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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 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 WT Docket No. 96-198 REPORT AND ORDER AND FURTHER NOTICE OF INQUIRY Adopted: July 14, 1999; Released: September 29, 1999 Comment Date: November 14, 1999 Reply Comment Date: December 14, 1999 By the Commission: Chairman Kennard and Commissioners Ness and Tristani issuing separate statements; Commissioners Furchtgott-Roth and Powell approving in part, dissenting in part and issuing separate statements. TABLE OF CONTENTS Paragraph No. A. OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Introduction. . . . . . . . . . . . . . . . . . . . . 1 2. Background. . . . . . . . . . . . . . . . . . . . . . 8 3. Summary . . . . . . . . . . . . . . . . . . . . . . 12 4. Authority to Promulgate Rules . . . . . . . . . . . . 13 B. REQUIREMENTS FOR COVERED ENTITIES. . . . . . . . . . . . . 16 1. Overview. . . . . . . . . . . . . . . . . . . . . . . 16 2. Disability. . . . . . . . . . . . . . . . . . . . . . 18 3. "Accessible To and Usable By" . . . . . . . . . . . . 21 4. Compatibility . . . . . . . . . . . . . . . . . . . . 31 5. Network Features, Functions, or Capabilities. . . . . 37 C. READILY ACHIEVABLE . . . . . . . . . . . . . . . . . . . . 43 1. Definition of "Readily Achievable". . . . . . . . . . 43 2. Application of Readily Achievable . . . . . . . . . . 49 a. In General . . . . . . . . . . . . . . . . . . . 49 b. Cost of the Action Needed. . . . . . . . . . . . 55 c. Nature of the Action Needed. . . . . . . . . . . 61 d. Resources of the Covered Entity. . . . . . . . . 65 3. Timing of Readily Achievable Assessments. . . . . . . 71 4. Documentation of Readily Achievable Assessments . . . 74 D. SERVICES AND EQUIPMENT COVERED BY THE RULES . . . . . . . 75 1. Telecommunications and Telecommunications Service . . 76 a. Provider of Telecommunications Services. . . . . 80 b. Telecommunications Equipment and Customer Premises Equipment 81 2. Manufacturer. . . . . . . . . . . . . . . . . . . . . 89 3. Voicemail and Interactive Menus . . . . . . . . . . . 93 E. ENFORCEMENT OF SECTION 255 . . . . . . . . . . . . . . . 109 1. Overview. . . . . . . . . . . . . . . . . . . . . . .109 2. Enforcing the Rules . . . . . . . . . . . . . . . . .111 a. Damages; Other Remedies and Sanctions. . . . . .111 3. Procedures to be Followed When Complaints Are Filed Pursuant to Section 255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 a. Initial Contact With the Commission. . . . . . .119 b. Form and Content of Informal Complaints; Standing to File121 c. Service; Designation of Agents . . . . . . . . .126 d. Responses to Informal Complaints . . . . . . . .131 e. Review and Disposition of Informal Complaints by the Commission134 f. Formal Complaints . . . . . . . . . . . . . . .140 g. Accelerated Dispute Resolution. . . . . . . . .143 h. Defenses to Complaints . . . . . . . . . . . . .149 4. Limitations on Filing Complaints . . . . . . . . . .152 5. Applicability of Statutory Complaint Resolution Deadlines156 6. Confidential Treatment of Filings . . . . . . . . . .158 7. Ex Parte Treatment of Informal and Formal Complaints.162 8. Actions by the Commission on its own Motion . . . . .164 9. Program Accessibility . . . . . . . . . . . . . . . .166 F. ADDITIONAL IMPLEMENTATION AND ENFORCEMENT MEASURES . . . .167 G. NOTICE OF INQUIRY. . . . . . . . . . . . . . . . . . . . .173 1. Overview. . . . . . . . . . . . . . . . . . . . . . .173 2. Discussion. . . . . . . . . . . . . . . . . . . . . .177 a. Internet Telephony . . . . . . . . . . . . . . 177 b. Computer Based Equipment . . . . . . . . . . . 183 H. PROCEDURAL MATTERS . . . . . . . . . . . . . . . . . . . 186 I. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . . . .192 APPENDIX A: Text of Sections 251(a)(2) and 255 of the Communications Act APPENDIX B: Final Rules APPENDIX C: List of Commenters APPENDIX D: Final Regulatory Flexibility Analysis A. OVERVIEW 1. Introduction 1. In this Report and Order (Order) we adopt rules and policies to implement sections 255 and 251(a)(2) of the Communications Act of 1934, as amended (Act). These provisions, which were added by the Telecommunications Act of 1996 (1996 Act), are the most significant opportunity for the advancement of people with disabilities since the passage of the Americans with Disabilities Act (ADA) in 1990. These provisions require manufacturers of telecommunications equipment and providers of telecommunications services to ensure that such equipment and services are accessible to persons with disabilities, if readily achievable. Congress has recognized that, although we are moving into the information age with increasing dependence on telecommunications tools, people with disabilities remain unable to access many products and services that are vital to full participation in our society. The purpose of sections 255 and 251(a)(2) of the Act is to amend this situation by bringing the benefits of the telecommunications revolution to all Americans, including those who face accessibility barriers to telecommunications products and services. The rules we adopt in this Order will have an historic effect on the ability of Americans with disabilities to access and utilize telecommunications technologies and services. 2. Our nation has an estimated 54 million Americans with disabilities. Persons with disabilities are the largest minority group in the United States, yet despite their numbers, they do not experience equal participation in society. Statistically, most Americans will have a disability, or experience a limitation, at some point in their lives. While only 5.3% of persons 15-24 years of age have some degree of functional limitation, 23% of persons in the 45-54 age range experience functional limitation. The percentage of those affected by functional limitations increases with age: 34.2% of those aged 55-64; 45.4% of those aged 65-69; 55.3% for those aged 70-74; and 72.5% for those aged 75 and older. The number of persons with functional limitations will also increase with time. Today, only about 20% of Americans are over age 55, but by the year 2050, 35% of our population will be over age 55. 3. Congress has responded to this need for access and opportunity for individuals with disabilities by passing landmark legislation in a range of areas: education, employment, tax policy, transportation and assistive technology. These laws include the ADA, the Individuals with Disabilities Education Act of 1997, the Assistive Technology Act of 1998, and the Workforce Investment Act of 1998, which amended section 508 of the Rehabilitation Act. Congress has also passed legislation focused specifically on access to communications: Title IV of the ADA (telecommunications relay services) the Telecommunications Accessibility Enhancement Act of 1988, the Hearing Aid Compatibility Act of 1988, and the Television Decoder Circuitry Act of 1990. All of these laws recognize the importance of access to all aspects of society, and access to communications technology in particular. 4. Through the 1996 Act, Congress recognized the importance of access to telecommunications for all people. Telecommunications has become such a common tool that its use is essential for participation in nearly all aspects of our society. Today, most Americans rely on telecommunications for routine daily activities, such as making doctors' appointments, calling home when they are late for dinner, participate in conference calls at work, and making airline reservations. Moreover, diverse telecommunications tools such as distance learning, telemedicine, telecommuting and video conferencing enable Americans to interface anytime from anywhere. Understanding that communications is now an essential component of American life, Congress intended the 1996 Act to provide people with disabilities access to employment, independence, emergency services, education, and other opportunities. 5. More specifically, telecommunications is a critical tool for employment. If telecommunications technologies are not accessible to and usable by persons with disabilities, many qualified individuals will not be able to work or achieve their full potential in the workplace. Congress recognized the importance of creating employment opportunities for people with disabilities with Title I of the ADA, which addresses the employer's responsibilities in making the workplace accessible to employees with disabilities. As noted by UCPA, when essential job functions require the ability to use and operate devices and services, people with disabilities are at a disadvantage when these devices and services have not been designed with accessibility in mind. Unemployment among people with severe disabilities is roughly 73%, at a time when our country is experiencing the lowest unemployment rate in years. Persons with disabilities who are employed earn on average only one-third the income of the non-disabled population. The rules we adopt today complement Title I of the ADA by giving employers expanded tools with which to employ and accommodate persons with disabilities. 6. Access to telecommunications can also bring independence. The disability community has told the Commission of the frustration of not being able to check the balance of a checking account using telecommunications relay service, or not being able to tell if a wireless phone is turned on, or not being able to use a calling card because of inadequate time to enter the appropriate numbers. The rules adopted in this Order may be essential in bringing a great measure of independence to members of the disability community. Access to telecommunications services also plays a critical role in life-threatening emergencies. The Commission has received numerous reports from relatives of senior citizens saying that their elderly parents could live on their own, if only they had telecommunications equipment that they could use. 7. The benefits of increased accessibility to telecommunications are not limited to people with disabilities. Just as people without disabilities benefit from the universal design principles of the ADA and the Architectural Barriers Act (for example, a parent pushing a stroller over a curb cut), many people without disabilities will also benefit from accessible telecommunications equipment and services. Indeed, many of us already benefit from accessibility features in telecommunications today: vibrating pagers do not disrupt meetings; speaker phones enable us to use our hands for other activities; and increased volume control on public payphones allows us to talk in noisy environments. We expect many similar results from the rules we adopt today. More importantly, we all benefit when people with disabilities become active in our communities and in society as a whole. Congress clearly intended that these provisions would make a real difference in the lives of people with disabilities, and of all Americans. As the Senate stated in its report on these accessibility provisions: The Committee recognizes the importance of access to communications for all Americans. The Committee hopes that this requirement will foster the design, development, and inclusion of new features in communications technologies that permit more ready accessibility of communications technology by individuals with disabilities. The Committee also regards this new section as preparation for the future given that a growing number of Americans have disabilities. 2. Background 8. Congress set forth a comprehensive framework to achieve accessibility in sections 255 and 251(a)(2). In particular: þ Section 255(a) defines the terms "disability" and "readily achievable" to have the same meaning as set forth in the ADA. þ Section 255(b) requires a manufacturer of telecommunications equipment or customer premises equipment (CPE) to ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable. þ Section 255(c) requires a provider of telecommunications service to ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable. þ Whenever the accessibility requirements of sections 255(b) and 255(c) are not readily achievable, section 255(d) requires manufacturers and service providers to ensure compatibility with existing peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve access, if readily achievable. þ Section 251(a)(2) provides that each telecommunications carrier has the duty not to install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to section 255 or 256. þ Section 255(f) states that nothing in this section shall be construed to authorize any private right of action to enforce any requirement of this section or any regulation thereunder. The Commission shall have exclusive jurisdiction with respect to any complaint under this section. þ Section 255(e) states that within 18 months after the date of enactment of the Telecommunications Act of 1996, the Architectural and Transportation Barriers Compliance Board (Access Board) shall develop guidelines for accessibility of telecommunications equipment and customer premises equipment in conjunction with the Commission. The Board shall review and update the guidelines periodically. 9. To implement its obligations pursuant to section 255(e), the Access Board convened the Telecommunications Access Advisory Committee (TAAC) to develop recommended equipment accessibility guidelines for consideration by the Access Board. The TAAC included representatives from equipment manufacturers, software firms, telecommunications providers, organizations representing persons with disabilities, and other persons interested in telecommunications accessibility. The TAAC released its Final Report in January 1997. 10. Thereafter, the Access Board adopted the Telecommunications Act Accessibility Guidelines (the guidelines) for equipment in its Order (Access Board Order), drawing heavily on the TAAC Report recommendations. The guidelines consist of: (1) general accessibility requirements; (2) specific guidance on the ways in which the functions necessary to operate a product should be made accessible if readily achievable; and (3) standards for compatibility with peripheral devices and specialized CPE. The Access Board Order also contains an Appendix which is advisory in nature and provides expanded descriptions of the guidelines, offering suggestions of strategies to assist in achieving accessible design. 11. In April 1998, the Commission issued a Notice of Proposed Rulemaking (NPRM), building in part from a the Access Board guidelines and in part from a Notice of Inquiry it adopted in September 1996. In the NPRM, the Commission made tentative conclusions about the scope of the Act's coverage, the definition of the term "readily achievable," and other key matters. Over two hundred individuals, organizations, and businesses filed comments and reply comments in response to the NPRM. This Order is a final step in the development and adoption of the rules to implement section 255. 