[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
 H.R. ___, DRAFT LEGISLATION ENHANCING ACCESS TO BROADBAND TECHNOLOGY 
               AND SERVICES FOR PERSONS WITH DISABILITIES 

=======================================================================

                                HEARING

                               BEFORE THE

          SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              May 1, 2008

                               __________

                           Serial No. 110-110


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov

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                    COMMITTEE ON ENERGY AND COMMERCE

    JOHN D. DINGELL, Michigan,       JOE BARTON, Texas
      Chairman                         Ranking Member
HENRY A. WAXMAN, California          RALPH M. HALL, Texas
EDWARD J. MARKEY, Massachusetts      J. DENNIS HASTERT, Illinois
RICK BOUCHER, Virginia               FRED UPTON, Michigan
EDOLPHUS TOWNS, New York             CLIFF STEARNS, Florida
FRANK PALLONE, Jr., New Jersey       NATHAN DEAL, Georgia
BART GORDON, Tennessee               ED WHITFIELD, Kentucky
BOBBY L. RUSH, Illinois              BARBARA CUBIN, Wyoming
ANNA G. ESHOO, California            JOHN SHIMKUS, Illinois
BART STUPAK, Michigan                HEATHER WILSON, New Mexico
ELIOT L. ENGEL, New York             JOHN B. SHADEGG, Arizona
ALBERT R. WYNN, Maryland             CHARLES W. ``CHIP'' PICKERING, 
GENE GREEN, Texas                      Mississippi
DIANA DeGETTE, Colorado              VITO FOSSELLA, New York
  Vice Chairman                      STEVE BUYER, Indiana
LOIS CAPPS, California               GEORGE RADANOVICH, California
MIKE DOYLE, Pennsylvania             JOSEPH R. PITTS, Pennsylvania
JANE HARMAN, California              MARY BONO, California
TOM ALLEN, Maine                     GREG WALDEN, Oregon
JAN SCHAKOWSKY, Illinois             LEE TERRY, Nebraska
HILDA L. SOLIS, California           MIKE FERGUSON, New Jersey
CHARLES A. GONZALEZ, Texas           MIKE ROGERS, Michigan
JAY INSLEE, Washington               SUE WILKINS MYRICK, North Carolina
TAMMY BALDWIN, Wisconsin             JOHN SULLIVAN, Oklahoma
MIKE ROSS, Arkansas                  TIM MURPHY, Pennsylvania
DARLENE HOOLEY, Oregon               MICHAEL C. BURGESS, Texas
ANTHONY D. WEINER, New York          MARSHA BLACKBURN, Tennessee
JIM MATHESON, Utah
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana      
                             _____________

                           Professional Staff

              Dennis B. Fitzgibbons, Chief of Staff
              Gregg A. Rothschild, Chief Counsel
                Sharon E. Davis, Chief Clerk
            David L. Cavicke, Minority Staff Director

                                  (ii)
          Subcommittee on Telecommunications and the Internet

               EDWARD J. MARKEY, Massachusetts, Chairman
MIKE DOYLE, Pennsylvania             FRED UPTON, Michigan
    Vice Chairman                        Ranking Member
JANE HARMAN, California              J. DENNIS HASTERT, Illinois
CHARLES A. GONZALEZ, Texas           CLIFF STEARNS, Florida
JAY INSLEE, Washington               NATHAN DEAL, Georgia
BARON P. HILL, Indiana               BARBARA CUBIN, Wyoming
RICK BOUCHER, Virginia               JOHN SHIMKUS, Illinois
EDOLPHUS TOWNS, New York             HEATHER WILSON, New Mexico
FRANK PALLONE, Jr., New Jersey       CHARLES W. ``CHIP'' PICKERING, 
BART GORDON, Tennessee                   Mississippi
BOBBY L. RUSH, Illinois              VITO FOSELLA, New York
ANNA G. ESHOO, California            GEORGE RADANOVICH, California
BART STUPAK, Michigan                MARY BONO, California
ELIOT L. ENGEL, New York             GREG WALDEN, Oregon
GENE GREEN, Texas                    LEE TERRY, Nebraska
LOIS CAPPS, California               MIKE FERGUSON, New Jersey
HILDA L. SOLIS, California           JOE BARTON, Texas (ex officio)
JOHN D. DINGELL, Michigan (ex 
    officio)
  












                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Edward J. Markey, a Representative in Congress from the 
  Commonwealth of Massachusetts, opening statement...............     1
Hon. Cliff Stearns, a Representative in Congress from the State 
  of Florida, opening statement..................................     3
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, opening statement.......................................     4
    Prepared statement...........................................     5
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, opening statement....................................     5
Hon. Lois Capps, a Representative in Congress from the State of 
  California, opening statement..................................     6
Hon. Hilda L. Solis, a Representative in Congress from the State 
  of California, opening statement...............................     7
Hon. John D. Dingell, a Representative in Congress from the State 
  of Michigan, prepared statement................................    80
Hon. Edolphus Towns, a Representative in Congress from the State 
  of New York, prepared statement................................    80
Hon. Anna G. Eshoo, a Representative in Congress from the State 
  of California, prepared statement..............................    81
Hon. Bart Stupak, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    81
Hon. Eliot L. Engel, a Representative in Congress from the State 
  of New York, opening statement.................................    82

                               Witnesses

Russell Harvard, Coalition of Organizations for Accessible 
  Technology (COAT)..............................................     8
    Prepared statement...........................................    11
K. Dane Snowden, vice president, External and State Affairs, 
  CTIA, The Wireless Association.................................    22
    Prepared statement...........................................    24
Jamaal Anderson, Atlanta Falcons.................................    42
    Prepared statement...........................................    44
Larry Goldberg, director, Media Access, WGBH, Boston, 
  Massachusetts..................................................    48
    Prepared statement...........................................    49
Ken Nakata, director, Disability Initiatives and Government 
  Compliance, BayFirst Solutions LLC.............................    52
    Prepared statement...........................................    53
Jesse R. Acosta, U.S. Army.......................................    58
    Prepared statement...........................................    59

                           Submitted Material

H.R. ___, discussion draft.......................................    85


 H.R. ___, DRAFT LEGISLATION ENHANCING ACCESS TO BROADBAND TECHNOLOGY 
               AND SERVICES FOR PERSONS WITH DISABILITIES

                              ----------                              


                         THURSDAY, MAY 1, 2008

              House of Representatives,    
         Subcommittee on Telecommunications
                                  and the Internet,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:42 a.m., in 
room 2123, Rayburn House Office Building, Hon. Edward J. Markey 
(chairman of the subcommittee) presiding.
    Members Present: Representatives Markey, Gonzalez, Inslee, 
Stearns, Upton, Shimkus, and Radanovich.
    Staff Present: Amy Levine, Mark Seifert, Tim Powderly, 
Colin Crowell, David Vogel, Philip Murphy, Neil Fried, and 
Garrett Golding.

OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN 
        CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS

    Mr. Markey. Good morning, and welcome to the Subcommittee 
on Telecommunications and the Internet and one of the most 
important hearings that we are going to have during this 2-year 
period. The rise of digital technologies and services meshed 
with broadband access to the Internet is driving further 
innovation across communications markets.
    As these changes challenged marketplace participants and 
spawned new services and markets, various industries have 
lamented over recent years that Congress and the Federal 
Communications Commission simply cannot keep pace. They 
repeatedly assert that our Nation's laws and regulations are 
antiquated. They have successfully pressed for changes and 
continue to push for additional new ones. And various laws and 
regulations reflect new technologies and new competition. 
``Hurry up,'' they say. ``Get on with changing all these old 
regulations. Quickly update our communications laws.''
    However, when it comes to updating our laws and ensuring 
access for individuals with disabilities, we seem to be hearing 
a different story from the industry. ``Slow down,'' they say. 
``Not so fast. Shouldn't we wait and see where technology is 
going first before we start updating regulations?''
    It seems to me that the question in this area is not 
whether Congress will keep up with the changes in technology, 
but rather, will the industries keep up with the changes that 
are already happening in millions of homes all across our 
country already?
    That is because millions of consumers today are utilizing 
an array of exciting and innovative new technologies that are 
Internet based. Our national media environment has gone from 
encompassing not only the traditional media but new media. 
Indeed, we are at a point today where the people publish and 
blog and communicate themselves. The challenge for the 
industries is whether they will keep pace in ensuring that 
these empowering technologies enhance the lives of all 
consumers or whether individuals with disabilities will fall 
behind.
    The fact is that the new technologies and services in 
themselves are neither good nor bad. They only become good when 
we animate such technologies with the human values that reflect 
the best of what we are as a society. In other words, the 
wizardry of the wires and the sophistication of the software 
programs do little for those who cannot affordably access or 
effectively use them.
    Our job as policymakers is to help ensure such affordable 
access and utilization. And this is what the draft legislation 
I have circulated is intended to do.
    This is not to say that companies in various fields have 
not made efforts. Progress in ensuring that communications 
technologies serve the needs of individuals with disabilities 
is evident in several products and services offered by many 
companies, including Apple, Sun Microsystems, Time Warner, 
Adobe, Microsoft, and other high-tech wireline and wireless 
providers. And as our population ages, there will be more of us 
who will inevitably benefit from these efforts. There will be a 
tech fair sponsored by many of those companies on May 16, so 
that Members and staff may see the products and services such 
companies are offering or developing in this area. These 
initiatives are to be applauded, and I commend them.
    And finally, I must note that many of the arguments being 
raised against provisions of the draft bill are eerily similar 
to arguments raised against hearing aid compatibility or 
against the closed-captioning bill I sponsored and successfully 
battled to make law in 1990 with the help of King Jordan, the 
president of Gallaudet University, who is sitting out here in 
the audience today. Welcome back again, sir.
    In that debate, we were told that mandating closed-
captioning would add $20 to the price of a TV set. That it was 
overly burdensome. It would crush the industry. That it would 
take a lifetime and a fortune to caption all the movies and 
television programs out there. Notwithstanding those 
objections, we passed my bill, and the President signed it. And 
today, not only is it indispensable to millions of individuals 
who are deaf or hearing-impaired, but closed-captioning is used 
in immigrant families to help them learn the language and seen 
in sports bars across the country. Moreover, the mandate didn't 
cost remotely close to $20. It cost about $1 per TV set.
    The purpose of today's hearing is to better understand the 
needs of individuals with disabilities, as well as their 
excitement about what new technologies can offer. We will also 
be able to gauge the extent of efforts by companies and 
industries in meeting these express needs and aspirations and 
how best to update our laws in the new digital broadband 
Internet environment, because even though the technologies and 
marketplace may change, the values we seek to instill in those 
technologies are immutable.
    I want to thank our incredible panel of witnesses today for 
being here. I am really looking forward to this hearing.
    Let me turn now and recognize the Ranking Member of the 
Committee, the gentleman from Florida, Mr. Stearns.

 OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Mr. Stearns. Thank you, Mr. Chairman. Also, I would like to 
welcome the former president of Gallaudet University. Both Mr. 
Markey and I have played basketball out at the fine university 
against each other for congressional fundraising, and so we are 
very pleased to have him and others here.
    And I thank you, Mr. Chairman, for this thoughtful hearing 
and for the witnesses, the time they are taking off to testify.
    I think, as you pointed out, the Internet is such an 
unbelievable thing that obviously no geographic boundaries 
exist anymore. You can download a movie from India, legally of 
course, sitting on a beach in Florida while participating in a 
videoconference here in Washington, D.C. All of this is made 
possible because the marketplace has flourished, allowing 
consumers to decide themselves what technology works for them.
    But as this technology revolution speeds along, and the 
marketplace continues to boom, it is important to ensure that 
people with disabilities are not left behind. And I think that 
is the goal of this draft legislation.
    All people, Mr. Chairman, should be afforded the 
opportunity to use and enjoy this amazing technology that is 
available. I think we all in this room can agree on that point.
    The question then becomes, What is the best way to achieve 
that ideal? Do we need more government regulation? That may be 
possible. Or do we need to allow the market to work itself in a 
light regulatory manner, touched as a possibility of letting 
the market lightly work these things through? These are 
questions that we need to explore during the hearing today. I 
look forward to hearing the testimony from our distinguished 
panel.
    Now Mr. Chairman, under the Communications Act, 
manufacturers and carriers are already required to make 
telecommunications devices and services accessible to people 
with disabilities when doing so is readily achievable. The 
statute also requires telephones to be hearing-aid compatible, 
requires telecommunications providers to help pay for operators 
that relay phone conversations between people with hearing or 
speech disabilities and people without disabilities, and 
requires television programs to be closed-captioned.
    Nevertheless, we are becoming victims of our own success 
today. Due to widespread deregulatory policies, many new 
technologies do not fall within the existing statutory 
language. To address this problem, a draft has been circulated 
by the Chairman that would greatly expand current disability 
access obligations to nearly all Internet-enabled communication 
services, equipment, and also the software.
    It would replace the readily achievable standard with a 
tighter, stricter one that requires incorporation of 
accessibility unless doing so would cause a quote, ``undue 
burden,'' end quote. And it would allow a private right of 
action, enabling someone to sue in court for alleged violation 
of these requirements.
    New regulations may not be needed because the tech and 
wireless industries are already taking the necessary steps to 
make certain that their products and applications are indeed 
accessible to all people. For example, AOL, Google, Microsoft, 
and Yahoo! have joined forces to form the Internet Captioning 
Forum, the ICF. The ICF was established to overcome technology 
and production barriers and increase the amount of online video 
accessible to people who are deaf or hard of hearing.
    In addition, Mr. Chairman, a recent CNN story highlights 
how wireless technology is helping a Marine Corps corporal walk 
again after he lost both of his legs when an IED exploded under 
his Humvee in Iraq. Corporal Joshua Belile is beginning to walk 
again with the help of short-range wireless technology known as 
Bluetooth, which also makes hands-free cell phone earpieces 
work. This corporal has prosthetic legs outfitted with 
Bluetooth technology. Simply, computer chips in each leg send a 
signal to motors in the artificial joints so that the knees and 
ankles move in a coordinated fashion.
    So the goals of this legislative draft are laudable, and we 
can all agree on the final destination. That is to ensure that 
all people with or without disabilities are able to take 
advantage of the remarkable technology that is available today.
    But will this legislation take us there? Or are the 
obligations too broad that the law of unintended consequences 
may take hold? These are the alternatives we are discussing 
today. I hope this hearing will help shed some light on these 
questions, and I appreciate very much the opportunity to work 
with my colleagues and the disability community and industry to 
extend the benefits of the Internet revolution to people with 
disabilities, while at the same time preserving the innovation 
that this Internet brings.
    And I yield back.
    Mr. Markey. The gentleman's time has expired.
    Mr. Markey. The Chair recognizes the gentleman from San 
Antonio, Mr. Gonzalez.
    Mr. Gonzalez. Waive opening statements, Chair.
    Mr. Markey. The Chair recognizes the gentleman from Texas, 
Mr. Green.

   OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Green. Thank you, Mr. Chairman. And I would like to 
have unanimous consent to have a statement placed in the 
record.
    And I will just briefly talk about the hearing. I want to 
thank you for holding the hearing on the draft legislation to 
ensure persons with disabilities are not left behind, as voice 
over Internet protocol and other technologies are increasingly 
prominent in the marketplace. I look forward to hearing our 
panel and thank our witnesses for being here today.
    We can look at all sides of what industry is doing, what 
needs to be done, so we can craft and improve the draft bill. 
And, Mr. Chairman, I am so happy you have called this hearing, 
because with every year--or sometimes every day--there are new 
technologies out there, and we need to make sure it is 
available to everyone and particularly folks with disabilities. 
And with that, again, I would like to have my full statement 
placed in the record.
    Mr. Markey. Without objection, it will be included in the 
record.
    [The information follows:]

                      Statement of Hon. Gene Green

    Mr. Chairman, thank you for holding this hearing on draft 
legislation to ensure persons with disabilities are not left 
behind as VOIP and other technologies become increasingly 
prominent in the marketplace.
    I look forward to hearing from today's panel--we have a 
broad range of witnesses, and hopefully we can look at all 
sides of what industry is doing, and what more needs to be 
done, so we can carefully craft and improve the draft bill.
    It is clear that without government action, relatively new 
and developing technologies will not be available to all 
individuals with disabilities.
    Industry has addressed the requirements of a large 
percentage of the disabled population, but as the Internet is 
used more and more heavily for communication, as a primary 
source for news and entertainment, and for other purposes, we 
must make sure that this new medium is as accessible for 
persons with disabilities as analog television and landline 
telephone service have been over recent decades.
    Many television news channels are supplementing their news 
programming with online content, whether it is online text or 
video or podcasts.
    Other forms of entertainment such as online movie rentals 
and high-definition Blu-ray movie format are becoming more 
commonplace.
    So many of these changes and advances in technology are 
being driven by demands for convenience from consumers--the 
intent of any legislation should be to ensure that persons with 
disabilities can take advantage of, and benefit from, these 
conveniences, as well.
    There is no doubt that text messaging, PDAs, voice-command 
cell phone functions and similar features have benefited the 
disabled community and made communications as mobile for 
persons with disabilities as for the non-disabled population, 
but it is still difficult for persons with disabilities to 
communicate in real-time with mobile devices.
    It will likely take some collaboration by software makers, 
device manufacturers, and service providers to achieve this, 
but it is important that it happen.
    And I am pleased we are looking at legislation to ensure 
that addressing the requirements for persons with disabilities 
is incorporated into the development of new services and 
products, and not just an afterthought.
    Again Mr. Chairman, I commend you for your work on this 
legislation, and I look forward to hearing from today's 
witnesses on how we can improve this draft.
                              ----------                              

    Mr. Markey. The Chair recognizes the gentleman from 
Michigan, Mr. Upton.

   OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Upton. Well thank you, Mr. Chairman. And I would just 
like to say that I look forward to working with you and 
Chairman Dingell, Ranking Member Barton, and my good friend, 
Ranking Member Stearns of this subcommittee, to move 
legislation on down the road.
    This is an important issue. For me, I have a long record in 
terms of helping folks on the disabled side of our country. It 
was one of my first pieces of legislation when I worked with 
Kweisi Mfume to allow a tax credit, to provide a tax credit for 
small businesses to comply with the ADA bill. I knew that it 
wasn't small businesses that wanted to discriminate against 
those with disabilities. But we needed to afford them the means 
so they could in effect make the changes in their storefronts, 
their stairs, their restrooms, their counters, to try and make 
it in fact more accessible. And we have seen great strides 
since the passage of that legislation that was signed by Bush 
41.
    But the world has changed. Communications devices, the 
Internet, computers, telephones, all those different things 
have changed quite dramatically from where we were back in 
1990, as you cited the legislation on the streaming on TVs. And 
we need to work with industry and with the community to make 
sure that in fact no family is left behind.
    And I think you have done a good stab in terms of the first 
draft of this legislation. I just want to pledge that I look 
forward to working with you to improve this legislation further 
so we can get something through the Congress. And I yield back 
my time.
    Mr. Markey. The gentleman's time has expired. The Chair 
recognizes the gentlelady from California, Ms. Capps.

