[Federal Register Volume 64, Number 223 (Friday, November 19, 1999)]
[Rules and Regulations]
[Pages 63235-63258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30091]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 6 and 7

[WT Docket 96-198; FCC 99-181]


Access to Telecommunications Service, Telecommunications 
Equipment and Customer Premises Equipment by Persons with Disabilities

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document establishes rules to ensure that people with 
disabilities have access to telecommunications services and related 
equipment, if readily achievable. These rules are required to implement 
section 255 of Telecommunications Act

[[Page 63236]]

of 1996. These rules will increase the accessible products and services 
available in the marketplace.

DATES: These rules become effective January 28, 2000, except for 
Secs. 6.18 and 7.18, which contain modified information collection 
requirements that have not been approved by the Office of Management 
and Budget (``OMB''). The Commission will publish a document in the 
Federal Register announcing the effective date of those sections. 
Written comments by the public on the modified information collection 
requirements should be submitted on or before December 20, 1999.

ADDRESSES: Office of the Secretary, Federal Communications Commission, 
445 Twelfth Street SW, Room TW-A325, Washington, DC 20554. A copy of 
any comments on the information collection contained herein should be 
submitted to Judy Boley, Federal Communications Commission, Room 1C804, 
445 12th Street, SW, Washington, DC 20554, or via the internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Ellen Blackler, Common Carrier Bureau. 
(202) 418-0491.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order in WT Docket 96-198, adopted on July 14, 1999 and released on 
September 29, 1999. The full text of the Report and Order, including 
Commissioners' statements, is available for inspection and copying 
during normal business hours in the FCC Reference Center, 445 Twelfth 
Street, SW, Room CY-257, Washington, D.C. Alternate formats (computer 
diskette, large print, audio cassette and Braille) are available to 
persons with disabilities by contacting Martha Contee at (202) 418-0260 
(voice), (202) 418-2555 (TTY), or at [email protected]. The Report and 
Order can be downloaded in WP or ASCII text at: http//www.fcc.gov/dtf/.
    This report and order contains modified information subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be 
submitted to the Office of Management and Budget (OMB) for review under 
Section 3507(d) of the PRA. OMB, the general public and other federal 
agencies are invited to comment on the modified information collection 
contained in this proceeding.

Synopsis of Report and Order

    1. In this Report and Order (Order) we adopt rules and policies to 
implement sections 255 and 251(a)(2) of the Communications Act of 1934, 
as amended (Act). These provisions, which were added by the 
Telecommunications Act of 1996 (1996 Act), are the most significant 
opportunity for the advancement of people with disabilities since the 
passage of the Americans with Disabilities Act (ADA) in 1990. These 
rules are based on the Access Boards Guidelines, 63 FR 5631, and the 
comments after issuance of a Notice of Proposed Rulemaking, 63 FR 
28456.
    2. We conclude that we have authority to adopt regulations to 
implement section 255. We find that the language of section 255(f), 
which bars any private right of action ``to enforce any requirement of 
this section or any regulation thereunder,'' expressly contemplates the 
Commission's enactment of regulations to carry out its enforcement 
obligations under the provisions of section 255. We conclude that at a 
minimum, section 255 itself grants us authority to enact rules to 
implement the provisions of section 255.
    3. The extensive record herein supports the adoption of rules 
consistent with the Access Board's guidelines. Accordingly, we adopt 
rules in this Order that are identical to or based upon the Access 
Board guidelines, with a few minor exceptions. We conclude that the 
Access Board guidelines can effectively serve as the basis of rules for 
both covered services and equipment.
    4. We note, however, that we have the discretion to depart from the 
Access Board guidelines where merited. We find that the Commission 
would not be bound to adopt the Access Board's guidelines as its own, 
or to use them as minimum standards, if it were to conclude, after 
notice and comment, that such guidelines were inappropriate.

I. Requirements for Covered Entities

    5. As stated in the statute, a manufacturer of telecommunications 
equipment or customer premises equipment shall ensure that the 
equipment is designed, developed, and fabricated to be accessible to 
and usable by individuals with disabilities, if readily achievable. 
Second, a provider of telecommunications service shall ensure that the 
service is accessible to and usable by individuals with disabilities, 
if readily achievable. Finally, whenever the requirements set forth 
above are not readily achievable, such a manufacturer or provider shall 
ensure that the equipment or service is compatible with existing 
peripheral devices or specialized customer premises equipment commonly 
used by individuals with disabilities to achieve access, if readily 
achievable.
    6. We adopt the ADA definition of disability in its entirety, as 
required under section 255 of the Act. We further agree with commenters 
that, in implementing section 255, we should follow any applicable 
judicial and administrative precedent stemming from this definition, 
except in those limited circumstances in which such precedent is shown 
to be unsuitable to a specific factual situation.
    7. We conclude further that, at a minimum, the statutory reference 
to ``individuals with disabilities'' includes those with hearing, 
vision, movement, manipulative, speech, and cognitive disabilities. By 
no means, however, is the definition of ``disability'' limited to these 
specific groups. Determinations of what constitutes a ``disability'' 
under section 255 must be made on a case-by-case basis.
    8. We adopt the Access Board's definitions of ``accessible to'' and 
``usable by.'' We initially proposed in the NPRM to combine these terms 
under one definition under our rules, reasoning that the term 
``accessible to'' should be used in its broadest sense to refer to the 
ability of persons with disabilities actually to use the equipment or 
service by virtue of its inherent capabilities and functions. Upon 
further review, however, we believe that it is more precise, and will 
provide clearer guidance to entities covered by section 255, for us to 
follow the lead of the Access Board and define these two terms 
separately because the requirements of ``accessible to'' and ``usable 
by'' embrace two distinct concepts. Although the Access Board 
guidelines were designed in the context of equipment and CPE 
accessibility, we conclude that these guidelines are equally applicable 
to the services context, and thus our definition of accessibility and 
usable applies to both equipment and services. We also adopt the 
proposal made in the NPRM to ensure that support services (such as 
consumer information and documentation) associated with equipment and 
services are accessible to and usable by people with disabilities.
    9. We conclude that, with one technical exception and one addition, 
the input, control and mechanical functions in Sec. 1193.41 of the 
Access Board guidelines and the output, display and control functions 
in Sec. 1193.43 of the Access Board guidelines shall constitute the 
definition of ``accessible to'' under the Commission's rules. The list 
is not a set of mandates, but rather a list of areas covered entities 
should be considering when designing products and services.

[[Page 63237]]

    10. We do not adopt Sec. 1193.43(e) of the Access Board rules, 
which would require that volume control telephones provide a minimum of 
20 dB adjustable volume gain. We decline to adopt this 20 dB volume 
control standard under our rules because it conflicts with rules that 
we have previously adopted pursuant to the Hearing Aid Compatibility 
Act.
    11. We also do not adopt a separate requirement regarding net 
reductions similar to that in section 1193.30 of the Access Board's 
guidelines. We believe that this requirement is addressed under the 
readily achievable definition and analysis. The flexibility of the 
readily achievable analysis recognizes that it will generally be 
unacceptable to completely eliminate an existing accessibility feature, 
but that legitimate feature trade-offs as products evolve are not 
prohibited.
    12. We do, however, add to our rules one input factor to the list 
developed by the Access Board. Specifically, the definition of 
``accessible to'' shall include being ``operable with prosthetic 
devices.'' Because some people with disabilities rely on prosthetic 
devices, we conclude that consideration of direct access by such 
persons is appropriately encompassed in the definition of ``accessible 
to''.
    13. We adopt the Access Board's definition of ``usable by'' as our 
definition under the rules. As many commenters that addressed this 
issue recognized, providing access to all supporting documentation and 
support services is an essential ingredient for the successful 
implementation of section 255 and is encompassed by our definition of 
``usable by.'' Support services include, but are not limited to, access 
to technical support hotlines and databases, access to repair services, 
billing and any other services offered by a manufacturer or service 
provider that facilitate the continued and complete use of a product or 
service. Support services also include efforts by manufacturers and 
service providers to educate its sales force about the accessibility of 
their products and how accessibility features can be used.
    14. We further conclude, consistent with the Access Board's 
guidelines and supported by the record, that ``usable by'' means 
manufacturers and service providers ensure that consumers with 
disabilities are included in product research projects, focus groups, 
and product trials, where applicable, to further enhance the 
accessibility and usability of a product, if readily achievable.
    15. We also conclude, consistent with the Access Board guidelines 
and the statutory definition of CPE, that specialized CPE, such as 
direct-connect TTYs, are considered a subset of CPE. The statute's 
requirement that manufacturers and service providers ensure 
compatibility with CPE which has a specialized use does not change the 
fact that this equipment still meets the definition of CPE as discussed 
infra in paragraphs 80 et. seq. We define specialized CPE as CPE which 
is commonly used by individuals with disabilities to achieve access. 
Thus, manufacturers and service providers have the same obligations to 
ensure accessibility and usability of SCPE as they do for any other 
CPE.
    16. We adopt four of the five criteria set forth by the Access 
Board as the definition of ``compatibility'' under section 255. We do 
not adopt the criterion of ``compatibility of controls with prosthetic 
devices,'' which we have instead added to the definition of 
accessibility. We adopt the Access Board's definitions of ``peripheral 
devices'' and ``specialized CPE.'' As proposed in the NPRM, the 
definitions of the terms ``peripheral devices'' and ``specialized CPE'' 
limit the compatibility requirement to those devices that have a 
specific telecommunications function or are designed to be used 
primarily to achieve access to telecommunications.
    17. A manufacturer or service provider must assess whether it is 
readily achievable to install features or design equipment and services 
so that the equipment or service can meet the criteria of 
compatibility. Compliance with these criteria must be mandatory. As 
technology evolves, the guidelines and the definition of 
``compatibility'' may need to be revised.
    18. We require manufacturers and service providers to exercise due 
diligence to identify the types of peripheral devices and specialized 
CPE ``commonly used'' by people with disabilities with which their 
products and services should be made compatible, if it has not been 
readily achievable to make those products and services accessible. In 
the NPRM, we had proposed using the concepts of affordability and 
availability to help define the statutory term ``commonly used'' in 
section 255(d) of the Act. We conclude that affordability and general 
market availability are insufficient, and in some cases inappropriate, 
criteria for determining whether a specific peripheral device or piece 
of specialized CPE is ``commonly used'' by persons with disabilities.
    19. Section 251(a)(2) of the Act requires that telecommunications 
carriers not install network features, functions, or capabilities that 
do not comply with the guidelines or standards established pursuant to 
section 255. We conclude that telecommunications carriers must not 
install service logic and databases associated with routing 
telecommunications services, whether residing in hardware or software, 
that do not comply with the accessibility requirements of these rules.

II. Readily Achievable

1. Definition of ``Readily Achievable''

    20. We adopt the ADA's definition of ``readily achievable.'' We 
agree with the DOJ that this definition is intended to ensure that a 
``wide range of factors be considered in determining whether an action 
is readily achievable.''
    21. The primary focus of a ``readily achievable'' analysis should 
be upon three general considerations delineated in the ADA definition, 
namely (1) the cost of the action; (2) the nature of the action; and 
(3) the overall resources available to the entity, including resources 
made available to the entity by a parent corporation, if applicable, 
depending on the type of operation and the relationship between the two 
entities. We decline to include consideration of feasibility, expense, 
and practicality, as proposed in our NPRM. We have modified the 
definition so that it more closely correlates with the terms used in 
section 255. For example, we have replaced the word ``facility'' 
throughout the definition with the terms ``manufacturer'' and ``service 
provider,'' as appropriate. We also have inserted the terms ``if 
applicable'' before the third and fourth prongs of the definition. 
Furthermore, we agree with those parties who have argued that, in 
interpreting section 255, we should look to the ``substantial body of 
judicial decisions interpreting and applying'' the terms of the ADA, 
including the phrase ``readily achievable.''

2. Application of Readily Achievable

a. In General
    22. In implementing the requirements of section 255, we decline to 
adopt a ``product line'' framework proposed primarily by manufacturers 
of equipment. Under this approach, a manufacturer or service provider 
would not need to conduct a ``readily achievable'' analysis for each 
produce or service, but instead would ensure that select products 
within its product lines are accessible to persons with disabilities. 
We conclude that section 255, by its terms, applies to the design and 
production of individual products and service offered by a manufacturer 
or service provider.

[[Page 63238]]

    23. We recognize that there are accessibility features that can be 
incorporated into the design of products with very little or no 
difficulty or expense. These features must be deployed universally. We 
will not identify specific features that fall into this category, 
because it necessarily varies given the individual circumstances. 
Manufacturers and service providers must make their own determinations 
based on the factors in the readily achievable definition. Thus, 
manufacturers and service providers cannot decline to incorporate 
modest features that will enhance accessibility simply because some 
other product or service with the feature may be available. We expect 
that, over time, more and more features will be incorporated into all 
products in this manner, and that features that today may not be 
readily achievable soon will become routine and universally adopted.
    24. With respect to those features or actions that are not readily 
achievable to be deployed universally, but are readily achievable to be 
incorporated into some products and services, manufacturers and service 
providers have the flexibility to distribute those features across 
product or service lines as long as they do all that is readily 
achievable. In addition, we expressly encourage manufacturers and 
service providers to work closely with the disability community to 
ensure that under-represented disability groups, and multiple 
disabilities (such as deaf-blindness), are not ignored.
    25. In those instances where accessibility under paragraphs (b) or 
(c) of section 255 is not readily achievable, service providers and 
manufacturers are required to comply with paragraph (d), which states 
that they must ensure that their equipment or services are compatible 
with existing specialized CPE or peripheral devices commonly used by 
persons with disabilities to achieve access, if readily achievable.
    26. We believe this framework will provide manufacturers and 
service providers a viable means for compliance with section 255, while 
promoting accessibility to the maximum extent possible. We expect that 
different companies, faced with their unique circumstances, may well 
come to different conclusions about deployment of accessibility 
features. We believe that is a desirable outcome that will maximize the 
range and depth of accessible products and services available to 
customers and will capitalize on the positive forces of competition.
b. Cost of the Action Needed
    27. We conclude that ``cost,'' for purposes of the ``readily 
achievable'' evaluation, is the incremental amount that a manufacturer 
or service provider expends to design, develop, or fabricate a product 
or service to ensure that it is accessible. Although we tentatively 
concluded in the NPRM that it would be appropriate to consider net 
costs, taking into account such factors as the potential for recovery 
of expenses from consumers through increased sales or higher product 
prices, we now reject that approach for several reasons. We believe 
that an assessment of market factors, such as the ability of a service 
provider or manufacturer to recover its costs through price changes, 
would involve speculation. Moreover, not considering market factors is 
consistent with ADA precedent, and we are not convinced that there are 
any factors specific to telecommunications that compel us to adopt an 
interpretation of costs different from that under the ADA. We also are 
persuaded that introducing cost recovery or market considerations into 
the meaning of ``cost'' could defeat one of the primary purposes of 
section 255--enhancing access to telecommunications equipment and 
service for a population whose needs have not been addressed by the 
market alone.
    28. While we have concluded that we will not consider market 
factors in determining what is readily achievable, we do not rule out 
the ability of manufacturers and service providers to take these market 
factors into account when making the decisions regarding deployment of 
more significant readily achievable accessibility features throughout 
its products.
    29. We will permit manufacturers and service providers to consider 
the cost of disability access actions for a product or service in 
conjunction with the cost of other actions taken by them to comply with 
these rules during a fiscal period, as proposed by a number of 
commenters. We agree it may be appropriate to consider the cost of 
other accessibility actions as a factor in determining whether a 
measure is readily achievable. Therefore, manufacturers and service 
providers may take into account the cumulative cost of all 
accessibility actions over a specific fiscal period in determining 
whether an action is ``readily achievable.'' We underscore, however, 
that ``cumulative costs'' cannot be the only factor used by a 
manufacturer or service provider to determine whether a measure is 
``readily achievable.'' In particular, the ability to take into account 
cumulative costs shall not permit a manufacturer or service provider to 
predetermine caps or quotas on its total spending for section 255 
compliance for a given fiscal period.
    30. A manufacturer or service provider may consider whether 
inclusion of an accessibility feature significantly will delay 
production or release of a product, and therefore increase production 
costs, provided that the manufacturer or service provider demonstrates 
that it did in fact consider accessibility at the design stage. Of 
course, the mere fact that inclusion of a feature will add time and 
cost to production will not, alone, render the measure not readily 
achievable.
c. Nature of the Action Needed
    31. Another consideration in the ``readily achievable'' analysis is 
the nature of the action needed to make equipment or service accessible 
to persons with disabilities. While commenters generally have not 
framed their comments in terms of ``nature of the action,'' many 
address the concepts of ``fundamental alterations'' and ``technical 
feasibility,'' which we believe fall within the ambit of ``nature of 
the action.''
    32. We agree with the Access Board found that the ``fundamental 
alteration'' concept derives from the ``undue burden'' test under the 
ADA and, since ``undue burden'' is a higher standard than ``readily 
achievable,'' that the concept of fundamental alteration is implicit in 
the readily achievable analysis. Since a covered entity must, 
hypothetically, demonstrate a much more onerous burden in order to be 
relieved of any obligations under the ``undue burden'' standard of the 
ADA, it follows that any actions that constitute an undue burden, 
including fundamental alterations, are also not ``readily achievable.'' 
Manufacturer or service provider is not required to install an 
accessibility feature if it can demonstrate that the feature 
fundamentally would alter the product.
    33. In the NPRM, we tentatively concluded that technical 
infeasibility should be one factor in determining whether an 
accessibility feature is readily achievable. We now conclude that, when 
assessing the ``nature of the action'' in a readily achievable 
analysis, manufacturers and service providers are not required to 
incorporate accessibility features that are technically infeasible, 
subject to several limitations.
    34. We agree with several commenters, however, that in some rare 
instances, ``technical infeasibility'' may result from legal or 
regulatory constraints. We also agree with several