3. Summary 12. A summary of the decisions in this Order is provided below: þ We adopt rules identical to or based upon the Access Board guidelines, with a few minor exceptions. þ We require manufacturers and service providers to develop a process to evaluate the accessibility, usability, and compatibility of covered services and equipment. þ We require manufacturers and service providers to ensure that information and documentation provided to customers is accessible to customers with disabilities, if readily achievable. Where manufacturers and service providers furnish employee training, such training programs must consider certain factors relating to accessibility requirements. þ With minor changes, we adopt the Access Board definition of the term "accessibility," incorporating the list of ways in which the functions of a product should be made accessible. We also apply this definition to both equipment and services. þ Consistent with the Access Board definition, we define the term "usability" as access to the full functionality of, and documentation for, the product or service, including instructions, billing, product or service information (including accessible feature information), documentation, and technical support functionality. þ We adopt four of the Access Board's five criteria for determining "compatibility." We do not include the criterion of compatibility with prosthetic devices, but instead include that criterion in our definition of "accessibility." þ Consistent with the ADA, we define the term "readily achievable" as easily accomplishable and able to be carried out without much difficulty or expense. Determinations as to what is "readily achievable" will be made on a case-by-case basis considering factors which include: (1) the cost of the action; (2) the nature of the action; and (3) the overall resources available to the entity. þ We determine that section 255, by its terms, applies to the design and production of each individual product and service offered by a manufacturer or service provider. The obligation of a manufacturer or service provider to review the accessibility of a product or service, and incorporate accessibility features, where readily achievable, must occur at every natural opportunity. þ We require the universal deployment of accessibility features that can be incorporated into product design when readily achievable. For those features or actions that cannot be universally deployed, but are readily achievable to incorporate into some products and services, manufacturers and service providers have the flexibility to distribute those features across their products or services as long as they do all that is readily achievable. þ We determine that, pursuant to section 251(a)(2), a telecommunications carrier may not install network features, functions, or capabilities that do not comply with the accessibility requirements of this Order. þ We determine that the terms "telecommunications" and "telecommunications services" have the meanings set forth in section 3 of the Act. þ We determine that the terms "telecommunications equipment" and "customer premises equipment" have the meanings set forth in section 3 of the Act, and include software integral to the equipment's operation. þ We determine that the term "manufacturer" means an entity that makes or produces a product, including any entity that exercises significant control over the design, development or fabrication process. þ In order to ensure the accessibility of telecommunications services, we assert ancillary jurisdiction to extend the accessibility requirements of this Order to providers of voicemail and interactive menu service, as well as to manufacturers of equipment which performs those functions. þ We adopt an informal complaint procedure in which manufacturers and service providers must attempt to resolve the customer's concerns and respond to the Commission within 30 days. Manufacturers or service providers are not required, as an initial response to each complaint, to supply a detailed analysis of what is and is not readily achievable to accomplish. The Commission may, based on a single complaint or a trend or pattern of practices, initiate inquiries or investigations to determine if a manufacturer is fulfilling its section 255 obligations. þ We encourage, but do not require, consumers to contact the covered entity in advance of filing an informal complaint with the Commission. We allow complainants to file a formal complaint for adjudication of a dispute at any time. 4. Authority to Promulgate Rules 13. In the NPRM, we tentatively concluded that we had authority to adopt regulations implementing section 255 pursuant to section 4(i), 201(b), and 303(r). As supported by the record, we conclude that we have authority to adopt regulations to implement section 255. We find that the language of section 255(f), which bars any private right of action "to enforce any requirement of this section or any regulation thereunder," expressly contemplates the Commission's enactment of regulations to carry out its enforcement obligations under the provisions of section 255. Furthermore, in a case challenging the Commission's authority to adopt rules pursuant to another provision of the 1996 Act, the Supreme Court held "that [section] 201(b) explicitly gives the FCC jurisdiction to make rules governing matters to which the 1996 Act applies." In other words, an individual provision of the Communications Act need not contain an express grant of rulemaking authority in order to empower the Commission to adopt implementing regulations. For these reasons, we reject the arguments of some parties that Congress' deletion of Senate bill language requiring the Commission to promulgate rules to implement section 255 should be construed as limiting the Commission's discretionary rulemaking power. We conclude, therefore, that at a minimum, section 255 itself grants us authority to enact rules to implement the provisions of section 255. In addition, most commenters supported exercising this authority because covered entities would benefit from having rules that provide clear guidance in fulfilling their section 255 obligations. 14. The extensive record herein supports the adoption of rules consistent with the Access Board's guidelines. Accordingly, we adopt rules in this Order that are identical to or based upon the Access Board guidelines, with a few minor exceptions. Moreover, as explained below, because the Access Board guidelines, though directed to equipment, are sufficiently broad in their language, we conclude below that they can effectively serve as the basis for rules for both covered services and equipment. Therefore, we apply our rules uniformly to both covered services, as well as covered equipment. 15. We note, however, that we have the discretion to depart from the Access Board guidelines where merited. Most commenters did not question our discretion to depart from the Access Board guidelines, although some urged us to use our discretion to adopt the guidelines wholesale and apply them to services. In addition, some commenters felt that we should depart from the guidelines only under special circumstances. While we acknowledge the Access Board's expertise in identifying the access requirements of persons with disabilities in a comprehensive manner, we find that the Commission would not be bound to adopt the Access Board's guidelines as its own, or to use them as minimum standards, if it were to conclude, after notice and comment, that such guidelines were inappropriate. Typically, unless otherwise provided by statute, "guidelines" are distinct from rules and, like a general statement of policy or procedure, are not considered to have the force and effect of law. Because section 255(e) requires that the Commission participate in the Access Board's formulation of guidelines, however, we believe that Congress intended that such guidelines be given significant consideration in implementing section 255. The fact that Congress mandated the Board's continuing involvement through periodic review and updating of guidelines under section 255(e) further supports our decision to give significant consideration to the Board's guidelines, as we have done throughout our deliberations. We also recognize that these guidelines are the product of extensive deliberations between the disability community and the telecommunications industry, which gives them considerable credibility in our view. B. REQUIREMENTS FOR COVERED ENTITIES 1. Overview 16. The requirements that covered entities (as discussed in section D, infra) must follow are outlined below. First, as stated in the statute, a manufacturer of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable. Second, a provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable. Finally, whenever the requirements set forth above are not readily achievable, such a manufacturer or provider shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable. 17. To implement these statutory requirements, we must consider and interpret the key terms used in section 255, including "disability," "accessible to and usable by," "compatibility," and "readily achievable." The meanings of these terms are critical to the obligations of entities covered by section 255. 2. Disability 18. Section 255 provides that the term "disability" has the meaning given to it by section 3(2)(A) of the Americans with Disabilities Act (ADA). The ADA defines "disability" as "(1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) having a record of such an impairment; or (3) being regarded as having such an impairment." Without expressly defining disability, the Access Board explained that its "guidelines are required to principally address the access needs of individuals with disabilities affecting hearing, vision, movement, manipulation, speech, and interpretation of information." 19. We adopt the ADA definition of disability in its entirety, as required under Section 255 of the Act. Indeed, the statutory language requires that we apply the same definition as set forth in the ADA. We further agree with commenters that, in implementing section 255, we should follow any applicable judicial and administrative precedent stemming from this definition, except in those limited circumstances in which such precedent is shown to be unsuitable to a specific factual situation. We disagree with TIA that the definition of disability should be limited to include "only those persons with functional limitations that affect their ability to use telecommunications equipment and CPE." TIA's proposal would effectively limit the definition of "disability" to the first prong of the ADA definition, because such a definition would not reach persons with a record of an impairment or persons who are "regarded as" having disabilities. We decline to depart from or alter the ADA definition, where Congress expressly incorporated the ADA definition of disability in its entirety. 20. In order to provide an additional measure of guidance to manufacturers and service providers, and consistent with the Access Board, we conclude further that, at a minimum, the statutory reference to "individuals with disabilities" includes those with hearing, vision, movement, manipulative, speech, and cognitive disabilities. We agree that individuals with these disabilities experience the great majority of access barriers that section 255 was intended to address. By no means, however, is the definition of "disability" limited to these specific groups. Determinations of what constitutes a "disability" under section 255 must be made on a case-by- case basis. 3. "Accessible To and Usable By" 21. Section 255 requires equipment manufacturers to ensure that their equipment is designed, developed and fabricated to be "accessible to and usable by" individuals with disabilities, if readily achievable, and requires service providers to ensure that the service is "accessible to and usable by" individuals with disabilities, if readily achievable. The terms "accessible to" and "usable by" are not defined in either section 255 or the ADA. 22. The Access Board adopted a functional approach, defining equipment "accessible to" individuals with disabilities as including various input, control and mechanical functions, as well as output, display and control functions. The Access Board guidelines for equipment define "usable by" as meaning that "individuals with disabilities have access to the full functionality and documentation for the product, including instructions, product information (including accessible feature information), documentation, and technical support functionally equivalent to that provided to individuals without disabilities." The Access Board states that the "usable by" requirement is intended "to convey the important point that products which have been designed to be accessible are usable only if an individual has adequate information on how to operate the product." In addition, section 1193.37 of the Access Board's rules calls for pass-through of "cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide telecommunications in an accessible format," in order to ensure, among other things, that signal compression technologies do not remove information needed for access, or restore it upon decompression. 23. We adopt the Access Board's definitions of "accessible to" and "usable by." We initially proposed in the NPRM to combine these terms under one definition under our rules, reasoning that the term "accessible to" should be used in its broadest sense to refer to the ability of persons with disabilities actually to use the equipment or service by virtue of its inherent capabilities and functions. Upon further review, however, we believe that it is more precise, and will provide clearer guidance to entities covered by section 255, for us to follow the lead of the Access Board and define these two terms separately because the requirements of "accessible to" and "usable by" embrace two distinct concepts. While "accessible to" generally refers to the incorporation of specific features in products and services that will allow people with disabilities to access those products, we agree with the Access Board that "usable by" generally refers to the ability of people with disabilities to learn about and operate those features effectively. Although the Access Board guidelines were designed in the context of equipment and CPE accessibility, we conclude that these guidelines are equally applicable to the services context, and thus our definition of accessibility and usable applies to both equipment and services. We also adopt the proposal made in the NPRM to ensure that support services (such as consumer information and documentation) associated with equipment and services are accessible to and usable by people with disabilities. 