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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Successes and Failures of the 1996 Telecommunications Act

Section 255 - Promoting Access by Persons with Disabilities: Mainstreaming Communications

by Karen Peltz Strauss and Bruce Maxwell

"Here's your new Metrobus! Dependable. Safe. And Easier to Board!" Plastered across the sides of Washington D.C.'s buses in huge letters, these ads broadcast a byproduct of the successes achieved by disability advocates more than a decade ago. In 1990, the civil rights movement for individuals with disabilities came to its fruition with the passage of the Americans with Disabilities Act (ADA). 1 During the months that preceded the ADA's enactment, a particularly acrimonious battle took place between civil rights advocates, who pushed for accessibility in mainstreamed buses, and transportation authorities around the nation who sought continued reliance on separate but supposedly "equal" paratransit. When all was said and done, for the most part disability advocates prevailed, and the ADA was enacted with provisions for mainstreamed bus and train access for individuals with mobility disabilities. Jump ahead a little more than 10 years and one sees the same city authorities that fought this access now touting its benefits for all riders, not just those with disability needs. Hence, the Washington Metropolitan Area Transportation Authority's website now proudly boasts that most of its metrobuses "are equipped with platforms that lower to the curb and lift you. . . on board (emphasis added)."

The very reasoning used to oppose the provision of mainstreaming access in rolling stock a decade ago -- that mainstreamed access is too expensive, too burdensome, and not cost effective -- is the same reasoning that some have used more recently to oppose the incorporation of access features in the design of telecommunications and information technologies. The extraordinary reliance upon which our society has come to have on advanced communications technologies is undisputed. Access to these technologies -- whether that be eco-nomic or physical access -- is critical to achieving success in the job market, in schools, and in virtually every facet of American life. Those who do not have access are relegated to second class status, a status that keeps them from being productive citizens who can contribute to the growth and success of our nation's economy and health.

Congress recognized the contributions that accessible telecommunications can make to the health of our society as many as two decades ago, in its very first piece of legislation designed to address this issue -- the Telecommunications for the Disabled Act of 1982. 2 That Act required certain telephones to be hearing aid compatible and permitted telephone companies to continue subsidizing specialized customer premises equipment -- equipment used by people with disabilities -- with monies earned through the provision of telephone services, a practice which was no longer permitted for ordinary customer premises services equipment.

More recently, in 1996, Congress reaffirmed the importance of accessible telecommunications with the passage of Section 255 of the Communications Act. 3 Section 255 directs all telecommunications manufacturers and service providers to make their products and services accessible to individuals with disabilities where doing so is readily achievable. A similar law -- Section 508 of the Rehabilitation Act -- directs each federal agency to procure and maintain accessible electronic and information technologies, if doing so would not impose an undue burden on the agency. 4

Both the readily achievable standard of Section 255 and the undue burden standard of Section 508 balance the costs of including access with the resources of the covered entity; the greater the resources, the more difficult it is to prove that incorporating an access feature is not readily achievable or would impose an undue burden. While Section 508 is enforced by each federal agency, Section 255 is enforced primarily through complaints filed with the Federal Communications

To date there have been few comprehensive complaints; to date then, little has been done to fully effectuate the goals of Section 255. 5

At present, Section 255 does not apply to what the FCC calls "information services": e-mail, the Internet, Web sites, and so on. But there are two exceptions. When the FCC adopted rules to implement Section 255 in July 1999 -- more than three years after Clinton signed the measure into law -- the FCC decided that two information services were so critical to making telecommunications accessible that it shoehorned them in under Section 255.

Using the agency's "ancillary jurisdiction," it included voicemail and interactive menu services under Section 255's coverage, even though these are typically defined as information services.

At the time the Commission issued these rules, it also issued a Notice of Inquiry seeking further comment on the extent to which Section 255 should also cover the Internet and related services. Although the Commission reports that it has conducted a preliminary review of the comments received in that proceeding, all signs are that it is unlikely that the Commission now, or in the foreseeable future, will complete the Section 255 proceeding with the issuance of rules that cover Internet and related services. The National Council on Disability disagrees with the FCC's position on this matter. In its June 2001 report, it stated that the FCC should either start a rulemaking to include the Internet under Section 255 or pursue a new law requiring Internet accessibility.

