ࡱ>    !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJRoot Entry F"ޟKWordDocument CompObjn extension of ancillary jurisdiction, and it is clear that the Commission has the authority to take immediate action. The NAD supports the suggestion of other comments that disabled individuals be involved in the testing and development of new technologies. Furthermore, the NAD supports the application of Section 255 to all equipment which provides voicemail or interactive menus regardless of whether the equipment functions through the PBX or a stand alone computer. This proposition was also supported by several other comments, and was not discouraged in any that discussed the topic. Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. In the Matter of ) ) Implementation of Section 255 of 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 NATIONAL ASSOCIATION OF THE DEAF The National Association of the Deaf ("NAD"), by its attorneys, respectfully submits these reply comments in the above captioned proceeding on the implementation of Section 255. The NAD submitted comments during prior phases of this proceeding. The NAD is pleased to see the number of companies that have expressed their commitment to providing access to telecommunications services and products to individuals with disabilities.1 However, we are concerned that some comments are still urging that reliance on market forces and self regulation alone is sufficient to ensure telecommunications access for individuals with disabilities. As we demonstrated in an earlier phase of this procedure, such reliance is entirely unjustified.2 Asserting jurisdiction at this stage would encourage others to follow in the lead of the VON Coalition even if the Commission decides not to impose any definite obligations at this time. I. Internet Protocol telephony is a telecommunications service, therefore it is covered by Section 255 and within the jurisdiction of the Commission. The comments are divided on the question of whether Internet Protocol ("IP") telephony is a telecommunications service, and thus subject to Section 255, or an information service to which presumably Section 255 would not apply. The NAD strongly believes that IP telephony is a telecommunications service and thus covered under Section 255. There are several factors involved in classification of IP telephony as a telecommunications service. For example, the services offered by IP telephony are identical to the services offered by a telecommunications service. Furthermore, finding a specific barrier to accessibility is not necessary to the classification of IP telephony as a telecommunications service. The NAD believes this classification is not a threat to IP telephony because the Commission can stop at application of Section 255 without regulating the industry. A. IP telephony offers services that are identical to those provided by a telecommunications service and does not become an information service simply because it uses Internet protocol and computer processing. The VON Coalition ("Coalition") argued that, because IP telephony providers use Internet Protocol and computer processing, the service should be classified as an information service.3 However, the Coalition admitted that IP telephony is functionally equivalent in many respects to voice services that are presently classified as telecommunications services.4 Despite those similarities the Coalition argued that the technologies involved distinguished IP telephony from other telecommunications services. The NAD believes the distinction pointed out by the Coalition between IP telephony and other voice services is superficial. If the services provided are functionally identical, then the classification should be the same, regardless of the means by which those services are provided. In a 1998 Report to Congress,5 the Commission stated that the key distinction between telecommunications and infܥe# 6PEM,l,l G(T)5 GTimes New Roman Symbol ArialTimes New Roman Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. In the Matter of ) ) Implementation of Section 255 of 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 NATIONAL ASSOCIATION OF THE DEAF Of Counsel: Jeneba Jalloh Ghatt Anthony Cavalluzzi Angela Campbell Law Student Citizens Communications Center Georgetown University Law Center Georgetown University Law Center 600 New Jersey Ave., NW, Suite 312 Washington, DC 20001 (202) 662-9535 Counsel for National Association of the Deaf February 14, 2000 TABLE OF CONTENTS SUMMARY....................................................................................................................................ii I. Internet Protocol telephony is a telecommunications service, therefore it is covered by Section 255 and within the jurisdiction of the Commission........................................................................................................................2 A. IP telephony offers services that are identical to those provided by a telecommunications service and does not become an information service simply because it uses Internet protocol and computer processing...............................................................................................2 B. Whether IP telephony presents barriers to accessibility is irrelevant to classifying the service as a telecommunications service......................................................................................................................4 C. The Commission can classify IP telephony as a telecommunications service for purposes of Section 255 without applying other regulations to the service...............................................................6 II. Even if the Commission were to conclude that IP telephony is not a telecommunications service Section 255 should still apply through ancillary jurisdiction..........................................................................................................7 III. The NAD supports involving disabled individuals in the testing and development stages of new technologies..........................................................................9 IV. The Commission should apply Section 255 to all equipment which provides voicemail or interactive menus regardless of whether the equipment functions through the PBX or a stand alone