24. We conclude that, with one technical exception and one addition, the input, control and mechanical functions in section 1193.41 of the Access Board guidelines and the output, display and control functions in section 1193.43 of the Access Board guidelines shall constitute the definition of "accessible to" under the Commission's rules. We disagree with Phillips and TIA that adoption of the Access Board list as part of our definition of "accessible to" could be read as requiring manufacturers to incorporate all 18 functions into each product, and thus would require manufacturers to "attempt the impossible." Phillips' and TIA's argument ignores the fact that all assessments of a product's or service's accessibility, and decisions regarding which of the 18 areas on the list can be addressed, must be made within the boundaries of the readily achievable qualification of the statute. The list is not a set of mandates, but rather a list of areas covered entities should be considering when designing products and services. For this reason, we agree with commenters that the definition is fair and appropriately descriptive. 25. We do not adopt section 1193.43(e) of the Access Board rules, which would require that volume control telephones provide a minimum of 20 dB adjustable volume gain. We decline to adopt this 20 dB volume control standard under our rules because it conflicts with rules that we have previously adopted pursuant to the Hearing Aid Compatibility Act. While we recognize the rationale behind Access Board's decision to provide a more stringent volume control standard, we decline to supersede existing Commission rules developed under a lengthy negotiated rulemaking pursuant to a section of the Act focused expressly on this issue. Furthermore, because the industry has, since 1997, been making plans to incorporate our HAC Act volume control requirements in all telephones to be manufactured in, or imported for use in, the United States after January 1, 2000, it would be unduly disruptive and burdensome for us to alter the volume control technical standards at this time. 26. We also do not adopt a separate requirement regarding net reductions similar to that in section 1193.30 of the Access Board's guidelines. We believe that this requirement is addressed under the readily achievable definition and analysis. As we noted in the NPRM, the fact that a product has particular accessibility features is evidence that inclusion of those features in later products from the same producer is readily achievable. The flexibility of the readily achievable analysis recognizes that it will generally be unacceptable to completely eliminate an existing accessibility feature, but that legitimate feature trade-offs as products evolve are not prohibited. 27. We do, however, add to our rules one input factor to the list developed by the Access Board. Specifically, the definition of "accessible to" shall include being "operable with prosthetic devices." The Access Board's guidelines under section 255(d) for compatibility included "compatibility of controls with prosthetics" as one criterion. We agree with Trace, however, that prosthetic devices should not be considered peripheral devices subject to the compatibility requirements of section 255(d), but rather that manufacturers and service providers should be required to consider direct access to input controls by persons using prosthetic devices as part of their "accessibility" obligations under sections 255(b) and (c). Because some people with disabilities rely on prosthetic devices, we conclude that consideration of direct access by such persons is appropriately encompassed in the definition of "accessible to. 28. We adopt the Access Board's definition of "usable by" as our definition under the rules. As many commenters that addressed this issue recognized, providing access to all supporting documentation and support services is an essential ingredient for the successful implementation of section 255 and is encompassed by our definition of "usable by." Support services include, but are not limited to, access to technical support hotlines and databases, access to repair services, billing and any other services offered by a manufacturer or service provider that facilitate the continued and complete use of a product or service. Support services also include efforts by manufacturers and service providers to educate its sales force about the accessibility of their products and how accessibility features can be used. 29. We further conclude, consistent with the Access Board's guidelines and supported by the record, that "usable by" means manufacturers and service providers ensure that consumers with disabilities are included in product research projects, focus groups, and product trials, where applicable, to further enhance the accessibility and usability of a product, if readily achievable. Consumers with disabilities, even if they can access the functionalities of a specific product, may still face significant barriers in the use of telecommunications equipment and services. We believe that Congress, through its inclusion of the words "usable by," intended that consumers with disabilities should be able to use telecommunications equipment and services on terms equal to those of any other customer, and that participation in the activities described above is an important step towards reaching this goal. 30. We also conclude, consistent with the Access Board guidelines and the statutory definition of CPE, that specialized CPE, such as direct-connect TTYs, are considered a subset of CPE. The statute's requirement that manufacturers and service providers ensure compatibility with CPE which has a specialized use does not change the fact that this equipment still meets the definition of CPE as discussed infra in paragraphs 80 et. seq. We define specialized CPE as CPE which is commonly used by individuals with disabilities to achieve access. Thus, manufacturers and service providers have the same obligations to ensure accessibility and usability of SCPE as they do for any other CPE. 4. Compatibility 31. Section 255 requires that, when it is not readily achievable to make equipment and services accessible to or usable by individuals with disabilities, the manufacturer or service provider shall ensure that the equipment or service is "compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, where readily achievable." 32. The Access Board defines "peripheral devices" as "[d]evices employed in connection with telecommunications equipment or customer premises equipment to translate, enhance, or otherwise transform telecommunications into a form accessible to individuals with disabilities." It further explains that "peripheral devices" refers to, for example, audio amplifiers, ring signal lights, some TTYs, refreshable Braille translators, text-to-speech synthesizers and similar devices that must be connected to a telephone or other customer premises equipment to enable an individual with a disability to originate, route, or terminate telecommunications. The Access Board also states that peripheral devices cannot perform these functions on their own. The Access Board defines "specialized customer premises equipment" (SCPE) as "[e]quipment, employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications, which is commonly used by individuals with disabilities to achieve access." The Access Board guidelines categorize specialized CPE as a subset of CPE and state that manufacturers of specialized CPE should also make their products accessible to all individuals with disabilities, where readily achievable. Finally, the Access Board lists five criteria for determining compatibility: (1) external access to all information and control mechanisms; (2) existence of a connection point for external audio processing devices; (3) compatibility of controls with prosthetics; (4) TTY connectability; and (5) TTY signal compatibility. 33. As proposed in the NPRM, and supported by the record, we will use the Access Board compatibility criteria as our starting point. We adopt four of the five criteria set forth by the Access Board as the definition of "compatibility" under section 255. We do not adopt the criterion of "compatibility of controls with prosthetic devices," which we have instead added to the definition of accessibility. 34. Furthermore, we agree with commenters that we should adopt the Access Board's definitions of "peripheral devices" and "specialized CPE." As proposed in the NPRM, the definitions of the terms "peripheral devices" and "specialized CPE" limit the compatibility requirement to those devices that have a specific telecommunications function or are designed to be used primarily to achieve access to telecommunications. Thus, for example, equipment used in direct conjunction with CPE, such as amplifiers for persons with hearing disabilities, or screen readers for persons with visual disabilities, would be considered either peripheral devices or specialized CPE. In contrast, assistive technology devices such as hearing aids or eyeglasses, which have a broad application outside the telecommunications context, used in conjunction with peripheral equipment or specialized CPE, would not themselves be considered specialized CPE or peripheral devices under the Act. 35. To comply with its compatibility obligations, a manufacturer or service provider must assess whether it is readily achievable to install features or design equipment and services so that the equipment or service can meet the criteria of compatibility. We agree with NAD that compliance with these criteria must be mandatory. We also agree with commenters who point out that as technology evolves, the guidelines and the definition of "compatibility" may need to be revised. Furthermore, in recognition of the fact that these criteria were intended for equipment and CPE, we encourage service providers to consult with the disability community to identify other criteria for compatibility of services, in addition to TTY signal compatibility. Additionally, we encourage industry to develop voluntary industry-wide standards to augment the mandatory criteria we adopt today, because it will offer the industry flexibility in advancing the goals of compatibility in accordance with the requirements of section 255. 36. We require manufacturers and service providers to exercise due diligence to identify the types of peripheral devices and specialized CPE "commonly used" by people with disabilities with which their products and services should be made compatible, if it has not been readily achievable to make those products and services accessible. In the NPRM, we had proposed using the concepts of affordability and availability to help define the statutory term "commonly used" in section 255(d). Commenters objected strongly to the use of these concepts, however, as well as to our proposal to rely on state equipment distribution programs as a guide to determine "commonly used" equipment. Commenters argued that state equipment programs were limited by their own funding constraints or selection process and did not accurately represent the equipment preferred by consumers. We agree. We conclude, therefore, that affordability and general market availability are insufficient, and in some cases inappropriate, criteria for determining whether a specific peripheral device or piece of specialized CPE is "commonly used" by persons with disabilities. We agree with commenters who note that peripheral devices or specialized CPE may be commonly used by members of a certain disability population, even if those devices are relatively expensive and only available through specialized outlets. Further, we note that, when determining whether a particular device is commonly used by individuals with disabilities, a manufacturer or provider should look at the use of that device among persons with a particular disability. Contrary to some commenters' proposals, we decline to maintain a list of functions (e.g., converting text to speech) or devices to determine what equipment is "commonly used," because what is "commonly used" by consumers may change rapidly as technology evolves. 5. Network Features, Functions, or Capabilities 37. Section 251(a)(2) of the Act requires that telecommunications carriers not install network features, functions, or capabilities that do not comply with the guidelines or standards established pursuant to section 255. We conclude that telecommunications carriers must not install service logic and databases associated with routing telecommunications services, whether residing in hardware or software, that do not comply with the accessibility requirements of these rules. This is consistent with the definition of telecommunications equipment discussed in section D.1.b., infra, and our tentative conclusion in the NPRM that section 251(a)(2) governs network configuration. 38. This is an important provision given the role of common carriers and the realities of network architecture. Without this provision, network architecture could inhibit the use of the accessible services and equipment otherwise required by these rules. In the traditional public switched telephone network (PSTN), an ordinary call may traverse a number of switches between the calling party and the called party. Prior to the mid-1960s, the service logic necessary to route calls across the network was hardwired into switching systems. In the mid-1960s, stored program control (SPC) switching systems were introduced. This provided a somewhat more flexible environment and allowed the creation of new services. These new services included Custom Calling Services such as call waiting, call forwarding, and three way calling. Even greater flexibility was provided with the deployment of common channel signaling (CCS) or signaling system number 7 (SS7) in the mid-1970s and with the subsequent development of the Intelligent Network (IN) concept. 39. The "intelligence" (i.e., the service logic) of the IN is taken out of the individual switches and placed in software and associated data bases residing in computer nodes called Service Control Points (SCPs). The SCPs are distributed throughout the network. In the IN architecture, the individual switches access the software/data bases residing in the SCPs via the SS7 network. The fundamental advantage of this architecture is that the network becomes service-independent. That is, new capabilities can be rapidly introduced into the network and services can be more easily tailored to meet the requirements of individual customers. This is because the necessary changes in service logic occur in software rather than hardware and at only a limited number of locations rather than at each switch. 40. This architecture of the PSTN is the basis for widely deployed and accepted services such as the Custom Local Area Signaling services (CLASS) and 800-number and Alternative Billing Services (ABS). It is also the basis for an expanding number of other services that change the features, functionality, and capabilities of the PSTN. By using software-based logic programmed into the network and information such as the calling and called party telephone numbers, the time- of-day, information entered by the customer placing or receiving the call, and information stored in the network, calls can be handled in a host of different ways. One simple example, a service called Area Number Calling Service, is described as follows: This [Area Number Calling] service is useful for companies or businesses that want to advertise one telephone number but want their customer's calls routed to the nearest or most convenient business location. The SCP service logic and data (e.g., zip codes) are used to match between the calling party's telephone number and their geographic location. The call is then routed to the company or business location that is closest to or most convenient for the calling party. 