[[Page 63239]]

commenters that technical infeasibility encompasses not only a 
product's technological limitations, but also its physical limitations. 
We note, however, that manufacturers and service providers should not 
make conclusions about technical infeasibility within the ``four 
corners'' of a product's current design. Section 255 requires a 
manufacturer or service provider to consider physical modifications or 
alterations to the existing design of a product. Finally, we agree with 
commenters that manufacturers and service providers cannot make bald 
assertions of technical infeasibility. Any engineering or legal 
conclusions that implementation of a feature is technically infeasible 
should be substantiated by empirical evidence or documentation.
d. Resources of the Covered Entity
    35. We conclude that we should follow the two-step analysis of a 
covered entity's resources set forth by the DOJ in its ADA regulation. 
Accordingly, the resources of the ``covered entity'' (i.e., the 
manufacturer or service provider) first are examined. The resources of 
any parent corporation or comparable entity with a legal relationship 
with the manufacturer or service provider would be examined and taken 
into account, unless the covered entity or parent can demonstrate why 
any legal or other constraints prevent the parent's resources from 
being available to the covered entity.
    36. For purposes of the readily achievable analysis, the covered 
entity must take into account any and all financial resources available 
to it, including resources from third parties.
    37. This would include any capital or other financial assets, 
recourse to guarantees that may be used for the covered entity's debt 
financing or to otherwise assist its business, resources in the form of 
labor or services, or any other items that would affect the ``overall 
financial resources'' available to the manufacturer or service 
provider. Resources of another entity shall be taken into account 
regardless of whether that other entity is a telecommunications 
manufacturer or service provider.
    38. In some cases, consideration of the resources of another entity 
may not be applicable because of the nature of the legal relationship 
between the parties, or because no resources in fact are available to 
the manufacturer or service provider from the outside entity.
    39. In the NPRM, we proposed establishing a ``rebuttable 
presumption'' that reasonably-available resources are those of the 
covered entity legally responsible for the equipment or service that is 
subject to the requirements of section 255. After reviewing the record, 
we have concluded that the better approach is to evaluate the resources 
of any parent company, or comparable entity with legal obligations to 
the covered entity, but permit any covered entity (or parent company) 
to demonstrate why legal or other constraints prevent those resources 
from being available to the covered entity.

3. Timing of Readily Achievable Assessments

    40. The readily achievable obligation imposed by section 255 is 
both prospective and continuing. While it is appropriate to consider 
the time needed to incorporate accessibility solutions into new and 
upgraded products, technological advances that present opportunities 
for readily achievable accessibility enhancements can occur at any time 
in a product cycle. A manufacturer's or service provider's obligation 
to review the accessibility of a product or service, and add 
accessibility features where readily achievable, is not limited to the 
initial design stage of a product. We conclude that manufacturers and 
service providers, at a minimum, must assess whether it is readily 
achievable to install any accessibility features in a specific product 
whenever a natural opportunity to review the design of a service or 
product arises. If it is readily achievable to include an accessibility 
feature during one of these natural opportunities, the manufacturer or 
service provider must install the feature. Natural opportunities could 
include, for example, the redesign of a product model, upgrades of 
services, significant rebundling or unbundling of product and service 
packages, or any other modifications to a product or service that 
require the manufacturer or service provider to substantially re-design 
the product or service.

4. Documentation of Readily Achievable Assessments

    41. As proposed in the NPRM, we conclude that we should not at this 
time delineate specific documentation requirements for ``readily 
achievable'' analyses. We fully expect, however, that manufacturers and 
service providers, in the ordinary course of business, will maintain 
records of their accessibility efforts that can be presented to the 
Commission to demonstrate compliance with section 255 in the event 
consumers with disabilities file complaints.

III. Services and Equipment Covered by the Rules

    42. Section 255 applies to any ``manufacturer of telecommunications 
equipment or customer premises equipment'' and to any ``provider of 
telecommunications service.'' We conclude that, in so far as these 
phrases are broadly grounded in the Communications Act, our sole task 
here is to explain their application in the context of section 255. We 
will, however, as explained below, assert our ancillary jurisdiction to 
cover two non-telecommunications services.

a. Telecommunications and Telecommunications Service

    43. Section 255(c) requires that any ``provider of 
telecommunications service shall ensure that the service is accessible 
to and usable by individuals with disabilities, if readily 
achievable.'' Section 3 of the Act defines ``telecommunications'' as 
``the transmission, between or among points specified by the user, of 
information of the user's choosing, without change in the form or 
content of the information as sent and received.'' It defines 
``telecommunications service'' as ``the offering of telecommunications 
for a fee directly to the public, or to such classes of users as to be 
effectively available directly to the public, regardless of the 
facilities used.''
    44. We adopt our tentative conclusion in the NPRM that the phrases 
``telecommunications'' and ``telecommunications services'' have the 
general meanings set forth in the Act. Telecommunications services, 
however, does include services previously classified as adjunct-to-
basic. Adjunct-to-basic services are services which literally meet the 
definition of enhanced services, now called information services, 
established under the Commission's rules, but which the Commission has 
determined facilitate the completion of calls through utilization of 
basic telephone service facilities and are included in the term 
``telecommunications services.'' Adjunct-to-basic services include such 
services as call waiting, speed dialing, call forwarding, computer-
provided directory assistance, call monitoring, caller identification, 
call tracing, and repeat dialing.
    45. We decline to expand the meaning of ``telecommunications 
services'' to include information services for purposes of section 255, 
as urged by some commenters. In the NPRM, we recognized that under our 
interpretation of these terms, some important and widely used services, 
such as voicemail

[[Page 63240]]

and electronic mail, would fall outside the scope of section 255 
because they are considered information services. We conclude, however, 
that we may not reinterpret the definition of telecommunications 
services, either for purposes of section 255 only or for all Title II 
regulation. First, we emphasize that the term ``information services'' 
is defined separately in the Act. As we noted in the NPRM, there was no 
indication in the legislative history of the 1996 Act that Congress 
intended these terms to have any different, specialized meaning for 
purposes of accessibility.

b. Provider of Telecommunications Services

    46. We conclude that all entities offering telecommunications 
services (i.e., whether by sale or resale), including aggregators, 
should be subject to section 255. An entity that provides both 
telecommunications and non-telecommunications services, however, is 
subject to section 255 only to the extent that it provides a 
telecommunications service.

c. Telecommunications Equipment and Customer Premises Equipment

    47. The Act defines ``telecommunications equipment'' as 
``equipment, other than customer premises equipment, used by a carrier 
to provide telecommunications services, and includes software integral 
to such equipment (including upgrades).'' It defines ``customer 
premises equipment'' (CPE) as ``equipment employed on the premises of a 
person (other than a carrier) to originate, route, or terminate 
telecommunications.''
    48. In accordance with the proposal made in the NPRM, the express 
statutory language, and the views of commenters, we find that 
telecommunications equipment includes software integral to 
telecommunications equipment. Operation of today's technologically 
sophisticated telecommunications networks would be impossible without 
software, and we believe that Congress' decision to expressly clarify 
that software and upgrades to software are to be considered 
``equipment'' acknowledges the important role played by software 
products. Further, by referencing ``upgrades'' to software as 
equipment, the definition expressly contemplates that stand-alone 
software should be considered equipment. For these reasons, we conclude 
that all software integral to telecommunications equipment is covered 
by the definition, whether such software is sold with a piece of 
telecommunications equipment hardware or is sold separately.
    49. The statutory definition of CPE under section 3(14) of the Act 
encompasses all ``equipment employed on the premises of a person (other 
than a carrier) to originate, route, or terminate telecommunications.'' 
Although section 3(14) does not specifically reference software 
integral to CPE, we find, nonetheless, that CPE includes software 
integral to the operation of the telecommunications functions of the 
equipment, whether sold separately or not. We note that this conclusion 
is contrary to our tentative conclusion in the NPRM that software sold 
separately from CPE would not fall within the definition of CPE. After 
review of the record, however, we are persuaded that stand-alone 
software that originates, terminates and routes telecommunications 
should be deemed ``equipment'' under the CPE definition.
    50. In connection with multipurpose equipment, we adopt our 
tentative conclusion that customer premises equipment is covered by 
section 255 only to the extent that it provides a telecommunications 
function. Specifically, equipment that generates or receives an 
electrical, optical or radio signal used to originate, route or 
terminate telecommunications is covered, even if the equipment is 
capable of providing non-telecommunications functions. We believe that 
our interpretation ensures consistency between the obligations of 
manufacturers to ensure that telecommunications equipment and CPE is 
designed, developed and fabricated to be accessible, and the 
obligations of service providers to ensure that the service is 
accessible.
    51. Furthermore, as supported by the record, we conclude that 
manufacturers will be liable under section 255 for all 
telecommunications equipment and CPE to the extent that such equipment 
provides a telecommunications function. In those instances, where a 
piece of equipment undergoes substantial modifications after its sale, 
however, we agree with those commenters who argue that it would be 
unfair to hold the manufacturer liable under section 255. In those 
instances, which we expect to be infrequent, manufacturers shall bear 
the burden of proving, by a preponderance of the evidence, that a piece 
of equipment has undergone substantial modifications after its sale.

d. Manufacturer

    52. The Act does not define ``manufacturer of telecommunications or 
customer premises equipment.'' The Access Board guidelines define a 
``manufacturer'' as an entity ``that sells to the public or to vendors 
that sell to the public; a final assembler.'' This approach, according 
to the Access Board, would generally cover ``the final assembler of 
separate subcomponents; that is, the entity whose brand name appears on 
the product.'' In the NPRM, the Commission proposed to adopt a 
definition of ``manufacturer'' based upon the Access Board guidelines.
    53. In light of our enforcement obligations and based on the 
record, we now believe that we need a more precise definition of 
manufacturer than that adopted by the Access Board. In our rules, 
therefore, we define manufacturer as an entity that makes or produces a 
product. This definition puts responsibility on those who have direct 
control over the products produced, and provides a ready point of 
contact for consumers and the Commission in getting answers to 
accessibility questions and resolving complaints. We decline to adopt 
the Access Board's definition because we find that it is so broad that 
it could include retailers, who simply sell products and may not 
control any aspect of their actual manufacture.
    54. We do not intend this definition to include those who simply 
sell or distribute a product manufactured by another entity. Nor do we 
extend the concept of manufacturer to anyone who might modify the 
equipment before sale to the public. We do not believe as a general 
matter that retailers, wholesalers, and other post-manufacturing 
distribution entities can be considered manufacturers who have 
accessibility obligations under the Act.
    55. As supported by the record, we adopt our tentative conclusion 
to construe section 255 to apply to all manufacturers offering 
equipment for use in the United States, regardless of their location or 
national affiliation. Exempting foreign manufacturers would 
disadvantage American manufacturers, and would deny the American public 
the full protection section 255 offers.

e. Voicemail and Interactive Menus

    56. The record has convinced us that in order for us to carry out 
meaningfully the accessibility requirements of section 255, 
requirements comparable to those under section 255 should apply to two 
information services that are critical to making telecommunications 
accessible and usable by people with disabilities. We assert ancillary 
jurisdiction to extend these accessibility requirements to the 
providers of voicemail and interactive menu service and to the 
manufacturers of the equipment that

[[Page 63241]]

perform those functions. By enacting section 255, Congress has charged 
the Commission with ensuring that telecommunications services and 
equipment are accessible to, and usable by, persons with disabilities. 
We cannot fully achieve that objective without this limited use of our 
ancillary jurisdiction.
    57. We decline to extend accessibility obligations to any other 
information services. While some commenters have argued that there is 
an overwhelming need for all information services to be accessible to 
people with disabilities, we assess the record differently, and use our 
discretion to reach only those services we find essential to making 
telecommunications services accessible. Unlike voicemail and 
interactive menus, other information services discussed by commenters 
do not have the potential to render telecommunications services 
themselves inaccessible. Therefore, we decline to exercise our 
ancillary jurisdiction over those additional services. Many of these 
other services are alternatives to telecommunications services, but not 
essential to their effective use. For example, e-mail, electronic 
information services, and web pages are alternative ways to receive 
information which can also be received over the phone using 
telecommunications services. In contrast, inaccessible and unusable 
voicemail and interactive menus operate in a manner that can render the 
telecommunications service itself inaccessible and unusable.

