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1A4=A4A8D4D8ZR: : :8:-:-:-:88$8 88A4A4A8A8A4A4ZM>86+6+6+A888A8:888>2;--WZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZddddddddddddddddddddddddddddddddddddddddNAAA-88/2288W9%%ZZ8""--8Z"--9Z!!ZZ9977DZ-Z-A->SS77Z--WZ""ZZZZAAZZZ-AZZ0AAZZZZZ-ZZZZZZ-ZZZZZA5ZZAAAAAAAAAAZ-C829ZZAZC-9A-94AF:ZZAAAAAAAAAAZZZZZ0ZAAAAZZZZZZZZZZZZZZZZZZZAAZZZZZZJ<7FZAZZZ&5AAAAZZZZZZAAA-AAZAAZZZAAA(AAAA(AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAC2902-C04*7&A4D0<-C/R2A29&D4A45055(9*>0I?A+H>CDC4A9D>>C02D>>B9999CA999>>>C4-(ZZ^guzQn)aQggjjcy??Q26aUaUQQQQQQ4H==UU11QLLLe;LaOO;JCCA?HOQQQh_VcUUU\Sc_F^sCVCQQQQ)CXQ4__QQQ11QQQQQQQQQQQQQQQQQQQQQQZZZZZZZZ)QQQQQV)QQQQQQQQQQQQQQQQQQQQQQQQQQQQQQQ^^^^ZZZZZZZZZZqqHHQQQQQQXXQQFFFF__QQOOOOQQJJ_JFFFF+":FQQdddCCCCzozoYNzYYYN8YooYdYzzdzddzYzYzozzzNdzzzYzzzzCCdddddddzzzzCzdYC\   pxtll\tll@\@\`L2f`VM7jC:,ynXj\  P6G;XP2a=5,u&a\  P6G;&P2e=5,&e4  pG;&7nC:,\4  pG;#z-X80,<|X9 xOG;$a$G,',مG\  P6G;P<?xxx,Xx6X@`7X@%6jC:,<̃Xj9 xOG;Xt,U5.,U\  P6G;P7jC:,ynXj\  P6G;XP&@|ND,_|\  P6G;P'@ND,4  pG; (}*i88,`sixP7P$ )}*i88,h ips7 +p&_22,`e_xP7P$ *p&_22,hU _ps7 ,C9,`f9xP7P-:*,*\  P6G;P\b#E,',%KE*f9 xr G;X2lf 8h f ",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d|8|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddxxdddvooChdF"dhd9dCCxCddoddCdYds]xUvdYYCCCCx~oxoY~NYdYC8YooYdYxsdxdd~YYxoxxx~CdxYxxxxCCdddddddxCsdYC\   pxtll\tll@\@\`L7jC:,ynXj\  P6G;XP2a=5,u&a\  P6G;&P2e=5,&e4  pG;&7nC:,\4  pG;#z-X80,<|X9 xOG;$a$G,',مG\  P6G;P<?xxx,Xx6X@`7X@%6jC:,<̃Xj9 xOG;Xt,U5.,U\  P6G;P7jC:,ynXj\  P6G;XP&@|ND,_|\  P6G;P'@ND,4  pG; (}*i88,`sixP7P$ )}*i88,h ips7 +p&_22,`e_xP7P$ *p&_22,hU _ps7 ,C9,`f9xP7P-:*,*\  P6G;P\.b#E,',%KE*f9 xr G;X/8wC;,u|Xw PE37XPD7zC;,~EXz_ pi7XCJVVqVVJ)")7<)5<5<5)<<""<"^<<<<)."<"(#" 1 XX` ` 1. Introduction ` p>"(#" 1 XX` ` 2. Background ` p>"(#" 8 XX` ` 3. Summary ` p!(# 12 XX` ` 4. Authority to Promulgate Rules ` p"(# 13 XlB. REQUIREMENTS FOR COVERED ENTITIES p"(# 16 XX` ` 1. Overview ` p"(# 16 XX` ` 2. Disability ` p"(# 18 XX` ` 3. "Accessible To and Usable By" ` p"(# 21 XX` ` 4. Compatibility ` p"(# 31 XX` ` 5. Network Features, Functions, or Capabilities ` p"(# 37 XlC. READILY ACHIEVABLE p"(# 43 XX` ` 1. Definition of "Readily Achievable" ` p"(# 43"'+D)D),,'"ԌXX` ` 2. Application of Readily Achievable ` p"(# 49 XX` ` X ` ` a. In General p"(# 49 XX` ` X ` ` b. Cost of the Action Needed p"(# 55 XX` ` X ` ` c. Nature of the Action Needed p"(# 61 XX` ` X ` ` d. Resources of the Covered Entity p"(# 65 XX` ` 3. Timing of Readily Achievable Assessments ` p"(# 71 XX` ` 4. Documentation of Readily Achievable Assessments ` p"(# 74  X4XlD.SERVICES AND EQUIPMENT COVERED BY THE RULES p"(# 75 XX` ` 1. Telecommunications and Telecommunications Service ` p"(# 76 XX` ` X ` ` a. Provider of Telecommunications Services p"(# 80 XX` ` X ` ` b. Telecommunications Equipment and Customer Premises Equipment p"(# 81 XX` ` 2. Manufacturer ` p"(# 89 XX` ` 3. Voicemail and Interactive Menus ` p"(# 93 XlE. ENFORCEMENT OF SECTION 255 p!(# 109 XX` ` 1. Overview ` p!(#109 XX` ` 2. Enforcing the Rules ` p!(#111 XX` ` X ` ` a. Damages; Other Remedies and Sanctions p!(#111  Xg4  rXX` ` 3.` ` Procedures to be Followed When Complaints Are Filed Pursuant to Section 255 ` p!(# 117 XX` ` X ` ` a. Initial Contact With the Commission p!(#119 XX` ` X ` ` b. Form and Content of Informal Complaints; Standing to File p!(#121 XX` ` X ` ` c. Service; Designation of Agents p!(#126 XX` ` X ` ` d. Responses to Informal Complaints p!(#131 XX` ` X ` ` e. Review and Disposition of Informal Complaints by the Commission p!(#134 XX` ` X ` ` f. Formal Complaints p!(#140 XX` ` X ` ` g. Accelerated Dispute Resolution p!(#143 XX` ` X ` ` h. Defenses to Complaints p!(#149 XX` ` 4. Limitations on Filing Complaints ` p!(#152 XX` ` 5. Applicability of Statutory Complaint Resolution Deadlines ` p!(#156 XX` ` 6. Confidential Treatment of Filings ` p!(#158  X4XX` ` 7. Ex Parte Treatment of Informal and Formal Complaints ` p!(#162 XX` ` 8. Actions by the Commission on its own Motion ` p!(#164 XX` ` 9. Program Accessibility ` p!(#166 XlF. ADDITIONAL IMPLEMENTATION AND ENFORCEMENT MEASURES p!(#167 XlG. NOTICE OF INQUIRY p!(#173 XX` ` 1. Overview ` p!(#173 XX` ` 2. Discussion ` p!(#177 XX` ` X ` ` a. Internet Telephony p!(# 177 XX` ` X ` ` b. Computer Based Equipment p!(# 183 XlH. PROCEDURAL MATTERS p!(# 186"%+'',,%"ԌXlI. ORDERING CLAUSES p!(#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"Q+'',,Q"  X' 1. 1. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a) A. OVERVIEW   X' 1. Introduction   1. In this Report and Order (Order) we adopt rules and policies to implement sections  XQ4255 and 251(a)(2) of the Communications Act of 1934, as amended (Act).sQ$ yO'#X\  P6G;ɒP#э 47 U.S.C.  255, 251(a)(2).s These provisions,  X.4which were added by the Telecommunications Act of 1996 (1996 Act),.X$ yO7 '#X\  P6G;ɒP#э Telecommunications Act of 1996, Pub. L. No.104104, 110 Stat. 56 (1996). are the most significant opportunity for the advancement of people with disabilities since the passage of the  X4Americans with Disabilities Act (ADA) in 1990.R$ yO ' |$ #X\  P6G;ɒP#э Americans With Disabilities Act of 1990, Pub. L. No.101336, 104 Stat.327 (codified in scattered sections of  {OI '42 U.S.C.).  See e.g., Title III, governing Public Accommodations, 42 U.S.C.  12181(7) (ADA).R 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 1524 years of age have some degree of functional limitation, 23% of persons in the 4554 age range experience functional limitation. The percentage of those affected by functional limitations increases with age: 34.2% of those aged 5564; 45.4% of those aged 6569;  XO455.3% for those aged 7074; and 72.5% for those aged 75 and older.OB$ yOB'#X\  P6G;ɒP#э U.S. Department of Commerce, Bureau of the Census, Series P70, #8; Survey SIPP, 1984. The number of persons with functional limitations will also increase with time. Today, only about 20% of Americans  X 4are over age 55, but by the year 2050, 35% of our population will be over age 55. $ yO"' |$ #X\  P6G;ɒP#э U.S. Department of Commerce, Bureau of the Census, "Projections of the Population of the United States, by  {OT#'Age, Sex and Race: 1983 to 2080" (see years: "19902050"). 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", +'',,c"  X4policy, transportation and assistive technology. These laws include the ADA,$ {Oy'#X\  P6G;ɒP##X\  P6G;ɒP#э 42 U.S.C.  12101 et seq.Ě the Individuals  X4with Disabilities Education Act of 1997,Z$ {O'#X\  P6G;ɒP#э Pub. L. 10517, June 4, 1997, 11 Stat. 37, codified in 20 U.S.C.  1401 et seq.į the Assistive Technology Act of 1998,$ {Oz'#X\  P6G;ɒP#э Pub. L. 105394, Nov. 13, 1998, 112 Stat. 3627, codified in 29 U.S.C.  3001 et seq. and the  X4Workforce Investment Act of 1998, ~$ {O'#X\  P6G;ɒP#э Pub. L. 105220, Aug. 7, 1998, 112 Stat. 936, codified in 29 U.S.C.  2801 et seq. which amended section 508 of the Rehabilitation Act. $ yO{ '#X\  P6G;ɒP##X\  P6G;ɒP#э 29 U.S.C.  798. Congress has also passed legislation focused specifically on access to communications: Title  Xt4IV of the ADA (telecommunications relay services)d t$ yO '#X\  P6G;ɒP#э 47 U.S.C.  225.d the Telecommunications Accessibility  XQ4Enhancement Act of 1988, Q0 $ {O2'#X\  P6G;ɒP#э Pub. L. 100542, Oct. 28, 1988, 102 Stat. 2721, codified at 40 U.S.C.  762. the Hearing Aid Compatibility Act of 1988, Q $ {O'#X\  P6G;ɒP#э #X\  P6G;ɒP#Pub. L. 100394, Aug. 16, 1988, 102 Stat. 976, codified at 47 U.S.C.  610.#X\  P6G;ɒP# and the Television  X.4Decoder Circuitry Act of 1990..T $ {O3'#X\  P6G;ɒP#э Pub. L. 101431, Oct. 15, 1990, 104 Stat. 961, codified in 47 U.S.C.  303(a), 330(b). All of these laws recognize the importance of access to all aspects of society, and access to communications technology in particular.  X44. 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.  X!45. 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  X4people with disabilities with Title I of the ADA,t$ {O,&'#X\  P6G;ɒP#э 42 U.S.C.  12131 et seq. t which addresses the employer's"x+'',," 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  X4not been designed with accessibility in mind.{$ {O'#X\  P6G;ɒP#э See UCPA comments, attachment, p. 3.{ 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  X.4only onethird the income of the nondisabled population..Z$ yO9 ' |$. #X\  P6G;ɒP#э National Organization on Disability and Louis Harris and Associates, "Survey of Americans with Disabilities," July 23, 1998. 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.   X46. 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 lifethreatening 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.  X!47. 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  X4number of Americans have disabilities.$ yOV'#X\  P6G;ɒP#э S. Rep. No. 10423, 104th Cong., 1st Sess. 52 (1995), as quoted in NAD comments at 10.x`  X' 2. Background  Xt4  XQ48. Congress set forth a comprehensive framework to achieve accessibility in sections 255 and 251(a)(2). In particular:  X4XX` ` Section 255(a) defines the terms "disability" and "readily achievable" to have  X4the same meaning as set forth in the ADA.gX$ yO '#X\  P6G;ɒP#э 47 U.S.C.  255(a).g(#`  X 4XX` ` 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  X 4disabilities, if readily achievable.g $ yO'#X\  P6G;ɒP#э 47 U.S.C.  255(b).g(#`  X 4XX` ` 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  X4achievable.gx$ yO'#X\  P6G;ɒP#э 47 U.S.C.  255(c).g(#`  XD4XX` ` 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  X4achievable.g$ yOq'#X\  P6G;ɒP#э 47 U.S.C.  255(d).g(#`  Xr4XX` ` Section 251(a)(2) provides that each telecommunications carrier has the duty not to install network features, functions, or capabilities that do not comply  X,4with the guidelines and standards established pursuant to section 255 or 256.j,$ yOu"'#X\  P6G;ɒP#э 47 U.S.C.  251(a)(2).j(#`  X4XX` ` 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"( +'',,"  X4respect to any complaint under this section.g$ yOy'#X\  P6G;ɒP#э 47 U.S.C.  255(f).g (#`  X4XX` ` 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  X 4periodically. X$ yO ' |$ #X\  P6G;ɒP#э 47 U.S.C.  255(e). The Access Board is an independent Federal agency whose primary mission is to increase  |$ access for persons with disabilities. In addition to its duties under the Act, the Access Board: (1) develops minimum  |$ guidelines and requirements for standards issued under the ADA and the Architectural Barriers Act; (2) enforces the  |$ Architectural Barriers Act; and (3) develops accessibility standards for electronic and information standards under section 508 of the Rehabilitation Act. (#`  X49. To implement its obligations pursuant to section 255(e), the Access Board  X4convened the Telecommunications Access Advisory Committee (TAAC)qZ$ {O[' |$ #X\  P6G;ɒP#э See Access Board, Telecommunications Act Accessibility Guidelines for Telecommunications Equipment and  |$  Customer Premises Equipment, Notice of Appointment of Advisory Committee Members and Notice of First Meeting, 61 Fed. Reg. 13813 (Mar. 28, 1996). q 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  X 4in January 1997.4 * $ yO' |$ #X\  P6G;ɒP#э Telecommunications Access Advisory Committee, Access to Telecommunications Equipment and Customer  {O'Premises Equipment by Individuals with Disabilities, Final Report, Jan. 1997 (TAAC Report).4  X4 10. Thereafter, tP10he Access Board adopted the Telecommunications Act Accessibility  X4Guidelines (the guidelines) for equipment in its Order (Access Board Order),e $ yO'#X\  P6G;ɒP#э 36 C.F.R. Part 1163.e drawing  Xg4heavily on the TAAC Report recommendations. The guidelines consist of: (1) general accessibility requirements; (2) specific guidance on the ways in which the functions necessary  X#4to operate a product should be made accessible if readily achievable; #$ yO!' |$7 #X\  P6G;ɒP#э The Access Board Guidelines organize these product functions into the two general categories of (1) input  |$ related functions and (2) output related functions. For each category the Access Board lists the kinds of accessibility  |$% solutions that should be evaluated, such as the ability to be operated without vision and the ability to provide auditory information in visual form. and (3) standards for"#+'',,"  X4compatibility with peripheral devices and specialized CPE.6$ {Oy' |$ #X\  P6G;ɒP#э Architectural and Transportation Barriers Compliance Board, Telecommunications Act Accessibility Guidelines,  {OC'36 C.F.R. Part 1193, 63 Fed. Reg. 560841 (1998) (Access Board Order).6 The Access Board  X4Order 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.  Xx4  XU4 11. In April 1998, the Commission issued a Notice of Proposed Rulemaking (NPRM),  X44building in part from a the Access Board guidelines and in part from a Notice of Inquiry it  X4adopted in September 1996. $$ {O ' |$ #X\  P6G;ɒP#э Implementation of Section 255 of the Telecommunications Act of 1996; Access to Telecommunications Service,  {O ' |$% Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Notice of Proposed  {O| ' |$Z Rulemaking, WT Docket No. 96198, 13 FCC Rcd 20391 (1998) (NPRM); Implementation of Section 255 of the  |$k Telecommunications Act of 1996; Access to Telecommunications Service, Telecommunications Equipment, and  {O' |$ Customer Premises Equipment by Persons with Disabilities, Notice of Inquiry, WT Docket No. 96198, 11 FCC Rcd 19152 (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  X4comments and reply comments in response to the NPRM. $ {O'#X\  P6G;ɒP#э See list of commenters and reply commenters in Appendix C, infra. This Order is a final step in the development and adoption of the rules to implement section 255.  Xh '  XE '3. Summary   X 4 12. A summary of the decisions in this Order is provided below:  X4XX` ` We adopt rules identical to or based upon the Access Board guidelines, with a  X4few minor exceptions.t!6 $ {O}'#X\  P6G;ɒP#э See section A.4, infra.t (#`  XP4XX` ` We require manufacturers and service providers to develop a process to evaluate the accessibility, usability, and compatibility of covered services and  X 4equipment.t"  $ {O '#X\  P6G;ɒP#э See section B.3, infra.t(#`  X4XX` ` 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"[ Z "+'',,"  X4relating to accessibility requirements.t#$ {Oy'#X\  P6G;ɒP#э See section B.3, infra.t(#`  X4XX` ` 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  XQ4equipment and services.t$QZ$ {O\'#X\  P6G;ɒP#э See section B.3, infra.t(#`  X 4XX` ` 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  X 4functionality.t% $ {O'#X\  P6G;ɒP#э See section B.3, infra.t(#`  X9 4XX` ` 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  X 4"accessibility."t& ~$ {O'#X\  P6G;ɒP#э See section B.4, infra.t(#`   X4XX` ` 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 casebycase basis considering factors which include: (1) the cost of the action; (2) the  X4nature of the action; and (3) the overall resources available to the entity.r'$ {O'#X\  P6G;ɒP#э See section C, infra.r (#`  X4XX` ` 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  X,4features, where readily achievable, must occur at every natural opportunity.(,$ {O"'#&a\  P6G;u&P##X\  P6G;ɒP#э See sections C.2, C.3, infra.ġ(#`  X4XX` ` 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"} 4 (+'',,g" providers have the flexibility to distribute those features across their products or  X4services as long as they do all that is readily achievable.w)$ {OV'#X\  P6G;ɒP#э See section C.2.a, infra.w(#` X` ` (#  X4XX` ` We determine that, pursuant to section 251(a)(2), a telecommunications carrier may not install network features, functions, or capabilities that do not comply  XQ4with the accessibility requirements of this Order.t*QZ$ {O\'#X\  P6G;ɒP#э See section B.5, infra.t(#`  X 4XX` ` We determine that the terms "telecommunications" and "telecommunications  X4services" have the meanings set forth in section 3 of the Act.v+$ {O '#X\  P6G;ɒP#э See section D.1.a, infra.v(#`  X4XX` ` We determine that the terms "telecommunications equipment" and "customer premises equipment" have the meanings set forth in section 3 of the Act, and  X\ 4include software integral to the equipment's operation.v,\ ~$ {O'#X\  P6G;ɒP#э See section D.1.b, infra.v(#`  X 4XX` ` We determine that the term "manufacturer" means an entity that makes or produces a product, including any entity that exercises significant control over  X 4the design, development or fabrication process.t- $ {O'#X\  P6G;ɒP#э See section D.2, infra.t (#` ` `  X4XX` ` 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  X!4manufacturers of equipment which performs those functions.t.!$ {Ot'#X\  P6G;ɒP#э See section D.3, infra.t (#`   X4XX` ` 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  XO4of 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  X4obligations.z/4 $ {O%'#X\  P6G;ɒP#э See sections E.1, E.2, infra.z(#` " /+'',,"Ԍ X4XX` ` 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  X4time.t0$ {O'#X\  P6G;ɒP#э See section E.3, infra.t(#`  XQ4  4. Authority to Promulgate Rules   X 4 13. In the NPRM, we tentatively concluded that we had authority to adopt regulations  X4implementing section 255 pursuant to section 4(i), 201(b), and 303(r).z1"Z$ {O ' |$ #X\  P6G;ɒP#э #X\  P6G;ɒP#NPRM, 13 FCC Rcd at 20400,  26. Specifically, we found that it is well established that an agency has the  |$ authority to adopt rules to administer congressionallymandated requirements. We stated that nothing in section 255  |$x bars the Commission from exercising the rulemaking authority granted in sections 4(i), 201(b), and 303(r) to clarify  yOO 'and implement the requirements of section 255.#X\  P6G;ɒP#z As supported by the  X4record, we conclude that we have authority to adopt regulations to implement section 255.s2D$ {O' |$ #X\  P6G;ɒP#э See Lucent comments at 3; NAD comments at 2; OKDRS comments at 1; PCIA comments at 67; TDI  {O' |$ comments at 5. But see BSA comments at 1516; CEMA comments at 5 (citing section 255(e) as justification for  |$ adopting the Access Board's guidelines rather than issuing additional rules); Siemens comments at 3 (although the  |$ Commission has sufficient authority to promulgate rules pursuant to section 255, rules would be too rigid and constrain innovation). s We find that the language of section 255(f), which bars any private right of action to enforce  X 4any requirement of this section or any regulation thereunder, expressly contemplates the Commission's enactment of regulations to carry out its enforcement obligations under the  X= 4provisions of section 255.3= $ {O'#X\  P6G;ɒP#э See 47 U.S.C.  255(f); see also NPRM, 13 FCC Rcd at 2040305.Ī 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  X 4which the 1996 Act applies.4 $ {O'#X\  P6G;ɒP#э  AT&T Corp. v. Iowa Util. Bd., 119 S.Ct. 721, 730 (1999). 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  X%4Commissions discretionary rulemaking power.o5\%$ {O!' |$k #X\  P6G;ɒP#э See comments filed in response to the Notice of Inquiry;  CEMA comments at 13; ITI comments at 7; SWBT  {O"' |$ comments at 2. See also Notice of Inquiry, 11 FCC Rcd at 19163,  29 (citing S. 652, 104th Cong., 1st Sess., 262(g)).o We conclude, therefore, that at a minimum, section 255 itself grants us authority to enact rules to implement the provisions of section  X4255.x6@$ {O&'#X\  P6G;ɒP#э See, e.g., USA comments at 1415.x In addition, most commenters supported exercising this authority because covered" 6+'',," entities would benefit from having rules that provide clear guidance in fulfilling their section  X4255 obligations.7$ {OV' |$ #X\  P6G;ɒP#э See, e.g., ACB comments at 2; Ameritech comments at 67; CCIA comments at 2; NCD comments at 2; SHHH comments at 23; USA comments at 1415 Trace comments at 2.  X4 14. The extensive record herein supports the adoption of rules consistent with the  Xt4Access Board's guidelines.m8Zt"$ {OG' |$@ #X\  P6G;ɒP#э See, e.g., ACB comments at 23; CPB/WGBH comments at 3; IDHS comments at 2; WID comments at 2;  |$ Access Board comments at 12; NAD comments at 4; NCD comments at 2; SHHH comments at 35; TDI comments at 6; USA comments at 45; WITAN comments at 2.m Accordingly, we adopt rules in this Order that are identical to or  XQ4based upon the Access Board guidelines, with a few minor exceptions. 9\QD$ yOF ' |$M #X\  P6G;ɒP#э For example, we have declined to adopt the Access Board's volume control standard because it directly  {O ' |$ contradicts existing Commission rules at 47 C.F.R.  68.317.  See  25, infra. In addition, we recognize the need  {O 'to relocate "accessible with prosthetics" from a compatibility criterion to one of accessibility. See  27, infra.  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  X4uniformly to both covered services, as well as covered equipment.  xx ` `  X 415. 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  X9 4the Access Board guidelines,:9 h $ yOR' |$I #X\  P6G;ɒP#э Bell Atlantic comments at 3; BSA comments at 1314; CEMA comments at 7; Lucent comments at 3; Siemens comments at 34; Trace comments at 2. although some urged us to use our discretion to adopt the  X 4guidelines wholesale and apply them to services.; $ yO' |$ #X\  P6G;ɒP#э IDHS comments at 1; NAD comments at 4; NCD comments at 2; USA comments at 45; UCPA comments at 2; WITAN comments at 2; CTA comments at 9; OkATP comments at 12.  In addition, some commenters felt that we  X 4should depart from the guidelines only under special circumstances.<Z $ {O' |$ #X\  P6G;ɒP#э See, e.g., Access Board comments at 3 (departures from the guidelines which provide less accessibility would  |$ result in FCC actions which are inconsistent); AFB comments at 45 (Commission must show substantial basis for departing from the guidelines based on the record).  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  Xg4conclude, after notice and comment, that such guidelines were inappropriate.=g:$ yOR#' |$* #X\  P6G;ɒP#э The language and legislative history of section 255 are not particularly instructive about the role Congress  |$g intended for the Board's guidelines. Although Senate Bill S.652, on which the final legislation is modeled, had  |$b indicated that the Commission regulations should be consistent with the standards developed by the Access Board,  |$t this language was omitted without explanation from the final legislation. In view of the non-binding nature of guidelines, this deletion stripped the guidelines of their status as binding standards.  Typically,"g =+'',,Q" unless otherwise provided by statute, "guidelines" are distinct from rules and, like a general  X4statement of policy or procedure, are not considered to have the force and effect of law.b>$ {OV' |$* #X\  P6G;ɒP#э See 5 U.S. C. 553(b)(3)(A); see also Aulenback, Inc. v. Federal Highway Admin., 103 F.3d 156, 16869 (D.C.  {O 'Cir. 1997); Telecommunications Research and Action Center v. FCC, 800 F.2d 1181 (D.C. Cir. 1986). b  X4 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.  X ' B. REQUIREMENTS FOR COVERED ENTITIES  1. Overview   X 4 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.  Xt417. 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.  X'  X'X2. Disability (#  X418. Section 255 provides that the term "disability" has the meaning given to it by  X\4section 3(2)(A) of the Americans with Disabilities Act (ADA).?\$$ {O1"'#X\  P6G;ɒP#э 47 U.S.C.  255(a)(1), citing 42 U.S.C.  12102(2)(A). 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)  X4being regarded as having such an impairment."l@$ yOZ&'#X\  P6G;ɒP#э 42 U.S.C.  12102(2)(A).l X` hp x (#%'0*,.8135@8:63. 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  X 4feature has not yet been implemented by any other manufacturer or service provider.w zN^ {OC'#X\  P6G;ɒP#э See, e.g., SHHH comments at 14. w 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.  Xi4?64. We agree with several commenters, however, that in some rare instances, "technical  XF4infeasibility" may result from legal or regulatory constraints.ZF N^ yO' |$ #X\  P6G;ɒP#э BellSouth comments at 9. For example, standards under Part 68 of our rules designed to prevent harm to  |$ the network may render a proposed feature infeasible, if the proposed feature would need to exceed Part 68 signal  {O'strength limitations. See also CTIA comments at 7 (bundling restrictions for wireline services may affect feasibility). 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  X4corners" of a product's current design.d. N^ yO '#X\  P6G;ɒP#э AFB comments at 23.d 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"." +'',,"  X4documentation. N^ yOy' |$ #X\  P6G;ɒP#э AFB comments at 24; Bell South comments at 9; Campaign for Telecommunications Access comments at  |$ 14; CTIA comments at 78; NAD comments at 4, 2122; NCD comments at 24; Nortel comments at 8; SHHH  |$^ comments at 14 (asserting that it is not sufficient to demonstrate that others have not found a feasible solution); UCPA comments at 11.  X' d. Resources of the Covered Entity(#  X4  Xt4@65. Once the cost and nature of the action needed have been determined, it is necessary to ascertain the overall resources of the manufacturer or service provider. We conclude that we should follow the twostep analysis of a covered entity's resources set forth by the DOJ in its  X 4ADA regulation. N^ {Ol '#X\  P6G;ɒP#э See 28 C.F.R. Part 36, App. B at page 43. Accordingly, the resources of the "covered entity" (i.e., the manufacturer  X4or service provider) first are examined.:"BN^ {O' |$ #X\  P6G;ɒP#э See 28 C.F.R. Part 36, App B at p. 44: ". . .the line of inquiry concerning factors will start at the site  |$o involved in the action itself . . . . the overall resources, size, and operations of the parent corporation or entity should  |$ be considered to the extent appropriate in light of the geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity.": 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  X\ 4covered entity.C\ , N^ yO9' |$ #X\  P6G;ɒP#э In this regard, the geographical separateness and the administrative or fiscal relationship of the entities  {O'would be considered. See, e.g., SBC comments at 1112; Bell Atlantic comments at 67. C  X 4A66. 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"# +'',,"  X4should be examined.N^ {Oy'#X\  P6G;ɒP#э See 28 C.F. R. Part 36, App. B. at p. 43.  X4B67. In reaching our conclusion, we reject Lucent's argument that "inclusion of corporate  X4resources does not yield competitively neutral outcomes." fZN^ yO'#X\  P6G;ɒP#э Lucent Comments at 9.f 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.  X 4C68. 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.   X4D69. 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 nonregulated services to draw upon the  X,4resources of its regulated parent.,N^ yO'#X\  P6G;ɒP#э Bell Atlantic comments at 7; CEMA reply comments at 45; USTA reply comments at 12.  X4E70. In the NPRM, we proposed establishing a "rebuttable presumption" that reasonablyavailable resources are those of the covered entity legally responsible for the equipment or  X4service that is subject to the requirements of section 255.zN^ {O"'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 2044041,  109. Commenters were divided on the  X4merits of this proposal.Z N^ yO<%' |$t #X\  P6G;ɒP#э NAD comments at 24; SHHH comments at 14; Lighthouse comments at 3; TDI comments at 1819; COR  |$^ reply comments at 9; NCD reply comments at 5; GTE comments at 9; SBC comments at 11 (supporting proposal).  {O&' |$ Cf. USA comments at 11; USA reply comments at 12; TIA comments at 5051; ITI comments at 28; ITI reply"&+''&" comments at 21 (objecting to proposal). After reviewing the record, we have concluded that the better"$X+'',," approach is to evaluate the resources of any parent company, or comparable entity with legal obligations to the covered entity, but permit any covered entity (or parent company) to demonstrate why legal or other constraints prevent those resources from being available to the covered entity. We note that the evidence required to make such a showing resides with the covered entity and its parent, and thus it is reasonable to put the burden on the covered entity, or parent, to show why such resources are not available. A deficiency with the presumption  X.4proposed in the NPRM is that it may have had the unintended effect of putting the burden on the consumer to prove that a parent's resources were available to the subsidiary, a burden that would be difficult for any consumer to satisfy because relevant evidence would be almost exclusively in the possession of the parent or covered entity.  X ' 3. Timing of Readily Achievable Assessments  X^ 4  X; 4F71. The readily achievable obligation imposed by section 255 is both prospective and  X 4continuing.sZ XN^ {O!' |$& #X\  P6G;ɒP#э Cf. 28 C.F.R. Part 36, App. B at p. 44: "The obligation to engage in readily achievable barrier removal is  |$ a continuing one. Over time, barrier removal that initially was not readily achievable may later be required because of changed circumstances."s While it is appropriate to consider the time needed to incorporate accessibility solutions into new and upgraded products, technological advances that present opportunities  X 4for readily achievable accessibility enhancements can occur at any time in a product cycle.X zN^ yO' |$ #X\  P6G;ɒP#э By a product "cycle," we generally mean the life of the product from the time the product is first designed  yO' |$ to the time it is distributed to consumers, and we do not intend to include the expected life of the product, once purchased by the consumer, as within the 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 redesign the product or service.  X 4G72. Cosmetic changes to a product or service may not trigger a manufacturer's  X4reassessment of a product's accessibility.N^ yO3$' |$ #X\  P6G;ɒP#э We caution, however, that some "cosmetic" changes, such as changes to the font or characters printed on a product, could have an adverse impact on 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 Xt4lived (e.g., as part of a promotional campaign) and does not impact the operation, or interoperability, of the individual components of the bundle.  X 4H73. 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.  X; ' 4. Documentation of Readily Achievable Assessments   X 4I74. 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  X#4cumbersome accessibility design reviews.#N^ {O'#X\  P6G;ɒP#э See NAD Ex Parte in WTB Docket 96198 at 4. 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.  X0' D.SERVICES AND EQUIPMENT COVERED BY THE RULES (#  X4  J75. Section 255 applies to any "manufacturer of telecommunications equipment or  X4customer premises equipment" and to any "provider of telecommunications service."jZN^ yO'#X\  P6G;ɒP#э 47 U.S.C.  255.j 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 nontelecommunications services.  X' 1. Telecommunications and Telecommunications Service   X!4K76. 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  X4in the form or content of the information as sent and received."iN^ yO3'#X\  P6G;ɒP#э 47 U.S.C.  153(43).i 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,  XQ4regardless of the facilities used."gQXN^ yOZ'#X\  P6G;ɒP#э 47 U.S.C.  53(46).g  X 4L77. We adopt our tentative conclusion in the NPRM that the phrases "telecommunications"  X4and "telecommunications services" have the general meanings set forth in the Act.}N^ {O '#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 2040910,  36.} Many  X4commenters supported this conclusion.zN^ {O' |$ #X\  P6G;ɒP#э See, e.g. Bell Atlantic comments at 4; GTE comments at 4; ITI comments at 8; SBC comments at 3; Microsoft reply comments at 4. Telecommunications services, however, does include services previously classified as adjuncttobasic. Adjuncttobasic services are services which literally meet the definition of enhanced services, now called information  X^ 4services, established under the Commission's rules,^ N^ {O'#X\  P6G;ɒP#э See NonAccounting Safeguards Order, 11 FCC Rcd at 21958. but which the Commission has determined facilitate the completion of calls through utilization of basic telephone service  X 4facilities and are included in the term "telecommunications services."& f N^ {O/' |$b #X\  P6G;ɒP#э See North American Telecommunications Association Petition for Declaratory Ruling under Section 64.702  |$ of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises  {O' |$ Equipment, ENF No. 842, Memorandum Opinion and Order, 101 FCC 2d 349 (1985) (NATA Centrex Order),  {O'recon., 3 FCC Rcd 4385 (1988). Adjuncttobasic services include such services as call waiting, speed dialing, call forwarding, computerprovided directory assistance, call monitoring, caller identification, call tracing, and repeat  X4dialing.T N^ {O'#X\  P6G;ɒP#э NATA Centrex Order, 101 FCC 2d at 35961.  Xi4M78. We decline to expand the meaning of "telecommunications services" to include  XF4information services for purposes of section 255, as urged by some commenters.$FN^ {O!' |$ #X\  P6G;ɒP#э See, e.g., Blackseth comments at 1; IDHS comments at 2; Kailes comments at 3; PCPED comments at 11;  |$Z USA comments at 8. Some commenters urged the inclusion of certain enumerated information services in the  {Oo#' |$ definition of "telecommunications services." See, e.g., Dietrich comments at 1; Ireland comments at 2; Lapointe comments at 23; TDI comments at 8; WITAN comments at 4. In the  X#4NPRM, 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"'+'',,6"  X4255 because they are considered information services.zN^ {Oy'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20413,  42.z 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  X4services" is defined separately in the Act.U ZN^ yO' |$Q #X\  P6G;ɒP#э The Act defines an "information service" as "the offering of a capability for generating, acquiring, storing,  |$ transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes  |$U electronic publishing, but does not include any use of any such capability for the management, control, or operation  |$ of a telecommunications system or the management of a telecommunications service." Section 3(20), 47 U.S.C.  |$ 153(20). We note that information services consist of all services that the Commission previously considered to be  {O ' |$ enhanced services under the regulatory structure it had established in the 1980 Computer II proceeding. Amendment  {OT ' |$^ of Section 64.702 of the Commission's Rules and Regulations (Computer II), Docket No. 20828, Final Decision, 77  {O ' |$ FCC 2d 384, 435 (1980), recon., 84 FCC 2d 50 (1980), further recon., 88 FCC 2d 512 (1981), aff'd sub nom.  {O ' |$ Computer and Communications Industry Ass'n v. FCC, 693 F.2d 198 (D.C. Cir. 1982), cert. denied, 461 U.S. 938  |$ (1983). Enhanced services are defined in section 64.702(a) of the Commission's rules as "services, offered over  |$g common carrier transmission facilities used in interstate communications, which employ computer processing  |$ applications that act on the format, content, code, protocol or similar aspects of the subscriber's transmitted  |$ information; provide the subscriber additional, different, or restructured information; or involve subscriber interaction  |$7 with stored information," and include, among other things, such services as voice mail, electronic mail, facsimile storeandforward, interactive voice response, protocol processing, gateway, and audiotext information services.U As we noted in the NPRM, there was no indication in the legislative history of the 1996 Act that Congress intended these terms to have  XS4any different, specialized meaning for purposes of accessibility.zSN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20409,  35z  X 4N79.Furthermore, in a Report to Congress that was released subsequent to the NPRM,  tN^ {O2' |$M #X\  P6G;ɒP#э  In re FederalState Joint Board on Universal Service, CC Docket No. 9645, Report to Congress, 13 FCC  {O'Rcd 11501 (1998) (Report to Congress).  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  X 4service' and 'enhanced service' developed in our Computer II proceeding, and the definitions of 'telecommunications' and 'information service' developed in the Modification of Final  X? 4Judgment that divested the Bell Operating Companies from AT&T."? N^ {O'#X\  P6G;ɒP#э Report to Congress, 13 FCC Rcd at 11507,  13. 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 nontelecommunications services accessibility obligations that mirror those under section 255 in order to effectuate Congress' intent that we make telecommunications services accessible.   XJ' a. Provider of Telecommunications Services  "'(b+'',,"Ԍ X4O80. We adopt our tentative conclusion in the NPRM and conclude that all entities offering  X4telecommunications services (i.e., whether by sale or resale), including aggregators, should be subject to section 255. An entity that provides both telecommunications and nontelecommunications services, however, is subject to section 255 only to the extent that it  Xx4provides a telecommunications service.xN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 2041415,  4445. Commenters from both the disability community  XU4and the industry broadly supported both of these NPRM proposals.UZN^ {O`' |$M #X\  P6G;ɒP#э See e.g., NAD comments at 17; UCPA comments at 56; Ameritech comments at 78; SBC comments at 5. 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  X 4telecommunications services" would otherwise include aggregators.h N^ yO'#X\  P6G;ɒP#э 47 U.S.C.  153(44).h 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  X 4services."Z DN^ {O'#X\  P6G;ɒP#э Id.Z  X4  X' b. Telecommunications Equipment and Customer Premises Equipment  XJ4 P81. The Act defines "telecommunications equipment" as "equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes  X4software integral to such equipment (including upgrades)."hN^ yO'#X\  P6G;ɒP#э 47 U.S.C.  153(45).h It defines "customer premises equipment" (CPE) as "equipment employed on the premises of a person (other than a carrier)  X4to originate, route, or terminate telecommunications." hf N^ yO'#X\  P6G;ɒP#э 47 U.S.C.  153(14).h  Xx4Q82. In accordance with the proposal made in the NPRM,zx N^ {O#'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20419,  55.z the express statutory language, and the views of commenters, we find that telecommunications equipment includes software  X44integral to telecommunications equipment.4 N^ {Om&'#X\  P6G;ɒP#э See, e.g.,AFB comments at 15; AIM comments at 1; Mulvaney comments at 6; NAD comments at 18. Operation of today's technologically"4)+'',,=" 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 standalone 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.   X4R83. 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  X 4terminate telecommunications." h N^ yO '#X\  P6G;ɒP#э 47 U.S.C.  153(14).h 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  X 4not. We note that this conclusion is contrary to our tentative conclusion in the NPRM that  X 4software sold separately from CPE would not fall within the definition of CPE.z XN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20419,  56.z After review of the record, however, we are persuaded that standalone software that originates, terminates and routes telecommunications should be deemed "equipment" under the CPE definition.   XF4S84. 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  X4telecommunications equipment. N^ yOU'#X\  P6G;ɒP##G\  P6G; مP## X\  P6G;ɒP#э #X\  P6G;ɒP#ITI comments at 12; Microsoft reply comments at 7. Other commenters argue that in interpreting this provision, we should focus instead, as the Access Board did, on the functions performed by the  Xt4equipment in question, rather than whether it is hardware or software.OtzN^ yO' |$ #X\  P6G;ɒP#э AccLiv comments at 3; ACB comments at 34; ILDEAF comments at 3; LDA comments at 2; CILNM  |$M comments at 23; CPB/WGBH comments at 5; IDHS comments at 3; Lake County comments at 2; Lighthouse  |$ comments at 3; NAD comments at 11; NCD comments at 1516; PCEPD comments at 910; SHHH comments at  |$g 8; SIL comments at 3; TDI comments at 11; TRACE comments at 11; UCPA comments at 67; USA comments at 6; WITAN comments at 3; WID comments at 34.O These parties argue that if a product originates, routes, or terminates telecommunications, then it should be considered to be CPE. Many commenters supported this functional definition of CPE and  X 4chose to deemphasize whether the software was sold together with hardware or separately.ZB * N^ {O$' |$ #X\  P6G;ɒP#э See NCD comments at 1314 (arguing that if the functionality of telecommunications equipment or CPE is  |$t the issue in determining a device's accessibility, then distinctions among hardware, firmware and software are  |$; pointless, and that it hardly matters to the CPE user whether software was sold with the CPE, or was purchased later"x&+''&"  |$ from a different source at the election of the user for use with the CPE); SHHH comments at 8 (arguing that  |$Q software is a component of the CPE that is required in order to use the device for a telecommunications function,  |$ and it is not logical to exclude software that is not initially bundled with the CPE because it can and will be used  |$ with the CPE later); IDHS at 3 (arguing that all software should be covered and made accessible if it is used as a  |$ telecommunications device); USA comments at 5 (arguing that from a consumer's point of view, there is no  |$ difference in whether a telecommunications function is accomplished through hardware, software, or a combination  {O@' |$Q thereof). See also AFB comments at 15; CPB/WGBH comments at 5; NAD comments at 18; TDI comments at 11; Trace comments at 5; WITAN comments at 3; WID comments at 34; TDI comments reply at 6. " *+'',," 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 multipurpose devices. Unless software is considered to be equipment and treated as CPE, Trace argues that these types of telephones  X 4would not be covered under Section 255.v N^ {O'#X\  P6G;ɒP#э See Trace reply comments at 12.v 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  X4only get worse over time.vd N^ {O'#X\  P6G;ɒP#э See Trace reply comments at 12.v   X\ 4T85. 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  X4CPE, as some commenters have urged, N^ {O'#X\  P6G;ɒP#э See ITI comments at 12; BSA comments at 9. 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.  X4U86. This interpretation is consistent with the Access Board's Guidelines.YN^ X4ԍ Access Board Order, 63 Fed. Reg. at 5612.Y 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.   X4V87. 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 nontelecommunications 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  X 4telecommunications function. {N^ yO'#X\  P6G;ɒP#э AFB comments at 13; AIM comments at 1; AFB reply comments at 1112. 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  X4supports such an interpretation. N^ {O'#X\  P6G;ɒP#э Access Board Order, 63 Fed. Reg. at 5612.  X4W88. 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  XO4equipment provides a telecommunications function.:ON^ X4 |$ԍ NAD comments at 18; SHHH comments at 8 (arguing that we would be encouraging  |$evasion of section 255 obligations if we were to determine a manufacturers compliance based upon its subjective intent about how the product should be used).: In those instances, where a piece of equipment undergoes substantial modifications after its sale, however, we agree with those commenters who argue that it would be unfair to hold the manufacturer liable under section  X4255. N^ yO$' |$k #X\  P6G;ɒP#э CEMA comments at 8; TIA comments at 5759; CEMA reply comments at 9; Lucent reply comments at 34; Motorola reply comments at 20; TIA reply comments at 49. 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",x +'',," undergone substantial modifications after its sale.   X'  2. Manufacturer(#  X4  Xt4X89. The Act does not define "manufacturer of telecommunications or customer premises  XQ4equipment."zQN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20420,  57.z The Access Board guidelines define a "manufacturer" as an entity "that sells to  X.4the public or to vendors that sell to the public; a final assembler."g.ZN^ yO9 '#X\  P6G;ɒP#э 36 C.F.R.  1193.3.g This approach, according to the Access Board, would generally cover "the final assembler of separate subcomponents;  X4that is, the entity whose brand name appears on the product."N^ {O '#X\  P6G;ɒP#э Access Board Order, 63 Fed. Reg. at 5613. In the NPRM, the Commission proposed to adopt a definition of "manufacturer" based upon the Access Board guidelines.  X^ 4Y90. 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 comanufacturer of the product involved. This could result in some branders being considered manufacturers, contrary to the  Xt4position of several commenters.t|N^ yO'#X\  P6G;ɒP#э BellSouth comments at 6; Sprint comments at 56; Tandy reply comments at 57.  X.4Z91. We believe this is an appropriate interpretation of the statute and is consistent with the  X 4Access Board's intent.  N^ {O!'#X\  P6G;ɒP#э Access Board Order, 63 Fed. Reg. at 5613. We do not intend this definition to include those who simply sell or  X4distribute a product manufactured by another entity.mN^ yO7$'#X\  P6G;ɒP#э Bell Atlantic comments at 5.m Nor do we extend the concept of  X4manufacturer to anyone who might modify the equipment before sale to the public.q. N^ {O&'#X\  P6G;ɒP#э See ITI comments at 1314.q We do"- +'',," not believe as a general matter that retailers, wholesalers, and other postmanufacturing distribution entities can be considered manufacturers who have accessibility obligations under the Act.  Xt4[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  X.4their location or national affiliation.|.N^ yO' |$ #X\  P6G;ɒP#э NAD comments at 19 (stating that such action is consistent with prior Commission rulings requiring  {Oo' |$x accessible features on imported telephones (i.e., hearing aid compatibility), and imported televisions (i.e. decoder  |$ circuitry for closed captioning)); SHHH comments at 9 (noting that, given the large percentage of telecommunications  |$ equipment that is produced outside the U.S., section 255 would be severely limited if it were not applied universally  |$k to foreign as well as domestic markets). We decline, however, to adopt ITI's suggestion that we extend the reach  {O ' |$ of section 255 to importers. See ITI comments at 1213. As already stated, postmanufacturing entities such as  yO[ 'importers, are not covered by section 255.  In the NOI record, there was broad agreement that all equipment marketed in the United States, regardless of national origin, should have uniform  X4accessibility requirements.z N^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20420,  58.z Further, the Access Board guidelines do not distinguish between  X4foreign and domestic manufacturers.qN^ {O'#X\  P6G;ɒP#э See 36 C.F.R.  1193.3.q Exempting foreign manufacturers would disadvantage American manufacturers, and would deny the American public the full protection section 255  X 4offers.  X\ 4 #Xj\  P6G;ynXP#  X9 ' 3. Voicemail and Interactive Menus (#   X 4\93. The record has convinced us that in order for us to carry out meaningfully the  X 4accessibility 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.   X4]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  XO4litigation challenging our rules in Computer II, where the Commission deregulated the  X.4provision of both information services (then called "enhanced services")k".0 N^ yO$' |$Q #X\  P6G;ɒP#э Implementation of the NonAccounting Safeguards of Sections 271 and 272 of the Communications Act of  |$* 1934, as amended, CC Docket No. 96149, First Report and Order and Further Notice of Proposed Rulemaking, 11  |$@ FCC Rcd 21905, 21955,  102 (1996) ("all of the services that the Commission has previously considered to be  {Og&' |$x 'enhanced services' are 'information services'"), Order on Reconsideration, 12 FCC Rcd 2297 (1997), further recon."g&+''r&"  {O' |$ pending, Second Report and Order, 12 FCC Rcd 15756 (1997), aff'd sub nom. Bell Atlantic Telephone Companies,  {OZ'et al v. FCC, et al., 131 F.3d 1044 (D.C. Cir. 1997). k and CPE..$N^ {O' |$ #X\  P6G;ɒP#э Computer and Communications Industry Association v. FCC, 693 F.2d 198, 213 (D.C. Cir. 1982), cert.  {O' |$ denied, Louisiana Public Service Commission v. FCC, 461 U.S. 938 (1983). Pending before the court were several  {O' |$b FCC orders, known broadly as Computer II, in which the Commission asserted ancillary jurisdiction over information  {OJ' |$ service. The court designated the following orders as comprising the Computer II decision: "Final Decision, In re  |$ Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77 F.C.C.  {O' |$ 2d 384 (1980) (Computer II Final Decision); Memorandum Opinion and Order, Amendment of Section 64.702 of  {O' |$V the Commission's Rules and Regulations (Second Computer Inquiry), 84 F.C.C. 2d 50 (1980) (Computer II  {Op ' |$ Reconsideration Decision); Memorandum Opinion and Order on Further Reconsideration, Amendment of Section  {O: ' |$* 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 88 FCC 2d 512 (1981) (Computer  {O 'II Further Reconsideration Decision.)" Id. at n.1".. +'',," Although the Commission found there that the provision of information services and CPE were not common carrier activities within the scope of Title II regulation, the Commission simultaneously asserted ancillary jurisdiction over information services, including voicemail and interactive menus, by imposing upon AT&T (and its local exchange affiliates) structural separation safeguards that required them to offer these services only through a separate subsidiary. The Commission also asserted ancillary jurisdiction over CPE, deregulating CPE at the federal level and preempting state CPE tariffing. The Court of Appeals upheld the Commission's ancillary jurisdiction, finding that the Commission's authority to assert ancillary  X4jurisdiction over matters not within the reach of Title II regulation was "well settled." N^ {Og'#X\  P6G;ɒP#э Computer and Communications Industry Association, 693 F.2d at 213. It concluded that the "Commission acted reasonably in defining its jurisdiction over enhanced  X4services and CPE," and that its jurisdiction satisfied the Southwestern Cable standard.Z` N^ {O' |$ #X\  P6G;ɒP#э  Id. at 213, referring to United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 2005 (1968)  |$" (Commission has jurisdiction over that which is "reasonably ancillary to the effective performance of the Commission's various responsibilities"). The court adopted a deferential standard of review, holding that "[b]ecause the Commission's judgment on 'how the public interest is best served is entitled to substantial judicial  X; 4deference,' the Commission's choice of regulatory tools in Computer II must be upheld unless  X 4arbitrary or capricious." a N^ {OM'#X\  P6G;ɒP#э Id. a This precedent guides us in our action today.  X 4^95. Ancillary jurisdiction may be employed, in the Commission's discretion, where the Commission has subject matter jurisdiction over the communications at issue and the assertion  X4of jurisdiction is reasonably required to perform an express statutory obligation.)N^ {OS#' |$ #X\  P6G;ɒP#э See generally United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994 (1968); see also Second  {O$'Computer Inquiry,  77 FCC 2d. at 432,  126. ) Both  Xk4predicates for jurisdiction are satisfied here. The Court of Appeals' conclusion in Computer  XJ4II that the Commission has subject matter jurisdiction over information services is particularly appropriate for voicemail and interactive menus, two services over which the Commission has")/p+'',," asserted ancillary jurisdiction for more than a decade through its comparably efficient  X4interconnection (CEI) plan requirements. b N^ {OV' |$ #X\  P6G;ɒP#э In Computer III, the Commission adopted a new regulatory regime that substituted "nonstructural" safeguards  {O ' |$ for Computer II's requirements that information services be offered only through a separate subsidiary. The  |$ Commission determined that information services could be offered by carriers on an integrated basis, provided that  |$7 those previously subject to separation requirements file a plan for "comparably efficient interconnection" (CEI).  {Oz' |$Q See Amendment of Section 64.702 of the Commission's Rules and Regulations (Computer III), CC Docket No. 85 {OD' |$ 229, Phase I, 104 FCC 2d 958, 11821 (1986) (Phase I Order), recon., 2 FCC Rcd 3035 (1987) (Phase I Recon.  {O' |$^ Order), further recon., 3 FCC Rcd 1135 (1988) (Phase I Further Recon. Order), Phase I Order and Phase I Recon.  {O' |$p Order vacated, California v. FCC, 905 F.2d 1217 (9th Cir. 1990); Phase II, 2 FCC Rcd 3072 (1987) (Phase II  {O ' |$ Order), recon., 3 FCC Rcd 1150 (1988) (Phase II Recon. Order), Phase II Order, vacated, California v. FCC, 905  {Ol ' |$^ F.2d 1217 (9th cir. 1990); Computer III Remand Proceedings, 5 FCC Rcd 7719 (1990) (ONA Remand Order), recon.,  {O6 ' |$c 7 FCC Rcd 909 (1992), pets. for review denied, California v. FCC, 4 F.3d 1505 (9th Cir. 1993); Computer III  |$ Remand Proceedings: Bell Operating Company Safeguards and Tier 1 Local Exchange Company Safeguards, 6 FCC  {O ' |$ Rcd 7571 (1991) (BOC Safeguards Order); BOC Safeguards Order vacated in part and remanded, California v. FCC,  {O ' |$ 39 F.3d 919 (9th Cir. 1994) (California III). Since that requirement took effect, carriers have filed numerous CEI  {O\' |$x plans covering both voice mail and interactive menus, among other services.  See, e.g., Bell Operating Companies  |$ Joint Petition for Waiver of Computer II Rules, 10 FCC Rcd 13758, 1377013774, App. A (Com.Car.Bur. 1995)  {O'(BOC CEI Plan Approval Order). Given our continuous assertion of jurisdiction over these two information services, we reject any suggestion by commenters that we have not  X4previously concluded that we have subject matter jurisdiction over these services. N^ {O:' |$ #X\  P6G;ɒP#э See Attachment to Letter from Brian F. Fontes, CTIA, to Chairman William E. Kennard, dated July 7, 1999  {O'(ex parte submission in WT Docket No. 96198).    XQ4_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  X4facilities at reasonable charges ...."jNN^ yO'#X\  P6G;ɒP#э 47 U.S.C.  151.j Similarly, Section 2 gives us jurisdiction over "all interstate and foreign communication by wire or radio" and "all persons engaged within the  X 4United States in such communication...."j N^ yO'#X\  P6G;ɒP#э 47 U.S.C.  152.j Section 3 defines "communication by wire" and "communication by radio" as including "the transmission ...of writing, signs, signals, pictures  X9 4and sounds of all kinds ... including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to  X 4such transmission." (emphasis added).{ nN^ yO#'#X\  P6G;ɒP#э 47 U.S.C.  153(33), 153(51).{ We believe that these three provisions serve as the  X 4foundation for subject matter jurisdiction today, just as they did when Computer II was decided.  Xm4`97. Both voicemail and interactive menu services, and the related equipment that perform"m0+'',,*" 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  X4use telecommunications.fzN^ {O' |$@ #X\  P6G;ɒP#э See, e.g., AccLiv. comments at 23; NAD comments at 1617; NCOD comments at 12; Kear comments  |$ at 2; Mulvany comments at 3; Nelson comments at 3; Vickery comments at 23; MiATC comments at 2; Illinois  |$^ Deaf and Hard of Hearing Commission comments at 34; DDTP comments at 45; CPB/WGBH National Center for  |$ Accessible Media comments at 6, LaPointe comments at 23, Janes comments at 3; ACB comments at 4; WID  |$ comments at 45; Lake County Center for Independent Living comments at 34; Dietrich comments at 1; Ireland  |$V comments at 2; The Lighthouse comments at 2; UCPA comments at 34; AFB comments at 68; Oklahoma Department of Rehabilitation Services comments at 23.f In reaching this conclusion, we are not breaking new ground, but are simply continuing our longstanding practice of asserting jurisdiction over voicemail and  XQ4interactive menus.ZQ N^ {O ' |$ #X\  P6G;ɒP#э See, e.g., Petition for Emergency Relief and Declaratory Ruling Filed by the BellSouth Corp., 7 FCC Rcd.  yO ' |$ 1619 (1992) (ruling that the Georgia Public Service Commission was preempted from interfering with BellSouth's  yO'provision and marketing of voicemail service under the terms and conditions set forth in its FCCapproved CEI plan).   X 4a98. We note, however, that in the Computer II Reconsideration Decision we expressly reserved judgment on whether or not noncarrierprovided CPE would be subject to our Title  X4I jurisdiction., N^ {O' |$x #X\  P6G;ɒP#э See Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Memorandum Opinion and Order, 84 FCC 2d 50 at  144, (1980). Similarly, we did not reach the question of whether the Commission had jurisdiction over information services provided by noncarriers. 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 noncarriers 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 noncarriers alike.   Xi4b99. 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  X4of Columbia, is whether jurisdiction is "reasonably ancillary." N^ {O"'#X\  P6G;ɒP#э  Computer and Communications Industry Association, 693 F.2d at 213.Ħ 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".1+'',," 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).  Xt4c100. 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  X4business, or simply receiving a phone call.N^ {Oa ' |$D #X\  P6G;ɒP#э See, e.g., Blackseth comments at 1; Dietrich comments at 1; Garretson comments at 3; Hoshauer comments  |$ at 1; Ireland comments at 2; Janes comments at 3; Kear comments at 2 ; LaPointe comments at 23; MiATC  |$ comments at 1; Nelson comments at 2; PCEPD comments at 24; CDC comments at 12; OKDRS comments at 1;  |$ NCOD comments at 12; SHHH comments at 6; TDI comments at 8; LICIL comments at 3; AIM comments at 1;  |$ SHHH reply comments at 1617; TDI reply comments at 5; Kailes comments at 3; CCDI comments at 23; Mulvaney  |$t comments at 3; Vickery comments at 3; AIM comments at 1; AFB comments at 9; Born comments at 2; Witkin  |$3 comments at 1; DeVilbiss comments at 2; AccLiv comments at 3; MoGCD comments at 3; ACB comments at;  |$} CPB/WBGH comments at 6; ILDEAF comments at 34; IDHS comments at 3; LDA comments at 2; CILNM  |$ comments at 34; Lake County comments at 1; SIL comments at 34; NAD comments at 1516; NCD comments at 10; WITAN comments at 4; WID comments at 4; UCPA comments at 11. 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  X\ 4barred from enjoying even basic access to the telecommunications network."i\ b N^ yOo'#X\  P6G;ɒP#э COR reply comments at i.i Others explained that because of the prevalence of voicemail and interactive menus, unless these  X 4services are made accessible, the isolation of people with disabilities will be exacerbated ,i N^ yO'#X\  P6G;ɒP#э APT reply comments at 4.i decreasing employment opportunities and reducing the participation of persons with  X 4disabilities in today's society. N^ yO' |$ #X\  P6G;ɒP#э BUTLER comments at 2; CFILC comments at 2; CDR comments at 2; CCDI comments at 1 (noting statute  |$D affects 54 million Americans with disabilities); Eleoff comments at 1; Huber comments at 1; Mitchell comments at  |$Z 1; NC ATP comments at 1; Radke comments at 1 (fully employed person with quadriplegia who has relied on  |$ advanced telecommunications for opportunities to learn, work and participate in the community); Mutuum  |$ comments at 2 ("You might as well call all nourishment except bread and water 'enhancement'."); CNMI comments at 12; Andrews comments at 2. 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  Xg4competition in our society."egN^ yO$'#X\  P6G;ɒP#э UCPA comments at 11.e  X!4d101. The access barriers created by inaccessible and/or unusable voicemail and interactive menus has made it extremely difficult for people with hearing, vision, or physical disabilities"2+'',," either to reach the party to whom they have placed the call or to obtain the information they  X4seek in their phone call.@N^ yOV' |$V #X\  P6G;ɒP#э Dietrich comments at 1; Ireland comments at 2; Janes comments at 3; Kear comments at 2; LaPointe  |$t comments at 23 ; MiATC comments at 1; OKDRS comments at 1 ; NCOD comments at 12; SHHH comments  |$ at 6; TDI comments at 8; LICIL comments at 3; AIM comments at 1; SHHH reply comments at 1617; TDI reply  |$ comments at 5; Lapointe reply comments at 1; Kailes comments at 3; Mulvaney comments at 3; Vickery comments  |$ at 3; AIM comments at 1; AFB comments at 9; Born comments at 2; Witkin comments at 1; DeVilbiss comments  |$ at 2; AccLiv comments at 3; ACB comments at 4; CPB/WBGH comments at 6; ILDEAF comments at 34; LDA  |$ comments at 2; CILNM comments at 34; Lake County comments at 1; SIL comments at 34; NAD comments at 1516; NCD comments at 10; WITAN comments at 4; WID comments at 4. 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  X.4products and how to access other important information from private enterprises.g.N^ yO'#X\  P6G;ɒP#э Mulvaney comments at 3gH!   X4e102. 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  X 4hearing cannot process them quickly enough. ` N^ {O'' |$ #X\  P6G;ɒP#э See, e.g., Ireland comments at 2 ("Voice mail and automated voice response systems, so common today, are  |$. impossible for many hard of hearing people to understand. Ears affected by hearing loss, even when properly fitted  |$! with hearing aids, cannot process sound as quickly as normal ears; by the time the first word or two are deciphered, the speaker is already on to the next sentence.")  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  X4functions may be too short for people with motor disabilities, or people who are blind.hN^ yOM'#X\  P6G;ɒP#э CILMN comments at 34.h 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  X4the other end, the telephone call is ineffective.^ N^ yOQ$' |$ #X\  P6G;ɒP#э A number of carriers have made a similar point in comments submitted in other proceedings where they have  |$ argued that various messaging services are "integral" to the telecommunications services provided by the carrier, and  |$ that services such as voicemail therefore should be treated differently than other information services. (Petition of  |$M Bell Atlantic at 78, Petition of NTCA at 67, Petition of Primeco at 67, Petition of SBC at 7, Petition of TDS at"&+''&"  |$Z 6, filed in Telecommunication Carriers' Use of Customer Proprietary Network Information and Other Customer  {OX'Information, CCB Docket 96115 (CPNI Proceeding)). ^ "3"+'',,"Ԍ X4ԙf103. 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  X4sections 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  XS4effect on network broadcasting.|S"N^ {O& '#X\  P6G;ɒP#э Southwestern Cable, 392 US at 17577.| 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  X4stronger here than in Computer II, which broadly sanctioned ancillary jurisdiction over  X4information services. In Computer II the Commission asserted ancillary jurisdiction to ensure  X4just 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.  X 4g104. 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  X4telecommunications services.XN^ yO' |$ #X\  P6G;ɒP#э BSA reply comments at 34; CEMA comments at 9; CTIA reply comments at 10; GTE comments at 3; ITI  |$ comments at 9; Microsoft reply comments at 78; PCIA reply comments at 45; SBC reply comments at 2,4; SBC comments at 3; Sprint reply comments at 34; TIA reply comments at 43; USA comments at 4. The expressio unius maxim "'has little force in the  X4administrative setting'.">N^ {O' |$" #X\  P6G;ɒP#э Mobile Communications Corp. of America v. FCC, 77 F.3d 1399, 140405 (D.C. Cir. 1996 (citiations  {O'omitted)), cert. denied Mobile Telecommunication Technologies Corp. v. FCC, 519 U.S. 823 (1996).> Indeed, the Court of Appeals for the D.C. Circuit has expressly rejected this argument in upholding the Commission's interpretation of recent amendments to  XL4the Communications Act. In Mobile Communications, the Commission required MTEL, the holder of a pioneer's preference, to pay for its license for a narrowband personal communications service (PCS) despite the fact that in amending the payment provisions of the  X4Act in 1996, Congress did not require payments for such licenses but did require payment for other types of licenses. In the provision at issue, Congress required the three broadband PCS pioneers and all future pioneers to pay for their licenses according to a statutorily defined formula. However, by its terms, the payment requirement did not extend to MTEL, whose license was confirmed in July 1993, because the statute specified that the payment requirements did "not apply to applications that have been accepted for filing on or before  X4September 1, 1994."q0 N^ yO$'#X\  P6G;ɒP#э 47 U.S.C.  309(j)(13)(D)(iv).q  X4h105. The court did not agree that where the statutory scheme "'limits a thing to be done in"4 +'',,_"  X4a particular mode, it includes the negative of any other mode'." N^ {Oy'#X\  P6G;ɒP#э Mobile Communications Corp. of America, 77 F.3d at 1404 (citation omitted). Its rationale is  X4particularly 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  Xt4its authority to eliminate a similar danger'."utZN^ {O'#X\  P6G;ɒP#э Id at 1405 (citation omitted).u 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  X4of a valuable entitlement. We think such a reading untenable."ZN^ {Ob '#X\  P6G;ɒP#э  Id.Z  X 4i106. The suggestion that we lack ancillary jurisdiction here suffers from the same  X\ 4infirmity.p\ ~N^ {O' |$3 #X\  P6G;ɒP#э In United Video, Inc. v. FCC, 890 F.2d 1173, 1183 (D.C. Cir. 1989), the court also sustained our ancillary  yOU' |$ jurisdiction in the face of an argument akin to expressio unius. At issue was the FCC's syndicated exclusivity rule,  |$H which was predicated upon our section 303(r) powers and ancillary jurisdiction. Petitioners had suggested that any  |$U such authority was constrained by the enactment of the 1984 Cable Act. Because the Cable Act did not affirmatively  X4 |$^ authorize the syndex rules, petitioners argued that they were impermissible. The court disagreed#x6X@`7 X@#: # Xj\  P6G;ynXP#"[#X\  P6G;ɒP#the syndex  |$ rules] clearly fall within the Act's general authority, the regulation of interstate and foreign communication by wire  |$ or radio... [and] were reasonably adopted in furtherance of a valid communications policy goal. Hence, they fall  {O&' |$3 under the Commission's section 303(r) powers unless they are 'inconsistent with law'." Id. Thus, even where  yO' |$^ Congress has enacted legislation addressing a subject, that does not bar the Commission from using its ancillary  |$ jurisdiction where reasonably required to further a valid statutory goal in this case, the effective implementation of sections 255 and 251(a)(2). p 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.   X4j107. 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"O5+'',," 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, email, 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.  X 4k108. 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 fullscale regulation of entities providing information  X 4services, such as Internet Service Providers.k N^ yO'#X\  P6G;ɒP#э BSA reply comments at 45.k Nor can we credit the argument that extension of these provisions through ancillary jurisdiction will chill innovation, resulting in less  X 4accessibility not more. XN^ yO'#X\  P6G;ɒP#э ITI reply comments at 1112; Microsoft reply comments at 45; Sprint reply comments at 4. 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.  X4  (#  X'  #footnote reference# E. ENFORCEMENT OF SECTION 255  X' 1. Overview  XO4l109. 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.  X 4m110. 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""6+'',,"" 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.   X ' 2. Enforcing the Rules (#  X4  X' a. Damages; Other Remedies and Sanctions    X 4n111. 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  X4limited to common carriers.N^ {O'#X\  P6G;ɒP#э See, e.g., BSA comments at 1415; CEMA comments at 2426; TIA comments at 9798. These commenters contended that had Congress intended to provide the Commission with authority to award damages against entities other that common  XF4carriers, it would have clearly stated so when it enacted section 255.FZN^ {OQ'#X\  P6G;ɒP#э See, e.g., BSA comments at 15; CEMA comments at 2426; TIA comments at 9798. Still other industry commenters argued section 255 bars not only damages complaints against noncommon  X4carriers but also against carriers.~N^ {O'#X\  P6G;ɒP#э See, e.g., Ameritech comments at 1011.~ According to these commenters, the explicit bar on private rights of action in section 255 applies equally to the Commission and the courts.  X4They 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  XS4jurisdiction over complaints and the prohibition of private rights of action respectively.~S~N^ {O'#X\  P6G;ɒP#э See, e.g., Ameritech comments at 1011.~ They maintained that the question of what is a private right of action depends solely upon  X 4who brings the action, not the forum.~ N^ {O!'#X\  P6G;ɒP#э See, e.g., Ameritech comments at 1011.~  X4o112. Commenters representing the disability community,N^ {O%' |$ #X\  P6G;ɒP#э See, e.g., NAD comments at 3940; NCD comments at 35; AIM comments at 3; Oklahoma DRS comments at 2. however, contended that the Commission has the same range of remedies for violations of section 255 that are available to"7 +'',," it for violations of other provisions of the Act, including damages awards under section 207  X4of the Act.kN^ yOV'#X\  P6G;ɒP#э 47 U.S.C.  207. k 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  X4manufacturers.XN^ {O'#X\  P6G;ɒP#э See, e.g. BSA comments at 15; CEMA comments at 2426; SBC comments at 27.  XQ4p113. 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  X4complainants. 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  X 4remedies available to such complainants at the Commission.} N^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20408,  3233.} 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 206208 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.  