Access to Telecommunications Technology by Americans with Disabilities: Key Laws and Policies
Karen Peltz Strauss*
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
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
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
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-
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
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.
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
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-
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 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-
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-
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
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
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-
nologies over a 5-year period (by February 18, 2008), during which time the industry would develop technical solutions for digital phone hearing aid compatibility. Failure to achieve access within this period would result in an extension of the analog rule for an unspecified period of time. The Commission explained that it was taking this action because market forces would not address the hearing aid problem:
We find that, given the scarcity of digital devices that may be used with hearing aids, persons with hearing disabilities could be left without access to mobile telephony services in the event that the analog requirement is removed immediately and carriers are able to shut down their analog facilities. While we anticipate that market mechanisms will, for the most part, ensure access to digital services for most consumers … [t]he same economic incentives do not exist that would ensure that persons with hearing disabilities have adequate access to digital wireless service because they account for only a small percentage of mobile telephony users.44
While the FCC’s new order created a powerful incentive for the wireless industry to achieve digital wireless accessibility within a specified time, the rapid decline in analog phones in retail establishments spurred advocates to continue pushing for an affirmative mandate for hearing aid compatibility. In July of 2003, consumers finally got their way in an FCC ruling that created a schedule for certain wireless phones to become HAC over the next several years (Box F-1)45 This time, hearing aid compatibility was defined to include both inductive and acoustic coupling, as well as acceptable levels of interference.46 By now, 88 percent of all wireless telephone subscribers used digital services.
As a guide to fulfilling the new requirements, companies were directed to comply with ANSI C63.19, a standard which had been devised by Standards Committee 63 on Electromagnetic Compatibility of the American
Hearing Aid Compatibility Rules for Wireless Telephones 47 C.F.R. §20.19
Schedule of Deadlines
De Minimis Exemptions
The FCC requires wireless companies to regularly report on progress made to achieve HAC handsets, including their testing, standards setting activities, outreach activities, and the feasibility of achieving 100% HAC for all digital wireless phones after 5 years.
National Standards Institute (ANSI).47 The standard assigns each hearing aid a rating for the level of immunity that it provides when used in both the microphone and telecoil modes. It also gives every wireless handset a rating for its magnetic signal strength, magnetic field emissions, and radio frequency emissions. Hearing aid users can then add together the ratings to determine how well each handset is expected to work with each hearing aid.
Although most cordless wireline telephones have been HAC since their temporary exemption from the HAC Act expired in 1991, new concerns about the lack of compatibility in cordless phones that operate at a higher frequency—5.8 gigahertz (GHz)—have prompted a number of complaints to the FCC, as well as new efforts by telephone manufacturers, advocates, and Gallaudet University researchers to resolve this problem.
AMERICANS WITH DISABILITIES ACT
Historical Background and Legislation
As noted above, the Rehabilitation Act of 1973 prohibited discrimination on the basis of disability by programs that were federally operated, administered, or funded. However, until 1990, no federal law prohibited discrimination on the basis of disability by private retail establishments, private employers, and state and local governmental programs that did not receive federal aid. Originally patterned after the Civil Rights Act of 1964, the ADA closed this gap by prohibiting discrimination on the basis of disability in the private sector and by all local governments, whether or not they received federal financial assistance.48 The goal of this omnibus statute was to promote the independence, productivity, and integration of all Americans with disabilities throughout society.49 The Act is divided into five titles. Title IV, which focuses specifically on telecommunications, is discussed in detail below.
