[Federal Register Volume 64, Number 223 (Friday, November 19, 1999)]
[Rules and Regulations]
[Pages 63235-63258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30091]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 6 and 7
[WT Docket 96-198; FCC 99-181]
Access to Telecommunications Service, Telecommunications
Equipment and Customer Premises Equipment by Persons with Disabilities
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document establishes rules to ensure that people with
disabilities have access to telecommunications services and related
equipment, if readily achievable. These rules are required to implement
section 255 of Telecommunications Act
[[Page 63236]]
of 1996. These rules will increase the accessible products and services
available in the marketplace.
DATES: These rules become effective January 28, 2000, except for
Secs. 6.18 and 7.18, which contain modified information collection
requirements that have not been approved by the Office of Management
and Budget (``OMB''). The Commission will publish a document in the
Federal Register announcing the effective date of those sections.
Written comments by the public on the modified information collection
requirements should be submitted on or before December 20, 1999.
ADDRESSES: Office of the Secretary, Federal Communications Commission,
445 Twelfth Street SW, Room TW-A325, Washington, DC 20554. A copy of
any comments on the information collection contained herein should be
submitted to Judy Boley, Federal Communications Commission, Room 1C804,
445 12th Street, SW, Washington, DC 20554, or via the internet to
jboley@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Ellen Blackler, Common Carrier Bureau.
(202) 418-0491.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in WT Docket 96-198, adopted on July 14, 1999 and released on
September 29, 1999. The full text of the Report and Order, including
Commissioners' statements, is available for inspection and copying
during normal business hours in the FCC Reference Center, 445 Twelfth
Street, SW, Room CY-257, Washington, D.C. Alternate formats (computer
diskette, large print, audio cassette and Braille) are available to
persons with disabilities by contacting Martha Contee at (202) 418-0260
(voice), (202) 418-2555 (TTY), or at mcontee@fcc.gov. The Report and
Order can be downloaded in WP or ASCII text at: http//www.fcc.gov/dtf/.
This report and order contains modified information subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be
submitted to the Office of Management and Budget (OMB) for review under
Section 3507(d) of the PRA. OMB, the general public and other federal
agencies are invited to comment on the modified information collection
contained in this proceeding.
Synopsis of Report and Order
1. In this Report and Order (Order) we adopt rules and policies to
implement sections 255 and 251(a)(2) of the Communications Act of 1934,
as amended (Act). These provisions, which were added by the
Telecommunications Act of 1996 (1996 Act), are the most significant
opportunity for the advancement of people with disabilities since the
passage of the Americans with Disabilities Act (ADA) in 1990. These
rules are based on the Access Boards Guidelines, 63 FR 5631, and the
comments after issuance of a Notice of Proposed Rulemaking, 63 FR
28456.
2. We conclude that we have authority to adopt regulations to
implement section 255. We find that the language of section 255(f),
which bars any private right of action ``to enforce any requirement of
this section or any regulation thereunder,'' expressly contemplates the
Commission's enactment of regulations to carry out its enforcement
obligations under the provisions of section 255. We conclude that at a
minimum, section 255 itself grants us authority to enact rules to
implement the provisions of section 255.
3. The extensive record herein supports the adoption of rules
consistent with the Access Board's guidelines. Accordingly, we adopt
rules in this Order that are identical to or based upon the Access
Board guidelines, with a few minor exceptions. We conclude that the
Access Board guidelines can effectively serve as the basis of rules for
both covered services and equipment.
4. We note, however, that we have the discretion to depart from the
Access Board guidelines where merited. We find that the Commission
would not be bound to adopt the Access Board's guidelines as its own,
or to use them as minimum standards, if it were to conclude, after
notice and comment, that such guidelines were inappropriate.
I. Requirements for Covered Entities
5. 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.
6. We adopt the ADA definition of disability in its entirety, as
required under section 255 of the Act. We further agree with commenters
that, in implementing section 255, we should follow any applicable
judicial and administrative precedent stemming from this definition,
except in those limited circumstances in which such precedent is shown
to be unsuitable to a specific factual situation.
7. We conclude further that, at a minimum, the statutory reference
to ``individuals with disabilities'' includes those with hearing,
vision, movement, manipulative, speech, and cognitive disabilities. By
no means, however, is the definition of ``disability'' limited to these
specific groups. Determinations of what constitutes a ``disability''
under section 255 must be made on a case-by-case basis.
8. We adopt the Access Board's definitions of ``accessible to'' and
``usable by.'' We initially proposed in the NPRM to combine these terms
under one definition under our rules, reasoning that the term
``accessible to'' should be used in its broadest sense to refer to the
ability of persons with disabilities actually to use the equipment or
service by virtue of its inherent capabilities and functions. Upon
further review, however, we believe that it is more precise, and will
provide clearer guidance to entities covered by section 255, for us to
follow the lead of the Access Board and define these two terms
separately because the requirements of ``accessible to'' and ``usable
by'' embrace two distinct concepts. Although the Access Board
guidelines were designed in the context of equipment and CPE
accessibility, we conclude that these guidelines are equally applicable
to the services context, and thus our definition of accessibility and
usable applies to both equipment and services. We also adopt the
proposal made in the NPRM to ensure that support services (such as
consumer information and documentation) associated with equipment and
services are accessible to and usable by people with disabilities.
9. We conclude that, with one technical exception and one addition,
the input, control and mechanical functions in Sec. 1193.41 of the
Access Board guidelines and the output, display and control functions
in Sec. 1193.43 of the Access Board guidelines shall constitute the
definition of ``accessible to'' under the Commission's rules. The list
is not a set of mandates, but rather a list of areas covered entities
should be considering when designing products and services.
[[Page 63237]]
10. We do not adopt Sec. 1193.43(e) of the Access Board rules,
which would require that volume control telephones provide a minimum of
20 dB adjustable volume gain. We decline to adopt this 20 dB volume
control standard under our rules because it conflicts with rules that
we have previously adopted pursuant to the Hearing Aid Compatibility
Act.
11. We also do not adopt a separate requirement regarding net
reductions similar to that in section 1193.30 of the Access Board's
guidelines. We believe that this requirement is addressed under the
readily achievable definition and analysis. The flexibility of the
readily achievable analysis recognizes that it will generally be
unacceptable to completely eliminate an existing accessibility feature,
but that legitimate feature trade-offs as products evolve are not
prohibited.
12. We do, however, add to our rules one input factor to the list
developed by the Access Board. Specifically, the definition of
``accessible to'' shall include being ``operable with prosthetic
devices.'' Because some people with disabilities rely on prosthetic
devices, we conclude that consideration of direct access by such
persons is appropriately encompassed in the definition of ``accessible
to''.
13. We adopt the Access Board's definition of ``usable by'' as our
definition under the rules. As many commenters that addressed this
issue recognized, providing access to all supporting documentation and
support services is an essential ingredient for the successful
implementation of section 255 and is encompassed by our definition of
``usable by.'' Support services include, but are not limited to, access
to technical support hotlines and databases, access to repair services,
billing and any other services offered by a manufacturer or service
provider that facilitate the continued and complete use of a product or
service. Support services also include efforts by manufacturers and
service providers to educate its sales force about the accessibility of
their products and how accessibility features can be used.
14. We further conclude, consistent with the Access Board's
guidelines and supported by the record, that ``usable by'' means
manufacturers and service providers ensure that consumers with
disabilities are included in product research projects, focus groups,
and product trials, where applicable, to further enhance the
accessibility and usability of a product, if readily achievable.
15. We also conclude, consistent with the Access Board guidelines
and the statutory definition of CPE, that specialized CPE, such as
direct-connect TTYs, are considered a subset of CPE. The statute's
requirement that manufacturers and service providers ensure
compatibility with CPE which has a specialized use does not change the
fact that this equipment still meets the definition of CPE as discussed
infra in paragraphs 80 et. seq. We define specialized CPE as CPE which
is commonly used by individuals with disabilities to achieve access.
Thus, manufacturers and service providers have the same obligations to
ensure accessibility and usability of SCPE as they do for any other
CPE.
16. We adopt four of the five criteria set forth by the Access
Board as the definition of ``compatibility'' under section 255. We do
not adopt the criterion of ``compatibility of controls with prosthetic
devices,'' which we have instead added to the definition of
accessibility. We adopt the Access Board's definitions of ``peripheral
devices'' and ``specialized CPE.'' As proposed in the NPRM, the
definitions of the terms ``peripheral devices'' and ``specialized CPE''
limit the compatibility requirement to those devices that have a
specific telecommunications function or are designed to be used
primarily to achieve access to telecommunications.
17. A manufacturer or service provider must assess whether it is
readily achievable to install features or design equipment and services
so that the equipment or service can meet the criteria of
compatibility. Compliance with these criteria must be mandatory. As
technology evolves, the guidelines and the definition of
``compatibility'' may need to be revised.
18. We require manufacturers and service providers to exercise due
diligence to identify the types of peripheral devices and specialized
CPE ``commonly used'' by people with disabilities with which their
products and services should be made compatible, if it has not been
readily achievable to make those products and services accessible. In
the NPRM, we had proposed using the concepts of affordability and
availability to help define the statutory term ``commonly used'' in
section 255(d) of the Act. We conclude that affordability and general
market availability are insufficient, and in some cases inappropriate,
criteria for determining whether a specific peripheral device or piece
of specialized CPE is ``commonly used'' by persons with disabilities.