   OPENING STATEMENT OF HON. LOIS CAPPS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Ms. Capps. Thank you, Mr. Chairman. And thank you so much 
for holding this hearing and for your leadership on the issue 
of communications and media accessibility.
    I am so grateful to each of our panelists, who have taken 
the time and the effort to appear before us today. We really 
are welcoming your testimony. I look forward to learning many 
things from you.
    The draft bill that we are discussing today is an important 
first step in ensuring that our latest communications 
revolution does not leave behind persons with hearing, speech, 
and vision disabilities.
    Mr. Chairman, I have to confess that I have already learned 
something in this hearing, and that is that it took legislative 
action, a bill passed by Congress and signed into law, to have 
this caption scroll across the bottom of my television set and 
the one that we are looking at here. It took an act of Congress 
for that to happen. I always took it for granted that it was 
always there. It shows how important hearings like this are and 
the legislation that can lead to further changes. So I thank 
you for that strong tradition that we are following, hopefully, 
out of this hearing today.
    In preparing for today's hearing, I was struck by the 
number of everyday tasks that can be taken for granted by 
individuals without sensory impairments. We really do take for 
granted all of these abilities that we have and don't realize 
what the world is like for someone who is limited in any one of 
the areas of the senses. But Internet accessibility, video 
programming, and navigating television and cell phone menus can 
be nearly impossible or really impossible for persons with 
disabilities. From my perspective, these technologies have 
existed long enough now for compatibility issues to have been 
addressed by the industries.
    So I am disappointed by what I interpret--I will wait to be 
instructed by our panelists--but I believe that there is a lack 
of will among many industry actors to address these concerns on 
their own. I encourage them to incorporate the concept of 
universal design into their product development cycle. There is 
no reason not to do this. Simply put, the Internet and IP-based 
technologies hold enormous potential for persons with 
disabilities. The right assistive technologies can allow for so 
much greater independence, employment opportunities, and social 
interactions. So there isn't any reason why the incredible 
advancements we are witnessing today, using every day, taking 
advantage of every day, would exclude the very people who would 
benefit the most from these technologies. So again, I thank you 
for this hearing. I look forward to the testimony of our 
witnesses, and I yield back.
    Mr. Markey. Great. The gentlelady's time has expired. The 
Chair recognizes the gentlelady from California, Ms. Solis.

 OPENING STATEMENT OF HON. HILDA L. SOLIS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Ms. Solis. Thank you, Mr. Chairman and Ranking Member 
Stearns, for holding this very important hearing. Today we are 
taking an important step forward to ensure that those with 
disabilities can still enjoy the innovations of 
telecommunications. With innovative technologies like Internet 
phone service and video relay service, people who are vision-
impaired or hearing-impaired have new options to communicate.
    It is important also to ensure that advancements in 
technology don't leave behind vision-impaired or hearing-
impaired persons who speak another language other than English. 
And I say that because in my own congressional district, about 
68 percent of the families do not speak English. They speak 
another language. And under current law, Telecommunications 
Relay Service, TRS, providers are required to provide Spanish 
services to interstate callers, and VRS providers operate in 
both Spanish and English. And for closed-captioning, the FCC 
has been phasing in requirements for Spanish-language 
television. And by 2010, all Spanish-language television will 
be closed-captioned in Spanish, which I think is really 
important.
    And I am a cosponsor of the Training For Realtime Writers 
Act which would provide competitive grants to train and recruit 
transcribers who produce closed-captioning, as well as in other 
fields--something very important. While this legislation is not 
in the jurisdiction of this committee, it is important to note 
that we must ensure that the workforce of captioners remains 
steady and does include and is more inclusive of other 
languages.
    I look forward to learning from all our witnesses today. 
And I thank them and those in the audience, too. I am very 
proud that we are having this hearing. I also want to thank the 
Chairman for his pioneering work on captioning. That is 
something new that I learned today. Thank you, Mr. Chairman.
    Mr. Markey. Great. The gentlelady's time has expired. All 
time for opening statements from Members has expired. We are 
now going to turn to our panel of expert witnesses.
    And our first witness is Russell Harvard, who is an actor 
who has appeared in film and television. His most recent 
appearance was in the Oscar award-winning movie There Will Be 
Blood, where he played the adult son of Daniel Day-Lewis. Mr. 
Harvard has also appeared on CSI: New York with Marlee Matlin.
    Mr. Harvard, you are in good company, as Ms. Matlin 
appeared before this subcommittee. So we welcome you here. Mr. 
Harvard is the third generation of deaf individuals in his 
family. Mr. Harvard, we look forward to hearing your 
perspective as a young person with disabilities and your views 
on the promises this new generation of technology brings to you 
and to your peers.

 STATEMENT OF RUSSELL HARVARD, COALITION OF ORGANIZATIONS FOR 
                  ACCESSIBLE TECHNOLOGY (COAT)

    Mr. Harvard. Thank you, Chairman Markey and Ranking Member 
Stearns and members of the House Subcommittee on 
Telecommunications and the Internet. I want to thank you for 
giving me the opportunity to appear before you today.
    My name, as you said, is Russell Harvard, and I am an 
actor, and I am deaf. I am a third-generation deaf person in 
the family. I am honored to have this opportunity to testify on 
an issue that affects millions of people with disabilities. I 
am here on the behalf of the Coalition of Organizations for 
Accessible Technology, COAT, as they are called, a coalition 
that is yet only 1-year-old but which has already grown to 
nearly 200 national and regional and community-based 
organizations dedicated to ensuring that Americans with 
hearing, vision, speech and other disabilities are not left 
behind as the Nation moves to innovate Internet and digital 
communications technologies.
    Like many consumers, I am a big fan of technology. It 
empowers me to access the information I need to be successful 
in my profession and as an active citizen. Unfortunately, all 
too often, I and other people with disabilities like me have 
been left behind as technology has advanced. For example, back 
in the 1980s, my family paid $200 for a captioning decoder box, 
because TV didn't have the ability to display captions on their 
own. When my family's decoder box got too hot, the captions 
would flicker, making them hard to read. I remember my stepmom 
would not let me watch any television for an hour before All My 
Children just so the decoder box would be cool enough for her 
favorite program.
    It took a law developed by your subcommittee to require all 
TVs with screens larger than 13 inches to have chips to display 
closed captions. This was a great law. At the time it was 
passed, the law covered 96 percent of all television sets. But 
times and technology are changing dramatically. Now, my friends 
and colleagues can watch their favorite shows on their cell 
phones or on their laptops. They also download and play back 
sports events on MP3 players. But once again, I and others who 
cannot hear are left out of this whirlwind of technological 
change. Hardly any of these smaller devices display closed 
captions.
    So we are going back to you, 15 years after the Decoder Act 
was passed, and we are asking you now to take this law to its 
next level. That limitation of the 13-inch screens has worn out 
its welcome. Now all devices that receive or display video 
programming should be required to have closed captioning.
    Now to my next concern, making sure that I and others can 
actually figure out how to turn on captions. These are exciting 
times. Digital pictures are clearer, and I am told digital 
sound is crisper. Under the FCC rules, I am also supposed to be 
able to control the font size and the color of the closed 
captions themselves. But the new digital sets are so 
complicated to use that few people have figured out how to 
access these features.
    I want to suggest to you one thing. The next time you go to 
a hotel, try to turn on the captions. The first thing you will 
probably do, as most people do, is to look at the remote 
control. Most likely you will find buttons for volume control 
and channel selection and a lot of other buttons that won't 
make sense to you. Chances are you won't find a closed-
captioning button to turn it on. Next, you will probably go to 
the TV's on-screen menu. Good luck as you try to navigate the 
maze of complicated choices. If you call down to the front desk 
and are lucky enough to get the hotel engineer, you can watch 
him come and try to experience the same problems that you had. 
I cannot tell you how often this scene plays out across 
America.
    This proposed law will fix this. It will require video 
devices to have a button for captioning on the remote control 
and enable viewers to control captioning features on the top 
tier of the device's on-screen menu. Remember, captions are to 
us what volume is to you.
    Once I have the ability to access the captions on video 
devices, we also need to make sure that the programs received 
by those devices actually contain captions. This brings me to 
my final concern. It seems that everytime a TV show ends by 
telling viewers to watch the show again, with enhanced features 
on the Internet, I can't do that. As of now, only a handful of 
TV shows on the Internet have captions. This is true even for 
programs that had captions when they were shown on TV. The 
result is that I and millions of other people who can't hear 
are being denied access yet again.
    It was not that long ago that I can remember not having 
access to many regular TV programs. I remember when South Park 
first came out. Everyone said it had inappropriate language. Of 
course, this made me want to see the show even more. But it 
wasn't captioned. And I couldn't lip read the itty-bitty 
nonsensical mouths of the cartoon characters. So I had to 
depend on my hearing friends to tell me what they were saying.
    Another example is MTV, music videos, also popular during 
my preteen years, but also rarely captioned. Being able to see 
these shows may sound trivial to you, but as a young adult, 
keeping up with the cultural experiences of my peers was very 
important. Whenever access was denied to me, I felt--and was--
left behind.
    In 1996, thanks to your work, Congress fixed all of this by 
passing a law requiring nearly all television shows to have 
captioning. This had a big impact on me. Captions allow me to 
be in sync with what is going on in the world. They give me the 
information I need, like the information about the upcoming 
election. They let me keep pace with current trends and 
maintain my independence. But now that everything is moving to 
the Internet, I am feeling behind, just like generations of my 
family before me.
    In conclusion, on behalf of millions of people with 
hearing, vision, and speech disabilities represented by COAT, I 
urge Congress not to leave people with disabilities behind as 
the new Internet and digital video programming technologies 
become available to the general public.
    I ask you to pass this legislation that will continue 
protecting our ability to access the emerging video 
technologies. Thank you.
    Mr. Markey. Thank you, Mr. Harvard, very much. And by the 
way, if there was such a thing as an Oscar for congressional 
testimony, you would be a nominee for this year. So we thank 
you.
    So our next witness----
    Mr. Harvard. Thank you.
    [The prepared statement of Mr. Harvard follows:]
 
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Markey. Dane Snowden is the Vice President of External 
and State Affairs for CTIA, The Wireless Association. Prior to 
his work at CTIA, Dane served as the Chief of the Consumer and 
Government Affairs Bureau. As Bureau Chief, he was in charge of 
the FCC's policy concerning telecommunications access for 
people with disabilities. So he brings both his experience at 
the FCC and the wireless industry to his testimony here today. 
We welcome you, sir. Whenever you are ready, please begin.

  STATEMENT OF K. DANE SNOWDEN, VICE PRESIDENT, EXTERNAL AND 
         STATE AFFAIRS, CTIA, THE WIRELESS ASSOCIATION

    Mr. Snowden. Thank you. Good morning, Mr. Chairman, Ranking 
Member Stearns, and members of the subcommittee. As you just 
heard, my name is Dane Snowden, and I am the Vice President of 
External and State Affairs for CTIA, The Wireless Association. 
Thank you for this opportunity to share with you the views of 
CTIA and our member companies on the staff's discussion draft 
before you today.
    It is nice to be back before this committee, albeit as an 
industry witness instead of as the Chief of the FCC's Consumer 
and Government Affairs Bureau. Today I want to share with you a 
sample of the efforts our industry has undertaken to improve 
the accessibility of innovative communications technologies for 
the disability community.
    Since Congress amended the Communications Act with Section 
255, the wireless industry has made great strides to make our 
products and services accessible to all of our customers. 
Today's wireless products and services incorporate many 
accessibility features that help empower consumers with 
disabilities. For example, for blind or low-vision consumers, 
there are cell phones that use voice recognition. For those who 
are deaf or have speech disabilities, there are TTY-compatible 
wireless phones, and consumers who are hard of hearing benefit 
from hearing-aid compliant wireless phones.
    The development of these features for use by consumers with 
disabilities also benefits consumers without disabilities. And 
that helps our members achieve the ultimate goal: to better 
serve every American who chooses to participate in the wireless 
experience.
    The wireless industry has a proactive and proven commitment 
to providing products and services to, and collaborating with, 
the disability community. Our commitment to innovation in this 
space is ongoing as we collaboratively work with the disability 
community through the U.S. Access Board TEITAC process, the 
ATIS process, the FCC HAC process, and the government-industry 
and standard-setting bodies.
    The current regulatory framework has created the 
flexibility and certainty for the wireless industry to increase 
access to wireless services and products. This framework should 
be allowed to continue, and by doing so, access to current and 
future technologies will flourish without being subject to 
well-intended but potentially inflexible regulation.
    We commend the Committee's efforts to review and ensure the 
disability community has access to emerging communications 
capabilities, and we have several suggestions for how the 
current discussion draft could be improved.
    First, we believe that the readily achievable standard 
should govern any new legislation. The success of the wireless 
industry in making communications products and services 
accessible to those with a variety of disabilities was due in 
no small measure to the readily achievable standard in Section 
255, which allows service providers and manufacturers the 
needed flexibility to incorporate accessibility design and 
functionality in our rapidly evolving telecom products and 
services. Applying the ADA undue burden standard, which was 
originally enacted to apply to permanent buildings and other 
structures, would be problematic in an environment where 
products have a short life cycle and technologies are 
continuously evolving.
    Today consumers have access to mobile phones with keys that 
are easily identifiable by touch, keypad shortcuts like one-
touch dialing, voice commands, and text-to-speech capabilities. 
These advances were developed using the readily achievable 
standard, which appropriately balances the need to foster 
innovation and industry's commitment to meet the accessibility 
needs of our customers.
    Second, CTIA believes that the legislation should not be 
enforced by private litigation. The FCC is authorized to employ 
its full range of sanctions and remedies to enforce the 
accessibility requirements. These sanctions are and continue to 
be deterrents for companies that do not comply or comply with 
Section 255.
    Additionally, the FCC is better suited than the courts to 
resolve any technical issues arising from noncompliance. 
Regardless of the complaint volume, the FCC's existing 
complaint process is also fully capable and committed to 
addressing any alleged failure to provide services and 
equipment that are accessible.
    Third, any new legislation should not impose new reporting 
requirements on either service providers or manufacturers. And 
finally, we hope this committee will take under consideration 
that if the wireless industry moves to an open access model, 
wireless users will increasingly obtain services and 
applications from third parties over whom industry will have 
little or no control.
    Any new requirements must take into account the wireless 
industry's evolution to an open access regime. The wireless 
industry is committed to making its products and services 
accessible. Doing so is the right thing to do, and it is good 
business. We are committed to ensuring that every American is 
empowered to participate in the wireless experience, and we 
thank the subcommittee for its attention to accessibility 
issues.
    We also encourage joining Chairman Markey--encourage all 
members of the staff to attend the Industry Tech Fair on May 
16, to see many of the products that we have developed. On 
behalf of CTIA, I thank you for the opportunity to speak and 
look forward to answering any of your questions.
    Mr. Markey. Thank you, Mr. Snowden, very much.
    [The prepared statement of Mr. Snowden follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Markey. Our next witness is Mr. Jamaal Anderson, who 
has just finished his rookie season as a professional football 
player for the Atlanta Falcons, where he starts as a defensive 
end.
    After a stellar collegiate career at the University of 
Arkansas, he was a first-round draft pick, number eight in the 
first round for the Atlanta Falcons.
    What we are going to do from Boston and Boston College is 
we are sending you our quarterback, Matt Ryan, down there for 
next season so we can keep the defense off the field for longer 
periods of time.
    Mr. Anderson. Thank you.
    Mr. Markey. We really hope that works out, sending you the 
best player we have had in a long, long time.
    Mr. Anderson's testimony today is informed by his 
relationship with his father, Dr. Glenn Anderson. Dr. Anderson 
is the Nation's first black deaf recipient of a Ph.D. and has 
taught at the University of Arkansas for 30 years. Dr. Anderson 
has also served as the Chairman of the Board of Gallaudet. We 
look forward, Mr. Anderson, to your testimony on the effect of 
these technologies not only on the individual who is unable to 
hear or see, but also its impact on the family members and 
friends of those individuals. We welcome you.

         STATEMENT OF JAMAAL ANDERSON, ATLANTA FALCONS

    Mr. Anderson. Thank you, Mr. Chairman, Ranking Member 
Stearns, and members of the House Subcommittee on 
Telecommunications and the Internet. My name is Jamaal 
Anderson, and I am honored to be here today to talk about 
communications access by people with disabilities. This 
testimony is also endorsed by COAT. You may know, now that he 
already mentioned, that I am starting defensive end for the 
Atlanta Falcons, but you may not know that my father, Glenn 
Anderson, is deaf. He was the first black deaf recipient of a 
Ph.D. in America and has been a professor at the University of 
Arkansas for 26 years. He was also the chair of Gallaudet 
University for 11 years. I want to start off by thanking you. 
In the 1980s and 1990s, your subcommittee helped pass several 
laws creating access to telephones and television. I witnessed 
these benefits--excuse me. I am a little nervous here. This is 
worse than a press conference. So----
    I witnessed these benefits of these laws in my own home. My 
sister and I grew up watching our dad use relay services at 
home and at work. We have vivid memories of how our father used 
to enjoy watching his favorite games and captioned programs, 
especially football games and NCAA tournaments. Although I was 
too young to remember, my sister told me that before these 
laws, my dad couldn't make phone calls or watch his favorite TV 
programs by himself. He had to depend on his mother, on my 
mother, excuse me, who is hearing and makes calls for him and 
interpreted what was happening on TV.
    Nowadays, all kinds of communications technologies allow us 
to communicate with anyone, anywhere, at any time. But as these 
move to the Internet, how many of these will continue to be 
accessible to people like my father? Companies often make 
products and services for people that are young, healthy, and 
have extra spending cash to buy the latest and greatest 
gadgets. But they often forget about building devices usable 
for people with limited hearing, sight, or speech. For example, 
last year at draft time, Web sites of NFL teams and CNN posted 
video clips of me, but none of these were captioned, so my dad 
couldn't watch them on his own. He needed my mom to interpret. 
Why was this? I am thinking that maybe these companies didn't 
want to use their resources for access if their competitors 
weren't doing the same thing.
    This is why we have come to you. If you tell companies to 
make communications services useable over the Internet, all 
companies will be affected equally. Laws are needed so my 
father and millions of other Americans with hearing loss like 
him can use the Internet communications products used by their 
friends, relatives, and fellow employees. I want to highlight a 
few ways the proposed draft will achieve this.
    While my dad and I are in different states, we communicate 
in text. In fact, before each game I look forward to my 
father's words of encouragement and enthusiasm. I can still 
remember how much his wishes of good luck meant to me the day 
of our game versus the Indianapolis Colts.
    When I was growing up, my dad used TTY to communicate in 
text. But TTY is use of old technology that is slow, outdated, 
and doesn't work well on the Internet. Although text messaging, 
pagers, and instant messages are replacing TTYs, they send 
instant text in verses, phrases, or lines. They don't transmit 
letters as they are typed, like TTYs.
    By ensuring a real-time tech standard, the bill will make 
sure deaf and hard-of-hearing people can continue to 
communicate in real-time over the Internet. In addition to text 
messaging, my dad and other deaf people regularly communicate 
using video over the Internet. For example, my dad also calls 
me through video relay services. He connects to a sign language 
interpreter remotely on the Internet, and that interpreter 
signs to my father what I say and speaks back his response to 
me. It is an amazing technology that allows us to converse 
naturally and express our emotions to one another in a way that 
typing never could.
    But many people can't afford these broadband services 
needed for this communication. This bill will allow people with 
disabilities to use their lifeline or link-up subsidies for 
broadband services. The bill also allocates $10 million 
annually for the Universal Service Fund for special 
telecommunications devices that are needed by people who are 
both deaf and blind. The promise that all people in America can 
have a telephone service never reached its population of 
100,000 Americans probably because this equipment, which often 
provides Braille communications, costs thousands of dollars. 
Though the bill asks only for a small amount of money, it would 
make a huge difference in these people's lives.
    The bill also does a number of other critical things to 
ensure full access by hearing aid users, relay users, and 
others needing access that are described in my written 
testimony.
    Mr. Chairman, this concludes my testimony. Thank you for 
the opportunity to speak before you and the members of the 
subcommittee. I hope my personal testimony has given you more 
insight into why this bill is more important for people who are 
deaf and hard of hearing, including the rapid growth of the 
aging population.
    People like my father want to keep pace with technology so 
they can remain active and productive. I also hope my testimony 
has encouraged you to support this introduction and passage of 
the proposed bill. Thank you.
    Mr. Markey. Thank you, Mr. Anderson, very much. I think you 
will be receiving a text message from your father telling you 
how proud he is of you here today right after this hearing. 
Thank you.
    Mr. Anderson. Thank you.
    [The prepared statement of Mr. Anderson follows:]

                      Statement of Jamaal Anderson

    Good morning Mr. Chairman, Ranking Member Stearns, and 
Members of the House Subcommittee on Telecommunications and the 
Internet. My name is Jamaal Anderson, and I am honored to have 
this opportunity to speak to you about the importance of 
ensuring communications access to the Nation's millions of 
Americans who have disabilities, and in particular, Americans 
who are deaf or hard of hearing. I am privileged to have this 
testimony endorsed by the nearly 200 organizations that make up 
the Coalition of Organizations for Accessible Technology, a 
coalition that is working to obtain accessible communications 
and video programming in the 21st Century.
    You may already know me--I am currently a professional 
football player for the Atlanta Falcons. Next season I will 
begin my second year with the Falcons as a starting defensive 
end. But what you may not know about me is that my father, 
Glenn Anderson, is deaf. He is a graduate of Gallaudet 
University and earned his Ph.D. from New York University. (In 
fact, he is the first Black deaf recipient of a Ph.D. in the 
United States.) For the past 26 years, he has worked as a 
professor at the University of Arkansas. From 1994 to 2005, he 
was also Chair of the Gallaudet University Board of Trustees.