X%4q114. 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  X4section 3(10) of the Act.bZ|N^ {O' |$k #X\  P6G;ɒP#э See 47 U.S.C.  153(10) (term "common carrier" or "carrier" means any person engaged as a common carrier  |$k for hire, in interstate or foreign communications by wire or radio or in interstate or foreign communication by wire or radio).b No plausible reading of the Act would extend the damages remedy prescribed under these sections to manufacturers or other noncommon carriers. The commenters' reliance on statements regarding section 207 in the Conference Report  X04accompanying the 1996 Act is unavailing.c0N^ yO"' !  #X\  P6G;ɒP#э Commenters argued that the Conference Report accompanying Section 255 specifically references the  !b availability of damages awards pursuant to Section 207 to remedy violations of Section 255 and makes no distinction  ! between manufacturers and service providers, demonstrating that Congress clearly intended for manufacturers and  {O$' ! service providers to be treated uniformly for all purposes under Section 255. See, e.g., NAD comments at 3940. .c Judicial precedent clearly establishes that the"08P +'',,"  X4starting point for interpreting a statute is the plain language of a statute itself.N^ {Oy' |$g #X\  P6G;ɒP#э Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781 (1984). Where the language of statute is unambiguous, we must "give effect to the unambiguously expressed  X4intent of Congress."Z"N^ {O'#X\  P6G;ɒP#э Id.Z The reference in the Conference Report to a section 207 damages  X4remedy for section 255 violations is not inconsistent with our interpretation.N^ {O'#X\  P6G;ɒP#э See Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044 (D.C. Cir. 1997). 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 noncommon 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  X4Act.FN^ {O'#X\  P6G;ɒP#э See, e.g., Uniden comments at 89, TIA reply comments at 6467.  X 4  X\ 4r115. 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  X4orders reserved for intentional and repeated violations. N^ {O8' |$ #X\  P6G;ɒP#э See, e.g., Business Software Alliance comments at 15; CEMA comments at 2426; TIA comments at 9798; SBC comments at 27. 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 noncompliance do not challenge our authority to require such action, but instead question its appropriateness given the fastpace of technological advances and the fact that the costs of retrofitting will likely exceed any reasonable monetary penalty that could be imposed under  Xt4law.v t2 N^ {OW"'#X\  P6G;ɒP#э See., e.g., SBC comments at 27.v While we will view retrofitting as an extreme remedy to be used in egregious cases of  XQ4willful 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.  X4s116. A number of commenters have requested that we establish enforcement guidelines  X4and procedures that would ensure regulatory parity in the treatment of manufacturers and"9 +'',,"  X4service providers under section 255. N^ {Oy'#X\  P6G;ɒP#э See., e.g., USTA reply comments at 19; PCIA reply comments at 89. We again note that our enforcement authority with respect to manufacturers and service providers is constrained by explicit requirements under  X4the Act. For example, section 503(b)(5) of the Act pertaining to forfeiture penalties ZN^ yO' |$ #X\  P6G;ɒP#э 47 U.S.C.  503 (containing the general forfeiture provisions under the Act). The Act also contains specific  {O' |$D forfeiture provisions relating to certain activities or omissions by common carriers. See, e.g., 47 U.S.C.  202(c),  |$ 203(e), 205(b). Under the general forfeiture provisions contained in section 503(b)(1)(B), any person who willfully  |$ or repeatedly fails to comply with any of the provisions of the Communications Act or any rule, regulation, or order  |$  issued by the Commission under the Act, may be liable to the United States for a forfeiture penalty. Section  |$ 503(b)(2)(B) authorizes the Commission to assess forfeitures against common carriers of up to one hundred thousand  |$* dollars for each violation, or each day of a continuing violation, up to a statutory maximum of one million dollars  |$ for a single act or failure to act. In exercising such authority, the Commission is required to take into account "the  |$; nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability,  |$ any history of prior offenses, ability to pay, and such other matters as justice may require" 47 U.S.C.  503(b)(1)(B), (b)(2)(B).  X4 provides that No forfeiture liability shall be determined under this subsection against any person, if  X.4such 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.8"  X 447 U.S.C.  503(b)(5). \ N^ {O' |$ #X\  P6G;ɒP#э See 47 U.S.C.  503(b)(5). The section further provides, however, that the restriction "shall not" apply if,  |$D among other things, the person involved is engaging in activities for which a license, permit, certificate, or other  {O'authorization is required. Id.  Thus, a manufacturer covered by section 255 who does not hold any authorization from the Commission and is not otherwise engaged in activity for which such authorization is required is in a markedly different position than a common carrier against whom the Commission may assess a forfeiture for section 255 violations without first issuing a citation and providing an  XD4opportunity for corrective action. ~DN^ {O!' |$* #X\  P6G;ɒP#э In addition, section 503(b)(2)(B) authorizes the Commission to assess forfeiture penalties against common  |$Z carriers up to $100,000 for each violation or each day of a continuing violation, up to a maximum of $1,000,000  {Og#' |$Z for any single act or failure to act as described in section 503(b)(1).  47 U.S.C.  503(b)(2)(B). Conversely, an  |$ equipment manufacturer or other noncommon carrier subject to section 255 which does not hold any authorization  |$o issued by the commission, may only be assessed forfeiture penalties (pursuant to the procedures set forth in section  |$ 503(b)(5)) of up to $10,000 for each violation or each day of a continuing violation up to a maximum of $100,000  {O&'for any single act or failure to act as described in section 503(b)(1).  47 U.S.C.  503(b)(2)(C).  Given these explicit statutory requirements, with no"D:&+'',," 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  X4parity in the regulatory treatment of manufacturers and service providers under section 255.vN^ {O3'#X\  P6G;ɒP#э See., e.g., SBC comments at 27.v Indeed, in light of the constraints resulting from generally applicable penalties and  Xt4enforcement 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 rules.  X' 3.Procedures to be Followed When Complaints Are Filed Pursuant to Section 255 (#  X 4t117. In the NPRM, we identified two principal objectives underlying our fasttrack dispute resolution proposal: responsiveness to consumers and the efficient allocation of resources by  X; 4affected manufacturers and service providers.; ZN^ {OF'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 2044849,  124. We proposed a number of specific  X 4procedures surrounding the mandatory fast track process, including, inter alia, requirements  X 4pertaining to a consumer's initial contact with the Commission and the manufacturer or service provider concerned, the allowable time period for resolving a fast track complaint, the defendant manufacturers or service provider's reporting requirements, the manner in which Commission staff would evaluate the defendant's fasttrack response, and postfasttrack  Xk4proceedings at the Commission.ukN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 2044853.u u118. We do not address parties' comments regarding these proposals in the context of fasttrack because of our conclusion that our enforcement goals can be accomplished using traditional complaint mechanism modeled after our existing common carrier complaint procedures. The parties' comments, however, are addressed where appropriate in our discussion of our traditional informal and formal complaint rules.  XS' a. Initial Contact With the Commission   X 4v119. We adopt our tentative conclusion in the NPRM that we should, as recommended by  X4the TAAC Report, "encourage consumers to express informally their concerns or grievances  X4about a product to the manufacturer or supplier who brought the product to market before  X4complaining to the Commission."~N^ {O"'#X\  P6G;ɒP#э TAAC Report,  6.7.4.1 and 6.7.4.2, at 32. We believe that this policy should apply with equal force to grievances or concerns relating to service providers. We fully expect that many accessibilityrelated disputes will be satisfactorily resolved through such communications without the need to file complaints. We decline, however, to adopt a rule that would require consumers to contact the manufacturer or service provider about an accessibility barrier before";+'',,"  X4a complaint could be filed with the Commission."N^ {Oy' |$  #X\  P6G;ɒP#э See., e.g., AT&T reply comments at 78; BSA reply comments at 7; PCIA reply comments at 910; TIA  |$b reply comments at 63. The NAD and COR, on the other hand, are opposed to any rule that would require consumers  |$M to first notify manufacturers and service providers before filing a complaint with the Commission; NAD reply comments at 6; COR comments at 45. Under our section 208 rules, consumers are encouraged but not required to contact the carrier in advance of filing an informal complaint. Because the informal complaint process itself is geared toward cooperative efforts, it is not useful to require a complainant to contact the carrier before using the Commissions  Xt4informal complaint processes.+tN^ {O ' |$ #X\  P6G;ɒP#э See 47 C.F.R.  1.716 1.718. In administering the informal complaint rules, Commission staff works  |$ cooperatively with consumers and carriers to ensure meaningful solutions to problems raised by consumers and to  |$. address any underlying compliance concerns. In many instances, informal complaints are satisfactorily resolved by  |$ carriers with little direct involvement by Commission staff. We note further that Commission staff routinely meets  |$" with carrier representatives and consumer groups to discuss the informal complaint process and identify improvements that will better serve the needs of consumers and the industry.+  X.4w120. On the other hand, our rules governing formal section 208 complaints require both the complainant and defendant to certify, as part of the complaint and answer respectively, that they discussed, or attempted in good faith to discuss, the possibility of settlement with the  X4opposing party prior to filing of the complaint., N^ {O'#X\  P6G;ɒP#э See 47 C.F.R.  1.720; 47 U.S.C.  208. We conclude that this model is also appropriate for section 255 formal complaints. A consumerfriendly complaint process will ensure that consumers have an absolute right to have their accessibility concerns promptly addressed by the manufacturer or service provider concerned with reasonable expectation that the manufacturer or service provider will respond within the time and in the manner specified by the Commission. At the same time, consumers contemplating formal adjudication of a dispute with a manufacturer or service provider will have the appropriate incentives to explore settlement options before initiating costly and time consuming formal adjudicatory proceedings.  Xg4 b. Form and Content of Informal Complaints; Standing to File   X!4x121. Form. We adopt our proposal to allow informal complaints all to be transmitted to the Commission by any reasonable means such as by letter, facsimile transmission, voice telephone (voice and TTY), Internet email, audiocassette recording, and braille. Most commenters supported this proposal as the most practical and beneficial way to ensure that  X4complainants with disabilities have full access to our complaint mechanisms. N^ {O#'#X\  P6G;ɒP#э See., e.g., NAD comments at 2530; BellSouth comments at 1617. Our rules therefore specify the various means through which complaints may be filed with the Commission.   X 4y122. Content. Our objective is to make it easy for consumers with disabilities to file" <P +'',," accessibility complaints and for manufacturers and service providers to move promptly to satisfy any meritorious complaints. A rule outlining the minimum information that must be provided by consumers to trigger the informal complaint mechanism should strike a balance between the rights and duties of consumers and affected manufacturers and service providers.  Xt4Almost all commenters support such a rule.tN^ yO' |$ #X\  P6G;ɒP#э ATSI comments at 8; BellSouth comments at 9; CBT comments at 7; CompTel comments at 5; GST comments at 5; KMC comments at 5. We believe it necessary and appropriate for potential complainants to have a clear basis for believing that a violation has taken place and not simply allege that particular equipment or service is not accessible. We recognize, however, that it would not be realistic or feasible for complainants to document, in the first instance, all the factors necessary to establish that the access needed is readily achievable within the meaning of our rules.  X 4z123. Therefore, we adopt a rule providing that any section 255 complaint filed with the Commission include: (1) the name and address of the complainant; (2) the name and address of the manufacturer or service provider against whom the complaint is made; (3) details about the equipment or service about which the complaint is made; (4) the date or dates on which the complainant or person on whose behalf the complaint is being filed either purchased, acquired, used or attempted to purchase or use the equipment or service about which the complaint is being made; (5) a statement of facts supporting the complainant's allegation that the equipment or service is not accessible to a person or persons with a disability; (6) the specific relief or satisfaction sought by the complainant; and (7) the complainant's preferred method of response to the complaint (e.g., letter, facsimile transmission, telephone (voice or TTY), Internet email, audiocassette, braille, or another method that will provide effective communication with the complainant. Although these content requirements will entail diligence on the part of consumers in preparing and submitting complaints, we believe that any burden on consumers is far outweighed by the benefits of prompt and decisive action by Commission staff and defendant manufacturers and service providers resulting from such complaints. Commission staff will be available to assist consumers in filing complaints and may relax or modify our content requirements where needed to accommodate a consumer  X,4whose disability may prevent him from providing the information required under our rules.@, N^ {O' |$Q #X\  P6G;ɒP#э As required by the Rehabilitation Act of 1973, as amended, the Commission has a responsibility to prohibit discrimination on the basis of disability in its programs and activities. See 47 C.F.R.  1.1801 1.1870.@  X4{124. Standing to File. We conclude that our minimum form and content requirements will alleviate concerns raised by a number of commenters regarding the need for a standing requirement for filing section 255 complaints. These commenters urged that we reverse our  X4tentative conclusion in the NPRM and adopt a strict standing requirement under which only customers of a manufacturer or service provider would have standing to file a section 255"^=z+'',,"  X4complaint with the Commission.vN^ {Oy' |$ #X\  P6G;ɒP#э See e.g., AirTouch comments at 7; Bell Atlantic comments at 9; Brightpoint comments at 56; BSA  |$@ comments at 12; CEMA comments at 1719 and reply comments at 1112; CTIA comments at 1517; Motorola  |$" comments at 5052; PCIA comments at 1516; Phillips comments at 1214; SBC comments at 2022; USTA  |$ comments at 1415; Lucent reply comments at 1; TIA comments at 77; Nextel comments at 89; Nokia reply comments at 47; Redcom reply comments at 45; MTA reply comments at 11.v A standing requirement is needed, these commenters contend, to ensure that manufacturers and service providers are not inundated with disputes among competitors and otherwise frivolous or vindictive complaints that will waste the  X4resources of the Commission and the defendant companies.ZzN^ {O '#X\  P6G;ɒP#э Id.Z  XQ4|125. Commenters have made no persuasive argument why we should adopt a different  X.4standard for standing for these rules than for other complaints. As we noted in the NPRM, section 255 itself does not impose a standing requirement. Nor is there a standing requirement under section 208 of the Act and our common carrier complaint rules, which  X4generally authorize the filing of a complaint by "any person" N^ {O' |$ #X\  P6G;ɒP#э See 47 U.S.C.  153(33) (the term person includes "an individual, partnership, association, jointstock company, trust, or corporation"). claiming that a carrier has  X4violated a provision of the Act or the Commission's rules.7f N^ yO' |$ #X\  P6G;ɒP#э 47 U.S.C.  208. This section, applicable to complaints against common carriers, specifically states that "no complaint shall at any time be dismissed because of the absence of direct damage to the complainant." 7 The concerns raised by the commenters about possible frivolous complaints are too speculative to warrant a standing requirement where none otherwise exists under our common carrier complaint rules. There is no evidence that frivolous complaints have been a problem under our common carrier rules; nor is there any basis in the record to reasonably conclude that such will be the case for section 255 complaints. In any event, we believe that the minimum content requirements for section 255 complaints will effectively deter the filing of frivolous complaints. We are persuaded that these requirements will ensure that the focus of any complaint filed pursuant to these rules remains, as it should, on promoting accessibility. (#  XF' c. Service; Designation of Agents (#  X4}126. Service. We adopt a rule requiring the staff to promptly forward complaints that satisfy our content rules to the manufacturer or service provider involved, along with specific instruction to the defendant company to investigate and attempt to satisfy the complaint within a specified period, generally thirty days. The rule further provides that Commission staff may, in its discretion, request from the defendant company whatever additional information it deems useful to its consideration of the complaint. These requirements are similar to the service requirements contained in our rules governing section 208 informal complaints.  X4~127. Designation of Contacts/Agents. We proposed in the NPRM to require manufacturers and service providers to establish points of contact for section 255 complaints and inquiries. "> +'',,_" We tentatively concluded that such a requirement would facilitate the ability of consumers to contact manufacturers and service providers directly about accessibility issues or concerns and to ensure prompt and effective service of complaints on defendant manufacturers and service  X4providers by Commission staff.zN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20426,  71.z There was universal support among the commenters for this proposal. We therefore adopt a rule requiring affected manufacturers and service providers to designate an agent or contact whose principal function will be to ensure the manufacturer's or service provider's prompt receipt and handling of accessibility concerns raised by consumers or Commission staff. The contact information must, at a minimum, include the name of the person or office, telephone number (voice and TTY), fax number and  X4both mailing and email addresses.G ZN^ yO ' |$ #X\  P6G;ɒP#э We note that common carriers are required under section 413 of the Act, 47 U.S.C.  413, to designate  |$| agents within the District of Columbia, upon whom service of all notices and processes and all orders, decisions, and  |$Q requirements of the Commission may be made and to file such designation with the secretary of the Commission. We emphasize that the contact designation required in this Order is in addition to the obligation under section 413.G The representative or agent should have the means available to convert materials distributed and received into accessible formats.  X\ 4128. We recognize that we need to ensure that consumers can readily obtain information identifying the points of contact for manufacturers and service providers covered by these rules. Accordingly, the Commission will provide access to a listing of the contact representatives or agents designated by manufacturers and service providers. In order to establish this listing, we will require covered manufacturers and service providers to file the required contact information with the Secretary of the Commission within thirty days after  X4the effective date of the rules adopted herein. BN^ yO}' |$ #X\  P6G;ɒP#э See Appendix B, rules 6.18, 7.18. We encourage industry trade associations, such as CEMA, CompTel, TIA,  |$Z CTIA, TRA, and USTA, to file this information on behalf of their members if they so desire. The Commission  |$ would consider such group submissions to be in full compliance with this requirement and would appreciate receiving such submissions both in hard copy and on a computer disk. Commission staff will prepare a Public Notice advising consumers and other interested parties how to obtain access to the contact information once it has been compiled. We anticipate that the information will promptly be made available through the Commission's website. We also strongly encourage manufacturers and service providers to employ their own measures to inform consumers about how to contact the appropriate offices within their companies regarding accessibility barriers or concerns.  Xr4129. As a related matter, we note that certain commenters urged that we adopt a requirement that defendant manufacturers and service providers make reasonable, good faith efforts to contact the complainant within five business days of receipt of a complaint to acknowledge such receipt and discuss how the company intends to proceed with its handling  X4of the complaint.v * N^ {O%'#X\  P6G;ɒP#э See., e.g., TIA comments at 68.v We agree with these commenters that this measure is consistent with our point of contact requirement and will not unduly burden affected companies, and adopt this"? +'',,_" requirement. We anticipate that this exchange of information by complainants and defendant companies will lead to prompt and effective accessibility solutions in many instances.  X4130. We decline, however, to adopt related proposals by certain commenters that would require manufacturers and service providers to establish specific internal systems and  XQ4recordkeeping practices for purposes of responding to section 255 complaints and inquiries.!QN^ {O'#X\  P6G;ɒP#э See., e.g., AFB comments at 33, reply comments at 1314. Nor do we adopt proposals by other commenters that would require manufacturers to maintain public files recording their compliance with section 255 and our rules. We agree with USA that companies will have different and often unique methods and systems for handling  X4complaints and inquiries.o"ZN^ {O '#X\  P6G;ɒP#э See USTA comments at 13.o We see no need to burden manufacturers and service providers with detailed processing and reporting requirements which could hinder rather than hasten the resolution of accessibility disputes. We fully expect, however, that good business and customer service practices will require that companies establish and maintain effective internal procedures and maintain adequate records in order to ensure compliance with our rules, as well as to respond promptly to their actual or prospective customers. We emphasize, however, that we may revisit this decision if our experience processing section 255 complaints  X 4indicate that such requirements are needed to effectively enforce section 255.y# N^ {Om'#X\  P6G;ɒP#э See   2436, supra.y  X' d. Responses to Informal Complaints   XD4131. Content. We do not adopt a rule urged by certain commenters prescribing the information that manufacturers and service providers would be required to provide in their  X4responses to informal section 255 complaints.v$~N^ {O/'#X\  P6G;ɒP#э See., e.g., AFB comments at 33.v As we stated above, our section 255 informal complaint process emphasizes informal and cooperative efforts between consumers and defendant manufacturers and service providers to resolve accessibility concerns without extensive involvement by the Commission. Our goal here is to avoid imposing cumbersome filing and reporting requirements that would deprive consumers and companies of nonadversarial opportunities to resolve disputes. Just as it is important to ensure that consumers have a simple, easy to understand process for raising their accessibility concerns with the Commission, it is equally important that manufacturers and service providers are able to respond quickly and effectively to those concerns. We do not believe it feasible to speculate about specific types of information that may be required by the staff. The level and nature of the information required to respond to accessibility complaints may vary widely depending upon the specific allegations raised, and it appears impractical to fashion a rule to anticipate these varying circumstances.  X4132. Moreover, our rules require defendant manufacturers and service providers to prepare"@$+'',," their responses in the format requested by the complainant, except where the defendant service provider or equipment manufacturer is incapable of doing so. In cases in which the defendant is incapable of preparing a response using the format requested by the complainant, Commission staff will take actions necessary to ensure that the response is accessible to the complainant.  X.4133. Time to Respond. The commenters are generally supportive of a thirty day period in which to respond to informal complaints, although certain commenters argue that the response  X4should be shortened to 15 days%N^ {Oc '#X\  P6G;ɒP#э See, e.g., AFB comments at 7; NAD comments at 1617. while others favor a longer period of 6090 days.z&ZN^ {O '#X\  P6G;ɒP#э See e.g., TIA reply comments at 58.z We believe that a thirty day response period, which mirrors the response time afforded under our common carrier complaint rules, strikes a reasonable balance between our goals of promoting the prompt resolution of accessibility disputes and ensuring that manufacturers and service providers have sufficient time in which to evaluate the complaint and provide meaningful solutions or explanations to consumers. We recognize that the issues raised in some section 255 complaints will be resolved promptly by the defendant company while others will be complex and not susceptible to expeditious resolution. Commission staff will manage the informal complaint process to reflect these case specific differences. For example, the staff will have authority to require a response to a complaint in less than thirty days if warranted under the circumstances. In a similar vein, the staff may grant a defendant additional time in which to attempt to informally resolve a complainant's accessibility problem, particularly in cases that raise extraordinarily complex issues or facts.  X' e. Review and Disposition of Informal Complaints by the Commission(#  X4  X4134. Although we anticipate that the vast majority of complaints can be resolved by the informal complaint process, we recognize that not all informal complaints will be susceptible  Xt4to resolution. A number of commenters expressed concern that our NPRM failed to describe our complaint mechanisms in sufficient detail to enable consumers and potential defendants to  X04understand the mechanics and possible outcomes of the proceedings.'0N^ {O'#X\  P6G;ɒP#э See, e.g., NAD comments at 45; TDI comments at 6; Advocacy Center comments at 4. To address these concerns, we describe in this section the staff review process and possible dispositions of informal section 255 complaints. Generally, the dispositions described are similar to those provided for under our common carrier complaint rules.  X4135. We emphasize that, with regard to informal complaints that are resolved by the manufacturer or service provider to the satisfaction of the individual complainant, our commitment to promoting such resolution efforts should not be construed by companies as a license to implement "quickfix" or "patchwork" accessibility solutions for individual customers that fail to address underlying compliance issues or concerns. Commission staff will be charged with carefully monitoring the section 255 complaint process. If the nature" A~'+'',,!" and/or number of complaints against a particular manufacturer or service provider indicates noncompliance with the Act or our rules, we fully expect the staff to initiate, or recommend to the Commission if appropriate, prompt and decisive enforcement actions.  Xt4136. Complaints Satisfactorily Resolved by the Manufacturer or Provider. As a general matter, if it appears from a response to an informal complaint that the accessibility problem has been resolved, the staff shall closeout the complaint. In cases, where there has been no resolution, the staff shall inform parties of the review and disposition of an informal complaint as described below.  X4137. Unresolved Complaints. There are three basic outcomes that may result from the staffs review of unresolved informal section 255 complaints. First, in the event that the staff determines, based on its review of the complaint, defendants response, and any supporting documentation, that no further action by the Commission is warranted with regard to the matters alleged in the complaint, our rules require the staff to inform the parties of its decision to closeout the complaint and further advise them of the complainant's right to file a formal complaint pursuant to sections 1.720 1.736 of the our rules if the complainant desires to pursue formal adjudication of its claims.  Xk4138. Second, if the staff determines that there is an unresolved question of compliance by the defendant manufacturer or service, the staff will be authorized to conduct a further investigation or initiate such further proceedings as are necessary to resolve compliance questions and determine what, if any sanctions against the defendant are appropriate. In this regard, we note that Act gives the Commission, and its staff pursuant to delegated authority, broad authority to inquire into or investigate practices by parties subject to the Acts  X4requirements.(N^ {O'#X\  P6G;ɒP#э See e.g., sections 4(i) and 403 of the Act, 47 U.S.C.  154(i), 403.  XS4139. Third, in cases in which Commission staff determines that the defendant is not in compliance with section 255 , the rules specify that the staff may order or prescribe (or recommend to the Commission) such sanctions or remedies as deemed appropriate under the facts and circumstances.  X4  X' f. Formal Complaints   X^4140. Applicability of Sections 1.7201.736 of the Rules. As indicated above, we conclude that our rules governing complaints filed against manufacturers and service providers under section 255 of the Act should provide aggrieved parties an unqualified option of pursuing an accessibility claim against a manufacturer or service provider informally or through our more formal adjudicative procedures. We agree with a number of the commenters that certain accessibility disputes, by their nature or complexity, may not be able to be resolved by the disputing parties. Therefore, we adopt a rule providing that any person seeking formal adjudication of a problem or dispute with a manufacturer or service provider may do so pursuant to the procedures specified under sections 1.7201.736 of our rules. We note that in"H$BZ(+'',,i$" November 1997, the Commission adopted comprehensive changes to these rules which are  X4intended to improve the speed and effectiveness of the formal complaint process.s)\N^ yOV' |$t #X\  P6G;ɒP#э Amendment of Rules to be Followed When Formal Complaints are filed Against Common Carriers, First  {O' |$ Report and Order, CC Docket No. 96238, 12 FCC Rcd 22497 (1997) (Formal Complaints Order), pets. for recon.  {O'pending.s Under the revised rules, both complainants and defendant carriers are required to (1) certify in their respective complaints and answers that they attempted in good faith to settle the dispute before the complaint was filed with the Commission; (2) and submit detailed, factual and legal support, accompanied by affidavits and documentation for their respective positions in  X.4the initial complaint and answer.*.N^ {O '#X\  P6G;ɒP#э Formal Complaints Order, 12 FCC Rcd at 2251422517,  3942. In addition, the rules place strict limits on the availability of discovery and subsequent pleading opportunities to present and defend against claims of  X4misconduct.+~N^ {O'#X\  P6G;ɒP#э Formal Complaints Order, 12 FCC Rcd at 2254122554,  102132. The rules contain a number of additional procedural and pleading requirements  X4designed to expedite rather than delay the resolution of formal complaints.,N^ {O'#X\  P6G;ɒP#э Formal Complaints Order, 12 FCC Rcd at 2258722608,  214274.  X 4141. We do not adopt our proposal in the NPRM to require parties to obtain Commission approval in order to file a formal complaint; nor do we adopt the suggestion by certain commenters that we require parties to invoke our informal complaint processes as a  X 4prerequisite to filing a formal complaint.v- N^ {Ok'#X\  P6G;ɒP#э See, e.g., CEMA comments at 21.v No such requirements exist under our common carrier complaint rules and we find no basis in the record to conclude that such requirements are needed for section 255 complaints. Moreover, given the relative ease of the informal complaint process, parties typically do not file formal complaints that would more  X4appropriately be filed as informal complaints in the first instance..4 N^ yOq' |$ #X\  P6G;ɒP#э Historically, for reasons primarily of cost, expedition, and simplicity, consumers have found the filing of  |$ informal complaints rather than formal complaints to be generally preferable. For example, during 1997,  |$@ Commission staff processed over 44,000 written complaints and inquiries concerning various common carrier  |$ practices; the vast majority of these were filed by individual consumers. During this same period, the Commission  |$* received fewer than 100 formal complaints against common carriers, only 2 of which were filed by or on behalf of individual consumers.  XF4142. We note that our Formal Complaints Order specifically authorizes the staff to waive or grant exceptions to formal procedural and pleading requirements in particular cases based  X4on showings of financial hardship and other public interest factors./N^ {O_$'#X\  P6G;ɒP#э See Formal Complaints Order, 12 FCC Rcd at 2553825539,  9395. We expect the staff to give due consideration to the circumstances of individual persons with disabilities, and the disability community at large, in administering our formal complaint mechanisms. We"C>/+'',," emphasize, however, that the staff may not exercise this waiver authority in a manner which relieves a section 255 formal complainant from its obligations to allege sufficient facts, supported by affidavits or other documentation, which, if true, would constitute a violation of section 255 or the FCC's implementing rules.  