The Plan includes a series of recommendations to improve and enhance access to broadband services by persons with disabilities. The Plan recommends that all branches of the federal government update existing laws to apply to Internet protocol equipment and services, and apply current law to require accessibility to certain commercial Web sites. The Plan further recommends that both the Executive Branch and the FCC establish working groups to ensure compliance with applicable laws and to encourage and fund development of new and efficient technologies to make broadband more accessible to the disabled.

Background

Many federal laws have been enacted to require greater access to telecommunications by persons with disabilities, but they often lag technological development. For example, Section 255 of the Act requires telecommunications products and services to be accessible to the disabled but does not apply to voice over Internet protocol (VoIP) or other IP-based equipment and services. Video programs delivered by Internet are under no requirement to be captioned, even if they were previously shown with captions on TV. Many 911 emergency call centers also cannot accept calls from people who communicate in video or via pagers. Application of existing disabilities laws to Web sites that blend Internet with “bricks and mortar” retailing has caused confusion and spawned litigation.

Representative Edward Markey (D-Mass.) regularly introduces bills to extend the reach of accessibility legislation. His bill in the current session is “The Twenty-first Century Communications and Video Accessibility Act of 2009” (H.R. 3101). This bill would ensure that new Internet-enabled voice and video products and services are accessible to persons with disabilities, and extend accessibility requirements through other amendments to telecommunications law. (Negotiated approaches outside of the legislation have also been considered.) The major provisions of this legislation are as follows:

Communications access

  • Requires access to phone-type equipment and services used over the Internet (Section 255 currently requires only telecommunications products and services to be accessible)
  • Adds improved accountability and enforcement measures, including a clearinghouse and reporting obligations by providers and manufacturers
  • Requires telephone products used with the Internet to be hearing aid compatible (current law requires compatibility only on all wireline and many wireless phones)
  • Allows use of Lifeline and Link-up universal service funds (USF) for broadband connection and service (USF currently funds only products and services on the PSTN)
  • Allocates up to $10 million/year for equipment used by people who are deaf-blind
  • Clarifies the scope of relay services to include calls between and among people with disabilities
  • Requires Internet-based service providers to contribute to the Interstate Relay Fund, and
  • Requires the FCC to develop real-time text digital standard to replace TTY communications

Video programming access

  • Requires caption decoder circuitry or display capability in all video programming devices, including PDAs, computers, iPods, cell phones, DVD players, TiVo devices and battery-operated TVs (such circuitry currently is required only on 13-plus inch TVs)
  • Extends closed captioning obligations to video programming provided by, or generally considered comparable to programming provided by, a television broadcast station, even when distributed over the Internet, but does not cover user-generated content (e.g., YouTube videos posted by individuals) (captioning currently is required only on most broadcast, cable and satellite TV shows)
  • Requires easy access to closed captions via remote control and on-screen menus
  • Requires easy access by blind people to television controls and on-screen menus
  • Restores video description rules and requires access to televised emergency programming for people who are blind or have low vision
  • Many of the substantive recommendations in the Plan derive from this proposed legislation.

Analysis

The FCC observed in the Plan that broadband holds tremendous potential to enable people with disabilities to communicate and connect with others, but also found that the promise of broadband for the 54 million Americans with disabilities is falling short of the reality. The FCC’s consumer survey showed that only 42 percent of people with disabilities use broadband at home (compared to 65 percent of people nationwide), and 39 percent of all non-adopters have a disability. Historically it has taken years for people with disabilities to gain anything close to equal access to communications, but the FCC is taking the opportunity with broadband to consider accessibility issues relatively early in the deployment process.

The Plan includes the following recommendations:

  1. The Executive Branch should form a Broadband Accessibility Working Group from members of all departments to maximize broadband adoption by people with disabilities. This working group will (1) coordinate government efforts to ensure that every agency is complying with accessibility requirements, (2) coordinate policies and develop funding priorities across agencies to promote new and efficient technologies for accessibility solutions, and (3) prepare biannual reports on the state of broadband accessibility in the United States.
  2. The FCC should establish an ongoing Accessibility and Innovation Forum to promote the use of collaborative, problem solving processes among a diverse group of public, private, and non-profit stakeholders. The forum will hold regular workshops on a variety of topics, both in physical locations throughout the country and on the Web. This appears to formalize the negotiations that have been underway in parallel with H.R. 3101 between disability advocates and industry groups. (The FCC just appointed one of the negotiators for disability groups as its new deputy bureau chief in the Consumer and Governmental Affairs Bureau.).
  3. The FCC, Congress, and the Justice Department should update accessibility laws and policies and ensure they are enforced. The FCC recommends that all of the major elements in H.B. 3101 be explored and/or implemented, including updating the telecom accessibility rules in Section 255 and the Commission’s Hearing Aid Compatibility rules. The Plan also recommends that the Department of Justice amend its regulations to clarify the obligations of commercial establishments under the Americans with Disabilities Act with respect to commercial Web sites.
  4. The FCC, with additional authority from Congress, should provide federal support for those who cannot afford assistive technologies and who do not have access to such technologies through existing programs. More specifically, the Plan recommends that Congress give the FCC authority under the Universal Service Fund to provide up to $10 million annually to provide competitively based funding to developers of innovative devices, components, software applications, or other assistive technologies that promote accessibility. The FCC should also issue a Notice of Proposed Rulemaking on whether to establish a separate disability access subsidy program under the Telecommunications Relay Services program.

The FCC will be releasing a series of notices to launch this proceeding and others in rapid succession. Davis Wright Tremaine will be monitoring those proceedings on behalf of our clients.