Title I, which covers private employers with 15 or more employees, employers in state and local governments, members of Congress, and others in the federal legislative branch, requires the provision of accessible
telecommunications and technologies when these are needed by qualified individuals with disabilities to perform the essential functions of a job; to apply for employment; or to enjoy other employee benefits and privileges, including training, social functions, and employee services.50 Under Title II, state and local governments must provide effective communication to people with disabilities in their programs, services, and activities.51 Entities covered under this title include, but are not limited to, social services, transportation, public education, libraries, judicial systems, and legislative proceedings. Title III similarly requires commercial facilities and places of public accommodation, including stores, hotels, movie theaters, restaurants, recreational facilities, and professional offices (e.g., the offices of lawyers, physicians, and accountants), to provide the auxiliary aids and services needed to ensure effective communication.52 Accommodations or auxiliary aids and services that can be used to achieve effective communication under any of these titles include, but are not limited to, TTYs, telephone amplifiers, assistive listening devices, computer-aided transcription services, sign language interpreters, HAC telephones, captioning services and equipment, audio recordings, computer disks, large print, and materials in braille.53 However, the entities covered under all three titles are required to provide such assistance only where doing so will not impose an undue burden upon their operations.54
In addition to the obligations described above, local governments that provide emergency telephone services must make those services directly accessible to callers using TTYs, so that these individuals need not rely on relay services or third parties to access 9-1-1 and other local emergency
authorities.55 State and local governments also have a specific obligation to ensure that their websites are accessible to people with disabilities. Among other things, this requires ensuring that website materials are available in text versions so that persons who are blind or have vision disabilities can use talking screen readers to access that information.56 The law on whether websites are covered under Title III, however, is less definitive. Although the U.S. Department of Justice has indicated that it does believe that Title III covers the websites of entities that are otherwise covered under the ADA,57 two federal circuit courts have released opinions suggesting that the Act does not cover services provided in virtual space.58 These opinions are in conflict with other federal court rulings that public accommodations cannot exclude people with disabilities from entering their facilities, whether their services are provided in physical or electronic space.59
In 1991, as required under the ADA, the Access Board released the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) that set forth technical specifications for making physical structures accessible.60 A number of these guidelines directly pertain to telecommunications accessibility, including requirements to make a certain percentage of newly constructed or renovated hotel rooms TTY accessible and mandates for payphones in public places, such as covered malls, hospitals, convention centers, stadiums, and transportation depots, to be TTY accessible. The ADAAG also contains technical standards for equipping telephones with volume control features and hearing aid compatibility.61
28 C.F.R. §35.162. The actual requirement to provide this access was contained in the legislative history of Title II at H. Rep. No. 485, Part 2, 101st Cong., 2d Sess., at 84–85 (May 15, 1990). Similar language was also inserted into the ADA Conference Report at Conf. Rep. No. 596, 101st Cong., 2d Sess., at 67–68 (July 12, 1990).
More information about U.S. Department of Justice requirements to make local government websites accessible can be found at http://www.ada.gov/websites2.htm.
Specifically, the U.S. Department of Justice submitted an amicus brief in Hooks v. OK-Bridge, Inc., 232 F. 3d 208 (5th Cir. 2000), taking this position.
Chabner v. United of Omaha Life Insurance Company, 225 F. 3d 1042 (9th Cir. 2000) (holding that an insurance office must be physically accessible but the provision of insurance policies to customers need not be equally accessible to people with disabilities); Access Now, Inc. v. Southwest Airlines, 385 F. 3d 1324 (11th Cir. 2004).
Doe v. Mutual of Omaha Insurance Comp., 179 F. 3d 557, 559 (7th Cir. 1999), cert. den’d, 120 S. Ct. 845 (2000) (ruling that the owner or operator of a store, website, or other facility that is open to the public, whether in physical or electronic space, cannot exclude individuals with disabilities nor treat them differently); Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F. 3d 12, 19 (ruling that public accommodations do not need to have physical structures to be covered by the ADA).
36 C.F.R. Part 1191, Appendix A.
Id. at §§4.1.3(17)(c); 10.3.1(12); 4.31.9.
Title IV—Telecommunications Relay Services
Background and Statutory Provisions
Prior to the 1960s, deaf individuals had virtually no way to communicate independently by telephone. This changed in 1968, when a deaf engineer named Robert Weitbrecht figured out a way to attach a telephone modem to outdated teletype machines that had been discarded by telecommunications companies and news services. Although Weitbrecht’s invention enabled deaf people to send text directly over the telephone network to other individuals with these TTYs, a method was still needed to enable TTY users to make telephone calls to people who did not have one of these devices. Telecommunications relay services (TRS) were created for this purpose. To use a relay service, a TTY user calls a relay operator, also called a communications assistant (CA), and gives the CA the number of the person whom he or she wishes to call. After the CA connects the two parties, the caller types out his or her part of the conversation, which the CA then voices to the receiving party. When the hearing party responds, the CA types that part of the conversation back to the caller. The call continues in this fashion, with the CA reading everything that the caller types and typing back all responses.