41. In the architecture just described, there may be multiple entities involved. In addition to the service providers, there are entities that supply the equipment used in the network. In terms of the network equipment, this may include (a) the manufacturer of the switching equipment including both hardware and software (including that necessary for basic call processing); (b) the manufacturer of the computer and related equipment used in the SCP; and (c) the manufacturer/supplier of the software-based service logic and databases used in the SCP. In some instances, the supplier of each of these parts may be the same entity and, at the other extremes, multiple entities may be involved. We note that the service provider may furnish its own software and databases necessary to create or maintain telecommunications services. Indeed, giving the provider the ability to create new and customized services was one of the main motivations for the migration to the service independent architecture. 42. Because service logic and databases associated with routing telecommunications services, whether residing in hardware or software, create network features, functions, and capabilities, we adopt this rule. Thus, we conclude that, in accordance with section 251(a)(2) of the Act, telecommunications carriers must not install service logic and databases (software- or hardware-based) that do not comply with the standards established pursuant to section 255. The above analysis is consistent with the definition of telecommunications equipment contained in the Act. That is, both hardware and software are included in the definition of telecommunications equipment given in the Act. Our findings are also consistent with our tentative conclusion in the NPRM that section 251(a)(2) governs carriers' configuration of their network capabilities. Stated another way, providers configure their networks through the installation of service logic and databases. As we indicated in the NPRM, we view section 251(a)(2) to mean that the resulting configuration "should facilitate -- not thwart -- the employment of accessibility features by end users." C. READILY ACHIEVABLE 1. Definition of "Readily Achievable" 43. Section 255(b) and (c) require manufacturers of telecommunications equipment or customer premises equipment and providers of telecommunications service to design the equipment or service to be accessible to and usable by individuals with disabilities, if "readily achievable." If the requirements of subsections (b) and (c) are not readily achievable, the manufacturer or service provider must ensure that the equipment or service is compatible with existing peripheral devices or specialized CPE commonly used by people with disabilities to achieve access, if "readily achievable." 44. Under section 255, the term "readily achievable" has the meaning given to it in section 301(9) of the ADA. The ADA provides: The term "readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include -- (A) the nature and cost of the action needed under [the ADA]; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. 45. Title III of the ADA, where the term "readily achievable" is found, requires places of public accommodation to "remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals . . . where such removal is readily achievable." Title III also requires an entity that "can demonstrate that the removal of a barrier . . . is not readily achievable," to "make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable." 46. The United States Department of Justice (DOJ), which is responsible for implementation and enforcement of Titles II and III of the ADA, adopted the ADA's definition of "readily achievable" in its rules, with some modifications. Specifically, the DOJ reordered the factors, replaced the term "covered entity" with "parent entity," and added the term "if applicable" to the beginning of the third and fourth factors. While the DOJ preserved all four statutory factors in its regulation, it also added a factor allowing "legitimate safety requirements, including crime prevention measures" to be considered. The DOJ provided a non- exhaustive list of sample actions that a public accommodation could take to fulfill its obligation, if readily achievable, to remove barriers, such as installing ramps, making curb cuts, installing flashing alarm lights, and widening doors. The DOJ also developed a "priority list" in its regulation, urging public accommodations to take "readily achievable" actions to remove barriers in accordance with those priorities. 47. We adopt the ADA's definition of "readily achievable." We agree with the DOJ that this definition is intended to ensure that a "wide range of factors be considered in determining whether an action is readily achievable." Under ADA precedent, a flexible, case-by-case analysis is employed in determining whether removal of barriers is "readily achievable." We agree with commenters that individual facts and circumstances will vary, and that what is readily achievable must be determined on a case-by-case basis. Our goal, therefore, is to set forth an analytical framework that will provide guidance to manufacturers and service providers as they take the steps needed to make their products and services accessible to people with disabilities. 48. The primary focus of a "readily achievable" analysis should be upon three general considerations delineated in the ADA definition, namely (1) the cost of the action; (2) the nature of the action; and (3) the overall resources available to the entity, including resources made available to the entity by a parent corporation, if applicable, depending on the type of operation and the relationship between the two entities. We decline to include consideration of feasibility, expense, and practicality, as proposed in our NPRM. After reviewing the record, we are persuaded that "readily achievable" determinations should track more closely the ADA definition that is incorporated in section 255. In our rule, we have modified the definition so that it more closely correlates with the terms used in section 255. For example, we have replaced the word "facility" throughout the definition with the terms "manufacturer" and "service provider," as appropriate. We also have inserted the terms "if applicable" before the third and fourth prongs of the definition. We believe that these modifications will provide clearer guidance to entities covered by section 255 with respect to the application of "readily achievable." If our experience enforcing this statute persuades us that including some other considerations may prove beneficial, we will, at a later time, consider including them. Furthermore, we agree with those parties who have argued that, in interpreting section 255, we should look to the "substantial body of judicial decisions interpreting and applying" the terms of the ADA, including the phrase "readily achievable." 2. Application of Readily Achievable a. In General 49. In implementing the requirements of section 255, we decline to adopt a "product line" framework proposed primarily by manufacturers of equipment. Under this approach, a manufacturer or service provider would not need to conduct a "readily achievable" analysis for each produce or service, but instead would ensure that select products within its product lines are accessible to persons with disabilities. We conclude that section 255, by its terms, applies to the design and production of individual products and service offered by a manufacturer or service provider. Section 255(b) states that a manufacturer shall ensure that "the equipment" is designed, developed and fabricated to be accessible to individuals with disabilities, if readily achievable. Likewise, section 255(c) directs providers of telecommunications service to ensure that "the service" be accessible, if readily achievable. This language strongly suggests that Congress intended to make these accessibility requirements applicable to each piece of equipment and to each service, and not more generally to product lines. 50. Equally important, we believe that our interpretation of the statutory language best realizes what we consider to be two primary goals of section 255. First, the statute ensures that consumers with disabilities have access to the telecommunications products and services that are available in the general market. Thus, we concur with the comments submitted by consumers with disabilities, who oppose a product line framework because it would not permit them to utilize anything but "specialized" products. Second, section 255 brings universal design and access engineering principles to the telecommunications industry, similar to developments in the architectural and transportation industries that have resulted from the ADA and Architectural Barriers Act. We view section 255 as a statute designed to change the status quo by requiring manufacturers and service providers to consider products and services for persons with disabilities not as a specialized field, but as part of the general market. Adoption of a product line approach would fail to ensure accessibility of all products and services, wherever it is readily achievable. 51. We recognize that there are accessibility features that can be incorporated into the design of products with very little or no difficulty or expense. These features must be deployed universally. We will not identify specific features that fall into this category, because it necessarily varies given the individual circumstances. Manufacturers and service providers must make their own determinations based on the factors in the readily achievable definition. Thus, manufacturers and service providers cannot decline to incorporate modest features that will enhance accessibility simply because some other product or service with the feature may be available. We expect that, over time, more and more features will be incorporated into all products in this manner, and that features that today may not be readily achievable soon will become routine and universally adopted. 52. With respect to those features or actions that are not readily achievable to be deployed universally, but are readily achievable to be incorporated into some products and services, manufacturers and service providers have the flexibility to distribute those features across product or service lines as long as they do all that is readily achievable. In addition, we expressly encourage manufacturers and service providers to work closely with the disability community to ensure that under- represented disability groups, and multiple disabilities (such as deaf-blindness), are not ignored. 53. Finally, in those instances where accessibility under subsections (b) or (c) of section 255 is not readily achievable, service providers and manufacturers are required to comply with subsection (d), which states that they must ensure that their equipment or services are compatible with existing specialized CPE or peripheral devices commonly used by persons with disabilities to achieve access, if readily achievable. 54. We believe this framework will provide manufacturers and service providers a viable means for compliance with section 255, while promoting accessibility to the maximum extent possible. We expect that different companies, faced with their unique circumstances, may well come to different conclusions about deployment of accessibility features. We believe that is a desirable outcome that will maximize the range and depth of accessible products and services available to customers and will capitalize on the positive forces of competition. b. Cost of the Action Needed 55. In determining whether an action is "readily achievable," one consideration is the "cost" of the action. In the NPRM, we asked a number of questions regarding how to determine cost. After consideration of the record, we conclude that "cost," for purposes of the "readily achievable" evaluation, is the incremental amount that a manufacturer or service provider expends to design, develop, or fabricate a product or service to ensure that it is accessible. We recognize that it may be difficult at times for a manufacturer or service provider to identify the incremental cost of making its products or services accessible. For the sake of simplicity, however, this analysis should begin by calculating, to the extent possible, the incremental cost of facilities, plant, labor, software, hardware or other concrete actions necessary to design the product or service to enhance or provide accessibility. For example, a manufacturer of wireless handsets might calculate the cost of designing and installing a nub on the "5" key of a phone's keypad that would provide a tactile cue for persons with vision disabilities. The incremental cost of adding keypads with a nub would be the total cost of producing the phone with keypads with a nub, less the total cost of producing the phone without keypads with a nub. 56. Although we tentatively concluded in the NPRM that it would be appropriate to consider net costs, taking into account such factors as the potential for recovery of expenses from consumers through increased sales or higher product prices, we now reject that approach for several reasons. We believe that an assessment of market factors, such as the ability of a service provider or manufacturer to recover its costs through price changes, would involve speculation. Moreover, not considering market factors is consistent with ADA precedent, and we are not convinced that there are any factors specific to telecommunications that compel us to adopt an interpretation of costs different from that under the ADA. Indeed, the Access Board has argued that because "readily achievable" is a term rooted in the ADA, we should not stray from the well-established interpretation given to "costs" under prior disability rights statutes, particularly when it could have adverse consequences for the disability community. We also are persuaded that introducing cost recovery or market considerations into the meaning of "cost" could defeat one of the primary purposes of section 255 -- enhancing access to telecommunications equipment and service for a population whose needs have not been addressed by the market alone. For all these reasons, we conclude that "costs" means incremental costs to design, develop or fabricate accessible products or services. 57. While we have concluded that we will not consider market factors in determining what is readily achievable, we do not rule out the ability of manufacturers and service providers to take these market factors into account when making the decisions discussed in section C.2., supra, regarding deployment of more significant readily achievable accessibility features throughout its products. 