Monday, October 22, 2012

First Report On Twenty-First Century Communications and Video ...

Making the virtual world accessible for people with disabilities was kicked into a higher gear with passing of the?Twenty-First Century Communications and Video Accessibility Act of 2010.

Along with this act a report on?implementation?and progress was mandated to be provided every two years. Here is the first one.

It?s a long wonky read but insightful.

Before the

Federal Communications Commission

Washington, D.C.? 20554

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Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010

CG Docket No. 10-213

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BIENNIAL REPORT TO CONGRESS

AS REQUIRED BY THE

TWENTY-FIRST CENTURY COMMUNICATIONS

AND VIDEO ACCESSIBILITY ACT OF 2010

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Adopted:? October 5, 2012?????????????????????????????????????????????????????????????????? Released:? October 5, 2012

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By the Acting Chief, Consumer and Governmental Affairs Bureau:

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Table of Contents

Paragraph #

I.????????? INTRODUCTION AND OVERVIEW???????????????????????.. 1

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II.??????? COMMUNICATIONS ACCESSIBILITY

A.??????? Background

1.? ?????? Section 255????????????????????????????? 8

2.? ?????? Section 716????????????????????????????? 9

3.? ?????? Section 718????????????????????????????. 12

4.? ?????? Implementation of Sections 716, 717, and 718??????????. 13

5.? ?????? Scope of this First Biennial Report ????????????????. 15

B.???????? Compliance with Sections 255, 716, and 718???????????????. 17

C.???????? Accessibility Barriers in New Communications Technologies???????. 42

D.??????? Complaints Received Pursuant to Section 717??????????????? 47

1.????????????? Number and Nature of Complaints Received ???????????.. 51

2.????????????? Actions Taken to Resolve Such Complaints ???????????.. 54

3.????????????? Time to Resolve Each Complaint ????????????????.. 57

4.????????????? Actions for Mandamus and Appeals Filed ????????????? 58

E.???????? Effect of Section 717?s Recordkeeping and Enforcement Requirements on the Development and Deployment of New Communications Technologies?? 59

F.???????? Conclusion ????????????????????????????????. 64

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III??. COMMISSION ACTIONS TO IMPLEMENT THE CVAA ???????????? 74

  1. Section 102.? Hearing aid compatibility. ?????????????????.. 75
  2. Section 103.? Relay services. ???????????????????????. 79
  3. Section 104.? Access to advanced communications services and equipment. 84
  4. Section 105.? National Deaf-Blind Equipment Distribution Program. ??? 94
  5. Section 106.? Emergency Access Advisory Committee. ?????????? 98
  6. Section 201.? Video Programming Access Advisory Committee. ????.. 103
  7. Section 202.? Video description and closed captioning. ?????????.. 107
  8. Section 203.? Closed captioning decoder and video description capability. 115
  9. Section 204.? User interfaces on digital apparatus. ???????????? 120
  10. Section 205.? Access to video programming guides and menus provided on navigation devices. ?????????? 122
  11. Other Accessibility-Related Commission Activities. ??????????? 124

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APPENDIX A:? List of Commenters

APPENDIX B:? Commission Actions to Implement the CVAA

APPENDIX C:? Commission Outreach and Education

APPENDIX D:? CVAA Consumer Guides

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I.????????? INTRODUCTION AND OVERVIEW

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  1. The Consumer and Governmental Affairs Bureau (CGB) of the Federal Communications Commission (FCC or Commission), pursuant to its delegated authority,[1] prepared this Biennial Report (Report) for submission to the Committee on Commerce, Science, and Transportation of the Senate, and the Committee on Energy and Commerce of the House of Representatives (to the Committees or to Congress) in accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).[2]? The purpose of the CVAA is to ?update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.?[3]? In enacting the CVAA, Congress noted that the communications marketplace had undergone a ?fundamental transformation? since it last acted on these issues in 1996 when it added Section 255 to the Communications Act of 1934, as amended (Communications Act).[4]? Although Section 255 addressed the accessibility of telecommunications services and equipment, Congress since concluded that people with disabilities often have not shared in the benefits of this rapid technological advancement.[5]? Implementation of the CVAA is a critical step in addressing this inequity.