                      Introduction and Background

    During the 1980s and 1990s, Congress took major steps to 
improve telecommunications access for people with disabilities. 
In fact, as you know, this Subcommittee was responsible for 
helping to pass several pieces of legislation requiring relay 
services, hearing aid compatibility, closed captioning, and 
basic access to telecommunications services and equipment. I 
witnessed the benefits of these laws in my own home. My sister, 
Danielle, and I grew up watching our father use relay services 
at home and at work. We have vivid memories of how much our 
father enjoyed watching his favorite programs on TV, especially 
the pro football games and the NCAA basketball tournaments. 
Although I was too young to remember, my sister told me that 
before these laws were passed, my father could not make 
telephone calls by himself or enjoy his favorite television 
programs. He had to depend on my mom, who is hearing, to make 
calls for him and to interpret what was happening on 
television.
    Nowadays, new communications technologies are changing even 
more the way our society stays in touch and does business. Now 
there are all kinds of new opportunities to communicate with 
anyone, anywhere, at any time, from any place. For example, I 
can keep in touch with my father by e-mail and instant 
messaging through my Sidekick or Blackberry pager. And my 
father often calls my sister and me using video relay services 
(VRS). These services allow him to connect to a sign language 
interpreter remotely over the Internet. The video interpreter 
then calls me and interprets between us, signing to my father 
what I say and speaking back what he responds to me. It is an 
amazing technology that allows us to converse naturally, in 
real-time, and to express emotions far better than typing over 
text-based relay.
    But many newer innovations, especially technologies that 
use the Internet, are no longer covered by the federal 
accessibility laws that now exist. What this means is that 
millions of Americans who, like my father, cannot hear, may not 
be able to use these new technologies. That is why I am here 
today: to ask you to pass legislation that will ensure that my 
father and other Americans with hearing loss have access to the 
Internet and digital communications tools that are needed to 
allow them to maintain their independence, productivity, and 
privacy.
    We all know that technology companies design their products 
and services for certain markets--most of the time, these are 
American markets that are youthful and able-bodied--they have 
more money, and they are willing and able to try out new, fancy 
devices. But often these products or services are not built for 
people who have some difficulty hearing, seeing or speaking. 
For example, last year at draft time, a number of Web sites, 
including sites posted by NFL teams, NBA teams and news 
entities (CNN and MSNBC), showed video clips of me. But my dad 
couldn't watch them on his own; he needed my mom to interpret 
because none of the sites were captioned. Why don't companies 
include access when they develop services and products for the 
general public? I believe there are several reasons. Some 
companies are simply unaware of the needs of people with 
disabilities. Other companies don't want to use their resources 
to create accessible products if their competitors aren't doing 
the same thing. I understand that it is hard for people with 
disabilities to create enough market pressure to influence 
companies to design accessible products--especially when 
companies believe their money is better spent on trendy 
electronic features that appeal to a wider public.
    This is why we have come to you. If you direct all 
companies to make new Internet-based and digital innovations 
used for communication accessible, all companies will be 
affected equally and no one company will have an advantage over 
another. Even more importantly, if companies ensure that 
accessibility features are built into Internet services and 
products now, while they are still being developed, the costs 
of including these features will be a small fraction of the 
overall costs of producing these products. But if these 
companies wait until later, after their products are already on 
the market, retrofitting will cost a lot more, and the 
resulting access is not likely to be as effective. These are 
the principles of universal design contained in Section 255 of 
the 1996 amendments to the Communications Act, and they are the 
principles that should be followed when this new bill is 
introduced and passed.
    People like my father do not want to be relegated to 
obsolete technologies or have to buy ``specialized'' equipment 
that is often hard to find and more expensive. They want an 
equal opportunity to benefit from the full range of mainstream 
Internet products that they see being used by their friends, 
relatives, and colleagues. The ``Twenty-first Century 
Communications and Video Accessibility Act'' will accomplish 
these goals. Not only will it direct accessibility solutions 
for Internet-enabled and digital communications-based 
technologies, it will also require the creation of a 
clearinghouse of information on accessible telephone-like 
products and services used for communication over the Internet. 
This clearinghouse, along with greater outreach and education 
by the Federal Communications Commission (FCC), will help 
educate consumers about accessibility solutions and how to find 
products and services that they can use.

               Real-Time Text in an Internet-Based World

    One of the most important things that the proposed draft 
does is that it guarantees deaf and hard of hearing people who 
rely on text (rather than voice) the ability to continue having 
conversations in real-time, as communications move to digital 
and Internet-based technologies. When I was growing up, my 
father routinely communicated with friends and relatives using 
their TTYs. But TTYs use very old technology (``Baudot''). 
These devices are also very slow (transmitting a maximum of 60 
words per minute), work only in one direction at a time (you 
have to wait until one party finishes typing before you can 
respond), and generally are not reliable over Internet 
networks. Their many drawbacks have caused my father and many 
other deaf people to turn to text messaging, pagers, and 
instant messaging as their principal means of text 
communication. But the problem is that these newer methods do 
not transmit letters as they are typed (as TTYs did). Instead, 
with these data-based devices, individuals type and then send 
text in bursts of phrases, lines, or sentence-by-sentence, 
rather than sending each character as it is typed.
    For millions of people with hearing disabilities, 
communicating by text is functionally equivalent to 
communicating by voice. I cannot forget how much it meant to me 
when my father sent me a text message wishing me ``Happy 
Thanksgiving and good luck'' on the day of our game against the 
Indianapolis Colts. Before each game I look forward to my 
father's words of encouragement and enthusiasm. And just like 
there are times when hearing people need to have a conversation 
in real-time (as compared to sending text messages on cell 
phones or instant messages over a computer), there are times 
that people who cannot hear need to have their message received 
as it is being sent. For example, in emergencies it is very 
important to be able to convey and receive every piece of 
information as quickly as possible and at the exact time that 
it is happening. The draft bill being considered today will 
ensure that there is a uniform and reliable real-time text 
standard so that people who are deaf, hard of hearing or who 
have a speech disability can communicate in a manner that is 
equivalent to communication between people who can use their 
voices.

                           Universal Service

    In addition to enjoying text-messaging through pagers, a 
great number of deaf people now use Internet-based forms of 
relay service and in particular video relay services (VRS). The 
reason is simple: these forms of relay service offer far more 
effective ways to communicate than traditional text-based relay 
services. Internet-based text relay allows the transmission of 
text at much faster speeds than TTYs and enables conversations 
to travel simultaneously in both directions. And, as noted 
above, VRS allows individuals who use sign language to have 
conversations that flow more naturally, quickly, and 
transparently between the parties, achieving a telephone 
experience that more closely parallels the experience of people 
without hearing disabilities. Approximately one million deaf 
individuals who sign can benefit from VRS as well from being 
able to have direct video conversations with other people who 
sign. In addition, millions more people who are hard of hearing 
can benefit from using Internet-based video connections to see 
people's faces as they speak and lipread conversations. 
Likewise, more than 2.5 million people whose speech is 
difficult to understand may benefit from video communication 
because their gestures and facial expressions can be seen by 
the parties to the call.
    Unfortunately, not every person with a hearing or speech 
disability can afford to pay for the high speed broadband 
Internet service that is needed to support video communication. 
Some of these individuals meet the income criteria to be 
eligible for Lifeline/Link-Up phone service subsidies, but they 
cannot use these discounts toward the cost of broadband 
services. Because the Lifeline and Link-Up programs are tied to 
telephone network-based services, these programs offer no 
financial assistance for low-income individuals with 
disabilities who want to replace their TTYs with improved, 
Internet-based forms of communication. Under the proposed draft 
bill, individuals with disabilities who need the Internet to 
communicate over distances would be able to choose whether to 
use their Lifeline or Link-Up subsidies for telephone network-
based services or high speed broadband services.
    A second universal service provision addressed by the 
proposals under consideration will greatly impact people who 
are both deaf and blind. Although the universal service 
provisions enacted by Congress in 1996 were designed to make 
sure that everyone in America has access to telephone services, 
one group of Americans--deaf-blind Americans--continue to be 
denied this promise. Although a few states have programs that 
distribute specialized customer premises telephone equipment, 
the vast majority of these programs do not give out 
telecommunications equipment that is accessible to deaf-blind 
people. One reason is that typically this equipment (such as 
communication devices with refreshable Braille key pads) costs 
thousands of dollars. The result is that of all people with 
disabilities, deaf-blind individuals are the least able to 
access current telecommunications systems.
    It is for this reason that we are asking for a very small 
portion of the Universal Service Fund (USF)--$10 million 
annually--to be set aside each year to fund the distribution of 
specialized telecommunications devices needed by approximately 
100,000 Americans who are deaf-blind. The small size of this 
targeted amount will not be overly burdensome for the USF but 
will make a huge difference in the lives of this population, 
which remains one of the most underserved populations in 
telecommunications history. Allocating these funds will also 
inform the world that as the United States moves to upgrade its 
telecommunications systems, it is not leaving behind this 
previously unserved population of individuals.

              Hearing Aid Compatibility and Relay Services

    Another important provision in the bill will ensure that 
millions of people who use hearing aids, cochlear implants, and 
other assistive hearing devices will be able to use these 
devices with telephones that connect via the Internet. Federal 
law has required wireline, cordless, and many wireless 
telephones to be hearing aid compatible since 1988. However, 
new smartphones entering the marketplace are not working for 
hearing aid users, and their coverage under this law has come 
under question. As an aging nation, we simply cannot go forward 
without ensuring that these Internet-enabled phones are also 
hearing aid compatible.
    Also important is a proposal in the bill to allow users of 
one type of relay service, such as VRS, to call a user of 
another form of relay service, for example, a text-to-speech 
relay service. The FCC has been interpreting the Communications 
Act to mean that relay services can only be used to provide 
telephone services between a person with a hearing or speech 
disability and a person without a disability. The result has 
been that people with speech and hearing disabilities who use 
different forms of relay services have not been able to call 
each other. This surely could not have been Congress's intent 
back in 1990 when it directed the creation of a nationwide 
system of telecommunications relay services to integrate people 
with hearing and speech disabilities into the public 
telecommunications network!

                               Conclusion

    Mr. Chairman, this concludes my testimony. We call upon 
Congress to ensure that people with disabilities--including the 
rapidly growing population of senior citizens who experience 
reduced hearing with increasing frequency--are not left behind 
as communications technologies move to the Internet and new 
digital technologies. Thank you for the opportunity to speak 
before you and members of the House Subcommittee on 
Telecommunications and the Internet. I hope my personal 
testimony has given you more insight into why this bill is 
important for people who are deaf and hard of hearing. I also 
hope my testimony has encouraged you to support the 
introduction and passage of this critical legislative proposal.

                                Summary

    Many of the laws that Congress enacted to require 
telecommunications access by people with disabilities in the 
1980s and 1990s do not cover new Internet-based communications 
technologies. What this means is that the millions of Americans 
who, like my father, cannot hear are no longer protected by 
federal statutes guaranteeing their ability to have 
communications access. In this testimony, I call upon Congress 
to ensure that accessibility features are built into Internet-
based services and products now, while they are still being 
developed, so that all Americans with disabilities can take 
advantage of the extraordinary benefits that these technologies 
have to offer. I urge passage of the proposed draft of the 
``Twenty-first Century Communications and Video Accessibility 
Act,'' which will accomplish these goals of universal design 
by:
     Mandating access to Internet-enabled 
communications products and services;
     Requiring the creation of a clearinghouse of 
information on accessible Internet-based telephone-like 
products and services;
     Directing greater outreach and education by the 
Federal Communications Commission on consumer rights to 
accessible communications;
     Requiring a uniform and reliable real-time text 
standard to enable people who are deaf or hard of hearing or 
who have a speech disability to communicate in a manner that is 
equivalent to voice telephone communication;
     Allowing individuals with disabilities who rely on 
high speed broadband for their communication (e.g., for video 
communication) to designate whether to apply their Lifeline or 
Link-Up subsidies for high speed broadband in place of 
telephone network-based services;
     Allocating up to $10 million annually of the 
Universal Service Fund for the distribution of specialized 
telephone communications devices needed by Americans who are 
deaf-blind;
     Requiring Internet-based voice communications 
devices to be hearing aid compatible; and
     Clarifying that persons with hearing and speech 
disabilities who use different forms of telecommunications 
relay services may call each other, even when two forms of 
relay services are needed to complete these calls.
                              ----------                              

    Mr. Markey. Our next witness, Larry Goldberg, is the 
Director of Media Access at WGBH, Boston's public broadcaster. 
WGBH has been at the forefront of media accessibility issues 
for more than 30 years, starting with the very first closed-
captioning of television programs. Mr. Goldberg has been 
involved in the technical and policy issues concerning media 
access for many years and has been at the crossroads of access 
efforts by both members of the disabled community and 
representatives of the industry. He brings real-world 
experience to our committee today. We welcome you, Mr. 
Goldberg. Whenever you are ready.

   STATEMENT OF LARRY GOLDBERG, DIRECTOR, MEDIA ACCESS, WGBH

    Mr. Goldberg. Thank you, Chairman Markey and Ranking Member 
Stearns and members of the Subcommittee for the opportunity to 
testify before you today and to show you some demonstrations. 
As you said, I am Larry Goldberg, and I am Director of Media 
access at WGBH. WGBH is the home of public television series 
such as NOVA, Antiques Road Show, Frontline, American 
Experience and many educational children's programs. WGBH is 
also where captioning of television for deaf and hard-of-
hearing people began in 1972 with open caption versions of 
Julia Child's ``The French Chef.'' In 1980, closed captioning 
was launched, enabling all TV viewers to select captioning at 
the touch of a button. WGBH's development of innovative 
technologies, standards, and creative production solutions next 
paved the way for passage of the TV Decoder Circuitry Act, 
requiring caption decoders in most TV sets. Ultimately, the 
1996 Telecom Act resulted in widespread availability of TV 
captioning, and I should mention, last night CBS launched with 
us Spanish versions of The Price is Right with English and 
Spanish captions, along with 60 Minutes in Spanish and English 
both.
    In 1990, WGBH developed the descriptive video service for 
people who are blind or visually impaired. DVS, or video 
description, provides viewers with carefully crafted 
descriptions of key visual elements. Today, DVS is provided on 
dozens of public TV programs for children and adults alike. 
WGBH also produces description for some programs on CBS and 
FOX. I am going to show you an example of video description 
from WGBH's American Experience documentary about baseball's 
Roberto Clemente. Listen for the added woman's voice. She is 
voicing the video descriptions.
    [Video played.]
    Mr. Goldberg. That is good. The Pirates won that World 
Series.
    In April of 2002, the FCC enacted a limited video 
description mandate based on its reading of the 1996 Telecom 
Act. Commercial networks began providing 4 hours of described 
programming per week and ensured the proper delivery of DVS to 
viewers, as required by the FCC rules. However, a court 
challenge overturned the FCC's video description requirement, 
arguing that the FCC misinterpreted Congress's intent. Your 
bill, Mr. Chairman, clarifies that Congress intended to make 
television accessible to all Americans, including those who are 
blind or visually impaired. The bill will also require that 
programs with description reach their intended audiences, 
addressing new barriers that have been inadvertently created by 
the new digital broadcast cable and satellite pathways to the 
home.
    WGBH also houses an R&D office, the National Center For 
Accessible Media, or NCAM. NCAM's mission is to identify and 
address barriers and disseminate solutions that enable access 
to new and emerging media. As you know, Mr. Chairman, more and 
more people are watching TV on their computers and mobile 
devices and, just as in the early days of TV captioning, new 
technologies, standards, and production processes are being 
developed to enable Web-based captioning. These innovations 
have not yet been widely adopted and further work is needed on 
editing and dissemination protocols and common and 
interoperable media formats.
    Implementations of online captioning have emerged, however, 
and can be seen on Web sites for TV programs created by WGBH 
for PBS, including our science series NOVA, as well as on a few 
commercial Web sites. Apple now makes available some closed 
captioned movies in its iTunes store. I would like to play an 
example of a captioned online TV show from the Web site of 
WGBH's Peep and the Big Wide World, a children's math and 
science program. This Flash-based video uses an innovative 
captioning technique developed by WGBH and Adobe.
    [Video played.]
    Mr. Goldberg. Thank you. Even though examples like this 
have been successfully deployed, captioning of web-based media 
is still relatively rare. To overcome the final technology and 
production barriers, WGBH convened the Internet Captioning 
Forum that you mentioned, whose members are the leading 
creators and distributors of Web-based video. With a more 
concerted national effort, with strong consumer activity by 
people who are deaf and hard of hearing and with your focused 
attention on this matter, Mr. Chairman, I believe that a day 
will soon come when vastly more captioning will be available on 
Web sites nationwide and beyond. Thank you.
    Mr. Markey. Thank you, Mr. Goldberg, very much.
    [The statement of Mr. Goldberg follows:]