58. We will permit manufacturers and service providers to consider the cost of disability access actions for a product or service in conjunction with the cost of other actions taken by them to comply with these rules during a fiscal period, as proposed by a number of commenters. This is consistent with the DOJ's approach in its ADA regulation. We agree with DOJ and various commenters that, in some circumstances, it may be appropriate to consider the cost of other accessibility actions as a factor in determining whether a measure is readily achievable. Therefore, manufacturers and service providers may take into account the cumulative cost of all accessibility actions over a specific fiscal period in determining whether an action is "readily achievable." We underscore, however, that "cumulative costs" cannot be the only factor used by a manufacturer or service provider to determine whether a measure is "readily achievable." In particular, the ability to take into account cumulative costs shall not permit a manufacturer or service provider to predetermine caps or quotas on its total spending for section 255 compliance for a given fiscal period. The fact that a manufacturer or service provider already may have spent a certain amount of resources to install an accessibility feature in one product does not terminate its obligation to determine whether it is readily achievable also to install the feature into other products. In short, cumulative access expenditures is simply one factor that can be taken into account in case-by-case determinations. 59. We anticipate that, for some accessibility features, the cumulative cost of including a feature in all products may be well within the bounds of what is readily achievable. Cumulative costs may become a limiting factor, however, when the cost of a certain feature is more significant but still readily achievable, or the manufacturer already has expended considerable resources in installing the same or other features in other products. The "readily achievable" evaluation always must be made in light of the overall resources available to the manufacturer or service provider. Where a particular accessibility measure is not "readily achievable," a manufacturer or service provider then must consider other alternative, readily-achievable measures to make products accessible. 60. Finally, a number of commenters have suggested that the impact of adding an accessibility feature on the timing of a product or service rollout should be taken into consideration during "readily achievable" assessments. A manufacturer or service provider may consider whether inclusion of an accessibility feature significantly will delay production or release of a product, and therefore increase production costs, provided that the manufacturer or service provider demonstrates that it did in fact consider accessibility at the design stage. Of course, the mere fact that inclusion of a feature will add time and cost to production will not, alone, render the measure not readily achievable. c. Nature of the Action Needed 61. Another consideration in the "readily achievable" analysis is the nature of the action needed to make equipment or service accessible to persons with disabilities. The Access Board stated in the advisory appendix to its guidelines that "the nature of the action or solution involves how easy it is to accomplish, including the availability of technology or expertise, and the ability to incorporate the solution into the production process." While commenters generally have not framed their comments in terms of "nature of the action," many address the concepts of "fundamental alterations" and "technical feasibility," which we believe fall within the ambit of "nature of the action." 62. The Access Board found that the "fundamental alteration" concept derives from the "undue burden" test under the ADA and, since "undue burden" is a higher standard than "readily achievable," that the concept of fundamental alteration is implicit in the readily achievable analysis. Since a covered entity must, hypothetically, demonstrate a much more onerous burden in order to be relieved of any obligations under the "undue burden" standard of the ADA, it follows that any actions that constitute an undue burden, including fundamental alterations, are also not "readily achievable." We agree, and therefore believe that a manufacturer or service provider is not required to install an accessibility feature if it can demonstrate that the feature fundamentally would alter the product. Specifically, we agree with several commenters that manufacturers and service providers are not required to incorporate accessibility features within a product that fundamentally alters the product in such a way as to reduce substantially the functionality of the product, to render some features inoperable, to impede substantially or deter use of the product by individuals without the specific disability the feature is designed to address, or to alter substantially and materially the shape, size or weight of the product. We caution parties that the "fundamental alteration" doctrine is a high standard and that the burden of proof rests with the party claiming the defense. In this connection, we note that all accessibility enhancements in one sense require an alteration to the design of a product or service. In order to be a fundamental alteration, however, the feature must alter the product substantially or materially. 63. In the NPRM, we tentatively concluded that technical infeasibility should be one factor in determining whether an accessibility feature is readily achievable. We now conclude that, when assessing the "nature of the action" in a readily achievable analysis, manufacturers and service providers are not required to incorporate accessibility features that are technically infeasible, subject to several limitations. As an initial matter, while technical infeasibility is a consideration, we agree with commenters that it does not exist merely because a particular feature has not yet been implemented by any other manufacturer or service provider. We also caution that technical infeasibility should not be confused with cost factors. In other words, a particular feature cannot be characterized as technically infeasible simply because it would be costly to implement. 64. We agree with several commenters, however, that in some rare instances, "technical infeasibility" may result from legal or regulatory constraints. We also agree with several commenters that technical infeasibility encompasses not only a product's technological limitations, but also its physical limitations. We note, however, that manufacturers and service providers should not make conclusions about technical infeasibility within the "four corners" of a product's current design. Section 255 requires a manufacturer or service provider to consider physical modifications or alterations to the existing design of a product. Finally, we agree with commenters that manufacturers and service providers cannot make bald assertions of technical infeasibility. Any engineering or legal conclusions that implementation of a feature is technically infeasible should be substantiated by empirical evidence or documentation. d. Resources of the Covered Entity 65. Once the cost and nature of the action needed have been determined, it is necessary to ascertain the overall resources of the manufacturer or service provider. We conclude that we should follow the two-step analysis of a covered entity's resources set forth by the DOJ in its ADA regulation. Accordingly, the resources of the "covered entity" (i.e., the manufacturer or service provider) first are examined. The resources of any parent corporation or comparable entity with a legal relationship with the manufacturer or service provider would be examined and taken into account, unless the covered entity or parent can demonstrate why any legal or other constraints prevent the parent's resources from being available to the covered entity. 66. Commenters disagreed as to whether the resources of a parent or other entity should ever be included in the evaluation of the "overall financial resources of the covered entity." Although this phrase from the ADA definition may be susceptible to different interpretations, we conclude that the better construction of the statute is that, for purposes of the readily achievable analysis, the covered entity must take into account any and all financial resources available to it, including resources from third parties. We believe this interpretation is consistent with the text of the statute, as well as the purposes of section 255. The ADA definition speaks broadly about the covered entity's "overall financial resources" without limiting those resources to those derived from the entity's own product sales or investment revenues. The statute's broad phrasing thus supports our conclusion that all available resources should be included, regardless of their source. Where a covered entity benefits from resources of either an affiliated entity, or a third party with whom it has some legally binding relationship, it would be anomalous to determine that those resources should be expressly excluded in determining whether an action is readily achievable within the meaning of section 255. We do not believe that Congress intended to pretend that such resources do not exist. Significantly, our reading is consistent with the DOJ definition of readily achievable, which substitutes the term "parent entity" for covered entity when referring to the resources that should be examined. 67. In reaching our conclusion, we reject Lucent's argument that "inclusion of corporate resources does not yield competitively neutral outcomes." Just the contrary is true. If we were to narrowly circumscribe our assessment of resources by ignoring the fact that some covered entities may have resources available to them from a third party, our readily achievable assessment would not be competitively neutral. Rather, those companies that are benefiting from external resources shielded from readily achievable assessments would have an unfair advantage over companies that do not have access to such resources. We do not believe that Congress intended such a result. Moreover, if we ignored financial resources from third parties, then companies would have an incentive to spin off their operations into smaller subsidiaries in order to lessen the impact of section 255. We decline to adopt an interpretation that could needlessly undermine the statute in that manner. 68. We conclude that in evaluating its "overall resources", the covered entity must take into account financial resources of any kind that may be available from a third party. This would include any capital or other financial assets, recourse to guarantees that may be used for the covered entity's debt financing or to otherwise assist its business, resources in the form of labor or services, or any other items that would affect the "overall financial resources" available to the manufacturer or service provider. Resources of another entity shall be taken into account regardless of whether that other entity is a telecommunications manufacturer or service provider. 69. In some cases, consideration of the resources of another entity may not be applicable because of the nature of the legal relationship between the parties, or because no resources in fact are available to the manufacturer or service provider from the outside entity. For example, as Bell Atlantic notes, our affiliate transaction rules or similar state requirements may limit the ability of an affiliate providing non-regulated services to draw upon the resources of its regulated parent. 70. In the NPRM, we proposed establishing a "rebuttable presumption" that reasonably-available resources are those of the covered entity legally responsible for the equipment or service that is subject to the requirements of section 255. Commenters were divided on the merits of this proposal. After reviewing the record, we have concluded that the better approach is to evaluate the resources of any parent company, or comparable entity with legal obligations to the covered entity, but permit any covered entity (or parent company) to demonstrate why legal or other constraints prevent those resources from being available to the covered entity. We note that the evidence required to make such a showing resides with the covered entity and its parent, and thus it is reasonable to put the burden on the covered entity, or parent, to show why such resources are not available. A deficiency with the presumption proposed in the NPRM is that it may have had the unintended effect of putting the burden on the consumer to prove that a parent's resources were available to the subsidiary, a burden that would be difficult for any consumer to satisfy because relevant evidence would be almost exclusively in the possession of the parent or covered entity. 3. Timing of Readily Achievable Assessments 71. The readily achievable obligation imposed by section 255 is both prospective and continuing. While it is appropriate to consider the time needed to incorporate accessibility solutions into new and upgraded products, technological advances that present opportunities for readily achievable accessibility enhancements can occur at any time in a product cycle. A manufacturer's or service provider's obligation to review the accessibility of a product or service, and add accessibility features where readily achievable, is not limited to the initial design stage of a product. We conclude that manufacturers and service providers, at a minimum, must assess whether it is readily achievable to install any accessibility features in a specific product whenever a natural opportunity to review the design of a service or product arises. If it is readily achievable to include an accessibility feature during one of these natural opportunities, the manufacturer or service provider must install the feature. Natural opportunities could include, for example, the redesign of a product model, upgrades of services, significant rebundling or unbundling of product and service packages, or any other modifications to a product or service that require the manufacturer or service provider to substantially re- design the product or service. 72. Cosmetic changes to a product or service may not trigger a manufacturer's reassessment of a product's accessibility. Thus, simply changing the color, make, model name or designation of a product, or the marketing materials associated with the product, without changing the product's actual design, usually will be considered a "cosmetic" change. In such instances, however, manufacturers or service providers also should ensure that any new documentation or manuals included with the product are accessible to and usable by people with disabilities, if readily achievable. We also note that, at times, the "rebundling" of a CPE or service package may amount to a cosmetic change, if the rebundling is very short-lived (e.g., as part of a promotional campaign) and does not impact the operation, or interoperability, of the individual components of the bundle. 