19. Section 251(a)(2) of the Act requires that telecommunications
carriers not install network features, functions, or capabilities that
do not comply with the guidelines or standards established pursuant to
section 255. We conclude that telecommunications carriers must not
install service logic and databases associated with routing
telecommunications services, whether residing in hardware or software,
that do not comply with the accessibility requirements of these rules.
II. Readily Achievable
1. Definition of ``Readily Achievable''
20. We adopt the ADA's definition of ``readily achievable.'' We
agree with the DOJ that this definition is intended to ensure that a
``wide range of factors be considered in determining whether an action
is readily achievable.''
21. The primary focus of a ``readily achievable'' analysis should
be upon three general considerations delineated in the ADA definition,
namely (1) the cost of the action; (2) the nature of the action; and
(3) the overall resources available to the entity, including resources
made available to the entity by a parent corporation, if applicable,
depending on the type of operation and the relationship between the two
entities. We decline to include consideration of feasibility, expense,
and practicality, as proposed in our NPRM. We have modified the
definition so that it more closely correlates with the terms used in
section 255. For example, we have replaced the word ``facility''
throughout the definition with the terms ``manufacturer'' and ``service
provider,'' as appropriate. We also have inserted the terms ``if
applicable'' before the third and fourth prongs of the definition.
Furthermore, we agree with those parties who have argued that, in
interpreting section 255, we should look to the ``substantial body of
judicial decisions interpreting and applying'' the terms of the ADA,
including the phrase ``readily achievable.''
2. Application of Readily Achievable
a. In General
22. In implementing the requirements of section 255, we decline to
adopt a ``product line'' framework proposed primarily by manufacturers
of equipment. Under this approach, a manufacturer or service provider
would not need to conduct a ``readily achievable'' analysis for each
produce or service, but instead would ensure that select products
within its product lines are accessible to persons with disabilities.
We conclude that section 255, by its terms, applies to the design and
production of individual products and service offered by a manufacturer
or service provider.
[[Page 63238]]
23. We recognize that there are accessibility features that can be
incorporated into the design of products with very little or no
difficulty or expense. These features must be deployed universally. We
will not identify specific features that fall into this category,
because it necessarily varies given the individual circumstances.
Manufacturers and service providers must make their own determinations
based on the factors in the readily achievable definition. Thus,
manufacturers and service providers cannot decline to incorporate
modest features that will enhance accessibility simply because some
other product or service with the feature may be available. We expect
that, over time, more and more features will be incorporated into all
products in this manner, and that features that today may not be
readily achievable soon will become routine and universally adopted.
24. With respect to those features or actions that are not readily
achievable to be deployed universally, but are readily achievable to be
incorporated into some products and services, manufacturers and service
providers have the flexibility to distribute those features across
product or service lines as long as they do all that is readily
achievable. In addition, we expressly encourage manufacturers and
service providers to work closely with the disability community to
ensure that under-represented disability groups, and multiple
disabilities (such as deaf-blindness), are not ignored.
25. In those instances where accessibility under paragraphs (b) or
(c) of section 255 is not readily achievable, service providers and
manufacturers are required to comply with paragraph (d), which states
that they must ensure that their equipment or services are compatible
with existing specialized CPE or peripheral devices commonly used by
persons with disabilities to achieve access, if readily achievable.
26. We believe this framework will provide manufacturers and
service providers a viable means for compliance with section 255, while
promoting accessibility to the maximum extent possible. We expect that
different companies, faced with their unique circumstances, may well
come to different conclusions about deployment of accessibility
features. We believe that is a desirable outcome that will maximize the
range and depth of accessible products and services available to
customers and will capitalize on the positive forces of competition.
b. Cost of the Action Needed
27. We conclude that ``cost,'' for purposes of the ``readily
achievable'' evaluation, is the incremental amount that a manufacturer
or service provider expends to design, develop, or fabricate a product
or service to ensure that it is accessible. Although we tentatively
concluded in the NPRM that it would be appropriate to consider net
costs, taking into account such factors as the potential for recovery
of expenses from consumers through increased sales or higher product
prices, we now reject that approach for several reasons. We believe
that an assessment of market factors, such as the ability of a service
provider or manufacturer to recover its costs through price changes,
would involve speculation. Moreover, not considering market factors is
consistent with ADA precedent, and we are not convinced that there are
any factors specific to telecommunications that compel us to adopt an
interpretation of costs different from that under the ADA. We also are
persuaded that introducing cost recovery or market considerations into
the meaning of ``cost'' could defeat one of the primary purposes of
section 255--enhancing access to telecommunications equipment and
service for a population whose needs have not been addressed by the
market alone.
28. While we have concluded that we will not consider market
factors in determining what is readily achievable, we do not rule out
the ability of manufacturers and service providers to take these market
factors into account when making the decisions regarding deployment of
more significant readily achievable accessibility features throughout
its products.
29. We will permit manufacturers and service providers to consider
the cost of disability access actions for a product or service in
conjunction with the cost of other actions taken by them to comply with
these rules during a fiscal period, as proposed by a number of
commenters. We agree it may be appropriate to consider the cost of
other accessibility actions as a factor in determining whether a
measure is readily achievable. Therefore, manufacturers and service
providers may take into account the cumulative cost of all
accessibility actions over a specific fiscal period in determining
whether an action is ``readily achievable.'' We underscore, however,
that ``cumulative costs'' cannot be the only factor used by a
manufacturer or service provider to determine whether a measure is
``readily achievable.'' In particular, the ability to take into account
cumulative costs shall not permit a manufacturer or service provider to
predetermine caps or quotas on its total spending for section 255
compliance for a given fiscal period.
30. A manufacturer or service provider may consider whether
inclusion of an accessibility feature significantly will delay
production or release of a product, and therefore increase production
costs, provided that the manufacturer or service provider demonstrates
that it did in fact consider accessibility at the design stage. Of
course, the mere fact that inclusion of a feature will add time and
cost to production will not, alone, render the measure not readily
achievable.
c. Nature of the Action Needed
31. Another consideration in the ``readily achievable'' analysis is
the nature of the action needed to make equipment or service accessible
to persons with disabilities. While commenters generally have not
framed their comments in terms of ``nature of the action,'' many
address the concepts of ``fundamental alterations'' and ``technical
feasibility,'' which we believe fall within the ambit of ``nature of
the action.''
32. We agree with the Access Board found that the ``fundamental
alteration'' concept derives from the ``undue burden'' test under the
ADA and, since ``undue burden'' is a higher standard than ``readily
achievable,'' that the concept of fundamental alteration is implicit in
the readily achievable analysis. Since a covered entity must,
hypothetically, demonstrate a much more onerous burden in order to be
relieved of any obligations under the ``undue burden'' standard of the
ADA, it follows that any actions that constitute an undue burden,
including fundamental alterations, are also not ``readily achievable.''
Manufacturer or service provider is not required to install an
accessibility feature if it can demonstrate that the feature
fundamentally would alter the product.
33. 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.
34. We agree with several commenters, however, that in some rare
instances, ``technical infeasibility'' may result from legal or
regulatory constraints. We also agree with several
[[Page 63239]]
commenters that technical infeasibility encompasses not only a
product's technological limitations, but also its physical limitations.
We note, however, that manufacturers and service providers should not
make conclusions about technical infeasibility within the ``four
corners'' of a product's current design. Section 255 requires a
manufacturer or service provider to consider physical modifications or
alterations to the existing design of a product. Finally, we agree with
commenters that manufacturers and service providers cannot make bald
assertions of technical infeasibility. Any engineering or legal
conclusions that implementation of a feature is technically infeasible
should be substantiated by empirical evidence or documentation.
d. Resources of the Covered Entity
35. We conclude that we should follow the two-step analysis of a
covered entity's resources set forth by the DOJ in its ADA regulation.
Accordingly, the resources of the ``covered entity'' (i.e., the
manufacturer or service provider) first are examined. The resources of
any parent corporation or comparable entity with a legal relationship
with the manufacturer or service provider would be examined and taken
into account, unless the covered entity or parent can demonstrate why
any legal or other constraints prevent the parent's resources from
being available to the covered entity.
36. 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.
37. 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.
38. 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.
39. In the NPRM, we proposed establishing a ``rebuttable
presumption'' that reasonably-available resources are those of the
covered entity legally responsible for the equipment or service that is
subject to the requirements of section 255. After reviewing the record,
we have concluded that the better approach is to evaluate the resources
of any parent company, or comparable entity with legal obligations to
the covered entity, but permit any covered entity (or parent company)
to demonstrate why legal or other constraints prevent those resources
from being available to the covered entity.
3. Timing of Readily Achievable Assessments
40. The readily achievable obligation imposed by section 255 is
both prospective and continuing. While it is appropriate to consider
the time needed to incorporate accessibility solutions into new and
upgraded products, technological advances that present opportunities
for readily achievable accessibility enhancements can occur at any time
in a product cycle. A manufacturer's or service provider's obligation
to review the accessibility of a product or service, and add
accessibility features where readily achievable, is not limited to the
initial design stage of a product. We conclude that manufacturers and
service providers, at a minimum, must assess whether it is readily
achievable to install any accessibility features in a specific product
whenever a natural opportunity to review the design of a service or
product arises. If it is readily achievable to include an accessibility
feature during one of these natural opportunities, the manufacturer or
service provider must install the feature. Natural opportunities could
include, for example, the redesign of a product model, upgrades of
services, significant rebundling or unbundling of product and service
packages, or any other modifications to a product or service that
require the manufacturer or service provider to substantially re-design
the product or service.
