Towards Accessible Telecommunications for People with Disabilities

When the Tide Comes In: Towards Accessible Telecommunications for People with Disabilities in Australia

A discussion paper commissioned by the Human Rights and Equal Opportunity Commission

William Jolley, Chief Consultant

Jolley William & Associates

wjolley@bigpond.com

June 2003

5. Overseas Trends and Activities

5.1 Europe and the UK

5.2 United States

5.2.1 Americans with Disabilities Act

5.2.2 Section 255 of the Telecommunications Act

5.2.3 Section 508 of the Rehabilitation Act

5.3 World Summit on the Information Society

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This Section looks at developments and trends in Europe, the United Kingdom and the United States. In general terms we find that Europe and the United Kingdom are relatively strong on research, collaboration, standards and guidelines; and the United States is relatively strong on legislation and regulation. In Australia we can derive considerable benefit by monitoring overseas developments and applying the fruits of research or the benefits of regulation to our own unique situation; however, care must be taken in making international comparisons, since the legal and regulatory systems are different. The Section concludes with brief coverage of the World Summit on the Information Society, scheduled to be held in Switzerland in December 2003 and in Tunisia in November 2005.

5.1 Europe and the UK

The best source of information about developments and outstanding challenges for people with disabilities to access telecommunications services and equipment in Europe and the UK is provided by COST219bis. Many papers and reports are available from its website at http://www.stakes.fi/cost219, and are summarised in COST219bis (2001), available at http://www.tiresias.org/phoneability/bridging_the_gap/index.htm. Titled 'Bridging the gap? Access to telecommunications for all' this book reviews progress over the past fifteen years. It is a collaborative effort with contributions from more than twenty experts from all over the world. It gives a snapshot of the latest situation concerning the development of telecommunications products and services for disabled and older people and discusses many related issues.

COST is a framework for European Co-operation in the field Of Scientific and Technical research. Its main interest is co-ordination of national research throughout Europe. COST219bis "Telecommunications: Access for Disabled and Elderly People", is a continuation of the original COST 219 Action. The main objective of COST219bis is to increase the availability of telecommunications services and equipment so that they are accessible to all people, including disabled and older people. The 'Design for all' or 'Inclusive design' concept has been strongly advocated by COST219bis. COST219bis has advocated that where it is not possible to implement this concept from the design phase, equipment should be adapted or appropriate supplementary facilities should be proposed. The signatory countries in COST 219bis are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Malta, Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Australia and the United States of America also participate as non-COST members.

Over the past fifteen years the telecommunications environment across Europe has been transformed from government-owned monopolies to private corporations driven by market competition and profit objectives. There are more than 80 million people in Europe aged over sixty years, a number expected to grow beyond 120 million by 2020. Many of these people will be heavy users of telecommunications services and equipment, and the high positive correlation between age and disability is well known. The estimated number of people with disabilities in Europe is 11%, significantly lower than the 19% estimated in Australia and the United States. Without doubt this discrepancy is largely due to different estimation procedures and classification criteria. A percentage increase can be expected as the population ages.

COST219bis (2001) gives an overview of equipment developments in the three areas of personal communication, support for daily living, and access to information (Chapter 2.1) and a survey of relay services (Chapter 2.2). The survey of relay services compared the situation in 2001 with that which prevailed ten years previously. It concluded that, as was the case in 1991, text relay services, as opposed to videophone and speech to speech relay services, predominate in Europe. However, the situation across Europe varies greatly. Two countries (Greece and Portugal) have introduced relay services, but there are still six EU countries (Austria, Belgium, Germany, Ireland, Italy and Luxembourg) where there is no formal relay service. The main enhancements to services (including some video relay services) have occurred in countries where relay services were already in operation in 1991 (Denmark, Finland, Netherlands, Norway, Sweden, Switzerland and the United Kingdom). These services have become more sophisticated, offering more services on an around-the-clock basis. It is sometimes argued that, with the widespread use of the Internet, fax and SMS, there is no longer any need for text relay services. Whilst the widespread use of email and SMS has changed the habits of both the hearing and non-hearing communities, relay services continue to provide an essential telecommunication service.