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  1. Following passage of the CVAA on October 8, 2010, the Commission began implementing this landmark legislation by releasing multiple public notices and six notices of proposed rulemakings seeking comment on CVAA-related issues.? In addition, it established and has since overseen the work of two advisory committees required by the CVAA, both of which timely completed their CVAA-assigned charges.[6]? Throughout this implementation period, the agency has worked with consumer, industry, and government stakeholders to ensure effective and timely implementation of the new law.? As a result, the Commission has, since passage of the new law, already released five reports and orders adopting rules to implement various provisions of the CVAA and has met every one of the CVAA?s rigorous rulemaking deadlines.[7]? Resources throughout the Commission, from virtually every bureau and office within the Commission, have contributed to this effort.? We understand the importance of this legislation to the millions of Americans with disabilities and we are committed to continuing to fully meet our responsibilities under the CVAA.

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  1. In accordance with the CVAA, Section II of this Report presents information and assessments related to the accessibility of telecommunications and advanced communications services and equipment.[8]? Section II.A provides a general overview of Sections 255, 716, and 718 of the Communications Act, which are the statutory provisions governing accessible communications, followed by a brief discussion of the Commission?s actions to implement Section 716, 717(a), and 718, and the scope of this first biennial Report. [9]? Sections 716, 717, and 718 are among the new provisions added to the Communications Act by the CVAA.[10]? Sections 716 and 718 expand the scope of the Communications Act?s accessibility requirements to cover advanced communications services and equipment, and Internet browsers built into mobile phones, respectively.? Section 717(a) addresses the recordkeeping and enforcement obligations of service providers and equipment manufacturers that are subject to Sections 255, 716, and 718.

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  1. Sections II.B, C, D, and E of this Report present the information which the Commission must submit to Congress every two years after October 8, 2010, the date of enactment of the CVAA, as required by Section 717(b)(1) of the Communications Act.[11]? The Report must include the following information and assessments:[12]

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(A)??? An assessment of the level of compliance with Sections 255 (accessibility of telecommunications services and equipment), 716 (accessibility of advanced communications services and equipment), and 718 (accessibility of Internet browsers built into mobile phones).? See, infra, Section II.B.

(B)??? An evaluation of the extent to which any accessibility barriers still exist with respect to new communications technologies.? See, infra, Section II.C.

(C)??? The number and nature of complaints received pursuant to Section 717(a) (recordkeeping and enforcement obligations of service providers and equipment manufacturers that are subject to Sections 255, 716, and 718) during the two years that are the subject of the report.? See, infra, Section II.D.1.

(D)??? A description of the actions taken to resolve such complaints, including forfeiture penalties assessed.? See, infra, Section II.D.2.

(E)??? The length of time that was taken by the Commission to resolve each such complaint.? See, infra, Section II.D.3.

(F)??? The number, status, nature, and outcome of any actions for mandamus filed and of any appeals filed.? See, infra, Section II.D.4.

(G)??? An assessment of the effect of the recordkeeping and enforcement requirements of Section 717 on the development and deployment of new communications technologies.[13]? See, infra, Section II.E.

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  1. To inform the Commission?s preparation of the report, the Commission released a public notice on July 12, 2012, inviting comments related to the development of the Report (the CVAA Assessment PN).[14]? Those comments, though sparse, helped to inform the Commission?s tentative findings.[15]? On August 23, 2012, the Commission released a public notice seeking comment on its tentative findings pursuant to Section 717(b)(2) of the Communications Act (the CVAA Tentative Findings PN).[16]? Comments in response to the CVAA Tentative Findings PN were also sparse.[17]

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  1. Section II.F concludes this section of the Report by summarizing the comments received in response to the CVAA Tentative Findings PN and affirming those tentative findings, which are presented as findings in this Report.[18]

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  1. Finally, Section III of this Report presents a summary of other actions taken by the Commission related to the CVAA during the previous two years.