4. Documentation of Readily Achievable Assessments
41. 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.
III. Services and Equipment Covered by the Rules
42. Section 255 applies to any ``manufacturer of telecommunications
equipment or customer premises equipment'' and to any ``provider of
telecommunications service.'' We conclude that, in so far as these
phrases are broadly grounded in the Communications Act, our sole task
here is to explain their application in the context of section 255. We
will, however, as explained below, assert our ancillary jurisdiction to
cover two non-telecommunications services.
a. Telecommunications and Telecommunications Service
43. Section 255(c) requires that any ``provider of
telecommunications service shall ensure that the service is accessible
to and usable by individuals with disabilities, if readily
achievable.'' Section 3 of the Act defines ``telecommunications'' as
``the transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received.'' It defines
``telecommunications service'' as ``the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used.''
44. We adopt our tentative conclusion in the NPRM that the phrases
``telecommunications'' and ``telecommunications services'' have the
general meanings set forth in the Act. Telecommunications services,
however, does include services previously classified as adjunct-to-
basic. Adjunct-to-basic services are services which literally meet the
definition of enhanced services, now called information services,
established under the Commission's rules, but which the Commission has
determined facilitate the completion of calls through utilization of
basic telephone service facilities and are included in the term
``telecommunications services.'' Adjunct-to-basic services include such
services as call waiting, speed dialing, call forwarding, computer-
provided directory assistance, call monitoring, caller identification,
call tracing, and repeat dialing.
45. We decline to expand the meaning of ``telecommunications
services'' to include information services for purposes of section 255,
as urged by some commenters. In the NPRM, we recognized that under our
interpretation of these terms, some important and widely used services,
such as voicemail
[[Page 63240]]
and electronic mail, would fall outside the scope of section 255
because they are considered information services. We conclude, however,
that we may not reinterpret the definition of telecommunications
services, either for purposes of section 255 only or for all Title II
regulation. First, we emphasize that the term ``information services''
is defined separately in the Act. As we noted in the NPRM, there was no
indication in the legislative history of the 1996 Act that Congress
intended these terms to have any different, specialized meaning for
purposes of accessibility.
b. Provider of Telecommunications Services
46. We conclude that all entities offering telecommunications
services (i.e., whether by sale or resale), including aggregators,
should be subject to section 255. An entity that provides both
telecommunications and non-telecommunications services, however, is
subject to section 255 only to the extent that it provides a
telecommunications service.
c. Telecommunications Equipment and Customer Premises Equipment
47. The Act defines ``telecommunications equipment'' as
``equipment, other than customer premises equipment, used by a carrier
to provide telecommunications services, and includes software integral
to such equipment (including upgrades).'' It defines ``customer
premises equipment'' (CPE) as ``equipment employed on the premises of a
person (other than a carrier) to originate, route, or terminate
telecommunications.''
48. In accordance with the proposal made in the NPRM, the express
statutory language, and the views of commenters, we find that
telecommunications equipment includes software integral to
telecommunications equipment. Operation of today's technologically
sophisticated telecommunications networks would be impossible without
software, and we believe that Congress' decision to expressly clarify
that software and upgrades to software are to be considered
``equipment'' acknowledges the important role played by software
products. Further, by referencing ``upgrades'' to software as
equipment, the definition expressly contemplates that stand-alone
software should be considered equipment. For these reasons, we conclude
that all software integral to telecommunications equipment is covered
by the definition, whether such software is sold with a piece of
telecommunications equipment hardware or is sold separately.
49. The statutory definition of CPE under section 3(14) of the Act
encompasses all ``equipment employed on the premises of a person (other
than a carrier) to originate, route, or terminate telecommunications.''
Although section 3(14) does not specifically reference software
integral to CPE, we find, nonetheless, that CPE includes software
integral to the operation of the telecommunications functions of the
equipment, whether sold separately or not. We note that this conclusion
is contrary to our tentative conclusion in the NPRM that software sold
separately from CPE would not fall within the definition of CPE. After
review of the record, however, we are persuaded that stand-alone
software that originates, terminates and routes telecommunications
should be deemed ``equipment'' under the CPE definition.
50. In connection with multipurpose equipment, we adopt our
tentative conclusion that customer premises equipment is covered by
section 255 only to the extent that it provides a telecommunications
function. Specifically, equipment that generates or receives an
electrical, optical or radio signal used to originate, route or
terminate telecommunications is covered, even if the equipment is
capable of providing non-telecommunications functions. We believe that
our 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.
51. Furthermore, as supported by the record, we conclude that
manufacturers will be liable under section 255 for all
telecommunications equipment and CPE to the extent that such equipment
provides a telecommunications function. In those instances, where a
piece of equipment undergoes substantial modifications after its sale,
however, we agree with those commenters who argue that it would be
unfair to hold the manufacturer liable under section 255. In those
instances, which we expect to be infrequent, manufacturers shall bear
the burden of proving, by a preponderance of the evidence, that a piece
of equipment has undergone substantial modifications after its sale.
d. Manufacturer
52. The Act does not define ``manufacturer of telecommunications or
customer premises equipment.'' The Access Board guidelines define a
``manufacturer'' as an entity ``that sells to the public or to vendors
that sell to the public; a final assembler.'' This approach, according
to the Access Board, would generally cover ``the final assembler of
separate subcomponents; that is, the entity whose brand name appears on
the product.'' In the NPRM, the Commission proposed to adopt a
definition of ``manufacturer'' based upon the Access Board guidelines.
53. 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.
54. We do not intend this definition to include those who simply
sell or distribute a product manufactured by another entity. Nor do we
extend the concept of manufacturer to anyone who might modify the
equipment before sale to the public. We do not believe as a general
matter that retailers, wholesalers, and other post-manufacturing
distribution entities can be considered manufacturers who have
accessibility obligations under the Act.
55. As supported by the record, we adopt our tentative conclusion
to construe section 255 to apply to all manufacturers offering
equipment for use in the United States, regardless of their location or
national affiliation. Exempting foreign manufacturers would
disadvantage American manufacturers, and would deny the American public
the full protection section 255 offers.
e. Voicemail and Interactive Menus
56. The record has convinced us that in order for us to carry out
meaningfully the accessibility requirements of section 255,
requirements comparable to those under section 255 should apply to two
information services that are critical to making telecommunications
accessible and usable by people with disabilities. We assert ancillary
jurisdiction to extend these accessibility requirements to the
providers of voicemail and interactive menu service and to the
manufacturers of the equipment that
[[Page 63241]]
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.
57. We decline to extend accessibility obligations to any other
information services. While some commenters have argued that there is
an overwhelming need for all information services to be accessible to
people with disabilities, we assess the record differently, and use our
discretion to reach only those services we find essential to making
telecommunications services accessible. Unlike voicemail and
interactive menus, other information services discussed by commenters
do not have the potential to render telecommunications services
themselves inaccessible. Therefore, we decline to exercise our
ancillary jurisdiction over those additional services. Many of these
other services are alternatives to telecommunications services, but not
essential to their effective use. For example, e-mail, electronic
information services, and web pages are alternative ways to receive
information which can also be received over the phone using
telecommunications services. In contrast, inaccessible and unusable
voicemail and interactive menus operate in a manner that can render the
telecommunications service itself inaccessible and unusable.
IV. Enforcement of Section 255
58. Damages. 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
section 255(f)'s preclusion of private rights of action deprives the
Commission of any authority to entertain requests for damages by or on
behalf of individual complainants.
59. 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. 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. While we will
view retrofitting as an extreme remedy to be used in egregious cases of
willful misconduct, we nevertheless believe that the prospect of such
action will serve as a major deterrent to willful and repeated
violations of the Act and our rules.
60. We adopt our tentative conclusion in the NPRM that we should
encourage consumers to express informally their concerns or grievances
about a product to the manufacturer or supplier who brought the product
to market before complaining to the Commission. We believe that this
policy should apply with equal force to grievances or concerns relating
to service providers. We fully expect that many accessibility-related
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 a complaint
could be filed with the Commission. Under our section 208 rules,
consumers are encouraged but not required to contact the carrier in
advance of filing an informal complaint. 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 opposing party prior to filing of the complaint. We
conclude that this model is also appropriate for section 255 formal
complaints.
61. 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 e-mail, audio-cassette recording, and braille.
62. Content. 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 e-mail, audio-cassette, braille, or
another method that will provide effective communication with the
complainant.
63. 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. 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.
64. 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.
65. Designation of Contacts/Agents. We 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.
66. 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 the effective date of the rules adopted herein.
67. 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
[[Page 63242]]
to acknowledge such receipt and discuss how the company intends to
proceed with its handling of the complaint. 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.
68. 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.
69. 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 should be shortened to 15
days while others favor a longer period of 60-90 days. 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.
70. Applicability of Secs. 1.720 through 1.736 of the rules. 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 Secs. 1.720 through 1.736 of our rules.
71. We conclude that the existing accelerated dispute 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 review.
72. Eligibility Requirements. Not all accessibility disputes raised
in the context of formal complaints will be appropriate for handling
under these accelerated procedures. Therefore, we adopt the following
requirements that a complainant must satisfy in requesting accelerated
resolution of its complaint:
First, 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.
Second, 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;
Third, the complainant must have given prior advance
notice to the manufacturer or service provider of its intention to file
a formal complaint; and
Fourth, 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.