The private and state relay services created in the 1970s and 1980s were underfunded and understaffed and generally placed limitations on the number and length of calls, operating hours, and even call content. Relay service quality was also inconsistent from state to state, with few standards for relay confidentiality or CA qualifications in grammar and spelling.62 The vast majority of states also disallowed interstate calls, for fear of violating interstate boundaries. Title IV of the ADA was designed to eliminate the many barriers that confronted people who needed this service to communicate by telephone and create relay uniformity across the United States.63 Once again, when enacting this provision, Congress relied on the Communications Act’s universal service obligation.64
Under Title IV, telephone companies must provide relay services that enable people with hearing or speech disabilities to engage in telephone communication that is “functionally equivalent” to the conventional voice telephone communication enjoyed by people without these disabilities.65 At a minimum, principles of functional equivalency require that
TRS operate 24 hours every day;
TRS users pay rates no greater than the rates paid for functionally equivalent voice communication services with respect to such factors as the duration of the call, the time of day, and the distance from the point of call origination to the point of its termination;
relay operators not refuse calls or limit the length of calls;
relay operators not disclose the content of any relayed conversation or keep records of the content of any conversation beyond the duration of the call; and
relay operators not intentionally alter a relayed conversation.66
Common carriers may fulfill their TRS responsibilities by providing these services individually, through designees, through a competitively selected vendor, or in concert with other carriers.67 Congress also provided a mechanism for states to receive certification to operate relay programs on behalf of the carriers in their jurisdictions, so long as those states meet minimum relay standards set by the FCC and provide adequate procedures and remedies for enforcing these mandates.68 At present, all 50 states plus the U.S. territories have relay certification.
Since 1991, the FCC has had an ongoing series of rulemaking proceedings to refine and update its TRS mandates.69 Guiding these proceedings have been the overarching goals of achieving functionally equivalent telecommunications access and ensuring that TRS users are able to benefit from the most advanced relay technologies.70 These proceedings have resulted in the availability of a host of relay services that can now meet diverse communication needs:
Text-to-speech relay services. Text-to-speech relay services transmit conversations over the public switched telephone network (PSTN) between individuals who have TTYs or ASCII capability on their computers and voice telephone users. The CA converts everything that the text caller types into voice and the hearing person says into typed text. This service is mandated and must be provided 24 hours a day, 7 days a week.
Video relay services. Video relay services (VRS), approved by the FCC in March of 2000,71 use sign language interpreters, remotely accessed via a high-speed Internet connection, to voice everything that is signed by the deaf person and to sign back all voiced responses from the hearing party. These services allow native sign language users to converse naturally and to convey emotional content through the interpreter. Because they take place in real time, VRS can also facilitate conference calls and calls that have voice menu selections. In addition, because VRS are not text based, they are especially beneficial for children, senior citizens, and others who have difficulty typing. These services are not mandated, but providers who offer them must make them available 24 hours a day, 7 days a week.
Speech-to-speech relay services. Speech-to-speech relay services, approved in the FCC’s March 2000 order, use specially trained CAs who can understand difficult-to-understand speech patterns. The CA listens to the caller and repeats what that person says to the called party. The individual with the speech disability can then hear the called party’s responses without intervention from the CA. These services are mandated and must be provided 24 hours a day, 7 days a week.
Internet protocol relay services. Internet protocol (IP) relay services, approved by the FCC in April 2002,72 allow a user to access text-based relay services via the Internet using a wired or wireless computer, personal digital assistant, web phone, or other IP-enabled device. This service is authorized, but not mandated.