XQ' g. Accelerated Dispute Resolution (#  X 4143. We anticipate that some formal complaints may be filed which raise broad, industrywide concerns of immediate and paramount importance to the disability community. We recognize that even minor delays or barriers to access that is readily achievable could pose serious and damaging consequences for consumers with disabilities. We also believe that in many situations, manufacturers and service providers will have an interest in obtaining the prompt resolution of formal complaints filed against them in order to quickly establish the validity of their accessibility practices.  X 4144. In July 1998, we amended our formal complaint rules to establish specialized procedures for resolving on an expedited basis certain categories of disputes arising between  X4parties competing in the telecommunications market.q0^N^ {O&' |$ #X\  P6G;ɒP#э Amendment of Rules Governing Procedure to be Followed When Formal Complaints are filed Against  {O' |$ Common Carriers, Second Report and Order, CC Docket No. 96238, 13 FCC Rcd 17018 (1998) (Accelerated  {O'Dockets Order).q These procedures, inter alia, require disputing parties to engage in Commission supervised settlement negotiations prior to the filing of the complaint and, once the complaint is filed, proceed under abbreviated discovery and pleading schedules. The accelerated process is designed to produce a decision by the staff on the merits of the parties' dispute within 60 days from the time the matter is accepted  X4for inclusion in the accelerated docket.1N^ {O'#X\  P6G;ɒP#э Accelerated Dockets Order, 13 FCC Rcd at 17024,  10. We concluded that the specialized procedures will serve the critical function of simulating the growth of competition for telecommunications services by ensuring the prompt resolution of disputes that may arise between market  X4participants.2N^ {O'#X\  P6G;ɒP#э Accelerated Dockets Order, 13 FCC Rcd at 1702417025,  1011. We conclude that such specialized procedures for section 255 disputes could play a similar role in promoting the accessibility goals underlying section 255 and, therefore,  XQ4we provide in this Order that such procedures may be used by the staff for purposes of section 255 formal complaints. Such accelerated procedures will minimize the opportunity for manufacturers and service providers to continue to delay otherwise readily achievable accessibility solutions because the lawfulness of such practices will be subject to expedited  X4review.3N^ {O#'#X\  P6G;ɒP#э Cf. Accelerated Dockets Order, 13 FCC Rcd at 17024,  10.  X4145. Eligibility Requirements. Not all accessibility disputes raised in the context of formal complaints will be appropriate for handling under these accelerated procedures. "`D3+'',," Therefore, we adopt the following requirements that a complainant must satisfy in requesting accelerated resolution of its complaint:  X4First, a complainant desiring accelerated dispute resolution must allege in good faith that a person with a disability is not able to access/use particular equipment or services is due to a product's lack of accessibility, and that such lack of access is having or will have an immediate adverse impact on consumers' ability to use the services and equipment covered by our rules.(#  X4Second, the complainant must demonstrate that he or she has contacted or attempted in good faith to contact the manufacturer or service provider against whom the allegations are made and gave or attempted to give the manufacturer or service provider a reasonable period of time (not less than 30 days) to address the problem;(#  X 4Third, the complainant must have given prior advance notice to the manufacturer or service provider of its intention to file a formal complaint; and(#  X4Fourth, the complainant must agree to participate in any settlement negotiations scheduled and supervised by Commission staff with respect to the matters alleged in the complaint.(# (#  X!4146. Accelerated Dispute Resolution Procedures. Any person with a disability or entity acting on behalf of any such person who satisfies the abovelisted conditions may submit its formal complaint, along with a request for accelerated dispute resolution, to the Common  X4Carrier Bureau's Enforcement Division.4N^ {O3' |$ #X\  P6G;ɒP#э In our Accelerated Dockets Order, we stated that while section 208 complaints are handled by both the  |$* Common Carrier Bureau and the Wireless Telecommunications Bureau, we would initially exercise our discretion  {O' |$ to apply the accelerated docket rules to formal complaints handled by the Common Carrier Bureau. Accelerated  {O' |$" Dockets Order, 13 FCC Rcd at 17022,  6, n.9. We added, however, that after gaining experience with the  |$ application of the rules by the Common Carrier Bureau, we may, in our discretion, make the accelerated docket  |$ procedures available for the adjudication of complaints against commercial mobile radio service (CMRS) providers  {O' |$H and other wireless carriers. Id. We see no reason in this instance to delay use of our accelerated docket procedures  |$D for section 255 complaints against CMRS providers and equipment manufacturers. Therefore, Commission staff  |$ will entertain requests for accelerated resolution of disputes concerning commercial mobile radio service providers  |$ and manufacturers and other wireless carriers and manufacturers will be handled by the Wireless Telecommunications  yO 'Bureau.  Where practicable, such complaint and request may be submitted to the Commission by any reasonable means. The filing must include at a minimum: (1) the information described in sections 1.7211.724 of our rules and (2) a representation by the complainant that the conditions specified in subsection 1.730 have been met. Complaints accepted for accelerated dispute resolution will be promptly forwarded by the Commission to the named manufacturer or service provider, which shall be called on to answer the complaint in 15 days or such shorter time as the staff may prescribe. Commission staff may, in its discretion, require the complainant and defendant to appear before it, via telephone conference or in person, to bring and give evidence bearing on accessibility, usability or compatibility. In appropriate cases, the staff may schedule and supervise"E0 4+'',," settlement negotiations between the parties.  X4147.  Factors to be Considered by the Staff. To further guide parties contemplating formal complaint actions to enforce the requirements of section 255 and our rule, we believe it useful to delineate certain factors which the staff may consider in evaluating requests for accelerated dispute resolution under our specialized procedures. These nonexclusive factors include:  X 4(1)Whether the complainant alleges facts indicating a continuing violation of section 255 or the rules;(#  X4(2)Whether it appears that the complainant has exhausted reasonable opportunities for settlement with the defendant;(#  X; 4(3)Whether expedited resolution of the particular dispute appears likely to advance the objectives of section 255;(#  X 4(4)Whether the issues raised by the complainant appear suited for accelerated resolution (this factor may entail, among other things, an examination of the number of distinct issues and the complexity of the information required to resolve them);(#  XF4(5)Whether the accelerated schedule may be unfair to one party because of disparity in resources.(# (#  X4148. Decisions Issued in Accelerated Proceedings. We noted above that our accelerated dispute resolution procedures contemplate decisions by the staff on the merits of a complaint within 60 days from the time the complaint is accepted onto the accelerated docket. We similarly adopt a 60day timetable for issuing a decision in section 255 complaint proceedings under our accelerated procedures. At the same time, we recognize that some disputes that are likely to arise over the proper interpretation and application of our rules will be cases of first impression, the resolution of which may not be possible within the 60 day period. Therefore, staff administering the accelerated docket will have the discretion to extend the 60day period. We emphasize, however, that extensions granted by the staff will be calculated to produce full and fair decisions in the shortest possible time frame.   X^' h. Defenses to Complaints (#  X4149. We noted in the NPRM that the most common defenses likely to be mounted by manufacturers and service providers in response to either a complaint or an inquiry by the Commission are claims that: (1) the product or service lies beyond the scope of section 255;  X!4(2) the product or service is in fact accessible; or (3) accessibility is not readily achievable.{5!N^ {O*$'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20465,  162.{ We noted that while the first two defenses are relatively straightforward, the readily""FZ5+'',,""  X4achievable defense is complex.Z6N^ {Oy'#X\  P6G;ɒP#э Id.Z We therefore proposed to use the Access Board Guidelines applicable to manufacturers as examples of the kinds of compliance measures we would  X4consider in this regard.Z7ZN^ {O'#X\  P6G;ɒP#э Id.Z These include four categories of activities by companies demonstrating: (1) selfassessment of whether accessibility is readily achievable with respect to the product or product line at issue; (2) external outreach efforts to ascertain accessibility needs and solutions; (3) internal management processes to ensure early and continuing consideration of accessibility concerns as product offerings evolve; and (4) the availability of  X 4user information and support.Z8 N^ {O '#X\  P6G;ɒP#э Id.Z  X4150. Most of the commenters generally agree that good faith efforts to comply with section 255 should be considered in evaluating complaints and compliance generally. Many support the establishment of specific criteria for measuring good compliance efforts, but  X\ 4contend that the criteria should be explicit and fully explained by the Commission.v9\ ~N^ {O'#X\  P6G;ɒP#э See, e.g., PCIA comments at 17.v Others maintain that companies who engage in the activities listed by the Commission should be  X 4given a rebuttable presumption that they have complied with section 255.x: N^ {O'#X\  P6G;ɒP#э See, e.g., TIA comments at 9596.x Still others maintain that the Commission should adopt a casebycase approach to measuring compliance  X 4and not exclude the consideration of additional factors.y; N^ {O#'#X\  P6G;ɒP#э See, e.g., AT&T comments at 1516.y In addition, one commenter argues that the Commission should clarify that a manufacturer or service provider's failure to provide accessible documentation and customer service support accessible to persons with disabilities should not only be a factor to be considered in measuring good faith compliance efforts, but  XD4itself a violation of section 255.d<D4 N^ yO)'#X\  P6G;ɒP#э NCD comments at 34.d Another commenter endorses the Commission's consideration of practices by manufacturers and service providers designed to assist consumers  X4with disabilities in obtaining information about accessible products and services.d= N^ yOs '#X\  P6G;ɒP#э TDI comments at 23.d  X4151. While we believe some weight should be given to evidence that a respondent made  X4good faith efforts to comply with section 255,{>T N^ {O$'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20465,  162.{ we decline to adopt a rule establishing a presumption of compliance in favor of manufacturers and service providers in section 255 complaint actions. Instead, we will review section 255 complaints on a casebycase basis,"OG>+'',," giving due consideration to whether the defendant took actions consistent with the rules and guidance we set forth today, as well as any other compliance measures that the respondent has undertaken, such as those set forth in the Access Board's Advisory Appendix. We do not believe it practical to attempt to delineate specific acts or omissions that would demonstrate compliance with section 255. We emphasize that it will be incumbent upon manufacturers and service providers faced with complaints or compliance inquiries from the Commission to provide information and arguments to support any claim that an accessibility feature is not readily achievable within the meaning of section 255 of the Act.  X' 4. Limitations on Filing Complaints   X 4152. Time Limit for Filing Complaints. The commenters are split over our tentative  X^ 4conclusion in the NPRM that we should not impose any specific timetable on the filing of complaints under section 255. Industry commenters argued in unison that a time limit on such filings is need to prevent manufacturers and providers from being exposed indefinitely  X 4for accessibility assessments made years earlier.? N^ {Op'#X\  P6G;ɒP#э See, e.g., Bellsouth comments at 1112.  Because of what they describe as the fastchanging nature of the telecommunications industry, some urged the Commission to apply a 6month to 12month time limit, starting from the time the complainant acquired or used or  X4attempted to acquire or use a product or service.@ZN^ {O'#X\  P6G;ɒP#э See, e.g., Business Software Alliance comments at 1112. Others supported a twoyear limitations period comparable to the 2year limit on the filing of damages claims against common  XH4carriers under section 415(b) of the Act.AXHN^ yO' |$g #X\  P6G;ɒP#э 47 U.S.C.  415(b). This section provides, in pertinent part that "[a]ll complaints against carriers for the  |$x recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after...." According to these commenters, without the finality of a limitations period, uncertainty would stifle companies ability to move forward  X4with other accessibility programs and innovations.B N^ {O'#X\  P6G;ɒP#э See, e.g., BellSouth comments at 1112; Ameritech comments at 910; TIA comments at 8687. Commenters representing the disability community were likewise unanimous in their support of our proposal not to impose any specific time limit. These commenters contended that inaccessibility may not become apparent until equipment or service is used, and even then, it may take a while to realize the  Xv4inaccessibility or incompatibility of the product.CvN^ {O ' |$* #X\  P6G;ɒP#э See, e.g., National Assistive Technology Project comments at 2; CCD comments at 1; Center for Disability Rights comments at 2.  X04153. We decline to adopt either the 6month or 1year limitations period on the filing of section 255 complaints urged by some commenters. We do not agree that a limitations period more restrictive than the 2years prescribed in section 415 of the Act pertaining to damages claims against common carriers is necessary or desirable to guard against stale or unmeritorious claims. The Commission has not imposed any shorter time limits under its"H C+'',,c" common carrier complaint rules, and none of the commenters makes persuasive arguments why we should adopt a different approach for the filing of section 255 complaints. Nor does our experience processing informal section 208 complaints indicate to us that more stringent limits are needed to guard against stale or unmeritorious complaints. To the contrary, our records indicate that consumers seldom file complaints against carriers that involve disputes over carrier practices occurring more than a year prior to the filing of a complaint. In fact, it appears that consumers are becoming increasingly prompt in filing complaints with the  X 4Commission.D N^ {O'#X\  P6G;ɒP#э See The TELEPHONE COMPLAINT SCORE CARD (Common Carrier Bureau 1998).ě We find nothing in the record to suggest that this will not be the case with complaints arising under section 255.  X4154. We emphasize, however, that our section 255 complaint rules are designed to focus on ensuring practical accessibility solutions for individual consumers while promoting overall compliance with section 255 and our implementing rules. To ensure that this Commission's resources remain properly focused, we adopt a general policy that complaints against manufacturers and service providers determined by the staff to raise issues that are dated or stale due to the passage of time or moot because of industry or product changes (and which do not raise timely damages claims within the meaning of section 415(b)) may, absent indications of an ongoing compliance problem, be subject to summary disposition by the staff.  Xg4155. Alternative Dispute Resolution Procedures. A number of commenters also proposed that we require parties to engage in formal alternative dispute resolution practices as a prerequisite to filing complaints pursuant to section 255. Others proposed that we adopt a rule requiring the Commission to arbitrate or mediate disputes at the request of the disputing parties as an alternative to complaint actions. We decline to adopt these proposals because their potential problems outweigh potential benefits. We conclude that these proposals could either stifle the parties' ability to develop creative solutions or delay unnecessarily the filing of complaints, or both. For example, we agree with NAD and Council for Organizational Representatives that requiring formal ADR efforts prior to the filing of a complaint could permit defendant manufacturers or service providers to delay the filing of formal complaints to the detriment of customers. We find also that the proposal to require Commission staff to formally mediate or arbitrate accessibility disputes in all cases would unnecessarily tax the Commission's resources when there are many qualified ADR experts outside the Commission. We note that Commission staff will work with industry members and consumers to resolve accessibility disputes and compliance issues informally, both before and after complaints have been filed. We see little benefit, however, in requiring the staff to conduct such mediation or arbitration efforts in all cases.  X' 5. Applicability of Statutory Complaint Resolution Deadlines   X!4156. We do not agree with the claim by certain commenters that the fivemonth complaint resolution deadline imposed on the Commission under section 208(b) of the Act is also  Xg#4applicable to all complaints alleging violations of section 255. In the Formal Complaints  XF$4Order, we specifically addressed the issue of the scope and applicability of the section 208(b)"F$IZD+'',,i$" deadline. We held that section 208(b) applies only to formal complaints which involve: (1) investigation[s] into the lawfulness of a charge, classification, regulation or practice contained in tariffs filed with the Commission and (2) any complaint about the lawfulness of matters that would have been included in tariffs but for the Commissions forbearance from  Xt4tariff regulation.~EtN^ {O'#X\  P6G;ɒP#э Formal Complaints Order at  3637. ~  X.4157. Thus, we conclude that section 208(b) would apply to a properly filed section 255 formal complaint only to the extent that the complaint raised issues concerning a matter contained in a service providers tariff or that would have been included in the service providers tariff but for our forbearance policies. We emphasize, however, that notwithstanding the absence of a statutory resolution deadline in section 255, our goal will be to resolve all section 255 complaints in the shortest possible time frame in order to give full effect to accessibility requirements of the Act and our rules.  X ' 6. Confidential Treatment of Filings (#  X 4158. We noted in the NPRM that our enforcement of these rules may often involve  X4evaluation of information which may be considered proprietary business data.{FZN^ {O'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20465,  162.{ We noted  X4further that sections 0.457(d), 0.457(g), and 0.459 of our ruleszGN^ yO)'#X\  P6G;ɒP#э 47 C.F.R.   0.457, 0.459.z already provide confidentiality for proprietary information in certain instances and requested comment  XF4regarding the need, if any, for additional protective measures.{HF|N^ {Os'#X\  P6G;ɒP#э NPRM, 13 FCC Rcd at 20465,  162.{ Many of the industry commenters strongly support the adoption of additional requirements to protect proprietary business information. Certain of the commenters argue that the Commission should establish a rebuttable presumption that information submitted in response to a complaint is  X4confidential.yIN^ {Oy'#X\  P6G;ɒP#э See., e.g., Lucent comments at 23.y Others contend that complainants should be required to sign nondisclosure agreements. Still others argue that where a readily achievable defense is invoked, the Commission should deem any information submitted by the defendant manufacturer or service  XQ4provider as confidential and impose strict penalties for improper disclosures.JQN^ {O!'#X\  P6G;ɒP#э See., e.g., TIA comments at 8991; Motorola comments at 54.  X 4159. We agree with the commenters' assessment that our rules should facilitate the submission of relevant information by consumers with disabilities as well as manufacturers and service providers without fear of public dissemination of information that is confidential"J2 J+'',,"  X4or proprietary.KN^ yOy'   #X\  P6G;ɒP#эSee, e.g., USTA Reply Comments at 1718; Motorola Comments at 5355; Uniden Reply Comments at 8; Redcom Reply Comments at 5; SHHH Reply Comments at 1819.  We also agree that consumers and defendant manufacturers and service providers must be assured of protection for their confidential or proprietary information in order to avoid the time consuming process of resolving disputes over the treatment of documents. We conclude, however, that our rules governing confidential materials adequately address the concerns raised by the commenters and, therefore, do not adopt the additional requirements proposed. As an initial matter, we note that we do not anticipate that  X.4confidentiality issues will arise frequently in informal section 255 complaint proceedings.L. N^ yO ' |$; #X\  P6G;ɒP#э We note that confidentiality issues do not typically arise in connection with informal complaints filed against common carriers under our section 208 complaint rules. Informal complaint actions, which are exempt proceedings under our ex parte rules, are by nature not designed or intended to facilitate the exchange of confidential information between disputing parties. Defendant manufacturers and service providers are not typically required to submit information designated as confidential or proprietary directly to a complainant; nor is the staff required to transmit confidential information provided by a complainant to a defendant company. To the extent that such information is deemed necessary to the staff's evaluation of an informal complaint, the submitting party may invoke the protection afforded under sections 0.4570.459 of our rules by clearly designating the information as confidential or proprietary at the time it is submitted to the Commission.  X4160. We recently reexamined our confidentiality rules and adopted certain amendments and clarifications to more specifically describe the information needed to evaluate requests for  Xg4confidential treatment.4MgxN^ {O' |$ #X\  P6G;ɒP#э See Examination of Current Policy Concerning Treatment of Confidential Information Submitted to the  {OZ'Commission, CC Docket No. 9655, Report and Order, 13 FCC Rcd 24816 (1998). 4 The revised rules clarify that the Commission will carefully consider the competitive implications of disclosure on a casebycase basis. There is no evidence in the record before us that the type of business information that may be submitted by companies to support a readily achievable defense is so unique as to require additional protective measures.  X4161. Moreover, we note that in the context of formal complaint actions, in which relevant information or material designated as confidential must be produced to the opposing party, section 1.731 of our rules places very specific requirements and limitations on the use of information or materials. Section 1.731 makes it clear that confidential or proprietary information may not be used for any purpose other than prosecuting or defending the complaint at issue, or disclosed to any employees other than those directly involved in such prosecution or defense. The rule further provides that parties receiving confidential material must sign a sworn statement affirmatively stating that they have reviewed the Commissions confidentiality provisions pertaining to formal complaints actions and understand and accept the limitations period. We believe that these requirements offer adequate protection in the vast majority of cases. In those cases in which a party legitimately believes that the"7KM+'',," protection afforded under these rules is inadequate, the rules afford the opportunity to seek more stringent limitations of the submission or exchange of particularly sensitive materials.  X4 7. Ex Parte Treatment of Informal and Formal Complaints    XR4162. We will amend our rules pertaining to ex parte communications to provide that  X14informal complaints filed pursuant to section 255 of the Act shall be deemed "exempt" proceedings, as is the case with informal complaints filed pursuant to section 208 of the  X4Act.NN^ {Od '#X\  P6G;ɒP#э See section 1.1204 of the rules, 47 C.F.R.  1.1204.#A\  PɒP# #XN\  PynXP# This exempt designation will allow the Commission and its staff to meet or otherwise  X4communicate with either party, as well as nonparties, on an ex parte basis to discuss matters pertaining to the complaint and related compliance issues. This exempt classification has proven to be extremely beneficial to consumers, defendant companies and the Commission in terms of facilitating the identification and exchange of information and ideas needed to  X> 4resolve section 208 informal complaints and related compliance issues. O> ZN^ {OI' |$ #X\  P6G;ɒP#э We note that our ex parte rules specifically authorize the Commission or its staff to apply different ex parte  |$Q procedures in particular cases if deemed in the public interest. For example, the staff could designate an informal  {O' |$x complaint as either "restricted" (which would mean that ex parte communications would be strictly prohibited) or  {O' |$ nonrestricted (ex parte communications are permitted but must be fully disclosed to the Commission and other  {Oo'parties to the proceeding) if deemed in the public interest. See 47 C.F.R.  1.12001.1208.   X 4163. Formal complaints filed against common carriers pursuant to sections 1.7201.736 of  X 4our rules are classified as "restricted" proceedings under our ex parte rules.qP N^ {O'#X\  P6G;ɒP#э See 47 U.S.C.  1.1208.q This "restricted" designation, as with other proceedings not designated as exempt or permitbut X4disclose, expressly prohibits ex parte presentations in these adjudicatory proceedings from any  Xp4source.?QpN^ {O' |$ #X\  P6G;ɒP#э Id.  As we noted above, our ex parte rules specifically authorize the Commission or its staff to apply  {O'different ex parte procedures in particular cases if deemed in the public interest.? Formal section 255 complaints filed against manufacturers or service providers  XM4shall be similarly treated as restricted proceedings.#A\  PɒP##XN\  PynXP#   X' 8. Actions by the Commission on its own Motion (#  X4164. Our discussion in this section of the Order has focused on rules and policies to be applied when complaints are filed against manufacturers and service providers under section 255 of the Act as a means of promoting compliance with the Act's accessibility requirements and those under our rules. As we noted earlier, swift and effective enforcement is crucial to our section 255 implementation plan. We fully expect that most accessibilityrelated informal complaints filed pursuant to section 255 will be resolved promptly by manufacturers and service providers, without the need for significant Commission involvement. We emphasize, however, that to the extent that compliance issues or problems requiring regulatory intervention are perceived by the staff during the processing of an accessibilityrelated"L Q+'',,I" informal complaint or are otherwise brought to the Commission's attention, the staff will be poised to pursue the matter on its own motion and, when warranted, take or recommend appropriate remedial actions or sanctions from those available to us under the Act and our  X4rules.RN^ {O'#X\  P6G;ɒP#э See our discussion of sanctions and remedies supra, at   108111.  Xt'  XQ4165. We reject the suggestion by certain commenters that we establish specific guidelines  X.4for initiating investigations and other section 255 enforcement actions on our own motion.S.ZN^ {O9 '#X\  P6G;ɒP#э See, e.g., CEMA comments at 2426; TIA comments at 9899.  X 4We see no need to attempt to describe in this Order the various factors and circumstances that might warrant exercise of our broad enforcement authority. The procedures to be followed by the staff in taking action on its own motion, unless prescribed under the Act or our rules,  X4shall be those which will best serve the purposes of such enforcement proceedings. |TN^ {OA'#X\  P6G;ɒP#э See generally, 47 U.S.C.  154(j).|  X^ ' 9. Program Accessibility   X 4166. As we noted earlier, the Commission has a responsibility to prohibit discrimination on the basis of disability in its programs and activities, as required by the Rehabilitation Act  X 4of 1973, as amended.uU ~N^ {O'#X\  P6G;ɒP#э 29 U.S.C.  791 et seq.u The Commission's rules implementing these responsibilities are set forth at 47 C.F.R.  1.1801 1.1870. These requirements apply to the Commission's  X4enforcement provisions and activities.VXN^ yOM' |$ #X\  P6G;ɒP#э This includes requirements for access to electronic and information technologies developed, maintained,  |$* procured, or used by all Federal agencies, as required by the Workforce Investment Act of 1998, Pub. L. No 105220, 112 Stat. 936 (1998);  408(b), 508, 112 Stat. at 120306. If a member of the public believes that the Commission is not providing equal access to its programs and activities, the procedures for filing a program accessibility complaint are set forth in 47 C.F.R.  1.1870. Complaints regarding access to Commission programs and activities should be sent to the Commission's Office of the Managing Director. Commission staff will provide technical assistance to any member of the public wishing to file a complaint pursuant to sections 1.1801 1.1870 of the rules; regarding access to Commission programs and activities; and any such complaint will not predispose the Commission negatively against any section 255 complaints.   XQ' F. ADDITIONAL IMPLEMENTATION AND ENFORCEMENT MEASURES IIIE4F    X 4167. In the NPRM, the Commission sought comment regarding whether existing Commission processes (and associated forms) would be efficient vehicles for any requirements the Commission might develop in this proceeding, such as information collection, or providing notice to firms dealing with the Commission that they may be subject to section 255. The Commission listed the following examples: (1) the Commission's equipment"M0 V+'',,@" authorization processes under Part 2, Subpart J of the Commission's Rules; (2) equipment import documentation requirements under Part 2, Subpart K of the Rules; (3) licensing proceedings under section 307 of the Act for various radio services used by entities subject to section 255 obligations; and (4) various common carrier filing processes.  XQ4168. The Commission also expressed the view that there could be other measures the Commission might take, or might encourage others to take, to foster increased accessibility of telecommunications products. The Commission listed the following examples:  X4(1)ppEstablishment of a clearinghouse for current information regarding telecommunications disabilities issues, including product accessibility information, and accessibility solutions.(#p  X9 4(2)ppPublication of information regarding the performance of manufacturers and service providers in providing accessible products, perhaps based on statistics generated through the fasttrack and dispute resolution processes.(#p  X4(3)ppExpansion of the information provided on the Internet at the Commission's Disabilities Issues Task Force Web site (http://www.fcc.gov/dtf).(#p  XD4(4)ppEfforts by consumer and industry groups to establish ongoing informational and educational programs, product and service certification, standardssetting, and other measures aimed at bridging the gap between accessibility needs and telecommunications solutions.(#p  X4(5)ppDevelopment of peer review processes.(#  XO4169. Commenters who addressed the first group of issues generally endorsed the use of existing Commission procedures and forms as an efficient and effective method of  X 4enforcement.W N^ {O'#X\  P6G;ɒP#э See, e.g., AirTouch comments at 8. Commenters on the second group of issues involving educational efforts were split between members of the disability community who advocated an expansion of existing  X4Commission dissemination of technical assistance accessibility informationXZN^ {O' |$/ #X\  P6G;ɒP#э See, e.g., Access Living of Metropolitan Chicago comments at 2; Illinois Deaf and Hard of Hearing Commission comments at 23; NAD comments at 3439. and manufacturers groups who advocated that a good faith effort to comply with section 255 and keep record of this compliance would be sufficient to fulfill their obligations under the  XZ4Act.YZN^ {O#' |$ #X\  P6G;ɒP#э See, e.g., SBC comments at 26; TIA comments at 9596; Information Technology Industry Council comments at 42.  X4170. As to the first group of issues, we find that modifying the current equipment"NY+'',," certification or other existing Commission processes for purposes of compliance with section 255 is not appropriate. As outlined in the discussion on enforcement and the application of the readily achievable standard, no specific documentation is being required at this time.  Xt4171. As to the second group of issues, however, we believe that the dissemination of technical assistance, including information on product capabilities and availability, as well as information about manufacturer and service provider compliance with section 255, is vitally important. It will both help ensure that people have access to needed products and serve as an enforcement tool. After we determine the best way to present the relevant data, we intend to publish information regarding entities' compliance with these rules. We also intend to provide technical assistance and conduct outreach efforts to inform customers and companies of their rights and responsibilities under these rules.  