73. Accelerated Dispute Resolution Procedures. Any person with a
disability or entity acting on behalf of any such person who satisfies
the above-listed conditions may submit its formal complaint, along with
a request for accelerated dispute resolution, to the Common Carrier
Bureau's Enforcement Division. 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
Secs. 1.721 through 1.724 of our rules and (2) a representation by the
complainant that the conditions specified in Sec. 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 settlement
negotiations between the parties.
74. Decisions Issued in Accelerated Proceedings. We adopt a 60-day
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 60-day period.
75. 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; (2) the
product or service is in fact accessible; or (3) accessibility is not
readily achievable. We noted that while the first two defenses are
relatively straightforward, the readily achievable defense is complex.
We therefore proposed to use the Access Board Guidelines applicable to
manufacturers as examples of the kinds of compliance measures we would
consider in this regard.
76. While we believe some weight should be given to evidence that a
respondent made good faith efforts to comply with section 255, 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 case-by-
case basis, 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.
77. Time Limit for Filing Complaints. We decline to adopt either
the 6-month or 1-year 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 2-years 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.
78. 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.
[[Page 63243]]
79. We do not agree with the claim by certain commenters that the
five-month complaint resolution deadline imposed on the Commission
under section 208(b) of the Act is also applicable to all complaints
alleging violations of section 255.
80. 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 provider's
tariff or that would have been included in the service provider's
tariff but for our forbearance policies.
81. We conclude that our existing rules governing confidential
materials adequately address the concerns raised by the commenters and,
therefore, do not adopt the additional requirements proposed in the
NPRM. As an initial matter, we note that we do not anticipate that
confidentiality issues will arise frequently in informal section 255
complaint proceedings. 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 Secs. 0.457
through 0.459 of our rules by clearly designating the information as
confidential or proprietary at the time it is submitted to the
Commission.
82. Formal complaints filed against common carriers pursuant to
Secs. 1.720 through 1.736 of our rules are classified as ``restricted''
proceedings under our ex parte rules. This ``restricted'' designation,
as with other proceedings not designated as exempt or permit-but-
disclose, expressly prohibits ex parte presentations in these
adjudicatory proceedings from any source. Formal section 255 complaints
filed against manufacturers or service providers shall be similarly
treated as restricted proceedings.
83. We emphasize that to the extent that compliance issues or
problems requiring regulatory intervention are perceived by the staff
during the processing of an accessibility-related 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 rules. We reject the suggestion
by certain commenters that we establish specific guidelines for
initiating investigations and other section 255 enforcement actions on
our own motion.
84. 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 of 1973, as amended.
The Commission's rules implementing these responsibilities are set
forth at 47 CFR 1.1801 through 1.1870. These requirements apply to the
Commission's enforcement provisions and activities. 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 CFR 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 Secs. 1.1801 through 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.
V. Additional Implementation and Enforcement Measures
85. 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 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.
86. 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
such as the establishment of a clearinghouse for current information
regarding telecommunications disabilities issues, including product
accessibility information, and accessibility solutions.
87. We find that modifying the current equipment 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.
88. 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.
VI. Procedural Matters
A. Final Regulatory Flexibility Analysis
89. As required by the Regulatory Flexibility Act (RFA), an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice
of Proposed Rulemaking issued in this proceeding. The Commission sought
written public comments on the proposals included in the Notice,
including comment on the IRFA. This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.
1. Need for and Objectives of the Report and Order and Rules Adopted
Therein
90. This rulemaking proceeding was initiated to propose means of
implementing and enforcing section 255 of the Communications Act, as
added by the Telecommunications Act of 1996. 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.
[[Page 63244]]
91. 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 (ADA). 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.
92. 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 ``fast-
track'' process for resolving accessibility complaints informally and
quickly and more conventional remedial processes for cases where fast-
track 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 accessibility obligations
under section 255. In the accompanying Report and Order we have made
the following decisions.
(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;
(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;
(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
(4) We have adopted enforcement rules patterned after our long-
standing 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.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
93. 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, the
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 of performing an assessment as to whether an
accessibility feature is readily achievable is unduly burdensome on
small entities.
94. We 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 this rulemaking on small entities.'' Lucent's
comments question the apparent conflict between Sec. 1193.43 of the
Access Board's Guidelines and Sec. 68.317 of the Commission's rules
dealing with telephone volume control standards, especially in view of
the Commission's tentative conclusion in the Notice that the Access
Board's Guidelines do not overlap, duplicate or conflict with existing
Commission Rules. Motorola comments that the Fast Track process imposes
a substantial information collection requirement on manufacturers at
each decisional point in the product design, development and
fabrication process. Both Motorola and TIA contend that the cost of
this information collection requirement should be considered as part of
the readily achievable analysis. We believe that the information
collection requirement on manufacturers has been minimized by the
implementation of informal complaint procedures.
C. Description and Estimate of the Number of Small Entities to Which
the Rules Adopted in the Report and Order Will Apply
93. 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 Report 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 jurisdiction.'' In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act. A small business concern is one 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 (SBA). A small organization is
generally ``any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field.'' Nationwide, as of
1992, there were approximately 275,801 small organizations.
96. The 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
radio service (CMRS) providers. To the extent that software performs a
telecommunication function, software developers or manufacturers may
also be affected. We have described and estimated the number of small
entity licensees and other covered entities that may be affected by the
rules adopted in the Report and Order.
97. Equipment Manufacturers. The following chart contains estimated
numbers of domestic entities that may be affected by the rules
promulgated in this proceeding. It is based, in part, on firm counts
that reflect product lines not involved in telecommunications, as
defined by the 1996 Act, and reflects overlapping firm counts and firm
counts that have been deliberately commingled to avoid disclosing the
value of individual firms' equipment shipments for the reporting
period.
------------------------------------------------------------------------
Estimated
Product class/code Product description firm
count
------------------------------------------------------------------------
3571...................... Personal computer, terminals and 546
workstations.
3661...................... Telephone and telegraph equipment 540
3663...................... Communications systems and 938
equipment.
[[Page 63245]]
3577...................... Computer peripheral equipment, 259
not elsewhere classified.
3577...................... Parts and subassemblies for 72
computer peripherals and input/
output equipment.
------------------------------------------------------------------------
98. Software Manufacturers. We sought comment in the IRFA on the
impact of our proposed rules on the small businesses within this
industrial category. No comments on this issue were forthcoming. The
SBA has two small business size standard to be used for software
publishers: (1) Entities that design, develop or produce prepackaged
software have a size standard of $18 million in average annual
revenues; and, (2) entities that sell existing, off-the-shelf
prepackaged software as a finished product have a size standard of 500
employees or less. According to the Software Information Industry
Association (SIIA), there are approximately 8,000 publishers of
packaged software. Of these 8,000, we estimate that only about 500 are
involved in the production of software specific to telecommunications.
We do not have information on the number of these publishers 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 software publishers that would qualify as small
business concerns under the SBA definition. Consequently, we estimate
that there are equal to or fewer than 500 telecommunications software
publishers that will be affected by section 255.
99. Telecommunications Service Entities. The United States Bureau
of the Census reports that, at the end of 1992, there were 3,497 firms
engaged in providing telephone services for at least one year. This
number contains a variety of different categories of carriers,
including LECs, IXCs, CAPs, cellular carriers, other mobile service
carriers, operator service providers, pay telephone providers, personal
communications services (PCS) providers, covered specialized mobile
radio (SMR) providers, and resellers. In the IRFA, we noted that some
of those 3,497 telephone service firms may not qualify as small
entities or small incumbent LECs because they are not ``independently
owned and operated.'' As an example, we cited a PCS provider that is
affiliated with an IXC having more than 1,500 employees and tentatively
concluded that fewer than 3,497 telephone service firms are small
entity telephone service firms or small incumbent LECs.
100. According to the Telecommunications Industry Revenue:
Telecommunications Relay Service Fund Worksheet Data (TRS Worksheet),
there are 3,604 interstate carriers. These carriers include, inter
alia, LECs, wireline carriers and service providers, IXCs, CAPs,
operator service providers, pay telephone providers, providers of
telephone toll service, providers of telephone exchange service, and
resellers. In the IRFA we sought information regarding how many
providers of telecommunications services, existing and potential, are
considered small businesses. We did not receive comment on this issue,
so we conclude that this data is acceptable to the industry. We noted
that the SBA has defined a small business for Radiotelephone
Communications (SIC 4812) and Telephone Communications, Except
Radiotelephone (SIC 4813), as a small entities having no more than
1,500 employees, and sought comment as to whether this definition is
appropriate for our purposes here. Additionally, we requested that each
commenter identify whether it is a small business under this definition
and, if a subsidiary of another entity, provide this information for
both itself and its parent corporation or entity.
101. Wireline Carriers and Service Providers. The Census Bureau
reports that there were 2,321 such telephone companies in operation for
at least one year at the end of 1992. According to the SBA definition,
a small business telephone company other than a radiotelephone company
is one employing no more than 1,500 persons. All but 26 of the 2,321
non-radiotelephone companies listed by the Census Bureau were reported
to have fewer than 1,000 employees.
102. Thus, even if all 26 of those companies had more than 1,500
employees, there would still be 2,295 non-radiotelephone companies that
might qualify as small entities or small incumbent LECs. We noted in
the IRFA that we did not have information regarding which of these
carriers are not independently owned and operated, and thus were unable
to estimate with greater precision the number of wireline carriers and
service providers that would qualify as small business concerns under
the SBA definition. Consequently, we estimated that there are fewer
than 2,295 small telephone communications companies other than
radiotelephone companies.