Captioned telephone relay services. Captioned telephone relay services, approved by the FCC in August 2003,73 enable users to simultaneously listen to and read the captions of what the hearing person involved in the call is saying. Unlike other forms of relay, callers may dial their parties directly and automatically get connected to the CA. Once the parties are connected, the CA revoices all conversation spoken by the hearing person. Voice recognition technology automatically transcribes these words from the CA’s voice into text, which is then generated into captions and transmitted back to the caller, so that he or she can read what the hearing party is saying. At the same time, the person with hearing loss can use residual
hearing to hear the hearing person’s voice. Captioned telephone relay is very popular among older Americans who have lost their hearing because it closely mirrors the typical telephone experience. This service is authorized but not mandated.
Spanish relay services. In its March 2000 order, the FCC established a mandate for common carriers to offer interstate relay services in Spanish. States can decide for themselves whether they wish to provide Spanish-language relay services for relay calls within their states.
Voice and hearing carryover. The voice carryover (VCO) and hearing carryover (HCO) forms of TRS use CAs to convey messages for only one leg of each call. VCO is used by people who cannot hear but who can speak: the individual uses his or her own voice to talk directly to the called party and uses the CA only to type back responses. HCO allows a hearing individual with a speech disability to listen directly to the other party and to use the CA to speak what he or she types. VCO and HCO are mandated and must be provided 24 hours a day, 7 days a week.
Other mandated services. In addition to the mandated services described above, the following relay services are mandated and must be provided 24 hours a day, 7 days a week: VCO to TTY, VCO to VCO, HCO to TTY, and HCO to HCO.
Other Relay Considerations
Confidentiality The FCC has recognized that to achieve true functional equivalency to voice telephone calls, TRS providers must maintain the strict confidentiality of all relay calls. More specifically, the CA must act as a “transparent conduit relaying conversations without censorship or monitoring functions.”
Speed of answer The speed with which a relay call is answered is a prime indicator of the extent to which the service is functionally equivalent to voice telephone services. Because a relay service is intended to be a substitute for a voice telephone dial tone, the FCC requires that relay network facilities and CA staffing be sufficient so that under projected calling volumes, the probability of a busy response because of loop trunk congestion or CA unavailability is the functional equivalent of what a voice caller would experience when placing a call through the voice telephone network.74
Funding and cost recovery The ADA provides that the costs incurred by intrastate TRS providers may be recovered from the subscribers to in-
trastate services and that the costs attributable to interstate TRS may be recovered from the interstate jurisdiction. The two exceptions to this policy are expenses associated with the provision of VRS and IP relay. Because it is difficult to ascertain the geographic origination of these calls, their costs are recovered entirely from interstate subscribers. The National Exchange Carriers Administration collects contributions from all interstate and international telecommunications carriers, determines an appropriate rate of reimbursement, and dispenses funds to bona fide relay providers. States may decide for themselves how to fund their intrastate relay services.
Mandatory minimum standards FCC rules set forth other mandatory minimum standards and technical requirements. These are summarized in Box F-2.
The major TRS-related issues currently under consideration by the FCC are described in the following sections.
VRS numbering In July of 2000, the FCC released a ruling directing common carriers nationwide to allow all relay callers—deaf, hard-of-hearing, and hearing or speech disabled callers—to access relay services by dialing “7-1-1.”75 The goal was to make relay dialing fast, easy, and uncomplicated so that callers anywhere could be able to access these services. While 7-1-1 has been effective in facilitating relay access for PSTN-based calls, easy dialing remains a problem for VRS users. At present, when a hearing person tries to initiate a VRS call by dialing a provider’s toll-free number, that person typically needs the IP address of the deaf VRS user’s equipment to enable the interpreter to establish a video link with the person receiving the call. However, most residential IP addresses are dynamic; that is, they can change at any given time and are therefore very difficult to ascertain. To address this situation, some VRS providers use their own database of “proxy” or “alias” numbers, which allows VRS customers to have a constant “telephone number” that is automatically mapped to their dynamic IP address. Unfortunately, because these databases generally cannot be used from one provider to the next, deaf VRS users often have multiple telephone numbers or extensions (one for each VRS provider) to get calls from hearing people.
To remedy this situation, the FCC has opened a rulemaking proceeding
requesting comment on the feasibility of establishing a single, open, and global database of proxy numbers that could be used by all service providers to allow hearing people to call any VRS user through any VRS provider without having to know every VRS users’ current IP address.76 This type of universal numbering would be neutral with respect to both the provider and the video equipment that the customer uses, just as are ordinary phone numbers.