computer.............................10 CONCLUSION............................................................................................................................10 SUMMARY Internet Protocol ("IP") telephony should be classified by the Federal Communications Commission (the "Commission")as a telecommunications service. Classification of IP telephony as a telecommunications service will make it subject to Section 255 and clearly within the jurisdiction of the Commission. IP telephony should be classified as a telecommunications service because IP telephony offers services that are identical to those provided by a telecommunications service. IP telephony does not become an information service simply because it uses Internet protocol and computer processing. The Commission should not consider whether IP telephony presents any barriers to accessibility in its decision to classify the service as a telecommunications service because that factor is only important in the use of ancillary jurisdiction and not in the definition of a service. Furthermore, the Commission can classify IP telephony as a telecommunications service for purposes of Section 255 without applying other regulations to the service. By classifying IP telephony as a telecommunications service now, the Commission will preserve its ability to impose any obligations on the service in the future. While the NAD prefers the Commission classify IP telephony as a telecommunications service, the Commission could, alternatively, assert ancillary jurisdiction over IP telephony if it refuses to classify the service at this time. IP telephony fulfills all of the requirements forormation services is in the functional nature of the services provided to the end user.6 The Report to Congress was in response to a request that the Commission discuss its position with regard to Internet services.7 Part of that discussion involved IP telephony. The report stated, and the NAD agrees, that IP telephony involves nothing more than pure transmission, which is the basic criteria for defining a telecommunications service.8 The basic criteria for defining an information service was the provision of enhanced functionality, such as manipulation of information and interaction with stored data by the user.9 IP telephony services do not include enhanced functionality. The Commission put off making any decision with regard to IP telephony because there was not a complete enough record, however, with the present proceeding the NAD believes the record is now strong enough for the Commission to take appropriate action. It is true that IP telephony is based on the Internet Protocol and transports information in packets through the network just as information services do, however, simply because IP telephony uses these technologies does not in any way make it an information service. Several of the other comments submitted, including those from members of the telecommunications and IP telephony industries, agreed that IP telephony should be classified as a telecommunications service.10 The NAD urges the Commission to follow these recommendations and classify IP telephony as a telecommunications service, if anything, to at least preserve its ability to impose requirements at a later stage. B. Whether IP telephony presents barriers to accessibility is irrelevant to classifying the service as a telecommunications service. Several Comments stated that IP telephony presents no barriers to individuals with disabilities.11 This position is based on the claim that no specific barriers to accessibility have yet been discovered. While this fact, if true, would be important in the Commissions decision to extend ancillary jurisdiction over a new technology,12 it is irrelevant to the determination of whether IP telephony is a telecommunications service or an information service. If, as we contend, IP telephony is a telecommunications service then service providers are obligated to ensure accessibility to individuals with disabilities when readily achievable. If IP telephony presents no accessibility barriers, then that obligation has already been met. However, if barriers to accessibility do exist then Section 255 will require IP telephony service providers to take steps to make their service accessible and to ensure full participation by individuals with disabilities. The formation of the Coalition is a sign that IP telephony providers have already taken some steps to make their service accessible, however, the Commission needs to be involved to ensure that such access is provided across the board. Classification of IP telephony as a telecommunications service will allow the Commission to oversee the development and deployment of the service and act in the event providers begin to ignore the needs of individuals with disabilities, including the needs of deaf and hard of hearing persons. To allow IP telephony to develop without considering the needs of deaf and hard of hearing individuals would undermine the goals of Section 255. Two important goals of Section 255 are preventing the exclusion of disabled individuals from access to telecommunications services, as well as preventing the need for unnecessary retrofitting.13 As IP telephony develops deaf and hard of hearing individuals may be excluded if Section 255 does not apply. Efforts to make IP telephony accessible to deaf and hard of hearing individuals after its use has become widespread would include retrofitting the service to make sure it is fully accessible. If Section 255 is not applied to IP telephony, then the goals of the section will be undermined. Moreover, asserting jurisdiction now allows the Commission to step in if it determines efforts are not being made to make the technology accessible. C. The Commission can classify IP telephony as a telecommunications service for purposes of Section 255 without applying other regulations to the service. Some members of the IP telephony industry expressed concern over the Commission beginning to regulate what they consider an Internet service.14 They proposed the Commission maintain its "hands-off" approach to Internet services and not set a "bad example" for other countries with regard to Internet regulation.15 They fear that applying Section 255 to IP telephony is the first step towards regulation of the Internet.16 That fear is not a