IV. Enforcement of Section 255

    58. Damages. We adopt our tentative conclusion in the NPRM that 
damages are available for violations of section 255 or our implementing 
rules against common carriers. In so holding, we reject the claim that 
section 255(f)'s preclusion of private rights of action deprives the 
Commission of any authority to entertain requests for damages by or on 
behalf of individual complainants.
    59. Other Sanctions and Remedies. We affirm our conclusion in the 
NPRM that we should employ the full range of sanctions and remedies 
available to us under the Act in enforcing section 255. We conclude 
that we need not delineate in this Order the various sanctions and 
remedies available to us under the Act to address violations of section 
255 and our rules. We recognize that sanctionable behavior may involve 
a wide range of conduct by manufacturers and service providers and we 
will use our considerable discretion to tailor sanctions or remedies to 
the individual circumstances of a particular violation. While we will 
view retrofitting as an extreme remedy to be used in egregious cases of 
willful misconduct, we nevertheless believe that the prospect of such 
action will serve as a major deterrent to willful and repeated 
violations of the Act and our rules.
    60. We adopt our tentative conclusion in the NPRM that we should 
encourage consumers to express informally their concerns or grievances 
about a product to the manufacturer or supplier who brought the product 
to market before complaining to the Commission. We believe that this 
policy should apply with equal force to grievances or concerns relating 
to service providers. We fully expect that many accessibility-related 
disputes will be satisfactorily resolved through such communications 
without the need to file complaints. We decline, however, to adopt a 
rule that would require consumers to contact the manufacturer or 
service provider about an accessibility barrier before a complaint 
could be filed with the Commission. Under our section 208 rules, 
consumers are encouraged but not required to contact the carrier in 
advance of filing an informal complaint. Our rules governing formal 
section 208 complaints require both the complainant and defendant to 
certify, as part of the complaint and answer respectively, that they 
discussed, or attempted in good faith to discuss, the possibility of 
settlement with the opposing party prior to filing of the complaint. We 
conclude that this model is also appropriate for section 255 formal 
complaints.
    61. Form. We adopt our proposal to allow informal complaints all to 
be transmitted to the Commission by any reasonable means such as by 
letter, facsimile transmission, voice telephone (voice and TTY), 
Internet e-mail, audio-cassette recording, and braille.
    62. Content. We adopt a rule providing that any section 255 
complaint filed with the Commission include: (1) the name and address 
of the complainant; (2) the name and address of the manufacturer or 
service provider against whom the complaint is made; (3) details about 
the equipment or service about which the complaint is made; (4) the 
date or dates on which the complainant or person on whose behalf the 
complaint is being filed either purchased, acquired, used or attempted 
to purchase or use the equipment or service about which the complaint 
is being made; (5) a statement of facts supporting the complainant's 
allegation that the equipment or service is not accessible to a person 
or persons with a disability; (6) the specific relief or satisfaction 
sought by the complainant; and (7) the complainant's preferred method 
of response to the complaint (e.g., letter, facsimile transmission, 
telephone (voice or TTY), Internet e-mail, audio-cassette, braille, or 
another method that will provide effective communication with the 
complainant.
    63. Standing to File. We conclude that our minimum form and content 
requirements will alleviate concerns raised by a number of commenters 
regarding the need for a standing requirement for filing section 255 
complaints. The concerns raised by the commenters about possible 
frivolous complaints are too speculative to warrant a standing 
requirement where none otherwise exists under our common carrier 
complaint rules. There is no evidence that frivolous complaints have 
been a problem under our common carrier rules; nor is there any basis 
in the record to reasonably conclude that such will be the case for 
section 255 complaints. In any event, we believe that the minimum 
content requirements for section 255 complaints will effectively deter 
the filing of frivolous complaints.
    64. Service. We adopt a rule requiring the staff to promptly 
forward complaints that satisfy our content rules to the manufacturer 
or service provider involved, along with specific instruction to the 
defendant company to investigate and attempt to satisfy the complaint 
within a specified period, generally thirty days. The rule further 
provides that Commission staff may, in its discretion, request from the 
defendant company whatever additional information it deems useful to 
its consideration of the complaint.
    65. Designation of Contacts/Agents. We adopt a rule requiring 
affected manufacturers and service providers to designate an agent or 
contact whose principal function will be to ensure the manufacturer's 
or service provider's prompt receipt and handling of accessibility 
concerns raised by consumers or Commission staff.
    66. The Commission will provide access to a listing of the contact 
representatives or agents designated by manufacturers and service 
providers. In order to establish this listing, we will require covered 
manufacturers and service providers to file the required contact 
information with the Secretary of the Commission within thirty days 
after the effective date of the rules adopted herein.
    67. As a related matter, we note that certain commenters urged that 
we adopt a requirement that defendant manufacturers and service 
providers make reasonable, good faith efforts to contact the 
complainant within five business days of receipt of a complaint

[[Page 63242]]

to acknowledge such receipt and discuss how the company intends to 
proceed with its handling of the complaint. We agree with these 
commenters that this measure is consistent with our point of contact 
requirement and will not unduly burden affected companies, and adopt 
this requirement.
    68. Our rules require defendant manufacturers and service providers 
to prepare their responses in the format requested by the complainant, 
except where the defendant service provider or equipment manufacturer 
is incapable of doing so. In cases in which the defendant is incapable 
of preparing a response using the format requested by the complainant, 
Commission staff will take actions necessary to ensure that the 
response is accessible to the complainant.
    69. Time to Respond. The commenters are generally supportive of a 
thirty day period in which to respond to informal complaints, although 
certain commenters argue that the response should be shortened to 15 
days while others favor a longer period of 60-90 days. We believe that 
a thirty day response period, which mirrors the response time afforded 
under our common carrier complaint rules, strikes a reasonable balance 
between our goals of promoting the prompt resolution of accessibility 
disputes and ensuring that manufacturers and service providers have 
sufficient time in which to evaluate the complaint and provide 
meaningful solutions or explanations to consumers.
    70. Applicability of Secs. 1.720 through 1.736 of the rules. We 
agree with a number of the commenters that certain accessibility 
disputes, by their nature or complexity, may not be able to be resolved 
by the disputing parties. Therefore, we adopt a rule providing that any 
person seeking formal adjudication of a problem or dispute with a 
manufacturer or service provider may do so pursuant to the procedures 
specified under Secs. 1.720 through 1.736 of our rules.
    71. We conclude that the existing accelerated dispute procedures 
may be used by the staff for purposes of section 255 formal complaints. 
Such accelerated procedures will minimize the opportunity for 
manufacturers and service providers to continue to delay otherwise 
readily achievable accessibility solutions because the lawfulness of 
such practices will be subject to expedited review.
    72. Eligibility Requirements. Not all accessibility disputes raised 
in the context of formal complaints will be appropriate for handling 
under these accelerated procedures. Therefore, we adopt the following 
requirements that a complainant must satisfy in requesting accelerated 
resolution of its complaint:
     First, a complainant desiring accelerated dispute 
resolution must allege in good faith that a person with a disability is 
not able to access/use particular equipment or services is due to a 
product's lack of accessibility, and that such lack of access is having 
or will have an immediate adverse impact on consumers' ability to use 
the services and equipment covered by our rules.
     Second, the complainant must demonstrate that he or she 
has contacted or attempted in good faith to contact the manufacturer or 
service provider against whom the allegations are made and gave or 
attempted to give the manufacturer or service provider a reasonable 
period of time (not less than 30 days) to address the problem;
     Third, the complainant must have given prior advance 
notice to the manufacturer or service provider of its intention to file 
a formal complaint; and
     Fourth, the complainant must agree to participate in any 
settlement negotiations scheduled and supervised by Commission staff 
with respect to the matters alleged in the complaint.
    73. Accelerated Dispute Resolution Procedures. Any person with a 
disability or entity acting on behalf of any such person who satisfies 
the above-listed conditions may submit its formal complaint, along with 
a request for accelerated dispute resolution, to the Common Carrier 
Bureau's Enforcement Division. Where practicable, such complaint and 
request may be submitted to the Commission by any reasonable means. The 
filing must include at a minimum: (1) the information described in 
Secs. 1.721 through 1.724 of our rules and (2) a representation by the 
complainant that the conditions specified in Sec. 1.730 have been met. 
Complaints accepted for accelerated dispute resolution will be promptly 
forwarded by the Commission to the named manufacturer or service 
provider, which shall be called on to answer the complaint in 15 days 
or such shorter time as the staff may prescribe. Commission staff may, 
in its discretion, require the complainant and defendant to appear 
before it, via telephone conference or in person, to bring and give 
evidence bearing on accessibility, usability or compatibility. In 
appropriate cases, the staff may schedule and supervise settlement 
negotiations between the parties.
    74. Decisions Issued in Accelerated Proceedings. We adopt a 60-day 
timetable for issuing a decision in section 255 complaint proceedings 
under our accelerated procedures. At the same time, we recognize that 
some disputes that are likely to arise over the proper interpretation 
and application of our rules will be cases of first impression, the 
resolution of which may not be possible within the 60 day period. 
Therefore, staff administering the accelerated docket will have the 
discretion to extend the 60-day period.
    75. We noted in the NPRM that the most common defenses likely to be 
mounted by manufacturers and service providers in response to either a 
complaint or an inquiry by the Commission are claims that: (1) the 
product or service lies beyond the scope of section 255; (2) the 
product or service is in fact accessible; or (3) accessibility is not 
readily achievable. We noted that while the first two defenses are 
relatively straightforward, the readily achievable defense is complex. 
We therefore proposed to use the Access Board Guidelines applicable to 
manufacturers as examples of the kinds of compliance measures we would 
consider in this regard.
    76. While we believe some weight should be given to evidence that a 
respondent made good faith efforts to comply with section 255, we 
decline to adopt a rule establishing a presumption of compliance in 
favor of manufacturers and service providers in section 255 complaint 
actions. Instead, we will review section 255 complaints on a case-by-
case basis, giving due consideration to whether the defendant took 
actions consistent with the rules and guidance we set forth today, as 
well as any other compliance measures that the respondent has 
undertaken, such as those set forth in the Access Board's Advisory 
Appendix.
    77. Time Limit for Filing Complaints. We decline to adopt either 
the 6-month or 1-year limitations period on the filing of section 255 
complaints urged by some commenters. We do not agree that a limitations 
period more restrictive than the 2-years prescribed in section 415 of 
the Act pertaining to damages claims against common carriers is 
necessary or desirable to guard against stale or unmeritorious claims.
    78. To ensure that this Commission's resources remain properly 
focused, we adopt a general policy that complaints against 
manufacturers and service providers determined by the staff to raise 
issues that are dated or stale due to the passage of time or moot 
because of industry or product changes (and which do not raise timely 
damages claims within the meaning of section 415(b)) may, absent 
indications of an ongoing compliance problem, be subject to summary 
disposition by the staff.

[[Page 63243]]

    79. We do not agree with the claim by certain commenters that the 
five-month complaint resolution deadline imposed on the Commission 
under section 208(b) of the Act is also applicable to all complaints 
alleging violations of section 255.
    80. We conclude that section 208(b) would apply to a properly filed 
section 255 formal complaint only to the extent that the complaint 
raised issues concerning a matter contained in a service provider's 
tariff or that would have been included in the service provider's 
tariff but for our forbearance policies.
    81. We conclude that our existing rules governing confidential 
materials adequately address the concerns raised by the commenters and, 
therefore, do not adopt the additional requirements proposed in the 
NPRM. As an initial matter, we note that we do not anticipate that 
confidentiality issues will arise frequently in informal section 255 
complaint proceedings. Informal complaint actions, which are exempt 
proceedings under our ex parte rules, are by nature not designed or 
intended to facilitate the exchange of confidential information between 
disputing parties. Defendant manufacturers and service providers are 
not typically required to submit information designated as confidential 
or proprietary directly to a complainant; nor is the staff required to 
transmit confidential information provided by a complainant to a 
defendant company. To the extent that such information is deemed 
necessary to the staff's evaluation of an informal complaint, the 
submitting party may invoke the protection afforded under Secs. 0.457 
through 0.459 of our rules by clearly designating the information as 
confidential or proprietary at the time it is submitted to the 
Commission.
    82. Formal complaints filed against common carriers pursuant to 
Secs. 1.720 through 1.736 of our rules are classified as ``restricted'' 
proceedings under our ex parte rules. This ``restricted'' designation, 
as with other proceedings not designated as exempt or permit-but-
disclose, expressly prohibits ex parte presentations in these 
adjudicatory proceedings from any source. Formal section 255 complaints 
filed against manufacturers or service providers shall be similarly 
treated as restricted proceedings.
    83. We emphasize that to the extent that compliance issues or 
problems requiring regulatory intervention are perceived by the staff 
during the processing of an accessibility-related informal complaint or 
are otherwise brought to the Commission's attention, the staff will be 
poised to pursue the matter on its own motion and, when warranted, take 
or recommend appropriate remedial actions or sanctions from those 
available to us under the Act and our rules. We reject the suggestion 
by certain commenters that we establish specific guidelines for 
initiating investigations and other section 255 enforcement actions on 
our own motion.
    84. As we noted earlier, the Commission has a responsibility to 
prohibit discrimination on the basis of disability in its programs and 
activities, as required by the Rehabilitation Act of 1973, as amended. 
The Commission's rules implementing these responsibilities are set 
forth at 47 CFR 1.1801 through 1.1870. These requirements apply to the 
Commission's enforcement provisions and activities. If a member of the 
public believes that the Commission is not providing equal access to 
its programs and activities, the procedures for filing a program 
accessibility complaint are set forth in 47 CFR 1.1870. Complaints 
regarding access to Commission programs and activities should be sent 
to the Commission's Office of the Managing Director. Commission staff 
will provide technical assistance to any member of the public wishing 
to file a complaint pursuant to Secs. 1.1801 through 1.1870 of the 
rules; regarding access to Commission programs and activities; and any 
such complaint will not predispose the Commission negatively against 
any section 255 complaints.

V. Additional Implementation and Enforcement Measures

    85. In the NPRM, the Commission sought comment regarding whether 
existing Commission processes (and associated forms) would be efficient 
vehicles for any requirements the Commission might develop in this 
proceeding, such as information collection, or providing notice to 
firms dealing with the Commission that they may be subject to section 
255. The Commission listed the following examples: (1) The Commission's 
equipment authorization processes under part 2, subpart J of the 
Commission's rules; (2) equipment import documentation requirements 
under part 2, subpart K of the rules; (3) licensing proceedings under 
section 307 of the Act for various radio services used by entities 
subject to section 255 obligations; and (4) various common carrier 
filing processes.
    86. The Commission also expressed the view that there could be 
other measures the Commission might take, or might encourage others to 
take, to foster increased accessibility of telecommunications products 
such as the establishment of a clearinghouse for current information 
regarding telecommunications disabilities issues, including product 
accessibility information, and accessibility solutions.
    87. We find that modifying the current equipment certification or 
other existing Commission processes for purposes of compliance with 
section 255 is not appropriate. As outlined in the discussion on 
enforcement and the application of the readily achievable standard, no 
specific documentation is being required at this time.
    88. We believe that the dissemination of technical assistance, 
including information on product capabilities and availability, as well 
as information about manufacturer and service provider compliance with 
section 255, is vitally important. It will both help ensure that people 
have access to needed products and serve as an enforcement tool. After 
we determine the best way to present the relevant data, we intend to 
publish information regarding entities' compliance with these rules. We 
also intend to provide technical assistance and conduct outreach 
efforts to inform customers and companies of their rights and 
responsibilities under these rules.

VI. Procedural Matters

A. Final Regulatory Flexibility Analysis

    89. As required by the Regulatory Flexibility Act (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice 
of Proposed Rulemaking issued in this proceeding. The Commission sought 
written public comments on the proposals included in the Notice, 
including comment on the IRFA. This Final Regulatory Flexibility 
Analysis (FRFA) conforms to the RFA.
1. Need for and Objectives of the Report and Order and Rules Adopted 
Therein
    90. This rulemaking proceeding was initiated to propose means of 
implementing and enforcing section 255 of the Communications Act, as 
added by the Telecommunications Act of 1996. Section 255 is intended to 
ensure that telecommunications equipment and services will be 
accessible to persons with disabilities, if such accessibility is 
readily achievable. If accessibility is not readily achievable, then 
the telecommunications equipment and services are to be made compatible 
with specialized customer premises equipment (CPE) or peripheral 
devices to the extent that so doing is readily achievable.

[[Page 63244]]

    91. Given the fundamental role that telecommunications has come to 
play in today's world, we believe that the provisions of section 255 
represent the most significant governmental action for people with 
disabilities since the passage of the Americans with Disabilities Act 
of 1990 (ADA). Inability to use telecommunications equipment and 
services can be life-threatening in emergency situations, can severely 
limit educational and employment opportunities, and can otherwise 
interfere with full participation in business, family, social, and 
other activities. We must do all we can to ensure that people with 
disabilities are not left behind in the telecommunications revolution 
and consequently isolated from contemporary life.
    92. In the Notice, we set forth proposals to implement and enforce 
the requirement in section 255 that telecommunications offerings be 
accessible to the extent readily achievable. We proposed a ``fast-
track'' process for resolving accessibility complaints informally and 
quickly and more conventional remedial processes for cases where fast-
track solutions are not possible, or where there appears to be an 
underlying noncompliance with section 255. We noted that, in either 
case, we would look favorably upon demonstrations by companies that 
they had considered accessibility throughout the development of 
telecommunications products when assessing whether service providers 
and equipment manufacturers have met their accessibility obligations 
under section 255. In the accompanying Report and Order we have made 
the following decisions.
    (1) We have incorporated most of the Access Board guidelines into 
our rules with two minor exceptions and have applied them to the 
services covered;
    (2) We have asserted our ancillary jurisdiction to extend section 
255's coverage to voicemail and interactive menu services and service 
providers and equipment used to provide these services;
    (3) We have clarified that section 255 applies to each piece of 
equipment and all service offerings, but have noted that the industry 
has the discretion to determine which accessibility features should be 
incorporated in all products and which ones can be less than 
universally deployed, so long as all that is readily achievable is 
done; and
    (4) We have adopted enforcement rules patterned after our long-
standing rules governing complaints filed against common carriers under 
section 208 of the Act, with certain modifications we have concluded 
are necessary to fulfill the goals of section 255.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    93. We noted in the IRFA that the resources of the regulated entity 
are taken into account in the determination of whether accessibility of 
a given product or service is readily achievable and that there is thus 
an inherent consideration of the financial burden on the entity in its 
obligation to provide accessibility: if not readily achievable, the 
obligation is removed. Nevertheless, we acknowledged that all regulated 
entities would be required to assess whether providing accessibility is 
readily achievable and that an important issue for RFA purposes is thus 
not the absolute cost of providing accessibility, but, rather, the 
extent to which the cost of performing an assessment as to whether an 
accessibility feature is readily achievable is unduly burdensome on 
small entities.
    94. We received four comments specifically captioned as being in 
response to the IRFA. In its comments to the IRFA, CEMA states that 
``the Commission must take all steps necessary to ensure that any 
Section 255 implementation rules are not unduly burdensome to small 
manufacturers; it should also adopt those rules that serve to minimize 
the economic impact of this rulemaking on small entities.'' Lucent's 
comments question the apparent conflict between Sec. 1193.43 of the 
Access Board's Guidelines and Sec. 68.317 of the Commission's rules 
dealing with telephone volume control standards, especially in view of 
the Commission's tentative conclusion in the Notice that the Access 
Board's Guidelines do not overlap, duplicate or conflict with existing 
Commission Rules. Motorola comments that the Fast Track process imposes 
a substantial information collection requirement on manufacturers at 
each decisional point in the product design, development and 
fabrication process. Both Motorola and TIA contend that the cost of 
this information collection requirement should be considered as part of 
the readily achievable analysis. We believe that the information 
collection requirement on manufacturers has been minimized by the 
implementation of informal complaint procedures.