73. Finally, we emphasize that section 255 does not require manufacturers of equipment to recall or retrofit equipment already in their inventories or in the field. The mere fact that a product or service has left the "drawing board", however, does not terminate the manufacturer or service provider's section 255 obligations with respect to that product or service. 4. Documentation of Readily Achievable Assessments 74. We believe that the framework for readily achievable assessments we have outlined in this Order will ensure that the broadest range of products will become accessible to the broadest number of users. Over time, design principles and features that were considered "significant" may become modest due to technological advances and the maturing of the access engineering field. We anticipate, furthermore, that manufacturers and service providers will recognize that making modest alterations to products will not require intensive and cumbersome accessibility design reviews. As proposed in the NPRM, we conclude that we should not at this time delineate specific documentation requirements for "readily achievable" analyses. We fully expect, however, that manufacturers and service providers, in the ordinary course of business, will maintain records of their accessibility efforts that can be presented to the Commission to demonstrate compliance with section 255 in the event consumers with disabilities file complaints. D. SERVICES AND EQUIPMENT COVERED BY THE RULES 75. Section 255 applies to any "manufacturer of telecommunications equipment or customer premises equipment" and to any "provider of telecommunications service." As discussed below, we conclude that, in so far as these phrases are broadly grounded in the Communications Act, our sole task here is to explain their application in the context of section 255. We will, however, as explained below, assert our ancillary jurisdiction to cover two non-telecommunications services. 1. Telecommunications and Telecommunications Service 76. Section 255(c) requires that any "provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable." Section 3 of the Act defines "telecommunications" as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." It defines "telecommunications service" as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 77. We adopt our tentative conclusion in the NPRM that the phrases "telecommunications" and "telecommunications services" have the general meanings set forth in the Act. Many commenters supported this conclusion. Telecommunications services, however, does include services previously classified as adjunct-to-basic. Adjunct-to-basic services are services which literally meet the definition of enhanced services, now called information services, established under the Commission's rules, but which the Commission has determined facilitate the completion of calls through utilization of basic telephone service facilities and are included in the term "telecommunications services." Adjunct-to-basic services include such services as call waiting, speed dialing, call forwarding, computer- provided directory assistance, call monitoring, caller identification, call tracing, and repeat dialing. 78. We decline to expand the meaning of "telecommunications services" to include information services for purposes of section 255, as urged by some commenters. In the NPRM, we recognized that under our interpretation of these terms, some important and widely used services, such as voicemail and electronic mail, would fall outside the scope of section 255 because they are considered information services. We conclude, however, that we may not reinterpret the definition of telecommunications services, either for purposes of section 255 only or for all Title II regulation. First, we emphasize that the term "information services" is defined separately in the Act. As we noted in the NPRM, there was no indication in the legislative history of the 1996 Act that Congress intended these terms to have any different, specialized meaning for purposes of accessibility. 79. Furthermore, in a Report to Congress that was released subsequent to the NPRM, we reiterated the distinction between information services and telecommunications services. Specifically, we found that "Congress intended [that] the categories of `telecommunications service' and `information service' to be mutually exclusive, like the definitions of 'basic service' and 'enhanced service' developed in our Computer II proceeding, and the definitions of 'telecommunications' and 'information service' developed in the Modification of Final Judgment that divested the Bell Operating Companies from AT&T." While we decline here to redefine the meaning of telecommunications services, either for purposes of section 255 or more broadly, we do think it is appropriate, as we discuss below, to use our ancillary jurisdiction to extend to certain non-telecommunications services accessibility obligations that mirror those under section 255 in order to effectuate Congress' intent that we make telecommunications services accessible. a. Provider of Telecommunications Services 80. We adopt our tentative conclusion in the NPRM and conclude that all entities offering telecommunications services (i.e., whether by sale or resale), including aggregators, should be subject to section 255. An entity that provides both telecommunications and non-telecommunications services, however, is subject to section 255 only to the extent that it provides a telecommunications service. Commenters from both the disability community and the industry broadly supported both of these NPRM proposals. We find that, with respect to section 255, Congress intended to use the term "provider" broadly, to include all entities that make telecommunications services available. Our interpretation of "provider of telecommunications service" is grounded in the Act's own definitions. For example, section 3(44) states that a "telecommunications carrier" means any "provider of telecommunications services" with the exception of aggregators, thus indicating that a "provider of telecommunications services" would otherwise include aggregators. Furthermore, our limitation on the scope of section 255 to cover an entity only to the extent that it provides telecommunications service comports with an analogous limitation in section 3(44), which expressly provides that a telecommunications carrier "shall be treated as a common carrier under this Act only to the extent that it is engaged in providing telecommunications services." b. Telecommunications Equipment and Customer Premises Equipment 81. The Act defines "telecommunications equipment" as "equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades)." It defines "customer premises equipment" (CPE) as "equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications." 82. In accordance with the proposal made in the NPRM, the express statutory language, and the views of commenters, we find that telecommunications equipment includes software integral to telecommunications equipment. Operation of today's technologically sophisticated telecommunications networks would be impossible without software, and we believe that Congress' decision to expressly clarify that software and upgrades to software are to be considered "equipment" acknowledges the important role played by software products. Further, by referencing "upgrades" to software as equipment, the definition expressly contemplates that stand-alone software should be considered equipment. For these reasons, we conclude that all software integral to telecommunications equipment is covered by the definition, whether such software is sold with a piece of telecommunications equipment hardware or is sold separately. 83. The statutory definition of CPE under section 3(14) of the Act encompasses all "equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications." Although section 3(14) does not specifically reference software integral to CPE, we find, nonetheless, that CPE includes software integral to the operation of the telecommunications functions of the equipment, whether sold separately or not. We note that this conclusion is contrary to our tentative conclusion in the NPRM that software sold separately from CPE would not fall within the definition of CPE. After review of the record, however, we are persuaded that stand-alone software that originates, terminates and routes telecommunications should be deemed "equipment" under the CPE definition. 84. Some commenters argue that the absence of a reference to software in section 3(14), when contrasted with its inclusion in section 3(45) defining "telecommunications equipment," means that Congress intended to make a distinction in its treatment and classification of software depending upon whether it was integral to the operation of CPE or of telecommunications equipment. Other commenters argue that in interpreting this provision, we should focus instead, as the Access Board did, on the functions performed by the equipment in question, rather than whether it is hardware or software. These parties argue that if a product originates, routes, or terminates telecommunications, then it should be considered to be CPE. Many commenters supported this functional definition of CPE and chose to de-emphasize whether the software was sold together with hardware or separately. Trace notes that increasingly we will see telecommunications products becoming software in nature. That is, individuals will have devices that will be used for computing, for information, and for telecommunications services; often the devices will become telecommunications devices when a piece of software is plugged into them. Trace argues that in the future, we may not be buying telephones, but we simply may be buying telephone functions or software modules that we will use on our multi-purpose devices. Unless software is considered to be equipment and treated as CPE, Trace argues that these types of telephones would not be covered under Section 255. Trace argues that it is not clear why these software based telecommunications products should not be covered when their hardware counterparts are, and projects that this would leave us with an unlevel playing field that would only get worse over time. 85. While we agree that the definition in section 3(14) does focus primarily on the functions performed by the product, we believe we still must resolve the more narrow question of whether software integral to the operation of the telecommunications functions of CPE, but sold separately from the CPE hardware, should be considered to be "equipment" within the meaning of this provision. The statutory definition therefore requires our interpretation. While this provision of the Act is susceptible to varying meanings, we conclude that the better interpretation of this definition is that this type of software is "equipment" and thus would be CPE if it is integral to the origination, routing, or termination telecommunications. The structure of the Act's definitions support this interpretation. Rather than viewing the language in paragraph (45) of section 3 as a limitation on the definition of CPE, as some commenters have urged, we find instead that such language illuminates what Congress considers as falling within the scope of "equipment." As noted above, Congress clarifies in section 3(45) that the term "equipment" includes that software which is integral to a product, including upgrades. Congress recognized that software, which plays a vital role in telecommunications products, is often marketed and sold separately, affording purchasers or users the opportunity to upgrade or customize their equipment. Because Congress determined that software is "equipment" in paragraph (45), we find that the better interpretation of CPE is to similarly construe "equipment" as including software integral to the product, whether sold separately or not. Such an interpretation harmonizes the term "equipment" as it is used in the definitions of both "CPE" and "telecommunications equipment," and gives recognition to the fact that software products are often sold separately from the hardware. 86. This interpretation is consistent with the Access Board's Guidelines. It also furthers the purposes of section 255 by ensuring that software that is integral to the operation of CPE is not beyond the scope of section 255. If such software were not covered as CPE, then CPE manufactured in compliance with section 255 could readily be converted into a product that was inaccessible to those with disabilities, resulting in a significant gap in the Act's coverage. 87. In connection with multipurpose equipment, we adopt our tentative conclusion that customer premises equipment is covered by section 255 only to the extent that it provides a telecommunications function. Specifically, equipment that generates or receives an electrical, optical or radio signal used to originate, route or terminate telecommunications is covered, even if the equipment is capable of providing non-telecommunications functions. In so concluding, we reject the recommendations of commenters which argued we should apply section 255 to all functions of equipment whenever the equipment is capable of any telecommunications function. We believe that our narrowed interpretation ensures consistency between the obligations of manufacturers to ensure that telecommunications equipment and CPE is designed, developed and fabricated to be accessible, and the obligations of service providers to ensure that the service is accessible. This consistency is important as both equipment and services must be accessible for effective access to be available to consumers. Although section 255(b) does not specifically address this question, we conclude that this is the most reasonable interpretation of the statute. Moreover, the Access Board supports such an interpretation. 88. Furthermore, as supported by the record, we conclude that manufacturers will be liable under section 255 for all telecommunications equipment and CPE to the extent that such equipment provides a telecommunications function. In those instances, where a piece of equipment undergoes substantial modifications after its sale, however, we agree with those commenters who argue that it would be unfair to hold the manufacturer liable under section 255. In those instances, which we expect to be infrequent, manufacturers shall bear the burden of proving, by a preponderance of the evidence, that a piece of equipment has undergone substantial modifications after its sale. 2. Manufacturer 89. The Act does not define "manufacturer of telecommunications or customer premises equipment." The Access Board guidelines define a "manufacturer" as an entity "that sells to the public or to vendors that sell to the public; a final assembler." This approach, according to the Access Board, would generally cover "the final assembler of separate subcomponents; that is, the entity whose brand name appears on the product." In the NPRM, the Commission proposed to adopt a definition of "manufacturer" based upon the Access Board guidelines. 