A Glass Half Full

But its limitations aside, has Section 255 made telecommunications more accessible for people with disabilities? The law is too new to know for sure, but some experts think it is at least starting to have a positive effect. For example, "more products that feature keypads are starting to include nibs on the 5 key, which helps people with vision disabilities find their way," said Paul Schroeder, vice president for government relations at the American Foundation for the Blind. Many larger telecommunications companies are also making their bills and user manuals available in Braille and other alternative formats. But he added: "I do not think [Section 255] has led to development of products for people who are blind or visually impaired as quickly as we would have liked."

Part of the delay is attributable to companies being forced to change from not thinking about accessibility at all to carefully considering it when designing new products, according to Schroeder. "I think the other reality is these are very competitive products, and the space within a product that can be devoted to accessibility and the amount of effort by the design staff and the amount of power and capacity is quite limited for any purpose," he said. Schroeder hopes that a larger number of accessible products will start appearing with-in two or three years.

Section 255 "has provided few benefits to people with hearing disabilities so far, primarily because it covers so few products and excludes information services," said Frank Bowe, governmental affairs consultant for the National Association of the Deaf. However, he expects that some useful products will become available in the near future as companies have more time for their research, development, and production efforts.

"Cell phone accessibility remains one of the most pressing concerns for people with hearing disabilities," Bowe said. Among other problems, most cell phones are incompatible with hearing aids and they don't automatically reveal a caller's location to emergency operators when a 911 call is made, unlike phones attached to land lines. 7 The latter problem makes it extremely difficult for a person with a hearing disability to successfully complete a 911 call from a cell phone. "The cell phone industry keeps promising to address these many issues," Bowe said. "Then it keeps saying, 'We need more time. '"

Raising Expectations

The FCC is charged with enforcing Section 255, 8 but it only acts when a consumer files a complaint. Disability advocates are continuing efforts to educate people with disabilities about their rights and what they should expect under the law.

That education is critical if what Schroeder calls "the expectations challenge" is to be overcome. Many people with disabilities are used to "making do" with available technology, which usually means using only a fraction of a product's functionality. With Section 255 now in place, they need to raise their expectations about a product's accessibility instead of routinely accepting limits.

Schroeder hopes that raised expectations will lead to better communication between people with disabilities and telecommunications manufacturers. "Our hope is that people will start having conversations with companies," he said. "We also hope that companies will start looking at people with disabilities as credible sources for conducting market research on their products. There's a great reservoir of untapped information about how consumers use these products that would be useful to companies designing them."

Using Federal Buying Power

This untapped consumer information became even more critical recently when a new federal law took effect that may ultimately prove to be more important in guaranteeing accessibility than will Section 255.

Under the new Section 508, when federal agencies and departments buy electronic and information technology, they must choose products that provide equal accessibility to information and data for people with and without disabilities. Most important, Section 508 covers far more products than does Section 255. Besides telecommunications products such as telephones and fax machines, it also covers computer software and hardware, Web sites, copy machines, and information kiosks.

Since the federal government is the largest buyer of technology in the world, Section 508 is expected to exert a strong influence on manufacturers to make their products accessible. Yet as manufacturers change their products to fit the federal marketplace, those changes will also benefit people with disabilities who buy the revamped products for their own use. Access Board guidelines for Section 508 took effect on June 21, 2001. 9

Communications Technologies Aid Kids with Disabilities, but Federal Policies Fall Short

In 1990, Congress enacted the Decoder Circuitry Act requiring captioning chips in all TVs with screens over thirteen inches that are sold in the U. S. In 1993, when this Act became effective, television manufacturers capitalized on the secondary uses of captions with a major public relations campaign that touted the benefits of "Caption Readers" for all Americans. Having originally fought the inclusion of decoder circuitry in television sets, these same manufacturers quickly realized the widespread benefits -- as well as the market value -- of incorporating this universal design feature. Making media products accessible, and bringing children with hearing or seeing disabilities into a shared cultural experience remains a challenge as the nation makes the transformation from an analog to a digital world.

When the blockbuster film Titanic opened, all self-respecting kids had to see it immediately so they could endlessly debate with their friends the charms (or lack thereof) of Leonardo DiCaprio, Kate Winslet, and the movie itself. Thanks to technology developed by public broadcaster WGBH in Boston, kids in selected cities who were blind or deaf didn't have to feel left out from all the excitement. Kids who were deaf or hard of hearing used a system that let them superimpose captions on the movie screen. And those who were blind or visually impaired wore headsets that provided running narration about key visual elements such as actions, settings, and scene changes.