C. Description and Estimate of the Number of Small Entities to Which 
the Rules Adopted in the Report and Order Will Apply

    93. The RFA directs agencies to provide a description and, where 
feasible, an estimate of the number of small entities that may be 
affected by the rules adopted in the accompanying Report and Order. The 
RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. A small business concern is one that: (1) 
Is independently owned and operated; (2) is not dominant in its field 
of operation; and (3) satisfies any additional criteria established by 
the Small Business Administration (SBA). A small organization is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' Nationwide, as of 
1992, there were approximately 275,801 small organizations.
    96. The rules adopted in the Report and Order will apply to 
manufacturers of telecommunications equipment and CPE to the extent it 
provides telecommunications, voicemail and interactive menu functions. 
In addition, telecommunications service providers of many types will be 
affected, including wireline common carriers and commercial mobile 
radio service (CMRS) providers. To the extent that software performs a 
telecommunication function, software developers or manufacturers may 
also be affected. We have described and estimated the number of small 
entity licensees and other covered entities that may be affected by the 
rules adopted in the Report and Order.
    97. Equipment Manufacturers. The following chart contains estimated 
numbers of domestic entities that may be affected by the rules 
promulgated in this proceeding. It is based, in part, on firm counts 
that reflect product lines not involved in telecommunications, as 
defined by the 1996 Act, and reflects overlapping firm counts and firm 
counts that have been deliberately commingled to avoid disclosing the 
value of individual firms' equipment shipments for the reporting 
period.

------------------------------------------------------------------------
                                                               Estimated
    Product class/code             Product description            firm
                                                                 count
------------------------------------------------------------------------
3571......................  Personal computer, terminals and        546
                             workstations.
3661......................  Telephone and telegraph equipment       540
3663......................  Communications systems and              938
                             equipment.

[[Page 63245]]

 
3577......................  Computer peripheral equipment,          259
                             not elsewhere classified.
3577......................  Parts and subassemblies for              72
                             computer peripherals and input/
                             output equipment.
------------------------------------------------------------------------

    98. Software Manufacturers. We sought comment in the IRFA on the 
impact of our proposed rules on the small businesses within this 
industrial category. No comments on this issue were forthcoming. The 
SBA has two small business size standard to be used for software 
publishers: (1) Entities that design, develop or produce prepackaged 
software have a size standard of $18 million in average annual 
revenues; and, (2) entities that sell existing, off-the-shelf 
prepackaged software as a finished product have a size standard of 500 
employees or less. According to the Software Information Industry 
Association (SIIA), there are approximately 8,000 publishers of 
packaged software. Of these 8,000, we estimate that only about 500 are 
involved in the production of software specific to telecommunications. 
We do not have information on the number of these publishers that are 
not independently owned and operated, or have more than 1,500 
employees, and thus are unable at this time to estimate with greater 
precision the number of software publishers that would qualify as small 
business concerns under the SBA definition. Consequently, we estimate 
that there are equal to or fewer than 500 telecommunications software 
publishers that will be affected by section 255.
    99. Telecommunications Service Entities. The United States Bureau 
of the Census reports that, at the end of 1992, there were 3,497 firms 
engaged in providing telephone services for at least one year. This 
number contains a variety of different categories of carriers, 
including LECs, IXCs, CAPs, cellular carriers, other mobile service 
carriers, operator service providers, pay telephone providers, personal 
communications services (PCS) providers, covered specialized mobile 
radio (SMR) providers, and resellers. In the IRFA, we noted that some 
of those 3,497 telephone service firms may not qualify as small 
entities or small incumbent LECs because they are not ``independently 
owned and operated.'' As an example, we cited a PCS provider that is 
affiliated with an IXC having more than 1,500 employees and tentatively 
concluded that fewer than 3,497 telephone service firms are small 
entity telephone service firms or small incumbent LECs.
    100. According to the Telecommunications Industry Revenue: 
Telecommunications Relay Service Fund Worksheet Data (TRS Worksheet), 
there are 3,604 interstate carriers. These carriers include, inter 
alia, LECs, wireline carriers and service providers, IXCs, CAPs, 
operator service providers, pay telephone providers, providers of 
telephone toll service, providers of telephone exchange service, and 
resellers. In the IRFA we sought information regarding how many 
providers of telecommunications services, existing and potential, are 
considered small businesses. We did not receive comment on this issue, 
so we conclude that this data is acceptable to the industry. We noted 
that the SBA has defined a small business for Radiotelephone 
Communications (SIC 4812) and Telephone Communications, Except 
Radiotelephone (SIC 4813), as a small entities having no more than 
1,500 employees, and sought comment as to whether this definition is 
appropriate for our purposes here. Additionally, we requested that each 
commenter identify whether it is a small business under this definition 
and, if a subsidiary of another entity, provide this information for 
both itself and its parent corporation or entity.
    101. Wireline Carriers and Service Providers. The Census Bureau 
reports that there were 2,321 such telephone companies in operation for 
at least one year at the end of 1992. According to the SBA definition, 
a small business telephone company other than a radiotelephone company 
is one employing no more than 1,500 persons. All but 26 of the 2,321 
non-radiotelephone companies listed by the Census Bureau were reported 
to have fewer than 1,000 employees.
    102. Thus, even if all 26 of those companies had more than 1,500 
employees, there would still be 2,295 non-radiotelephone companies that 
might qualify as small entities or small incumbent LECs. We noted in 
the IRFA that we did not have information regarding which of these 
carriers are not independently owned and operated, and thus were unable 
to estimate with greater precision the number of wireline carriers and 
service providers that would qualify as small business concerns under 
the SBA definition. Consequently, we estimated that there are fewer 
than 2,295 small telephone communications companies other than 
radiotelephone companies.
    103. Incumbent Local Exchange Carriers. Neither the Commission nor 
the SBA has developed a definition for small providers of local 
exchange services. The closest applicable definition under the SBA 
rules is for telephone communications companies other than 
radiotelephone (wireless) companies. The most reliable source of 
information of which we are aware regarding the number of LECs 
nationwide appears to be the data that we collect annually in 
connection with the TRS Worksheet. According to our most recent data, 
1,410 companies reported that they were engaged in the provision of 
local exchange services. Although it seems certain that some of these 
carriers are not independently owned and operated, or have more than 
1,500 employees, we are unable at this time to estimate with greater 
precision the number of LECs that would qualify as small business 
concerns under the SBA definition. Consequently, we estimate that there 
are equal to or fewer than 1,410 small incumbent LECs. Because the 
small incumbent LECs subject to these rules are either dominant in 
their field of operations or are not independently owned and operated, 
they would be excluded from the definition of ``small entity'' and 
``small business concern,'' consistent with our prior practice.
    104. Interexchange Carriers. Neither the Commission nor SBA has 
developed a definition of small entities specifically applicable to 
providers of interexchange services. The closest applicable definition 
under the SBA rules is for telephone communications companies except 
radiotelephone (wireless) companies. The most reliable source of 
information regarding the number of IXCs nationwide is the data that we 
collect annually in connection with the TRS Worksheet. According to our 
most recent data, 151 companies reported that they were engaged in the 
provision of interexchange services. We do not have information on the 
number of these carriers that are not independently owned and operated, 
or have more than 1,500 employees, and thus we are unable at this time 
to estimate with greater precision the number of IXCs that would 
qualify as small business concerns under the SBA definition. 
Consequently, we estimate that there are equal to or fewer than 151 
small entity IXCs.
    105. Competitive Access Providers and Competitive Local Exchange 
Carriers. Neither the Commission nor SBA has developed a definition of 
small entities specifically applicable to providers of competitive 
access services (CAPs) and competitive local exchange

[[Page 63246]]

carriers (CLECs). The closest applicable definition under the SBA rules 
is for telephone communications companies except radiotelephone 
(wireless) companies. The most reliable source of information regarding 
the number of CAPs and CLECs nationwide is the data that we collect 
annually in connection with the TRS Worksheet. According to our most 
recent data, 129 companies reported that they were engaged in the 
provision of competitive access services. We do not have information on 
the number of these carriers that are not independently owned and 
operated, or have more than 1,500 employees, and thus are unable at 
this time to estimate with greater precision the number of CAPs and 
CLECs that would qualify as small business concerns under the SBA 
definition. Consequently, we estimate that there are equal to or fewer 
than 129 small CAPs and CLECs.
    106. Operator Service Providers. Carriers engaged in providing 
interstate operator services from aggregator locations (OSPs) currently 
are required under section 226(b)(1)(D) of the Communications Act of 
1934, as amended, 47 U.S.C. S 226, to ensure that each aggregator for 
which such provider is the presubscribed OSP is in compliance with the 
posting required of such aggregator. OSPs also are required under 
section 226 to file and maintain informational tariffs at the 
Commission. The number of such tariffs on file appears to be the most 
reliable source of information of which we are aware regarding the 
number of OSPs nationwide, including small business concerns, that will 
be affected by decisions and rules adopted in this Second Report and 
Order. As of July 12, 1999, approximately 760 carriers had 
informational tariffs on file at the Commission. The SBA has developed 
a definition of small entities for telecommunications companies other 
than radiotelephone (wireless) companies (Telephone Communications, 
Except Radiotelephone). According to the SBA's definition, a small 
business telephone company other than a radiotelephone company is one 
employing no more than 1,500 persons. Although it seems certain that 
some of these entities are not independently owned and operated, or 
have more than 1,500 employees, we are unable at this time to estimate 
with greater precision the number of OSPs that would qualify as small 
business concerns under SBA's definition. Consequently, we estimate 
that there are fewer than 760 small entity OSPs that may be affected by 
the decisions and rules adopted in this Report and Order.
    107. Pay Telephone Providers. Neither the Commission, nor SBA has 
developed a definition of small entities specifically applicable to pay 
telephone providers. The closest applicable definition under SBA rules 
is for telephone communications companies except radiotelephone 
(wireless) companies. The most reliable source of information regarding 
the number of pay telephone providers nationwide is the data that we 
collect annually in connection with the TRS Worksheet. According to our 
most recent data, 509 companies reported that they were engaged in the 
provision of pay telephone services. We do not have information on the 
number of these carriers that are not independently owned and operated, 
or have more than 1,500 employees, and thus are unable at this time to 
estimate with greater precision the number of pay telephone providers 
that would qualify as small business concerns under SBA definition. 
Consequently, we estimate that there are equal to or fewer than 509 
small pay telephone providers.
    108. Resellers (Including Debit Card Providers). Neither the 
Commission, nor SBA has developed a definition of small entities 
specifically applicable to resellers. The closest applicable SBA 
definition for a reseller is a telephone communications company except 
radiotelephone (wireless) companies. The most reliable source of 
information regarding the number of resellers nationwide is the data 
that the Commission collects annually in connection with the TRS 
Worksheet. According to our most recent data, 369 companies report that 
they are engaged in the resale of telephone service. We do not have 
information on the number of these carriers that are not independently 
owned and operated, or have more than 1,500 employees, and thus we are 
unable at this time to estimate with greater precision the number of 
resellers that would qualify as small entities or small incumbent LEC 
concerns under the SBA definition. Consequently, we estimate that there 
are equal to or fewer than 369 small entity resellers.
    109. 800 and 800-Like Service Subscribers. Neither the Commission, 
nor the SBA has developed a definition of small entities specifically 
applicable to 800 and 800-like service (``toll free'') subscribers. The 
most reliable source of information regarding the number of these 
service subscribers appears to be data the Commission collects on the 
800, 888, and 877 numbers in use. According to our most recent data, at 
the end of January 1999, the number of 800 numbers assigned was 
7,692,955; the number of 888 numbers that had been assigned was 
7,706,393; and the number of 877 numbers assigned was 1,946,538. We do 
not have data specifying the number of these subscribers that are not 
independently owned and operated or have more than 1,500 employees, and 
thus are unable at this time to estimate with greater precision the 
number of toll free subscribers that would qualify as small business 
concerns under the SBA's definition. Consequently, we estimate that 
there are fewer than 7,692,955 small entity 800 subscribers, fewer than 
7,706,393 small entity 888 subscribers, and fewer than 1,946,538 small 
entity 877 subscribers.
    110. International Service Providers. The Commission has not 
developed a definition of small entities applicable to licensees in the 
international services. Therefore, the applicable definition of small 
entity is the definition under the SBA rules applicable to 
Communications Services, Not Elsewhere Classified (NEC). This 
definition provides that a small entity is one with $11.0 million or 
less in average annual receipts. According to the Census Bureau, there 
were a total of 848 communications services, NEC, in operation in 1992, 
and a total of 775 had annual receipts of less than $9.999 million. The 
Census report does not provide more precise data. Many of these 
services do not have specified uses and it is uncertain, at this point 
in time, whether they will ultimately provide telecommunications 
services.
    111. International Public Fixed Radio (Public and Control 
Stations). Commission records show there are 3 licensees in this 
service. We do not request or collect annual revenue information, and 
thus are unable to estimate the number of international public fixed 
radio licensees that would constitute a small business under the SBA 
definition. Consequently, we estimate that there are equal to or fewer 
than 3 small entities that are international public fixed radio 
licensees.
    112. Fixed Satellite Transmit/Receive Earth Stations and Fixed 
Satellite Small Transmit/Receive Earth Stations. Based on actual 
payments, there are approximately 3,100 earth station authorizations, a 
portion of which are Fixed Satellite Transmit/Receive Earth Stations 
and a portion of which are Fixed Satellite Small Transmit/Receive Earth 
Stations. We do not request or collect annual revenue information, and 
thus are unable to estimate the number of the earth stations of either 
category that would be owned by a small