90. In light of our enforcement obligations and based on the record, we now believe that we need a more precise definition of manufacturer than that adopted by the Access Board. In our rules, therefore, we define manufacturer as an entity that makes or produces a product. This definition puts responsibility on those who have direct control over the products produced, and provides a ready point of contact for consumers and the Commission in getting answers to accessibility questions and resolving complaints. We decline to adopt the Access Board's definition because we find that it is so broad that it could include retailers, who simply sell products and may not control any aspect of their actual manufacture. We conclude that our adopted definition more clearly distinguishes between sellers of a product and manufacturers, who control the design, development and fabrication of a product. In appropriate circumstances, however, where an entity is otherwise extensively involved in the manufacturing process -- for example, by providing product specifications -- we may, as the individual circumstances warrant, deem such an entity to be a co-manufacturer of the product involved. This could result in some branders being considered manufacturers, contrary to the position of several commenters. 91. We believe this is an appropriate interpretation of the statute and is consistent with the Access Board's intent. We do not intend this definition to include those who simply sell or distribute a product manufactured by another entity. Nor do we extend the concept of manufacturer to anyone who might modify the equipment before sale to the public. We do not believe as a general matter that retailers, wholesalers, and other post-manufacturing distribution entities can be considered manufacturers who have accessibility obligations under the Act. 92. As supported by the record, we adopt our tentative conclusion to construe section 255 to apply to all manufacturers offering equipment for use in the United States, regardless of their location or national affiliation. In the NOI record, there was broad agreement that all equipment marketed in the United States, regardless of national origin, should have uniform accessibility requirements. Further, the Access Board guidelines do not distinguish between foreign and domestic manufacturers. Exempting foreign manufacturers would disadvantage American manufacturers, and would deny the American public the full protection section 255 offers. 3. Voicemail and Interactive Menus 93. The record has convinced us that in order for us to carry out meaningfully the accessibility requirements of section 255, requirements comparable to those under section 255 should apply to two information services that are critical to making telecommunications accessible and usable by people with disabilities. We assert ancillary jurisdiction to extend these accessibility requirements to the providers of voicemail and interactive menu service and to the manufacturers of the equipment that perform those functions. By enacting section 255, Congress has charged the Commission with ensuring that telecommunications services and equipment are accessible to, and usable by, persons with disabilities. We cannot fully achieve that objective without this limited use of our ancillary jurisdiction. 94. The Commission's assertion of ancillary jurisdiction over information services was upheld by the Court of Appeals for the District of Columbia over fifteen years ago in litigation challenging our rules in Computer II, where the Commission deregulated the provision of both information services (then called "enhanced services") and CPE. Although the Commission found there that the provision of information services and CPE were not common carrier activities within the scope of Title II regulation, the Commission simultaneously asserted ancillary jurisdiction over information services, including voicemail and interactive menus, by imposing upon AT&T (and its local exchange affiliates) structural separation safeguards that required them to offer these services only through a separate subsidiary. The Commission also asserted ancillary jurisdiction over CPE, deregulating CPE at the federal level and preempting state CPE tariffing. The Court of Appeals upheld the Commission's ancillary jurisdiction, finding that the Commission's authority to assert ancillary jurisdiction over matters not within the reach of Title II regulation was "well settled." It concluded that the "Commission acted reasonably in defining its jurisdiction over enhanced services and CPE," and that its jurisdiction satisfied the Southwestern Cable standard. The court adopted a deferential standard of review, holding that "[b]ecause the Commission's judgment on 'how the public interest is best served is entitled to substantial judicial deference,' the Commission's choice of regulatory tools in Computer II must be upheld unless arbitrary or capricious." This precedent guides us in our action today. 95. Ancillary jurisdiction may be employed, in the Commission's discretion, where the Commission has subject matter jurisdiction over the communications at issue and the assertion of jurisdiction is reasonably required to perform an express statutory obligation. Both predicates for jurisdiction are satisfied here. The Court of Appeals' conclusion in Computer II that the Commission has subject matter jurisdiction over information services is particularly appropriate for voicemail and interactive menus, two services over which the Commission has asserted ancillary jurisdiction for more than a decade through its comparably efficient interconnection (CEI) plan requirements. Given our continuous assertion of jurisdiction over these two information services, we reject any suggestion by commenters that we have not previously concluded that we have subject matter jurisdiction over these services. 96. Our subject matter jurisdiction flows from at least three distinct provisions of Title I of the Act. Section 1 of the Communications Act established the Commission "[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States ... adequate facilities at reasonable charges ...." Similarly, Section 2 gives us jurisdiction over "all interstate and foreign communication by wire or radio" and "all persons engaged within the United States in such communication...." Section 3 defines "communication by wire" and "communication by radio" as including "the transmission ...of writing, signs, signals, pictures and sounds of all kinds ... including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission." (emphasis added). We believe that these three provisions serve as the foundation for subject matter jurisdiction today, just as they did when Computer II was decided. 97. Both voicemail and interactive menu services, and the related equipment that perform these functions, are at the very least "incidental" to the "receipt, forwarding and delivery of communications." Indeed, the evidence here persuades us that these two information services are not only incidental to communications, but essential to the ability of persons to effectively use telecommunications. In reaching this conclusion, we are not breaking new ground, but are simply continuing our longstanding practice of asserting jurisdiction over voicemail and interactive menus. 98. We note, however, that in the Computer II Reconsideration Decision we expressly reserved judgment on whether or not non-carrier-provided CPE would be subject to our Title I jurisdiction. Similarly, we did not reach the question of whether the Commission had jurisdiction over information services provided by non-carriers. We resolve these questions here in the affirmative. These services and their related equipment are not less "incidental" to the "receipt, forwarding, and delivery of communications" because the services may be provided by non-carriers in some instances. Indeed, sections 1 through 3 of Title I of the Act are broadly worded and not limited in scope to communications by carriers. Consistent with the statutory language, therefore, we find that our Title I subject matter jurisdiction over voicemail and interactive menu services, and related equipment, extends to that which is provided by carriers and non-carriers alike. 99. The second step in our analysis requires us to evaluate whether, in this specific context, there is a statutory nexus supporting assertion of ancillary jurisdiction over voicemail and interactive menu service and manufacturers of equipment that performs those functions. Framed somewhat differently, the test, as articulated by the Court of Appeals for the District of Columbia, is whether jurisdiction is "reasonably ancillary." We find that the requisite statutory nexus exists, and employ ancillary jurisdiction to require that voicemail and interactive menu service and equipment must comply with requirements comparable to those under section 255. We find, as described below, that these two discrete information services are both so integral to the use of telecommunications services today that, if inaccessible and unusable, the underlying telecommunications services that sections 255 and 251(a)(2) have sought to make available will not be accessible to persons with disabilities in a meaningful way. In short, inaccessible voicemail and interactive menus could defeat the effective implementation of sections 255 and 251(a)(2). 100. Many commenters raised compelling examples of the importance of access to voicemail and interactive menus. Both professional organizations and individual consumers reported how people with disabilities are hampered daily by lack of access to services others take for granted -- leaving a message for a colleague, reaching the desired person at a business, or simply receiving a phone call. The Council of Organizational Representatives on National Issues Concerning People who are Deaf or Hard of Hearing (COR) concluded that "without access to certain enhanced services, such as automated voice response systems and voice mail services, individuals who are deaf or hard of hearing will continue to be barred from enjoying even basic access to the telecommunications network." Others explained that because of the prevalence of voicemail and interactive menus, unless these services are made accessible, the isolation of people with disabilities will be exacerbated , decreasing employment opportunities and reducing the participation of persons with disabilities in today's society. UCPA summarized the concern with the observation that "voice mail, interactive telephone prompt systems, and Internet telephony are becoming available as mainstream services and are becoming critical to successful participation and competition in our society." 101. The access barriers created by inaccessible and/or unusable voicemail and interactive menus has made it extremely difficult for people with hearing, vision, or physical disabilities either to reach the party to whom they have placed the call or to obtain the information they seek in their phone call. One commenter explains: People with disabilities have been terribly affected by such lack of access; many menus offer no option to connect with a human operator and they remain cut off from communication. They thus remain in the dark about how to fix their products and how to access other important information from private enterprises. 102. Often all that is available at the other end of the line is an automated voicemail or menu system which is not accessible to or usable by people with disabilities. For example, the voicemail or menu may not allow adequate time for a caller using the Telecommunications Relay Service to have the information from the automated device relayed to the caller's TTY and a response from the caller relayed back to the device through the Communications Assistant; or the sounds may be so quick that a person who is hard of hearing cannot process them quickly enough. The speed of the menu choices can also create an access barrier for someone with a learning disability who cannot process the information fast enough. The time allowed for a person to input the necessary numbers to retrieve voicemail messages, select an option from a list of choices or control the other functions may be too short for people with motor disabilities, or people who are blind. In these instances, although the phone call may be completed in the technical sense of terminating the call, the call is not accessible to the person. Despite the creation of a transmission path, if there is no means for a person to communicate with the mechanism at the other end, the telephone call is ineffective. 103. This record persuades us that failure to ensure accessibility of voicemail and interactive menu services, and the related equipment that performs these functions, would seriously undermine the accessibility and usability of telecommunications services required by sections 255 and 251(a)(2). In Southwestern Cable, the Supreme Court found that Commission had authority to regulate CATV using its ancillary jurisdiction to avoid disruptive effect on network broadcasting. Here, too, we seek to avoid the disruptive effects caused by inaccessible voicemail and interactive menus so as to ensure that the implementation of section 255 is not thwarted. Further, the statutory nexus for asserting jurisdiction is even stronger here than in Computer II, which broadly sanctioned ancillary jurisdiction over information services. In Computer II the Commission asserted ancillary jurisdiction to ensure just and reasonable rates for regulated services that consumers were already receiving. Our concern here is even more fundamental: ensuring and facilitating accessibility and usability of telecommunications services and equipment by those persons not receiving full access and use of these services. 104. Under these circumstances, we disagree with those who contend that the Act's use of defined terms precludes us from extending accessibility requirements to anything other than telecommunications services. The expressio unius maxim "'has little force in the administrative setting'." Indeed, the Court of Appeals for the D.C. Circuit has expressly rejected this argument in upholding the Commission's interpretation of recent amendments to the Communications Act. In Mobile Communications, the Commission required MTEL, the holder of a pioneer's preference, to pay for its license for a narrowband personal communications service (PCS) despite the fact that in amending the payment provisions of the Act in 1996, Congress did not require payments for such licenses but did require payment for other types of licenses. In the provision at issue, Congress required the three broadband PCS pioneers and all future pioneers to pay for their licenses according to a statutorily defined formula. However, by its terms, the payment requirement did not extend to MTEL, whose license was confirmed in July 1993, because the statute specified that the payment requirements did "not apply to applications that have been accepted for filing on or before September 1, 1994." 