Interoperability of VRS protocols In a recent ruling, the FCC determined that all VRS consumers must be able to place VRS calls through the services of any VRS providers and that all VRS providers must be capable of receiving calls from and transmitting calls for any VRS consumer.77 The order was prompted by the prior marketing practices of some VRS providers that had required consumers to use a single provider in exchange for free video equipment or broadband service. VRS users were able to access multiple VRS providers only by using multiple pieces of equipment or broadband connections, an arrangement that the FCC determined was both burdensome and inconsistent with notions of functional equivalency.
A related interoperability issue concerns the protocols used by VRS providers to transmit their calls over the Internet. Although the standard currently used for transmitting real-time voice and video over packet-based networks by most VRS providers is H.323, newer entrants to the VRS market are beginning to rely on Session Initiation Protocol (usually referred to as SIP) for this purpose. The FCC has opened a proceeding to determine whether it should adopt specific Internet protocols for VRS providers to prevent incompatible protocols from creating new barriers for VRS consumers.78
Emergency access FCC rules require TRS providers to be capable of immediately and automatically transferring emergency 9-1-1 calls to an appropriate public safety answering point (PSAP) that can respond with fire, police, or medical attention.79 An appropriate PSAP is defined as one that the caller would have reached by directly dialing 9-1-1 or that is capable of dispatching emergency services expeditiously. While PSTN-based TRS providers comply with this directive, it often takes longer to connect
TRS Mandatory Minimum Standards 47 C.F.R. §64.604 and §64.605
Mandates Pertaining to Communication Assistants and VRS Interpreters
Mandates Pertaining to Specific TRS or Telephone Features
TRS providers must be capable of handling
Interactive Voice Response Systems and Recorded Messages: CAs must use a hot key to inform TRS users when the incoming call is a recorded message or uses an interactive menu. TRS providers shall electronically capture recorded message and retain them for the length of the call. No additional charges may be imposed for additional calls needed to complete calls involving recordings or interactive messages.
Common carriers have an obligation to ensure that individuals in their service areas, including people who are hard of hearing, speech disabled, senior citizens and members of the general population, are aware of the availability and use of all types of TRS. Ways to achieve this include publication of information in directories, billing inserts, and through directory assistance services. In addition, carriers providing telephone voice transmission services have an obligation to conduct ongoing education and outreach programs to publicize the availability of 711 TRS access in a manner “reasonably designed to reach the largest number of consumers possible.”
emergency relay calls to appropriate 9-1-1 personnel than it takes to connect directly dialed voice 9-1-1 calls, because relay calls are routed through the PSAPs’ 10-digit administrative numbers rather than through the native selective routing system. Thus, even where 9-1-1 relay access is provided, many believe that this affords only second-class status to its users.
A more significant problem exists with respect to the handling of emergency calls made by VRS and Internet-based relay users. Although number and location information for relay calls made over the PSTN can automatically be passed through to PSAPs, relay calls made over the Internet are not linked to specific geographic locations and therefore cannot similarly be automatically transferred. This limitation has led the FCC to waive the requirement to handle emergency calls for VRS and text-based Internet relay service providers until 2008. On November 30, 2005, the FCC released a notice of proposed rulemaking seeking comment on the best methods of handling these emergency calls.80 Among other things, the Commission is seeking feedback on whether the solution for VRS and Internet-based relay services should mirror the solution for voice over Internet protocol (VoIP) services, which requires the customers of interconnected VoIP services to register the physical location where they will be originating their calls so that emergency authorities can be directed to the appropriate location.81
Telecommunications Accessibility Enhancement Act of 1988
Although the Architectural Barriers Act of 1968 required federal buildings to be accessible to people with disabilities, well into the 1980s most federal government buildings did not have TTY devices. This left many people with hearing loss without a means to contact federal governmental agencies. To remedy this, in June 1986, the Access Board, in conjunction with the U.S. Department of the Treasury and the Interagency Coordinating Council (ICC), announced the creation of a pilot federal relay service that would relay calls between TTY users and governmental employees who used conventional voice telephones.82 When this service—initially staffed with a single relay operator—quickly became overwhelmed with calls, consumers approached Congress about expanding the federal relay service and installing TTYs in all governmental offices. Although the latter proposal was abandoned, in 1988, Congress passed the Telecommunica-
tions Accessibility Enhancement Act (TAEA), which created a new Federal Relay Service (FRS) that transferred the day-to-day relay operations from the Access Board to the General Services Administration (GSA).83 By 1998, FRS evolved into a 24-hour-a-day, 7-day-a-week service, and by 2000, it had a staff of more than 100 operators who handled tens of thousands of inbound and outbound calls each month. The service now provides the full range of relay services that are available under the ADA.