[[Page 63247]]

business under the SBA definition. Consequently, we estimate that there 
are equal to or fewer than 3,100 small entities that hold such 
authorizations.
    113. Fixed Satellite Very Small Aperture Terminal (VSAT) Systems. 
These stations operate on a primary basis, and frequency coordination 
with terrestrial microwave systems is not required. Thus, a single 
``blanket'' application may be filed for a specified number of small 
antennas and one or more hub stations. The Commission has processed 377 
applications. We do not request or collect annual revenue information, 
and thus are unable to estimate the number of VSAT systems that would 
be owned by a small business under the SBA definition. Consequently, we 
estimate that there are equal to or fewer than 377 small entities that 
hold such authorizations.
    114. Mobile Satellite Earth Stations. There are 11 licensees. We do 
not request or collect annual revenue information, and thus are unable 
to estimate whether either of these licensees would constitute a small 
business under the SBA definition. Consequently, we estimate that there 
are 11 or less small entities that hold such licenses.
    115. Space Stations (Geostationary). There are 43 space station 
licensees. We do not request or collect annual revenue information, and 
thus are unable to estimate the number of geostationary space stations 
that would be owned by a small business under the SBA definition. 
Consequently, we estimate that there are equal to or fewer than 43 
small entities that hold such licenses.
    116. Space Stations (Non-Geostationary). There are twelve Non-
Geostationary Space Station licensees, of which only two systems are 
operational. We do not request or collect annual revenue information, 
and thus are unable to estimate the number of non-geostationary space 
stations that would be owned by a small business under the SBA 
definition. Consequently, we estimate that there are twelve or less 
small entities that hold such licenses.
    117. Mobile Satellite Services (MSS). Mobile Satellite Services or 
Mobile Satellite Earth Stations are intended to be used while in motion 
or during halts at unspecified points. These stations operate as part 
of a network that includes a fixed hub or stations. The stations that 
are capable of transmitting while a platform is moving are included 
under section 20.7(c) of the Commission's rules as mobile services 
within the meaning of sections 3(27) and 332 of the Communications Act. 
Those MSS services are treated as CMRS if they connect to the Public 
Switched Network (PSN) and also satisfy other criteria in Section 332. 
Facilities provided through a transportable platform that cannot move 
when the communications service is offered are excluded from section 
20.7(c) of the rules.
    118. The MSS networks may provide a variety of land, maritime and 
aeronautical voice and data services. There are eight mobile satellite 
licensees. At this time, we are unable to make a precise estimate of 
the number of small businesses that are mobile satellite earth station 
licensees and could be considered CMRS providers of telecommunications 
service. Consequently, we estimate that there eight or less small 
entities that hold such licenses.
    119. Wireless Telecommunications Service Providers. The Commission 
has not yet developed a definition of small entities with respect to 
the provision of CMRS services. Therefore, for CMRS providers not 
falling within any other established SBA category (i.e., Radiotelephone 
Communications or Telephone Communications, Except Radiotelephone), the 
applicable definition of a small entity would be the SBA definition 
applicable to the ``Communications Services, Not Elsewhere 
Classified.'' This definition provides that a small entity is one with 
$11.0 million or less in average annual receipts. The Census Bureau 
estimates indicate that of the 848 firms in the ``Communications 
Services, Not Elsewhere Classified'' category, 775 are small 
businesses. It is not possible to predict which of these would be small 
entities (in absolute terms or by percentage) or to classify the number 
of small entities by particular forms of service.
    120. Cellular Radio Telephone Service. The Commission has not 
developed a definition of small entities specifically applicable to 
cellular licensees. Therefore, the applicable definition of a small 
entity is the SBA definition applicable to radiotelephone companies, 
which provides that a small entity is a radiotelephone company 
employing no more than 1,500 persons. The size data provided by SBA do 
not enable us to make a meaningful estimate of the number of cellular 
providers that are small entities because it combines all 
radiotelephone companies with 500 or more employees. We therefore have 
used the 1992 Census of Transportation, Communications, and Utilities, 
conducted by the Bureau of the Census, which is the most recent 
information available. That census shows that only 12 radiotelephone 
firms out of a total of 1,178 such firms operating during 1992 had 
1,000 or more employees. Therefore, even if all 12 of these large firms 
were cellular telephone companies, all of the remainder would be small 
businesses under the SBA definition.
    121. There are presently 1,758 cellular licenses. However, the 
number of cellular licensees is not known, since a single cellular 
licensee may own several licenses. In addition, we note that there are 
1,758 cellular licenses; however, a cellular licensee may own several 
licenses. In addition, according to the most recent Telecommunications 
Industry Revenue data, 732 carriers reported that they were engaged in 
the provision of either cellular service or Personal Communications 
Service (PCS) services, which are placed together in the data. We do 
not have data specifying the number of these carriers that are not 
independently owned and operated or have more than 1,500 employees, and 
thus are unable at this time to estimate with greater precision the 
number of cellular service carriers that would qualify as small 
business concerns under the SBA's definition. Consequently, we estimate 
that there are 732 or fewer small cellular service carriers that may be 
affected by the rules, herein adopted.
    122. Broadband Personal Communications Service. The broadband PCS 
spectrum is divided into six frequency blocks designated A through F, 
and the Commission has held auctions for each block. The Commission 
defined ``small entity'' for Blocks C and F as an entity that has 
average gross revenues of less than $40 million in the three previous 
calendar years. For Block F, an additional classification for ``very 
small business'' was added and is defined as an entity that, together 
with their affiliates, has average gross revenues of not more than $15 
million for the preceding three calendar years. These regulations 
defining ``small entity'' in the context of broadband PCS auctions have 
been approved by the SBA. No small businesses within the SBA-approved 
definition bid successfully for licenses in Blocks A and B. There were 
90 winning bidders that qualified as small entities in the Block C 
auctions. A total of 93 small and very small business bidders won 
approximately 40% of the 1,479 licenses for Blocks D, E, and F. Based 
on this information, we conclude that the number of small broadband PCS 
licensees will include the 90 winning C Block bidders and the 93 
qualifying bidders in the D, E, and F blocks, for a total of 183 small 
entity PCS providers

[[Page 63248]]

as defined by the SBA and the Commission's auction rules.
    123. Narrowband PCS. The Commission has auctioned nationwide and 
regional licenses for narrowband PCS. There are 11 nationwide and 30 
regional licensees for narrowband PCS. The Commission does not have 
sufficient information to determine whether any of these licensees are 
small businesses within the SBA-approved definition for radiotelephone 
companies. At present, there have been no auctions held for the major 
trading area (MTA) and basic trading area (BTA) narrowband PCS 
licenses. The Commission anticipates a total of 561 MTA licenses and 
2,958 BTA licenses will be awarded by auction. Such auctions have not 
yet been scheduled, however. Given that nearly all radiotelephone 
companies have no more than 1,500 employees and that no reliable 
estimate of the number of prospective MTA and BTA narrowband licensees 
can be made, we assume, for purposes of this IRFA, that all of the 
licenses will be awarded to small entities, as that term is defined by 
the SBA.
    124. Specialized Mobile Radio. Pursuant to section 90.814(b)(1) of 
the Commission's Rules, the Commission has defined ``small entity'' for 
geographic area 800 MHz and 900 MHz SMR licenses as a firm that had 
average gross revenues of less than $15 million in the three previous 
calendar years. This regulation defining ``small entity'' in the 
context of 800 MHz and 900 MHz SMR has been approved by SBA. The rules 
promulgated in the Report and Order may apply to SMR providers in the 
800 MHz and 900 MHz bands. We do not know how many firms provide 800 
MHz or 900 MHz geographic area SMR service, or how many of these 
providers have average annual gross revenues of less than $15 million.
    125. The Commission recently held auctions for geographic area 
licenses in the 900 MHz SMR band. There were 60 winning bidders who 
qualified as small entities under the Commission's definition in the 
900 MHz auction. Based on this information, we conclude that the number 
of geographic area SMR licensees affected by the rules promulgated in 
the Report and Order includes these 60 small entities.
    126. Based on the auctions held for 800 MHz geographic area SMR 
licenses, there are 10 small entities currently holding 38 of the 524 
licenses for the upper 200 channels of this service. However, the 
Commission has not yet determined how many licenses will be awarded for 
the lower 230 channels in the 800 MHz geographic area SMR auction. 
There is no basis to estimate, moreover, how many small entities within 
the SBA definition will win these licenses. Given the facts that nearly 
all radiotelephone companies have fewer than 1,000 employees and that 
no reliable estimate of the number of prospective 800 MHz SMR licensees 
can be made, we assume, for purposes of our evaluations and conclusions 
in this FRFA, that all of the licenses will be awarded to small 
entities, as that term is defined by SBA.
    127. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. Phase I licensing was conducted 
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized 
to operate in the 220 MHz band. The Commission has not developed a 
definition of small entities specifically applicable to such incumbent 
220 MHz Phase I licensees. To estimate the number of such licensees 
that are small businesses, we apply the definition under the SBA rules 
applicable to Radiotelephone Communications companies. This definition 
provides that a small entity is a radiotelephone company employing no 
more than 1,500 persons. According to the Bureau of the Census, only 12 
radiotelephone firms out of a total of 1,178 such firms which operated 
during 1992 had 1,000 or more employees. Therefore, if this general 
ratio continues in 1999 in the context of Phase I 220 MHz licensees, we 
estimate that nearly all such licensees are small businesses under the 
SBA's definition.
    128. 220 MHz Radio Service--Phase II Licensees. The Phase II 220 
MHz service is a new service, and is subject to spectrum auctions. In 
the 220 MHz Third Report and Order, we adopted criteria for defining 
small businesses and very small businesses for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments. We have defined a small business as an entity 
that, together with its affiliates and controlling principals, has 
average gross revenues not exceeding $15 million for the preceding 
three years. Additionally, a very small business is defined as an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues that are not more than $3 million for the 
preceding three years. The SBA has approved these definitions. An 
auction of Phase II licenses commenced on September 15, 1998, and 
closed on October 22, 1998. Nine hundred and eight (908) licenses were 
auctioned in 3 different-sized geographic areas: three nationwide 
licenses, 30 Regional Economic Area Group Licenses, and 875 Economic 
Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. 
Companies claiming small business status won: one of the Nationwide 
licenses, 67% of the Regional licenses, and 54% of the EA licenses. As 
of January 22, 1999, the Commission announced that it was prepared to 
grant 654 of the Phase II licenses won at auction. A re-auction of the 
remaining, unsold licenses was completed on June 30, 1999, wherein 222 
of the remaining licenses were sold, but have yet to be licensed.
    129. Paging. To ensure the more meaningful participation of small 
business entities in the auctions, the Commission adopted a two-tiered 
definition of small businesses in the Paging Second Report and Order, 
stating that: (1) An entity that, together with affiliates and 
controlling interests, has average gross revenues for the three 
preceding years of not more than $3 million; or (2) an entity that, 
together with affiliates and controlling interests, has average gross 
revenues for the three preceding years of not more than $15 million. In 
December 1998, the Small Business Administration approved the two-
tiered size standards for paging services set forth in the Second 
Report and Order.
    130. MEA and EA Licenses. In the Final Regulatory Flexibility 
Analysis incorporated in Appendix C of the Second Report and Order, the 
Commission anticipated that approximately 16,630 non-nationwide 
geographic area licenses will be auctioned. While we are unable to 
predict accurately how many paging licensees meeting one of the above 
definitions will participate in or be successful at auction, our Third 
CMRS Competition Report estimated that, as of January 1998, there were 
more than 600 paging companies in the United States. The Third CMRS 
Competition Report also indicates that at least ten of the top twelve 
publicly held paging companies had average gross revenues in excess of 
$15 million for the three years preceding 1998. The Commission expects 
that these ten companies will participate in the paging auction and may 
employ the partitioning or disaggregation rules. The Commission also 
expects, for purposes of the evaluations and conclusions in this Final 
Regulatory Flexibility Analysis, that a number of paging licenses will 
be awarded to small businesses, and at least some of those small 
business licensees will likely also take advantage of the partitioning 
and disaggregation rules. We are unable to predict accurately the 
number of small

[[Page 63249]]

businesses that may choose to acquire partitioned or disaggregated MEA 
or EA licenses. The Commission expects, however, that entities meeting 
one of the above definitions will use partitioning and disaggregation 
as a means to obtain a paging license from an MEA or EA licensee at a 
cost lower than the cost of the license for the entire MEA or EA.
    131. Nationwide Geographic Area Licenses. The partitioning and 
disaggregation rules pertaining to nationwide geographic area licenses 
will affect the 26 licensees holding nationwide geographic area 
licenses to the extent they choose to partition or disaggregate, as 
well as any entity that enters into a partitioning or disaggregation 
agreement with a nationwide geographic area licensee. No parties, 
however, commented on the number of small business nationwide 
geographic area licensees that might elect to partition or disaggregate 
their licenses and no reasonable estimate can be made. While we are 
unable to state accurately how many nationwide geographic area 
licensees meet one of the above small business definitions, our Third 
CMRS Competition Report indicates that at least eight of the top twelve 
publicly held paging companies hold nationwide geographic area licenses 
and had average gross revenues in excess of $15 million for the three 
years preceding 1998. The Commission expects at least some of these 
eight companies to employ the partitioning or disaggregation rules, and 
also expects, for the purposes of evaluations and conclusions in this 
Final Regulatory Flexibility Analysis, that nationwide geographic area 
licensees meeting one of the above definitions may use the partitioning 
or disaggregation rules. While we are unable to predict accurately the 
number of small businesses that may choose to acquire partitioned or 
disaggregated licenses from nationwide geographic area licensees, the 
Commission expects, for purposes of the evaluations and conclusions in 
the Final Regulatory Flexibility Analysis, that entities meeting one of 
the above small business definitions will use partitioning and 
disaggregation as a means to obtain a paging license from a nationwide 
geographic area licensee.
    132. Air-Ground Radiotelephone Service. The Commission has not 
adopted a definition of small business specific to the Air-Ground 
Radiotelephone Service, which is defined in Section 22.99 of the 
Commission's rules. Accordingly, we will use the SBA definition 
applicable to radiotelephone companies, i.e., an entity employing no 
more than 1,500 persons. There are approximately 100 licensees in the 
Air-Ground Radiotelephone Service, and we estimate that almost all of 
them qualify as small under the SBA definition.
    133. Local Multipoint Distribution Service (LMDS). LMDS licensees 
may use spectrum for any number of services. We anticipate that the 
greatest intensity of use will be for either radio telephone or pay 
television services. SBA has developed definitions applicable to each 
of these services; however, because pay television is not a 
telecommunications service subject to section 255, that definition is 
not relevant to this FRFA. The Commission has adopted a definition of 
small entities applicable to LMDS licensees, which is a new service. In 
the LMDS Order we adopted criteria for defining small businesses for 
determining bidding credits in the auction, but we believe these 
criteria are applicable for evaluating the burdens imposed by section 
255. We defined a small business as an entity that, together with 
affiliates and controlling principals, has average gross revenues not 
exceeding $40 million for the three preceding years. Additionally, 
small entities are those which together with their affiliates and 
controlling principals, have average gross revenues for the three 
preceding years of more than $40 million but not more than $75 million. 
This definition has been approved by the SBA. Upon completion of the 
LMDS auction, 93 of the 104 bidders qualified as small entities, 
smaller businesses, or very small businesses. These 93 bidders won 664 
of the 864 licenses. We estimate that all of these 93 bidders would 
qualify as small under the SBA definitions, but cannot yet determine 
what percentage would be offering telecommunications services subject 
to the requirements of section 255.
    134. Rural Radiotelephone Service. The Commission has not adopted a 
definition of a small entity specific to the Rural Radiotelephone 
Service. A significant subset of the Rural Radiotelephone Service is 
the Basic Exchange Telephone Radio Systems (BETRS). Thus, we will use 
the SBA's definition applicable to radiotelephone companies, i.e., an 
entity employing no more than 1,500 persons. There are approximately 
1,000 licensees in the Rural Radiotelephone Service, and we estimate 
that almost all of them qualify as small entities under the SBA's 
definition.
    135. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation and digital audio broadcasting satellite 
uses. The Commission defined small business for the wireless 
communications services (WCS) auction as an entity with average gross 
revenues of $40 million for each of the three preceding years, and a 
very small business as an entity with average gross revenues of $15 
million for each of the three preceding years. In the auction, there 
were seven winning bidders that qualified as very small business 
entities, and one that qualified as a small business entity. We 
conclude that the number of geographic area WCS licensees affected 
includes these eight entities.
    136. 39 GHz Band. In the 39 GHz Band NPRM and Order, we proposed to 
define a small business as an entity that, together with its affiliates 
and attributable investors, has average gross revenues for the three 
preceding years of less than $40 million. We have not yet received 
approval by the SBA for this definition. Therefore, the applicable 
definition of a small entity is the SBA definition applicable to 
radiotelephone companies, which is a radiotelephone company employing 
no more than 1,500 persons. As noted previously, the 1992 Census of 
Transportation, Communications, and Utilities, conducted by the Bureau 
of the Census, shows that only 12 radiotelephone firms out of a total 
of 1,178 such firms which operated during 1992 had 1,000 or more 
employees. Therefore, a majority of 39 GHz entities providing 
radiotelephone services could be small businesses under the SBA 
definition, and we assume, for purposes of our evaluation here, that 
nearly all of the 39 GHz licensees will be small entities, as that term 
is defined by the SBA.