                      Statement of Larry Goldberg

    Thank you Chairman Markey, and members of the Subcommittee, 
for the opportunity to testify before you today.
    My name is Larry Goldberg, and I am the Director of Media 
Access at WGBH, Boston's public broadcaster. WGBH is not only 
the home of such prominent PBS television series as ``NOVA,'' 
``Antiques Roadshow,'' ``Frontline,'' and ``American 
Experience,'' and many educational children's programs such as 
``Arthur,'' ``Between the Lions,'' and ``Curious George.'' WGBH 
is also where captioning of television for deaf and hard-of-
hearing people began. More than 35 years ago, our production of 
Julia Child's ``The French Chef'' was the first open-captioned 
TV program, followed by a decade of the ground-breaking 
``Captioned ABC Evening News'' and other entertainment, news 
and children's programs we captioned for PBS.
    In 1980, WGBH, along with PBS engineers, launched closed 
captioning, enabling all TV viewers to select captioning of a 
limited number of TV programs at the touch of a button. WGBH's 
development of innovative technologies and creative production 
solutions preceded the launch of both open and closed 
captioning and led the way to the pervasive captioning we have 
available today.
    In 1990, a similar effort enabled the launch of WGBH's 
``Descriptive Video Service,'' or DVS, the first widely 
available media access service tailored for the needs of people 
who are blind or visually impaired. Exploiting the newly 
launched stereo television audio system (known as MTS or 
Multichannel Television Sound), our DVS provides viewers with 
carefully crafted descriptions of key visual elements, timed 
for insertion during the pauses in dialog. Initially only 
available on a handful of PBS programs, DVS is now provided on 
dozens of public TV programs for children and adults alike, and 
WGBH describes programs on commercial broadcast and cable 
networks as well. From Turner Classic Movies to CBS's ``CSI'' 
and Fox's ``The Simpsons,'' blind and visually impaired viewers 
have told us over and over again how much they appreciate 
having access to the electronic media their sighted friends and 
family take for granted.
    In the late 1990s and into the early 21st century, WGBH 
worked with its constituents in the blind community to provide 
the FCC with the technical, financial, and operational 
information it needed to institute a modest requirement for the 
carriage and delivery of video description. Based on its 
reading of the Telecommunications Act of 1996, the FCC's 
mandate went into effect in April 2002. Until November of that 
year, commercial broadcast and cable networks provided four or 
more hours of described programming per week and ensured the 
proper delivery of that extra audio signal to their viewers, as 
required by the FCC rules.
    However, a challenge brought before the U.S. Court of 
Appeals for the D.C. Circuit overturned the FCC's video 
description requirement, arguing that Congress hadn't clearly 
stated its intention to require description the way they had 
regarding closed captioning. Your bill, Mr. Chairman, would 
clarify Congress's intent to make television accessible to all 
Americans, including those who are blind or visually impaired. 
The bill would also assure that programs that have been 
produced with description reach their intended audiences, 
clearing the many barriers inadvertently created in the new 
digital broadcast, cable and satellite pathways to the home. We 
strongly support all aspects of the reinstatement of the FCC's 
video description mandate.
    In 1993, with initial funding from the Corporation for 
Public Broadcasting, WGBH launched the research and development 
arm of its media access activities, now known as the Carl and 
Ruth Shapiro Family National Center for Accessible Media at 
WGBH (or ``NCAM'' for short). NCAM's mission has been to reach 
out to people with sensory disabilities all over the world to 
understand and ascertain their media and communications needs 
and then to take action to help meet those needs. From 
membership in numerous standards committees in all 
technological fields, to advising Federal agencies and 
corporate partners, to developing tools and processes, NCAM 
endeavors to investigate, create and disseminate practical and 
usable techniques to lowering barriers for social inclusion. 
Often with generous grants from Federal agencies such as the 
National Science Foundation and the Departments of Education 
and Commerce, NCAM has acquired deep expertise and developed 
accessibility solutions for theatrical motion pictures, DVDs, 
in-flight entertainment systems, digital set-top boxes, mobile 
devices such as PDAs and cell phones, and online, Web-based 
media, among other platforms. An ongoing project with NPR 
focusing on accessible radio technologies \1\ has excited the 
interest of members of both the deaf and blind communities.
---------------------------------------------------------------------------
    \1\ http://www.nprlabs.org/research/nidrr.php
---------------------------------------------------------------------------
    Today, due to the wider availability of high-speed, 
broadband Internet service and the recognition by content 
providers that consumers of media want more viewing options and 
personal control of their media choices, more and more people 
are watching their favorite TV shows on their computers (and 
mobile devices). And just like in the early days of TV 
captioning, technologies and standards have had to be 
developed, and innovative production processes created, to 
enable the availability of captioning of Web-based media. Much 
of the software and platform development work has been done, is 
being deployed, and is described below. What remain to be 
addressed are common production and distribution processes that 
will bring to deaf and hard-of-hearing citizens what they've 
come to expect from the media they consume.
    These developments started as long ago as 1991, when Apple 
released its first version of QuickTime with its support of 
user-selectable ``text tracks'' for computer-based video. 
Subsequent similar developments by Microsoft (the Synchronized 
Accessible Media Interchange for Windows Media Player \2\) and 
RealNetworks (which bases its RealText format on the World Wide 
Web Consortium's (W3C) Synchronized Multimedia Integration 
Language \3\) and Adobe \4\ have also made the provision of 
textual representations of a Web-based video's audio track a 
technically achievable task. Many Web-based video providers 
have expressed the desire for a single, universal text file 
format, and one initial effort toward this goal has been the 
W3C's ``Distribution Format Exchange Profile'' (DFXP) \5\ which 
was developed by the W3C's ``Timed Text Working Group,'' 
established in 2003. Now under consideration to become an 
industry-wide specification, DFXP would allow for consistency 
across various authoring systems and platforms and would 
provide a common data format for content providers to use in 
providing captions, much the way line 21 (CEA-608) has been 
established as the format for analog TV transmissions and DTVCC 
(CEA-708) are now used for digital TV.
---------------------------------------------------------------------------
    \2\ http://msdn2.microsoft.com/en-us/library/ms971327.aspx
    \3\ http://service.real.com/help/library/guides/production8/
htmfiles/smil.htm.
    \4\ http://www.adobe.com/accessibility/
    \5\ http://www.w3.org/TR/2006/CR-ttaf1-dfxp-20061116/.
---------------------------------------------------------------------------
    Implementations of these various online captioning 
technologies can now be seen on Web sites for TV programs 
created by WGBH for PBS, such as NOVA, \6\ Peep and the Big, 
Wide World, \7\ and others. In addition, the video hosting Web 
site Hulu.com, recently launched by Fox and NBC, includes 
captioning on a number of the series it provides for free. And 
late last year, Apple announced support for closed captions in 
its iTunes software and store, QuickTime software and iPod and 
iPhone devices. Apple's new technical solution (known as 
``.scc'') derives its caption data directly from broadcast TV 
caption files.
---------------------------------------------------------------------------
    \6\ http://www.pbs.org/nova
    \7\ http://peepandthebigwideworld.com
---------------------------------------------------------------------------
    There are now a number of tools that content providers and 
distributors can use to convert their traditional television 
captions into captions for web-based video, or to create and 
display original captions for online media. Examples include 
``CaptionKeeper, \8\'' ``MAGpie,'' and ``CC for Flash, \9\'' 
from NCAM, Captionate \10\ from the Manitu Group, a variety of 
products from CPC, \11\ and the professional-grade, most 
commonly used software in the U.S. captioning industry, Softel 
Swift \12\.
---------------------------------------------------------------------------
    \8\ http://www.captionkeeper.org
    \9\ http://ncam.wgbh.org
    \10\ http://www.buraks.com/captionate/
    \11\ http://www.cpcweb.com/
    \12\ http://www.softel-usa.com
---------------------------------------------------------------------------
    Even with these tools and file formats available, many 
hurdles remain to make captioning of Web-based media as 
pervasive as it is on television. In an effort to overcome 
these final technology and production barriers, the leading 
providers of Web-based video have come together to create the 
Internet Captioning Forum (ICF), \13\ facilitated by WGBH, to 
develop solutions that will increase the amount of online video 
accessible to people who are deaf or hard of hearing. AOL, 
Google, Microsoft and Yahoo! are the pioneer members of the ICF 
who will initially address the technical challenges presented 
by online video repurposed from broadcast or other previously 
captioned sources, as well as video created specifically for 
the Web. The collaboration is expected to yield a range of 
solutions and tools, among them:
---------------------------------------------------------------------------
    \13\ http://www.InternetCCforum.org
---------------------------------------------------------------------------
     A database for online media distributors, 
populated by major captioning providers, of previously 
captioned programs. This tool will facilitate the location and 
reuse of existing caption files.
     Technical and standards documents, case studies 
and best practices for accomplishing pervasive online video 
captioning.
     Demonstrations of innovative practices to preserve 
captions while editing and digitizing captioned videos.

    A recent meeting convened by the ICF in Burbank, 
California, included representatives from the digital media 
divisions of all of the major broadcast networks, leading cable 
networks, and other important players in the online media 
world. This gathering yielded the following consensus 
agreements and action items identified as needing attention to 
advance the cause of online captioning:
     All of the attendees, whether from hosting sites 
or content providers, were enthusiastic about solving the 
remaining problems and moving forward to accomplish pervasive 
availability of captions on web-based video.
     There was discussion about the benefits of a 
singular agreed-upon format for captioning on the web, with 
DFXP being a likely candidate. Interchange from other formats 
will be very useful and changes to the DFXP standard are 
needed, implementations need to be encouraged, and an 
organization needs to take on these tasks to accelerate 
progress.
     Apple's captioning solution (.scc files utilizing 
608 data) for bringing closed captions to their universe 
(iTunes, QuickTime, iPods, iPhones) may serve for other 
entities as well.
     Software translators are needed to facilitate the 
conversion of caption text from a variety of formats to common 
ones for the web. These transformations should include 
broadcast caption/subtitle formats (608, 708, World System 
Teletext) that can be turned into DFXP, .scc, etc.
     Editing tools and systems are needed to repurpose 
existing caption files for use on web-based media. The major 
issues are adjusting for commercial blacks and rippling of time 
code when alterations are made to programs as they move to the 
web.
     Research into best practices for web-based closed 
captioning is needed, including use of caption placement, font 
sizes, styles, user controls, and other options.
    These challenges identified by the ICF and the engaged 
content providers point the way for solutions to making 
captioning more widely available for web-based media.
    Thank you for your time, and I welcome your questions.

                                 # # #

                              ----------                              

    Mr. Markey. Our next witness is Ken Nakata, who is the 
Director of Disability Initiatives and Government Compliance 
for BayFirst Solutions. BayFirst Solutions is a consulting firm 
that provides program management, system engineering and risk 
management and learning services for government agencies and 
private sector companies. We welcome you, sir. Whenever you are 
ready, please begin.

 STATEMENT OF KEN NAKATA, DIRECTOR, DISABILITY INITIATIVES AND 
         GOVERNMENT COMPLIANCE, BAYFIRST SOLUTIONS LLC

    Mr. Nakata. Good morning, Chairman Markey, Ranking Member 
Stearns, and members of the subcommittee. My name is Ken 
Nakata, and I am the Director of Disability Initiatives and 
Government Compliance for BayFirst Solutions. Thank you for 
allowing me to present a brief overview of my opinions on this 
important bill and to provide you--my written testimony 
provides a more complete description, however, of my views and 
provides also supporting references for my opinions.
    For almost my entire professional career, I have worked on 
promoting and enforcing the rights of people with disabilities. 
I firmly believe that the Federal Government plays a key role 
in upholding these rights. For 12 years, from 1992 to 2004, I 
had the privilege of working as a trial attorney with the 
disability rights section of the U.S. Department of Justice. 
For the last 4 years, I have worked as a consultant to make 
information technology of private companies and Federal 
agencies more accessible. Legislation like this draft bill is 
needed for people with disabilities to be more fully included 
in this digital era.
    I support the promise of this bill and its important goals, 
but I would like to spend my time today talking about two 
points which were mentioned by Ranking Member Stearns earlier 
today, the undue burden defense and the private right of 
action, both of which I see as creating potential unintended 
consequences, both for the IT industry, but actually more 
importantly for the disability community as well. My opinions 
are based on what I have seen firsthand as a former litigator, 
a disability rights advocate, and as a consultant.
    First, the current provision allowing private rights of 
action has the potential for serious unintended consequences. I 
believe that it is important to hold industry accountable to 
their promises, an opinion I have always held when I was 
working at the Justice Department. But I also know that the 
litigation can be a Pandora's box, because without procedural 
safeguards, it is difficult to control. This point was made 
very clear to me when I was working at the Department of 
Justice and I was--at the time we were trying to develop good 
case law around providing Internet access for people with 
disabilities, particularly people who are blind, trying to 
access Web sites. Then, in 2002 advocates sued Southwest 
Airlines for their inaccessible Web site. And as a litigator, I 
thought this was the worst possible case we could have because 
it had terrible facts and it was in an inhospitable forum. But 
we called the plaintiffs, asked them to reconsider. And they 
just pushed ahead with litigation. The court's opinion was a 
disaster for the disabilities rights movement. The Southwest 
Airlines decision remains the single biggest impediment to Web 
site accessibility to this day and holds millions of blind 
Americans back from full inclusion in our digital era. The 
undue burden defense also has potential for what I think are 
even potentially more significant unintended consequences but 
in a very different way. I believe that the IT industry has 
spent and should continue to spend considerable resources 
making information technology accessible to people with 
disabilities. As described more thoroughly in my written 
testimony, however, the undue burden defense is radically 
different from the readily achievable defense currently in 
Section 255. While the undue burden defense has never been used 
with multibillion-dollar IT companies solving difficult 
accessibility problems, it will, as currently formulated by the 
Department of Justice and by the courts, require these 
companies to devote all or substantially all of their profits 
to solving these problems.
    As threatening as that might appear to the IT industry, I 
think it actually creates bigger problems for the disability 
community down the road. The simple reason is that I just can't 
see a court doing that. And they are holding an IT company 
responsible to that degree. The problem of course--and the only 
way out, of course, is for the court to weaken the undue burden 
defense. And the problem with that, as far as I can see, is 
that there are other very important civil rights that hinge 
upon having a very high undue burden threshold right now.
    For instance, the reason a deaf patient can get a sign 
language interpreter before a risky operation at a hospital is 
because the undue burden threshold is so high. The reason state 
and local governments have to make all of their programs and 
services accessible to people with disabilities is because we 
have a very high undue burden threshold.
    As an attorney who has worked in the disability rights 
field for such a long time, I would be very saddened to see the 
progress that we have made over the last two decades of 
ensuring the basic rights for people with disabilities eroded 
by using the undo standard here. These unintended consequences, 
however, don't have to become a reality.
    I thank the subcommittee for its hard work in creating a 
sensible law that helps level the playing field for our 
Nation's 54 million people with disabilities. I support your 
work, but I would urge you to do so carefully. And I look 
forward very much to your questions, and I hope that I can 
continue working with you as you move forward in this important 
work.
    Mr. Markey. Thank you very much, Mr. Nakata.
    [The prepared statement of Mr. Nakata follows:]

                        Statement of Ken Nakata

    Good morning, Chairman Markey, Ranking Member Stearns, and 
members of the Subcommittee. My name is Ken Nakata, and I am 
the Director of Disability Initiatives and Government 
Compliance for BayFirst Solutions LLC. I am testifying today, 
however, in my personal capacity. Thank you for the opportunity 
to present my independent views on the staff discussion draft 
of the Twenty-first Century Communications and Video 
Accessibility Act of 2008.
    Since 2004, I have worked in the Seattle office of a 
Washington, DC-based consulting firm. My focus is helping 
government and industry make its information technology 
accessible. I work with a young and highly motivated team of 
software developers and testers helping large Federal agencies 
and corporations meet the needs of their customers and 
employees with disabilities. This work involves developing 
innovative solutions as well as applying well-understood 
existing solutions to large or complex accessibility problems.
    Before 2004, I was a trial attorney with the U.S. 
Department of Justice. For 12 years, I worked at the Department 
on enforcement of the Americans with Disabilities Act (ADA) and 
on helping the Federal government implement Section 508 of the 
Rehabilitation Act. In that role, I represented the United 
States numerous times in Federal court and vigorously enforced 
some of the Department of Justice's first cases under the ADA. 
I have worked on many controversial cases with broad social 
impact and many less controversial cases with smaller impact. I 
have also been asked by Federal courts to participate as amicus 
curiae, in order to present the position of the United States 
where the constitutionality of a Federal statute has been 
called into question.
    My Department of Justice experience also includes a deep 
focus on information technology. I worked extensively with 
disability advocates, industry, and government when I helped 
the Federal Government make its information technology 
accessible as a result of Section 508 of the Rehabilitation 
Act. In that role, I helped develop the Section 508 regulations 
for accessible electronic and information technology, helped 
create the Federal Government's technical assistance for 
implementing Section 508, oversaw all three government-wide 
surveys conducted by the Attorney General, and co-authored all 
of the Attorney General's reports to the President and the 
Congress on Section 508 compliance. My work in information 
technology also extends beyond Section 508, as I have authored 
white papers and presented on the intersection between other 
disability rights laws and the Internet.
    Much of the staff discussion draft of the Twenty-first 
Century Communications and Video Accessibility Act of 2008 is 
focused on improving access for people with disabilities to 
Voice over Internet Protocol (VoIP) telecommunications services 
and on providing captioning for Internet-delivered media 
content. I support these goals and commend the Subcommittee for 
their efforts to further them. While I believe that additional 
regulation in this area is needed, I do not support a private 
right of action (as currently drafted), and I do not believe 
that the undue burden defense is appropriate.

                 I. Need for More Effective Legislation

    Title I of the Twenty-first Century Communications and 
Video Accessibility Act of 2008 bill is focused on improving 
access for people with disabilities to Voice over Internet 
Protocol (VoIP) telecommunications. I believe that this 
legislation is important because of the growing importance of 
VoIP communication and because the proposed bill corrects a 
communication gap present in Section 255 of the Communications 
Act.
    In 1990, Congress passed the ADA, which is now widely seen 
as the most important civil rights law since the Civil Rights 
Act of 1964. Title IV of the ADA required telephone companies 
to provide relay services for deaf and hard of hearing 
customers. By the time of the ADA's passage, telecommunication 
devices for the deaf (TDDs) were a well-understood and proven 
technology. By creating relay services, millions of American 
businesses were suddenly ``open for business'' to deaf and hard 
of hearing customers who could not otherwise communicate by 
telephone. Much work remains before VoIP and real-time text can 
provide a complete alternative to TDDs. I commend the 
Subcommittee for furthering this work and helping ensure that 
people with disabilities can participate meaningfully in our 
digital age.
    Title I of the proposed legislation also seeks to make the 
accessibility efforts by manufacturers and service providers 
more transparent to consumers. Specifically, the draft requires 
manufacturers and service providers to file a ``written 
accessibility and compatibility impact analysis'' for each 
product or service. While I cannot comment on the competitive 
impact or legal risk that providing an impact analysis may 
create for manufacturers and service providers, some additional 
steps beyond the current Section 255 framework would help 
address the perception of a market failure of Section 255. I 
trust members of industry when they identify their successes 
under Section 255 in developing more accessible products. But, 
I also appreciate the frustration I hear from members of the 
disability community when they describe how their needs are not 
being met. If the market has failed with Section 255, it isn't 
from a lack of innovation but a lack of communication. More 
needs to be done to ensure that industry can effectively 
communicate that it understands the needs of the disabled 
community--and that it is responding. Making the process more 
open and more transparent also fosters greater opportunities 
for partnership between industry and advocates in the 
disability community. Working together and helping each other 
understand both the opportunities and the limitations each 
faces will better enable us to provide greater accessibility. 
While providing ``written accessibility and compatibility 
impact analysis'' may prove to not be the ideal solution 
(particularly in combination with other provisions as described 
below), some mechanism that improves communication between 
industry and consumers is a step in the right direction. For 
instance, the Subcommittee's proposal for a clearinghouse in 
Section 104 should be particularly useful and may advance 
accessibility for everyone.
    Title II of the draft bill focuses on captioning and video 
descriptions for Internet-based multimedia content and seeks to 
reinstate the Commission's video description regulation struck 
down in Motion Picture Association of America v. FCC, 309 F.3d 
796 (D.C. Cir. 2002). As more and more multimedia content is 
created, we face an increasing backlog of content that fails to 
meet the needs of people with disabilities. I commend the 
Subcommittee for recognizing that need and spurring this key 
work forward.
    Both sections of the draft Twenty-first Century 
Communications and Video Accessibility Act of 2008 bill are 
excellent starting points for this important discussion. While 
this draft bill focuses on many of the needs in America that 
are not being met, I am concerned about two provisions that may 
harm both industry and the disability community.