COST219bis (2001) describes legislation, regulation and standardisation across Europe in Chapter 3.5. It paints a picture of slow and fragmented progress, with most European countries lagging behind the United States and Australia. Much of the fine rhetoric of European Directives, which are themselves mandatory, describes principles and accommodations which are optional when addressing the requirements of persons with special needs including disabled and older persons. European Directives bring about legal obligations on EU governments to implement them. Many have a set of Essential Requirements attached to them that set out the rules by which service suppliers and equipment manufacturers can show how they conform with the Directive. In telecommunications each country has a government department with responsibility for negotiations on the directives to ensure their implementation. In addition each country has a National Telecommunications Regulator which regulates the market for telecommunications services. Chapter 3.5 includes results of the COST219bis survey of European Regulators to estimate the manner in which they have implemented Directives and introduced regulation for the benefit of disabled and elderly people. The survey results show that the situation between countries is vastly different, and that for many countries the situation is not good for people with disabilities. One way for service providers and equipment manufacturers to show that they meet the Essential Requirements of Directives is to use appropriate international and European standards. Consequently there is a long and very bureaucratic chain that has to be influenced if products and services are to become available to both disabled and elderly people.

The change of the telecommunications industry (carriers and services) from government monopolies to private competitors has had a negative impact in Europe on the development of standards. The standards developed by the telecommunications industry are more likely to be voluntary, and do not become mandatory unless they are adopted by national regulators. Equipment standards for people with disabilities, and other special needs groups, take second place in standards development to work on protocols that ensure connectivity and enhance service expansion and product development. What seems to have happened in Europe is that government regulation is lagging behind industry fragmentation, and a greater pan-European resolve is needed before telecommunications regulation will deliver protection for all consumers including people with disabilities.

There are examples of excellent work being carried out in Europe and the United Kingdom which have beneficial effects elsewhere. Examples include: the scientific research units of the Royal National Institute of the Blind (RNIB) and Royal National Institute for Deaf People in the United Kingdom, the standards work on 'total conversation' and videotelephony research. RNIB's Tiresias database of products, agencies and research, at http://www.terisias is an excellent resource. The Europeans frequently hold technical seminars on sub-themes of information and communication technology for elderly and disabled persons; and there is good collaboration between disability organisations, universities and private corporations to carry out pan-European R&D projects funded by various commissions of the European Union.

5.2 United States

There are three important pieces of legislation in the United States, each of which has a role to play in making telecommunications equipment, products and services more accessible for people with disabilities. These are:

The Americans with Disabilities Act (ADA) 1990, administered by the Department of Justice (DOJ);
Section 255 of the Telecommunications Act 1934 (as revised in 1996), administered by the Federal Communications Commission (FCC); and
Section 508 of the Rehabilitation Act 1973 (as amended in 1998), administered by the Architectural and Transportation Barriers Compliance Board (Access Board).

The legislative systems in the United States and Australia are quite different, so the details of the American laws do not require discussion in the present context. Due to the differences in the laws and the legal framework of the two countries, care should be taken in comparing rights, responsibilities and compliance mechanisms in the two separate jurisdictions. What is important, however, is the extent to which these laws shape the access features of telecommunications equipment, products and services, and their flow-on effects internationally. Section 508 of the Rehabilitation Act appears to be the most important since it is forcing manufacturers of office equipment to build accessibility into their mainstream products; but Section 255 of the Telecommunications Act may prove to be very important as well.