D. Summary of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    137. As we have noted, the objective of section 255 is to give 
persons with disabilities increased access to telecommunications. Both 
equipment manufacturers and telecommunications service providers are 
obligated to provide accessibility for persons with any one or more 
different disabilities to the extent that it is readily achievable for 
them to do so. In the broadest sense, compliance consists of an on-
going, disciplined, and systematic effort to provide the greatest level 
of accessibility.
    138. We have declined to adopt suggestions that we require 
manufacturers and service providers to establish specific internal 
systems and recordkeeping practices for purposes of responding to 
section 255 complaints and inquiries or require manufacturers to 
maintain public files recording their

[[Page 63250]]

compliance with section 255 and our rules. We see no need to burden 
manufacturers and service providers with detailed processing and 
reporting requirements which could hinder rather than hasten the 
resolution of accessibility disputes. The only reporting requirement 
imposed by the rules is that each covered entity designate an agent or 
contact whose principal function will be to ensure the manufacturer's 
or service provider's prompt receipt and handling of accessibility 
concerns raised by consumers or Commission staff. We proposed this 
requirement in the Notice, and it received universal support among the 
commenters.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities Consistent with Stated Objectives, and Significant 
Alternatives Considered

    139. We noted in the IRFA that the resources of the regulated 
entity are taken into account in the determination of whether 
accessibility of a given product or service is readily achievable and 
that there is thus an inherent consideration of the financial burden on 
the entity in its obligation to provide accessibility: if not readily 
achievable, that obligation is removed. Nevertheless, we acknowledged 
that all regulated entities would be required to assess whether 
providing accessibility is readily achievable and that an important 
issue for RFA purposes is thus not the absolute cost of providing 
accessibility, but, rather, the extent to which the cost of performing 
an assessment as to whether an accessibility feature is readily 
achievable is unduly burdensome on small entities.
    140. As early as the Notice of Inquiry, we sought comment on three 
possible approaches for implementing and enforcing the provisions of 
section 255: (1) Case-by-case determinations; (2) guidelines or a 
policy statement; or (3) rules setting forth procedural or performance 
requirements intended to promote accessibility. The Notice focused 
principally on procedural requirements as a practical, common sense 
means to ensure that consumers with disabilities would have access to 
telecommunications services and equipment. In the Notice we considered 
using case-by-case determinations exclusively, in lieu of any rules, 
but tentatively discarded this approach because we believed that in a 
rapidly changing market with unpredictable technological breakthroughs, 
the slow development of case law would be insufficient to guide covered 
entities and to provide an understanding of their accessibility 
obligations.
    141. We also considered issuing guidelines or a policy statement, 
but tentatively discarded this approach, as well, because of our view 
that a greater degree of regulatory and administrative certainty would 
best serve the interests of both consumers and businesses that must 
comply with section 255. Although we acknowledged that a policy 
statement might serve the purpose of informing case-by-case 
determinations in complaint proceedings and lend some predictability to 
the process, we tentatively decided that, in order for accessibility to 
be addressed in a pro-active manner, equipment manufacturers and 
service providers should have clear expressions of the demands that 
section 255 places on their operations before the beginning of the 
design process. Therefore, we tentatively concluded that the potential 
drawbacks of exclusive reliance on case-by-case determinations as a 
means of implementing section 255 would not be sufficiently diminished 
by the adoption of guidelines or a policy statement.
    142. We also considered and tentatively rejected the option of 
promulgating specific performance requirements. Such an approach, under 
which the Commission would attempt to establish an array of specific 
parameters for features and functions across a broad range of 
telecommunications services and equipment, was viewed as potentially 
burdensome to covered entities. We also considered it to be fraught 
with other potential problems, such as rapid changes in technology, 
that would require frequent revision of the performance requirements 
and could cause confusion in the telecommunications marketplace. We 
tentatively decided that the promulgation of specific rules governing 
the design process would also impose burdens on covered entities whose 
resources would be better spent in achieving and improving 
accessibility.
    143. As a result of our tentative decision to rely primarily on 
procedural rules, we took several steps in the Notice to minimize the 
burdens on all regulated entities. First, we sought to provide 
incentives to industry for early and on-going consideration of 
accessibility issues by indicating that we would look favorably upon 
efforts to implement the Access Board's guidelines by such means as 
formalizing self-assessment, external outreach, internal management, 
and user information and support to address accessibility issues. 
Second, we attempted to unravel the statutory terminology to give 
guidance on the interpretation of key language within the 
telecommunications context. Third, we proposed a two-phase process for 
dealing with section 255 consumer complaints. In the first phase, which 
we referred to as the ``fast-track,'' we proposed that Commission staff 
be required to refer any complaint or inquiry to the manufacturer or 
service provider concerned, who would have a period of five business 
days to address the problem. Where fast-track efforts failed to produce 
a satisfactory solution, we proposed to apply complaint processes 
similar to those used in section 208 complaint proceedings.
    144. Although we initially viewed the ``fast-track'' process as an 
efficient, consumer-friendly means of dealing with problems associated 
with accessibility compliance, parties representing both consumer and 
industry interests criticized the proposed mandatory ``fast-track'' 
mechanism as burdensome and confusing and agreed that our section 208 
processes provide an appropriate model for section 255 enforcement. 
Hence, in the Report and Order, we decided to abandon the 5-day ``fast 
track'' proposal and to adopt rules modeled after our section 208 
complaint rules, thus reducing the implicit burden placed on both 
consumers and industry alike.
    145. Under the procedures adopted by the Report and Order, consumer 
complaints filed pursuant to section 255 will be handled through an 
informal complaint process where the staff refers complaints to the 
manufacturers or service providers involved. The focus at this stage 
will be on addressing the accessibility needs of the complainant. 
Because the nature or complexity of certain accessibility disputes may 
not be susceptible to informal resolution by the disputing parties, 
complainants have the option of seeking the formal adjudication of a 
problem or dispute with a manufacturer or service provider at any time 
pursuant to our existing section 208 complaint rules.
    146. As outlined in the Report and Order we have declined to 
promulgate specific rules governing the design process, although 
certain of the Access Board Guidelines that we have may require 
manufacturers to include persons with disabilities in any group testing 
performed during the design process.
    147. We believe we have reduced regulatory burdens wherever 
possible. For burdens imposed by achieving accessibility, the structure 
of the statute inherently acknowledges varying degrees of economic 
impact. The ``readily achievable'' standard is

[[Page 63251]]

proportional, not absolute, and adjusts the burden of providing 
accessible features commensurate with the resources of the covered 
entity. For burdens associated with enforcement, we anticipate that the 
informal complaint process will significantly reduce the number of 
complaints, thus minimizing the burden on all covered entities of 
providing a legal defense. Moreover, the range of choices for resolving 
complaints is designed to reduce costs to the opposing parties. 
Encouraging the use of streamlined, informal complaints or alternative 
dispute resolution primarily benefits individual plaintiffs who may be 
persons with disabilities with limited financial resources, but should 
also enable covered entities to defend themselves at a lower cost.
    148. The Commission will forward a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Small Business Regulatory Enforcement Fairness Act of 1996. In 
addition, the Commission will forward a copy of the Report and Order, 
including this FRFA, to the Chief Counsel for Advocacy for the Small 
Business Administration. A copy of the Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register.

VII. Paperwork Reduction Act

    149. The decision herein has been analyzed with respect to the 
Paperwork Reduction Act of 1995, Public Law 104-13, and the Office of 
Management and Budget (``OMB'') has approved some of its information 
collection requirements in OMB No. 3060-0833, dated August 4, 1998. 
This Order also contains some modified information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public to comment on the information 
collection contained in the Order as required by the Paperwork 
Reduction Act of 1995, public law 104-13. Public and agency comments 
are due December 20, 1999. Comments should address: (a) Whether the 
modified collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and the clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.

VIII. Ordering Clauses

    150. The authority contained in sections 1, 2, 4, 201(b), 208, 
251(a)(2), 255, and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154, 201(b), 208, 251(a)(2), 255, 303(r), 
this Order IS ADOPTED.
    151. It is ordered That 47 C.F.R. part 1 is revised, and parts 6 
and 7 are added as set forth below.
    152. It is ordered That the Commission's Office of Public affairs 
SHALL SEND a copy of this Report and Order, including the FRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration in 
accordance with paragraph 603(a) of the Regulatory Flexibility Act 5 
U.S.C. 601, et seq.
    153. The Report and Order IS ADOPTED, and the requirements 
contained herein will become effective January 28, 2000, expect for 
Secs. 6.18 and 7.18, which will become effective upon approval of OMB 
of the modified information requirements contained herein. Notice of 
that approval will be published in the Federal Register.

List of Subjects in 47 CFR Part 1, 6 and 7

    Communications equipment, Individuals with disabilities, 
Telecommunications.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR chapter I as set forth below:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 is revised to read as follows:

    Authority: 47 U.S.C. 1, 154(i), 154 (j), 208, and 255.

    2. Section 1.1202 is amended by revising paragraph (d)(2) to read 
as follows:


Sec. 1.1202  Definitions.

* * * * *
    (d) * * *
    (2) Any person who files a complaint which shows that the 
complainant has served it on the subject of the complaint or which is a 
formal complaint under 47 U.S.C. 208 and Sec. 1.721 or 47 U.S.C. 255 
and either Secs. 6.17 or 7.17 of this chapter, and the person who is 
the subject of such a complaint that shows service or is a formal 
complaint under 47 U.S.C. 208 and Sec. 1.721 or 47 U.S.C. 255 and 
either Secs. 6.17 or 7.17 of this chapter;
* * * * *
    3. Section 1.1204 is amended by revising paragraph (b)(5) to read 
as follows:


Sec. 1.1204  Example ex parte presentations and proceedings.

* * * * *
    (b) * * *
    (5) An informal complaint proceeding under 47 U.S.C. 208 and 
Sec. 1.717 of this chapter or 47 U.S.C. 255 and either Secs. 6.17 or 
7.17 of this chapter; and
* * * * *
    4. Add part 6 to read as follows:

PART 6--ACCESS TO TELECOMMUNICATIONS SERVICE, TELECOMMUNICATIONS 
EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT BY PERSONS WITH 
DISABILITIES

Subpart A--Scope--Who Must Comply With These Rules?

6.1  Applicability.

Subpart B--Definitions

6.3  Definitions.

Subpart C--Obligations--What Must Covered Entities Do?

6.5  General obligations.
6.7  Product design, development and evaluation.
6.9  Information pass through.
6.11  Information, documentation and training.

Subpart D--Enforcement

6.15  Generally.
6.16  Informal or formal complaints.
6.17  Informal complaints; form and content.
6.18  Procedure; designation of agents for service.
6.19  Answers to informal complaints.
6.20  Review and disposition of informal complaints.
6.21  Formal complaints, applicability of Secs. 1.720 through 1.736 
of this chapter.
6.22  Formal complaints based on unsatisfied informal complaints.
6.23  Actions by the Commission on its own motion.

    Authority: 47 U.S.C. 154(i), 154(j), 208, 255.

Subpart A--Scope--Who Must Comply With These Rules?


Sec. 6.1  Applicability.

    The rules in this part apply to:
    (a) Any provider of telecommunications service;
    (b) Any manufacturer of telecommunications equipment or customer 
premises equipment; and
    (c) Any telecommunications carrier.

[[Page 63252]]

Subpart B--Definitions


Sec. 6.3  Definitions.

    (a) The term accessible shall mean that:
    (1) Input, control, and mechanical functions shall be locatable, 
identifiable, and operable in accordance with each of the following, 
assessed independently:
    (i) Operable without vision. Provide at least one mode that does 
not require user vision.
    (ii) Operable with low vision and limited or no hearing. Provide at 
least one mode that permits operation by users with visual acuity 
between 20/70 and 20/200, without relying on audio output.
    (iii) Operable with little or no color perception. Provide at least 
one mode that does not require user color perception.
    (iv) Operable without hearing. Provide at least one mode that does 
not require user auditory perception.
    (v) Operable with limited manual dexterity. Provide at least one 
mode that does not require user fine motor control or simultaneous 
actions.
    (vi) Operable with limited reach and strength. Provide at least one 
mode that is operable with user limited reach and strength.
    (vii) Operable with a Prosthetic Device. Controls shall be operable 
without requiring body contact or close body proximity.
    (viii) Operable without time-dependent controls. Provide at least 
one mode that does not require a response time or allows response time 
to be by-passed or adjusted by the user over a wide range.
    (ix) Operable without speech. Provide at least one mode that does 
not require user speech.
    (x) Operable with limited cognitive skills. Provide at least one 
mode that minimizes the cognitive, memory, language, and learning 
skills required of the user.
    (2) All information necessary to operate and use the product, 
including but not limited to, text, static or dynamic images, icons, 
labels, sounds, or incidental operating cues, comply with each of the 
following, assessed independently:
    (i) Availability of visual information. Provide visual information 
through at least one mode in auditory form.
    (ii) Availability of visual information for low vision users. 
Provide visual information through at least one mode to users with 
visual acuity between 20/70 and 20/200 without relying on audio.
    (iii) Access to moving text. Provide moving text in at least one 
static presentation mode at the option of the user.
    (iv) Availability of auditory information. Provide auditory 
information through at least one mode in visual form and, where 
appropriate, in tactile form.
    (v) Availability of auditory information for people who are hard of 
hearing. Provide audio or acoustic information, including any auditory 
feedback tones that are important for the use of the product, through 
at least one mode in enhanced auditory fashion (i.e., increased 
amplification, increased signal-to-noise ratio, or combination).
    (vi) Prevention of visually-induced seizures. Visual displays and 
indicators shall minimize visual flicker that might induce seizures in 
people with photosensitive epilepsy.
    (vii) Availability of audio cutoff. Where a product delivers audio 
output through an external speaker, provide an industry standard 
connector for headphones or personal listening devices (e.g., phone-
like handset or earcup) which cuts off the speaker(s) when used.
    (viii) Non-interference with hearing technologies. Reduce 
interference to hearing technologies (including hearing aids, cochlear 
implants, and assistive listening devices) to the lowest possible level 
that allows a user to utilize the product.
    (ix) Hearing aid coupling. Where a product delivers output by an 
audio transducer which is normally held up to the ear, provide a means 
for effective wireless coupling to hearing aids.
    (b) The term compatibility shall mean compatible with peripheral 
devices and specialized customer premises equipment commonly used by 
individuals with disabilities to achieve accessibility to 
telecommunications services, and in compliance with the following 
provisions, as applicable:
    (1) External electronic access to all information and control 
mechanisms. Information needed for the operation of products (including 
output, alerts, icons, on-line help, and documentation) shall be 
available in a standard electronic text format on a cross-industry 
standard port and all input to and control of a product shall allow for 
real time operation by electronic text input into a cross-industry 
standard external port and in cross-industry standard format. The 
cross-industry standard port shall not require manipulation of a 
connector by the user.
    (2) Connection point for external audio processing devices. 
Products providing auditory output shall provide the auditory signal at 
a standard signal level through an industry standard connector.
    (3) TTY connectability. Products which provide a function allowing 
voice communication and which do not themselves provide a TTY 
functionality shall provide a standard non-acoustic connection point 
for TTYs. It shall also be possible for the user to easily turn any 
microphone on and off to allow the user to intermix speech with TTY 
use.
    (4) TTY signal compatibility. Products, including those providing 
voice communication functionality, shall support use of all cross-
manufacturer non-proprietary standard signals used by TTYs.
    (c) The term customer premises equipment shall mean equipment 
employed on the premises of a person (other than a carrier) to 
originate, route, or terminate telecommunications.
    (d) The term disability shall mean a physical or mental impairment 
that substantially limits one or more of the major life activities of 
an individual; a record of such an impairment; or being regarded as 
having such an impairment.
    (e) The term manufacturer shall mean an entity that makes or 
produces a product.
    (f) The term peripheral devices shall mean devices employed in 
connection with equipment covered by this part to translate, enhance, 
or otherwise transform telecommunications into a form accessible to 
individuals with disabilities.
    (g) The term readily achievable shall mean, in general, easily 
accomplishable and able to be carried out without much difficulty or 
expense. In determining whether an action is readily achievable, 
factors to be considered include:
    (1) The nature and cost of the action needed;
    (2) The overall financial resources of the manufacturer or service 
provider involved in the action (the covered entity); the number of 
persons employed by such manufacturer or service provider; the effect 
on expenses and resources, or the impact otherwise of such action upon 
the operations of the manufacturer or service provider;
    (3) If applicable, the overall financial resources of the parent of 
the entity; the overall size of the business of the parent entity with 
respect to the number of its employees; the number, type, and location 
of its facilities; and
    (4) If applicable, the type of operation or operations of the 
covered entity, including the composition, structure and functions of 
the workforce of such entity; and the geographic separateness, 
administrative or fiscal relationship of the covered entity in question 
to the parent entity.
    (h) The term specialized customer premises equipment shall mean

[[Page 63253]]

customer premise equipment which is commonly used by individuals with 
disabilities to achieve access.
    (i) The term telecommunications equipment shall mean equipment, 
other than customer premises equipment, used by a carrier to provide 
telecommunications services, and includes software integral to such 
equipment (including upgrades).
    (j) The term telecommunications service shall mean the offering of 
telecommunications for a fee directly to the public, or to such classes 
of users as to be effectively available directly to the public, 
regardless of the facilities used.
    (k) The term usable shall mean that individuals with disabilities 
have access to the full functionality and documentation for the 
product, including instructions, product information (including 
accessible feature information), documentation, bills and technical 
support which is provided to individuals without disabilities.