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II.??????? COMMUNICATIONS ACCESSIBILITY

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A.??????? Background

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1.???????? Section 255

  1. Section 255 of the Communications Act, enacted in 1996, requires providers of telecommunications service and manufacturers of telecommunications equipment or customer premises equipment (CPE) to ensure that such services and equipment are accessible to and usable by individuals with disabilities, if readily achievable.[19]? When these requirements are not readily achievable, covered entities must ensure that their services and equipment are compatible with existing peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve access, if readily achievable.[20]? The Commission?s rules implementing Section 255 govern telecommunications services, including telephone calls, call waiting, speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller identification, call tracing, and repeat dialing.[21]? Equipment covered under Section 255 includes, but is not limited to, CPE, such as wireline, cordless, and wireless telephones, fax machines, and answering machines.[22]? In addition, the rules implementing Section 255 cover voice mail and interactive voice response systems (phone systems that provide callers with menus of choices).[23]? In 2007, the Commission adopted rules extending Section 255?s accessibility obligations to interconnected voice over Internet protocol (VoIP) service providers and interconnected VoIP equipment manufacturers.[24]

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2.???????? Section 716

  1. Section 716 of the Communications Act requires providers of advanced communications services and manufacturers of equipment used for advanced communications services to ensure that their services and equipment are accessible to and usable by individuals with disabilities, unless doing so is not achievable (defined as ?with reasonable effort or expense?).[25]? This requirement may be satisfied by:? (1) building accessibility into the service or equipment;[26] or (2) by using third-party applications, peripheral devices, software, hardware, or CPE that is available to consumers at nominal cost and that individuals with disabilities can access.[27]? When ensuring accessibility through either of those options is not achievable, covered entities must ensure that their services and equipment are compatible with existing peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve access, unless that is not achievable.[28]

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  1. ?Advanced communications services? include:? (1) interconnected VoIP service; (2) non-interconnected VoIP service; (3) electronic messaging service; and (4) interoperable video conferencing service.[29]? In contrast to interconnected VoIP services, which enable people to make and receive calls to and from the public switched telephone network (PSTN), non-interconnected VoIP services include services that enable real-time voice communications either to or from the PSTN (but not both) or which neither begin nor end on the PSTN at all.[30]? Electronic messaging services, such as e-mail, short message service (SMS) text messaging, and instant messaging, enable real-time or near real-time text messages between individuals over communications networks.[31]? Interoperable video conferencing services provide real-time video communications, including audio, to enable users to share information.[32]

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  1. Section 716 of the Communications Act does not apply to services or equipment, including interconnected VoIP services and equipment, which were subject to Section 255 on October 7, 2010.[33]? Those services and equipment remain subject to the requirements of Section 255.[34]? As a result, Section 716 requirements apply to providers of non-interconnected VoIP services, electronic messaging services, and interoperable video conferencing services, and to manufacturers of equipment used for these services.

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3.???????? Section 718

  1. Section 718 requires mobile phone service providers and manufacturers to make Internet browsers built into mobile phones accessible to and usable by people who are blind or have a visual impairment, unless doing so is not achievable.[35]? This requirement may be satisfied with or without the use of third-party applications, peripheral devices, software, hardware, or CPE that is available to consumers at nominal cost and that individuals with disabilities can access.[36]

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4.???????? Implementation of Sections 716, 717, and 718