In addition to its relay mandates, the TAEA directed GSA to work with the Access Board, the ICC, the FCC, and other federal agencies to take the actions needed to ensure that the federal telecommunications system is fully accessible to people with hearing and speech disabilities for communication with and within federal agencies and to promote research by federal agencies, state agencies, and private entities to “reduce the cost and improve the capabilities of telecommunications devices and systems that provide accessibility to hearing-impaired and speech-impaired individuals.”84 The Act also ordered the publication of a directory of the TTYs used in federal agencies,85 required that each house of Congress establish a policy for its members to obtain TTYs,86 and directed the federal government to adopt a TTY logo to signify the presence of TTY devices.87
Section 255 of the Telecommunications Act of 1996
Historical Background and Legislation
In the mid-to-late 1980s, the convergence of computer and telephone technologies, together with the introduction of new and innovative telecommunications services and equipment, prompted local telecommunications companies to seek federal legislative relief from many of the restrictions imposed upon them by the AT&T divestiture. When Congress started drafting legislation to ease some of these limitations, disability advocates took the opportunity to seek stronger safeguards for access to all telecommunications products and services by people with disabilities.
Up until this time, the only way for most people with disabilities to obtain telecommunications access was through reliance on specialized rather
than mainstream equipment. This approach created several problems. First, assistive devices were often expensive and hard to locate in retail establishments. Second, the technology associated with the specialized telecommunications equipment often lagged behind mainstream telecommunications technologies, which evolved at a very swift pace. Third, the access provided by the specialized equipment was generally slower, more complicated, or otherwise inferior to the access provided by mainstream equipment.
Also, people with disabilities did not want to continue having to “catch up” whenever new technologies were developed. Instead, they wanted their needs to be considered and access features to be built in as new products and services were being designed and developed. To this end, they asked Congress to incorporate principles of “universal design” into the Communications Act. This meant that they wanted telecommunications businesses to make their mainstream telecommunications products and services accessible to the widest range of individuals right “off the shelf,” without the need for additional adaptation. When the Telecommunications Act of 1996 passed, Section 255 incorporated these principles of universal design for all telecommunications products and services. This section requires manufacturers of telecommunications equipment and customer premises equipment and providers of telecommunications services to design, develop, and fabricate their equipment and services so that they are accessible to and usable by individuals with disabilities, if accessibility and usability are readily achievable.88 If accessibility and usability are not readily achievable, then a manufacturer or service provider must ensure that its equipment or service is compatible with peripheral devices or the SCPE that is commonly used by people with disabilities.
Determining whether something is readily achievable requires balancing the cost and nature of the access feature against the resources of the covered entity—much in the same way that an undue burden determination is made under the Rehabilitation Act or the ADA.89 Not required are access features that are technically infeasible or that would so fundamentally alter the product that they would substantially reduce the functionality of the product, render some features inoperable, substantially and materially alter the shape, size, or weight of the product, or impede or deter the use of the product by other individuals.
A parallel obligation, contained in Section 251 of the Act, prohibits telecommunications carriers from installing network features, functions, or capabilities that do not comply with the Section 255 guidelines.90 Section 251 requires that telecommunications carriers ensure that the configura-
tion of their network architecture (i.e., hardware, software, and databases associated with the routing of telecommunications services) complies with the FCC’s accessibility rules.
