As Congress debates an overhaul of the Telecommunications Act of 1996, a separate debate related to one of the lesser-known provisions of the 1996 Act is also underway, with the potential to critically impact on future information and communications technology innovation. What complicates this instance of digital post-convergence/pre-chaos/current collision, is the highly emotionally-charged nature and topic of the debate: Ensuring communications and Internet accessibility to individuals or varying ability or disability.
Section 255 of the 1996 Act, implementation of which was debated for many years, requires telecommunications products and services to be accessible to people with disabilities, to the extent that such accessibility is "readily achievable." The definition of readily achievable has always meant different things to different people, but the FCC, disability advocates and industry players generally agreed it to mean “easily accomplishable, without much difficulty or expense.” Of course “much difficulty” and “much expense” were situational definitions at best.
In any event, per Section 255, if manufacturers cannot make their products accessible, then they are required to design products to be compatible with adaptive equipment used by people with disabilities, again, “where readily achievable.” To the extent that adaptive equipment technology in certain instances did not keep pace with mainstream information and communications technology, manufacturers of the latter were often compelled to include what might be considered “retro” technology in otherwise cutting-edge solutions to ensure interoperability. Such compromises, in my opinion, were worthy of the goal of extending accessibility as readily achievable as possible.
In terms of the application of Section 255, it was defined to cover wired and wireless telecommunication devices, pagers, and fax machines, other products that have a telecommunication service capability, such as computers with modems and equipment that carriers use to provide services, such as a phone company’s switching equipment. Of note, the possible functions of a product are key in determining coverage. If a product can provide telecommunication services, then that portion is covered - for example, televisions generally are not covered by section 255, except where a set-top-box enables e-mail communication or Internet access, and then only that device is covered.
During the debate around the implementation of Section 255, there were moments bordering on the absurd. However well-intended (truly) the provisions were, the myriad of disability advocates demanding accessibility features threatened to overwhelm innovation – particularly in the mobile space - as debate floundered in the miasma of trying to address the broadest spectrum of abilities and disabilities in terms of accessibility. In the end, however, reason prevailed, and under the ever-nebulous “readily achievable” rubric, manufacturers did indeed innovate select creative solutions to address accessibility challenges – if not in every device, then across a portfolio of devices - while not derailing the promise of mobile broadband multimedia, and all under the auspices of light FCC regulatory oversight incorporating a reasonable and reasonably managed complaint process.
As a brief aside, related to the reference above to addressing the broadest spectrum of abilities and disabilities in terms of accessibility, consider how the Americans With Disabilities Act defines a person with a disability. While the ADA does not provide a list of disabilities, it does define a legal test to decide if a person has a condition that is severe enough to be an ADA disability. As such, the ADA defines a current disability as “a medical condition or disorder (called an impairment) that substantially limits a person in doing basic activities (called major life activities). “ Examples of major life activities include walking, seeing, hearing, breathing, caring for oneself, performing manual tasks, sitting, standing, lifting, learning, and thinking. The point of the reference in the paragraph above was to emphasize that designing every product to be accessible to such a broad spectrum of potential abilities and disabilities would be beyond readily achievable, it would be, in fact, utterly impossible.
Earlier this month, Representative Edward Markey (D-MA) re-introduced “The Twenty-First Century Communications and Video Accessibility Act,“ (also known, in Congressional parlance, as H.R. 3101) , which, with references to Section 255 and other related accessibility-focused regulation and legislation, would extend Section 255-like requirements to cover every provider of Internet access service and every manufacturer of Internet access equipment, unless it would be an undue burden, to make user interfaces accessible to individuals with disabilities (as defined by the Disabilities Act of 1990, as amended). “Undue burden” has stepped into the “readily achievable” space, and is defined as “significant difficulty or expense” – a seemingly significantly higher threshold. To the extent that threshold could not be achieved, like Section 255, H.R. 3101 would require that the equipment or service be compatible with existing commonly used peripheral devices or specialized customer equipment, unless, again, that requirement would be an undue burden.
The Twenty-First Century Communications and Video Accessibility Act would cover a broad swath of the Internet industry, introducing rules and regulations where they may not have been applicable, or not perceived, or not enforced in the past. Of note, H.R. 3101 has a special focus on video, which offers an illustrative example of the challenges the bill, if enacted, will introduce across the digital spectrum. In terms of video, for instance, the bill would require that any apparatus that receives or plays back video programming and has a picture screen of any size be capable of decoding closed captioning, transmitting and delivering video description, and conveying emergency information. Notably, “video programming “ is specifically defined as “including programming distributed over the Internet or by other means”. Specific accessibility requirements would include mandating that any apparatus to receive or play back video, including using the Internet, allow control by individuals with disabilities and that on-screen menus, guides and/or navigational devices be accompanied by integrated or peripheral audio output and/or other accessibility solution to enable control by blind or visually impaired individuals unable to read the visual display. These requirements impact on everyone from YouTube to TV manufacturers to PC venders and beyond, including as well the accessories – mice, keyboards, remote controls – such services and/or hardware rely on.
The intent of H.R. 3101 is laudable, and yet, as the debate matures, there will doubtless be numerous exchanges bordering on the absurd as advocates representing individuals and groups across the ADA spectrum drive their individual interests while industry positions itself to both protect bottom lines and explain what is and is not technologically, commercially, and meaningfully achievable all-the-while operating within the basic laws of physical reality. There will be moments of clarity and compelling reason. There will be moments in which reason, logic and honesty are utterly ignored. The role of lawmakers and regulators throughout the process should be as an honest broker shepherding a debate that results in reasonably achievable, commercially- and humanly-meaningful compromise that drives rather than stymies innovation, market-based competition, and, of course, meaningful accessibility.
Meanwhile, there are a variety of solutions already market-tested and deployed. For instance, Microsoft’s Active Accessibility (MSAA) and UI Automation initiatives are aimed at providing better access for individuals who have physical or cognitive difficulties, impairments, or disabilities. And, there are literally dozens and dozens of screen readers available for vision impaired Internet users, and equally numerous video relay and video captioning services for hearing impaired users. These are positive, if not fully comprehensive, steps in the right direction.
Going forward, Internet accessibility – as driven by both regulatory and public demand, both spurred by the increasing integration of Internet activity into our daily lives – may well prove to be a cottage industry as lucrative as “green technology” has become. Watch this space in terms of start-ups and VC activity…
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