103. Incumbent Local Exchange Carriers. Neither the Commission nor
the SBA has developed a definition for small providers of local
exchange services. The closest applicable definition under the SBA
rules is for telephone communications companies other than
radiotelephone (wireless) companies. The most reliable source of
information of which we are aware regarding the number of LECs
nationwide appears to be the data that we collect annually in
connection with the TRS Worksheet. According to our most recent data,
1,410 companies reported that they were engaged in the provision of
local exchange services. Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 employees, we are unable at this time to estimate with greater
precision the number of LECs that would qualify as small business
concerns under the SBA definition. Consequently, we estimate that there
are equal to or fewer than 1,410 small incumbent LECs. Because the
small incumbent LECs subject to these rules are either dominant in
their field of operations or are not independently owned and operated,
they would be excluded from the definition of ``small entity'' and
``small business concern,'' consistent with our prior practice.
104. Interexchange Carriers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of interexchange services. The closest applicable definition
under the SBA rules is for telephone communications companies except
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of IXCs nationwide is the data that we
collect annually in connection with the TRS Worksheet. According to our
most recent data, 151 companies reported that they were engaged in the
provision of interexchange services. We do not have information on the
number of these carriers that are not independently owned and operated,
or have more than 1,500 employees, and thus we are unable at this time
to estimate with greater precision the number of IXCs that would
qualify as small business concerns under the SBA definition.
Consequently, we estimate that there are equal to or fewer than 151
small entity IXCs.
105. Competitive Access Providers and Competitive Local Exchange
Carriers. Neither the Commission nor SBA has developed a definition of
small entities specifically applicable to providers of competitive
access services (CAPs) and competitive local exchange
[[Page 63246]]
carriers (CLECs). The closest applicable definition under the SBA rules
is for telephone communications companies except radiotelephone
(wireless) companies. The most reliable source of information regarding
the number of CAPs and CLECs nationwide is the data that we collect
annually in connection with the TRS Worksheet. According to our most
recent data, 129 companies reported that they were engaged in the
provision of competitive access services. We do not have information on
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 CAPs and
CLECs that would qualify as small business concerns under the SBA
definition. Consequently, we estimate that there are equal to or fewer
than 129 small CAPs and CLECs.
106. Operator Service Providers. Carriers engaged in providing
interstate operator services from aggregator locations (OSPs) currently
are required under section 226(b)(1)(D) of the Communications Act of
1934, as amended, 47 U.S.C. S 226, to ensure that each aggregator for
which such provider is the presubscribed OSP is in compliance with the
posting required of such aggregator. OSPs also are required under
section 226 to file and maintain informational tariffs at the
Commission. The number of such tariffs on file appears to be the most
reliable source of information of which we are aware regarding the
number of OSPs nationwide, including small business concerns, that will
be affected by decisions and rules adopted in this Second Report and
Order. As of July 12, 1999, approximately 760 carriers had
informational tariffs on file at the Commission. The SBA has developed
a definition of small entities for telecommunications companies other
than radiotelephone (wireless) companies (Telephone Communications,
Except Radiotelephone). According to the SBA's definition, a small
business telephone company other than a radiotelephone company is one
employing no more than 1,500 persons. Although it seems certain that
some of these entities are not independently owned and operated, or
have more than 1,500 employees, we are unable at this time to estimate
with greater precision the number of OSPs that would qualify as small
business concerns under SBA's definition. Consequently, we estimate
that there are fewer than 760 small entity OSPs that may be affected by
the decisions and rules adopted in this Report and Order.
107. Pay Telephone Providers. Neither the Commission, nor SBA has
developed a definition of small entities specifically applicable to pay
telephone providers. The closest applicable definition under SBA rules
is for telephone communications companies except radiotelephone
(wireless) companies. The most reliable source of information regarding
the number of pay telephone providers nationwide is the data that we
collect annually in connection with the TRS Worksheet. According to our
most recent data, 509 companies reported that they were engaged in the
provision of pay telephone services. We do not have information on 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 pay telephone providers
that would qualify as small business concerns under SBA definition.
Consequently, we estimate that there are equal to or fewer than 509
small pay telephone providers.
108. Resellers (Including Debit Card Providers). Neither the
Commission, nor SBA has developed a definition of small entities
specifically applicable to resellers. The closest applicable SBA
definition for a reseller is a telephone communications company except
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of resellers nationwide is the data
that the Commission collects annually in connection with the TRS
Worksheet. According to our most recent data, 369 companies report that
they are engaged in the resale of telephone service. We do not have
information on the number of these carriers that are not independently
owned and operated, or have more than 1,500 employees, and thus we are
unable at this time to estimate with greater precision the number of
resellers that would qualify as small entities or small incumbent LEC
concerns under the SBA definition. Consequently, we estimate that there
are equal to or fewer than 369 small entity resellers.
109. 800 and 800-Like Service Subscribers. Neither the Commission,
nor the SBA has developed a definition of small entities specifically
applicable to 800 and 800-like service (``toll free'') subscribers. The
most reliable source of information regarding the number of these
service subscribers appears to be data the Commission collects on the
800, 888, and 877 numbers in use. According to our most recent data, at
the end of January 1999, the number of 800 numbers assigned was
7,692,955; the number of 888 numbers that had been assigned was
7,706,393; and the number of 877 numbers assigned was 1,946,538. We do
not have data specifying the number of these subscribers 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 toll free subscribers that would qualify as small business
concerns under the SBA's definition. Consequently, we estimate that
there are fewer than 7,692,955 small entity 800 subscribers, fewer than
7,706,393 small entity 888 subscribers, and fewer than 1,946,538 small
entity 877 subscribers.
110. International Service Providers. The Commission has not
developed a definition of small entities applicable to licensees in the
international services. Therefore, the applicable definition of small
entity is the definition under the SBA rules applicable to
Communications Services, Not Elsewhere Classified (NEC). This
definition provides that a small entity is one with $11.0 million or
less in average annual receipts. According to the Census Bureau, there
were a total of 848 communications services, NEC, in operation in 1992,
and a total of 775 had annual receipts of less than $9.999 million. The
Census report does not provide more precise data. Many of these
services do not have specified uses and it is uncertain, at this point
in time, whether they will ultimately provide telecommunications
services.
111. International Public Fixed Radio (Public and Control
Stations). Commission records show there are 3 licensees in this
service. We do not request or collect annual revenue information, and
thus are unable to estimate the number of international public fixed
radio licensees that would constitute a small business under the SBA
definition. Consequently, we estimate that there are equal to or fewer
than 3 small entities that are international public fixed radio
licensees.
112. Fixed Satellite Transmit/Receive Earth Stations and Fixed
Satellite Small Transmit/Receive Earth Stations. Based on actual
payments, there are approximately 3,100 earth station authorizations, a
portion of which are Fixed Satellite Transmit/Receive Earth Stations
and a portion of which are Fixed Satellite Small Transmit/Receive Earth
Stations. We do not request or collect annual revenue information, and
thus are unable to estimate the number of the earth stations of either
category that would be owned by a small
[[Page 63247]]
business under the SBA definition. Consequently, we estimate that there
are equal to or fewer than 3,100 small entities that hold such
authorizations.
113. Fixed Satellite Very Small Aperture Terminal (VSAT) Systems.
These stations operate on a primary basis, and frequency coordination
with terrestrial microwave systems is not required. Thus, a single
``blanket'' application may be filed for a specified number of small
antennas and one or more hub stations. The Commission has processed 377
applications. We do not request or collect annual revenue information,
and thus are unable to estimate the number of VSAT systems that would
be owned by a small business under the SBA definition. Consequently, we
estimate that there are equal to or fewer than 377 small entities that
hold such authorizations.
114. Mobile Satellite Earth Stations. There are 11 licensees. We do
not request or collect annual revenue information, and thus are unable
to estimate whether either of these licensees would constitute a small
business under the SBA definition. Consequently, we estimate that there
are 11 or less small entities that hold such licenses.
115. Space Stations (Geostationary). There are 43 space station
licensees. We do not request or collect annual revenue information, and
thus are unable to estimate the number of geostationary space stations
that would be owned by a small business under the SBA definition.
Consequently, we estimate that there are equal to or fewer than 43
small entities that hold such licenses.
116. Space Stations (Non-Geostationary). There are twelve Non-
Geostationary Space Station licensees, of which only two systems are
operational. We do not request or collect annual revenue information,
and thus are unable to estimate the number of non-geostationary space
stations that would be owned by a small business under the SBA
definition. Consequently, we estimate that there are twelve or less
small entities that hold such licenses.
117. Mobile Satellite Services (MSS). Mobile Satellite Services or
Mobile Satellite Earth Stations are intended to be used while in motion
or during halts at unspecified points. These stations operate as part
of a network that includes a fixed hub or stations. The stations that
are capable of transmitting while a platform is moving are included
under section 20.7(c) of the Commission's rules as mobile services
within the meaning of sections 3(27) and 332 of the Communications Act.
Those MSS services are treated as CMRS if they connect to the Public
Switched Network (PSN) and also satisfy other criteria in Section 332.
Facilities provided through a transportable platform that cannot move
when the communications service is offered are excluded from section
20.7(c) of the rules.
118. The MSS networks may provide a variety of land, maritime and
aeronautical voice and data services. There are eight mobile satellite
licensees. At this time, we are unable to make a precise estimate of
the number of small businesses that are mobile satellite earth station
licensees and could be considered CMRS providers of telecommunications
service. Consequently, we estimate that there eight or less small
entities that hold such licenses.