5.2.1 Americans with Disabilities Act

The Americans with Disabilities Act 1990 (ADA) prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Title IV of the ADA addresses telephone and television access for people with hearing and speech disabilities. It requires telephone companies to establish interstate and intrastate telecommunications relay services 24 hours a day, 7 days a week. Relay services enable callers with hearing and speech disabilities who use TTY text telephones and callers who use voice telephones to communicate with each other through a third party communications assistant. The FCC has set minimum standards for TRS services. Title IV also requires closed captioning of Federally funded public service announcements.

Unlike the NRS in Australia, relay services in the United States are state based. Some of them also provide a video relay service. Disability equipment programs are also state-based, rather than being company-specific.

The Deaf and Disabled Telecommunications Program (DDTP) in California distributes telecommunications equipment and auspices services for individuals certified as having functional limitations of hearing, vision, mobility, speech and/or interpretation of information. The program's primary focus is people who are deaf or hearing/speech impaired. The DDTP is funded by a small surcharge that appears on all Californians' telephone bills. The money collected from this surcharge goes into a trust fund that pays for both the California Telephone Equipment Loan Program and the California Relay Service. This surcharge appears on the phone bill as 'CA Relay Service and Communications Devices Fund'.

5.2.2 Section 255 of the Telecommunications Act

During the 1990s there was a great deal of discussion and lobbying effort in the United States towards the achievement of accessible telecommunications equipment and services. The second report of the Blue Ribbon Panel on national telecommunications policy of 1994 focused attention on the needs of people with disabilities. It made far-reaching recommendations, many of which have been implemented at least partially. In 1996 Section 255 was inserted into the Telecommunications Act. It states, in part:

(b) MANUFACTURING. -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.

(c) TELECOMMUNICATIONS SERVICES. -A provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.

(d) COMPATIBILITY. -Whenever the requirements of subsections (b) and (c) are not readily achievable, such a manufacturer or provider shall ensure that the equipment or service is compatible with existing peripheral devices or specialised customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.

We may restate this succinctly, as follows: Provided that it is readily achievable to do so, telecommunications equipment and services must be accessible to and usable by persons with disabilities, or they must at least be compatible with their commonly used assistive technology. The terms 'disability' and 'readily achievable' are defined in the ADA. The definition of 'disability' is substantially narrower than the definition used in Australia's DDA, but this difference may not be significant in the context of accessible telecommunications. The term 'readily achievable' means "easily accomplishable and able to be carried out without much difficulty or expense."

Section 255 also requires that within 18 months after the date of enactment of the Telecommunications Act of 1996, the Architectural and Transportation Barriers Compliance Board shall develop guidelines for accessibility of telecommunications equipment and customer premises equipment in conjunction with the Commission. The Telecommunications Accessibility Guidelines were issued by the Access Board in 1998, following a detailed report by the Board's Telecommunications Access Advisory Committee which was released in 1997.

In 1999 the FCC made rules for the implementation of Section 255. They are based on the guidelines issued by the Access Board. Snowden (2003) gives a concise description of the rules.

The rules involve several key factors to consider when creating and operating telecommunications products and services: accessibility, and the readily achievable standard; usability; and compatibility.

'Accessibility' means that each piece of equipment and each service must have one mode operable by a person: who is blind, with little or no colour perception, who is deaf, with limited dexterity, who uses a prosthetic device, with limited cognitive skills, etc. Section 255 only requires accessibility measures that are readily achievable. Factors that go into deciding whether or not something is readily achievable include the cost of a solution, and the overall financial resources of a manufacturer or service provider, including the resources of a parent company.

'Usability' refers to a person with a disability having access to the full functionality of the product and having access to the information on how to use telecommunications equipment or services. This means that the product support materials, whether on the web, in a pamphlet, in a box, or through a call centre, need to be accessible.

'Compatibility' is the requirement that if accessibility is not readily achievable a product or service must be made compatible with peripheral devices or specialised customer premises equipment, if compatibility is readily achievable.

The 'readily achievable' standard applies to the compatibility requirement as well. If it is not readily achievable to make a product compatible, a company does not have to do so. Essentially, the first goal of Section 255 is accessibility. If that is not possible, make the product or service compatible.