Subpart C--Obligations--What Must Covered Entities Do?


Sec. 6.5  General obligations.

    (a) Obligation of Manufacturers. (1) A manufacturer of 
telecommunications equipment or customer premises equipment shall 
ensure that the equipment is designed, developed and fabricated so that 
the telecommunications functions of the equipment are accessible to and 
usable by individuals with disabilities, if readily achievable.
    (2) Whenever the requirements of paragraph (a)(1) of this section 
are not readily achievable, the manufacturer shall ensure that the 
equipment is compatible with existing peripheral devices or specialized 
customer premises equipment commonly used by individuals with 
disabilities to achieve access, if readily achievable.
    (b) Obligation of Service Providers. (1) A provider of a 
telecommunications service shall ensure that the service is accessible 
to and usable by individuals with disabilities, if readily achievable.
    (2) Whenever the requirements of paragraph (b)(1) of this section 
are not readily achievable, the service provider shall ensure that the 
service is compatible with existing peripheral devices or specialized 
customer premises equipment commonly used by individuals with 
disabilities to achieve access, if readily achievable.
    (c) Obligation of Telecommunications Carriers. Each 
telecommunications carrier must not install network features, 
functions, or capabilities that do not comply with the guidelines and 
standards established pursuant to this part or part 7 of this chapter.


Sec. 6.7  Product design, development, and evaluation.

    (a) Manufacturers and service providers shall evaluate the 
accessibility, usability, and compatibility of equipment and services 
covered by this part and shall incorporate such evaluation throughout 
product design, development, and fabrication, as early and consistently 
as possible. Manufacturers and service providers shall identify 
barriers to accessibility and usability as part of such a product 
design and development process.
    (b) In developing such a process, manufacturers and service 
providers shall consider the following factors, as the manufacturer 
deems appropriate:
    (1) Where market research is undertaken, including individuals with 
disabilities in target populations of such research;
    (2) Where product design, testing, pilot demonstrations, and 
product trials are conducted, including individuals with disabilities 
in such activities;
    (3) Working cooperatively with appropriate disability-related 
organizations; and
    (4) Making reasonable efforts to validate any unproven access 
solutions through testing with individuals with disabilities or with 
appropriate disability-related organizations that have established 
expertise with individuals with disabilities.


Sec. 6.9  Information pass through.

    Telecommunications equipment and customer premises equipment shall 
pass through cross-manufacturer, non-proprietary, industry-standard 
codes, translation protocols, formats or other information necessary to 
provide telecommunications in an accessible format, if readily 
achievable. In particular, signal compression technologies shall not 
remove information needed for access or shall restore it upon 
decompression.


Sec. 6.11  Information, documentation, and training.

    (a) Manufacturers and service providers shall ensure access to 
information and documentation it provides to its customers, if readily 
achievable. Such information and documentation includes user guides, 
bills, installation guides for end-user installable devices, and 
product support communications, regarding both the product in general 
and the accessibility features of the product. Manufacturers shall take 
such other readily achievable steps as necessary including:
    (1) Providing a description of the accessibility and compatibility 
features of the product upon request, including, as needed, in 
alternate formats or alternate modes at no additional charge;
    (2) Providing end-user product documentation in alternate formats 
or alternate modes upon request at no additional charge; and
    (3) Ensuring usable customer support and technical support in the 
call centers and service centers which support their products at no 
additional charge.
    (b) Manufacturers and service providers shall include in general 
product information the contact method for obtaining the information 
required by paragraph (a) of this section.
    (c) In developing, or incorporating existing training programs, 
manufacturers and service providers, shall consider the following 
topics:
    (1) Accessibility requirements of individuals with disabilities;
    (2) Means of communicating with individuals with disabilities;
    (3) Commonly used adaptive technology used with the manufacturer's 
products;
    (4) Designing for accessibility; and
    (5) Solutions for accessibility and compatibility.

Subpart D--Enforcement


Sec. 6.15  Generally.

    (a) All manufacturers of telecommunications equipment or customer 
premise equipment (CPE) and all providers of telecommunications 
services, as defined under this subpart, are subject to the enforcement 
provisions specified in the Act and the Commission's rules.
    (b) For purposes of Secs. 6.15 through 6.23, the term 
``manufacturers'' shall denote manufacturers of telecommunications 
equipment or CPE and the term ``providers'' shall denote providers of 
telecommunications services.


Sec. 6.16  Informal or formal complaints.

    Complaints against manufacturers or providers, as defined under 
this subpart, for alleged violations of this subpart may be either 
informal or formal.


Sec. 6.17  Informal complaints; form and content.

    (a) An informal complaint alleging a violation of section 255 of 
the Act or this subpart may be transmitted to the Commission by any 
reasonable means, e.g., letter, facsimile transmission, telephone 
(voice/TRS/TTY), Internet e-mail, ASCII text, audio-cassette recording, 
and braille.
    (b) An informal complaint shall include:

[[Page 63254]]

    (1) The name and address of the complainant;
    (2) The name and address of the manufacturer or provider against 
whom the complaint is made;
    (3) A full description of the telecommunications equipment or CPE 
and/or the telecommunications service about which the complaint is 
made;
    (4) The date or dates on which the complainant either purchased, 
acquired or used, or attempted to purchase, acquire or use the 
telecommunications equipment, CPE or telecommunications service about 
which the complaint is being made;
    (5) A complete statement of the facts, including documentation 
where available, supporting the complainant's allegation that: such 
telecommunications service, or such telecommunications equipment or 
CPE, is not accessible to, or usable by, a person with a particular 
disability or persons with disabilities within the meaning of this 
subpart and section 255 of the Act; or that the defendant has otherwise 
failed to comply with the requirements of this subpart;
    (6) The specific relief or satisfaction sought by the complainant, 
and
    (7) The complainant's preferred format or method of response to the 
complaint by the Commission and defendant (e.g., letter, facsimile 
transmission, telephone (voice/TRS/TTY), Internet e-mail, ASCII text, 
audio-cassette recording, braille; or some other method that will best 
accommodate the complainant's disability)


Sec. 6.18  Procedure; designation of agents for service.

    (a) The Commission shall promptly forward any informal complaint 
meeting the requirements of Sec. 6.17 to each manufacturer and provider 
named in or determined by the staff to be implicated by the complaint. 
Such manufacturer(s) or provider(s) shall be called on to satisfy or 
answer the complaint within the time specified by the Commission.
    (b) To ensure prompt and effective service of informal and formal 
complaints filed under this subpart, every manufacturer and provider 
subject to the requirements of section 255 of the Act and this subpart, 
shall designate an agent, and may designate additional agents if it so 
chooses, upon whom service may be made of all notices, inquiries, 
orders, decisions, and other pronouncements of the Commission in any 
matter before the Commission. Such designation shall include, for both 
the manufacturer or the provider, a name or department designation, 
business address, telephone number, and, if available TTY number, 
facsimile number, and Internet e-mail address.


Sec. 6.19  Answers to informal complaints.

    Any manufacturer or provider to whom an informal complaint is 
directed by the Commission under this subpart shall file an answer 
within the time specified by the Commission. The answer shall:
    (a) Be prepared or formatted in the manner requested by the 
complainant pursuant to Sec. 6.17, unless otherwise permitted by the 
Commission for good cause shown;
    (b) Describe any actions that the defendant has taken or proposes 
to take to satisfy the complaint;
    (c) Advise the complainant and the Commission of the nature of the 
defense(s) claimed by the defendant;
    (d) Respond specifically to all material allegations of the 
complaint; and
    (e) Provide any other information or materials specified by the 
Commission as relevant to its consideration of the complaint.


Sec. 6.20  Review and disposition of informal complaints.

    (a) Where it appears from the defendant's answer, or from other 
communications with the parties, that an informal complaint has been 
satisfied, the Commission may, in its discretion, consider the informal 
complaint closed, without response to the complainant or defendant. In 
all other cases, the Commission shall inform the parties of its review 
and disposition of a complaint filed under this subpart. Where 
practicable, this information, the nature of which is specified in 
paragraphs (b) through (d) of this section, shall be transmitted to the 
complainant and defendant in the manner requested by the complainant, 
(e.g., letter, facsimile transmission, telephone (voice/TRS/TTY), 
Internet e-mail, ASCII text, audio-cassette recording, or braille).
    (b) In the event the Commission determines, based on a review of 
the information provided in the informal complaint and the defendant's 
answer thereto, that no further action is required by the Commission 
with respect to the allegations contained in the informal complaint, 
the informal complaint shall be closed and the complainant and 
defendant shall be duly informed of the reasons therefor. A complainant 
unsatisfied with the defendant's response to the informal complaint and 
the staff decision to terminate action on the informal complaint may 
file a formal complaint with the Commission, as specified in Sec. 6.22.
    (c) In the event the Commission determines, based on a review of 
the information presented in the informal complaint and the defendant's 
answer thereto, that a material and substantial question remains as to 
the defendant's compliance with the requirements of this subpart, the 
Commission may conduct such further investigation or such further 
proceedings as may be necessary to determine the defendant's compliance 
with the requirements of this subpart and to determine what, if any, 
remedial actions and/or sanctions are warranted.
    (d) In the event that the Commission determines, based on a review 
of the information presented in the informal complaint and the 
defendant's answer thereto, that the defendant has failed to comply 
with or is presently not in compliance with the requirements of this 
subpart, the Commission may order or prescribe such remedial actions 
and/or sanctions as are authorized under the Act and the Commission's 
rules and which are deemed by the Commission to be appropriate under 
the facts and circumstances of the case.


Sec. 6.21  Formal complaints, applicability of Secs. 1.720 through 
1.736 of this chapter.

    Formal complaints against a manufacturer or provider, as defined 
under this subpart, may be filed in the form and in the manner 
prescribed under Secs. 1.720 through 1.736 of this chapter. Commission 
staff may grant waivers of, or exceptions to, particular requirements 
under Secs. 1.720 through 1.736 of this chapter for good cause shown; 
provided, however, that such waiver authority may not be exercised in a 
manner that relieves, or has the effect of relieving, a complainant of 
the obligation under Secs. 1.720 and 1.728 of this chapter to allege 
facts which, if true, are sufficient to constitute a violation or 
violations of section 255 of the Act or this subpart.


Sec. 6.22  Formal complaints based on unsatisfied informal complaints.

    A formal complaint filing based on an unsatisfied informal 
complaint filed pursuant to Sec. 4.16 of this chapter shall be deemed 
to relate back to the filing date of the informal complaint if it is 
filed within ninety days from the date that the Commission notifies the 
complainant of its disposition of the informal complaint and based on 
the same operative facts as those alleged in the informal complaint.

[[Page 63255]]

Sec. 6.23  Actions by the Commission on its own motion.

    The Commission may on its own motion conduct such inquiries and 
hold such proceedings as it may deem necessary to enforce the 
requirements of this subpart and section 255 of the Communications Act. 
The procedures to be followed by the Commission shall, unless 
specifically prescribed in the Act and the Commission's rules, be such 
as in the opinion of the Commission will best serve the purposes of 
such inquiries and proceedings.
    2. Add part 7 to read as follows:

PART 7--ACCESS TO VOICEMAIL AND INTERACTIVE MENU SERVICES AND 
EQUIPMENT BY PEOPLE WITH DISABILITIES

Subpart A--Scope--Who Must Comply With These Rules?

Sec.
7.1  Who must comply with these rules?

Subpart B--Definitions

7.3  Definitions.

Subpart C--Obligations--What Must Covered Entities Do?

7.5  General obligations.
7.7  Product design, development and evaluation.
7.9  Information pass through.
7.11  Information, documentation and training.

Subpart D--Enforcement

7.15  Generally.
7.16  Informal or formal complaints.
7.17  Informal complaints; form and content.
7.18  Procedure; designation of agents for service.
7.19  Answers to informal complaints.
7.20  Review and disposition of informal complaints.
7.21  Formal complaints, applicability of Secs. 1.720 through 1.736 
of this chapter.
7.22  Formal complaints based on unsatisfied informal complaints.
7.23  Actions by the Commission on its own motion.

    Authority: 47 U.S.C. 1, 154(i), 154(j) 208, and 255.

Subpart A--Scope--Who Must Comply With These Rules?


Sec. 7.1  Who must comply with these rules?

    The rules in this part apply to:
    (a) Any provider of voicemail or interactive menu service;
    (b) Any manufacturer of telecommunications equipment or customer 
premises equipment which performs a voicemail or interactive menu 
function.

Subpart B--Definitions


Sec. 7.3  Definitions.

    (a) The term accessible shall mean that:
    (1) Input, control, and mechanical functions shall be locatable, 
identifiable, and operable in accordance with each of the following, 
assessed independently:
    (i) Operable without vision. Provide at least one mode that does 
not require user vision.
    (ii) Operable with low vision and limited or no hearing. Provide at 
least one mode that permits operation by users with visual acuity 
between 20/70 and 20/200, without relying on audio output.
    (iii) Operable with little or no color perception. Provide at least 
one mode that does not require user color perception.
    (iv) Operable without hearing. Provide at least one mode that does 
not require user auditory perception.
    (v) Operable with limited manual dexterity. Provide at least one 
mode that does not require user fine motor control or simultaneous 
actions.
    (vi) Operable with limited reach and strength. Provide at least one 
mode that is operable with user limited reach and strength.
    (vii) Operable with a Prosthetic Device. Controls shall be operable 
without requiring body contact or close body proximity.
    (viii) Operable without time-dependent controls. Provide at least 
one mode that does not require a response time or allows a response to 
be by-passed or adjusted by the user over a wide range.
    (ix) Operable without speech. Provide at least one mode that does 
not require user speech.
    (x) Operable with limited cognitive skills. Provide at least one 
mode that minimizes the cognitive, memory, language, and learning 
skills required of the user.
    (2) All information necessary to operate and use the product, 
including but not limited to, text, static or dynamic images, icons, 
labels, sounds, or incidental operating cues, comply with each of the 
following, assessed independently:
    (i) Availability of visual information. Provide visual information 
through at least one mode in auditory form.
    (ii) Availability of visual information for low vision users. 
Provide visual information through at least one mode to users with 
visual acuity between 20/70 and 20/200 without relying on audio.
    (iii) Access to moving text. Provide moving text in at least one 
static presentation mode at the option of the user.
    (iv) Availability of auditory information. Provide auditory 
information through at least one mode in visual form and, where 
appropriate, in tactile form.
    (v) Availability of auditory information for people who are hard of 
hearing. Provide audio or acoustic information, including any auditory 
feedback tones that are important for the use of the product, through 
at least one mode in enhanced auditory fashion (i.e., increased 
amplification, increased signal-to-noise ratio, or combination).
    (vi) Prevention of visually-induced seizures. Visual displays and 
indicators shall minimize visual flicker that might induce seizures in 
people with photosensitive epilepsy.
    (vii) Availability of audio cutoff. Where a product delivers audio 
output through an external speaker, provide an industry standard 
connector for headphones or personal listening devices (e.g., phone-
like handset or earcup) which cuts off the speaker(s) when used.
    (viii) Non-interference with hearing technologies. Reduce 
interference to hearing technologies (including hearing aids, cochlear 
implants, and assistive listening devices) to the lowest possible level 
that allows a user to utilize the product.
    (ix) Hearing aid coupling. Where a product delivers output by an 
audio transducer which is normally held up to the ear, provide a means 
for effective wireless coupling to hearing aids.
    (b) The term compatibility shall mean compatible with peripheral 
devices and specialized customer premises equipment commonly used by 
individuals with disabilities to achieve accessibility to voicemail and 
interactive menus, and in compliance with the following provisions, as 
applicable:
    (1) External electronic access to all information and control 
mechanisms. Information needed for the operation of products (including 
output, alerts, icons, on-line help, and documentation) shall be 
available in a standard electronic text format on a cross-industry 
standard port and all input to and control of a product shall allow for 
real time operation by electronic text input into a cross-industry 
standard external port and in cross-industry standard format. The 
cross-industry standard port shall not require manipulation of a 
connector by the user.
    (2) Connection point for external audio processing devices. 
Products providing auditory output shall provide the auditory signal at 
a standard signal level through an industry standard connector.