  1. After the CVAA was enacted, the Commission sought comment on the new communications accessibility provisions of the CVAA.[37]? The comments received in response to that public notice helped to inform the Commission?s notice of proposed rulemaking, released March 3, 2011.[38]? On October 7, 2011, the Commission released a report and order adopting rules to implement Sections 716 and 717 of the Communications Act and a further notice of proposed rulemaking addressing related matters and seeking comment on issues concerning the implementation of Section 718 of the Communications Act.[39]

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  1. The rules adopted by the Commission in the ACS Report and Order became effective January 30, 2012.[40]? Since that date, manufacturers and service providers have been required to take accessibility into account in the design of their products and services.[41]? One year later, beginning on January 30, 2013, covered manufacturers and service providers must comply with recordkeeping requirements pertaining to the accessibility of their products and services.[42]? Under the transition period established by the Commission, covered equipment and services must fully comply with the rules implementing Section 716 by October 8, 2013.[43]? In accordance with the CVAA, Section 718 of the Communications Act also becomes effective on October 8, 2013.[44]? Finally, the associated complaint procedures established pursuant to Section 717 of the Communications Act will be available to consumers on October 8, 2013.[45]

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5.???????? Scope of this First Biennial Report

  1. The evaluation of compliance with Sections 716 and 718 in this first biennial Report is, of necessity, circumscribed by the transition period described above.? Nonetheless, the Commission, pursuant to Section 255 of the Communications Act and its implementing rules, has established requirements and complaint procedures to ensure that telecommunications and interconnected VoIP services and equipment are accessible to and usable by individuals with disabilities.[46]? As a result, for this first Report, the Commission provides information about complaints alleging violations of Section 255 filed under those existing procedures and an assessment of industry compliance with those accessibility requirements.? The Commission also considers the extent to which initial industry efforts to comply with Section 716 have begun having an impact on the accessibility of services and equipment subject to Section 716.? In addition, the Commission considers the extent to which initial efforts to maintain accessibility-related records have begun having an impact on the accessibility of services and equipment subject to Sections 255 and 716 and on the development and deployment of new communications technologies.? Finally, this Report addresses accessibility barriers that still exist with respect to new communications technologies.? This initial Report does not assess the accessibility of Internet browsers built into mobile phones, required under Section 718 of the Communications Act, however, because that provision will not take effect until October 8, 2013,[47] and the Commission has not yet issued final rules implementing that provision.

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  1. Given the competing requirements to submit this first biennial Report to Congress two years after the enactment of the CVAA on October 8, 2010, and the CVAA requirement to seek comment on our tentative findings before submitting this Report,[48] the time period covered by this first Report is less than a full two years.? With respect to the Commission?s assessment of complaints received, required by Sections 717(b)(1)(C)-(F) of the Communications Act, this Report covers the time period between October 8, 2010, and December 31, 2011.? Limiting the review to complaints received as of December 31 was necessary to compile the relevant information and to seek comment on our tentative findings as required by the CVAA.[49]? Subsequent biennial reports, however, will cover a full two years each, with each report covering a period beginning January 1 of the first year and ending December 31 of the second year, providing sufficient time for compilation, assessment, and the receipt of comments prior to submission to Congress on the October 8 anniversary of the CVAA enactment.[50]

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B.??????? Compliance with Sections 255, 716, and 718

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  1. Section 717(b)(1)(A) of the Communications Act requires the Commission to provide an assessment of the level of compliance with Sections 255, 716, and 718 of the Communications Act.[51]? In the CVAA Assessment PN, the Commission sought comment on the level of compliance with pre-existing requirements, under the Commission?s accessibility rules predating the CVAA, to make telecommunications and interconnected VoIP services and equipment accessible to people with disabilities since the enactment of the CVAA on October 8, 2010.[52]? The Commission also sought comment on the extent to which initial industry efforts to comply with the CVAA have begun to have an impact on the accessibility of non-interconnected VoIP, electronic messaging, and interoperable video conferencing services and equipment.[53]? In addition, the Commission asked for information about compliance by service providers and equipment manufacturers with respect to ensuring access to information and documentation, training of personnel having direct contact with the public, and the inclusion of people with disabilities through all stages of product and service development.[54]? We discuss each of these issues, in turn, below.