The rules require that accessibility, usability, and compatibility should be addressed not only in the design and development phase of a product or service, but also at the point of any significant upgrade. In addition, manufacturers and service providers must evaluate the accessibility, usability, and compatibility of their products and services and use this evaluation as early as possible in the development phase of new products.

Section 255 applies to CPE which is used in the home or office to originate, route, or terminate telecommunications. TTYs and voice synthesisers are good examples of CPE. The rules cover telecommunications equipment, which is equipment used by the carriers to provide telecommunications. Section 255 also covers telecommunication services. Some examples of services include: telephone calls, call waiting, speed dialling, call forwarding, computer-provided directory assistance, call monitoring, caller ID, call tracing, repeat dialling. In addition, the rules cover interactive voice response (IVR) systems and voice mail.

Consumers can bring informal and formal complaints to the FCC under Section 255. During 2002 there were about 70 informal complaints, most of which have been closed, and in February 2003 the first formal complaint was lodged regarding mobile phone inaccessibility for blind people. The FCC has authority to impose a variety of penalties against companies that fail to comply with Section 255, including monetary damages (against companies that furnish communications services to the general public only), license revocations, cease and desist orders, and retrofitting requirements.

Section 255 looks like a powerful law to assure telecommunications accessibility for people with disabilities, but so far it has been slow to deliver. As more digitally-based customer equipment is developed, it will become clear whether 'readily achievable' is a major loophole or a condition of diminishing importance.

5.2.3 Section 508 of the Rehabilitation Act

In 1998 Congress amended the Rehabilitation Act 1973, and strengthened Section 508 which covers access to information in the Federal sector. Section 508 requires access to the Federal government's electronic and information technology for people with disabilities. The law covers all types of mainstream electronic and information technology: office equipment, desktop computers, telecommunications equipment, software, etc. Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that the electronic and information technology allows Federal employees with disabilities to have access to and use of information and data that is comparable to the access to and use of information and data by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency. The law directs the Access Board to develop access standards for this technology that will become part of the Federal procurement regulations. The Access Board released the final report of its Electronic and Information Technology Access Advisory Committee in 1999, and in 2000 adopted Section 508 standards based on the Committee's final report. The standards are at http://www.access-board.gov/508.htm.

Section 508 uses the Federal procurement process to ensure that technology acquired by the Federal government is accessible. The law also sets up an administrative process under which individuals with disabilities can file a complaint alleging that a Federal agency has not complied with the standards. This process uses the same complaint procedures established under section 504 of the Rehabilitation Act (which covers access to Federally funded programs and services). It provides injunctive relief and attorney's fees to the prevailing party, but does not include compensatory or punitive damages. Individuals may also file a civil action against an agency.

A Federal agency does not have to comply with the standards if it would impose an undue burden to do so. This is consistent with language used in the ADA and other civil rights legislation, where the term 'undue burden' has been defined as "significant difficulty or expense". However, the agency must explain why meeting the standards would pose an undue burden for a given procurement action, and must still provide people with disabilities with access to the information or data that is affected.

Waddell (2003) gives a good overview of the background to the Section 508 amendment, and describes the electronic and information technology access standards. She states that the US Government, as the world's largest consumer of electronic and information technology, is exerting its strength in the market to push industries to design accessible products. Federal agencies, with limited exceptions, are prohibited from developing, purchasing, maintaining or using electronic and information technology that is inaccessible to individuals with disabilities. An accessible information technology and web design plan must be in place.

All vendors must apply inclusive design principles if they want to participate in the federal government market. A marketplace incentive has now been created to design for accessibility:

since the Federal government must procure products meeting the Access Board Standards; and
a losing vendor can challenge a contract awarded to another vendor and ultimately void the contract if it can prove that its product or service is more accessible. This provides an added incentive for vendors to devote research and development to design for all.