[[Page 63256]]

    (3) TTY connectability. Products which provide a function allowing 
voice communication and which do not themselves provide a TTY 
functionality shall provide a standard non-acoustic connection point 
for TTYs. It shall also be possible for the user to easily turn any 
microphone on and off to allow the user to intermix speech with TTY 
use.
    (4) TTY signal compatibility. Products, including those providing 
voice communication functionality, shall support use of all cross-
manufacturer non-proprietary standard signals used by TTYs.
    (c) The term customer premises equipment shall mean equipment 
employed on the premises of a person (other than a carrier) to 
originate, route, or terminate telecommunications.
    (d) The term disability shall mean a physical or mental impairment 
that substantially limits one or more of the major life activities of 
an individual; a record of such an impairment; or being regarded as 
having such an impairment.
    (e) The term interactive menu shall mean a feature that allows a 
service provider or operator of CPE to transmit information to a caller 
in visual and/or audible format for the purpose of management, control, 
or operations of a telecommunications system or service; and/or to 
request information from the caller in visual and/or audible format for 
the purpose of management, control, or operations of a 
telecommunications system or service; and/or to receive information 
from the caller in visual and/or audible format in response to a 
request, for the purpose of management, control, or operations of a 
telecommunications system or service. This feature, however, does not 
include the capability for generating, acquiring, storing, 
transforming, processing, retrieving, utilizing, or making available 
information via telecommunications for any purpose other than 
management, control, or operations of a telecommunications system or 
service.
    (f) The term manufacturer shall mean an entity that makes or 
produces a product.
    (g) The term peripheral devices shall mean devices employed in 
connection with equipment covered by this part to translate, enhance, 
or otherwise transform telecommunications into a form accessible to 
individuals with disabilities.
    (h) The term readily achievable shall mean, in general, easily 
accomplishable and able to be carried out without much difficulty or 
expense. In determining whether an action is readily achievable, 
factors to be considered include:
    (1) The nature and cost of the action needed;
    (2) The overall financial resources of the manufacturer or service 
provider involved in the action (the covered entity); the number of 
persons employed by such manufacturer or service provider; the effect 
on expenses and resources, or the impact otherwise of such action upon 
the operations of the manufacturer or service provider;
    (3) If applicable, the overall financial resources of the parent of 
the covered entity; the overall size of the business of the parent of 
the covered entity with respect to the number of its employees; the 
number, type, and location of its facilities; and
    (4) If applicable, the type of operation or operations of the 
covered entity, including the composition, structure and functions of 
the workforce of such entity; and the geographic separateness, 
administrative or fiscal relationship of covered entity in question to 
the parent entity.
    (i) The term specialized customer premises equipment shall mean 
customer premise equipment which is commonly used by individuals with 
disabilities to achieve access.
    (j) The term telecommunications equipment shall mean equipment, 
other than customer premises equipment, used by a carrier to provide 
telecommunications services, and includes software integral to such 
equipment (including upgrades).
    (k) The term telecommunications service shall mean the offering of 
telecommunications for a fee directly to the public, or to such classes 
of users as to be effectively available directly to the public, 
regardless of the facilities used.
    (l) The term usable shall mean that individuals with disabilities 
have access to the full functionality and documentation for the 
product, including instructions, product information (including 
accessible feature information), documentation, bills and technical 
support which is provided to individuals without disabilities.
    (m) The term Voicemail shall mean the capability of answering calls 
and recording incoming messages when a line is busy or does not answer 
within a pre-specified amount of time or number of rings; receiving 
those messages at a later time; and may also include the ability to 
determine the sender and time of transmission without hearing the 
entire message; the ability to forward the message to another voice 
massaging customer, with and/or without an appended new message; the 
ability for the sender to confirm receipt of a message; the ability to 
send, receive, and/or store facsimile messages; and possibly other 
features.

Subpart C--Obligations--What Must Covered Entities Do?


Sec. 7.5  General Obligations.

    (a) Obligation of Manufacturers. (1) A manufacturer of 
telecommunications equipment or customer premises equipment covered by 
this part shall ensure that the equipment is designed, developed and 
fabricated so that the voicemail and interactive menu functions are 
accessible to and usable by individuals with disabilities, if readily 
achievable;
    (2) Whenever the requirements of paragraph (a)(1) of this section 
are not readily achievable, the manufacturer shall ensure that the 
equipment is compatible with existing peripheral devices or specialized 
customer premises equipment commonly used by individuals with 
disabilities to achieve access, if readily achievable.
    (b) Obligation of Service Providers. (1) A provider of voicemail or 
interactive menu shall ensure that the service is accessible to and 
usable by individuals with disabilities, if readily achievable.
    (2) Whenever the requirements of paragraph (a)(1) of this section 
are not readily achievable, the service provider shall ensure that the 
service is compatible with existing peripheral devices or specialized 
customer premises equipment commonly used by individuals with 
disabilities to achieve access, if readily achievable.


Sec. 7.7  Product design, development, and evaluation.

    (a) Manufacturers and service providers shall evaluate the 
accessibility, usability, and compatibility of equipment and services 
covered by this part and shall incorporate such evaluation throughout 
product design, development, and fabrication, as early and consistently 
as possible. Manufacturers and service providers shall identify 
barriers to accessibility and usability as part of such a product 
design and development process.
    (b) In developing such a process, manufacturers and service 
providers shall consider the following factors, as the manufacturer 
deems appropriate:
    (1) Where market research is undertaken, including individuals with 
disabilities in target populations of such research;
    (2) Where product design, testing, pilot demonstrations, and 
product trials are conducted, including individuals with disabilities 
in such activities;
    (3) Working cooperatively with appropriate disability-related 
organizations; and

[[Page 63257]]

    (4) Making reasonable efforts to validate any unproven access 
solutions through testing with individuals with disabilities or with 
appropriate disability-related organizations that have established 
expertise with individuals with disabilities.


Sec. 7.9  Information pass through.

    Telecommunications equipment and customer premises equipment shall 
pass through cross-manufacturer, non-proprietary, industry-standard 
codes, translation protocols, formats or other information necessary to 
provide telecommunications in an accessible format, if readily 
achievable. In particular, signal compression technologies shall not 
remove information needed for access or shall restore it upon 
decompression.


Sec. 7.11  Information, documentation, and training.

    (a) Manufacturers and service providers shall ensure access to 
information and documentation it provides to its customers, if readily 
achievable. Such information and documentation includes user guides, 
bills, installation guides for end-user installable devices, and 
product support communications, regarding both the product in general 
and the accessibility features of the product. Manufacturers shall take 
such other readily achievable steps as necessary including:
    (1) Providing a description of the accessibility and compatibility 
features of the product upon request, including, as needed, in 
alternate formats or alternate modes at no additional charge;
    (2) Providing end-user product documentation in alternate formats 
or alternate modes upon request at no additional charge; and
    (3) Ensuring usable customer support and technical support in the 
call centers and service centers which support their products at no 
additional charge.
    (b) Manufacturers and service providers shall include in general 
product information the contact method for obtaining the information 
required by paragraph (a) of this section.
    (c) In developing, or incorporating existing training programs, 
manufacturers and service providers shall consider the following 
topics:
    (1) Accessibility requirements of individuals with disabilities;
    (2) Means of communicating with individuals with disabilities;
    (3) Commonly used adaptive technology used with the manufacturer's 
products;
    (4) Designing for accessibility; and
    (5) Solutions for accessibility and compatibility.

Subpart D--Enforcement


Sec. 7.15  Generally.

    (a) For purposes of Secs. 7.15-7.23 of this subpart, the term 
``manufacturers'' shall denote any manufacturer of telecommunications 
equipment or customer premises equipment which performs a voicemail or 
interactive menu function.
    (b) All manufacturers of telecommunications equipment or customer 
premise equipment (CPE) and all providers of voicemail and interactive 
menu services, as defined under this subpart, are subject to the 
enforcement provisions specified in the Act and the Commission's rules.
    (c) The term ``providers'' shall denote any provider of voicemail 
or interactive menu service.


Sec. 7.16  Informal or formal complaints.

    Complaints against manufacturers or providers, as defined under 
this subpart, for alleged violations of this subpart may be either 
informal or formal.


Sec. 7.17  Informal complaints; form and content.

    (a) An informal complaint alleging a violation of section 255 of 
the Act or this subpart may be transmitted to the Commission by any 
reasonable means, e.g., letter, facsimile transmission, telephone 
(voice/TRS/TTY), Internet e-mail, ASCII text, Internet e-mail, audio-
cassette recording, and braille.
    (b) An informal complaint shall include:
    (1) The name and address of the complainant;
    (2) The name and address of the manufacturer or provider against 
whom the complaint is made;
    (3) A full description of the telecommunications equipment or CPE 
and/or the telecommunications service about which the complaint is 
made;
    (4) The date or dates on which the complainant either purchased, 
acquired or used, or attempted to purchase, acquire or use the 
telecommunications equipment, CPE or telecommunications service about 
which the complaint is being made;
    (5) A complete statement of the facts, including documentation 
where available, supporting the complainant's allegation that: such 
telecommunications service, or such telecommunications equipment or 
CPE, is not accessible to, or usable by, a person with a particular 
disability or persons with disabilities within the meaning of this 
subpart and section 255 of the Act; or that the defendant has otherwise 
failed to comply with the requirements of this subpart.
    (6) The specific relief or satisfaction sought by the complainant, 
and
    (7) The complainant's preferred format or method of response to the 
complaint by the Commission and defendant (e.g., letter, facsimile 
transmission, telephone (voice/TRS/TTY), Internet e-mail, ASCII text, 
audio-cassette recording, braille; or some other method that will best 
accommodate the complainant's disability).


Sec. 7.18  Procedure; designation of agents for service.

    (a) The Commission shall promptly forward any informal complaint 
meeting the requirements of Sec. 7.17 to each manufacturer and provider 
named in or determined by the staff to be implicated by the complaint. 
Such manufacturer(s) or provider(s) shall be called on to satisfy or 
answer the complaint within the time specified by the Commission.
    (b) To ensure prompt and effective service of informal and formal 
complaints filed under this subpart, every manufacturer and provider 
subject to the requirements of section 255 of the Act and this subpart, 
shall designate an agent, and may designate additional agents if it so 
chooses, upon whom service may be made of all notices, inquiries, 
orders, decisions, and other pronouncements of the Commission in any 
matter before the Commission. Such designation shall include, for both 
the manufacturer or the provider, a name or department designation, 
business address, telephone number, and, if available TTY number, 
facsimile number, and Internet e-mail address.


Sec. 7.19  Answers to informal complaints.

    Any manufacturer or provider to whom an informal complaint is 
directed by the Commission under this subpart shall file an answer 
within the time specified by the Commission. The answer shall:
    (a) Be prepared or formatted in the manner requested by the 
complainant pursuant to Sec. 7.17, unless otherwise permitted by the 
Commission for good cause shown;
    (b) Describe any actions that the defendant has taken or proposes 
to take to satisfy the complaint;
    (c) Advise the complainant and the Commission of the nature of the 
defense(s) claimed by the defendant;
    (d) Respond specifically to all material allegations of the 
complaint; and
    (e) Provide any other information or materials specified by the 
Commission as relevant to its consideration of the complaint.

[[Page 63258]]

Sec. 7.20  Review and disposition of informal complaints.

    (a) Where it appears from the defendant's answer, or from other 
communications with the parties, that an informal complaint has been 
satisfied, the Commission may, in its discretion, consider the informal 
complaint closed, without response to the complainant or defendant. In 
all other cases, the Commission shall inform the parties of its review 
and disposition of a complaint filed under this subpart. Where 
practicable, this information, the nature of which is specified in 
paragraphs (b) through (d) of this section, shall be transmitted to the 
complainant and defendant in the manner requested by the complainant, 
(e.g., letter, facsimile transmission, telephone (voice/TRS/TTY), 
Internet e-mail, ASCII text, audio-cassette recording, or braille).
    (b) In the event the Commission determines, based on a review of 
the information provided in the informal complaint and the defendant's 
answer thereto, that no further action is required by the Commission 
with respect to the allegations contained in the informal complaint, 
the informal complaint shall be closed and the complainant and 
defendant shall be duly informed of the reasons therefor. A complainant 
unsatisfied with the defendant's response to the informal complaint and 
the staff decision to terminate action on the informal complaint may 
file a formal complaint with the Commission, as specified in Sec. 7.22 
of this subpart.
    (c) In the event the Commission determines, based on a review of 
the information presented in the informal complaint and the defendant's 
answer thereto, that a material and substantial question remains as to 
the defendant's compliance with the requirements of this subpart, the 
Commission may conduct such further investigation or such further 
proceedings as may be necessary to determine the defendant's compliance 
with the requirements of this subpart and to determine what, if any, 
remedial actions and/or sanctions are warranted.
    (d) In the event that the Commission determines, based on a review 
of the information presented in the informal complaint and the 
defendant's answer thereto, that the defendant has failed to comply 
with or is presently not in compliance with the requirements of this 
subpart, the Commission may order or prescribe such remedial actions 
and/or sanctions as are authorized under the Act and the Commission's 
rules and which are deemed by the Commission to be appropriate under 
the facts and circumstances of the case.


Sec. 7.21  Formal complaints, applicability of Secs. 1.720 through 
1.736 of this chapter.

    Formal complaints against a manufacturer or provider, as defined 
under this subpart, may be filed in the form and in the manner 
prescribed under Secs. 1.720 through 1.736 of this chapter. Commission 
staff may grant waivers of, or exceptions to, particular requirements 
under Secs. 1.720 through 1.736 for good cause shown; provided, 
however, that such waiver authority may not be exercised in a manner 
that relieves, or has the effect of relieving, a complainant of the 
obligation under Secs. 1.720 and 1.728 of this chapter to allege facts 
which, if true, are sufficient to constitute a violation or violations 
of section 255 of the Act or this chapter.


Sec. 7.22  Formal complaints based on unsatisfied informal complaints.

    A formal complaint filing based on an unsatisfied informal 
complaint filed pursuant to Sec. 4.16 of this chapter shall be deemed 
to relate back to the filing date of the informal complaint if it is 
filed within ninety days from the date that the Commission notifies the 
complainant of its disposition of the informal complaint and based on 
the same operative facts as those alleged in the informal complaint.


Sec. 7.23  Actions by the Commission on its own motion.

    The Commission may on its own motion conduct such inquiries and 
hold such proceedings as it may deem necessary to enforce the 
requirements of this part and Section 255 of the Communications Act. 
The procedures to be followed by the Commission shall, unless 
specifically prescribed in the Act and the Commission's rules, be such 
as in the opinion of the Commission will best serve the purposes of 
such inquiries and proceedings.

[FR Doc. 99-30091 Filed 11-18-99; 8:45 am]
BILLING CODE 6712-01-U