reason to define IP telephony as an information service. Simply because IP telephony uses an IP network does not make it an Internet service. The Commission would not be regulating an Internet service by applying Section 255 to IP telephony. The Commission would simply be ensuring a telecommunications service that uses the Internet is accessible to the individuals with disabilities. Applying Section 255 does not require the Commission to regulate Internet content, rates, or indeed any other aspect of the Internet. It only requires IP telephony providers to make their service accessible to disabled persons where readily achievable. The Commission can make its position very clear, that they are maintaining a "hands-off" policy as to all other aspects of the Internet, and only getting involved in the accessibility of IP telephony to disabled individuals and in particular deaf and hard of hearing persons. The Commission can indeed apply accessibility requirements to IP telephony without regulating other aspects of the industry. The Commission has the ability to forbear regulation of a telecommunications service if regulation is not necessary (1) to ensure "just and reasonable" nondiscriminatory charges, (2) "for the protection of consumers," and that (3) forbearance is "consistent with the public interest."17 IP telephony does not require regulation with regard to charges or protection of consumers. Forbearance by the Commission would be consistent with the public interest and avoid the fears of the Internet service industry. II. Even if the Commission were to conclude that IP telephony is not a telecommunications service Section 255 should still apply through ancillary jurisdiction. Classification of IP telephony as a telecommunications service is clearly the most effective way of dealing with this new service. However, the Commission can, alternatively, apply Section 255 to IP telephony through ancillary jurisdiction. The Commission recently used ancillary jurisdiction to apply Section 255 to voicemail and interactive menus, and the NAD believes it can assert ancillary jurisdiction here as well. Several comments argued against the assertion of ancillary jurisdiction over IP telephony citing the absence of widespread use and the absence of proven problems of compatibility.18 However, considering all the factors involved, we believe the Commission should take steps to assert ancillary jurisdiction over IP telephony. The Commission can assert ancillary jurisdiction over a technology when; a) the technology involves a transmission over wire or radio, and; b) the technology would undermine a goal of the Commission absent regulation.19 It is clear that IP telephony is a technology which involves transmissions over wire or radio. Thus, the question is whether IP telephony will undermine a goal of the Commission absent regulation. IP telephony has the potential to become an important means of global communications. One comment suggested that the IP network will become as pervasive as electricity, making IP telephony the preferred method of telecommunications.20 The service is becoming a competitive alternative to the present long distance system, and major long distance providers are beginning to develop IP networks as part of their systems.21 While specific barriers to accessibility may not be easily documented, potential problems with regard to TTY transmissions have been identified.22 The use of TTYs among deaf and hard of hearing individuals is very widespread. Ignoring any potential IP telephony connectivity problems with TTYs could lead to the exclusion of many deaf and hard of hearing individuals from access to Internet communications. One example of a TTY problem would be garbled messages.23 Garbled messages often cause the TTY user to confuse a service problem with a device problem.24 Unless Section 255 is applied, the service may develop without discovering the specific problem that caused the garbled messages. To allow IP telephony to develop without addressing these problems early on would undermine the previously mentioned goals of Section 255.25 As IP telephony develops, accessibility to deaf and hard of hearing individuals may not be fully taken into account resulting in unnecessary retrofitting. Because the development of IP telephony will undermine the previously mentioned goals of Section 255 absent application of the Section to the service, the Commission should assert ancillary jurisdiction. Thus, in the event the Commission is unable to assert primary jurisdiction, it would have another basis to step in and ensure access to IP telephony for deaf and hard of hearing individuals. III. The NAD supports involving disabled individuals in the testing and development stages of new technologies. One comment discussed including disabled individuals in the testing stage of new technologies as a means of making those technologies accessible.26 The NAD supports this recommendation. Including disabled individuals early on in the testing and development stages will prevent the deployment of any technology without considering the needs of individuals with disabilities and thus avoid the need for retrofitting. IV. The Commission should apply Section 255 to all equipment which provides voicemail or interactive menus regardless of whether the equipment functions through the PBX or a stand alone computer. Every comment submitted which discussed equipment functioning through a stand alone computer agreed that it should be subject to Section 255.27 Such equipment performs the same function whether it is through a PBX or a stand alone computer. Therefore, the Commission should ensure that both forms of equipment are accessible to individuals with disabilities. CONCLUSION The NAD commends the Commission for its commitment to ensuring that individuals with disabilities have access to telecommunications products and services. In order to fulfill that commitment, the NAD urges the Commission to classify IP telephony as a telecommunications service, or, in the alternative, assert ancillary jurisdiction over the service so that Section 255 will apply. Furthermore, the NAD suggests the Commission encourage the inclusion of individuals with disabilities in the testing and development stages of new technologies. 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