCC Rcd 2279 (1992), codified at 47 C.F.R. §15.119. These performance and display standards are based on a report prepared by a task force of television set manufacturers, decoder circuitry manufacturers, and captioning agencies, working under the auspices of the Electronics Industries Association, later renamed the Electronics Industry Alliance. Television Receiver Performance Specification for Basic Closed Captioned Services, Draft Revision 6.0, EIA Standards Proposal, EIA/CEG Television Receiver Committee (R-4) (December 7, 1990). 113 Closed Captioning Requirements for Computer Systems Used as Television Receivers, FCC Public Notice, DA 95-581 (March 22, 1995), 60 Fed. Reg. 16055 (March 29, 1995). 114 Analog television pictures are comprised of 525 lines; line 21 is the last line of the television’s “vertical blanking interval” before the television picture begins and is where closed captions are inserted. Because there is no vertical blanking interval in digital TVs, engineers had to find a different way for captions to be added to programs. 115 Closed Captioning Requirements for Digital Television Receivers, Report and Order, ET Dkt. No. 99-254, MM Dkt. 95-176, FCC 00-259, 15 FCC Rcd 16788 (July 31, 2000), codified at 47 C.F.R. §15.122.

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The Future of Disability in America tuners, as well as all stand-alone digital television tuners and set-top boxes, whether or not these are sold with display screens over a certain size.116 Section 713 of the Communications Act of 1934: Closed-Captioning Mandates Historical Background and Legislation By the time that the Television Decoder Circuitry Act of 1990 became effective in July 1993, nearly 100 percent of all prime-time programming, children’s programming, and national news programs on NBC, CBS, ABC, and PBS and most prime-time programming on Fox was shown with captions.117 However, captioning on cable TV remained scarce, with approximately only 5 to 10 percent of all basic cable programs providing captioning. Concerned that the Decoder Act was not providing sufficient incentives for cable programmers to caption their programs, advocates returned to Congress. This time, they were successful in getting mandates for closed captioning of televised programming in Section 305 of the Telecommunications Act of 1996, which created a new Section 713 of the Communications Act. Section 713 requires video programming first published or exhibited after the effective date of the FCC’s regulations to be “fully accessible through the provision of closed captions.”118 The section also directs video programming providers or owners to “maximize the accessibility of video programming first published or exhibited prior to the effective date of such regulations through the provision of closed captions.”119 The statute allows the FCC to exempt certain programming from these requirements, where the provision of captioning is economically burdensome, is inconsistent with contracts in effect at the time that the 1996 Act was enacted, or would result in an undue burden for the video programming provider or program owner.120 A separate provision contained in Section 713, which directed the FCC to commence an inquiry on the provision of video descriptions, prompted 116 The FCC reasoned that separately purchased digital tuners would most likely be used with screens measuring at least 7.8 vertical inches and that the ability to control the size, color, and font of captions meant that viewers would be able to discern captions on small screens. Id. at ¶47. 117 “Closed Captioned Programming Currently Available,” Fact Sheet, The Caption Center (June 1993). 118 47 U.S.C. §713(b)(1). 119 47 U.S.C. §713(b)(2). 120 47 U.S.C. §713(d). The last exemption is granted only upon individual petitions filed with the FCC. The Act does not draw a distinction between the “economically burdensome” and “undue burden” standards, other than to provide that the former is used for categorical exemptions and the latter is used for exemptions upon request.

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The Future of Disability in America the agency to also promulgate, in 2000, regulations requiring video descriptions on certain broadcast and cable programming.121 However, these rules were struck down by the U.S. Court of Appeals for the D.C. Circuit in November 2002, after the television broadcast and motion picture industries challenged the Commission’s authority to require any video description on television.122 In recent years, various attempts have been made to restore these video description mandates through federal legislation. FCC Regulations FCC rules implementing the captioning mandates created an elaborate schedule of deadlines that initially required 25 percent of all new, nonexempt programs to be captioned by January 2000 and increased this amount by an additional 25 percent every 2 years until January 2006, when 100 percent of all programming was required to contain captioning.123 Thirty percent of older nonexempt programming, that is, programming first exhibited before the effective date of the FCC’s rules, also had to be captioned by 2003, with this amount capping at 75 percent by 2008. Requirements for new, nonexempt Spanish-language programming followed a different schedule: 450 hours of captioned programming by 2001, 900 hours by 2004, 1,350 hours by 2007, and 100 percent of all such programming by 2010. Nonexempt Spanish-language programming first shown before the effective date of the FCC’s rules had to provide captioning on 30 percent of its programs by 2005, with this amount increasing to 75 percent by 2012. The FCC’s captioning rules exempt all advertisements under 5 minutes, public service announcements under 10 minutes (unless they are federally funded or produced), programs shown between 2 a.m. and 6 a.m., locally produced instructional programming that is distributed to individual educational institutions, locally produced and distributed programs with limited repeat value (for example, parades and local school sports), nonvocal music, and programs in languages other than English or Spanish. In addition, captioning is not required for programming on new networks during their 121 47 U.S.C. §713(f). Video Description of Video Programming, Report and Order, MM Dkt. No. 99-339, FCC 00-258, 15 FCC Rcd 15230 (2000), amended in part at Memorandum Opinion and Order on Reconsideration, FCC 01-7, 16 FCC Rcd 1251 (2001). 122 Motion Picture Association of America, Inc., et al. v. Federal Communications Commission, et al., 309 F. 3d 796 (D.C. Cir. 2002) 123 Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Report and Order, MM Dkt. No. 95-176, FCC 97-279, 13 FCC Rcd 3272 (August 22, 1997), amended in Order on Reconsideration, MM Dkt. No. 95-176, FCC 98-236, 13 FCC Rcd 19973 (October 2, 1998), codified at 47 C.F.R. §79.1 et seq.