X9 4172. We note that some companies and associations have already begun efforts to provide information regarding section 255, such as developing a clearinghouse function on accessibility and training employees on the obligations under section 255. We will not, however, require specific efforts at this time, as we believe companies should have flexibility in addressing this issue. Should we determine in the future that the lack of technical assistance or information about products or these rules is preventing people with disabilities from receiving the full benefits of the statute, we will consider measures to address these issues, including amending our rules.  X' G. NOTICE OF INQUIRY  X'1. Overview   Xr4173. While we believe this Order takes a dramatic step toward bringing people with disabilities into the information age, we recognize that there is much to be done. There is a vast array of communicationsrelated services available today that are not covered by these  X 4rules.nZ N^ yO' |$* #X\  P6G;ɒP##G\  P6G; مP## X\  P6G;ɒP#э #X\  P6G;ɒP#We note that the Commission proposed that Video Relay Interpreting (VRI) be a considered "TRS" within  {OJ' |$^ the meaning of Title IV of the ADA. See Telecommunications Relay Services and SpeechtoSpeech Services for  |$ Individuals With Hearing and Speech Disabilities, Notice of Proposed Rulemaking, CC Docket No. 9867 (rel. May  |$x 20, 1998). TRS, mandated by Title IV of the ADA (47 U.S.C.  225, requires the Commission to ensure that people  |$ with hearing or speech disabilities have 'functionally equivalent' access to the telephone network. 47 U.S.C. 225 (a) (c). n In addition, there are new technologies, which may be outside the scope of these rules, being developed that may further revolutionize the way we communicate. These developments will undoubtedly affect access to communications for people with disabilities. We must ensure that the disability community is not denied access to innovative new technologies, for example Internet and computerbased services, that may become complements to, or even replacements for, today's telecommunications services and equipment.  X4174. We are cognizant, in general, of the speed with which innovative next generation"OBZ+'',, " technologies are changing the way communications services are offered to the public, and the challenges posed to the disability community by these new technologies if they are not accessible. We lack, however, knowledge of the specific characteristics of those changes, and the implications for accessibility for people with disabilities. Given the rapid evolution of communications and the pace of technological innovation, we need to ensure that as new services and networks are developed they are designed to provide access to persons with disabilities.  X4175. Accordingly, we are issuing this Notice of Inquiry (NOI) to aid our understanding of the access issues presented by communications services and equipment not covered by the rules we adopt in this Order. Our goal is to take full advantage of the promise of new technology, not only to ensure that advancements do not leave people with disabilities behind, but also to harness the power of innovation to break down the accessibility barriers we face  X9 4today and prevent their emergence tomorrow. While we are interested in all aspects of communications technology that may present accessibility issues, we specifically request information on two types, Internet telephony and computerbased equipment that replicates telecommunications functionality. First, we ask commenters to address the extent to which  X4Internet telephony has begun, to replace the traditional telecommunications services , including usage patterns by person with disabilities, which Congress clearly intended to be subject to section 255. Second, we ask commenters to advise us on the impact of computer based applications that provide telecommunications functionalities farther into a customer's premise than the point of connection with the public network, such as voicemail capability that resides in a computer connected to a PBX, rather than in a PBX. We ask commenters not to limit their responses to these two areas, however, but rather to raise any issues of innovations in  X4telecommunications that may present accessibility challenges for the disability community.  X4  Xr4176. We are also expressly interested in commenters' views on the extent to which government regulation will be necessary to ensure accessibility of communications technology in the future. We note, for example, the commitment of the Voice on the Net (VON) Coalition to voluntarily ensure that Internet telephony services provided by its members are  X4"accessible as readily achievable", and to take into account disability access needs when  X4 developing new products and services.[N^ yO<'#X\  P6G;ɒP#э Letter from Bruce D. Jacobs, Counsel to the VON Coalition, to Magalie R. Salas, dated July 7, 1999. Because of our strong interest in ensuring that the disability community is not denied access to any communications technologies, we ask commenters to tell us what we can do the guarantee that access.  X7' 2. Discussion   X' a. Internet Telephony  X 4  X!4177. Internet Protocol telephony ("Internet" or "IP" telephony) services enable realtime voice transmission using the Internet Protocol (IP), a packetswitched communications protocol. The services can be provided in two basic ways: computertocomputer IP telephony conducted through special software and hardware at an end user's premises; or"B$PX[+'',,i$" phonetophone IP telephony conducted through "gateways" that enable applications  X4originating and/or terminating on the public switched network. Phoneto é phone IP telephony  X4is provided through computer gateways that allow end users to make and receive calls using their traditional telephones. Gateways translate the circuitswitched voice signal into IP packets, and vice versa, and perform associated signalling, control, and address translation functions. The voice communications can then be transmitted along with other data on the "public" Internet, or can be routed through intranets or other private data networks for improved performance.   X4178. Many commenters urged that we apply the requirements of Section 255 to Internet  X4telephony ("IP telephony") in general or phonetophone IP telephony, specifically.Z\N^ {O ' |$ #X\  P6G;ɒP#э NAD Ex Parte Statement, filed Feb. 5 1999, on behalf of Alexander Graham Bell Association , ACB, AFB,  |$ American Society for Deaf Children, American SpeechLanguageHearing Assoc., Gallaudet University, League for  |$I the Hard of Hearing, NAD, SHHH, TDI, UCPA, WID at 7; AccLiv Comments at 3; ACB at 4; CPB/WBGH  |$* Comments at 6; ILDEAF Comments at 34; LDA Comments at 2; CILNM Comments at 34; Lake County at 1; SIL at 34; NAD at 15; DDTP at 45.Z They pointed out that, given the evolutions in communications and the rapid pace of technological innovation, we need to ensure that as new services and networks are developed they are designed to provide access to persons with disabilities. They noted that it is during the development stage that accessibility can be most effectively included. We are concerned that consumers who are simply attempting to place or receive a call using standard CPE not have their accessibility disappear or diminished because the call is being transmitted using a new, developing technology. In addition, commenters stated that if persons with disabilities cannot participate in communications over these newly developing networks, they risk becoming  Xg4further marginalized from society.{]XgzN^ yO' |$ #X\  P6G;ɒP#э UCPA Comments at 3; AccLiv Comments at 3; ACB Comments at 4; CPB/WBGH Comments at 6;  |$& ILDEAF Comments at 34; LDA Comments at 2; CILNM Comments at 34 ; Lake County Comments at 1; SIL Comments at 34; NAD Comments at 1516; WITAN Comments at 4; WID Comments at 4.{  XD4   X!4179. We ask commenters to provide any further information as to the extent to which  X4phonetophone IP telephony services might impact the disability community, and the steps, we should take to address any adverse impacts in order to fulfill the goals of section 255, or otherwise promote the accessibility of this technology. Commenting parties should offer specific suggestions as to the appropriate role for the Commission in guaranteeing access and the statutory basis for that role. For example, commenters should address ways in which phone to phone IP telephony may be interpreted as falling within the purview of section 255. Commenters should provide specific definitions of the services or equipment to which the statute might apply, and the appropriate means of limiting its application to only those  X4services and equipment. Commenters should address the ways , if any, in which industry bodies can ensure access without regulatory action. Commenters should also describe the specific access issues or experiences that might arise with IP telephony. For example, will TTY tones be adequately transmitted in a packetswitched environment? Will persons with speech disabilities whose speech patterns and voice outputs from alternative and augmentative"ZQ]+'',," communications devices may fall outside of traditional voice patterns, face additional communications barriers with packetized voice services?   X4180. We further ask commenters to address what efforts manufacturers of equipment that performs phonetophone IP telephony functions and providers of phonetophone IP telephony services are currently making to ensure that such equipment and services are accessible. What improvements in accessibility may be possible through the use of phonetophone IP telephony? Are there natural opportunities for incorporating accessibility into IP telephony? can greater accessibility be achieved if requirements are adopted early in the development of IP Telephony? Is it possible that greater levels of accessibility will be readily achievable with IP telephony than conventional telephony? How will compatibility with assistive technology affect the use of IP telephony?  X9 4181. Commenters should also address the extent to which IP telephony is now, or soon will be, an effective substitute for conventional circuitswitched telephony. As Internet usage grows, phonetophone voice IP telephony may be used with increasing frequency as an alternative to more traditional telephone service. How extensive is Internet telephony usage today? What is the projected usage of Internet telephony in the near future? What is the projected use of various kinds of IP telephony by persons with disabilities?   XD4182. Commenters are asked to describe differences in characteristics between computerbased and phonebased IP telephony, and whether such differences merit different treatment by the Commission. Given the rapid pace of technological change in the telecommunications marketplace, we also ask commenters to apprise us of any new technologies that may impact the availability of accessible services and equipment.  Xr' b. Computer Based Equipment  X,4 183. We also seek comment on another aspect of the network of the future the movement of telecommunications and information service functions from the network, or the terminal equipment which connects directly to the network, into computer equipment which does not connect to the network directly. This computer hardware and software is not typically regarded as CPE, but may, in fact, deliver the same functions we seek to make  X}4accessible. For instance, voicemail, interactive menu s, or phonetophone IP telephony in current network topologies can reside in equipment located on the service provider's premises, but such functionalities are also available in several forms to end users on their own premises. For example, voicemail can be purchased from a carrier, can be provided via software and a private branch exchange (PBX), or can be provided through a computer that connects with the PBX, but is not generally regarded as part of the PBX. It is this latter application as to which we seek comment.  Xe#4184. These software applications shift the potential for accessibility solutions from the core of the network to the end user's premises. We therefore ask commenters to address whether equipment that provides these capabilities, but which does not connect directly into the public network (or otherwise directly receive the transmission of the telecommunications),"%R]+'',, &" should be considered to be CPE subject to the requirements of section 255. We note, for  X4example, that this Order does not currently reach a software telephone or the personal computer on which it resides, even though it performs the same functions as the traditional telephone.  XQ4185. We ask commenters to address the need to include this computerbased equipment as CPE or otherwise apply the provisions of these rules to that equipment in order to ensure access. We also ask commenters to address whether failure to bring such equipment within the scope of section 255 would create a serious gap in coverage that would interfere with our ability to effectively implement its provisions. Commenters should offer suggestions as to the appropriate role for the Commission in ensuring access for this kind of equipment and the statutory basis for that role. We also ask about the potential for this kind of equipment for improving accessibility and its compatibility with assistive technology. Is it possible that greater levels of accessibility will be readily achievable if this kind of equipment has accessibility requirements?  X ' H. PROCEDURAL MATTERS   X' 1. Comment Filing Procedures  Xg4  XD4186. Pursuant to sections 1.415 and 1.419 of the Commissions rules, interested parties may file comments as follows: comments are due on November 14, 1999 and reply comments are due on December 14, 1999. Comments may be filed using the Commissions Electronic Comment Filing System (ECFS) or by filing paper copies.   X4187. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic copy by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an  X}4e-mail to ecfs@fcc.gov, and should include the following words in the body of the message: "get form ." A sample form and directions will be sent in reply.  X4188. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All paper filings must be sent to the Commissions Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street S.W., Room TW-A325, Washington, DC 20554.   X%4189. Parties who choose to file by paper should also submit their comments on  X%4 diskette to Al McCloud, Network Services Division, Common Carrier Bureau, Federal"%S]+'',,%"Ԍ Communications Commission, 445 Twelfth Street SW, Room 6-A423, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM-compatible format using WordPerfect 5.1 for Windows or a compatible software. The diskette should be accompanied by a cover letter and should be submitted in read-only mode. The diskette should be clearly labeled with the commenters name, proceeding, including the lead docket number in the proceeding (CC Docket No. 96198), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase (Disk Copy Not an Original. ) Each diskette should contain only one partys pleadings, preferably in a single electronic file. In addition, commenters should sent diskette copies to the Commissions copy contractor, International Transcription Service, Inc., 1231 20th St. NW, Washington DC 20037.   X\ 4 2.Regulatory Flexibility Act  X 4190. As required by section 203 of the Regulatory Flexibility Act,c^ N^ yO'#X\  P6G;ɒP#э 5 U.S.C.  603.c the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the expected impact on small entities of the policies and rules adopted herein. The FRFA analysis is set forth in Appendix D.  X4  Xg' 3. Paperwork Reduction Act Analysis  X!4191. The decision herein has been analyzed with respect to the Paperwork Reduction Act of 1995, Pub. L. 10413, and the Office of Management and Budget ("OMB") has approved some of its information collection requirements in OMB No. 30600833, dated August 4,  X41998. Some of the proposals in the NPRM, however, have been modified or added. Therefore, some of the information collection requirements in this Report and Order are contingent upon approval by OMB.  X.' I. ORDERING CLAUSES  X 4  X4192. Accordingly, IT IS ORDERED that pursuant to the authority contained in Sections 1, 2, 4, 201(b), 208, 251(a)(2), 255, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  151, 152, 154, 201(b), 208, 251(a)(2), 255, 303(r), this Order IS ADOPTEDand COMMENTS ARE REQUESTED as described above.  X94193. IT IS FURTHER ORDERED that 47 C.F.R. Parts 0 and 1, ARE AMENDED as set forth in Appendix A, effective seventy (70) days after publication of the text thereof in the Federal Register.  X!4194. IT IS FURTHER ORDERED that 47 C.F.R. Parts 6 and 7 ARE ADOPTED as set forth in Appendix B, effective seventy (70) days after publication of the text thereof in the  Xg#4Federal Register. "D$TX^+'',,$"Ԍ X4195. IT IS FURTHER ORDERED that the Commission's Office of Public affairs SHALL  X4SEND a copy of this Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the  X4Regulatory Flexibility Act, Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601, et seq. (1981).   XU4196. The Report and Order IS ADOPTED, and the requirements contained herein will become effective 70 days after publication of a summary in the Federal Register. The collection of information contained within is contingent upon approval by OMB. Notice of that approval will be published in the Federal Register.  X4197. Alternative formats (computer diskette, large print, audio cassette and Braille) are available to persons with disabilities by contacting Martha Contee at (202) 4180260, TTY  Xb 4(202) 4182555, or at mcontee@fcc.gov. The Report and Order and the rules can also be downloaded in Wordperfect 5.1 and in ASCII formats at: http://www.fcc.gov/dtf. pp` ` P P @ @ 0 0  0GFEDERAL COMMUNICATIONS COMMISSION pp  XL4 pp` ` P P @ @ 0 0  0GMagalie Roman Salas pp` ` P P @ @ 0 0  0GSecretary")U^+'',,!"  X' APPENDIX A Đl  Xt4  TEXT OF SECTION 251(a) AND SECTION 255  XQ' GOF THE COMMUNICATIONS ACT ă  X'p` P @ 0 p`P@0  !"#$%p&`'P X(`0h 8"#%p&#Xj\  P6G;ynXP# Section 251. Interconnection.  X4(a) General Duty of Telecommunications Carriers."Each telecommunications carrier has the duty" * * * * *   h(2) not to install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to section 255 or 256.(#  Xg' Section 255. Access by Persons with Disabilities.  X!4(a) Definitions."As used in this section"  X4  h(1) Disability."The term disability has the meaning given to it by section 3(2)(A) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102(2)(A)).(#  Xr4  h(2) Readily achievable."The term readily achievable has the meaning given to it by section 301(9) of that Act (42 U.S.C. 12181(9)).(#  X 4 )T"Z(b) Manufacturing."A manufacturer of telecommunications equipment or customer premises  |$equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable.  X}4 )T"(c) Telecommunications Services."A provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.  X4 )T"(d) Compatibility."Whenever the requirements of subsections (b) and (c) are not readily  |$Nachievable, such a manufacturer or provider shall ensure that the equipment or service is  |$compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.  Xe#4 )T"(e) Guidelines."Within 18 months after the date of enactment of the Telecommunications  |$Act of 1996, the Architectural and Transportation Barriers Compliance 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. "'V^+D)D),,'"Ԍ X4 W @A@(f) No Additional Private Rights Authorized."Nothing in this section shall be  |$  construed to authorize any private right of action to enforce any requirement of this section or  |$}any regulation thereunder. The Commission shall have exclusive jurisdiction with respect to any complaint under this section.  "QW^+'',,Q"  X' APPENDIX B  l  X' Amendment to the Code of Federal Regulations  XQ' |$" 1) Title 47 of the Code of Federal Regulations (C.F.R.) is amended by adding the following new Parts 6 and 7: Subpart A Scope Who must comply with these rules?  X4  6.1 Who must comply with these rules?  X\ ' Subpart B Definitions  X9 4 #Xj\  P6G;ynXP#  6.3 Definitions Subpart C Obligations What must covered entities do?  X 4  6.5 General Obligations of Manufacturers  6.7 General Obligations Service Providers  6.9 Product Design , Development and Evaluation  6.11 Information Pass through  6.13 Information, Documentation and Training  X!'  Subpart D Enforcement  X4  6.15 Generally  6.16 Informal or formal complaints  X4 6.17 Informal complaints; form and content  6.18 Procedure; designation of agents for service  6.19 Answers to informal complaints  X,4  6.20 Review and disposition of informal complaints  X 4 6.21 Formal Complaints, applicability of Sections 1.720 1.736 of the rules  6.22 Formal complaints based on unsatisfied informal complaints  X4  6.23 Actions by the Commission on its on motion  Authority: 47 U.S.C. 154(i), 154(j) 208, 255  X7' Subpart A Scope Who must comply with these rules?  X4  6.1 The rules in this part apply to: (a) any provider of telecommunications service; (b) any manufacturer of telecommunications equipment or customer premises equipment; and (c) any telecommunications carrier.  X&4 Subpart B Definitions .  X'4"'X^+D)D),,'"Ԍ X4  @APage B@  6.3 Definitions  X4 (a) The term accessible shall mean that:   )T"h(1) Input, control, and mechanical functions shall be locatable, identifiable, and operable in accordance with each of the following, assessed independently:(#   `(i) Operable without vision. Provide at least one mode that does not require user vision.(#   (ii) Operable with low vision and limited or no hearing. Provide at least one mode that   permits operation by users with visual acuity between 20/70 and 20/200, without relying on audio output.(#   (iii) Operable with little or no color perception. Provide at least one mode that does not require user color perception.(#   (iv) Operable without hearing. Provide at least one mode that does not require user auditory perception.(#   (v) Operable with limited manual dexterity. Provide at least one mode that does not require user fine motor control or simultaneous actions.(#   (vi) Operable with limited reach and strength. Provide at least one mode that is operable with user limited reach and strength.(#   #hh(vii) Operable with a Prosthetic Device. Controls shall be operable without requiring body contact or close body proximity.(#   d(viii) Operable without time-dependent controls. Provide at least one mode that does   not require a response time or allows response time to be by-passed or adjusted by the user over a wide range.(#   (ix) Operable without speech. Provide at least one mode that does not require user speech.(#   (x) Operable with limited cognitive skills. Provide at least one mode that minimizes the cognitive, memory, language, and learning skills required of the user.(#  X!4 )T"' (2) All information necessary to operate and use the product, including but not limited to,  |$text, static or dynamic images, icons, labels, sounds, or incidental operating cues, comply with each of the following, assessed independently:   (i) Availability of visual information. Provide visual information through at least one mode in auditory form.(#"%Y^+'',,%"Ԍ  ԙ(ii) Availability of visual information for low vision users. Provide visual information   through at least one mode to users with visual acuity between 20/70 and 20/200 without relying on audio.(#   z(iii) Access to moving text. Provide moving text in at least one static presentation mode at the option of the user.(#   ~(iv) Availability of auditory information. Provide auditory information through at least one mode in visual form and, where appropriate, in tactile form.(#   (v) Availability of auditory information for people who are hard of hearing. Provide   audio or acoustic information, including any auditory feedback tones that are important   for the use of the product, through at least one mode in enhanced auditory fashion (i.e., increased amplification, increased signal-to-noise ratio, or combination). (#   (vi) Prevention of visually-induced seizures. Visual displays and indicators shall minimize visual flicker that might induce seizures in people with photosensitive epilepsy.(#   t(vii) Availability of audio cutoff. Where a product delivers audio output through an   external speaker, provide an industry standard connector for headphones or personal   [listening devices (e.g., phone-like handset or earcup) which cuts off the speaker(s) when used.t(#   m(viii) Non-interference with hearing technologies. Reduce interference to hearing   dtechnologies (including hearing aids, cochlear implants, and assistive listening devices) to the lowest possible level that allows a user to utilize the product.(#   (ix) Hearing aid coupling. Where a product delivers output by an audio transducer   which is normally held up to the ear, provide a means for effective wireless coupling to hearing aids.(#  X4 |$(b) The term compatibility shall mean compatible with peripheral devices and specialized  |$customer premises equipment commonly used by individuals with disabilities to achieve  X\4 |$yaccessibility to telecommunications services, and in compliance with the following provisions, as applicable:  )T" h(1) External electronic access to all information and control mechanisms. Information  )T"needed for the operation of products (including output, alerts, icons, on-line help, and  )T"Adocumentation) shall be available in a standard electronic text format on a cross-industry  )T"standard port and all input to and control of a product shall allow for real time operation by  )T"electronic text input into a cross-industry standard external port and in cross-industry  )T"0standard format. The cross-industry standard port shall not require manipulation of a connector by the user. (# "%Z^+'',,%"Ԍ )T"4h(2) Connection point for external audio processing devices. Products providing auditory  )T"output shall provide the auditory signal at a standard signal level through an industry standard connector.(#  )T"h(3) TTY connectability. Products which provide a function allowing voice communication  )T"9and which do not themselves provide a TTY functionality shall provide a standard  )T"non-acoustic connection point for TTYs. It shall also be possible for the user to easily turn any microphone on and off to allow the user to intermix speech with TTY use.(#  )T"h(4) TTY signal compatibility. Products, including those providing voice communication  )T"Nfunctionality, shall support use of all cross-manufacturer non-proprietary standard signals used by TTYs.(#  X9 4 |$(c) The term customer premises equipment shall mean equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications.  X 4 |$(d) The term disability shall mean a physical or mental impairment that substantially limits one  |$8or more of the major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment.  XH4(e) The term manufacturer shall mean an entity that makes or produces a product.  X4 |$(f) The term peripheral devices shall mean devices employed in connection with equipment  X4 |$covered by this part to translate, enhance, or otherwise transform telecommunications into a form accessible to individuals with disabilities.  Xz4 |$(g) The term readily achievable#XP\  P6QynXP# shall mean, in general, 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:  X4hh(1)hthe nature and cost of the action needed;(#  X4 v ,hh(2)hthe overall financial resources of the manufacturer or service provider involved in  v the action (the covered entity); the number of persons employed by such  v imanufacturer or service provider; the effect on expenses and resources, or the  v impact otherwise of such action upon the operations of the manufacturer or service provider;(#  X 4 v ,hh(3)hIf applicable, the overall financial resources of the parent of the entity; the overall  v size of the business of the parent entity with respect to the number of its employees; the number, type, and location of its facilities; and(#  XL$4 v hh(4)hIf applicable, the type of operation or operations of the covered entity, including the  v composition, structure and functions of the workforce of such entity; and the  v Fgeographic separateness, administrative or fiscal relationship of the covered entity"&[^+'',,%" in question to the parent entity.(#  X4 |$ (h) The term specialized customer premises equipment shall mean customer premise equipment which is commonly used by individuals with disabilities to achieve access.  X04 |$g(i) The term telecommunications equipment shall mean equipment, other than customer premises  |$equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades).  X4 |$M(j) The term telecommunications service shall mean the offering of telecommunications for a fee  |$+directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.  X 4 |$(k) The term usable shall mean that individuals with disabilities have access to the full  |$functionality and documentation for the product, including instructions, product information  |$(including accessible feature information), documentation, bills and technical support which is provided to individuals without disabilities.  X4  Xo4 Subpart C Obligations What must covered entities do?  X)4  6.5 General Obligations (a) Obligation of Manufacturers  )T"Rh(1) A manufacturer of telecommunications equipment or customer premises equipment shall  )T">ensure that the equipment is designed, developed and fabricated so that the  )T"telecommunications functions of the equipment are accessible to and usable by individuals with disabilities, if readily achievable.(#  )T"h(2) Whenever the requirements of paragraph (1) are not readily achievable, the manufacturer  )T"shall ensure that the equipment is compatible with existing peripheral devices or specialized  )T"customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.(# (b) Obligation of Service Providers  )T"_h(1) A provider of a telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.(#  )T" h(2) Whenever the requirements of paragraph (1) are not readily achievable, the service  )T"Jprovider shall ensure that the service is compatible with existing peripheral devices or  )T"specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.(# "&\^+'',, &"Ԍ |$(c) Obligation of Telecommunications Carriers. Each telecommunications carrier must not install  |$pnetwork features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to this Part or Part 7.  6.7 Product design, development, and evaluation.  )T"~(a) Manufacturers and service providers shall evaluate the accessibility, usability, and  X4 |$compatibility of equipment and services covered by this part and shall incorporate such evaluation  |$throughout product design, development, and fabrication, as early and consistently as possible.  |$Manufacturers and service providers shall identify barriers to accessibility and usability as part of such a product design and development process.  )T"hQ(b) In developing such a process, manufacturers and service providers shall consider the following factors, as the manufacturer deems appropriate:   (1) Where market research is undertaken, including individuals with disabilities in target populations of such research;Q   (2) Where product design, testing, pilot demonstrations, and product trials are conducted, including individuals with disabilities in such activities; (3) Working cooperatively with appropriate disability-related organizations; and   (4) Making reasonable efforts to validate any unproven access solutions through testing  |$with individuals with disabilities or with appropriate disability-related organizations that have established expertise with individuals with disabilities.  X,4 6.9 Information pass through.  X 4  )T"#Telecommunications equipment and customer premises equipment shall pass through  |$cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or  |$yother information necessary to provide telecommunications in an accessible format, if readily  |$"achievable. In particular, signal compression technologies shall not remove information needed for access or shall restore it upon decompression.  6.11 Information, documentation, and training.  )T"(a) Manufacturers and service providers shall ensure access to information and  |$documentation it provides to its customers, if readily achievable. Such information and  |$Idocumentation includes user guides, bills, installation guides for end-user installable devices, and  |$product support communications, regarding both the product in general and the accessibility  |$tfeatures of the product. Manufacturers shall take such other readily achievable steps as necessary including:"%]^+'',,%"Ԍ  ԙ(1) Providing a description of the accessibility and compatibility features of the product  |$upon request, including, as needed, in alternate formats or alternate modes at no additional charge;   (2) Providing end-user product documentation in alternate formats or alternate modes upon request at no additional charge; and   z(3) Ensuring usable customer support and technical support in the call centers and service centers which support their products at no additional charge.  )T"A(b) Manufacturers and service providers shall include in general product information the contact method for obtaining the information required by paragraph (a) of this section.  )T"[(c) In developing, or incorporating existing training programs, manufacturers and service providers, shall consider the following topics: (1) Accessibility requirements of individuals with disabilities; (2) Means of communicating with individuals with disabilities; (3) Commonly used adaptive technology used with the manufacturer's products; (4) Designing for accessibility; and (5) Solutions for accessibility and compatibility.  X'   #|\  P6G;_P# #Xj\  P6G;ynXP# Subpart D Enforcement  X4 6.15Generally  X4 v  (a)All manufac#Xj\  P6G;ynXP#turers of telecommunications equipment or customer premise equipment  |$(CPE) and all providers of telecommunications services, as defined under this subpart, are subject to the enforcement provisions specified in the Act and the Commission's rules.  XF4 )T" (b) For purposes of sections 6.15 6.23 of this subpart, the term "manufacturers" shall  |$denote manufacturers of telecommunications equipment or CPE and the term "providers" shall denote providers of telecommunications services.  6.16 Informal or formal complaints  X4  X4  A  Complaints against manufacturers or providers, as defined under this subpart, for alleged violations of this subpart may be either informal or formal.  