             II. Private Right of Action is Not the Answer

    During my 12 years at the U.S. Department of Justice, much 
of my work involved enforcing Titles II and III of the ADA. 
This was the most rewarding job I have ever had. I was one of 
the first attorneys to join the new Office on the Americans 
with Disabilities Act in 1992, just as Title III of the ADA 
came into effect. I worked on some of the first architectural 
cases by the Department and represented the United States on 
many occasions in Federal court. I strongly believe that 
litigation plays an important role in upholding our laws in the 
right circumstances. Those circumstances, however, are not 
present in this bill.
    First, I believe that a private right of action makes sense 
when there are clear rules of conduct that our society can 
expect people or companies to follow. Our society expects 
architects to follow accepted accessibility standards when 
designing a building. Our society expects an event planner to 
think about the communication needs of deaf visitors and 
request a sign language interpreter from a local deaf services 
center. Unfortunately, these clear rules of conduct do not 
exist in the information technology world where the means by 
which we provide access are still unclear or yet to be 
developed. Our society expects information technology to do 
something to meet the needs of people with disabilities--the 
problem is that none of us can definitively say what that 
something is.
    Second, I believe that a private right of action is 
inappropriate because it thwarts innovation. All of us, 
including people with disabilities, benefit from the creativity 
of the information technology industry. Unlike many other 
industries, the IT industry regularly creates entirely new 
categories of products that create both barriers and 
opportunities for people with disabilities. For instance, 
instant messenger technologies, such as AOL Instant Messenger 
or Internet Relay Chat (IRC), were developed and intended as a 
means of easy real-time communication between computer users. 
Also, two-way alphanumeric pagers and RIM devices (predecessors 
of the current Blackberry) were intended as portable messaging 
devices for mobile professionals. Both of these technologies 
remained inaccessible to blind users for many years. At the 
same time, both of these technologies revolutionized 
communication for deaf and hard of hearing individuals and may 
now even supplant long-established technologies like TDDs. 
Unfortunately, a private right of action makes it far less 
likely that these kinds of technologies will come to market in 
the first place. Venturing into new product categories are 
risky business decisions for IT companies. When complicated by 
the risk of litigation, IT companies will be even less likely 
to innovate. In the end, however, it may be consumers with 
disabilities who pay the highest price.
    My concerns about the risks of a private right of action 
are also heightened by the lack of safeguards against frivolous 
or vexatious litigation. For instance, potential plaintiffs do 
not have to first exhaust their administrative remedies before 
proceeding to Federal court. As a consequence, agencies with 
particular expertise (such as the FCC) do not have an 
opportunity to resolve a complaint before costly and damaging 
litigation. In addition, damages are not limited. In this 
regard, Title III of the Americans with Disabilities Act, which 
limits remedies to injunctive relief and attorney's fees, 
provides a useful model as it reduces the likelihood that 
companies will be singled out for litigation.
    Without some limits in place, a private right of action can 
hurt the disability rights movement. For the last 10 years, I 
have focused on IT accessibility, with a particular focus on 
improving access for persons with disabilities to the Internet. 
While I was still at the Department of Justice, advocates sued 
Southwest Airlines in 2002 to make their Web site accessible. 
When we learned about the lawsuit, we called the plaintiffs and 
warned them about the weaknesses in their case, but the 
plaintiffs pressed forward. The court's eventual ruling in 
Access Now, Inc. v. Southwest Airlines, 227 F. Supp. 2d 1312 
(S.D. Fla. 2002) was a disaster for the disability rights 
movement. The decision remains the single biggest obstacle to 
Web site accessibility to this day.

            III. The Undue Burden Defense is Not Appropriate

    Section 104 of the staff discussion draft requires 
manufacturers and service providers to ensure that equipment 
and services are accessible to and usable by individuals with 
disabilities unless doing so would result in an undue burden. 
This wording represents a change from the language of Section 
255 of the Communications Act, which uses the readily 
achievable defense. I believe that the shift from readily 
achievable to undue burden is a significant change that should 
be avoided.
    The undue burden defense originates with the Supreme 
Court's decision in Southeastern Community College v. Davis, 
442 U.S. 397 (1979). Since then, the undue burden defense has 
developed through the Department of Justice regulations for 
Section 504 \1\ and the Americans with Disabilities Act. \2\ 
Federal courts defer to these regulations and the Department of 
Justice's interpretations of undue burden in litigation. \3\ 
These interpretations make clear that all of the financial 
resources of a public accommodation need to be considered in 
determining whether an undue burden has been created. \4\ 
Opting for an undue burden standard also shifts the burden of 
proof to the defendant. \5\ As described below, I believe that 
using such a high threshold is counterproductive--it creates 
risks for innovation in industry but creates even greater 
unintended risks for the disability rights movement.
---------------------------------------------------------------------------
    \1\ 49 Fed. Reg. 35,724 (1984).
    \2\ 28 C.F.R. pt 36 (2008).
    \3\ Stinson v. United States, 508 U.S. 36, 45 (1993); Chevron Inc. 
v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).
    \4\ United States Memorandum of Law as Amicus Curiae in Support of 
Plaintiff's Motion for Summary Judgment and in Opposition to 
Defendant's Motion at 27, n. 31, Kovacs v. Kawakami (D.D.C. Feb. 24, 
1995)(No. 93-2576). See also, Letter from Acting Assistant Attorney 
General Isabelle Pinzler to Senator Joseph Lieberman (Aug. 28, 1997); 
Letter from Section Chief John Wodatch to Dr. Kenneth Hrechka (Feb. 16, 
1995); Letter from Assistant Attorney General Deval Patrick to Senator 
Phil Gramm (Dec. 29, 1994); Letter from Section Chief John Wodatch to 
Dr. W. Yates Trotter (Jan. 15, 1993); Letter from Acting Assistant 
Attorney General James Turner to Congressman Thomas Bliley (Aug. 28, 
1992); Letter from Acting Assistant Attorney General James Turner to 
Senator Larry Pressler (Aug. 28, 1992); Letter from Deputy Director 
Joan Magagna to Dr. Richard Sagall (June 11, 1992).
    \5\ Letter from Assistant Attorney General Deval Patrick to Senator 
Phil Gramm (Dec. 29, 1994). See also, Colorado Cross-Disability 
Coalition v. Hermanson Family Ltd, P'ship., 264 F.3d 999, 1003 (10th 
Cir. 2001); 49 Fed. Reg. 35,724 (1984).
---------------------------------------------------------------------------
    Unlike the undue burden defense, the readily achievable 
defense is easier to understand and is a much lower threshold. 
The term ``readily achievable'' was introduced in Title III of 
the ADA and defined as ``easily accomplishable and able to be 
carried out without much difficulty or expense.'' \6\ Although 
it uses the same factors as the undue burden defense, the 
readily achievable defense was intended to be less difficult 
for businesses. \7\ It also places the burden of proof on the 
plaintiff. \8\
---------------------------------------------------------------------------
    \6\ 42 U.S.C. 12181(9).
    \7\ 56 Fed. Reg. 35544 (July 26, 1991).
    \8\ Colorado Cross-Disability Coalition v. Hermanson Family Ltd. 
P'ship, 264 F.3d 999, 1003 (10th Cir. 2001). Compliance Now v. Newbury 
Comics, Inc., No. 02-11929-GAO, 2003 U.S. Dist. LEXIS 11883 (July 10, 
2003 D. Mass.); Speciner v. NationsBank, 215 F. Supp. 2d 622, 632-33 
(D. Md. 2002); Association for Disabled Americans v. Claypool Holdings 
LLC, No. IP00-0344-C-T/G, 2001 U.S. Dist. LEXIS 23729 (Aug. 6, 2001 D. 
Md.) at *89.
---------------------------------------------------------------------------
    There is an enormous difference between the readily 
achievable standard and the undue burden defense. Ultimately, 
the Subcommittee may decide that both defenses are 
inappropriate in this setting. As noted above, I believe that 
the shortcoming of Section 255 is its failure to create an open 
dialog between industry and consumers--a dialog that the 
current draft bill will hopefully foster. I believe that 
applying an undue burden standard, however, will undermine this 
effort for several reasons.
    First, an undue burden standard threatens the dialog 
between consumers and industry. VoIP and Internet-based 
multimedia are very new technologies that were not commonly 
available 5 years ago. The solutions to these problems will 
likely come from the innovative minds and creative developers 
within industry in partnership with their colleagues from the 
disabled community. The threat of pending and difficult 
litigation is inconsistent with developing the collaborative 
spirit that we need to get this important work done.
    Second, an undue burden defense is particularly problematic 
when combined with other provisions of the staff discussion 
draft. For instance, section 104 requires manufacturers and 
service providers to file a written accessibility impact 
analysis for each product or service released to the public. 
Advocates can search for even the smallest area of 
noncompliance and then sue the manufacturers or service 
providers through the proposed private right of action. And, 
because the undue burden defense shifts the burden of proof 
squarely to the defendant, manufacturers and service providers 
will be defenseless in litigation. The end result may likely be 
that companies will be very reluctant to create new products 
and will be even more reluctant to create new categories of 
products (like instant messenger or two-way alphanumeric 
pagers) that may redefine how accessibility is provided to 
people with disabilities.
    Third, and most importantly, I am concerned about the 
unintended effects to the disability rights movement by 
applying such a high standard to multi-billion dollar companies 
central to our Nation's economy. The undue burden defense has 
worked very well when the costs of compliance are high but 
still manageable. Extending the undue burden defense to multi-
billion dollar IT corporations means that large IT companies 
would have to devote all of their profits to solving difficult 
accessibility problems. The problem I foresee is that Federal 
courts will be unwilling to go that far. To avoid that result, 
courts will simply weaken the definition of undue burden. Then, 
with a lower threshold for undue burden, other rights central 
to the disability rights movement that hinge on the undue 
burden defense will also be threatened and the overall level of 
accessibility in our country will go down. It will be 
unfortunate if the gains our society has won for people with 
disabilities over the last 20 years are endangered by 
misapplying the undue burden defense. A deaf patient can get a 
sign language interpreter before a risky operation because of 
the undue burden defense. State and local governments make 
their basic programs and services accessible to people with 
disabilities because of the undue burden defense. The undue 
burden defense has worked because we have used it sparingly and 
only where it makes sense. It has worked in other contexts 
because it preserves the delicate balance of disability rights 
laws. Using the undue burden standard here upsets that balance.

                             IV. Conclusion

    In conclusion, I would like to express my gratitude to the 
Subcommittee for the opportunity to express my views. For 
almost my entire professional career, I have focused on 
improving accessibility for persons with disabilities. The 
Twenty-first Century Communications and Video Accessibility Act 
of 2008 is one of the most exciting opportunities for people 
with disabilities to be included in the promise of our digital 
era. We will fail, however, if our zeal to create more 
accessibility ultimately creates less. Finding the right course 
requires carefully balancing different approaches in light of a 
complex background of other civil rights laws. I commend 
Chairman Markey and the other members of the Subcommittee for 
their diligent effort at finding the right balance. I look 
forward to working with the Subcommittee in their efforts.
                              ----------                              

    Mr. Markey. Our final witness is Sergeant Major Jesse 
Acosta, who has served in the United States Army since 1976. 
Sergeant Major is not in uniform today because he is not here 
in his official capacity nor is he testifying on behalf of the 
United States Armed Services. If he were in uniform, among the 
many commendations he has earned, you would see the Purple 
Heart, the Bronze Star, the Meritorious Service Medal. Sergeant 
Major Acosta has served in Iraq since 2006, where he was 
injured in a mortar attack. His most severe injury was the loss 
of his right eye and the loss of vision in his left eye.
    Sergeant Major Acosta, you represent brave men and women 
from across the country who have returned from Iraq with 
disabilities. We appreciate your service. And we look forward 
to your testimony.

     STATEMENT OF SERGEANT MAJOR JESSE R. ACOSTA, U.S. ARMY

    Sergeant Major Acosta. Good morning, Chairman Markey, 
Ranking Member Stearns, and members of the Subcommittee. My 
name is Jesse Acosta. I am a sergeant major in the United 
States Army, and I am currently still active at this point in 
time. As you heard, I came back from the war in Iraq completely 
blind. And I am here to testify on my experiences on the 
outside and to represent American Council of the Blind.
    Let me start with this. Prior to being shipped overseas, I 
was a user of a Sprint wireless system cell phone. I wanted to 
continue to use the same provider when I came home with my 
injuries. And as I went to a Sprint store and asked what did 
you have for me that would be blind friendly so I can use and 
navigate that was accessible to me, a young lady came to me 
with a cell phone and said, Sir, right here on the number 5 
key, you will find a little nub on it. You will be able to 
navigate. Above the 5 is a 2, on the right is a 6, on the left 
is a 4, on the bottom is the 8. I stood there quietly. So what 
about the rest? Well, it wasn't user-friendly to me. The 
accessibility was not there.
    And by this is what I am saying is that here in the United 
States, the richest nation in the world, we have the technology 
to give us accessibility whether it be for satellite receivers, 
cable receivers, and televisions. Just by pressing a button on 
a remote control will give us that accessibility as far as a 
screen reader. Do we have that? No.
    I own a 1984 Chrysler LeBaron. You can sit behind the wheel 
of that vehicle and install or place the key in the ignition, 
and if you do nothing, it will tell you, key is left in the 
ignition. Once you start the vehicle, as the vehicle is warming 
up, if the fluids are low, it will tell you so. If the system 
is not charging, it will tell you so. This vehicle is a 1984, 
almost 30 years old. And it just has a little chip that will 
describe what is wrong with the vehicle. I believe it was user-
friendly to the females. I have no idea. But still, how can a 
vehicle talk to me and still we have components on the outside, 
as I mentioned, that cannot describe what is happening to us? 
My favorite programs, CSI: Miami, CSI: New York, and also CSI: 
Las Vegas, of the three, only one has descriptive audio in it. 
That is CSI: Las Vegas. What about the other two? I am stuck on 
one? No. It is not acceptable.
    You know, I love watching these programs. But if there is 
something of essence in the program that is not being 
described, I have to sit quietly and wait and see what is going 
to be said or yell for my family members or my wife Connie, 
``What are they displaying on TV?'' It is vital to the movie.
    But what if it was something, a scroll going by? I live in 
California. Over there we shake, rattle and roll. We also have 
mud slides. But if there was a screen going on the TV set, you 
know, brace yourself, we are going to have an aftereffect, we 
just had a 6.0 in central California, am I going to be able to 
read that? No. What if my family members are out shopping and 
there is nobody there? I won't know a thing. It is very 
important.
    What it brings back to memory also is my child, Brittany. I 
remember we used to buy her electronic books. It was a standard 
book, but to the left side of that book, you could press a 
button and it would read you page by page as you went on. It 
would read to you and describe what was going on.
    Simple little things like that, a book that costs $1.50, 
and we can't implement this law of accessibility? It is not 
acceptable.
    I urge you members, Chairman Markey, Ranking Member 
Stearns, pass this law, make it a law. Let's not wait for it to 
happen. Let's not leave it to the market.
    With that, that concludes my testimony. Any questions?
    [The prepared statement of Sergeant Major Acosta follows:]

                       Statement of Jesse Acosta

    Chairman Markey, Ranking Member Stearns, and Members of the 
House Subcommittee on Telecommunications and the Internet, I 
want to thank you for the invitation to discuss the very 
important topic of accessibility to communications for people 
with disabilities. I am honored to have this opportunity to 
testify on an issue that affects millions of people with 
disabilities. My name is Jesse Acosta, and I am a Sergeant 
Major in the United States Army, proudly serving our country 
since 1976. In June 2003, I joined the Individual Ready Reserve 
program and remained there until I was called to active duty in 
Iraq in June 2005. My unit is the 376th AG BN DET. 4, and we 
were mobilized in support of Operation Iraqi Freedom on August 
20, 2005, where we were assigned to logistical support missions 
at Anaconda in Balad, which is the largest support base in 
Iraq. In January 2006, I received promotion to Sergeant Major. 
On January 16, 2006, I was wounded in a mortar attack. Among my 
several injuries are the loss of my right eye and loss of 
vision in my left eye.
    As the result of my loss of sight, my journey to re-
establish a normal lifestyle at times has been an odyssey. 
Nevertheless, I'm moving forward with all the challenges that I 
have had to face and will continue to do so from this point on. 
With today's modern technology, our lives can be made a little 
bit easier if our government chooses to make changes to some of 
our existing laws that at this point in time do very little to 
meet the technological needs within the blind community.
    I am pleased to offer my testimony today on behalf of the 
American Council of the Blind (ACB), which is the largest 
consumer-based organization of blind and visually impaired 
Americans advocating for the rights of blind Americans. 
Comprised of more than 70 affiliates across the entire United 
States, the organization is dedicated to making it possible for 
blind and visually impaired Americans to participate fully in 
every aspect of American society.
    As an active member of ACB, which is a founding member and 
steering committee member of the Coalition of Organizations for 
Accessible Technology (COAT), I offer my statement.

                      Introduction and Background

    There are roughly 10 million individuals who are blind or 
who have vision loss, about 100,000 persons who are both deaf 
and blind, and millions of individuals with other disabilities 
who benefit greatly from accessible communications. In 
particular, I offer this testimony today in support of the 
thousands of veterans with vision disabilities, including those 
who are returning from Iraq with injuries to their eyes.
    ACB affiliate members are excited by the promises of new 
Internet Protocol (IP) and digital technologies. Like most 
consumers, we look forward to the benefits of technological 
advances. Unfortunately, history has shown that all too often, 
people with disabilities have been left out or left behind as 
these advances have taken place.
    We are in the 21st century with all this innovative 
technology, and yet we in the blind community have to rely on 
assistance from others, especially when it has to do with 
accessing information through the use of consumer electronics. 
I own a late model Chrysler Le Baron that comes with a chip 
that allows you to be informed through voice output when 
various systems for the vehicle are in need of maintenance. If 
your oil is low, it will tell you so; the same applies for all 
other fluids. It talks to you. Why is it that a vehicle that 
was made almost 30 years ago has the technology that we are 
seeking at the present time for products like DVRs and cable 
boxes? This is beyond me.
    The draft ``Twenty-first Century Communications and Video 
Accessibility Act'' being discussed today would be a big step 
forward. It would amend the Communications Act--the primary 
statute that addresses telephone and television products and 
services--to add new consumer protections for persons with 
disabilities. I will address several critical communications 
provisions in this proposal concerning vision disabilities. My 
colleagues on this panel are addressing other provisions found 
in the proposal.

