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 ) ) WT Docket No. 96-198 Access to Telecommunications Services, ) Telecommunications Equipment, and ) Customer Premises Equipment ) By Persons with Disabilities ) _____________________________________ ) REPLY COMMENTS OF THE INFORMATION TECHNOLOGY INDUSTRY COUNCIL The Information Technology Industry Council ("ITI") files these reply comments in accordance with the Commission's Notice of Inquiry1 ("NOI") in the docket captioned above. ITI is the leading trade association for manufacturers of computers, computing devices, office equipment and information services, including information technology ("IT") equipment targeted to the needs of individuals with disabilities. ITI supports the Commission's efforts to develop a practicable regulatory framework to ensure that telecommunications technologies are accessible to all individuals. The IT industry also remains committed to ensuring that all consumers, including those with disabilities, benefit from the technological diversity and innovations produced by the robust competition in the IT marketplace. In these reply comments, ITI addresses three aspects of the comments: first, suggestions that IT manufacturers will not address accessibility issues without being required to do so; second, those comments seeking de facto reconsideration of the FCC's findings in the Report and Order; and third, comments urging the Commission to exercise ancillary jurisdiction over non-telecommunications services and equipment. A. The IT Marketplace Various commenters maintain that manufacturers will not voluntarily remedy accessibility issues unless compelled to do so by force of law.2 On the contrary, the IT industry already has produced many accessibility solutions and has many more under development. Unlike traditional telephony markets, the IT marketplace is characterized by a "plug and play" approach: manufacturers produce an unprecedented variety of software and hardware components that users can use to assemble highly-customized system configurations to best meets their needs. The inherent flexibility of "plug and play," in combination with vigorous marketplace competition, has produced a broad array of assistive technologies and sophisticated solutions that use some of the most advanced information technologies available to those with disabilities. Moreover, voluntary standards setting organizations and mechanisms have been highly successful at developing standards to facilitate the interoperability of assistive technologies. The following represents only a small sample of standards activities taken by industry organizations:3 * The World Wide Web Consortium, an international industry consortium, has developed content accessibility guidelines and strategies for making web pages accessible. * The International Telecommunications Union (ITU) is developing an extension to the standard for Internet Protocol telephone networks that will handle text telephones. * The National Committee for Information Technology Standards, hosted by ITI, is assessing potential standards for self-adapting interfaces between accessibility devices used by people with disabilities and mainstream human-computer interface devices (e.g., keyboard, mouse, display). * Individual companies are building accessibility features using the Java software standard, such as audio user interfaces that enable the use of Java applications by the blind. In short, the experience of ITI and its members confirms that described by manufacturers and service providers who filed comments to this proceeding: The marketplace is producing, and industry is voluntarily developing, a robust set of accessibility standards and accessibility solutions. There is simply no factual justification for concluding that regulation of information technologies and services is necessary to ensure accessibility.4 B. Definition of "Telecommunications Services" Some commenters are asking the Commission to re-visit its analysis in the recent Report and Order in this docket regarding the services and equipment to which Section 255 applies. These commenters argue that the Commission should expand the scope of Section 255 by regulating services and equipment based on "functionality."5 On this basis, urge these commenters, text-based services and technologies, including e-mail and web pages, should be included under Section 255 and subject to FCC regulation.6 The Commission should not re-visit this issue, for both procedural and substantive reasons. First, the question of what does or does not constitute "telecommunications" equipment or services has been exhaustively considered over the course of this proceeding, by both the Commission and commenting parties, and was resolved by the Commission in the Report and Order. As a matter of procedural fairness, any challenges to the decisions reached in the Report and Order can and should be made only through the filing of a petition for reconsideration of the Report and Order. Second, as a substantive matter, the "functionality" test advocated by the commenters is overbroad and contrary to the requirements of the Communications Act. Section 255 refers to "telecommunications services," "telecommunications equipment" ("TE"), and "customer premises equipment" ("CPE"). The statutory definitions for TE and CPE clarify that