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  1. Section 255 Accessibility.? Comments on the state of compliance with Section 255 were received almost exclusively from consumer representatives.[55]? From the perspective of the American Council of the Blind (ACB) and the American Foundation for the Blind (AFB), devices covered under Section 255 are pervasively not accessible; a state that they claim has remained constant since the passage of the CVAA.[56]? According to ACB, the current Section 255 complaint process is inadequate, and thus has discouraged consumers from filing complaints, even though ?[a]ccessibility of devices covered under Section 255 is abysmal.?[57]

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  1. AFB asserts that, with respect to achieving accessibility under Section 255, ?Apple?s iPhone continues to be the only smart phone providing truly equal access at no extra cost to users with vision loss? and that ?accessible choices in the feature phone market are not that much more extensive.?[58]? In discussing the implementation of Section 255 (which requires accessible feature phones), ACB also appears to credit Panasonic for its efforts to produce devices that meet the needs of people who are blind and visually impaired.[59]? However, ACB goes on to note that those efforts have not been enough to provide this consumer market with much choice.[60]

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  1. The Hearing Loss Association of America (HLAA) notes that mainstream ?non-mobile?[61] analog and digital phones, especially phones at lower price points, often do not incorporate ports that accept neck loops.[62]? Further, HLAA asserts that some mainstream phones have speakerphone or Bluetooth features with sound quality that is inadequate for people with a significant hearing loss to understand what is being said.[63]

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  1. On the positive side, HLAA reports seeing ?a steady improvement in the accessibility of both landline and mobile phones for people with hearing loss, and that is a credit to both the manufacturers and service providers who make [hearing aid compatible] phones available.?[64]? The Telecommunications Industry Association (TIA) further notes its development of hearing aid compatible standards, specifically, TIA-1083, defining measurement procedures and performance requirements for the handset-generated audio band magnetic noise of wireline telephones,[65] and ANSI/TIA 4965, a new standard using Conversational Gain, which provides test methods for both analog and digital telephones and, according to TIA, ?is expected to play a significant role in efforts to reduce interference problems experienced by people using hearing aids with digital cordless telephones.?[66]? Consumer Groups also report that the response time provided by interactive voice response phone systems has lengthened, making such systems easier for callers to use, even for deaf or hard of hearing callers who use relay services.[67]? They also report that some deaf or hard of hearing people are able to access voice mail messages by using Google Talk, an application that transcribes messages into text using speech recognition technology.[68]? According to Consumer Groups, users report that this feature works fairly well for calls where the speaker can be clearly heard with minimal background noise.[69]

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  1. Section 716 Accessibility.? Comments on the state of compliance with Section 716 were received almost exclusively from industry representatives.[70]? The Consumer Electronics Association (CEA) reports that manufacturers and providers are in the process of determining which of their equipment and services are subject to the new accessibility requirements, ensuring that their business units and product development teams understand the substantive accessibility requirements, and modifying their internal business processes and systems to perform the tasks needed to comply with the new rules.[71]

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  1. Comments of CTIA-The Wireless Association (CTIA) provide an extensive list of actions that CTIA asserts are being taken by its members to address compliance with Section 716.? In general, CTIA contends that the wireless industry currently actively considers accessibility for persons with all types of disabilities, takes the necessary steps to ensure that such disabilities are considered at the beginning of product and service design, and regularly integrates accessibility considerations into their business operations.[72]? CTIA also reports that, since the enactment of the CVAA, AT&T has incorporated ?accessibility checklists? into its standard project process and expanded efforts to collaborate with handset manufacturers and third-party stakeholders on optimum accessibility specifications.[73]? In addition, according to CTIA, Verizon Wireless is standardizing its processes to ensure that accessibility issues are considered throughout the design, build, and refresh/updating periods.[74]