Xw"4 6.17  Informal complaints; form and content  XI$4  (a)  An informal complaint alleging a violation of section 255 of the Act or this subpart  X2%4 |$qmay be transmitted to the Commission by any reasonable means, e.g., letter, facsimile  |$transmission, telephone (voice/TRS/TTY), Internet email, ASCII text, audiocassette recording,"&^^+'',,%" and braille. (b) An informal complaint shall include:  X4(1)The name and address of the complainant;  X4 v (2)The name and address of the manufacturer or provider against whom the complaint is made;   (3) A full description of the telecommunications equipment or CPE and/or the telecommunications service about which the complaint is made;  X14 v `(4)The date or dates on which the complainant either purchased, acquired or used, or  |$,attempted to purchase, acquire or use the telecommunications equipment, CPE or telecommunications service about which the complaint is being made; " X 4 v "(5)A complete statement of the facts, including documentation where available,  |$supporting the complainant's allegation that: such telecommunications service, or such  |$[telecommunications equipment or CPE, is not accessible to, or usable by, a person with a  |$particular disability or persons with disabilities within the meaning of this subpart and section 255  |$of the Act; or that the defendant has otherwise failed to comply with the requirements of this subpart;  Xb4h(6)The specific relief or satisfaction sought by the complainant, and(#  XK4 v `(7)The complainant's preferred format or method of response to the complaint by the  |$8Commission and defendant (e.g., letter, facsimile transmission, telephone (voice/TRS/TTY),  |$Internet email, ASCII text, audiocassette recording, braille; or some other method that will best accommodate the complainant's disability)     X4  6.18Procedure; designation of agents for service " X4 v "(a)The Commission shall promptly forward any informal complaint meeting the  |$requirements of subsection 6.17 of this subpart to each manufacturer and provider named in or  |$<determined by the staff to be implicated by the complaint. Such manufacturer(s) or provider(s) shall be called on to satisfy or answer the complaint within the time specified by the Commission.  X74 v i(b)To ensure prompt and effective service of informal and formal complaints filed  |$under this subpart, every manufacturer and provider subject to the requirements of section 255  |$cof the Act and this subpart, shall designate an agent, and may designate additional agents if it so  |$chooses, upon whom service may be made of all notices, inquiries, orders, decisions, and other  |$pronouncements of the Commission in any matter before the Commission. Such designation shall  |$"include, for both the manufacturer or the provider, a name or department designation, business  |$paddress, telephone number, and, if available TTY number, facsimile number, and Internet email address.  Xh$4  6.19Answers to informal complaints.   Any manufacturer or provider to whom an informal complaint is directed by the":&_^+'',,B$"  |$}Commission under this subpart shall file an answer within the time specified by the Commission. The answer shall:   0(1) be prepared or formatted in the manner requested by the complainant pursuant to  |$ section 6.17 of this subpart, unless otherwise permitted by the Commission for good cause shown;   (2) describe any actions that the defendant has taken or proposes to take to satisfy the complaint;   (3) advise the complainant and the Commission of the nature of the defense(s) claimed by the defendant; (4) respond specifically to all material allegations of the complaint; and   (5) provide any other information or materials specified by the Commission as relevant to its consideration of the complaint.  X 4  6.20Review and disposition of informal complaints  X 4   (a) Where it appears from the defendant's answer, or from other communications with  |$"the parties, that an informal complaint has been satisfied, the Commission may, in its discretion,  |$pconsider the informal complaint closed, without response to the complainant or defendant. In all  |$Iother cases, the Commission shall inform the parties of its review and disposition of a complaint  |$<filed under this subpart. Where practicable, this information (the nature of which is specified in  |$Isubsections (b) (d) of this section, shall be transmitted to the complainant and defendant in the  |$manner requested by the complainant, (e.g., letter, facsimile transmission, telephone (voice/TRS/TTY), Internet email, ASCII text, audiocassette recording, or braille).   z(b) In the event the Commission determines, based on a review of the information  |$provided in the informal complaint and the defendant's answer thereto, that no further action is  |$required by the Commission with respect to the allegations contained in the informal complaint,  |$cthe informal complaint shall be closed and the complainant and defendant shall be duly informed  |$of the reasons therefor. A complainant unsatisfied with the defendant's response to the informal  |$"complaint and the staff decision to terminate action on the informal complaint may file a formal complaint with the Commission, as specified in section 6.22 of this subpart.   z(c) In the event the Commission determines, based on a review of the information  |$presented in the informal complaint and the defendant's answer thereto, that a material and  |$substantial question remains as to the defendant's compliance with the requirements of this  |$csubpart, the Commission may conduct such further investigation or such further proceedings as  |$may be necessary to determine the defendant's compliance with the requirements of this subpart and to determine what, if any, remedial actions and/or sanctions are warranted.   (d) In the event that the Commission determines, based on a review of the information  |$presented in the informal complaint and the defendant's answer thereto, that the defendant has  |$Ifailed to comply with or is presently not in compliance with the requirements of this subpart, the  |$Commission may order or prescribe such remedial actions and/or sanctions as are authorized":&`^+'',,O$"  |$under the Act and the Commission's rules and which are deemed by the Commission to be appropriate under the facts and circumstances of the case.  X4   X4 6.21 Formal Complaints, applicability of Sections 1.720 1.736 of the Rules  X4   0Formal complaints against a manufacturer or provider, as defined under this subpart,  |$may be filed in the form and in the manner prescribed under Sections 1.720 1.736 of the  |$ACommission's rules. Commission staff may grant waivers of, or exceptions to, particular  |$<requirements under Sections 1.720 1.736 for good cause shown; provided, however, that such  |$waiver authority may not be exercised in a manner that relieves, or has the effect of relieving,  |$a complainant of the obligation under sections 1.720 and 1.728 of the rules to allege facts which,  |$uif true, are sufficient to constitute a violation or violations of section 255 of the Act or this subpart.  X 4  6.22Formal complaints based on unsatisfied informal complaints    #A formal complaint filing based on an unsatisfied informal complaint filed pursuant to  |$subsection 4.16 of this subpart shall be deemed to relate back to the filing date of the informal  |$8complaint if it is: (1) filed within ninety days from the date that the Commission notifies the  |$complainant of its disposition of the informal complaint and (2) based on the same operative facts as those alleged in the informal complaint.  X4  6.23 Actions by the Commission on its on motion   The Commission may on its own motion conduct such inquiries and hold such  |$@proceedings as it may deem necessary to enforce the requirements of this subpart and Section 255  |$lof the Communications Act. The procedures to be followed by the Commission shall, unless  |$specifically prescribed in the Act and the Commission's rules, be such as in the opinion of the Commission will best serve the purposes of such inquiries and proceedings. Authority: 47 U.S.C. 154(i), 154(j) 208, 255" a^+'',,"  X' 47 C.F.R. Part 7 Subpart A Scope Who must comply with these rules?  X4  7.1 Who must comply with these rules?  Xv' Subpart B Definitions  X_4#Xj\  P6G;ynXP#  7.3 Definitions Subpart C Obligations What must covered entities do?  X 4  7.5 Manufacturers  7.7 Service Providers  7.9 Product Design , Development and Evaluation  7.11 Information Pass through  7.13 Information, Documentation and Training  X '  Subpart D Enforcement  Xy4  7.15Generally  Xb4 7.16Informal or formal complaints  XK4 7.17  Informal complaints; form and content  X44 7.18Procedure; designation of agents for service  X4 7.19Answers to informal complaints  X4  7.20Review and disposition of informal complaints  X4 7.21 Formal Complaints, applicability of Sections 1.720 1.736 of the rules  X4 7.22Formal complaints based on unsatisfied informal complaints  X4  7.23 Actions by the Commission on its on motion  Authority: 47 U.S.C. Section 1, 154(i), 154(j) 208, 255  XN' Subpart A Scope Who must comply with these rules?  X74  7.1 The rules in this part apply to:  X4(a)any provider of voicemail or interactive menu service;(#  X 4  =(b)any manufacturer of telecommunications equipment or customer premises equipment which performs a voicemail or interactive menu function.(#  Xh$4 Subpart B Definitions .  XQ%4  X:&4  7.3 Definitions ":&b^+'',,O$"Ԍ X4ԙ (a) The term accessible shall mean that: ((  )T"h(1) Input, control, and mechanical functions shall be locatable, identifiable, and operable in accordance with each of the following, assessed independently:(#   `(i) Operable without vision. Provide at least one mode that does not require user vision.(#   (ii) Operable with low vision and limited or no hearing. Provide at least one mode that   permits operation by users with visual acuity between 20/70 and 20/200, without relying on audio output.(#   (iii) Operable with little or no color perception. Provide at least one mode that does not require user color perception.(#   (iv) Operable without hearing. Provide at least one mode that does not require user auditory perception.(#   (v) Operable with limited manual dexterity. Provide at least one mode that does not require user fine motor control or simultaneous actions.(#  X4  (vi) Operable with limited reach and strength. Provide at least one mode that is operable with user limited reach and strength.(#   #hh(vii) Operable with a Prosthetic Device. Controls shall be operable without requiring body contact or close body proximity.(#   d(viii) Operable without time-dependent controls. Provide at least one mode that does   4not require a response time or allows a response to be by-passed or adjusted by the user over a wide range.(#   (ix) Operable without speech. Provide at least one mode that does not require user speech.(#   (x) Operable with limited cognitive skills. Provide at least one mode that minimizes the cognitive, memory, language, and learning skills required of the user.(#  X!4 )T"' (2) All information necessary to operate and use the product, including but not limited to,  |$text, static or dynamic images, icons, labels, sounds, or incidental operating cues, comply with each of the following, assessed independently:   (i) Availability of visual information. Provide visual information through at least one mode in auditory form.(#"<&c^+'',,B$"Ԍ  ԙ(ii) Availability of visual information for low vision users. Provide visual information   through at least one mode to users with visual acuity between 20/70 and 20/200 without relying on audio.(#   z(iii) Access to moving text. Provide moving text in at least one static presentation mode at the option of the user.(#   ~(iv) Availability of auditory information. Provide auditory information through at least one mode in visual form and, where appropriate, in tactile form.(#   (v) Availability of auditory information for people who are hard of hearing. Provide   audio or acoustic information, including any auditory feedback tones that are important   for the use of the product, through at least one mode in enhanced auditory fashion (i.e., increased amplification, increased signal-to-noise ratio, or combination).(#   (vi) Prevention of visually-induced seizures. Visual displays and indicators shall minimize visual flicker that might induce seizures in people with photosensitive epilepsy.(#   (vii) Availability of audio cutoff. Where a product delivers audio output through an   external speaker, provide an industry standard connector for headphones or personal   [listening devices (e.g., phone-like handset or earcup) which cuts off the speaker(s) when used.(#   m(viii) Non-interference with hearing technologies. Reduce interference to hearing   dtechnologies (including hearing aids, cochlear implants, and assistive listening devices) to the lowest possible level that allows a user to utilize the product.(#   (ix) Hearing aid coupling. Where a product delivers output by an audio transducer   which is normally held up to the ear, provide a means for effective wireless coupling to hearing aids.(#  X 4 |$(b) The term compatibility shall mean compatible with peripheral devices and specialized  |$customer premises equipment commonly used by individuals with disabilities to achieve  X4 |$}accessibility to voicemail and interactive menus, and in compliance with the following provisions, as applicable: " d^+'',,"Ԍ )T"_h(1) External electronic access to all information and control mechanisms. Information  )T"needed for the operation of products (including output, alerts, icons, on-line help, and  )T"Adocumentation) shall be available in a standard electronic text format on a cross-industry  )T"standard port and all input to and control of a product shall allow for real time operation by  )T"electronic text input into a cross-industry standard external port and in cross-industry  )T"0standard format. The cross-industry standard port shall not require manipulation of a connector by the user._(#  )T"4h(2) Connection point for external audio processing devices. Products providing auditory  )T"output shall provide the auditory signal at a standard signal level through an industry standard connector.(#  )T"h(3) TTY connectability. Products which provide a function allowing voice communication  )T"9and which do not themselves provide a TTY functionality shall provide a standard  )T"non-acoustic connection point for TTYs. It shall also be possible for the user to easily turn any microphone on and off to allow the user to intermix speech with TTY use.(#  )T"h(4) TTY signal compatibility. Products, including those providing voice communication  )T"Nfunctionality, shall support use of all cross-manufacturer non-proprietary standard signals used by TTYs.(#  X4 |$(c) The term customer premises equipment shall mean equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications.  X4 |$(d) The term disability shall mean a physical or mental impairment that substantially limits one  |$8or more of the major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment.  X4 |$(e) The term interactive menu shall mean a feature that allows a service provider or operator of  |$'CPE to transmit information to a caller in visual and/or audible format for the purpose of  |$management, control, or operations of a telecommunications system or service; and/or to request  |$information from the caller in visual and/or audible format for the purpose of management,  |$control, or operations of a telecommunications system or service; and/or to receive information  |$ufrom the caller in visual and/or audible format in response to a request, for the purpose of  |$management, control, or operations of a telecommunications system or service. This feature,  |$however, does not include the capability for generating, acquiring, storing, transforming,  |$processing, retrieving, utilizing, or making available information via telecommunications for any purpose other than management, control, or operations of a telecommunications system or service.  X#4(f) The term manufacturer shall mean an entity that makes or produces a product..  XY%4 |$(g) The term peripheral devices shall mean devices employed in connection with equipment  XD&4 |$covered by this part to translate, enhance, or otherwise transform telecommunications into a form"D&e^+'',,B$" accessible to individuals with disabilities.  X4 |$(h) The term phone to phone internet protocol telephony shall mean real time voice  |$telecommunications established between two units of customer premises equipment (CPE)  |$attached to the Public Switched Telephone Network (PSTN), in which only part of the connection  |$Vbetween the two units of CPE is routed through the PSTN, and part through a public or private internet protocol network carrying digitally encoded voice within internet protocol packets.  XJ4 |$(i) The term readily achievable#XP\  P6QynXP# shall mean, in general, easily accomplishable and able to be  |$carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include:  X 4hh(1)hthe nature and cost of the action needed;(#  X 4 v ,hh(2)hthe overall financial resources of the manufacturer or service provider involved in  v the action (the covered entity); the number of persons employed by such  v imanufacturer or service provider; the effect on expenses and resources, or the  v impact otherwise of such action upon the operations of the manufacturer or service provider;(#  X84 v hh(3)hIf applicable, the overall financial resources of the parent of the covered entity; the  v overall size of the business of the parent of the covered entity with respect to the number of its employees; the number, type, and location of its facilities; and(#  X4 v hh(4)hIf applicable, the type of operation or operations of the covered entity, including the  v composition, structure and functions of the workforce of such entity; and the  v geographic separateness, administrative or fiscal relationship of covered entity in question to the parent entity.(#   X;4 |$(j) The term specialized customer premises equipment shall mean customer premise equipment which is commonly used by individuals with disabilities to achieve access.  X4 |$(k) The term telecommunications equipment shall mean equipment, other than customer premises  |$equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades).  X"4 |$(l) The term telecommunications service shall mean the offering of telecommunications for a fee  |$+directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.  XD&4 |$(m) The term usable shall mean that individuals with disabilities have access to the full"D&f^+'',,B$"  |$functionality and documentation for the product, including instructions, product information  |$(including accessible feature information), documentation, bills and technical support which is provided to individuals without disabilities.  X4 |$(n) The term Voice mail shall mean the capability of answering calls and recording incoming  |$messages when a line is busy or does not answer within a prespecified amount of time or  |$_number of rings; receiving those messages at a later time; and may also include the ability to  |$<determine the sender and time of transmission without hearing the entire message; the ability to  |$ forward the message to another voice massaging customer, with and/or without an appended new  |$"message; the ability for the sender to confirm receipt of a message; the ability to send, receive, and/or store facsimile messages; and possibly other features.  X 4  X 4 Subpart C Obligations What must covered entities do?  X 4  7.5 General Obligations (a) Obligation of Manufacturers  )T"h(1) A manufacturer of telecommunications equipment or customer premises equipment  )T"covered by this part shall ensure that the equipment is designed, developed and fabricated  )T"so that the voicemail and interactive menu functions are accessible to and usable by individuals with disabilities, if readily achievable.(#  )T"h(2) Whenever the requirements of paragraph (1) are not readily achievable, the manufacturer  )T"8shall ensure that the equipment or software is compatible with existing peripheral devices or  )T"specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.(# (b) Obligation of Service Providers  )T"h(1) A provider of voicemail or interactive menu shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.(#  )T" h(2) Whenever the requirements of paragraph (1) are not readily achievable, the service  )T"Jprovider shall ensure that the service is compatible with existing peripheral devices or  )T"specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.(#  7.7 Product design, development, and evaluation.  )T"~(a) Manufacturers and service providers shall evaluate the accessibility, usability, and  X<&4 |$compatibility of equipment and services covered by this part and shall incorporate such evaluation"<&g^+'',,O$"  |$throughout product design, development, and fabrication, as early and consistently as possible.  |$Manufacturers and service providers shall identify barriers to accessibility and usability as part of such a product design and development process.  )T"h(b) In developing such a process, manufacturers and service providers shall consider the following factors, as the manufacturer deems appropriate:   (1) Where market research is undertaken, including individuals with disabilities in target populations of such research;   (2) Where product design, testing, pilot demonstrations, and product trials are conducted, including individuals with disabilities in such activities; (3) Working cooperatively with appropriate disability-related organizations; and   (4) Making reasonable efforts to validate any unproven access solutions through testing  |$with individuals with disabilities or with appropriate disability-related organizations that have established expertise with individuals with disabilities.  XK4 7.9 Information pass through.  X44  )T"#Telecommunications equipment and customer premises equipment shall pass through  |$cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or  |$yother information necessary to provide telecommunications in an accessible format, if readily  |$"achievable. In particular, signal compression technologies shall not remove information needed for access or shall restore it upon decompression.  7.11 Information, documentation, and training.  )T"(a) Manufacturers and service providers shall ensure access to information and documentation it provides to its customers, if readily achievable.  |$< Such information and documentation includes user guides, bills, installation guides for end-user  |$installable devices, and product support communications, regarding both the product in general  |$uand the accessibility features of the product. Manufacturers shall take such other readily achievable steps as necessary including:   (1) Providing a description of the accessibility and compatibility features of the product  |$upon request, including, as needed, in alternate formats or alternate modes at no additional charge;   (2) Providing end-user product documentation in alternate formats or alternate modes upon request at no additional charge; and ":&h^+'',,B$"Ԍ  z(3) Ensuring usable customer support and technical support in the call centers and service centers which support their products at no additional charge.  )T"A(b) Manufacturers and service providers shall include in general product information the contact method for obtaining the information required by paragraph (a) of this section.  )T"[H(c) In developing, or incorporating existing training programs, manufacturers and service providers shall consider the following topics: (1) Accessibility requirements of individuals with disabilities; (2) Means of communicating with individuals with disabilities; (3) Commonly used adaptive technology used with the manufacturer's products; (4) Designing for accessibility; and (5) Solutions for accessibility and compatibility.H  X' Subpart D Enforcement  Xb4 7.15 Generally  )T"(a) For purposes of sections 7.15 7.23 of this subpart, the term "manufacturers" shall  |$ldenote any manufacturer of telecommunications equipment or customer premises equipment which performs a voicemail or interactive menu function.   X4 )T"(b) All manufac#Xj\  P6G;ynXP#turers of telecommunications equipment or customer premise equipment  |$(CPE) and all providers of voicemail and interactive menu services, as defined under this subpart, are subject to the enforcement provisions specified in the Act and the Commission's rules.  X4 (c) The term "providers" shall denote any provider of voicemail or interactive menu service.  7.16 Informal or formal complaints  X74  X 4  u  Complaints against manufacturers or providers, as defined under this subpart, for alleged violations of this subpart may be either informal or formal.  X4 7.17  Informal complaints; form and content  X!4  (a)  An informal complaint alleging a violation of section 255 of the Act or this subpart  X"4 |$qmay be transmitted to the Commission by any reasonable means, e.g., letter, facsimile  |$transmission, telephone (voice/TRS/TTY), Internet email, ASCII text, Internet email, audio Xh$4cassette recording, and braille. (b) An informal complaint shall include:":&i^+'',,B$"Ԍ(1) The name and address of the complainant;   (2) The name and address of the manufacturer or provider against whom the complaint is made;   5(3) A full description of the telecommunications equipment or CPE and/or the telecommunications service about which the complaint is made;   (4) The date or dates on which the complainant either purchased, acquired or used, or  |$,attempted to purchase, acquire or use the telecommunications equipment, CPE or telecommunications service about which the complaint is being made;   (5) A complete statement of the facts, including documentation where available,  |$supporting the complainant's allegation that: such telecommunications service, or such  |$[telecommunications equipment or CPE, is not accessible to, or usable by, a person with a  |$particular disability or persons with disabilities within the meaning of this subpart and section 255  |$of the Act; or that the defendant has otherwise failed to comply with the requirements of this subpart. h(6) The specific relief or satisfaction sought by the complainant, and(#   (7) The complainant's preferred format or method of response to the complaint by the  |$8Commission and defendant (e.g., letter, facsimile transmission, telephone (voice/TRS/TTY),  |$Internet email, ASCII text, audiocassette recording, braille; or some other method that will best accommodate the complainant's disability)     X44  7.18Procedure; designation of agents for service   (a) The Commission shall promptly forward any informal complaint meeting the  |$requirements of subsection 4.17 of this subpart to each manufacturer and provider named in or  |$<determined by the staff to be implicated by the complaint. Such manufacturer(s) or provider(s) shall be called on to satisfy or answer the complaint within the time specified by the Commission.   [(b) To ensure prompt and effective service of informal and formal complaints filed under  |$this subpart, every manufacturer and provider subject to the requirements of section 255 of the  |$uAct and this subpart, shall designate an agent, and may designate additional agents if it so  |$chooses, upon whom service may be made of all notices, inquiries, orders, decisions, and other  |$pronouncements of the Commission in any matter before the Commission. Such designation shall  |$"include, for both the manufacturer or the provider, a name or department designation, business  |$paddress, telephone number, and, if available TTY number, facsimile number, and Internet email address.  X 4  7.19Answers to informal complaints.   Any manufacturer or provider to whom an informal complaint is directed by the  |$}Commission under this subpart shall file an answer within the time specified by the Commission. The answer shall:   0(1) be prepared or formatted in the manner requested by the complainant pursuant to  |$ section 7.17 of this subpart, unless otherwise permitted by the Commission for good cause shown; ":&j^+'',,B$"   (2) describe any actions that the defendant has taken or proposes to take to satisfy the complaint;   (3) advise the complainant and the Commission of the nature of the defense(s) claimed by the defendant; (4) respond specifically to all material allegations of the complaint; and   (5) provide any other information or materials specified by the Commission as relevant to its consideration of the complaint.  X14  7.20Review and disposition of informal complaints  X 4   (a) Where it appears from the defendant's answer, or from other communications with  |$"the parties, that an informal complaint has been satisfied, the Commission may, in its discretion,  |$pconsider the informal complaint closed, without response to the complainant or defendant. In all  |$Iother cases, the Commission shall inform the parties of its review and disposition of a complaint  |$<filed under this subpart. Where practicable, this information (the nature of which is specified in  |$Isubsections (b) (d) of this section, shall be transmitted to the complainant and defendant in the  |$manner requested by the complainant, (e.g., letter, facsimile transmission, telephone (voice/TRS/TTY), Internet email, ASCII text, audiocassette recording, or braille).   z(b) In the event the Commission determines, based on a review of the information  |$provided in the informal complaint and the defendant's answer thereto, that no further action is  |$required by the Commission with respect to the allegations contained in the informal complaint,  |$cthe informal complaint shall be closed and the complainant and defendant shall be duly informed  |$of the reasons therefor. A complainant unsatisfied with the defendant's response to the informal  |$"complaint and the staff decision to terminate action on the informal complaint may file a formal complaint with the Commission, as specified in section 7.22 of this subpart.   z(c) In the event the Commission determines, based on a review of the information  |$presented in the informal complaint and the defendant's answer thereto, that a material and  |$substantial question remains as to the defendant's compliance with the requirements of this  |$csubpart, the Commission may conduct such further investigation or such further proceedings as  |$may be necessary to determine the defendant's compliance with the requirements of this subpart and to determine what, if any, remedial actions and/or sanctions are warranted.   (d) In the event that the Commission determines, based on a review of the information  |$presented in the informal complaint and the defendant's answer thereto, that the defendant has  |$Ifailed to comply with or is presently not in compliance with the requirements of this subpart, the  |$Commission may order or prescribe such remedial actions and/or sanctions as are authorized  |$under the Act and the Commission's rules and which are deemed by the Commission to be appropriate under the facts and circumstances of the case.  XQ%4  ":&k^+'',,O$"Ԍ X4 7.21 Formal Complaints, applicability of Sections 1.720 1.736 of the Rules  X4   0Formal complaints against a manufacturer or provider, as defined under this subpart,  |$may be filed in the form and in the manner prescribed under Sections 1.720 1.736 of the  |$ACommission's rules. Commission staff may grant waivers of, or exceptions to, particular  |$<requirements under Sections 1.720 1.736 for good cause shown; provided, however, that such  |$waiver authority may not be exercised in a manner that relieves, or has the effect of relieving,  |$a complainant of the obligation under sections 1.720 and 1.728 of the rules to allege facts which,  |$uif true, are sufficient to constitute a violation or violations of section 255 of the Act or this subpart.  X 4  7.22Formal complaints based on unsatisfied informal complaints    #A formal complaint filing based on an unsatisfied informal complaint filed pursuant to  |$subsection 4.16 of this subpart shall be deemed to relate back to the filing date of the informal  |$8complaint if it is: (1) filed within ninety days from the date that the Commission notifies the  |$complainant of its disposition of the informal complaint and (2) based on the same operative facts as those alleged in the informal complaint.  XK4  7.23 Actions by the Commission on its on motion   The Commission may on its own motion conduct such inquiries and hold such  |$@proceedings as it may deem necessary to enforce the requirements of this subpart and Section 255  |$lof the Communications Act. The procedures to be followed by the Commission shall, unless  |$specifically prescribed in the Act and the Commission's rules, be such as in the opinion of the Commission will best serve the purposes of such inquiries and proceedings.  X|' |$K# (2) 1.1202(d)(2) of Title 47 of the Code of Federal Regulations (C.F.R.) is amended to read  Xe'as follows:  )T"y(2) Any person who files a complaint which shows that the complainant has served it on the  |$<subject of the complaint or which is a formal complaint under 47 U.S.C. 208 and 1.721 or 47  |$ U.S.C. 255 and either 6.17 or 7.17, and the person who is the subject of such a complaint that  |$shows service or is a formal complaint under 47 U.S.C. 208 and 1.721 or 47 U.S.C. 255 and either 6.17 and 7.17.  X!' |$?  (3) 1.1204(b)(5) of Part 1 of Title 47 of the Code of Federal Regulations (C.F.R.) is amended to read as follows:  X#4   d(5) An informal complaint proceeding under 47 U.S.C. 208 and 1.717 or 47 U.S.C. 255 and either 6.17 or 7.17; and Authority: 47 U.S.C. Section 1, 154(i), 154(j) 208, 255  X:&4 ":&l^+'',,B$"  X'  @Page BPage C@  APPENDIX C Đl  X' [nLIST OF COMMENTERS ă  X'  X'  Comments Abols, Bonnie (Warwick RI) (Ocean State Center for Independent Living) Access Living of Metropolitan Chicago Access to Independence and Mobility [AIM] AirTouch Communications, Inc. [AirTouch] American Council of the Blind [ACB] American Public Communications Council [APCC] Ameritech Andrews, Joan (Punta Gorda FL) Architectural and Transportation Barriers Compliance Board [Access Board] Association of Access Engineering Specialists [AAES] AT&T Corp. [AT&T] Bechtel, Gene A. (Washington DC) Bell Atlantic BellSouth Corporation [BellSouth] Blackseth, Kim Born, Deanne (Farmington CT) Brightpoint, Inc. [Brightpoint] Business Software Alliance [BSA] Butler, Mary M. (Lorain OH) (Center for Independent Living) California Foundation for Independent Living Centers [CFILC] Carpenter, Patricia Cellular Phone Taskforce [Taskforce] Cellular Telecommunications Industry Association [CTIA] Center for Disability Rights [CDC] Coalition of Citizens with Disabilities in Illinois [CCDI]  X74Computer and Communications Industry Association [CCIA] Consumer Electronics Manufacturers Association [CEMA] CONXUS Communications, Inc. [CONXUS] Coombs, Elizabeth J. (Banning CA) CPB/WGBH National Center for Accessible Media DCSHHH Group DeVilbiss, George (Falls Church VA) Dietrich, Nancy A. (Columbia IL) Eleoff, Susan (Ocean State Center for Independent Living, Warwick RI) Ericsson Inc. [Ericsson] Figler, Kevin Garretson, Mervin D. (Bethany Beach DE) (Delaware Association of the Deaf) Geeslin, David Governor's Council on Disability, Missouri Dept of Labor and Ind Rel [MoGCD]" (m^+D)D),,%"ԌGriffith, Robert E. (Springfield IL) (SHHH, Central Illinois Chapter) GTE   @Page CPage C@Hernandez, Carmen Hoffman, Lisa Hoshauer, Lillian (DeafHearing Communication Centre, Inc., Holmes PA) Huber, Theodore G. (South Jacksonville IL) Illinois Deaf and Hard of Hearing Commission Illinois Department of Human Services [IDHS] Information Technology Industry Council [ITI] Ireland, Joan P. (San Diego CA) Ismail, Massa Jr. Janes, Malisa W. (Houston TX) Justice for All Kailes, June Isaacson (Los Angeles CA) Kear, Gail B. (Bloomington IL) (Living Independence for Everyone) LaPointe, Leo A. (Worthington OH) Learning Disabilities Association of America [LDA] Lucent Technologies [Lucent] Maroney, Donald E. (Loveland CO) Mechem, Kirke (San Francisco CA) Missouri Assistive Technology Council and Project Mitchell, Laura Remson (CA) Motorola, Inc. [Motorola] Multimedia Telecommunications Association [MMTA] Mulvany, Dana (Campbell CA) National Association of the Deaf [NAD] National Council on Disability [NCD] NC Assistive Technology Project Nelson, David J. (Washington DC) Nextel Communications, Inc. [Nextel] Northern Telecom Inc. [Nortel] Oklahoma Department of Rehabilitation Services [OKDRS] Perrin, Shelly Personal Communications Industry Association [PCIA] Philips Consumer Communications LP [Philips] Polotto, John Powell, Michael President's Committee on Employment of People with Disabilities [PCEPD] Radtke, Richard Rank, Arvilla (Landover Hills MD) (National Catholic Office for the Deaf) Rochester Institute of Technology; National Technical Institute for the Deaf [RIT] SBC Communications Inc. [SBC] Self Help for Hard of Hearing People, Inc. [SHHH]":&n^+'',,B$"ԌSergeant, Randy (Scottsdale AZ) Shell, Reginald D. (Brooklyn NY) (Community Options, Inc.) Siemens Business Communication Systems, Inc. Sosenka, Lana (Austin TX) (Texas State Independent Living Council) Storm, Maia Justine (Lansing MI) (Michigan Protection and Advocacy Service) Telecommunications for the Deaf, Inc. [TDI] Telecommunications Industry Association [TIA] The Advocacy Center (New Orleans LA) The Lighthouse Inc. (New York NY) [Lighthouse] The Long Island Center for Independent Living, Inc. (Lavation NY) [LICIL] Uniden America Corporation [Uniden] United Cerebral Palsy Associations [UCPA] United States Telephone Association [USTA] Universal Service Alliance [USA] Valentine, Patrick Vickery, Ronald H. (Rome GA) Vickery, Ronald H. (erratum) Wilson, Sara Blair (Pearl River NY) Wisconsin Ass'n of the Deaf Telecommunications Advocacy Network [WITAN] World Institute on Disability (Oakland CA) [WID] **NOTE: Center for Disability Rights comments contain separate comments of Patricia Carpenter, Kevin Figler, Carmen Hernandez, Lisa Hoffman, Ismael Massa Jr. & Shelly Perrin.  