119. Wireless Telecommunications Service Providers. The Commission
has not yet developed a definition of small entities with respect to
the provision of CMRS services. Therefore, for CMRS providers not
falling within any other established SBA category (i.e., Radiotelephone
Communications or Telephone Communications, Except Radiotelephone), the
applicable definition of a small entity would be the SBA definition
applicable to the ``Communications Services, Not Elsewhere
Classified.'' This definition provides that a small entity is one with
$11.0 million or less in average annual receipts. The Census Bureau
estimates indicate that of the 848 firms in the ``Communications
Services, Not Elsewhere Classified'' category, 775 are small
businesses. It is not possible to predict which of these would be small
entities (in absolute terms or by percentage) or to classify the number
of small entities by particular forms of service.
120. Cellular Radio Telephone Service. The Commission has not
developed a definition of small entities specifically applicable to
cellular licensees. Therefore, the applicable definition of a small
entity is the SBA definition applicable to radiotelephone companies,
which provides that a small entity is a radiotelephone company
employing no more than 1,500 persons. The size data provided by SBA do
not enable us to make a meaningful estimate of the number of cellular
providers that are small entities because it combines all
radiotelephone companies with 500 or more employees. We therefore have
used the 1992 Census of Transportation, Communications, and Utilities,
conducted by the Bureau of the Census, which is the most recent
information available. That census shows that only 12 radiotelephone
firms out of a total of 1,178 such firms operating during 1992 had
1,000 or more employees. Therefore, even if all 12 of these large firms
were cellular telephone companies, all of the remainder would be small
businesses under the SBA definition.
121. There are presently 1,758 cellular licenses. However, the
number of cellular licensees is not known, since a single cellular
licensee may own several licenses. In addition, we note that there are
1,758 cellular licenses; however, a cellular licensee may own several
licenses. In addition, according to the most recent Telecommunications
Industry Revenue data, 732 carriers reported that they were engaged in
the provision of either cellular service or Personal Communications
Service (PCS) services, which are placed together in the data. We do
not 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.
122. 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 million in the three previous
calendar years. 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 years. These regulations
defining ``small entity'' in the context of broadband PCS auctions have
been approved by the SBA. No small businesses within the SBA-approved
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 won
approximately 40% of the 1,479 licenses for Blocks D, E, and F. 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
[[Page 63248]]
as defined by the SBA and the Commission's auction rules.
123. Narrowband PCS. 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 SBA-approved definition for radiotelephone
companies. At present, there have been no auctions held for the major
trading area (MTA) and basic trading area (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
licenses will be awarded to small entities, as that term is defined by
the SBA.
124. Specialized Mobile Radio. Pursuant to section 90.814(b)(1) of
the Commission's Rules, 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 been approved by SBA. The 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.
125. 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 geographic area SMR licensees affected by the rules promulgated in
the Report and Order includes these 60 small entities.
126. 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 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.
127. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II 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 radiotelephone company employing no
more than 1,500 persons. According to the Bureau of the Census, only 12
radiotelephone firms out of a total of 1,178 such firms which operated
during 1992 had 1,000 or more employees. Therefore, if this general
ratio continues in 1999 in the context of Phase I 220 MHz licensees, we
estimate that nearly all such licensees are small businesses under the
SBA's definition.
128. 220 MHz Radio Service--Phase II Licensees. The Phase II 220
MHz service is a new service, and is subject to spectrum auctions. In
the 220 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 bidding credits and
installment payments. 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 gross revenues that are not more than $3 million for the
preceding three years. The SBA has approved these definitions. An
auction of Phase II licenses commenced on September 15, 1998, and
closed on October 22, 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 II licenses won at auction. A re-auction of the
remaining, unsold licenses was completed on June 30, 1999, wherein 222
of the remaining licenses were sold, but have yet to be licensed.
129. Paging. To ensure the more meaningful participation of small
business entities in the auctions, the Commission adopted a two-tiered
definition of small businesses in the Paging Second Report and 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 three preceding years of not more than $15 million. In
December 1998, the Small Business Administration approved the two-
tiered size standards for paging services set forth in the Second
Report and Order.
130. 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 1998, there were
more than 600 paging companies in the United States. 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 1998. 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
[[Page 63249]]
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.
131. Nationwide Geographic Area Licenses. The partitioning and
disaggregation rules pertaining to nationwide geographic area licenses
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 gross revenues in excess of $15 million for the three
years preceding 1998. 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
disaggregation as a means to obtain a paging license from a nationwide
geographic area licensee.
132. Air-Ground Radiotelephone Service. The Commission has not
adopted a definition of small business specific to the Air-Ground
Radiotelephone Service, which is defined in Section 22.99 of the
Commission's rules. Accordingly, we will use the SBA definition
applicable to radiotelephone companies, i.e., an entity employing no
more than 1,500 persons. There are approximately 100 licensees in the
Air-Ground Radiotelephone Service, and we estimate that almost all of
them qualify as small under the SBA definition.
133. 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, which is a new service. 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
exceeding $40 million for the three preceding years. Additionally,
small entities are those which together with their affiliates and
controlling principals, have average gross revenues for the three
preceding years of more than $40 million but not more than $75 million.
This definition has been approved by the SBA. 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.
134. Rural Radiotelephone Service. 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 Exchange Telephone Radio Systems (BETRS). Thus, we will use
the SBA's definition applicable to radiotelephone companies, i.e., an
entity employing no more than 1,500 persons. 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.
135. 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 of $15
million for each of the three preceding years. 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.
136. 39 GHz Band. In the 39 GHz 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 employing
no more than 1,500 persons. 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
of 1,178 such firms which operated during 1992 had 1,000 or more
employees. Therefore, a majority of 39 GHz entities providing
radiotelephone services could be small businesses under the SBA
definition, and we assume, for purposes of our evaluation here, that
nearly all of the 39 GHz licensees will be small entities, as that term
is defined by the SBA.
D. Summary of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
137. 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 with 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 on-
going, disciplined, and systematic effort to provide the greatest level
of accessibility.
138. 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
[[Page 63250]]
compliance with section 255 and our rules. 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. 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 Commission staff. We proposed this
requirement in the Notice, and it received universal support among the
commenters.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities Consistent with Stated Objectives, and Significant
Alternatives Considered
139. 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 of performing
an assessment as to whether an accessibility feature is readily
achievable is unduly burdensome on small entities.
140. As early as the Notice of Inquiry, we sought comment on three
possible approaches for implementing and enforcing the provisions of
section 255: (1) Case-by-case determinations; (2) guidelines or a
policy statement; or (3) rules setting forth procedural or performance
requirements intended to promote accessibility. The Notice focused
principally on procedural requirements as a practical, common sense
means to ensure that consumers with disabilities would have access to
telecommunications services and equipment. In the Notice we considered
using case-by-case 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.
141. 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 case-by-case
determinations in complaint proceedings and lend some predictability to
the process, we tentatively decided that, in order for accessibility to
be addressed in a pro-active 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 case-by-case determinations as a
means of implementing section 255 would not be sufficiently diminished
by the adoption of guidelines or a policy statement.
142. 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.
143. As a result of our tentative decision to rely primarily on
procedural rules, we took several steps in the Notice to minimize the
burdens on all regulated entities. First, we sought to provide
incentives to industry for early and on-going 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 self-assessment, 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 language within the
telecommunications context. Third, we proposed a two-phase process for
dealing with section 255 consumer complaints. In the first phase, which
we referred to as the ``fast-track,'' 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 business
days to address the problem. Where fast-track efforts failed to produce
a satisfactory solution, we proposed to apply complaint processes
similar to those used in section 208 complaint proceedings.
144. Although we initially viewed the ``fast-track'' process as an
efficient, consumer-friendly means of dealing with problems associated
with accessibility compliance, parties representing both consumer and
industry interests criticized the proposed mandatory ``fast-track''
mechanism as burdensome and confusing and agreed that our section 208
processes provide an appropriate model for section 255 enforcement.
Hence, in the Report and Order, we decided to abandon the 5-day ``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.
145. Under 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 existing section 208 complaint rules.
146. As outlined 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 during the design process.
147. 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
[[Page 63251]]
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.
148. 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 Regulatory Enforcement Fairness Act of 1996. In
addition, the Commission will forward a copy of the Report and Order,
including this FRFA, to the Chief Counsel for Advocacy for the Small
Business Administration. A copy of the Report and Order and FRFA (or
summaries thereof) will also be published in the Federal Register.
VII. Paperwork Reduction Act
149. The decision herein has been analyzed with respect to the
Paperwork Reduction Act of 1995, Public Law 104-13, and the Office of
Management and Budget (``OMB'') has approved some of its information
collection requirements in OMB No. 3060-0833, dated August 4, 1998.
This Order also contains some modified information collection. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public to comment on the information
collection contained in the Order as required by the Paperwork
Reduction Act of 1995, public law 104-13. Public and agency comments
are due December 20, 1999. Comments should address: (a) Whether the
modified collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the
Commission's burden estimates; (c) ways to enhance the quality,
utility, and the clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
VIII. Ordering Clauses
150. 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 ADOPTED.
151. It is ordered That 47 C.F.R. part 1 is revised, and parts 6
and 7 are added as set forth below.
152. It is ordered That the Commission's Office of Public affairs
SHALL SEND 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 Regulatory Flexibility Act 5
U.S.C. 601, et seq.