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The Future of Disability in America first 4 years of operations or by programming providers with annual gross revenues under $3 million per year. Moreover, all providers are permitted to cap their captioning spending to 2 percent of their annual gross revenues. All programs that have already been shown with captions and that are reexhibited on either the same channel or another channel must be shown with those captions intact unless the shows have been edited—whether or not the captioning schedules presented above have been met. Specific rules also exist for the provision of real-time captioning on newscasts. To save money, many local television stations caption their news with a method called the “electronic newsroom technique” (ENT). This technique converts the news scripts appearing over their teleprompters into live captions. However, precisely because it is prescripted, ENT often leaves out live information, including late-breaking stories, field interviews, and sports and weather updates. By contrast, real-time captions capture the entire audio track of a show’s live program because the captions are exhibited simultaneously with the programming content. Current FCC rules require real-time captioning only on news programs exhibited by (1) the four major national broadcast networks (CBS, ABC, NBC, and Fox), (2) television stations affiliated with these four major networks in the top 25 television markets, and (3) national nonbroadcast networks (for example, cable) serving at least 50 percent of all households subscribing to television services. All other stations are permitted to use ENT for their news broadcasts. In July 2004, concerns about a drop in captioning quality over recent years—largely caused by the proliferation of competitive captioning providers who may be compromising caption quality to win bids—prompted several national advocacy organizations representing people who are deaf and hard of hearing to submit a petition to the FCC requesting minimum standards of captioning quality, better enforcement of the existing captioning rules, and an expansion of the number of stations that must caption their local newscasts in real time.124 This petition remains pending. Emergency Captioning In addition to the FCC’s general captioning rules, in 2000, the Commission promulgated specific rules requiring visual and audio access to televised emergency programming.125 Unlike the captioning mandates, these 124 Petition for Rulemaking by Telecommunications for the Deaf, Inc., Consumer Advocacy Network, National Association of the Deaf, Self Help for Hard of Hearing People, Inc, and the Association of Late Deafened Adults, RM-11065 (July 23, 2004). 125 Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Accessibility of Emergency Programming, Second Report and Order, MM Dkt. No. 95-176, FCC 00-136, 15 FCC Rcd 6615 (April 14, 2000), codified at 47 C.F.R. §79.2.

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The Future of Disability in America rules apply to all video programming distributors, including broadcasters, cable operators, and satellite television services, without exception. They require the provision of visual information—in the form of open or closed captions or other visual methods, such as crawls or scrolls that appear on the screen—whenever emergency information is televised. Emergency information that is provided in the video portion of a regularly scheduled newscast or an unscheduled programming break must also be described visually in the program’s main audio track. If the emergency information is provided through a crawled or scrolled visual announcement during regular programming, an aural tone must be provided to alert people who have vision loss that there is an emergency and that they should turn to another source, such as a radio, for additional information. The emergency access rules apply to weather disasters, such as tornadoes, hurricanes, earthquakes, and heavy snows; fires; civil disorders, such as toxic gas leaks and power failures; school closings; and all other televised information pertaining to the protection of life, health, safety, or property. Accessible information must include not only details about the events themselves but also how to respond to those events, including information about evacuations; emergency routes; road closures; shelters; and ways to obtain food, medical, and other relief assistance. Finally, the rules prohibit emergency information and closed captions from blocking one other. Over the past 2 years, the failure of several television stations to comply with these rules prompted the FCC to assess monetary forfeitures against television stations ranging from $8,000 to $25,000.126 Emergency Alert System In addition to the mandates under Section 713 of the Communications Act described above, the FCC’s emergency alert system (EAS) regulations require all cable providers serving 5,000 or more subscribers to provide EAS messages in both audio and visual formats on all channels.127 While this provides an added layer of assurance that televised emergency information will be made accessible, these rules come into play only when EAS is triggered by the president of the United States to contact the viewing public during a national emergency or when local jurisdictions voluntarily use it 126 For example, Notices of Apparent Liability were brought on February 23, 2005, against Channel 51 of San Diego, Inc.; KGTV of McGraw-Hill Broadcasting Company; and KFMB-TV of Midwest Television. On May 25, 2005, Notices were brought against Fox Television Stations, Licensee of WTTG-TV; ACC Licensee Inc., Licensee of WJLA-TV; and NBC Telemundo. 127 47 C.F.R. §11.51. EAS is jointly administered by the FCC, the Federal Emergency Management Agency, and the National Oceanic and Atmospheric Administration’s National Weather Service.