the terms refer only to equipment used in conjunction with "telecommunications" and not the "information services" to which the commenters would apply them. "Information services," as the Commission pointed out in the Report and Order, is defined separately in the Act.7 The Commission properly found that it could "not reinterpret the definition of telecommunications services" for Section 255 purposes, and there is no evidence in the legislative history of the 1996 Act that Congress intended these terms to have any different, specialized meaning under Section 255.8 To the contrary, Congress made clear its intent that "telecommunications services" and "information services" should remain mutually exclusive.9 C. Ancillary Jurisdiction ITI shares the concerns of some commenters10 that the Commission proceed cautiously before asserting ancillary jurisdiction to include non-telecommunications services and equipment within the scope of Section 255, and agrees that, at the very least, the Commission should consistently use the criteria for doing so that the Commission articulated in the Report and Order. In the Report and Order, the Commission concluded that it may subject information services to regulation under Section 255 where services are "essential to making telecommunications services accessible."11 The Commission concluded that e-mail, electronic information services, and web pages do not meet this test.12 In order to extend Section 255 to these and other text-based communications (e.g. touch screens, telephones with visual read-outs), the AFB now asks the FCC to redefine what it means for a service to be an "alternative to" versus a "substitute for" telecommunications services.13 As discussed in the previous section, attempts in these comments to challenge or modify the conclusions in the Report and Order are procedurally infirm. At this stage of the proceeding, the Commission has requested additional information regarding new services and technologies and their impact on the interests protected by Section 255. ITI supports those commenters who argue that, before it extends Section 255 to non-telecommunications services and equipment, the Commission must provide (i) adequate notice of its proposal to apply Section 255 to such services or equipment, and (ii) an opportunity for interested parties to comment. The FCC's ultimate findings should be based on the resulting record and consistent with the analysis in the Report and Order. CONCLUSION The IT marketplace is delivering innovative solutions to accessibility needs. Attempts to revisit the decisions in the Report and Order are procedurally infirm and substantively unjustified. The record established in response to the Commission's NOI confirms that no further regulation is required at this time. Respectfully submitted, Information Technology Industry Council __________________________ Matt Tanielian Director, Government Relations Information Technology Industry Council 1250 Eye Street, N.W., Suite 200 Washington, D.C. 20005 202-626-5751 Colleen Boothby Janine Goodman Levine, Blaszak, Block & Boothby, LLP 2001 L Street, NW, Suite 900 Washington, D.C. 20036 202-857-2550 February 14, 2000 T:\LB3Law\ITI278\01COMADV\SEC255\RPL FCC NOI FINAL-final.doc 1 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 Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities, Report and Order and Further Notice of Inquiry, WT Docket No. 96-198, FCC 99-181 (rel. Sept. 29, 1999) ("Report and Order" or "NOI" as applicable). 2 Comments of the American Foundation for the Blind, WT Docket No. 96-198 (Jan. 13, 2000) at 20 ("AFB Comments"); Comments of Self Help for Hard of Hearing People, Inc., WT Docket No. 96-198 (Jan. 13, 2000) at 3 ("SHHH Comments"); Comments of Trace/Gallaudet, WT Docket No., 96-198 (Jan. 13, 2000) at 9 ("Trace/Gallaudet Comments"). 3 See also Comments of VON Coalition, WT Docket No. 96-198 (Jan. 13, 2000) at 5-11 ("Von Comments"), which describe various industry standards targeted specifically at improving accessibility for the hearing impaired and identify potential solutions (e.g. Total Conversation, V.18 modem standard). 4 As commenters have acknowledged, any assumption that the IT industry is an obstacle to the accessibility of IT products, or even that such obstacles exist, would be illegitimate. Trace/Gallaudet Comments at 10-11, 15-16; Comments of Inclusive Technologies, WT Docket No. 96-198 (Jan. 13, 2000) at 14-15 ("Inclusive Technologies Comments") ("The hardware and operating systems have moved from being primary barriers and now are primary enablers of access.") 5 AFB Comments at 10. See also Inclusive Technologies Comments at 12; National Association for the Deaf, WT Docket No. 96-198 (Jan. 13, 2000) at 22 ("NAD Comments"). The Trace Center and Gallaudet University ("Trace") even more broadly assert that "telecommunications" should include "conversations that are carried out using speech, sounds, text and any other modalities that are used for carrying out a conversation" regardless of the underlying technology. Trace/Gallaudet Comments at 3. 6 AFB Comments at 9-11; SHHH Comments at 9. 7 47 U.S.C. § 255; Report and Order at ¶ 78. 8 Id. 9 Id. at ¶ 79. 10 See e.g., Comments of Microsoft Corporation, WT Docket No. 96-198 (Jan. 13, 2000) at 7. 11 Report and Order at ¶ 107. 12 Id. 13 AFB Comments at 12-14. xiv 7