153. The Report and Order IS ADOPTED, and the requirements
contained herein will become effective January 28, 2000, expect for
Secs. 6.18 and 7.18, which will become effective upon approval of OMB
of the modified information requirements contained herein. Notice of
that approval will be published in the Federal Register.
List of Subjects in 47 CFR Part 1, 6 and 7
Communications equipment, Individuals with disabilities,
Telecommunications.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR chapter I as set forth below:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 is revised to read as follows:
Authority: 47 U.S.C. 1, 154(i), 154 (j), 208, and 255.
2. Section 1.1202 is amended by revising paragraph (d)(2) to read
as follows:
Sec. 1.1202 Definitions.
* * * * *
(d) * * *
(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 Sec. 1.721 or 47 U.S.C. 255
and either Secs. 6.17 or 7.17 of this chapter, 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 Sec. 1.721 or 47 U.S.C. 255 and
either Secs. 6.17 or 7.17 of this chapter;
* * * * *
3. Section 1.1204 is amended by revising paragraph (b)(5) to read
as follows:
Sec. 1.1204 Example ex parte presentations and proceedings.
* * * * *
(b) * * *
(5) An informal complaint proceeding under 47 U.S.C. 208 and
Sec. 1.717 of this chapter or 47 U.S.C. 255 and either Secs. 6.17 or
7.17 of this chapter; and
* * * * *
4. Add part 6 to read as follows:
PART 6--ACCESS TO TELECOMMUNICATIONS SERVICE, TELECOMMUNICATIONS
EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT BY PERSONS WITH
DISABILITIES
Subpart A--Scope--Who Must Comply With These Rules?
6.1 Applicability.
Subpart B--Definitions
6.3 Definitions.
Subpart C--Obligations--What Must Covered Entities Do?
6.5 General obligations.
6.7 Product design, development and evaluation.
6.9 Information pass through.
6.11 Information, documentation and training.
Subpart D--Enforcement
6.15 Generally.
6.16 Informal or formal complaints.
6.17 Informal complaints; form and content.
6.18 Procedure; designation of agents for service.
6.19 Answers to informal complaints.
6.20 Review and disposition of informal complaints.
6.21 Formal complaints, applicability of Secs. 1.720 through 1.736
of this chapter.
6.22 Formal complaints based on unsatisfied informal complaints.
6.23 Actions by the Commission on its own motion.
Authority: 47 U.S.C. 154(i), 154(j), 208, 255.
Subpart A--Scope--Who Must Comply With These Rules?
Sec. 6.1 Applicability.
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.
[[Page 63252]]
Subpart B--Definitions
Sec. 6.3 Definitions.
(a) The term accessible shall mean that:
(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.
(vii) Operable with a Prosthetic Device. Controls shall be operable
without requiring body contact or close body proximity.
(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.
(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.
(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.
(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.
(viii) Non-interference with hearing technologies. Reduce
interference to hearing technologies (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.
(b) The term compatibility shall mean compatible with peripheral
devices and specialized customer premises equipment commonly used by
individuals with disabilities to achieve accessibility to
telecommunications services, and in compliance with the following
provisions, as applicable:
(1) External electronic access to all information and control
mechanisms. Information needed for the operation of products (including
output, alerts, icons, on-line help, and documentation) shall be
available in a standard electronic text format on a cross-industry
standard port and all input to and control of a product shall allow for
real time operation by electronic text input into a cross-industry
standard external port and in cross-industry standard format. The
cross-industry standard port shall not require manipulation of a
connector by the user.
(2) Connection point for external audio processing devices.
Products providing auditory output shall provide the auditory signal at
a standard signal level through an industry standard connector.
(3) TTY connectability. Products which provide a function allowing
voice communication and which do not themselves provide a TTY
functionality shall provide a standard 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.
(4) TTY signal compatibility. Products, including those providing
voice communication functionality, shall support use of all cross-
manufacturer non-proprietary standard signals used by TTYs.
(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.
(d) The term disability shall mean a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual; a record of such an impairment; or being regarded as
having such an impairment.
(e) The term manufacturer shall mean an entity that makes or
produces a product.
(f) The term peripheral devices shall mean devices employed in
connection with equipment covered by this part to translate, enhance,
or otherwise transform telecommunications into a form accessible to
individuals with disabilities.
(g) The term readily achievable 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:
(1) The nature and cost of the action needed;
(2) The overall financial resources of the manufacturer or service
provider involved in the action (the covered entity); the number of
persons employed by such manufacturer or service provider; the effect
on expenses and resources, or the impact otherwise of such action upon
the operations of the manufacturer or service provider;
(3) If applicable, the overall financial resources of the parent of
the entity; the overall 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
(4) If applicable, the type of operation or operations of the
covered entity, including the composition, structure and functions of
the workforce of such entity; and the geographic separateness,
administrative or fiscal relationship of the covered entity in question
to the parent entity.
(h) The term specialized customer premises equipment shall mean
[[Page 63253]]
customer premise equipment which is commonly used by individuals with
disabilities to achieve access.
(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).
(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.
(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.
Subpart C--Obligations--What Must Covered Entities Do?
Sec. 6.5 General obligations.
(a) Obligation of Manufacturers. (1) A manufacturer of
telecommunications equipment or customer premises equipment shall
ensure that the equipment is designed, developed and fabricated so that
the telecommunications functions of the equipment are accessible to and
usable by individuals with disabilities, if readily achievable.
(2) Whenever the requirements of paragraph (a)(1) of this section
are not readily achievable, the manufacturer shall ensure that the
equipment is compatible with existing peripheral devices or specialized
customer premises equipment commonly used by individuals with
disabilities to achieve access, if readily achievable.
(b) Obligation of Service Providers. (1) A provider of a
telecommunications service shall ensure that the service is accessible
to and usable by individuals with disabilities, if readily achievable.
(2) Whenever the requirements of paragraph (b)(1) of this section
are not readily achievable, the service provider shall ensure that the
service is compatible with existing peripheral devices or specialized
customer premises equipment commonly used by individuals with
disabilities to achieve access, if readily achievable.
(c) Obligation of Telecommunications Carriers. Each
telecommunications carrier must not install network features,
functions, or capabilities that do not comply with the guidelines and
standards established pursuant to this part or part 7 of this chapter.
Sec. 6.7 Product design, development, and evaluation.
(a) Manufacturers and service providers shall evaluate the
accessibility, usability, and 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.
(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.
Sec. 6.9 Information pass through.
Telecommunications equipment and customer premises equipment shall
pass through cross-manufacturer, non-proprietary, industry-standard
codes, translation protocols, formats or other 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.
Sec. 6.11 Information, documentation, and training.
(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
and 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
(3) Ensuring usable customer support and technical support in the
call centers and service centers which support their products at no
additional charge.
(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.
(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.
Subpart D--Enforcement
Sec. 6.15 Generally.
(a) All manufacturers 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.
(b) For purposes of Secs. 6.15 through 6.23, the term
``manufacturers'' shall denote manufacturers of telecommunications
equipment or CPE and the term ``providers'' shall denote providers of
telecommunications services.
Sec. 6.16 Informal or formal complaints.
Complaints against manufacturers or providers, as defined under
this subpart, for alleged violations of this subpart may be either
informal or formal.
Sec. 6.17 Informal complaints; form and content.
(a) An informal complaint alleging a violation of section 255 of
the Act or this subpart may be transmitted to the Commission by any
reasonable means, e.g., letter, facsimile transmission, telephone
(voice/TRS/TTY), Internet e-mail, ASCII text, audio-cassette recording,
and braille.
(b) An informal complaint shall include:
[[Page 63254]]
(1) The name and address of the complainant;
(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;
(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;
(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 Commission and defendant (e.g., letter, facsimile
transmission, telephone (voice/TRS/TTY), Internet e-mail, ASCII text,
audio-cassette recording, braille; or some other method that will best
accommodate the complainant's disability)
Sec. 6.18 Procedure; designation of agents for service.
(a) The Commission shall promptly forward any informal complaint
meeting the requirements of Sec. 6.17 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 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 address, telephone number, and, if available TTY number,
facsimile number, and Internet e-mail address.
Sec. 6.19 Answers 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:
(a) Be prepared or formatted in the manner requested by the
complainant pursuant to Sec. 6.17, unless otherwise permitted by the
Commission for good cause shown;
(b) Describe any actions that the defendant has taken or proposes
to take to satisfy the complaint;
(c) Advise the complainant and the Commission of the nature of the
defense(s) claimed by the defendant;
(d) Respond specifically to all material allegations of the
complaint; and
(e) Provide any other information or materials specified by the
Commission as relevant to its consideration of the complaint.
Sec. 6.20 Review and disposition of informal complaints.
(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, consider the informal
complaint closed, without response to the complainant or defendant. In
all other 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
paragraphs (b) through (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 e-mail, ASCII text, audio-cassette recording, or braille).
(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,
the 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 Sec. 6.22.
(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 subpart, 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 failed 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.
Sec. 6.21 Formal complaints, applicability of Secs. 1.720 through
1.736 of this chapter.
Formal complaints against a manufacturer or provider, as defined
under this subpart, may be filed in the form and in the manner
prescribed under Secs. 1.720 through 1.736 of this chapter. Commission
staff may grant waivers of, or exceptions to, particular requirements
under Secs. 1.720 through 1.736 of this chapter 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 Secs. 1.720 and 1.728 of this chapter to allege
facts which, if true, are sufficient to constitute a violation or
violations of section 255 of the Act or this subpart.
Sec. 6.22 Formal complaints based on unsatisfied informal complaints.