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The Future of Disability in America for the dissemination of information about weather and other emergencies that pose a threat to life and property. In addition, the visual information required to be presented as part of an EAS message need not be as comprehensive as that which is required under the FCC’s televised emergency rules. These messages must contain information only about the originator, event, time period, and location of the EAS message and not all content that is provided aurally. Cable systems serving fewer than 5,000 customers have the choice of either providing an EAS audio and visual message on all of their channels or an audio EAS message and a flashing video alert on all channels, together with a full EAS message on one programmed channel. Cable providers that choose the flashing alert option must make sure that the alerts flash on the television screen simultaneously with and for the same duration as the full-length EAS message. Information about which channel will contain the full audio and video message must be provided to viewers through billing statements and other public service announcements. Individuals with Disabilities Education Act: Closed Captioning In October 1959, the Office of Education, Bureau of Education for the Handicapped, of the U.S. Department of Health, Education, and Welfare initiated the Captioned Films for the Deaf program. Over the next two decades, this program authorized the production, acquisition, and distribution of captioned documentary, theatrical, and educational films and media equipment to deaf schools, clubs, and organizations across the United States.128 In the 1970s and 1980s, it was the U.S. Department of Education that provided financial support for the development of Line 21 closed captioning and financed millions of dollars in discretionary grants for television captioning, pursuant to its authority under the Individuals with Disabilities Education Act (IDEA).129 In the 1990s, these discretionary funds also became available for the provision of video description. In the late-1990s, however, some members of Congress began to raise concerns about allowing the use of U.S. Department of Education money for what they perceived to be inappropriate television shows, such as Baywatch and The Jerry Springer Show. They succeeded in persuading their colleagues to amend IDEA to limit the distribution of closed captioning and video description grants to educational, news, and informational programs 128 See e.g., P.L. 87-715 (September 28, 1962), P.L. 89-258 (October 19, 1965), P.L. 90-247 (January 2, 1968), and P.L. 91-61 (August 20, 1969). 129 IDEA was first enacted in 1975 as the Education for All Handicapped Children Act. Its name was changed in 1990.

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The Future of Disability in America after September 2001.130 In 2004, Congress again made changes to the scope of the closed-captioning and video description provisions, this time limiting funding to television programs that are “of educational value in the classroom setting to children with disabilities.”131 In addition, under these amendments, funding for video description and captioning is provided only when these services have not otherwise been provided by the program’s producer or distributor or fully funded through other sources. The 2004 amendments did provide the first federal funding for access to “new and emerging technologies,” including “CDs, DVDs, video streaming and other forms of multimedia.”132 In addition, the new law establishes a system for the production of student textbooks in a standardized electronic file format called the National Instructional Materials Accessibility Standard, which can be used to convert books into accessible formats, including braille, large print, or electronic text.133 This will go a long way toward ensuring that children who are blind or who have low vision will have access to information made available through textbooks and classroom materials at the same time that their fellow classmates receive such information. The American Printing House for the Blind will establish a National Instructional Materials Access Center to serve as a repository to receive, maintain, and distribute electronic copies of this instructional material. POLICY IMPLICATIONS OF TECHNOLOGICAL CHANGE In recent years, Americans have become increasingly reliant on digital and Internet technologies that have significantly changed the ways in which we communicate and receive information. Our society is slowly, but gradually, abandoning our reliance on the traditional telephone network in favor of high-speed broadband services that can simultaneously transport voice, data, and video all over a single network. These newer technologies already offer exceptional opportunities to enhance the independence and productivity of people with disabilities. Similarly, new and exciting television innovations, including interactive television services that are sent over high-speed computer networks to television set-top boxes or home computers, are beginning to allow viewers to use all types of devices to receive television programming.134 However, if history is any indicator, legislative and regulatory safe- 130 This restriction was added by Section 687(c)(2) of the IDEA Amendments of 1987, P.L. 105-17, codified at 20 U.S.C. §1487. 131 The Individuals with Disabilities Education Improvement Act, P.L. 108-446, Section 674 (c)(1)(A), codified at 47 U.S.C. §1474(c)(1)(A). 132 20 U.S.C. §1474(c)(1)(B)(iii). 133 20 U.S.C. §1474(e). 134 See generally, Peltz Strauss, A New Civil Right: 241.