X' LateFiled Comments: American Foundation for the Blind [AFB] California Public Utilities Commission Campaign for Telecommunications Access Center for Independent Living of Northeastern Minnesota [CILNM] Commonwealth of the Northern Mariana Islands [CNMI] Lake County Center for Independent Living (Mundelein IL) LaPointe, Leo A. (Worthington OH) Office of Management and Budget [OMB] Oklahoma Assistive Technology Project [OkATP] Schmittroth, Nicholas R. III Services for Independent Living (Columbia MO) [SIL] Trace Research & Development Center, University of WisconsinMadison [Trace] Tucker, Barbara J. (Banning CA) Welter, Carrie (Augusta GA) Witkin, Martin J. (Evanston IL) sushom@toad.net"Q%o^+'',,e#"  X' Replies Alliance for Public Technology [APT] American Foundation for the Blind [AFB] Ameritech Arch Communications Group, Inc. [Arch] AT&T Blackburn, Kathy Business Software Alliance [BSA] Cellular Telecommunications Industry Association [CTIA] Consumer Electronics Manufacturers Association [CEMA] Council of Organizational Representatives ... Deaf [COR] GTE Information Technology Industry Council [ITI] Institute on Disabilities League for the Hard of Hearing Lucent Technologies Inc. [Lucent] Microsoft Corporation [Microsoft] Motorola, Inc. [Motorola] Multimedia Telecommunications Association [MTA] National Association of the Deaf / Consumer Action Network [NAD/CAN] National Council of State Agencies for the Blind... [NCSAB] National Council on Disability [NCD] Nextel Communications, Inc. [Nextel] Nokia Inc. [Nokia] Personal Communications Industry Association [PCIA] Redcom Laboratories Incorporated [Redcom] SBC Communications Inc. [SBC] Self Help for Hard of Hearing People, Inc. + Bechtel [SHHH/Bechtel] Sprint Corporation [Sprint] Tandy Corporation [Tandy] Telecommunications for the Deaf, Inc. [TDI] Telecommunications Industry Association [TIA] Uniden America Corporation [Uniden] United States Telephone Association [USTA] World Institute on Disability [WID]  X!' LateFiled Replies: LaPointe, Leo A. Campaign for Telecommunications Access Trace R&D Center [Trace]"Q%p^+'',,e#"  X'   )G8footnote reference)#footnote reference#  @Page CD-@ APPENDIX D Đl  X'  X' FFinal Regulatory Flexibility Analysis ă  X4As required by the Regulatory Flexibility Act (RFA)^,y7 X4 |$Z ԍ#C\  P6QɒP# See 5 U.S.C.  603. The RFA, see 5 U.S.C.  601 et seq., has been amended by the Contract with America  |$M Advancement Act of 1996, Pub. L. No. 104121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). an Initial Regulatory Flexibility  Xv4Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (Notice) issued in  Xa4this proceeding.^a 7 {O ' |$o #X\  P6G;ɒP#э Implementation of Section 255 of the Telecommunications Act of 1996; Access to Telecommunications Service,  {O ' |$% Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Notice of Proposed  {O 'Rulemaking, 13 FCC Rcd 20391 (1998) (NPRM), Appendix E (IRFA). The Commission sought written public comments on the proposals included  XJ4in the Notice, including comment on the IRFA, which set forth the possible significant  X54economic impact on small entities of the policies and rules proposed in the Notice. This Final  X 4Regulatory Flexibility Analysis (FRFA) accompanies the present Report and Order and  X 4conforms to the RFA.l /7 {O'#X\  P6G;ɒP#э See 5 U.S.C.  604.l  X 4P X(`0h 8"#%p&p` P @ 0 p`P@0  !"#$%p&`' A.Need for, and Objectives of, the Report and Order and Rules Adopted Therein H! This rulemaking proceeding was initiated to propose means of implementing and enforcing  X4section 255 of the Communications Act, as added by the Telecommunications Act of 1996.)' yO '#X\  P6G;ɒP#э Pub. L. 104104, 110 Stat. 56 (1996) (1996 Act). section 255 is intended to ensure that telecommunications equipment and services will be accessible to persons with disabilities, if such accessibility is readily achievable. If accessibility is not readily achievable, then the telecommunications equipment and services are to be made compatible with specialized customer premises equipment (CPE) or peripheral devices to the extent that so doing is readily achievable. Given the fundamental role that telecommunications has come to play in today's world, we believe that the provisions of section 255 represent the most significant governmental action for people with disabilities since the passage of the Americans with Disabilities Act of 1990  X4(ADA).Q )' yO#'#X\  P6G;ɒP#э Pub. L. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C.  12102(2)(A), 12181(9)). Inability to use telecommunications equipment and services can be life-threatening in emergency situations, can severely limit educational and employment opportunities, and can otherwise interfere with full participation in business, family, social, and other activities. We must do all we can to ensure that people with disabilities are not left behind in the telecommunications revolution and consequently isolated from contemporary life. "@q +D)D),,"Ԍ X4  @D-D@ In the Notice, we set forth proposals to implement and enforce the requirement in section 255 that telecommunications offerings be accessible to the extent readily achievable. We proposed a ``fasttrack'' process for resolving accessibility complaints informally and quickly and more conventional remedial processes for cases where fasttrack solutions are not possible, or where there appears to be an underlying noncompliance with section 255. We noted that, in either case, we would look favorably upon demonstrations by companies that they had considered accessibility throughout the development of telecommunications products when assessing whether service providers and equipment manufacturers have met their  XJ4accessibility obligations under section 255. In the accompanying Report and Order we have made the following decisions. l(1) We have incorporated most of the Access Board guidelines into our rules with two minor exceptions and have applied them to the services covered;(# l(2) We have asserted our ancillary jurisdiction to extend Section 255's coverage to voicemail and interactive menu services and service providers and equipment used to provide these services. (# l(3) We have clarified that Section 255 applies to each piece of equipment and all service offerings, but have noted that the industry has the discretion to determine which accessibility features should be incorporated in all products and which ones can be less than universally deployed, so long as all that is readily achievable is done; and (# l(4) We have adopted enforcement rules patterned after our longstanding rules governing complaints filed against common carriers under Section 208 of the Act, with certain modifications we have concluded are necessary to fulfill the goals of Section 255.(#  X' p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'B.Summary of Significant Issues Raised by Public Comments in Response to  X'the IRFA H! We noted in the IRFA that the resources of the regulated entity are taken into account in the determination of whether accessibility of a given product or service is readily achievable and that there is thus an inherent consideration of the financial burden on the entity in its  X 4obligation to provide accessibility: if not readily achievable, the obligation is removed.e 3 {O '#X\  P6G;ɒP#э IRFA at E2,3.e Nevertheless, we acknowledged that all regulated entities would be required to assess whether providing accessibility is readily achievable and that an important issue for RFA purposes is thus not the absolute cost of providing accessibility, but, rather, the extent to which the cost of performing an assessment as to whether an accessibility feature is readily achievable is unduly burdensome on small entities. "#rZ+'',,!"ԌWe received four comments specifically captioned as being in response to the IRFA. In its comments to the IRFA, CEMA states that "the Commission must take all steps necessary to ensure that any Section 255 implementation rules are not unduly burdensome to small manufacturers; it should also adopt those rules that serve to minimize the economic impact of  X4this rulemaking on small entities.")2footnote reference)#footnote reference#c yO'#X\  P6G;ɒP#э CEMA Comments at 3.c These steps are detailed in Section E of this IRFA, infra. Lucent's comments question the apparent conflict between Section 1193.43 of the Access  Xx4Board'#XP\  P6QynXP#s Guidelines and Section 68.317 of the Commission'#XP\  P6QynXP#s rules dealing with telephone  Xa4volume control standards, especially in view of the Commission'#XP\  P6QynXP#s tentative conclusion in the  XJ4Notice that the Access Board'#Xj\  P6G;ynXP#s Guidelines do not overlap, duplicate or conflict with existing  X54Commission Rules.)Qfootnote reference)#footnote reference#5X {O '#X\  P6G;ɒP#э Lucent Comments at 13. This apparent discrepancy is resolved in note 47 of the Report and Order. Motorola comments that the Fast Track#XP\  P6QynXP# process imposes a substantial information collection requirement on manufacturers at each decisional point in the product  X 4design, development and fabrication process.)xUfootnote reference)o  3 yO'#X\  P6G;ɒP#э Motorola Comments at 20, n. 22.o Both MotorolaY  z3 {O2'#X\  P6G;ɒP#э Id.Y and TIAj  3 yO'#X\  P6G;ɒP#э TIA Comments at 16, n. 17.jcontend that the cost of this information collection requirement should be considered as part of the readily  X 4achievable analysis. As discussed, infra, we believe that the information collection requirement on manufacturers has been minimized by the implementation of informal  X 4complaint procedures. 3 {O'#X\  P6G;ɒP#э IRFA at 2526. see also pp. D2527, infra.  X' p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'C.Description and Estimate of the Number of Small Entities to Which the Rules  Xh4Adopted in the Report and Order Will Apply H! The RFA directs agencies to provide a description and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted in the accompanying  X 4Report and Order. The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental  X4jurisdiction.''e . 3 yO!'#X\  P6G;ɒP#э CWAAA.,  601(6). e In addition, the term ``small business'' has the same meaning as the term  X4``small business concern'' under the Small Business Act.  3 yO9$' |$ #X\  P6G;ɒP#э 5 U.S.C.  601(3) (incorporating by reference the definition of ``small business concern'' in 15 U.S.C.  632).  |$. Pursuant to the RFA, the statutory definition of a small business applies ``unless an agency, after consultation with  |$! the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes  |$Z one or more definitions of such term which are appropriate to the activities of the agency and publishes such"& +''&" definition(s) in the Federal Register.'' 5 U.S.C.  601(3).  A small business concern is one"sX+'',,e" that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration  X4(SBA).X3 yO'#X\  P6G;ɒP#э Small Business Act, 15 U.S.C.  632 (1996).  A small organization is generally ``any not-for-profit enterprise which is  X4independently owned and operated and is not dominant in its field.''f3 yOT'#X\  P6G;ɒP#э 5 U.S.C.  601(4). f Nationwide, as of 1992,  X4there were approximately 275,801 small organizations.x3 yO ' |$ #X\  P6G;ɒP#э Department of Commerce,U.S. Bureau of the Census, 1992 Economic Census, Table 6 (special tabulation of data under contract to Office of Advocacy of the U.S. Small Business Administration).   Xv4The rules adopted in the Report and Order will apply to manufacturers of telecommunications equipment and CPE to the extent it provides telecommunications, voicemail and interactive menu functions. In addition, telecommunications service providers of many types will be affected, including wireline common carriers and commercial mobile  X 4radio service (CMRS) providers. 3 {O'#X\  P6G;ɒP#э See Report and Order at para. 80.ă To the extent that software performs a telecommunication  X 4function, software developers or manufacturers may also be affected.t b 3 {O'#X\  P6G;ɒP#э See id. at paras. 8088.t Below, we describe and estimate the number of small entity licensees and other covered entities that may be  X 4affected by the rules adopted in the Report and Order. 3 yO|' |$x #G\  P6G; مP## X\  P6G;ɒP#э #X\  P6G;ɒP#We received no response to our request in the IRFA that commenters provide us with information regarding  {OD'how many entities overall, and how many small entities, might be affected by the rules proposed in the Notice. " tN +'',, "  X'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`' 1.Equipment Manufacturers (# p` P @ 0 p`P@0  !"#$%p&`'X` hp x (#%'0*,.8135@8: ESTIMATED  pG <FIRM COUNT ăWd H    pG' X  G3571' "P yO'#X\  P6G;ɒP#э SBA size standard for this classification is 1,000 employees or less.Ɣ   Personal computer, terminals and workstations  XV546d    V   pG X  G3661 O yO'#X\  P6G;ɒP#э SBA size standard for the 3661 classification is 1,000 employees or less.Ɣ B Telephone and telegraph equipmentV XV540    VV   pG8 X  G36638BO yO'#X\  P6G;ɒP#э The SBA size standard for the 3663 category is 750 employees or less.Ɣ  Communications systems and equipment]V XV938   V   pG X  G3577oO yO6'#X\  P6G;ɒP#э The SBA size standard for the 3577 code is 1,000 employees or less.Ɣ  Computer peripheral equipment, not elsewhere classifiedx XV259   ] 7   pG X  G3577Yb N bE!#G\  P6G; مP#э Id.YƔ + Parts and subassemblies for computer peripherals and input/output equipmentZ7 XV72  xW7"Zu +'',,P"Ԍ X'X` hp x (#%'0*,.8135@8:i S3 {O &'#X\  P6G;ɒP#э Trends in Telephone Service, Table 19.3 (February 19, 1999). We do not"i~ >+'',,P" have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of cellular service carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 732 or fewer small cellular service carriers that may be affected by the rules, herein adopted.  Xv'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`' (2)` ` Broadband Personal Communications Service The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined "small entity'' for Blocks C and F as an entity that has average gross revenues of less than $40  X 4million in the three previous calendar years.?^ S3 {O| ' |$x #X\  P6G;ɒP#э See Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding and  {OF ' |$. the Commercial Mobile Radio Service Spectrum Cap, Report and Order, FCC 96278, WT Docket No. 9659, paras.  {O'57 60 (released Jun. 24, 1996), 61 FR 33859 (Jul. 1, 1996); see also 47 CFR 24.720(b). For Block F, an additional classification for "very small business" was added and is defined as an entity that, together with their affiliates, has average gross revenues of not more than $15 million for the preceding three calendar  X 4years.@\ S3 {O]' |$x #X\  P6G;ɒP#э See Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding and  {O'' |$ the Commercial Mobile Radio Service Spectrum Cap, Report and Order, FCC 96278, WT Docket No. 9659, para.  yO'60 (1996), 61 FR 33859 (Jul. 1, 1996). These regulations defining "small entity'' in the context of broadband PCS auctions  X 4have been approved by the SBA.'A S3 {Oj' |$ #X\  P6G;ɒP#э See, e.g., Implementation of Section 309(j) of the Communications Act Competitive Bidding, PPDocket  {O4'No.93253, Fifth Report and Order, 9 FCC Rcd 5532, 558184 (1994).' No small businesses within the SBAapproved definition bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders  Xb4won approximately 40% of the 1,479 licenses for Blocks D, E, and F.Bbn S3 {O'#X\  P6G;ɒP#э FCC News, Broadband PCS, D, E and F Block Auction Closes, No. 71744 (released Jan. 14, 1997). Based on this information, we conclude that the number of small broadband PCS licensees will include the 90 winning C Block bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small entity PCS providers as defined by the SBA and the Commission's auction rules.  X4 (3)` ` Narrowband PCS.  X4 The Commission has auctioned nationwide and regional licenses for narrowband PCS. There are 11 nationwide and 30 regional licensees for narrowband PCS. The Commission does not have sufficient information to determine whether any of these licensees are small businesses within the SBAapproved definition for radiotelephone companies. At present, there have been no auctions held for the major trading area (MTA) and basic trading area"N B+'',,P" (BTA) narrowband PCS licenses. The Commission anticipates a total of 561 MTA licenses and 2,958 BTA licenses will be awarded by auction. Such auctions have not yet been scheduled, however. Given that nearly all radiotelephone companies have no more than 1,500 employees and that no reliable estimate of the number of prospective MTA and BTA narrowband licensees can be made, we assume, for purposes of this IRFA, that all of the  X4licenses will be awarded to small entities, as that term is defined by the SBA.oCS3 yO'#X\  P6G;ɒP#э 13 C.F.R. s 121.201 (SIC 4812).o  X_'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`' (4)` ` Specialized Mobile Radio  X14 Pursuant to Section 90.814(b)(1) of the Commission's Rules,lD1XS3 yO: '#X\  P6G;ɒP#э 47 C.F.R.  90.814(b)(1).l the Commission has defined small entity for geographic area 800 MHz and 900 MHz SMR licenses as a firm that had average gross revenues of less than $15 million in the three previous calendar years. This regulation defining small entity in the context of 800 MHz and 900 MHz SMR has  X 4been approved by SBA.EN S3 {On' |$ #X\  P6G;ɒP#эSee Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels Outside  |$ the Designated Filing Areas in the 896901 MHz and the 935940 MHz Bands Allotted to the Specialized Mobile  {O' |$ Radio Pool, PR Docket No. 89553, Second Order on Reconsideration and Seventh Report and Order, 11 FCC Rcd  {O' |$. 2639, 26932702 (1995); Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR  {O' |$ Systems in the 800 MHz Frequency Band, PR Docket No. 93144, Implementation of Sections 3(n) and 322 of the  {O^' |$ Communications Act " Regulatory Treatment of Mobile Services, GN Docket No. 93252, Implementation of Section  {O(' |$ 309(j) of the Communications Act " Competitive Bidding, PP Docket No. 93253, First Report and Order, Eighth  {O'Report and Order, and Second Further Notice of Proposed Rulemaking, 11 FCC Rcd 1463 (1995).  X 4The rules promulgated in the Report and Order may apply to SMR providers in the 800 MHz and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service, or how many of these providers have average annual gross revenues of less than $15 million. The Commission recently held auctions for geographic area licenses in the 900 MHz SMR band. There were 60 winning bidders who qualified as small entities under the Commission's definition in the 900 MHz auction. Based on this information, we conclude that the number of  X4geographic area SMR licensees affected by the rules promulgated in the Report and Order includes these 60 small entities.  Based on the auctions held for 800 MHz geographic area SMR licenses, there are 10 small entities currently holding 38 of the 524 licenses for the upper 200 channels of this service. However, the Commission has not yet determined how many licenses will be awarded for the lower 230 channels in the 800 MHz geographic area SMR auction. There is no basis to estimate, moreover, how many small entities within the SBA definition will win these"R E+'',,[P" licenses. Given the facts that nearly all radiotelephone companies have fewer than 1,000 employees and that no reliable estimate of the number of prospective 800 MHz SMR licensees can be made, we assume, for purposes of our evaluations and conclusions in this FRFA, that all of the licenses will be awarded to small entities, as that term is defined by SBA. p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'  X' (5)` ` 220 MHz Radio Service Phase I Licensees. The 220 MHz service has both PhaseI and PhaseII licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a definition of small entities specifically applicable to such incumbent 220 MHZ Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the definition under the SBA rules applicable to Radiotelephone Communications companies. This definition provides that a small entity is a  X 4radiotelephone company employing no more than 1,500 persons.F S3 yO7'#X\  P6G;ɒP#э 13 C.F.R.  121.201, Standard Industrial Classification (SIC) code 4812. According to the Bureau of the Census, only 12 radiotelephone firms out of a total of 1,178 such firms which operated  X4during 1992 had 1,000 or more employees.gGXXS3 yO' |$ #X\  P6G;ɒP#э U.S. Bureau of the Census, U.S. Department of Commerce, 1992 Census of Transportation, Communications,  |$@ and Utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table 5, Employment Size of Firms; 1992, SIC code 4812 (issued May 1995).g Therefore, if this general ratio continues in 1999 in the context of PhaseI 220 MHz licensees, we estimate that nearly all such licensees are small businesses under the SBA's definition.  X4' (6)` ` 220 MHz Radio Service PhaseII Licensees. The PhaseII 220 MHz service is a new service, and is subject to spectrum auctions. In the  X4220 MHz Third Report and Order, we adopted criteria for defining small businesses and very small businesses for purposes of determining their eligibility for special provisions such as  X4bidding credits and installment payments.HxS3 {O'#X\  P6G;ɒP#э 220 MHz Third Report and Order, 12 FCC Rcd 10943, 11068-70, at paras. 291- 295 (1997). We have defined a small business as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a very small business is defined as an entity that, together with its affiliates and controlling principals, has average  Xg4gross revenues that are not more than $3 million for the preceding three years.Ig S3 {O"#'#X\  P6G;ɒP#э 220 MHz Third Report and Order, 12 FCC Rcd at 11068-69, para. 291. The SBA  XP4has approved these definitions.JPS3 {O%' |$ #X\  P6G;ɒP#э See Letter from A. Alvarez, Administrator, SBA, to D. Phythyon, Chief, Wireless Telecommunications Bureau, FCC (Jan. 6, 1998). An auction of Phase II licenses commenced on September"P J+'',,P"  X415, 1998, and closed on October 22, 1998.KS3 {Oy' |$ #X\  P6G;ɒP#э See generally Public Notice, "220 MHz Service Auction Closes," Report No. WT 98-36 (Wireless Telecom. Bur. Oct. 23, 1998). Nine hundred and eight (908) licenses were auctioned in 3    different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. Companies claiming small business status won: one of the Nationwide licenses, 67% of the Regional licenses, and 54% of the EA licenses. As of January 22, 1999, the Commission announced that it was prepared to grant 654 of the Phase  Xv4II licenses won at auction.Lv"S3 yOI ' |$ #X\  P6G;ɒP#э Public Notice, "FCC Announces It is Prepared to Grant 654 Phase II 220 MHz Licenses After Final Payment is Made," Report No. AUC18H, DA No. 99229 (Wireless Telecom. Bur. Jan. 22, 1999). A reauction of the remaining, unsold licenses was completed on  X_4June 30, 1999, wherein 222 of the remaining licenses were sold,sM_zS3 yO '#X\  P6G;ɒP#э WT Report No. 9919, June 30, 1999.s but have yet to be licensed.  X1'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'  (7)` ` Paging To ensure the more meaningful participation of small business entities in the auctions, the  X 4Commission adopted a two-tiered definition of small businesses in the Paging Second Report  X 4and Order, stating that: (1) an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $3 million; or (2) an entity that, together with affiliates and controlling interests, has average gross revenues for the  X4three preceding years of not more than $15 million.9N S3 {OO' |$ #X\  P6G;ɒP#э Future Development of Paging Systems, Second Report and Order and Further Notice of Proposed Rulemaking,  {O'12 FCC Rcd 2732,2811, para. 179 (1997)(Second Report and Order and Further Notice). 9 In December 1998, the Small Business Association approved the two-tiered size standards for paging services set forth in the Second  Xf4Report and Order. Off S3 yO}' |$* #X\  P6G;ɒP#э Letter from Aida Alvarez, Administrator, Small Business Administration, to Amy J. Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau of 12/2/98.   X84 MEA and EA Licenses In the Final Regulatory Flexibility Analysis incorporated in Appendix C of the Second Report and Order, the Commission anticipated that approximately 16,630 non-nationwide geographic area licenses will be auctioned. While we are unable to predict accurately how many paging licensees meeting one of the above definitions will participate in or be successful at auction, our Third CMRS Competition Report estimated that, as of January" O+'',,5P"  X41998, there were more than 600 paging companies in the United States.P^ {Oy' |$ #X\  P6G;ɒP#э Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and  {OC' |$. Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, Third Report, FCC 98-9,  {O 'at 40 (June 11, 1998) (Third CMRS Competition Report). The Third CMRS Competition Report also indicates that at least ten of the top twelve publicly held paging companies had average gross revenues in excess of $15 million for the three years preceding  X41998.Q {OZ'#X\  P6G;ɒP#э See Third CMRS Competition Report, App. C at 5. The Commission expects that these ten companies will participate in the paging auction and may employ the partitioning or disaggregation rules. The Commission also expects, for purposes of the evaluations and conclusions in this Final Regulatory Flexibility Analysis, that a number of paging licenses will be awarded to small businesses, and at least some of those small business licensees will likely also take advantage of the partitioning and disaggregation rules. We are unable to predict accurately the number of small businesses that may choose to acquire partitioned or disaggregated MEA or EA licenses. The Commission expects, however, that entities meeting one of the above definitions will use partitioning and disaggregation as a means to obtain a paging license from an MEA or EA licensee at a cost lower than the cost of the license for the entire MEA or EA.  X 4Nationwide Geographic Area Licenses The partitioning and disaggregation rules pertaining to nationwide geographic area licenses adopted in the Third Report and Order will affect the 26 licensees holding nationwide geographic area licenses to the extent they choose to partition or disaggregate, as well as any entity that enters into a partitioning or disaggregation agreement with a nationwide geographic area licensee. No parties, however, commented on the number of small business nationwide geographic area licensees that might elect to partition or disaggregate their licenses and no reasonable estimate can be made. While we are unable to state accurately how many nationwide geographic area licensees meet one of the above small business definitions, our Third CMRS Competition Report indicates that at least eight of the top twelve publicly held paging companies hold nationwide geographic area licenses and had average  X4gross revenues in excess of $15 million for the three years preceding 1998.YR {O'#X\  P6G;ɒP#э Id.Y The Commission expects at least some of these eight companies to employ the partitioning or disaggregation rules, and also expects, for the purposes of evaluations and conclusions in this Final Regulatory Flexibility Analysis, that nationwide geographic area licensees meeting one of the above definitions may use the partitioning or disaggregation rules. While we are unable to predict accurately the number of small businesses that may choose to acquire partitioned or disaggregated licenses from nationwide geographic area licensees, the Commission expects, for purposes of the evaluations and conclusions in the Final Regulatory Flexibility Analysis, that entities meeting one of the above small business definitions will use partitioning and"R +&&,,P" disaggregation as a means to obtain a paging license from a nationwide geographic area licensee.  X' (8)` ` AirGround Radiotelephone Service (#` The Commission has not adopted a definition of small business specific to the AirGround  Xv4Radiotelephone Service, which is defined in Section 22.99 of the Commission's rules.Sv {O'#X\  P6G;ɒP#э See  Section 22.99 of the Commission's Rules, 47 C.F.R.  22.99.  X_4Accordingly, we will use the SBA definition applicable to radiotelephone companies, i.e., an  XJ4entity employing no more than 1,500 persons.TJZ yOU '#X\  P6G;ɒP##X\  P6G;ɒP##X\  P6G;ɒP#э #X\  P6G;ɒP#13 C.F.R.  121.201, SIC 4812. There are approximately 100 licensees in the AirGround Radiotelephone Service, and we estimate that almost all of   them qualify as small under the SBA definition.  X 'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`'  (9)` ` Local Multipoint Distribution Service (LMDS) LMDS licensees may use spectrum for any number of services. We anticipate that the greatest intensity of use will be for either radio telephone or pay television services. SBA has developed definitions applicable to each of these services; however, because pay television is not a telecommunications service subject to section 255, that definition is not relevant to this FRFA. The Commission has adopted a definition of small entities applicable to LMDS licensees,  X4which is a new service.%U yO' |$ #X\  P6G;ɒP#э In the Matter of Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's Rules to Redesignate the  |$* 27.529.5 GHz Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for  |$ Fixed Satellite Services. Petitions for Reconsideration of the Denial of Applications for Waiver of the Commission's  {O' |$ Common Carrier PointtoPoint Microwave Radio Service Rules. CC Docket No. 92297, Suite 12 Group Petition  {O' |$ for Pioneer Preference, PP22. Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 12545 (1997).% In the LMDS Order we adopted criteria for defining small businesses for determining bidding credits in the auction, but we believe these criteria are applicable for evaluating the burdens imposed by Section 255. We defined a small business as an entity that, together with affiliates and controlling principals, has average gross revenues not exceed X4ing $40 million for the three preceding years.Vf  {O!'#X\  P6G;ɒP#э See LMDS Order, 12 FCC Rcd at 12688,12690 (paras. 345,348). Additionally, small entities are those which together with their affiliates and controlling principals, have average gross revenues for the  X4three preceding years of more than $40 million but not more than $75 million.W  {O@%'#X\  P6G;ɒP#э See id. at 1269091, 12694 (paras. 349, 358).This" W +&&,,P"  X4definition has been approved by the SBA.X yOy' |$ #X\  P6G;ɒP#э Letter from Aida Alvarez, Administrator, Small Business Administration, to Daniel Phythyon, Chief, Wireless Telecommunications Bureau of 1/6/98. Upon completion of the LMDS auction, 93 of the 104 bidders qualified as small entities, smaller businesses, or very small businesses. These 93 bidders won 664 of the 864 licenses. We estimate that all of these 93 bidders would qualify as small under the SBA definitions, but cannot yet determine what percentage would be offering telecommunications services subject to the requirements of section 255.  XH' (10)` ` Rural Radiotelephone Service  X 4 The Commission has not adopted a definition of a small entity specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic  X 4Exchange Telephone Radio Systems (BETRS). Y  yO'#G\  P6G; مP## X\  P6G;ɒP#э #X\  P6G;ɒP#BETRS is defined in Sections 22.757 and 22.759 of the Commission's Rules, 47 C.F.R.  22.757, 22.759.  Thus, we will use the SBA's definition  X 4applicable to radiotelephone companies, i.e., an entity employing no more than 1,500  X 4persons.qZ  yO!'#X\  P6G;ɒP#э 13 C.F.R.  121.201, SIC 4812.q There are approximately 1,000 licensees in the Rural Radiotelephone Service, and we estimate that almost all of them qualify as small entities under the SBA's definition.  X{' (11)` ` Wireless Communications Services This service can be used for fixed, mobile, radiolocation and digital audio broadcasting satellite uses. The Commission defined small business for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a very small business as an entity with average gross revenues  X4of $15 million for each of the three preceding years.Z[Z@ {O' |$ #X\  P6G;ɒP#э This standard has not yet been approved by the SBA. For a discussion of this issue, see F.C.C Public Notice,  |$D "Comment Sought On Small Business Size Standards," PR Docket No. 93-61, GN Docket No. 96-228, 14 FCC Rcd. 1330 (1999).Z The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as very small business entities, and one that qualified as a small business entity. We conclude that the number of geographic area WCS licensees affected includes these eight entities.  Xg' (12)` ` 39 GHz Band  XP4 "Pb [ +&&,,P"Ԍ X4In the 39 GHz Band NPRM and Order,\^ {Oy' |$^ #X\  P6G;ɒP#э Amendment of the Commission's Rules Regarding the 37.038.6 GHz and 38.640.0 GHz Bands, ET Docket  {OC' |$ No. 95183, Notice of Proposed Rulemaking and Order, 11 FCC Rcd 4930, 497172 (paras. 