   Ensuring Accessible Television for People with Vision Disabilities

    Today we are simply asking that television be made more 
accessible for persons who are blind or visually impaired. 
Television is a primary source of information, entertainment, 
and news, including local emergency information such as school 
closings, bad weather, and other disasters. While I enjoy 
television greatly--my favorite TV shows are CSI: New York and 
CSI: Miami--picture yourself sitting in front of your 
television watching your favorite program and having to guess 
what's happening in between the lines when it gets quiet. Is 
there movement on the screen, or are they displaying something 
of interest that you can't see that could be an integral part 
of the plot? Now let's say it was a crawl being displayed 
because of an emergency that would be something of vital 
interest to us all. Unless we have someone there to read to us, 
we will not have a clue as to what was displayed on screen. 
Living in Southern California can present any number of 
weather-related challenges. We live with fires, mudslides, and 
earthquakes on a fairly regular basis. So you can see what it 
means to all who may need this assistance. If my TV or 
satellite receiver had a button to utilize so that I can have 
the onscreen text read to me, things would be a whole lot 
different. Self-preservation is critical in emergencies.
    We are asking you to reinstate the Federal Communications 
Commission's (FCC's) regulations for video description that 
were struck down by the U.S. Court of Appeals in 2002. And we 
are asking you to expand those rules in two ways. First, to 
ensure that video description services are transmitted and 
provided over digital TV technologies, since the previous set 
of regulations was for analog television only. As you enacted 
previously, nearly all television stations must broadcast 
digitally by February 17, 2009. Those of us who are blind or 
visually impaired want to be sure we can hear the video 
description on that day when we watch our favorite TV shows. In 
fact, we are also asking you to give some authority to the FCC 
to require video description for more than the simple 4 hours 
per week of programming that the old analog rules required. 
People who are blind or visually impaired watch more than 4 
hours of television a week!
    Second, and even more importantly, we are asking you to 
require that non-visual access to on-screen emergency warnings 
and similar televised information is also video described so 
that we too can know where to go in emergencies, what phone 
numbers to call and what Web sites to visit.
    Primarily, what we are asking is to make sure we can use 
the television like people without severe vision loss. Right 
now, I have to ask my wife Connie to operate various features 
of our television for me. We want a requirement for accessible 
user interfaces on television equipment and controls. For 
instance, we want accessible on/off and volume controls and 
program selection for TVs and other devices that receive or 
display video programming, including Internet-based video 
programming. This could mean, for example, providing audio 
output for on-screen text menus that are used to control video 
programming functions, as well as a conspicuous means of 
accessing video description, such as a button on remote 
controls and first-level access to these accessibility features 
when available in on-screen menus. We would also like to have 
the TV programming and navigational guides accessible to people 
who cannot read the visual display, so that these individuals 
can make program selections.

                   Technical and Economic Feasibility

    During the period in which the FCC's video description 
rules were in effect, \1\ national broadcasters routinely 
demonstrated the technical and economic feasibility of 
description by adding this feature to their programs. With the 
advent of digital television, it will soon be easier than ever 
for broadcasters to build into the digital structure ways to 
pass video description along to viewers. In fact, it is 
imperative to immediately require that the digital television 
standard include video description while digital television is 
nascent, because the failure to do so now may lead to greater 
technical and economic obstacles to providing video description 
in the future.
---------------------------------------------------------------------------
    \1\ Rules were in effect April 1, 2002 to November 8, 2002. The 
Communications Act of 1996 authorized the FCC to conduct an inquiry to 
assess the appropriate means of phasing video description into the 
television marketplace. Although the FCC's response to this grant of 
authority was a modest requirement that broadcasters and other 
multimedia video programming providers in the top 25 major national 
markets provide video description on only four primetime programming 
hours per week, the broadcast and cable television industries 
successfully pursued litigation to overturn this mandate. As a 
consequence, currently there are no federal requirements to make 
television programming accessible through video description, nor is 
similar access to on-screen emergency information required.
---------------------------------------------------------------------------

                               Conclusion

    It is imperative that Congress ensure that people who are 
blind or visually impaired--including the rapidly growing 
population of senior citizens who are losing their vision--are 
not left behind as television technologies move more to digital 
and Internet-based technologies.
    On behalf of the American Council of the Blind, I thank the 
Subcommittee for this opportunity to share our concerns and 
urge you to introduce and pass legislation that will safeguard 
the consumer needs of millions of Americans with disabilities.

                                Summary

    There are roughly 10 million individuals who are blind or 
who have vision loss, about 100,000 persons who are both deaf 
and blind, and millions of individuals with other disabilities 
who benefit greatly from accessible communications. In 
particular, I offer this testimony today in support of the 
thousands of veterans with vision disabilities, including those 
who are returning from Iraq with injuries to their eyes. ACB 
affiliate members are excited by the promises of new Internet 
Protocol (IP) and digital technologies. Like most consumers, we 
look forward to the benefits of technological advances. 
Unfortunately, history has shown that all too often, people 
with disabilities have been left out or left behind as these 
advances have taken place. We are asking for the following:
     Reinstatement of the Federal Communications 
Commission's (FCC's) regulations for video description that 
were struck down by the U.S. Court of Appeals in 2002 and to 
expand those rules in two ways:
       To ensure that video description services are 
transmitted and provided over digital TV technologies, since 
the previous set of regulations was for analog television only. 
As enacted previously, nearly all television stations must 
broadcast digitally by February 17, 2009. Persons who are blind 
or visually impaired want to be sure to hear the video 
description on that day. We ask also for some authority given 
to the FCC to require video description for more than the four 
hours per week of programming that the old analog rules 
required.
       We ask for a requirement that non-visual access 
to on-screen emergency warnings and similar televised 
information is video described so that we can know where to go 
in emergencies, what phone numbers to call and what Web sites 
to visit.
     A requirement for accessible user interfaces on 
television equipment and controls. For instance, accessible on/
off and volume controls and program selection for TVs and other 
devices that receive or display video programming, including 
Internet-based video programming. This could mean audio outputs 
for control functions and a button on remote controls for 
first-level access to these accessibility features on menus.
     TV programming and navigational guides accessible 
to people who cannot read the visual display, so that these 
individuals can make program selections.
                              ----------                              