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The Future of Disability in America guards will be needed to ensure that these innovations are universally accessible to all Americans. Experience has shown that competitive pressures often make companies reluctant to invest in accessibility features perceived to have a small market with little or no profit. Recognizing this, in June 2007, the FCC took another step toward ensuring disability access to modern Internet-based technologies by adopting an order to extend the requirements of Section 225 (requiring telecommunications relay services) and Section 255 (requiring access to services and equipment) to providers and manufacturers of interconnected voice-over Internet Protocol services and equipment. This order completes two prior FCC inquires seeking ways to ensure disability access to broadband technologies.135 As the nation migrates away from legacy circuit-based technologies and analog television services, and transitions to more versatile and innovative IP-based communication and video programming technologies, disability advocates are looking to Congress to pass laws that will ensure that people with disabilities are not left behind. For example, in addition to proposing to extend various disability protections to IP-based services, bills introduced in 2006 contained a specific requirement for the FCC to report to Congress every two years on compliance with the accessibility provisions and the extent to which accessibility barriers still exist. In 2007, over 65 national and local organizations coalesced to form the Coalition of Organizations for Accessible Technology (COAT) to further legislative and regulatory efforts that will make this communications access a reality.136 One of the many advantages of IP-enabled products is that they largely rely on software-based solutions that make access for people with disabilities far easier to implement than was possible for many previous telecommunications technologies. Moreover, once features for people with disabilities are added to products and services, they typically benefit the general public, much in the way that closed captions—originally intended for use by people with hearing loss—are enjoyed by the mainstream public in bars, exercise facilities, and airports. 135 See, e.g., In the Matter of Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, Notice of Proposed Rulemaking, CC Dkts. No. 02-33; 95-20; 98-10, FCC 02-42 (Feb. 15, 2002); In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, Declaratory Ruling and Notice of Proposed Rulemaking, GN Dkt. No. 00-185; CS Dkt. No. 02-52, FCC 02-77 (March 15, 2002); In the Matter of IP-Enabled Service, Notice of Proposed Rulemaking, WC Dkt. No. 04-36, FCC 04-28 (March 10, 2004); In the Matters of IP-Enabled Services, E9-1-1 Requirements for IP-Enabled Service Providers, First Report and Order and Notice of Proposed Rulemaking, WC Dkts No. 04-36, 05-196, FCC 05-116 (June 3, 2005). 136 See www.COATaccess.org.

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The Future of Disability in America CONCLUSION Although the proposed legislation cited above will go a long way toward safeguarding access to the telecommunications and information technologies of the future, gaps and uncertainties still exist. For example, it is unclear whether the Television Decoder Circuitry Act’s requirement for “television apparatus” to have captioning decoder capabilities applies to newer types of devices that can receive or display television programming, including cell phones; MP3 players; video recording devices; and standalone video media, such as home theaters. It is critical for this statute to be interpreted broadly or amended, lest deaf and hard-of-hearing consumers be denied access to the vast array of new video programming options available to the general public. Similarly, although state equipment distribution programs have been very successful in distributing SCPE to hundreds of thousands of persons with disabilities across the United States, most of these programs limit their selections to wireline devices and fail to provide the wireless and Internet-based communication options that are now commonplace in mainstream society. In 2000, Missouri became the first state to make adaptive computer equipment used for access to the Internet and electronic mail available to its residents; others need to follow this example. In addition, the Lifeline and Link-up programs, two universal service programs that help subsidize the cost of monthly telephone bills and first-time connections for low income subscribers, are available only for traditional telephone services. Many disability advocates believe that these should also be available to support the Internet-based services and equipment needed for communication by people with disabilities. For example, many deaf individuals have replaced their PSTN-based TTYs with video devices that they use to converse over broadband technologies. These individuals want the option of using universal service subsidies to help pay for their broadband service and equipment. The agenda for communications access does not stop there: a plan for TTY users to migrate to the more modern text-based communications services needs to be developed to ensure that text is as reliable and interoperable as voice in emerging communications networks; firewalls imposed by businesses and government agencies need to be adjusted so that they do not block access by sign language users wishing to make video connections over broadband technologies; new digital products must offer multiple ways of controlling their operations so that soft button or graphic interfaces do not block access by people who cannot see; and accessible real-time solutions for emergency access in an Internet-based environment need to be devised and implemented. These and other accessibility needs must be addressed so that people with disabilities can be equal participants as our nation embarks on its newest technological revolution.