A growing number of State and local governments are adopting Section 508 standards, since they also desire their products and services to reach the widest possible market. Entities covered under the ADA and Section 508 are now informed on what inclusive design really means.

Section 508 promises to be an extremely important law with far-reaching consequences for information and communications technology worldwide. It will benefit people who are blind or vision impaired, people who are deaf or hearing impaired, people with physical disabilities, and people with other disabilities in many facets of their daily lives: employment, education, personal computing and telecommunications.

5.3 World Summit on the Information Society

The World Summit on the Information Society (WSIS) is an endeavour of the United Nations (UN), being led by the International Telecommunications Union (ITU). In 1998 resolution 73 of the ITU requested consideration by the UN of the holding of a World Summit on the Information Society. Following UN approval in principle in 1999, the ITU Council decided in 2001 to hold a Summit in two phases, with the first phase to be held during 10-12 December 2003 in Switzerland and the second phase to be held during 16-18 November 2005 in Tunisia. By letter, dated 21 April 2003, UN Secretary General, Kofi Annan, has invited the participation of all Heads of State of UN members. The letter provides background information, and may be downloaded from http://www.itu.int/wsis/docs/summit/invitation_letter.doc. In the context of the present discussion paper, the WSIS is wide-ranging: telecommunications (fixed, mobile and Internet), broadcasting, social and commercial eParticipation, eGovernment, eHealth, eLiteracy, and information and communication technology (ICT).

Resolution 56/183 of the UN General Assembly:

endorsed the framework for the Summit as adopted by the ITU Council;
endorsed the leading role of ITU in the Summit, and its preparation, in co-operation with other interested organisations and partners;
recommended that preparations for the Summit take place through an open-ended intergovernmental Preparatory Committee that would define the agenda of the Summit, decide on the ways and means of participation of other stakeholders in the Summit, and finalise both the draft declaration and the draft plan of action; and
encouraged contributions from all relevant UN bodies and other intergovernmental organisations, including international and regional institutions, non-governmental organisations, civil society and the private sector to actively participate in the intergovernmental preparatory process of the Summit and the Summit itself.

In promoting the Summit the ITU states that the global information society is evolving at breakneck speed. The accelerating convergence between telecommunications, broadcasting, multimedia and ICT is driving new products and services, as well as ways of conducting business and commerce. At the same time, commercial, social and professional opportunities are rapidly evolving and new markets are being opened to competition and innovation. The modern world is undergoing a revolutionary transformation as the industrial society that marked the 20th century rapidly gives way to the information society of the 21st century. The WSIS will provide a unique opportunity for all key stakeholders to assemble at a high-level gathering and to develop a better understanding of this revolution and its impact on the international community. The Summit aims to bring together heads of state, executive heads of United Nations agencies, industry leaders, non-governmental organisations, media representatives and civil society in a single high-level event. The anticipated outcome of the Summit is a clear statement of political will and a concrete plan of action for achieving the goals of the Information Society, while fully reflecting all the different interests at stake.

The first phase of the WSIS will take place in Geneva in December 2003. It will address the broad range of themes concerning the Information Society and adopt a Declaration of Principles and plan of action, addressing the whole range of issues related to the Information Society. The second phase of the WSIS will take place in Tunis from 16 to 18 November 2005. Development themes will be a key focus in this phase, and it will assess progress that has been made and adopt any further plan of action to be taken.

The first Summit meeting in December 2003 will have been informed by three Preparatory Committee meetings held in Switzerland. Prepcom-1 was held in July 2002 with over 900 participants, PrepCom-2 was held in February 2003 with over 1500 participants, and PrepCom-3 is scheduled for September 2003. The final report of PrepCom-2 may be downloaded from http://www.itu.int/dms_pub/itu-s/md/03/wsispc2/doc/S03-WSISPC2-DOC-0001…. The substantial parts of this report are the appendices to Annex 1, the Draft Declaration of Principles and the Draft Action Plan. Meanwhile, these documents are being updated in readiness for PrepCom-3, and may be downloaded by following links from http://www.itu.int/wsis/documents/listing.asp?lang=en&c_event=pci|1&c_t…|.