    Mr. Markey. Thank you very much, Sergeant Major. That was 
very powerful. Thank you.
    The Chair will recognize himself for a round of questions. 
Let me begin with you, Mr. Goldberg.
    As someone with a long history with closed captioning, I 
would like your sense of whether the fact that a law was passed 
imposing an obligation--1990, 1996--and the establishment for 
deadlines were helpful or not in ensuring that the entire 
industry served the disabled community.
    Mr. Goldberg. Yes, Mr. Chairman. Those deadlines that were 
imposed for developing the chip for the Decoder Act and getting 
on the air with captions lit a real fire under content 
providers and distributors of programming. We really did need 
that deadline, and we met that deadline through very good, 
concerted action by consumers, manufacturers, and program----
    Mr. Markey. And the deadline was important?
    Mr. Goldberg. Very important.
    Mr. Markey. The Internet industry asserts that captioning 
of the Internet is technically very, very difficult for them, 
and it is very hard for them to figure it out. And these are 
the smartest technological people in America, and they say they 
just can't figure it out, it is very hard.
    Do you agree? Is it very difficult for these geniuses in 
Silicon Valley, on Route 128 outside of Harvard and MIT to 
figure this out?
    Mr. Goldberg. Well, I think they actually have figured it 
out, as you saw today on Peep. What needs to be figured out is 
how to make it pervasive, how to make it widespread.
    Mr. Markey. If it is not that difficult, then what should 
we do to make sure there is more consistency in the 
marketplace? That is, that what we saw today is done uniformly 
across the entire marketplace? Do we need a law, do we need 
regulations, do we need deadlines put in place so that everyone 
meets the standard that you showed us on the screen today is 
already possible?
    Mr. Goldberg. I think the answer is, how do you turn a low 
priority into a high priority.
    Mr. Markey. You are saying it is a low priority for the 
industry?
    Mr. Goldberg. Exactly. And to raise that up, there are some 
really good, hardworking people in these companies who need 
something that can help drive them to be able to accomplish 
what they want to accomplish.
    Mr. Markey. Why is it a low priority for the industry?
    Mr. Goldberg. Well, the disability market is not a market. 
In fact, I think it is an example of market failure. You can't 
wait to increase your bottom line by selling more captioning to 
deaf people. They don't even pay for captioning.
    So there are so many other distractions and other markets 
to look at, it is hard for companies to agree to put the 
resources voluntarily. When they get together, they do good 
work together. We do good work together, but we all need a 
push.
    Mr. Markey. So you are saying, they are so busy trying to 
make money that it is hard for them to turn around and say, 
what about all of the people with disabilities out there----
    Mr. Goldberg. It is great----
    Mr. Markey [continuing]. We will get to that later?
    It is not that we can't do it. We could do it. It is just a 
low priority.
    We have to make a lot more money before we get to that 
point, huh?
    Mr. Goldberg. I think it is great they make that money and 
help invest in their disability access with some of the 
funding.
    Mr. Markey. Now, Mr. Anderson, you mentioned that deaf 
people have a number of options to communicate using text 
messaging, instant messaging and paging.
    With all those choices, do we need a standard for real-time 
text communication?
    Mr. Anderson. Yes, we do. Because that is not a real-time 
standard.
    Say you have a person with disability in trouble who needs 
to contact 911. They would have to send a whole phrase with 
those that we have out now, rather than sending it word by 
word--excuse me, letter by letter.
    Mr. Markey. And the consequence, then, is that there is a 
delay in the reaction?
    Mr. Anderson. Yes.
    Mr. Markey. And the consequences could be catastrophic?
    Mr. Anderson. They could.
    Mr. Markey. Mr. Snowden, attached to your testimony is an 
article about handheld scanners that can turn text on 
photographed documents into speech. This is a wonderful device, 
and others like it can bring empowerment to individuals, but 
they are very costly. The one in the article is $2,000. How do 
we bring the cost down?
    Mr. Snowden. I think, as you have seen through any product 
that comes out first to market, they are usually very, very 
high. As we perfect it and get it out to the mass market, the 
prices will begin to come down.
    You have seen that with HD televisions, as well. I mean, at 
one point you had to take out a second mortgage to be able to 
get one, and now they are reasonably priced. And the same will 
happen with these products as they go forward.
    It is a great product and a great example of how the 
industry is actually doing what I think many people want.
    Mr. Markey. The problem, Mr. Snowden, is, Mr. Goldberg is 
saying the market is not working; that is, if there had to be 
mass production of this device and every company had to make 
it, we could reduce the cost from $2,000 per item.
    This goes to the whole question of the closed-captioning 
chip in a TV set. If you built it for only one, it is going to 
be very expensive. If you build it for all 27 million TV sets 
that are sold in the United States every year, the cost goes 
down to $1 per TV.
    So, what would be the objection to mandating that this 
technology be built in? Wouldn't that result in a much lower 
cost per unit if all companies were required to do this?
    Mr. Snowden. Are you referring to the closed captioning, or 
are you referring to the menu option in the article?
    Mr. Markey. The empowering technologies.
    Mr. Snowden. First, I would say that I don't think Mr. 
Goldberg was saying that all parts of the industry, all parts 
of the market and--there are certain parts that I am sure he 
would agree that are doing well. And I think the wireless 
industry, by example of my testimony and the same article that 
you have seen, were showing that we are doing a lot in the 
various areas, hitting a variety of disabilities.
    As we go forward, one of the things that I think is 
important for all of us, and particularly us as an industry, we 
have to keep understanding what people in the community want. 
And that is, you don't do that in the vacuum, you do that by 
meeting with the people. And I think through the many advisory 
committees and the TEITAC process, the HAC process and things 
of that nature--meeting with the COAT Coalition. That is how we 
learn what is important.
    Mr. Markey. So you have heard from the community today, 
they want this legislation to pass. Would you work with us to 
draft it in a way which can pass this year, Mr. Snowden?
    Mr. Snowden. We have been working with the committee and 
the members in the room today, the advocate members in the 
room, for months on end on many of these issues.
    We sat through a 2-year process for the U.S. Access Board's 
TEITAC process with many of the people in this room here, side 
by side, multiple hours, working through--trying to figure out 
the standards. And that is the important part. Before we go 
forward, we need to have--what are the standards as we go 
forward.
    Larry--excuse me, Mr. Goldberg has the IC----
    Mr. Markey. Can you help us, maybe--I don't want to keep 
interrupting you, but what I found in 1990 and 1992, 1996, we 
just had to set a deadline.
    Would you help us to develop what the deadline should be so 
that we can just legislate that and then work out what the 
standard is but then with kind of a deadline for when the exam 
is going to have to be completed?
    Mr. Snowden. We will continue to work and advise and 
consult with this committee on anything.
    Mr. Markey. Including setting deadlines?
    Mr. Snowden. If that is what this committee wants to do, 
that is up to you all, of course. I think our concern with 
setting a deadline is first understanding the technology.
    Mr. Markey. I understand.
    Here is the way I view deadlines: there are some colleges 
in America that don't give final exams. And that is really 
great for the kids that had 4.0 all the way, kindergarten 
through college. But for people like me, you had better have an 
exam, because I am not going to study until the exam is set. 
When you give me the deadline, I start to do my homework, 
right?
    It is amazing how much I can learn and get done in that 
final couple of weeks before the exam. But if it is January and 
the exam is in June, I don't stop working.
    That is just how human nature is, don't you think, Mr. 
Snowden, in general for most people? I hate to say it; it is 
just a sad fact of the matter.
    I think, working together, we will just set deadlines; we 
will give people enough time. But most of these people are 
very, very smart, and if they work together, I think that once 
the deadline is set, they can find the solution. They did so 
with all the closed captioning, the telecommunications devices 
for the deaf law. Somehow or another they met every deadline.
    Can you work with us to do that now in these areas?
    Mr. Snowden. We will always work with you. I will say that 
I went to a school that had set deadlines as well. So I 
understand your point.
    Mr. Markey. You know what I am saying. It is like the first 
game of the season. You are not intensifying your efforts in 
April and May and June as you are in the first week of October, 
getting ready for it.
    Let me stop here and recognize the gentleman from Florida, 
Mr. Stearns.
    Mr. Stearns. Thank you, Mr. Chairman. And I just want to 
compliment your staff and my staff also for these witnesses. 
They did, I think, an exceptional job of making the argument.
    And, Mr. Snowden, setting a deadline like we are doing for 
the digital transition, February 17, 2009, I am not sure 
industry would have done anything without us setting a 
deadline. So perhaps that reinforces the argument that Mr. 
Markey is making, that sometimes you have to set a deadline, 
although Mr. Markey is also implying that if you are not 
working with us, we do have an alternative here, which is a 
hammer. So I caution him, and I appreciate him doing a draft 
here.
    Sergeant Major Acosta, I dropped a bill, H.R. 5734, myself 
and Eddie Towns, a Democrat from New York, to try and determine 
for the blind when they are in shopping centers or they are 
trying to make their way in busy streets. A lot of the hybrids 
now are silent, you can't hear them; and we are trying to do a 
study to understand what is the implication, not only for 
people who are blind, but also for children and for senior 
citizens who are walking in shopping centers or anywhere else. 
What does it mean when all the automobiles are running so you 
can't hear them?
    So I am very sensitive to this argument of accessibility 
for disabled individuals.
    Mr. Anderson, I think your life story and your father's is 
very inspirational. And the fact that your father and you 
communicate even--in the face of the disability shows that you 
are improvising, you and your father, and it is working out 
through text messaging and everything. Certainly if you can, it 
seems like industry could, too.
    So I think the argument is probably that industry's nose to 
the grindstone could probably figure it out. But I think, as 
Mr. Nakata has indicated, there is a possibility of this 
private right of action which enables people to sue in court 
for alleged violations.
    And going back to what he said earlier--and we talked about 
this Southwest Airlines access, now Incorporated versus 
Southwest Airlines--he said it was a disaster for the 
disability rights movement.
    So I hope the Chairman will obviously take that into 
effect, because I think what we heard today is that 
accessibility for Sergeant Acosta in his Sprint telephone--if 
he can get it from his 1984 Chevrolet, certainly we should have 
a Sprint telephone that he could push a button and it would 
tell him what to do, and it would make it accessible for him.
    And for Mr. Harvard, who was very dramatic in his 
presentation--I compliment him; I also would vote for him an 
Oscar in that regard--that he makes a very, very good case for 
why can't he have Internet access to Internet television, or 
why can't he have Internet access to--when he moves into a 
hotel room, having support. I know when I get the remote, I 
can't figure out the remote; and I imagine it is even harder 
for people in his situation. So I think we are all sympathetic.
    But it looks like this legislation, if push comes to shove, 
the industry probably, Mr. Snowden, can probably work some kind 
of compromise that is being done. Mr. Goldberg has just shown 
you here and there.
    But it seems like--Mr. Nakata, it appears that this 
legislation would--this private right of action is a stumbling 
block. That is the way I perceive your testimony. And you might 
tell me again why it is a disaster for the disability rights 
movement, that particular decision. Is it that the industry 
would be apt to not do it because of the private right of 
action?
    Now, we have a consumer protection bill that is going to be 
on the floor today. Tomorrow, we are having a conference with 
the Senate. And we have worked out language to work ourselves 
around this private right of action, and there has been 
consensus agreement on this. And I would be glad to share that 
language with you--my staff--because I think we can work 
through that.
    But just give us a little bit more nuance as to why this 
decision with Southwest Airlines is so detrimental to the 
disability rights movement.
    Mr. Nakata. Thank you for that very good question.
    The Southwest Airlines decision was--it was bad because of 
the definition of what constitutes a place of public 
accommodation under Title III of the Americans With 
Disabilities Act. I think it was originally envisioned to 
incorporate things that were already existing in 1990, which is 
really bricks-and-mortar businesses. And then, as we all know, 
as time goes forward, now businesses--business really takes 
place in large measure over the Internet.
    I don't think it is a great stretch to say that we should 
modernize our civil rights laws and our interpretation of the 
civil rights laws, like the Americans With Disabilities Act, to 
include online business, but we are still stuck with the 
language of the original ADA and the regulations, which seem to 
tie things down to a place.
    Mr. Stearns. We are talking about updating the Americans 
With Disabilities Act, and you are saying, that is where it 
should be done. And if it could be done there, then that would 
be acceptable?
    Mr. Nakata. No. It is a little bit more difficult than 
that.
    I think that we can interpret the current ADA to include 
online services. And the Justice Department had been making----
    Mr. Stearns. Including Sprint? Not just the Internet 
devices and the handheld, but also--the telephones too?
    Mr. Nakata. No, not the telephones. The ADA encompasses 12 
distinct categories of places of public accommodation, which 
are really like private businesses--people that are open to the 
public, like service providers, gas stations, shopping stores, 
things like that. They are very broadly interpreted.
    But telephone companies are more like utilities, unless you 
are going in to pay your bill, of course. Then that would be a 
place of public accommodation. It is very technical.
    But the point that I was trying to make, I think those 
places of public accommodation are really where most of 
American business takes place and I think really are the goods 
and service providers that most of us are looking for when we 
think about access to American business. And I think that the 
current Americans With Disabilities Act could be interpreted to 
include a lot of online services.
    The problem with the Southwest Airlines decision was that 
it is now being used to say, no, if you are an online business, 
you don't have to do anything for people with disabilities, you 
don't have to make your Web site successful.
    Mr. Stearns. You are saying, right now the law could be 
interpreted that as much as these individuals are asking for 
access capability for these devices, the law could be 
interpreted that the industry does not have to provide it 
because of the Southwest Airlines decision?
    Is that what you are saying?
    Mr. Nakata. Yes. A lot of private businesses are using 
Southwest Airlines for the position that they don't have to----
    Mr. Stearns. So under the private right of action 
violation, if they went to court and sued, they couldn't win 
because of the precedent established by that case?
    Mr. Nakata. They would have difficulty, yes, because of--my 
point in raising the Southwest Airlines case is that if you--a 
private right of action--if I were in control of the world, and 
I could control every decision about what litigation went 
forward, everything would be fine in my perfect little world.
    The problem is that we can't really control who is going to 
litigate over what. And then the Southwest Airlines case, 
Access Now, happened to choose very bad facts and a very bad 
forum, and they ended up with a very bad result. It then gets 
interpreted throughout the country by other courts for the 
proposition that Internet access doesn't have to be provided 
for people who are blind.
    And that is tragic, in my opinion. And it was corrected to 
some extent by a district court opinion in California, the 
Target decision. But still, the Southwest Airlines case is 
always cited alongside Target.
    Mr. Stearns. Thank you for that explanation.
    Thank you, Mr. Chairman.
    Mr. Markey. The gentleman's time has expired.
    The good thing, Mr. Nakata, is that you aren't in front of 
the committee in charge of the whole world when it comes to 
telecommunications. So your testimony is very helpful to us in 
trying to find a remedy for each of these problems.
    The Chair recognizes the gentleman from Texas, Mr. 
Gonzalez.
    Mr. Gonzalez. Thank you very much, Mr. Chairman.
    I guess I want to preface everything, what we are 
discussing here and the importance of it. And a lot of people 
look at the entertainment aspect of it.
    What we are really discussing here, and probably the need 
for this legislation, is how the world communicates today--that 
is what is really before us--and leaving an entire segment of 
our society out of the progress that is being made and setting 
certain standards in the way that we communicate, not just the 
way we entertain, but everything that is predicated on that.
    If you really understand what we are trying to extend to 
all Americans--and that is, I believe, what Mr. Markey is 
attempting to do with this piece of legislation--so I want to 
start with the basic question about whether we need this 
legislation or not.
    It seems to me, Mr. Nakata, that the Southwest case may 
very well be an argument in favor of saying that this 
legislation is necessary, because if we have the technology and 
then the Southwest Airlines of this world are readily available 
to do things with their Web site and such, that would allow 
them to have complied with what formed the basis of the private 
lawsuit. Is that correct?
    Mr. Nakata. Thank you for that question.
    Yes, I don't disagree with the concept of this legislation. 
I do--I am fearful, though, that the private right of action as 
currently drafted, without any procedural safeguards, can 
eventually cause some problems.
    Mr. Gonzalez. And I understand that. And I am a great 
believer in private causes of action, and I understand that we 
have frivolous lawsuits out there and such.
    But I also see many, many instances where it was a private 
cause of action that basically made advances across this Nation 
and obviously provided great opportunities for the underserved, 
the underrepresented, and so on. And we have to--I understand 
that maybe we should have some conditions, precedents and such, 
to safeguard against certain things.
    But sometimes government moves very slowly. Regulatory 
agencies are really no more than political extensions of who 
may be in the White House, and we have had plenty of examples 
of that in the past 8 years where they have not been watchdogs, 
where they have not promoted the public interest. I think 
sometimes the private cause of action is the only thing left 
out there to our citizens.
    Now, as far as the undue burden and such, the problem with 
readily achievable--and I am not saying that I am not open to 
looking at this. In your testimony under ADA, it is being 
defined as ``easily accomplishable and able to be carried out 
without much difficulty or expense.''
    This is a different setting. What Mr. Markey is addressing 
here, as opposed to ADA, we are talking about technology. And I 
know that Mr. Snowden may want to go ahead and chime in when I 
finally get through here trying to pose this question.
    But don't you think that we really are dealing with 
something entirely different? And I think that Mr. Goldberg hit 
on something here. Unless government spurs that kind of action 
and attention by the industry, it will not be addressed.
    Where the visually impaired or the hearing impaired person 
may be the beneficiary of--and they really are the unintended 
consequences of, let's say, voice-to-text. Voice-to-text 
really--I mean, I see my lawyer friends sit there, and they 
impress me in the way they do it: let me show you how I am 
going to send this e-mail; let me show you how I am going to 
pull up this case; let me show you how I am going to dictate 
today. And they just talk into this.
    Now, what is driving there is this private sector and this 
lawyer and other that may go ahead, and there is going to be a 
profit margin. But if this thing was really being driven by 
trying to address, let's say, someone who is impaired, it 
wouldn't happen.
    So how do we do this? So you do agree, then--I am hopeful 
that you agree--this piece of legislation is necessary to 
direct the industry in the proper direction?
    Mr. Nakata. Personally, I very much believe that 
legislation like this is necessary.
    I don't believe, though, that this undue burden standard is 
appropriate here. I don't--it was developed in an entirely 
different context; and the way in which it has been interpreted 
by the Justice Department and by the courts sets a very, very 
high threshold.
    Mr. Gonzalez. How do you address Mr. Goldberg's concern 
that if you don't have a significant segment of society out 
there to drive the profit margins, that it won't be addressed? 
At least that is the way I interpreted what Mr. Goldberg said.
    Mr. Nakata. Well, I think that there are certain other 
measures in the bill that I think are really great steps; for 
instance, making the process more transparent. I think that if 
there is a market failure under 255--and I am not sure that 
there really is, but if there is a market failure under 255--I 
don't think it is because we use readily achievable or we 
should have used undue burden as a standard, we should have 
included a private right of action.
    I think that it really comes down to the fact that there 
isn't very good communication between the industry and the 
disability rights community; that we have heard from--I believe 
my colleagues from industry when they say that they have made 
great efforts for improving the accessibility of their 
products, but I also certainly have heard for a very long time 
the voices of the people in the disability community say that 
that isn't the case.
    Somewhere along the line, there is a middle ground; and I 
think that if you make the process more transparent, for 
instance, manufacturers provide information in a clearinghouse 
of information about the accessibility of their products, that 
goes a long way to helping people in the disability community 
understand what products are out there that really meet their 
needs. So it is a combination of those things.
    There are other steps that we could be taking, other than 
worrying about which legal standard we are going to hold people 
to or whether we are going to use a private right of action. 
There are lots of good things in this bill that are very 
positive steps, and I very much support those.
    Mr. Gonzalez. Thank you very much.
    Mr. Snowden, I do want to give you an opportunity; I have a 
couple of minutes, but I just want to start with the basic 
question. We can work on the standard of undue burden. We can 
work on private causes of action.
    Bottom line, though, do you agree that this piece of 
legislation is necessary?
    Mr. Snowden. I agree we should have some legislation. I 
think what we have offered in my testimony are some suggestions 
on how we can improve upon it, so therefore we would support it 
as we go forward.
    When you look at the issue--when you couple private right 
of action and undue burden, that becomes a problem, and that is 
a concern for the wireless industry, particularly if you look 
at the various--the variety of disabilities that are out there. 
If you have the undue burden standard, that means everything 
will have to have----
    Mr. Gonzalez. And I am just saying, let's put that aside 
and go with what we are really trying to get at. Why would it 
be necessary for the United States Government, through Mr. 
Markey's piece of legislation, to direct the industry to 
address these needs?
    Mr. Snowden. There would have to be market failure, for 
one.
    Mr. Gonzalez. We are doing it. There must be a reason. We 
are trying to direct the industry that otherwise probably would 
not. And it goes back to what I think Mr. Goldberg pointed out. 
And I understand that.
    Look, you have got business models, and you have to survive 
at the end of day, and we are not going to do anything that is 
going to bankrupt you. But by the same token, you have to 
direct some of your assets and some of your effort to this 
entire population that we were talking about, that may not 
constitute an appropriate market share in the perfect business 
model.
    Mr. Snowden. And I would offer that we are doing that, sir.
    One of the things that I have right here in front of me, a 
release from AT&T yesterday, who announced new accessory parts 
for the iPhone; and I have over 40 phones that are offered by 
the same company that are hearing aid compatible. That is being 
done.
    Our industry is not like some of the--when you look at 
undue burden, some of the bricks-and-mortars you are trying to 
build. Our business model is to sell product. If we can have 
products that are accessible, we sell more product. It is good 
for us, it is good for them.
    We want to sell more product. We have a vested interest in 
this and a pretty good track record.
    Mr. Gonzalez. I yield back.
    Thank you, Mr. Chairman.
    Mr. Markey. Thank you. Good questions. The gentleman's time 
has expired.
    The Chair recognizes the gentleman from Illinois, Mr. 
Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. I love this committee 
because technology moves faster than we can regulate. And 
usually, most times, that is to the benefit of all of us. So a 
lot of us carry around the new BlackBerry, and just because of 
the testimony, I wanted to see some stuff and I--so here we go. 
Call 911. 911 works. Calling--I am sorry; I cut in. No, the 
reality is, it will ring.
    I have been working in the back room trying to do this 
voice activization stuff. A lot of people who are here know 
that I and Anna Eshoo and a lot of us have been involved in 911 
issues for a long time, moving from--the former chairman, 
Chairman Tauzin, helped me move the first 911 bill for cellular 
communications. 911 wasn't the National phone number for cell 
phones. You would drive across State lines, and you would have 
a different number. So that shows you the power that public 
policy can do in public safety.
    I don't want to diminish the fact of what this industry has 
done for saving lives. And this is an example, if--especially 
if a phone was designed where it was just a push-to-talk and 
then the individual who was disabled, like the Sergeant Major, 
could say, ``Call mom,'' ``Call dad,'' ``Call Susie.'' Boom.
    And the technology is getting there. And that is important. 
It is also important--I shouldn't say this in Washington, D.C., 
where you have got to have--you are not allowed to use cell 
phones, but if you have this push-to-talk, you can kind of keep 
it down low. No, I shouldn't--that is, not that I have ever 
done that before.
    Mr. Snowden. We have Bluetooth technology.
    Mr. Shimkus. The other issue is, the Universal Service Fund 
has been mentioned. There are places in America where we still 
don't have cell connections. So as we move to burdening--I 
don't want to say--burdening is not the right--it is, where do 
we want our resources to go?
    Especially for the disabled in rural America, being able--
and enhanced 911, which is another piece of legislation passed 
through this Committee, to be able to--identification and 
location of people who are injured and harmed so that--we all 
know the stories of the snowy mountain pass, and someone goes 
off the road, and they can't be found.
    Senator Clinton mentions the story about the folks out in 
the rowboat off of New York, and they are calling, and they are 
calling, and they are calling, and they can't be found because 
we didn't have identification locations. That is what 
technology has done to help improve the standard of living and 
the life and safety of all of us.
    So sometimes I get frustrated because really we are all in 
this together. It is not good guys, bad guys. It is just moving 
us all forward, because technology improves the lives of 
everybody, and we really don't want anyone left behind. And 
technology has made it possible for the disabled to have access 
that was undreamed of in the past.
    Now, this debate is the next iteration, which I appreciate. 
You learn a lot in this whole thing. I mean, I still want 
folks--I represent 30 counties in southern and rural Illinois; 
and I want to make sure that as the cell companies roll out new 
technologies and new services, that I get cell towers up and I 
get cell towers that can locate where my constituents are going 
off the road and can't be found. And that is--we have just got 
to keep that in perspective, because that is a real National 
part of the debate.
    I am honored to have at the first panel, a sergeant major. 
Sergeant Major, I am a West Point graduate, a 5-year active 
Army infantryman, still have folks and friends deployed and 
will retire at the end of May with 28 years, 26 good years in 
the Army and the Army Reserve. So I am honored to have you 
here.
    Sergeant Major Acosta. Thank you.
    Mr. Shimkus. And we have seen the success of--I am sorry, 
Mr. Chairman, I did have questions, but I have filibustered.
    But we have seen the success of mainstreaming, getting our 
disabled veterans back with their disabilities, with great 
pride; and I appreciate you being here to help us remember 
those who are visually or hearing impaired also. So for those 
who wanted me to ask some questions, I missed it.
    So thank you.
    Mr. Markey. The gentleman's time has expired. But Sergeant 
Major Acosta, if you would like to respond to Congressman 
Shimkus, I think we would like to hear your comments.
    Sergeant Major Acosta. Yes. On this demonstration you gave 
on the BlackBerry, I mean, without being a little facetious 
here, I would like to get a hold of it to see is it really 
accessible to me, number one. And you touch a very delicate 
subject in my new arena of being blind and going through all my 
trials and tribulations with my injuries, setting aside my 
blindness: the VA. We really need to work there; we definitely 
need to work there.
    I have acquired most of my schooling not through the VA. 
And this subject is not about the VA, but I had to go to a 
private school to learn how to be--learn the technology, what 
is accessible to me. And still, even in that school, they are 
years behind the times.
    But the BlackBerry, introduce it. I would love to see that 
work. But I bet you one thing, once I get a hold of it and I 
try to navigate through that, I am going to need some 
assistance.
    Because what I am trying to say here is that if you turn on 
the system, it should already be speaking to you, if you choose 
to have descriptive--a voice to you or not. But without that, 
it is not going to work for me.
    Mr. Shimkus. And, Sergeant Major, I appreciate those 
comments, and we need to follow up with the veterans, 
especially with handicap issues. And that is another committee, 
but we can talk to our colleagues on that.
    And I would ask--I think that the reality is, if we had a 
huge, one button, a push-to-talk system--and I don't know if 
technology is there. But it is--I mean, I had to look--I 
understand that.
    But I think technology can get there, and we need to--
instead of blaming, we need to continue to work together to 
solve these hurdles. And I think--I believe in innovation and 
technology and that we can get there.
    Thank you, Mr. Chairman.
    Mr. Markey. I thank the gentleman.
    And for Sergeant Major Acosta, first he would have to be 
able to put in mom's name, dad's name, and Susie's name and do 
that himself before he could use it, voice activated; and I 
don't think he can do that.
    Mr. Shimkus. Unless he worked with the Veterans 
Administration----
    Mr. Markey. Hold on a second.
    I am just saying with the companies, if they made it easier 
for him to be able to input the information and then it had the 
audio capacity--all I am saying is, we could say to the 
companies, if you added these extra features, then Sergeant 
Major Acosta could use it like you do, a sighted person, 
because he would have been able to input other information as 
well that makes it easy for him to do it.
    The gentleman's time has expired.
    The Chair recognizes the gentlelady from California, Ms. 
Capps.
    Ms. Capps. Thank you, Mr. Chairman. I agree with Mr. 
Stearns that the two of you really brought together an 
excellent panel today. I really appreciated the testimony of 
each of you.
    I want to pick up on my colleague from Texas, Mr. Gonzalez, 
talking about--we are not talking simply about leisure time and 
entertainment, as valuable as those topics are. We are talking 
about lifesaving, we are talking about economic opportunity, we 
are talking about a whole range of issues.
    And Mr. Acosta, Sergeant Major--Sergeant Major Acosta, 
first of all, thank you so much for your service to the 
country. And I am just marvelling at what you have had to get 
used to, being sighted all your life, being injured in war and 
rehabilitation and all of the issues that you just discussed.
    I am not going to continue there, as interesting as that 
is. I am a nurse, and I would very much like to talk about 
those experiences with you. But I want to focus on where we 
both live, which is southern California.
    We are sort of disaster prone in our area. That is putting 
it lightly. And you talked about the earthquake just the other 
day. Can you--I want to expand a little bit about whether or 
not you have gone through the experience of being left out of 
emergency notifications.
    How is it to live there for you, particularly now, with the 
technology that is increasingly making such a huge gap between 
those with the use of all their senses to get all of this kind 
of instant rapid information and then the population that you 
now are a part of, who must certainly feel left behind?
    Sergeant Major Acosta. Thank you for the kind words, ma'am. 
Living in southern California, one of the best States in the 
Nation----
    Ms. Capps. Well, yes.
    Sergeant Major Acosta. Thank you very much. And I will take 
the shake, rattle and roll anytime.
    But, you know, ma'am, still, with these laws that have been 
passed, it has been tremendous for some of us who are disabled, 
although--I have been educated for the past 2 years, but for my 
first 48 years I was not blind, and now that I have lost my 
sight, guess what? I see 20/20, clearly, what is going on 
around our Nation here when we--I say ``we,'' the blind 
community--has been left out.
    To answer your question as to what happens in a case of 
disaster, that is my answer, ma'am. There is nothing I can see 
on TV or get to a button to tell me what is going on.
    Ms. Capps. Let me--to anticipate how you are feeling, when 
we hear how bad the fire season is going to be this year in 
southern California, it must make you a little edgy to 
anticipate how you are going to behave when the evacuation plan 
is scrolled across the television and everybody is dashing 
around getting ready to evacuate, and you are kind of confused.
    Sergeant Major Acosta. Yes, ma'am. Well, you know, I stand 
a better chance swimming out in the ocean and people yelling 
there is a shark than trying to get the information from the TV 
or the radio.
    So, ma'am, it is going to be tough.
    Ms. Capps. It is going to be tough.
    Sergeant Major Acosta. It is going to be tough. But I will 
endure whatever comes my way. I am an American. I am a warrior. 
I am never going to give up. This is going to be one of my new 
plights in life.
    Ms. Capps. I am so pleased that your leadership is so 
evident, and your ability to mobilize, I believe, is going to 
be very, very powerful within this new world that you are 
conquering. We just want to be able to help you as best we can.
    I will turn now--reluctantly, a little bit--to ask Mr. 
Snowden a question. You were eager to respond before.
    I want to find out from you whether CTIA or its members 
have considered adopting a universal design policy. And that 
would be, I understand, where devices are manufactured from the 
outset to include necessary accessibility features, rather than 
waiting until they are going to be challenged either in the 
courts or from a legislation that comes and then has to be 
added onto it.
    If you don't use universal design, isn't the end result a 
category of devices that are, quote-unquote, ``good enough'' 
for the folks with disabilities--barely good enough? How do we 
tell Mr. Acosta or Mr. Russell that they only get to choose 
from a select three or four of the hundreds of cell phone 
models available?
    Tell me a little bit about your industry's response to 
universal design requirements.
    Mr. Snowden. First, I would like to say to the Sergeant 
Major, the situation he had with the store was unfortunate in 
that--it is really unfortunate on two accounts. One is his 
personal experience, and the second one is, we lost an 
opportunity to keep a customer happy. And that particular 
issue, Sprint has phones that are--you can talk into and they 
will--voice dialing and----
    Ms. Capps. Tell me a little bit about universal design, 
because I am already on the red light.
    Mr. Snowden. No problem at all. Some companies have looked 
at this, particularly AT&T has a policy--if you go to their Web 
site, we can get you that information--on universal design.
    Ms. Capps. What is the policy?
    Mr. Snowden. Actually, I will let AT&T speak to that versus 
me speaking to it, if that is OK with you, ma'am.
    But one of the challenges we have overall, when you look at 
universal design, is, do you make a single product for the 
deaf, hard of hearing, low vision, blind, deaf-blind, and 
cognitive consumer. Is there one product for that?
    One product that may be good for someone who is deaf may 
not be good for a consumer who is blind. And that is one of the 
challenges that we have as you look at the issue of universal 
design.
    As we go forward, we want to have products that can fit 
multiple consumers. No one consumer with a disability or 
without a disability wants a single type of product; they want 
multiple choices. I read to you a moment ago from this press 
release: there are over 40 different HAC-compliant telephones. 
So that is more than just a few. That is not casting anything 
aside. That is a bevy of choices that consumers have.
    Ms. Capps. My time is up. I apologize. Thank you.
    Mr. Markey. The gentlelady's time has expired.
    The Chair recognizes the gentleman from Washington State, 
Mr. Inslee.
    Mr. Inslee. Thank you.
    Mr. Nakata, you made reference to some possible procedural 
safeguards for private right of action. Could you elaborate on 
what you might refer to?
    Mr. Nakata. I don't necessarily advocate that we--that we 
follow any one of these. But I think there are different 
options that we can pursue.
    For instance, having an exhaustion of administrative 
remedies would enable the FCC, which has particular expertise 
on this issue, to vet the complaint or at least process a 
complaint, try to understand it before a person can just march 
into Federal court and sue any manufacturer.
    So that is a possibility. And I think that might make sense 
if there is a fairly short time limit that the FCC is given. 
So, that way, a plaintiff wouldn't be denied his day in court.
    Mr. Inslee. You have made some reference to the readily 
achievable standard as opposed to the undue burden language. I 
want to ask you how that would apply to the situation where we 
see frequently, where new business whiz-bang technology--much 
of it developed in my district, thankfully--great technology, 
but particularly in its early stages does not take into account 
access issues. We have seen that with DVI and HDMI, where we 
have seen a loss--you know, increased technology but decreased 
access.
    How would either of those two languages or other parts of 
this bill make sure that during the early stages of the design 
of these future technologies, we keep access without stifling 
innovation?
    Mr. Nakata. That is a really good question. Thank you for 
asking that.
    Say a company is trying to release a product. There are 
lots of business decisions they have to make such as ship 
cycles and development cycles that go into whether they are 
going to release a product. It involves the--the difficulty 
that is involved are factors that are taken into consideration 
under both readily achievable and undue burden. It is more than 
just cost.
    But I would say that if the company were thinking about 
releasing a product and were looking at a readily achievable 
defense, the question then becomes, have they thought about 
accessibility? Have they put in place a plan to address 
accessibility? Have they assessed how much it is going to cost 
them in order to do it? How difficult is it going to be for 
them to do it? And how is that going to be phased into the 
development cycle, so that maybe it might not be in V1, but it 
might be in V1.01 or 1.2?
    So, by contrast, if it is an undue burden defense, it 
really is all or nothing once it is released, because you are 
looking at the way in which undue burden has been shaped by the 
interpretations of the Justice Department and the courts, it 
really is looking at the overall resources and whether it would 
create an impact on that--a substantial impact on those overall 
resources of the company.
    And if you are talking about a company, a large company, 
say, like Microsoft, that has--a multibillion dollar company, 
it can really be a show-stopper. And that is unfortunate to me 
because--to follow up on a totally different conversation, but 
I think it is somewhat related to this--I think that there are 
areas of technology where they favor particular groups of 
people with disabilities.
    And I think one of the interesting examples is the 
BlackBerry--well, the predecessor of the BlackBerry, the 
alphanumeric pager or instant messaging technologies, both of 
which are really now so heavily used in the deaf community. And 
until fairly recently, those technologies were completely 
inaccessible to people who were blind, and they would probably 
not even come to market.
    Mr. Inslee. Right. As we go through this, I just hope all 
of us who are not in the disability community realize that we 
are all just in the temporarily-abled community, too, as we go 
through this. That is the way I look at it.
    Sergeant Major, do you ski? Do you downhill ski?
    Sergeant Major Acosta. No, sir. I think if I tried it, I 
will injure myself some more.
    To be honest with you, I would love to do the luge, and 
everybody thinks I am crazy. That is the one where you lay down 
and go 100 miles an hour. That's me, sir.
    Mr. Inslee. Well, if you are crazy, you have come to the 
right place, certainly.
    I just want to invite you up. My son works with a group 
called Outdoors for All, and they help blind, quadriplegic, 
everything you name, to ski and kayak and bike. Come on up to 
Washington State. We will set you up. You will be a luger or a 
downhill skier.
    We will talk when we are done here. I will get you up 
there.
    Sergeant Major Acosta. Thank you. Thank you.
    Mr. Markey. The gentleman's time has expired. There is 
interest on the part of members to ask additional questions. 
This panel is so outstanding.
    So at this point, I will recognize once again the gentleman 
from Florida, Mr. Stearns.
    Mr. Stearns. Thank you, Mr. Chairman.
    Mr. Snowden, you heard from Sergeant Major Acosta saying 
that the device for cell phones needs to be enabled, and you 
have heard from Mr. Anderson that his dad should be able to go 
on the Internet and be able to do video access to cable and 
television. Even at draft picks or things like that, his father 
wants to have the access.
    You heard Mr. Harvard talk about the remote control when he 
walks in.
    Is industry moving, in your opinion, to solve these three 
specific examples they have given today?
    Mr. Snowden. I would say, yes, in some respects, 
particularly for the Sergeant Major, that issue has been 
solved. And we have devices now--I mentioned--Sprint has--all 
of the carriers have these devices that are made by Motorola 
and Nokia and all of our other members. So that issue has been 
taken care of.
    As we look through the closed-captioning issue that I know 
Mr. Goldberg has mentioned, we are working with the industry--
the industry is working with Mr. Goldberg on this ICF, this 
forum that he is a part of, to work this aspect.
    In addition, we have worked through the U.S. Access Board 
and through the TEITAC advisory process on a lot of these 
issues.
    So, ongoing conversations are happening right now to figure 
out, how do we move this from where we are today to where we 
want to be tomorrow.
    Mr. Stearns. How long will it take where all three of these 
individuals, their problems are solved, so there is universal 
application to, wherever they go, they can get it? When do you 
think that will occur?
    Mr. Snowden. I think if I had that answer, I would be in 
Vegas, not sitting here right now, with all due respect.
    Mr. Stearns. Let me also ask you. The community has a 
Telecommunications, Electronic, and Information Technology 
Advisory Committee. Maybe you could talk about some of the 
efforts between industry and the disability community, how 
productive they have been, and maybe some of the things you are 
doing, so we can understand your efforts in this area.
    Mr. Snowden. I can tell you that speaking on behalf of--I 
was a member of the Federal Advisory Committee. At times it was 
daunting, at times it was frustrating, at times it was 
exhilarating. But a lot of good work went into that, and the 
recommendation just went to the U.S. Access Board, I believe on 
April 3rd, for them to now take it from there.
    It was a good experience. It was a healthy experience. I 
think it was a fruitful experience for industry, for all 
aspects of the community to come together to figure out how do 
we work on these issues. I will tell you that I am always 
amazed by the doggedness of the disability community. There 
were e-mails flying at 3 and 4 o'clock in the morning on these 
various issues, because these are important issues. And I think 
as Mrs. Capps mentioned earlier, these aren't just, ``I want to 
watch a movie.'' These are about jobs. This is about the 
economy. This is about making sure they are a successful part 
of our economic structure. That is why I think it is important, 
and that is why we took it seriously as well.
    Mr. Stearns. I just conclude. I think your organization, 
you might want to contact Sprint and ask them to give him, the 
Sergeant Major here, the phone that he needs. If you are saying 
it is already capable and we have this capability, then he 
shouldn't have had that experience, and perhaps they can 
contact and give him this capability. And likewise, if you see 
this capability for Mr. Harvard that they could provide that 
kind of service, too, as we follow up.
    Mr. Snowden. I have given Mr. Harvard my card, and I will 
make sure I give it to Mr. Acosta as well. And I am sure 
someone is here in the audience from Sprint. His issue will be 
taken care of.
    Mr. Stearns. Thank you.
    Mr. Shimkus. Will the gentleman yield real quick?
    Mr. Markey. Sure.
    Mr. Shimkus. We would ask the Sergeant Major once he 
receives that, to give us feedback on if it works as 
advertised. Sergeant Major, you will do that, won't you?
    Sergeant Major Acosta. Yes, sir.
    Mr. Shimkus. I know you are shy, but I have never known a 
Sergeant Major who has been shy.
    Sergeant Major Acosta. Sir, I just want to be able to reach 
out and touch.
    Mr. Shimkus. So do we.
    Mr. Markey. Would the gentleman be interested in joining 
Sergeant Major Acosta in going down the luge? Would you be 
interested in that?
    Mr. Shimkus. If the Sergeant Major goes--officers always 
follow the senior enlisted men. Good officers always follow the 
enlisted men.
    Mr. Markey. I think we have a deal here. Let's see if we 
can't put this together.
    Mr. Shimkus. The Chairman just wants to get rid of me for a 
couple of days.
    Mr. Markey. But not forever. So be safe. Be safe. The Chair 
recognizes the gentleman from Texas, Mr. Gonzalez.
    Mr. Gonzalez. Thank you, Mr. Chairman. And I appreciate the 
additional minutes. I did want to follow up with Sergeant 
Acosta. And Sergeant Acosta, I am from San Antonio. And, of 
course, we have got Fort Sam Houston, Brooke Army Medical 
Center, and the Center for the Intrepid, with which I know you 
are probably really familiar. And I was with Secretary Peak of 
Veterans Affairs, retired General Peak. And I can just tell you 
the sensitivity is out there on all of the issues about that 
you are pointing out.
    When we took the tour of the Center of the Intrepid--which 
by the way, was built with private funds, even though it is on 
Federal property and next to the Brooke Army Medical Center--in 
the tour itself, we actually went into a room where there was 
an Air Force sergeant and his wife, who was undergoing training 
by a representative from--I don't remember which company--but 
it was really kind of voice-to-text. They had a computer there. 
They had a laptop and such.
    General Peak at that time expressed a great interest in, 
you know, who are you--the tutor--where are you from? I mean, 
are you Army, are you wherever? It really was private sector 
representative from another State representing a certain 
product and a service. So we know that is going out there--
going on out there.
    Then General Peak also expressed a great interest in the 
transition that you were talking about, when that Air Force 
sergeant is separated from Active Duty. And what we are trying 
to do for him that we didn't do for you--because you said no 
one at VA helped you with the technology and such. That is 
going on, but my fear is it is probably more on the private 
side, private property premises and so on. And General Peak was 
very interested about the transition. So I am going to bring 
your case to his attention and maybe put you all in contact so 
you can maybe express it in your own words.
    My only observation would be that I think what was being 
made available to that Air Force sergeant is probably pretty 
limited. And the purpose of this bill is to expand what would 
be available to everyone out there, including our men and women 
that are coming back, that are obviously suffering the injuries 
in the nature that you have experienced yourself. I just want 
to say thank you for your service. I don't want you to think 
that the VA is not out there. I have known General Peak for a 
number of years. And as I have said, I am definitely going to 
make your observation made known to him. And I wanted to share 
my experience wherein I have viewed actual training and 
preparation of someone who was blinded in Iraq. It may have 
been Afghanistan. I did not ask the sergeant. But, 
nevertheless, just to address that particular observation you 
made that we are trying and we just need to try a lot harder.
    Again, thank you for your service. And, Mr. Chairman, I 
yield back.
    Mr. Markey. Sergeant Major Acosta, would you like to 
respond to Congressman Gonzalez?
    Sergeant Major Acosta. Yes, sir. Thank you very much, sir, 
for addressing this. Yes, I have had my trials and 
tribulations. But what is good for me is good for the rest of 
my brothers and sisters coming home and even our past warriors 
who have served our Nation, to include those Vietnam vets, 
Korean vets and World War II vets who still want to be in touch 
with the outside. And I am talking about, of course, our blind 
community. We are growing. We are not shrinking whatsoever. 
But, please, keep me in touch, sir. I do appreciate that, 
because I have started my own advocacy called the TAV, which 
means Thank A Vet. You love your freedom, you thank a vet. 
Thank you.
    Mr. Markey. I thank you, Sergeant Major, very much. Mr. 
Nakata--the Chair will recognize himself for--does the 
gentleman from Illinois have any other questions?
    Mr. Shimkus. I just had a brief one. It was going to go to 
Mr. Nakata anyway.
    Mr. Markey. I will recognize the gentleman from Illinois.
    Mr. Shimkus. Thank you, Mr. Chairman. Our real goal here, I 
think, is to facilitate the cooperation between industry and 
the disabilities community to solve access issues. In your 
opinion, how best can we do that?
    Mr. Nakata. I think that what we have heard today is that 
there really is this big disconnect between the disability 
community and industry. There are products that our 
manufacturers are apparently developing, yet, people aren't 
finding out about these things. And if there is some way in 
which we could provide a middle ground where we can have a 
clearinghouse for information that is proposed in the bill, I 
think that that would do wonders and would actually shed light 
on a lot of the good things that are being done and avoid a lot 
of these problems.
    Mr. Shimkus. Mr. Chairman, that is really the last one I 
had. So I thank you.
    Mr. Markey. I thank the gentleman. By the way, I am going 
to ask a couple of questions here, and then I am going to ask 
each one of you to give us the 1 minute you want us to remember 
from your testimony. So think about that while I am asking a 
couple of questions right now, and we will come back to you for 
that.
    Mr. Nakata, just to clarify, you are saying that you 
believe the legislation is necessary, but you think that the 
private right of action may need procedural safeguards; is that 
correct?
    Mr. Nakata. Yes. And the undue burden also is problematic. 
I am definitely in favor of legislation. As a former Justice 
Department attorney, I am very much in favor of that.
    Mr. Markey. And would enforceable deadlines help, as Mr. 
Goldberg has testified?
    Mr. Nakata. I think that they would, although I think you 
would have to consult with industry----
    Mr. Markey. What I am saying, once we consult----
    Mr. Nakata. Yes, I think deadlines do help.
    Mr. Markey. But you have to have a deadline on consulting 
with industry, too, on creating a deadline, if you understand 
what I mean. There is really a chicken-and-egg problem there 
because you could drag out that whole process of creating the 
time for the deadline until eternity.
    [Whereupon, at 11:36 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                   Statement of Hon. John D. Dingell