FCC rules on Section 255, effective since January 28, 2000, require telecommunications manufacturers and service providers to evaluate the accessibility, usability, and compatibility of equipment and services, as early and consistently as possible throughout their design, development, and fabrication. All basic and advanced telephone services including call waiting, speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller identification, call tracing and repeat dialing, interactive voice response systems, and voice menus are covered under the rules. In addition, under a ruling that came out in June 2007, services provided by interconnected voice-over Internet protocol providers are covered because of their functional similarity to traditional telephone services.91
The customer premises equipment covered by the rules includes all equipment used on an individual’s premises to originate, route, or terminate telecommunications, as well as software integral to the operation of the telecommunications functions of the equipment, whether or not it is sold separately. Examples are wireline and wireless telephones, pagers, and fax machines.
Accessibility In determining whether a product is accessible, a manufacturer must evaluate the extent to which the product’s various input, control, and mechanical functions, as well as its output, display, and control functions, are operable without vision, hearing, manual dexterity, speech, cognitive skills, and other functionalities.92 All information needed to operate the product, including “text, static or dynamic images, icons, labels, sounds, or incidental operating cues,” must also be made accessible to people with various types of disabilities.93 Some of the access features that companies have already started to incorporate to meet the accessibility requirement include nibs or capital letters on keypads; vibrating features and volume control on telephones; jacks for TTYs; accessible telephone intercept mes-
sages; the ability to change the color, font, or lighting on keypads and screens; and the provision of speech output on cell phones.94
Usability Telecommunications service providers and manufacturers must also evaluate whether their products and services are “usable by” individuals with disabilities.95 This mandate requires functionally equivalent access to the full operation of and the documentation for the product, including instructions, product information, technical support hotlines and databases, customer support call centers, repair services, and billing departments. Among other things, companies must provide end-user product documentation in alternate formats (such as braille and large print) and access to services in alternate modes (TTY, e-mail, etc.) at no additional charge to the consumer requesting these accommodations.
The FCC has also stated that “usable by” requires manufacturers and service providers to include consumers with disabilities in market research projects, focus groups, pilot demonstrations, and product trials when a company otherwise engages in these activities. Similarly, companies must make reasonable efforts to validate unproven access solutions with people with disabilities or disability-related organizations.
Compatibility The FCC’s rules explain that the Section 255 requirement to make mainstream equipment compatible with peripheral devices applies to peripheral devices employed in connection with telecommunications equipment or customer premises equipment used to translate, enhance, or otherwise transform telecommunications into a form that is accessible to individuals with disabilities, such as TTYs, visual signaling devices, and amplifiers.96 The requirement to achieve compatibility with SCPE covers equipment commonly used by individuals with disabilities to originate, route, or terminate telecommunications, such as direct-connect TTYs.97 Assistive technology devices, such as hearing aids or eyeglasses, which have a broad application outside the telecommunications context, are not SCPE or peripheral equipment even if they are used in conjunction with telecommunications devices. In addition to its overall mandate to provide compatibility, FCC rules have four very specific requirements for telecommunications compatibility:
There must be external electronic access to all information and control mechanisms.
There must be a connection point for external audio-processing devices.
Products that have a function for voice communication shall provide a standard nonacoustic connection point for TTYs. Users must also be able to easily turn a microphone on and off to intermix speech with TTY (for VCO- and HCO-type functions).98
Products shall support all cross-manufacturer nonproprietary standard signals used by TTYs.
Section 508 of the Rehabilitation Act of 1973
In the Workforce Investment Act of 1998, Congress strengthened the requirements of Section 508 of the Rehabilitation Act of 1973 to require all federal agencies to develop, procure, maintain, and use accessible electronic and information technologies, unless doing so would create an undue burden for the agency.99 Access Board guidelines, released on December 21, 2000, have applied this mandate to telecommunications, computers, software applications, video and multimedia products and applications, and web-based intranet and Internet information and applications.100 Among other things, the guidelines require federal agencies to maintain telecommunications products that provide hearing aid compatibility and amplification and that support TTY transmissions;101 accessible caller identification devices for individuals who cannot see displays;102 and TTY-compatible voice mail, auto-attendant, and interactive voice response telephone systems.103
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
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
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
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
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 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
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.
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
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
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
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-
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.
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).
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.