The parents of one deaf teenage girl told the WGBH developers that they cried after taking her to the Titanic opening. "They couldn't believe how wonderful it was for this kid," said Larry Goldberg, director of the CPB/ WGBH National Center for Accessible Media (NCAM). 10 The center is a research and development facility that provides access to new and emerging media for people with disabilities.

But why go to the all the trouble of making accessible a movie like Titanic -- the artistic merits of which can be debated? According to Goldberg, the main reason is to lessen the social isolation that envelops many kids with disabilities. "You can't take the media and pop culture away from kids," he said. "Whether we value Britney Spears or not, the fact that her videos are captioned is important to those kids."

The NCAM effort is only one of dozens around the country aimed at using communications technologies to help level the playing field for kids with disabilities. Many of the efforts seek to help kids with disabilities participate more effectively in school, while others explore ways to broaden their social environment.

Making Video Programming Accessible

WGBH started facilitating access for people with disabilities in the early 1970s, when it pioneered closed captioning of television pro-grams. Today, hundreds of hours of television are closed captioned every week, including most children's programs, enabling people who are deaf or hard of hearing to enjoy the latest shows. Nicole Nichols, Senior Vice President of the Fox Family channels says, "Fox captions virtually all daytime television shows for kids." This includes programs such as Angela Anaconda, Digimon, and Mary Kate & Ashley's Adventures. By 2006, the Telecommunications Act of 1996 requires that nearly all new programs be captioned.

One of the NCAM's most extensive efforts involves Arthur, an educational TV show on PBS that's wildly popular with kids. For kids who are deaf or hard of hearing, the center provides verbatim captioning and captioning edited for kids with lower reading skills. For kids who are blind, it provides audio descriptions of the action to supplement words spoken by the characters. Anyone who gets PBS can turn on the captions or descriptions by simply hitting a button on a caption-ready TV or a set-top decoder.

The center goes even further with its Web version of Between the Lions, a PBS program for kids that stresses reading. In addition to multiple levels of captions edited for various reading abilities, the NCAM provides a sign-language version of the show.

Finally, the NCAM offers dozens of Hollywood movies on video for people who have sight impairments. These videos offer narrated descriptions of the films' visual elements. Many of the available titles are kids' favorites: Aladdin, A Charlie Brown Christmas, E. T., Home Alone, The Lion King, Mary Poppins, The Little Mermaid, Pocahontas, Toy Story, and The Wizard of Oz, among others. The videos can be purchased from WGBH, and many public libraries also offer them for loan.

What does the future hold? "With digital technology these days, everything is possible," says Goldberg. "However, that doesn't mean everything is affordable or practical."

Goldberg is particularly excited about digital television, which is just starting to be introduced in the United States. The FCC is moving, although some say too slowly, to open up the possibilities of digital television for children with disabilities.

In the summer of 2000, the FCC adopted new rules for the display of closed captioning on digital televisions. "Unlike current sets, which don't allow user adjustments to the captions, digital TVs will have to let users choose the captions' color, size, and font," said Pam Gregory, chief of the FCC's disabilities rights office.

Unfortunately, the FCC hasn't been so proactive concerning requirements for video description programming. In 2000, in response to an Inquiry into the public interest obligations of broadcasters, People for Better TV, among other advocates for the disabled, urged the FCC to require that digital television sets be capable of receiving video descriptions. People for Better TV also wanted a requirement that digital broadcasters supply a certain amount of their programs with video descriptions -- like the current requirement for analog broadcasters. The Commission did not include either of these recommendations in its Notice of Proposed Rulemaking which followed that Inquiry.

The People for Better TV recommendations mirrored those made by the President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters (the so-called "Gore Commission"). Peggy Charren, a leader in the movement for children's television and a member of the Gore Commission was particularly interested in the services digital television could provide. "With all the different platforms, digital television could provide really good special services to those children whose needs are often unserved," Charren said. "The FCC got our recommendations on this, but what have they done? Not enough."

The FCC has initiated a new task force on the problems of transitioning to digital television, but the focus is on spectrum allocation and the "bottom line" -- not on how digital television can help serve the needs of children with disabilities. 12

Beyond Textbooks

Despite technological advances, much classroom instruction still centers on textbooks and other printed materials. Such materials are totally inaccessible to blind students, and they present sometimes insurmountable barriers for students who are dyslexic or who have movement impairments that make it impossible for them to turn pages.