A drawback with United Nations documents is their lack of direct relevance. The Draft Principles and Action Plan are both high on philosophy, strong on inclusive rhetoric, plentiful on generalities and scarce on specifics. In particular, the disability dimension is almost non-existent. The embryonic Action Plan contains more principles than actions, so there is still time for some specific actions of benefit to people with disabilities to be included.

The WSIS PrepCom-2 was informed by a series of five regional preparatory conferences. The one for Asia and the Pacific was held in Tokyo in January 2003. It brought together representatives of the governments of 47 countries, 22 international organisations, 54 private sector entities and 116 non-governmental organisations. The Japan society for the Rehabilitation of Persons with Disabilities was prominent among the NGOs, representing the interests for people with disabilities. The conference issued the Tokyo Declaration. This declaration seems to be more mindful of the particular situation of people with disabilities, throughout the document referring to: accessible formats, ICT literacy, copyright barriers and affordability, The Declaration states: "There are an estimated 400 million persons with disabilities in the Asia-Pacific region. The majority are poor and have been excluded from the benefits of ICT development due to the lack of appropriate or affordable technology for persons with disabilities. More effort, including implementation of disability-concerned regional plans of action and programmes, should be made to ensure equitable access to ICTs for persons with disabilities."

Whilst people with disabilities face many access barriers in common with other marginalised groups (women, elderly, illiterate and poor people), essentially because they belong to those groups either in proportionate or disproportionately high numbers, people with disabilities face additional access barriers, not faced by other groups. It is easy to lose sight of these specific barriers amidst the inclusive and generalised language of UN documents. In particular, the situation in most countries is grave:

Deaf people and people with speech/hearing impairments cannot independently use voice-based telephone services, and face barriers for text communication due to incompatible communication protocols;
Deaf people and people with speech/hearing disabilities mostly cannot use mobile phones for real-time text communication because of incompatible communication protocols;
Deaf people, using signing as their first language, mostly cannot afford the terminal cost, nor the recurrent telecommunications tariff, to support their video-based communication, unless subsidy-based costing models are developed and implemented;
People who are blind cannot use the value-added features of mobile phones, because they cannot see the screen or other visual indicators, and neither the phones nor the networks have any information enhancement through synthetic speech;
Many people with print disabilities cannot use many poorly designed websites, cannot read many PDF files, and face some nationally-based copyright barriers; and
Many libraries serving people with print disabilities cannot afford to transfer to, and maintain, digital talking book services using telecommunications-based information transfer, because the terminal equipment and communication tariffs are too high.

The 'free post' concession for the blind is well established, with international recognition and administration by the Universal Postal Union. Its origin was the free international carriage of Braille books and Braille writing/embossing equipment as surface mail, formalised in 1952, and the concession is implemented in most countries throughout the world. Some countries have extended the concession, such as free large print in the United States, free audio materials for people with print disabilities in Australia, and concessions for the carriage of goods by airmail in Australia and the United Kingdom. Leavey (2000) gives an authoritative international overview. Australia Post carries eligible postal articles at favourable rates for people with print disabilities and eligible organisations, and is reimbursed for the revenue foregone by the commonwealth government. The contract is worth over $4 million per year. A similar reasonable accommodation, but this time for telecommunications rather than post, may be a tangible beneficial outcome of the World Summit on the Information Society.

Recommendation 26: Contributing to the World Summit on the Information Society

That HREOC should consider holding discussions with the ACA and NOIE with a view to influencing Australia's contribution to the World Summit on the Information Society, specifically towards: barrier-free, video-based communication by Deaf people; affordable, telecommunications-based access to talking books by blind people; and the removal of copyright barriers that limit international access to Braille, talking books and documents/information in other specialised formats.

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