    Today draft legislation will be examined seeking to 
modernize current laws governing access to communications for 
individuals with disabilities. The last time we enacted 
legislation concerning access for those with disabilities in 
1996, television was only broadcast in analog and voice 
communications relied primarily on wireline phones.
    From a technological standpoint, the world has changed a 
great deal since then. The Internet now figures prominently in 
communications. Voice over Internet Protocol, or VOIP, service, 
texting, and instant messaging are just some of the new ways we 
communicate. Mobility and the use of data in communications are 
additional hallmarks of this new generation of services. One 
cannot walk down the hallways of this building without seeing 
someone texting on their BlackBerry. Similarly, the world of 
video programming has also evolved. We are in the midst of a 
transition to all-digital television. Content providers have 
discovered a new source of viewers and revenue by putting their 
content on the Internet.
    Though technology has rapidly evolved, our core values 
should remain constant. The principle of universal service has 
been part of our communications policy since the early part of 
the last century. In my view, however, service cannot be termed 
universal unless it can be accessed by all. It is necessary and 
proper that everyone has access to our communications 
infrastructure, including the next generation of communications 
and video programming.
    I am sure there will be lively discussions about the best 
way to ensure universal accessibility of communications. Our 
telecommunications industry, including service providers, 
manufacturers, and content providers, can each point to one or 
more applications or devices that contain accessibility 
features, and I am encouraged by these efforts. In my 
experience, if we simply ask the innovators and engineers to 
ensure that technologies are designed to include all persons, 
no matter how they communicate, they are up to the task.
    I welcome the witnesses who appear at this hearing. Thank 
you in advance for sharing your views on this draft 
legislation. I especially wish to commend Sergeant Major Acosta 
for his service to our country. Sgt. Maj. Acosta, his family, 
and countless others like him have sacrificed much for our 
Nation, and I am particularly interested in learning how this 
legislation can help him and others enjoy a fuller and more 
productive life.
                              ----------                              


                    Statement of Hon. Edolphus Towns

    Thank you, Chairman Markey and Ranking Member Stearns. I am 
very pleased that the Subcommittee is holding this hearing. Our 
constituents will be proud that we are looking for ways to 
improve access to new communications and media technology for 
Americans with disabilities. Universal access would expand 
markets and allow everyone to benefit from all the 
entertainment, educational, and health care rewards that the 
Internet has to offer.
    Because I have worked with the disabled community for a 
long time, I would like to congratulate the Chairman and 
Ranking Member for their dedication to the disabled and for 
their efforts at making this legislation a success. I welcome 
and thank the witnesses, because this hearing will provide 
important information for us to improve this bill. I have 
always believed that how well we address the needs of those 
with disabilities is a measure of our quality as a Nation.
    I would like to acknowledge the progress that the 
technology industry has made up to now to make their products 
accessible to those with disabilities, and I share their 
concerns about how to make this bill enforceable while still 
maintaining incentives for innovation. Thanks to innovative 
VOIP technology, we are now able to communicate around the 
globe with a combination of sign language over video, real-time 
text, and wide-band audio. Many companies are including 
accessibility packages as options on their products and 
offering help lines to assist with using their products. 
However, there is still a long way to go, and I am glad the 
industry is willing to work with the disabled community to make 
it happen.
    Thank you and I yield back the balance of my time.
                              ----------                              


                    Statement of Hon. Anna G. Eshoo

    Mr. Chairman, thank you for holding this hearing to address 
important issues related to access to modern communications for 
all Americans.
    Our Subcommittee has discussed the idea of ``openness'' on 
several occasions. Openness can mean Net Neutrality, open 
access, competition, or accessibility.
    We can't have a truly open Internet if it is not accessible 
to everyone.
    The rate of technological innovation has left some 
consumers behind, and this bill aims to bridge that divide.
    As a nation ,we've made important legal and policy 
decisions to make our workplaces, our communities, and our 
communications infrastructure accessible to all our citizens.
    I believe this draft is an important instrument to begin 
the dialogue on how best to pursue openness and accessibility 
for all consumers.
    I'm eager to listen to today's witnesses and understand 
their perspectives on this bill, and I thank you, Mr. Chairman, 
for holding this important hearing.
                              ----------                              


                     Statement of Hon. Bart Stupak

    Thank you, Chairman Markey, for holding this hearing on the 
``Twenty-first Century Communications and Video Accessibility 
Act of 2008.''
    I appreciate the Chairman bringing our attention to the 
unfulfilled needs of our deaf and blind community when using 
today's telecommunications technologies.
    This legislation seeks to clarify any confusion on the 
responsibilities of the private sector to meet the needs of the 
hearing and visually impaired community.
    Obvious problems, such as a lack of effective captioning on 
the Internet, are often neglected as technology continues to 
rapidly grow and evolve.
    However, clear direction from the Federal Government on 
what standards the private sector should work to meet can 
address this.
    This legislation includes an important provision to update 
requirements for video programmers to continue to be integrated 
with the Emergency Alert System.
    Without a fully integrated video distribution system for 
emergency alerts, we run the risk of having a national alert 
that doesn't reach millions of Americans.
    There is no good reason that the technology is too advanced 
to address the simple problems. Especially when dealing with 
the safety of the American people.
    It is important that clear rules are established to ensure 
accessibility as people begin to watch more of their TV on the 
Internet and other non-traditional sources.
    By providing clear direction from the Federal Government, 
new innovations by the industry can better meet the needs of 
the community.
    Mr. Chairman, thank you again for holding today's hearing. 
I look forward to hearing from our witnesses on how we can 
better improve our telecommunications infrastructure to serve 
the deaf and blind community.
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