105. The court did not agree that where the statutory scheme "'limits a thing to be done in a particular mode, it includes the negative of any other mode'." Its rationale is particularly instructive here. Not only did it dismiss expressio unius as a maxim of construction in the administrative setting, but it also noted that a "'congressional prohibition of particular conduct may actually support the view that the administrative entity can exercise its authority to eliminate a similar danger'." Analyzing the Commission's jurisdiction to require license payments not specified in the statute, the Court rejected a reading of congressional intent that would have forbidden the Commission from setting reasonable charges for a license "even where doing so would enable the Commission to reap many of the benefits of Congress's own new policy -- including obtaining reimbursement for the transfer of a valuable entitlement. We think such a reading untenable." 106. The suggestion that we lack ancillary jurisdiction here suffers from the same infirmity. We simply cannot credit the argument that Congress intended that we be barred from effectively implementing sections 255 and 251(a)(2). To the contrary, we believe that Congress enacted these new provisions to ensure that telecommunications services are made accessible to persons with disabilities, and expected that we implement these provisions in the most efficacious manner possible. We will not ignore a record that demonstrates that our failure to apply accessibility requirements to voicemail and interactive menus will substantially undermine implementation of these significant provisions. Where, as here, we have subject matter jurisdiction over the services and equipment involved, and the record demonstrates that implementation of the statute will be thwarted absent use of our ancillary jurisdiction, our assertion of jurisdiction is warranted. Our authority should be evaluated against the backdrop of an expressed congressional policy favoring accessibility for persons with disabilities. This backdrop serves to buttress the actions taken today, not limit it. 107. On this same basis, however, we decline to extend accessibility obligations to any other information services. While some commenters have argued that there is an overwhelming need for all information services to be accessible to people with disabilities, we assess the record differently, and use our discretion to reach only those services we find essential to making telecommunications services accessible. Unlike voicemail and interactive menus, other information services discussed by commenters do not have the potential to render telecommunications services themselves inaccessible. Therefore, we decline to exercise our ancillary jurisdiction over those additional services. Many of these other services are alternatives to telecommunications services, but not essential to their effective use. For example, e- mail, electronic information services, and web pages are alternative ways to receive information which can also be received over the phone using telecommunications services. In contrast, inaccessible and unusable voicemail and interactive menus operate in a manner that can render the telecommunications service itself inaccessible and unusable. 108. Our assertion of ancillary jurisdiction is thus discrete and limited. Consequently, we dismiss the contention that including even a single information service under our accessibility and usability rules could lead to the full-scale regulation of entities providing information services, such as Internet Service Providers. Nor can we credit the argument that extension of these provisions through ancillary jurisdiction will chill innovation, resulting in less accessibility not more. We do emphasize, however, that our decision to apply these accessibility obligations to two discrete information services does not alter the regulatory classification afforded these services. Nor is it our intent by this action to apply any additional provisions of the Act to providers and manufacturers of voicemail and interactive menu services and equipment. Thus, as a general matter, we are not altering our past or current treatment of information services. E. ENFORCEMENT OF SECTION 255 1. Overview 109. Prompt and efficient enforcement of section 255 and the rules adopted in this Order is a crucial component of successful implementation of the accessibility requirements described in this Order. We noted in the NPRM that our complaint mechanisms would be the principal vehicle for ensuring compliance with section 255 and that consumers, manufacturers and service providers alike will benefit from swift resolution of complaints. Moreover, unlike section 207 of the Act, which authorizes the filing of complaints against common carriers either before the Commission or in federal district court, section 255(f) confers exclusive jurisdiction over complaints on the Commission and bars private rights of action. As the only recourse for consumers concerned about the accessibility, usability or compatibility of a product or service, our complaint processes must be accessible and fair. 110. We also recognized in the NPRM that a complaint process that imposes substantial burdens on parties could discourage otherwise legitimate complaints, require manufacturers and service providers to expend substantial resources responding to complaints rather than enhancing accessibility of their offerings, and restrict the commission's ability to cope with complaints in a timely manner. As discussed below, the rules we adopt in this Order, which are modeled after our section 208 complaint rules, permit the commission to ensure that consumers' complaints are resolved expeditiously. In addition, we describe below the scope of the Commission's authority when initiating an action on its on motion against service providers or manufacturers. 2. Enforcing the Rules a. Damages; Other Remedies and Sanctions 111. Damages. In the NPRM, we tentatively concluded that damage awards against common carriers/service providers pursuant to section 207 of the Act are available to complainants as a remedy for violations of section 255 and our implementing rules. We sought comment on this tentative conclusion and on whether there is any statutory basis for awarding damages against entities other than common carrier. A majority of the industry commenters argued that the plain language of section 207 precludes the Commission from awarding damages against entities other than common carriers because the section is expressly limited to common carriers. These commenters contended that had Congress intended to provide the Commission with authority to award damages against entities other that common carriers, it would have clearly stated so when it enacted section 255. Still other industry commenters argued section 255 bars not only damages complaints against non-common carriers but also against carriers. According to these commenters, the explicit bar on private rights of action in section 255 applies equally to the Commission and the courts. They argued that the Commission's conclusion in the NPRM that the statute permits administrative complaints for damages but bars actions in court for damages misconstrues the meanings of the two distinct sentences in section 255(f) regarding the Commission's exclusive jurisdiction over complaints and the prohibition of private rights of action respectively. They maintained that the question of what is a private right of action depends solely upon who brings the action, not the forum. 112. Commenters representing the disability community, however, contended that the Commission has the same range of remedies for violations of section 255 that are available to it for violations of other provisions of the Act, including damages awards under section 207 of the Act. Several industry commenters, on the other hand, contended that the Conference Report refers solely to remedies against service providers who are common carriers, not to manufacturers. 113. We adopt our tentative conclusion in the NPRM that damages are available for violations of section 255 or our implementing rules against common carriers. In so holding, we reject the claim that 255(f)'s preclusion of private rights of action deprives the Commission of any authority to entertain requests for damages by or on behalf of individual complainants. As we noted in the NPRM, the preclusion of private actions compels complainants to seek redress exclusively from the Commission but in no way limits the remedies available to such complainants at the Commission. The right created in section 255(f) to complain to the Commission about the accessibility practices of common carriers does not supersede the rights available against common carriers under sections 206-208 of the of the Act, nor does it alter the scope of the remedies the Commission may apply. Indeed, by specifically referencing sections 207 among the list of remedies available for violations of section 255, we believe that Congress intended to make clear that common carriers could be subject to damages awards for violations of section 255 to the same extent as they could for other Title II violations. We find no support in the Act or its legislative history for the restrictive reading on our damages authority urged by the industry. 114. Nor are we persuaded by the claims of commenters representing the disability community that the right to complain to the Commission under section 255 includes the right to pursue damages against manufacturers for violations of the section. Sections 206 through 209 of the Act, on their face, apply solely to common carriers, a term specifically defined in section 3(10) of the Act. No plausible reading of the Act would extend the damages remedy prescribed under these sections to manufacturers or other non-common carriers. The commenters' reliance on statements regarding section 207 in the Conference Report accompanying the 1996 Act is unavailing. Judicial precedent clearly establishes that the starting point for interpreting a statute is the plain language of a statute itself. Where the language of statute is unambiguous, we must "give effect to the unambiguously expressed intent of Congress." The reference in the Conference Report to a section 207 damages remedy for section 255 violations is not inconsistent with our interpretation. The language in the report cited by the commenters does not mention manufacturers, nor does the report elsewhere state unequivocally that damages may be sought against manufacturers or other non- common carriers pursuant to 207 of the Act. We agree with Uniden, TIA and other industry commenters that a more reasonable reading of the reference in the Conference Report to section 207 as a possible remedy for violations of section 255 is that Congress was referring to remedies against providers who are common carriers within the meaning of the Act. 115. Other Sanctions and Remedies. We affirm our conclusion in the NPRM that we should employ the full range of sanctions and remedies available to us under the Act in enforcing section 255. Most commenters addressing this issue maintained that the Commission should assess the same penalties against manufacturers and service providers, with the most onerous penalties such as forfeitures, license revocations, and cease and desist orders reserved for intentional and repeated violations. We conclude that we need not delineate in this Order the various sanctions and remedies available to us under the Act to address violations of section 255 and our rules. We recognize that sanctionable behavior may involve a wide range of conduct by manufacturers and service providers and we will use our considerable discretion to tailor sanctions or remedies to the individual circumstances of a particular violation. We note that the commenters opposing retrofitting as a possible remedy for non-compliance do not challenge our authority to require such action, but instead question its appropriateness given the fast-pace of technological advances and the fact that the costs of retrofitting will likely exceed any reasonable monetary penalty that could be imposed under law. While we will view retrofitting as an extreme remedy to be used in egregious cases of willful misconduct, we nevertheless believe that the prospect of such action will serve as a major deterrent to willful and repeated violations of the Act and our rules. 116. A number of commenters have requested that we establish enforcement guidelines and procedures that would ensure regulatory parity in the treatment of manufacturers and service providers under section 255. We again note that our enforcement authority with respect to manufacturers and service providers is constrained by explicit requirements under the Act. For example, section 503(b)(5) of the Act pertaining to forfeiture penalties provides that No forfeiture liability shall be determined under this subsection against any person, if such person does not hold a license, certificate or other authorization issued by the Commission, and if such person is not an applicant for a license, permit, certificate, or other authorization issued by the Commission, unless, prior to the notice required by paragraph (3) of this subsection or the notice of liability required by paragraph (4) of this subsection, such person (A) is sent a citation of the violation charged; (B) is given a reasonable opportunity for a personal interview with an official of the Commission, ...; and (C) subsequently engages in conduct of the type described in such citation. 47 U.S.C.  503(b)(5). Thus, a manufacturer covered by section 255 who does not hold any authorization from the Commission and is not otherwise engaged in activity for which such authorization is required is in a markedly different position than a common carrier against whom the Commission may assess a forfeiture for section 255 violations without first issuing a citation and providing an opportunity for corrective action. Given these explicit statutory requirements, with no indication that Congress intended to alter the scope of the sanctions and remedies available to the Commission to enforce section 255, we find no compelling reason to attempt to fashion parity in the regulatory treatment of manufacturers and service providers under section 255. Indeed, in light of the constraints resulting from generally applicable penalties and enforcement provisions of the Act, we doubt such parity could be fashioned in any event. We are persuaded that the substantive rules and policies we adopt today provide the appropriate incentives for both manufacturers and service providers to take seriously their obligations under section 255 and our