8788) (1996) (39 GHz  {O 'Band NPRM and Order). we proposed to define a small business as an entity that, together with its affiliates and attributable investors, has average gross revenues for the three preceding years of less than $40 million. We have not yet received approval by the SBA for this definition. Therefore, the applicable definition of a small entity is the SBA definition applicable to radiotelephone companies, which is a radiotelephone company  X4employing no more than 1,500 persons.] {O. '#X\  P6G;ɒP#э We note that the NPRM and associated IRFA preceded SBREFA. See generally note 1 of this FRFA, supra. As noted previously, the 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, shows that only 12 radiotelephone firms out of a total  X34of 1,178 such firms which operated during 1992 had 1,000 or more employees.f^X3 yOd' |$k #X\  P6G;ɒP#э U.S. Bureau of the Census, U.S. Department of Commerce, 1992 Census of Transportation, Communications,  |$3 and Utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table 5, Employment Size of Firms: 1992, SIC Code 4812 (issued May 1995).f #Xj\  P6G;ynXP#Therefore, a majority of 39 GHz entities providing radiotelephone services could be small businesses under  X 4the SBA definition#Xj\  P6G;ynXP#, and we assume, for purposes of our evaluation here, that nearly all of the  X 439 GHz licensees will be small entities, as that term is defined by the SBA.G_  {O?' |$^ #X\  P6G;ɒP#э Amendment of the Commission's Rules Regarding the 37.038.6 GHz and 38.640.0 GHz Bands, ET Docket  {O 'No. 95183, Report and Order and Second Notice of Proposed Rulemaking, (1997) Appen. B, RFA at 1867779.G  X 'vp` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`' D.Description of Projected Reporting, Recordkeeping, and Other Compliance  X 'Requirements (# As we have noted, the objective of section 255 is to give persons with disabilities increased access to telecommunications. Both equipment manufacturers and telecommunications service providers are obligated to provide accessibility for persons withv any one or more different disabilities to the extent that it is readily achievable for them to do so. In the broadest sense, compliance consists of an ongoing, disciplined, and systematic effort to provide the greatest level of accessibility.  X4The accompanying Report and Order identifies behaviors that would demonstrate such an effort and that would be looked upon favorably by the Commission in the event a complaint was filed. However, we have declined to adopt suggestions that we require manufacturers and service providers to establish specific internal systems and recordkeeping practices for purposes of responding to Section 255 complaints and inquiries or require manufacturers to maintain public files recording their compliance with section 255 and our rules. We see no"i _ +&&,,P" need to burden manufacturers and service providers with detailed processing and reporting requirements which could hinder rather than hasten the resolution of accessibility disputes. The only reporting requirement imposed by the rules is that each covered entity designate an agent or contact whose principal function will be to ensure the manufacturer's or service provider's prompt receipt and handling of accessibility concerns raised by consumers or  X4Commission staff. We proposed this requirement in the Notice, and it received universal support among the commenters.  XJ4 In the Notice, the Commission sought comment regarding whether existing Commission processes (and associated forms) would be efficient vehicles for any requirements the Commission might develop in this proceeding, such as information collection, or providing notice to firms dealing with the Commission that they may be subject to section 255. The Commission listed the following examples: (1) the Commission's equipment authorization processes under Part 2, Subpart J of the Commission's Rules; (2) equipment import documentation requirements under Part 2, Subpart K of the Rules; (3) licensing proceedings under section 307 of the Act for various radio services used by entities subject to section 255 obligations; and (4) various common carrier filing processes.  P5EZ However, we have decided that modifying the current equipment certification or other  XO4existing Commission processes for purposes of compliance with section 255 is not necessary.~`O {O'#X\  P6G;ɒP#э See Report and Order at para. 163.~  X84As we have stated in the Report and Order in the discussion on enforcement and the application of the readily achievable standard, no specific documentation is being required at this time. Companies may chose to keep records at their own discretion concerning the way  X4the company has chosen to implement its own disability initiatives.a"Z yO' |$ #X\  P6G;ɒP#э Recognizing that this type of recordkeeping would be selfimposed, we nevertheless sought comment on  |$ whether this implicit burden would need to be recognized, and, if so, whether it would have a disproportionate impact  |$Q on small businesses. Comments that were received with respect to our inquiry are addressed in Section B. of this  {OX'FRFA, supra.  X'p` P @ 0 p`P@0  !"#$%p&`'p` P @ 0 p`P@0  !"#$%p&`' E.Steps Taken To Minimize Significant Economic Impact on Small Entities  X'Consistent with Stated Objectives, and Significant Alternatives Considered (#    We noted in the IRFA that the resources of the regulated entity are taken into account in the determination of whether accessibility of a given product or service is readily achievable and that there is thus an inherent consideration of the financial burden on the entity in its obligation to provide accessibility: if not readily achievable, that obligation is removed. Nevertheless, we acknowledged that all regulated entities would be required to assess whether providing accessibility is readily achievable and that an important issue for RFA purposes is thus not the absolute cost of providing accessibility, but, rather, the extent to which the cost"Da +&&,,P" of performing an assessment as to whether an accessibility feature is readily achievable is unduly burdensome on small entities.  X4As early as the Notice of Inquiry, we sought comment on three possible approaches for implementing and enforcing the provisions of section 255: (1) casebycase determinations; (2) guidelines or a policy statement; or (3) rules setting forth procedural or performance  Xx4requirements intended to promote accessibility.b^x {O' |$ #X\  P6G;ɒP#э Implementation of Section 255 of the Telecommunications Act of 1996: Access to Telecommunications Services,  {O' |$. Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, WT Docket No.  {O '96198, Notice of Inquiry, 11 FCC Rcd 19152, 19163 (para. 7) (1996) (Notice of Inquiry). The Notice focused principally on procedural requirements as a practical, common sense means to ensure that consumers with disabilities  XL4would have access to telecommunications services and equipment. In the Notice we considered using casebycase determinations exclusively, in lieu of any rules, but tentatively discarded this approach because we believed that in a rapidly changing market with unpredictable technological breakthroughs, the slow development of case law would be insufficient to guide covered entities and to provide an understanding of their accessibility obligations. We also considered issuing guidelines or a policy statement, but tentatively discarded this approach, as well, because of our view that a greater degree of regulatory and administrative certainty would best serve the interests of both consumers and businesses that must comply with section 255. Although we acknowledged that a policy statement might serve the purpose of informing casebycase determinations in complaint proceedings and lend some predictability to the process, we tentatively decided that, in order for accessibility to be addressed in a proactive manner, equipment manufacturers and service providers should have clear expressions of the demands that section 255 places on their operations before the beginning of the design process. Therefore, we tentatively concluded that the potential drawbacks of exclusive reliance on casebycase determinations as a means of implementing Section 255 would not be sufficiently diminished by the adoption of guidelines or a policy statement. We also considered and tentatively rejected the option of promulgating specific performance requirements. Such an approach, under which the Commission would attempt to establish an array of specific parameters for features and functions across a broad range of telecommunications services and equipment, was viewed as potentially burdensome to covered entities. We also considered it to be fraught with other potential problems, such as rapid changes in technology, that would require frequent revision of the performance requirements and could cause confusion in the telecommunications marketplace. We tentatively decided that the promulgation of specific rules governing the design process would also impose burdens on covered entities whose resources would be better spent in achieving and improving accessibility. "!b +&&,, P"ԌAs a result of our tentative decision to rely primarily on procedural rules, we took several  X4steps in the Notice to minimize the burdens on all regulated entities. First, we sought to provide incentives to industry for early and ongoing consideration of accessibility issues by indicating that we would look favorably upon efforts to implement the Access Board's guidelines by such means as formalizing selfassessment, external outreach, internal management, and user information and support to address accessibility issues. Second, we attempted to unravel the statutory terminology to give guidance on the interpretation of key  Xa4language within the telecommunications context.ca yO' |$ #X\  P6G;ɒP#э For example, the term ``readily achievable'' was discussed in great depth in an effort to explicate feasibility, expense, and practicality elements. Third, we proposed a twophase process for  XJ4dealing with section 255 consumer complaints.jdJ  {O '#X\  P6G;ɒP#э Notice at para. 126.j In the first phase, which we referred to as the "fasttrack," we proposed that Commission staff be required to refer any complaint or inquiry to the manufacturer or service provider concerned, who would have a period of five  X 4business days to address the problem.ke  {Oh'#X\  P6G;ɒP#э Notice at para. 125. k Where fasttrack efforts failed to produce a satisfactory solution, we proposed to apply complaint processes similar to those used in  X 4Section 208 complaint proceedings.f D {O'#X\  P6G;ɒP#э Notice at para. 126; see 47 C.F.R.  1.711 1.736. Although we initially viewed the "fasttrack" process as an efficient, consumerfriendly  X4means of dealing with problems associated with accessibility compliance, parties representing both consumer and industry interests criticized the proposed mandatory "fasttrack" mechanism as burdensome and confusing and agreed that our section 208 processes provide  XM4an appropriate model for Section 255 enforcement. Hence, in the Report and Order, we decided to abandon the 5day "fast track" proposal and to adopt rules modeled after our Section 208 complaint rules, thus reducing the implicit burden placed on both consumers and industry alike.  X4Under the procedures adopted by the Report and Order, consumer complaints filed pursuant to Section 255 will be handled through an informal complaint process where the staff refers complaints to the manufacturers or service providers involved. The focus at this stage will be on addressing the accessibility needs of the complainant. Because the nature or complexity of certain accessibility disputes may not be susceptible to informal resolution by the disputing parties, complainants have the option of seeking the formal adjudication of a problem or dispute with a manufacturer or service provider at any time pursuant to our  X=4existing section 208 complaint rules.{g= {O%'#X\  P6G;ɒP#э See 47 C.F.R.  1.720 1.736.{ "=h g +&&,,_P"Ԍ X4ԙAs outlined supra, in the Report and Order we have declined to promulgate specific rules governing the design process, although certain of the Access Board Guidelines that we have may require manufacturers to include persons with disabilities in any group testing performed  X4during the design process.qh {O6'#X\  P6G;ɒP#э See, e.g., Section 1193.31.q We believe we have reduced regulatory burdens wherever possible. For burdens imposed by achieving accessibility, the structure of the statute inherently acknowledges varying degrees of economic impact. The readily achievable standard is proportional, not absolute, and adjusts the burden of providing accessible features commensurate with the resources of the covered entity. For burdens associated with enforcement, we anticipate that the informal complaint process will significantly reduce the number of complaints, thus minimizing the burden on all covered entities of providing a legal defense. Moreover, the range of choices for resolving complaints is designed to reduce costs to the opposing parties. Encouraging the use of streamlined, informal complaints or alternative dispute resolution primarily benefits individual plaintiffs who may be persons with disabilities with limited financial resources, but should also enable covered entities to defend themselves at a lower cost.  X{4 Report to Congress : The Commission will forward a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business  XO4Regulatory Enforcement Fairness Act of 1996; see 5 U.S.C. 801(a)(1)(A). In addition, the  X:4Commission will forward a copy of the Report and Order, including this FRFA, to the Chief  X%4Counsel for Advocacy for the Small Business Administration. A copy of the Report and  X4Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C.  604(b)."Zh +&&,,P"  X4|/  X4lUS?? U 1 1n!xUddp` P @ 0 p`P@0  !"#$%p&`'(#USUS<TD؃n??US |  @D--@  = pp` ` P P @ @ 0 0  0G\s pp"``7#Xj\  P6G;ynXP# =']VJuly 14, 1999 Statement of  X'`Chairman William E. Kennard ă  V_4Re: Rules & Policies for the Telecommunications Equipment & Services for People with  VH4Disabilities. Today's action represents the most significant opportunity for people with disabilities since the passage of the Americans with Disabilities Act in 1990. In the Telecommunications Act of 1996, Congress fashioned the ADA of the Information Age. The framework we announce today is an essential step in making a meaningful difference in the lives of people with disabilities. We build upon the work of the Access Board and follow the ADA's precedent. Now, just as persons with disabilities can navigate our public streets because of the ADA's requirements for curb cuts, all our citizens can navigate the information superhighway without confronting barriers that stop them cold. Simple solutions such as big buttons on phones for the blind, phones with volume control for the deaf, talking caller ID for those who cannot see or move quickly, pagers that send TTY messages and phones with headsets for those who cannot hold the receiver, could be made available. In addition, today, we initiate a Notice of Inquiry that looks to the future. In this dynamic industry, as technology changes with the blink of an eye, we need to ensure that the future is accessible as well. Our rules today are workable and practical and will allow industry to focus on what's really important: making its products and services accessible. Our rules give service providers and manufacturers a great deal of flexibility in determining how to best deploy their resources to carry out the statutory mandate, as long as they do all that is readily achievable and make modest changes to every product where it is easy to do so. We do not require specific documentation or filings. Indeed, we are mandating ends, not means - and we urge industry to step up and innovate to realize the accessibility goal. We look forward to moving ahead, building from our common vision of what we must  X4accomplish, and building to an accessible world we all can share."h= + + +7P"  X4     #footnote reference#u2 Y4#X P7|XP#  Y4#C\  P6QɒP#US?? y  U 1 1!WUdd| Y4#X P7|XP#USUSq >- -- - y  #X P7|XP#??US  yO'#C\  P6QɒP#Ѩņ pp"``7 pp` `  X4 Separate Statement of lCommissioner Susan Ness  Xv4  XH4Re: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  V 4Equipment by Persons with Disabilities(# For the nondisabled, it takes little effort to dial a telephone number on a telephone touchpad;  X 4scroll through an automatic voice response system to check your bank account balance; leave a simple voicemail message on a colleague's or friend's answering machine; or even to scan a mobile phone's visual display to ascertain who is calling you or whether you dialed the correct telephone number. Unfortunately, in this day and age, the same cannot be said for people who are disabled. Accessing telecommunications equipment or services to perform these seemingly routine tasks that most of us take for granted is a frustrating exercise at best and potentially a lifethreatening barrier at worst for people who are disabled. In this respect, as in others, passage of the Telecommunications Act of 1996 marks a new beginning. Section 255 requires telecommunications equipment and services to be made accessible to the disability community, and today we adopt implementing rules to fulfill Congress' intent. These accessibility rules could not have been adopted at a better time. We are in the midst of a revolution that is reshaping not only telecommunications but our economy and society as well. The timing of this ruling is fortuitous because these accessibility rules will apply to the next generation data networks that are on the drawing boards today. If accessibility can be designed in from the "getgo," it will be easier and more cost effective than trying, later in the process, to make compensating or retrofitting adjustments. Related to the design of the next generation data networks are the individual telecommunications products and services that will communicate with and provide services using those data networks. In concept, our action today adopts the universal design or the socalled "product approach," rather than the "product line" approach, to making telecommunications products and services accessible. The goal is to ensure that as many products as possible will be accessible, if readily achievable. I have been delighted by the cooperation we have seen between the disability community and the manufacturers and service providers to reach a common understanding. The key insight on which widespread agreement has been achieved is that manufacturers and service providers  X(4must consider accessibility concerns in designing all products and services, not just relegate such considerations to a narrow subset of models or services, even if ultimately a particular accessibility feature cannot practically be incorporated in any given product or service. This")h + + +'P" ufundamental change in the mindset of manufacturers and service providers will open product and service design to new and exciting possibilities. The benefits to the disability community will be substantial. But just as with curb cuts, closed captioning, and volume controls on pay phones, the nondisabled will benefit too. Indeed, in examining one manufacturer's Section 255 offerings during the CTIA convention, I was struck by the utility of a mobile phone with the microphone suspended around the neck. This "handsfree" unit would be ideal for many of us, disabled or not. And now we can reasonably expect that the future will be brightened by many other similar examples, with products and services competing on the basis of their accessibility features. Moreover, the nondisabled will benefit in other ways as well. Metcalfe teaches that the value of a network is directly related to the number of users. Making telecommunications accessible will facilitate access by the estimated 54 million people who are disabled, thereby  X 4increasing the value of the network for everyone disabled and nondisabled alike.  X 4 I want to thank the Architectural and Transportation Barriers Compliance Board ("the Access Board"), the disability community, the manufacturers, the service providers, and our own staff for all the hard work that has culminated in this order."dh +o)o)P"  X4   Separate Statement of Commissioner Harold W. FurchtgottRoth  X' 4Concurring in Part and Dissenting in Part ă  X4 Re: In the Matter of Implementation of Sections 255 and 251(a) of the Communications Act of 1934, Enacted by the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment and Customer Premises  Va4Equipment by Persons with Disabilities, WT Docket No. 96198, Report and Order(# Today's action brings to a close the first chapter in what I consider to be one of the most important proceedings I have had the privilege to act upon here at the Commission. I want to complement the staff of the FCC for an extraordinary effort in dealing with a host of highly technical issues and doing so in a professional, thorough and dignified manner. Further, I fully support most of the conclusions reached in today's order. They will redound not only to the benefit of those with disabilities, who have been deprived of full access to basic telecommunications services for far too long, but to all Americans. I am confident that industry will seize this opportunity, as it has in the past, to design and manufacture products that will have widespread appeal and enhance the quality of life for us all. It is, however, with very great reluctance that I must dissent from two small parts of today's Order. Prior to joining the Commission, I had the great honor and privilege of serving on the House Commerce Committee during the drafting and enactment of the Telecommunications Act of 1996. Several Members of Congress, themselves persons with disabilities or keenly aware of needs of those with disabilities through the experiences of family members, took great interest in the accessibility provisions of the Act. There is absolutely no doubt in my mind that the literal words of Section 255 embody precisely what its authors those Members intended. By its terms, Section 255 covers access to telecommunications. Period. No where in any relevant statutory provisions do we find any reference to information services, a term with which the Act's authors were certainly familiar (they even provided a definition for it). Congress chose it words carefully after great deliberation. The Commission should heed them. Yet today this Commission chooses to ignore the words of the statute, extending Section 255 to voicemail and interactive menus (indisputably information services), through an assertion of the Commission's ancillary jurisdiction. To be sure, voicemail and interactive menus are becoming increasingly important to communicate effectively in today's society. Nonetheless, despite how laudable our intentions may be, we run the very serious risk of  X#4endangering all that we have accomplished today by disregarding the statuteh.#2 X%4 ![ԍFurther, the cases cited in the Order in support of asserting ancillary jurisdiction are quite simply irrelevant when the law provides all the guidance this agency needs. When this Commission usurps for itself the role of rewriting a statute which is clear on its face, we can no longer credibly claim that we are discharging faithfully our duty "to execute and enforce""S%b + + +#P"  X4the statute.`%l Xy4ԍSection 1 of the Act, 47 U.S.C.  151.` We substitute our judgment of what the law is for the judgment of those who  X4were elected to make the laws in the first instance. For very similar reasons, I must also object to the Commission's conclusion that "software" can be read into the definition of customer premises equipment (CPE) by somehow importing its meaning from the definition of telecommunications equipment provided in the statute. The statute again provides all the guidance we need. The definition of telecommunications  X_4equipment explicitly excludes CPE from its ambit._y%l X 4 !ԍSee Section 3 (45) of the Act, 47 U.S.C.  153 (45) ("the term 'telecommunications  Xt 4equipment' means equipment, other than customer premises equipment...") (emphasis supplied). Moreover, if that were not the end of the matter, the statute further clarifies that telecommunications equipment is that used by carriers,  X14while CPE applies to equipment employed by persons other than carriers,41%l X4 !ԍCompare Section 3 (45) (telecommunications equipment means equipment other than CPE  |$"used by a carrier") with Section 3 (14) of the Act, 47 U.S.C.  153 (13) (CPE means equipment used by "persons other than carriers").4 further illuminating that the two definitions are mutually exclusive. Finally, while the definition of telecommunications equipment explicitly refers to software, no such reference exists in the definition of CPE. Unfortunately, the Commission today chooses to ignore once again the plain language of the statute in favor of a socalled "better interpretation" to read into the definition of CPE software integral to its operation. In my view, however, the language is susceptible of only one interpretation. By straying from the explicit terms of the law, the Commission again casts a shadow on the progress and achievements we have made in the  Xy4rest of today's Order. ***** "4 +o)o)P"  X4  1(##X P7|XP#  1(#l  X'k#Xj\  P6G;ynXP#SEPARATE STATEMENT OF COMMISSIONER MICHAEL POWELL l  V4p` P @ 0 p`P@0  !"#$%p&`''` hp x (#w''l #Xj\  P6G;ynXP#Re: Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Report and Order and Notice of Inquiry (WT  VH4Docket No. 96198)(#' '` hp x (#` hp x (# #Xj\  P6G;ynXP#I fully support this initiative to implement the mandates of Section 255 of the Communications Act, which was added by Congress as part of the landmark Telecommunication Act of 1996. The 1996 enactment was just the beginning, but this item, in terms of enforcing Section 255, is not just the start. Our action today comes after more than three years of striving toward the accessibility objectives of this important statutory provision by many consumer and industry participants. I commend those who have participated tirelessly in this effort to reach workable solutions on many of these difficult issues. We are presented today with the fruits of such efforts. Thank you. Over the past several weeks, I have had the great pleasure of meeting with and hearing from many of the people who are being helped by the inclusion of 255 in the 1996 Act. The many meetings, emails and letters have been helpful and informative. I have learned even more about the frustrations that persons with disabilities are still experiencing when trying to place telephone calls. For example, I completely understand the importance of access to voicemail and interactive menus. People with disabilities can be 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. As one commenter in the proceeding said so eloquently, "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." This all reminds me about what it was like at one time for me. As I said before when we adopted the notice in this proceeding, I know personally the frustrations of being relegated to the outskirts of "normal" society because of the inability to access the necessary instruments of daily life. Following a serious jeep accident, I recall vividly the feelings of helplessness brought on by the inability to help myself with basic life functions. During my yearlong convalescence I found myself preferring the hospital over my home. Home was the real world of difficult stairways to navigate, rather than the ramps of the hospital. It was bathrooms that were a nightmare to get to and use, and it was inhospitable beds and chairs. It was a place where I watched fully functional people move easily in and out of every day, living normal unencumbered lives. But as I reflect and tell some astonished people, it was the best thing that ever happened to me. That experience has guided me in this proceeding in part because it allowed me to experience first hand how much of a jungle the world can be to") + + +'P" someone who is disabled. I have also been very pleased by the input from the telecommunications industry and the manufacturers. Moreover, I have been extremely impressed by the initiative and leadership of several organizations and companies that, in consultation with consumer groups and disabled persons, have already implemented Section 255's requirements. These lawabiding entities (which I would suggest represent a vast majority of our corporate citizens subject to Section 255) will have no fear of our actions today or enforcement actions of tomorrow. I understand the industry's remaining concerns as much as I understand the concerns of consumers that would want us to go as far as we can in making all communications services and equipment accessible to all. But, despite our legal wrangling here today, we are dutybound to consider all of these remaining concerns and we are dutybound to act within the terms delegated to us by the elected members of Congress. In this vein, I have grave concerns about the draft items use of "ancillary jurisdiction" to extend the accessibility requirements of Section 255 to providers of voicemail and interactive menu services, as well as to manufacturers of telecommunications equipment and CPE which perform such functions. I think the draft order before us today has chosen to primarily rely on the least sustainable course for covering such services and may have placed much of the good work embodied in this item at unnecessary risk. I definitely support the result that we are striving for with regard to voice mail and interactive menus. I agree that we should take all reasonable and aggressive steps to ensure that people with disabilities are unimpeded from using telecommunications due to barriers created by voice mail systems and interactive voice menus. The problem has been identified, it is real, and should be remedied as quickly as possible. However, the draft orders primary approach, in my mind takes a grave step. The draft item seems to concede that voice mail and voice menu services are excluded from section 255, yet is comfortable reaching for ancillary jurisdiction to rewrite the provision more to its liking, admittedly for perhaps the worthiest of causes. I am uncomfortable with this assertion of unbridled, plenary authority to legislate coverage, especially where Congress appears to have by the terms of its Act, excluded certain areas from coverage. I am unconvinced that such an unrestrained application of ancillary jurisdiction has been sanctioned by the courts, nor do I believe it to be consistent with our own precedents. Accordingly, while I support 99.99 percent of this item and everything that it achieves, I must dissent from its assertion of ancillary jurisdiction. I believe there are a number of theories that potentially would have allowed us to  X#4provide these services within the terms of the statute and without usurping the legislative prerogatives of Congress. I accept the Chairmans invitation to continue exploring these alternative approaches. I am sorry that we are not able to rely on these other legal theories without resorting to the use of ancillary jurisdiction. I can only hope that the decision to rely, in whole or part, on ancillary jurisdiction does not result in litigation that delays the  X (4availability of the relief which is sorely needed.#Xw PE37|XP#" ( +o)o)%P"  Y4  ` `  Ghh}pp"X  X'#XP\  P6QynXP#  Separate Statement of Commissioner Gloria Tristani   Vv4Xl #Xj\  P6G;ynXP#Re: Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Report and Order and Notice of Inquiry (WT  V14Docket No. 96198)(#  X 4  I've spoken before about the importance of access in our information society. Telecommunications is increasingly so much more than how we communicate it is how we teach, how we learn, how we work. To be denied access to these activities is to be relegated to the sidelines of our national life. And so I have fought hard to ensure access in other contexts Erate and universal service. So, too, here. The opportunity to make decisions like these and to see the meaningful effect in individuals' lives is what makes this job worthwhile. Congress, of course, made the first important decision here: the decision to require that all telecommunications services and equipment be accessible to people with disabilities, if readily achievable. But we have the obligation to bring Congress' intent to life, through our implementation and enforcement. Section 255 is a true corollary to the ADA, which mandates accessibility in employment and public accommodations. Knowing that full participation in our national life means more than eliminating physical barriers, Congress did not stop there. Section 255 builds upon the progress of the ADA by removing barriers to communication and information. The rules we adopt today will have a substantial effect on the quality of life for all Americans with disabilities. I have approached this rulemaking with these goals in mind. The rules we adopt provide manufacturers and service providers with both certainty about their obligations and flexibility in how they meet them. As manufacturers consider accessibility throughout the design and development of new products and services, I have no doubt that the intelligence and innovation of this industry will prevail in amazing, unforeseen ways. As a lawyer, it's one of the things I appreciate about engineers. We lawyers are trained to create problems. Engineers love to solve them. So I have every confidence that industry will create greater accessibility and greater inclusiveness that will benefit us all. I am particularly pleased about one aspect of our decision. I firmly believe that we have the jurisdiction, and indeed, the obligation under the Communications Act, to include voicemail and interactive voice menus in our rules. These services are more than commonplace. They are often the only means of completing a simple phone call today. When I call a bank or an airline, a theater or a credit card company, interactive voice menus are the means by which I complete my call. Often a live human is available, if at all, only by navigating that system. Those who are hard of hearing, or who have mobility or cognitive disabilities, simply may not be able to respond as quickly as the system demands. A TTY") + + +'P"ԫuser, working with a communications assistant, may have to spend fortyfive minutes, and endless phone calls, to reenter the system and repeat the prompts just to check an account balance. When these individuals are disconnected, or do not have sufficient time to respond to a prompt, it is a fiction to say that that phone call is accessible because, in the technical sense, it has been terminated at the number dialed. In no purposeful sense is that call accessible to the person placing it. Voicemail and interactive voice menus are so integral to the use of telecommunications services today that their inaccessibility can render telecommunications services themselves inaccessible. By reading the statute with its purpose in mind and covering these vital services, we ensure real and meaningful access.