One solution now being studied is a universally designed curriculum. The concept borrows from architecture the idea that it's easier, cheaper, and more efficient to start with an accessible design than to cobble together some makeshift accessibility solutions once a structure is built.

A universally designed curriculum centers on the flexibility and malleability offered by digital media. All students use the same educational content, but they access it in a variety of ways.

Take the textbook. If it's digitized, a textbook suddenly becomes universally accessible. Blind students can listen to the text with a screen reading program or print it out on a Braille printer. Dyslexic students, who often have trouble reading printed text, can listen to the text with a screen reader and follow along as synchronized highlighting of the text appears on the computer. Students with mobility impairments can press a single button to make pages advance. If the digitized textbook offers supplementary video clips, students who are deaf can read accompanying captions.

Features of universal curriculum design such as digitized textbooks benefit all students, not just those with disabilities. A digital textbook gives all students options in accessing the information, allowing them to choose the format that they find most interesting and useful. Some groups of students may find particular features especially helpful. For example, students for whom English is a second language may benefit from being able to listen to the text and follow it on the computer screen.

But digitizing textbooks is expensive. That's where groups like the National Center on Accessing the General Curriculum come in.

The goal of the non-profit center is to improve access to the general curriculum for students with disabilities. To that end, it is currently using funding from the U. S. Department of Education and foundations to digitize a range of textbooks, workbooks, and supplementary materials that it plans to offer through a virtual library. Teachers at schools that subscribe to the library (the current pricing model is $400 annually for unlimited access) will be able to locate books they need at a Web site and obtain an access code for downloading.

"Most of the books initially being digitized are in the public domain," said Chuck Hitchcock, the center's director. The reason is that publishers fear that digitized versions of their current books could be easily copied and shared, potentially crippling their sales. The center is currently working with Harvard Law School to explore possible changes in the copyright law that would allow digitizing while also protecting publishers.

Cooperation from publishers would dramatically lower the cost of digitizing books, according to Hitchcock. "When a publisher either can't or won't provide electronic files of a book, digitizing a single title typically costs $25,000 to $40,000. The cost would plummet to about $5,000 per title if publishers provided electronic files," he said.

One of the center's other major projects has been creating and updating eReader, a software program that helps kids browse the Web. Once kids find a Web page of interest, eReader reads the content out loud while also providing synchronized highlighting of the words on the page. The program is primarily aimed at kids who are blind, but it's helpful for any kids who have trouble reading -- especially those with learning disabilities. Kids who have impaired vision but aren't blind also can benefit from eReader features that let them change the font, size, and color of the digital text, along with the background and highlighting colors, to achieve maximum readability.

Of course, the computers and other technology needed to implement a universal curriculum cost money, as does training teachers about how to use the tools. It's no secret that few school districts have money to spare. "Funding is always a problem," Hitchcock admitted.

The Big IDEA

Hitchcock and other advocates for kids with disabilities point to the federal government as a potential funding source, especially because a universal curriculum dovetails nicely with the requirements of a key federal law.

That law is the Individuals with Disabilities Education Act (IDEA), 13 which Congress originally passed in 1975 under another name. The law is very complex, but it centers on two basic ideas: Kids with disabilities have a federally protected right to receive a free public education that meets their needs, and they must receive that education in the least restrictive environment possible.

Before enactment of the law that later became IDEA, some states barred kids with certain types of disabilities from schools. Others shoved all the kids with disabilities into a special classroom, even if their disabilities were very dissimilar. What constitutes "the least restrictive environment" remains a controversial issue. One of the least controversial, and perhaps the best way to provide all kids with the support they need is adopting a "universal" curriculum accessible to all.

Which brings us back to the issue of finding the money to pay for it. Besides guaranteeing the educational rights of kids with disabilities, IDEA also promised that the federal government would give states and local school districts money to help pay for the special services that they needed. The catch is that the federal government hasn't kept its promise.

The law said the federal government would pay 40 percent of the cost of educating kids with disabilities, said Goldberg of the NCAM. Not only has Congress never fully funded the law, he said, it has never even provided half of the money promised.

IDEA is up for reauthorization in 2002, and according to Goldberg, there has been much talk about reforming the law. It remains to be seen, though, whether those reforms will include giving kids with disabilities the money they've been promised for their education.