A formal complaint filing based on an unsatisfied informal
complaint filed pursuant to Sec. 4.16 of this chapter shall be deemed
to relate back to the filing date of the informal complaint if it is
filed within ninety days from the date that the Commission notifies the
complainant of its disposition of the informal complaint and based on
the same operative facts as those alleged in the informal complaint.
[[Page 63255]]
Sec. 6.23 Actions by the Commission on its own 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 of 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.
2. Add part 7 to read as follows:
PART 7--ACCESS TO VOICEMAIL AND INTERACTIVE MENU SERVICES AND
EQUIPMENT BY PEOPLE WITH DISABILITIES
Subpart A--Scope--Who Must Comply With These Rules?
Sec.
7.1 Who must comply with these rules?
Subpart B--Definitions
7.3 Definitions.
Subpart C--Obligations--What Must Covered Entities Do?
7.5 General obligations.
7.7 Product design, development and evaluation.
7.9 Information pass through.
7.11 Information, documentation and training.
Subpart D--Enforcement
7.15 Generally.
7.16 Informal or formal complaints.
7.17 Informal complaints; form and content.
7.18 Procedure; designation of agents for service.
7.19 Answers to informal complaints.
7.20 Review and disposition of informal complaints.
7.21 Formal complaints, applicability of Secs. 1.720 through 1.736
of this chapter.
7.22 Formal complaints based on unsatisfied informal complaints.
7.23 Actions by the Commission on its own motion.
Authority: 47 U.S.C. 1, 154(i), 154(j) 208, and 255.
Subpart A--Scope--Who Must Comply With These Rules?
Sec. 7.1 Who must comply with these rules?
The rules in this part apply to:
(a) Any provider of voicemail or interactive menu service;
(b) Any manufacturer of telecommunications equipment or customer
premises equipment which performs a voicemail or interactive menu
function.
Subpart B--Definitions
Sec. 7.3 Definitions.
(a) The term accessible shall mean that:
(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.
(vii) Operable with a Prosthetic Device. Controls shall be operable
without requiring body contact or close body proximity.
(viii) Operable without time-dependent controls. Provide at least
one mode that does not 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.
(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.
(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.
(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.
(viii) Non-interference with hearing technologies. Reduce
interference to hearing technologies (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.
(b) The term compatibility shall mean compatible with peripheral
devices and specialized customer premises equipment commonly used by
individuals with disabilities to achieve accessibility to voicemail and
interactive menus, and in compliance with the following provisions, as
applicable:
(1) External electronic access to all information and control
mechanisms. Information needed for the operation of products (including
output, alerts, icons, on-line help, and documentation) shall be
available in a standard electronic text format on a cross-industry
standard port and all input to and control of a product shall allow for
real time operation by electronic text input into a cross-industry
standard external port and in cross-industry standard format. The
cross-industry standard port shall not require manipulation of a
connector by the user.
(2) Connection point for external audio processing devices.
Products providing auditory output shall provide the auditory signal at
a standard signal level through an industry standard connector.
[[Page 63256]]
(3) TTY connectability. Products which provide a function allowing
voice communication and which do not themselves provide a TTY
functionality shall provide a standard 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.
(4) TTY signal compatibility. Products, including those providing
voice communication functionality, shall support use of all cross-
manufacturer non-proprietary standard signals used by TTYs.
(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.
(d) The term disability shall mean a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual; a record of such an impairment; or being regarded as
having such an impairment.
(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
from 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.
(f) The term manufacturer shall mean an entity that makes or
produces a product.
(g) The term peripheral devices shall mean devices employed in
connection with equipment covered by this part to translate, enhance,
or otherwise transform telecommunications into a form accessible to
individuals with disabilities.
(h) The term readily achievable 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:
(1) The nature and cost of the action needed;
(2) The overall financial resources of the manufacturer or service
provider involved in the action (the covered entity); the number of
persons employed by such manufacturer or service provider; the effect
on expenses and resources, or the impact otherwise of such action upon
the operations of the manufacturer or service provider;
(3) If applicable, the overall financial resources of the parent of
the covered entity; the 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
(4) If applicable, the type of operation or operations of the
covered entity, including the composition, structure and functions of
the workforce of such entity; and the geographic separateness,
administrative or fiscal relationship of covered entity in question to
the parent entity.
(i) The term specialized customer premises equipment shall mean
customer premise equipment which is commonly used by individuals with
disabilities to achieve access.
(j) 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).
(k) 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.
(l) 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.
(m) The term Voicemail shall mean the capability of answering calls
and recording incoming messages when a line is busy or does not answer
within a pre-specified 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.
Subpart C--Obligations--What Must Covered Entities Do?
Sec. 7.5 General Obligations.
(a) Obligation of Manufacturers. (1) A manufacturer of
telecommunications equipment or customer premises equipment covered by
this part shall ensure that the equipment is designed, developed and
fabricated so that the voicemail and interactive menu functions are
accessible to and usable by individuals with disabilities, if readily
achievable;
(2) Whenever the requirements of paragraph (a)(1) of this section
are not readily achievable, the manufacturer shall ensure that the
equipment is compatible with existing peripheral devices or specialized
customer premises equipment commonly used by individuals with
disabilities to achieve access, if readily achievable.
(b) Obligation of Service Providers. (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.
(2) Whenever the requirements of paragraph (a)(1) of this section
are not readily achievable, the service provider shall ensure that the
service is compatible with existing peripheral devices or specialized
customer premises equipment commonly used by individuals with
disabilities to achieve access, if readily achievable.
Sec. 7.7 Product design, development, and evaluation.
(a) Manufacturers and service providers shall evaluate the
accessibility, usability, and 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.
(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
[[Page 63257]]
(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.
Sec. 7.9 Information pass through.
Telecommunications equipment and customer premises equipment shall
pass through cross-manufacturer, non-proprietary, industry-standard
codes, translation protocols, formats or other 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.
Sec. 7.11 Information, documentation, and training.
(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
and 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
(3) Ensuring usable customer support and technical support in the
call centers and service centers which support their products at no
additional charge.
(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.
(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.
Subpart D--Enforcement
Sec. 7.15 Generally.
(a) For purposes of Secs. 7.15-7.23 of this subpart, the term
``manufacturers'' shall denote any manufacturer of telecommunications
equipment or customer premises equipment which performs a voicemail or
interactive menu function.
(b) All manufacturers 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.
(c) The term ``providers'' shall denote any provider of voicemail
or interactive menu service.
Sec. 7.16 Informal or formal complaints.
Complaints against manufacturers or providers, as defined under
this subpart, for alleged violations of this subpart may be either
informal or formal.
Sec. 7.17 Informal complaints; form and content.
(a) An informal complaint alleging a violation of section 255 of
the Act or this subpart may be transmitted to the Commission by any
reasonable means, e.g., letter, facsimile transmission, telephone
(voice/TRS/TTY), Internet e-mail, ASCII text, Internet e-mail, audio-
cassette recording, and braille.
(b) An informal complaint shall include:
(1) The name and address of the complainant;
(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;
(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.
(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 Commission and defendant (e.g., letter, facsimile
transmission, telephone (voice/TRS/TTY), Internet e-mail, ASCII text,
audio-cassette recording, braille; or some other method that will best
accommodate the complainant's disability).
Sec. 7.18 Procedure; designation of agents for service.
(a) The Commission shall promptly forward any informal complaint
meeting the requirements of Sec. 7.17 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 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 address, telephone number, and, if available TTY number,
facsimile number, and Internet e-mail address.
Sec. 7.19 Answers 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:
(a) Be prepared or formatted in the manner requested by the
complainant pursuant to Sec. 7.17, unless otherwise permitted by the
Commission for good cause shown;
(b) Describe any actions that the defendant has taken or proposes
to take to satisfy the complaint;
(c) Advise the complainant and the Commission of the nature of the
defense(s) claimed by the defendant;
(d) Respond specifically to all material allegations of the
complaint; and
(e) Provide any other information or materials specified by the
Commission as relevant to its consideration of the complaint.
[[Page 63258]]
Sec. 7.20 Review and disposition of informal complaints.
(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, consider the informal
complaint closed, without response to the complainant or defendant. In
all other 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
paragraphs (b) through (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 e-mail, ASCII text, audio-cassette recording, or braille).
(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,
the 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 Sec. 7.22
of this subpart.
(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 subpart, 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 failed 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.
Sec. 7.21 Formal complaints, applicability of Secs. 1.720 through
1.736 of this chapter.
Formal complaints against a manufacturer or provider, as defined
under this subpart, may be filed in the form and in the manner
prescribed under Secs. 1.720 through 1.736 of this chapter. Commission
staff may grant waivers of, or exceptions to, particular requirements
under Secs. 1.720 through 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 Secs. 1.720 and 1.728 of this chapter to allege facts
which, if true, are sufficient to constitute a violation or violations
of section 255 of the Act or this chapter.
Sec. 7.22 Formal complaints based on unsatisfied informal complaints.
A formal complaint filing based on an unsatisfied informal
complaint filed pursuant to Sec. 4.16 of this chapter shall be deemed
to relate back to the filing date of the informal complaint if it is
filed within ninety days from the date that the Commission notifies the
complainant of its disposition of the informal complaint and based on
the same operative facts as those alleged in the informal complaint.
Sec. 7.23 Actions by the Commission on its own 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 part and Section 255 of 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.
[FR Doc. 99-30091 Filed 11-18-99; 8:45 am]
BILLING CODE 6712-01-U