Conclusion

The Federal Communications Commission needs to do a much better job in carrying out the intent of Congress to ensure that the needs of people with disabilities are addressed at the front end of the introduction of communications technologies into our communities. It is a given that communications companies, manufacturers and service providers are more likely to utilize resources and product space for features that are likely to be immediately profitable. Especially in financially austere times, companies readily acknowledge that they are more likely to cut features that may cost a bit more to produce, may take up a bit more space, or may not bring a significant and immediate return on the invested dollar. As a consequence, telecommunications and information technology companies, in their efforts to cut back on costs, are tempted to cut back on resources devoted to accessibility. This approach, however, is shortsighted, and will end up hurting not only the companies themselves, but society as a whole. It is, in other words, contrary to the public interest.

History has shown the folly of ignoring access needs at the time that products and services are first designed. Retrofits needed to make inaccessible products and services accessible later on -- i. e., after those offerings have reached the marketplace -- are expensive and burdensome. Our nation's telecommunications relay system is a prime example. The relay system, which enables people who are hearing to communicate with people who are deaf, hard of hearing or speech disabled through relay operators, constitutes a several hundred million dollar retrofit for our inaccessible telephone system. In contrast, where access is incorporated at the outset, its costs are typically nominal, and its inclusion invariably results in benefiting an audience which is far larger than that for which it had originally been intended.

Just as kneeling buses enable everyone to board the bus more easily, closed captions that enable persons with hearing loss to follow the plot of a television program also benefit patrons in noisy health clubs and restaurants. Captions on television, videos, and computer software also facilitate learning English as a second language, enhance the reading skills of young children, and allow college students to search for specific topics of interest through tools that navigate through the captioned text.

Approximately 54 million Americans are considered to have some type of disability. This number is only likely to grow as our population ages. The U. S. Department of Census reports that by the year 2030, twenty percent of America's population will be comprised of individuals who are 65 and older. If recent trends remain constant, approximately one half of these individuals will have some type of disability. Cutting edge access technologies, if properly incorporated into mainstream products and services, can allow these individuals to remain productive members of our society.

Yes, economic times are tough. But access is not the place to cut corners. Of course there may be some costs to incorporate an access feature in a product or service that could be easily be produced without it. However, as our population ages and the baby boomers of yesterday rapidly become the seniors of tomorrow, the costs of lost access for what amounts to a staggering percentage of our population will far exceed the nominal costs of making mainstream products accessible. Companies that design our telecommunications and information products and services must assume the responsibility for incorporating features that make their products and services accessible. If they fail to do so, citizens will be left with no option but to continually seek legislative and regulatory relief to obtain such access. Making products "dependable". . . and "safe". . . and most importantly "easier to board" for all Americans, including Americans with disabilities, is not only consistent with our nation's disability policies; it makes good sense for all of society, both now and later on.


Endnotes

1 P. L. No. 101-336, codified at 42 U. S. C. §12101 et. seq.

2 P. L. No. 97-410, codified at 47 U. S. C. §610.

3 P. L. No. 104-104, codified at 47 U. S. C. §255.

4 Section 508 was first enacted as part of the Rehabilitation Act, and later amended in the Workforce Investment Act. P. L. 105-220, codified at 29 U. S. C. §794( d).

5. FCC tips on filing a Section 255 complaint http://www.fcc.gov/cib/dro/complaint_tips.html

6. The Accessible Future, National Council on Disability, June 2001, http://www.ncd.gov/newsroom/publications/accessiblefuture.html

7. See Consumer Convenience and Emergency Assistance or Privacy Invasion? http://www.civilrightsforum.org/connectsept2001.htm#tech

8. In the Matter of Implementation of Sections 255 and 251( a)( 2) of the Communications Act of 1934, as enacted by the Telecommunications Act of 1996, Access to Telecommunications Service, Telecommunications Equipment and Customer Premises Equipment by Persons with Disabilities, Report and Order and Further Notice of Inquiry, WT Dkt. No. 96-198 (July 14, 1999).

9. Electronic and Information Technology Accessibility Standards, Architectural and Transportation Barriers Compliance Board, 6 CFR Part 1194; http://www.access-board.gov/sec508/508standards.htm

10. http://ncam.wgbh.org/

11. In the Matter of Closed Captioning Requirements for Digital Television Receivers, Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, Report and Order, ET Dkt. No. 99-254, MM Dkt. No. 95-176 (July 21, 2000).

12. http://www.fcc.gov/Bureaus/Mass_Media/News_Releases/2001/nrmm0110.html

13. 20 U. S. C. § 1400 et. seq.

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