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  1. Regarding specific accessibility developments, CTIA reports that wireless manufacturers have designed equipment with built-in accessibility solutions, such as text-to-speech and screen readers, hearing aid compatibility, haptic (tactile) feedback, text communications, and voice activated features.[75]? In addition, CTIA adds:

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Many wireless devices today include built-in features including visual and vibrating alerts and notifications, speakerphones, text and IM applications, tactilely discernible keypads (e.g. QWERTY) and shortcut keys, displays with adjustable brightness and font sizes, predictive text and word completion (e.g. AutoText) and spell check, multiple device form factors (e.g. touch, flip, candy bar, etc.), and, more recently, voice activated features.[76]

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  1. CTIA mentions that BlackBerry? and Nokia devices include many of these features, and that the DROID? by Motorola embeds accessibility features, such as a large backlit touch screen and keypad with raised keys.[77]? CTIA also notes that Apple?s iPhone includes accessibility features, such as screen magnification and VoiceOver screen reader technology,[78] and ?Samsung?s Galaxy Nexus using Google?s Android operating system has preinstalled software that provides spoken, vibration and sound feedback to notify and alert users about various actions, such as launching an application, upcoming events, and receiving incoming calls.?[79]? CTIA also reports that, in 2012, RIM introduced BlackBerry? Screen Reader, which provides audible output of the visual information displayed on the screen.[80]

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  1. CTIA explains further that wireless manufacturers, such as RIM, Inc., incorporate accessible features into their application requirements that encourage applications developers to utilize built-in accessibility features.[81]? CTIA also notes that AT&T has been developing a speech recognition application programming interface (API) that was recently opened up to developers to permit such developers to integrate the API?s speech capabilities into their applications.[82]

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  1. Wireless manufacturers, according to CTIA, also design devices to be compatible with assistive technology accessibility hardware and software solutions, such as alternate entry devices, TTYs, adaptive keyboards, screen readers, magnifiers, text-to-speech, and speech-to-text technology.[83]? Wireless service providers, CTIA adds, are making third-party applications available to consumers to improve accessibility, particularly for individuals who are blind or visually impaired.[84]? For example, AT&T offers Mobile Accessibility Lite for Android; Sprint, Boost Mobile, and Virgin Mobile USA offer ?Wireless Accessibility? for Android users; and Verizon Wireless offers text-to-speech TALKS? software for certain devices.[85]

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  1. Notwithstanding all of these efforts, CTIA urges the Commission to develop prospective guidelines so ?wireless entities understand precisely what they must do for a product or service to be considered ?accessible.??[86]

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  1. Comments filed by the Consumer Groups are mixed with respect to their opinions about the availability of accessible advanced communications products and services.? First, Consumer Groups express concerns about the lack of interoperable video conferencing services and inaccessible advanced communications service components of video gaming.[87]? They also note with dismay that the iPhone 4S with Siri is not hearing aid compatible.? Nevertheless, Consumer Groups applaud some industry initiatives, such as offering text/data-only plans for people who cannot make voice telephone calls, and web portals linked to services for people with disabilities.[88]? Consumer Groups further recognize Apple, Inc., as ?an example of a leading manufacturer that embraces accessibility throughout many of its products by featuring universal design principles.?[89]

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  1. Inclusion of people with disabilities through all stages of product and service development. [90]? Various industry associations report that their members are taking steps to consult with people with disabilities and the accessibility community.[91]? For example, CTIA reports that AT&T has an Advisory Panel on Access and Aging.[92]? Also according to CTIA, Verizon Wireless conducts quarterly calls with leading national disability advocates and has shared handsets with the American Foundation for the Blind Labs to evaluate and offer recommendations for their next generation of devices.[93]? Similarly, CTIA adds, Motorola has ?increased efforts to reach out regularly to disability advocacy groups, standards agencies and research organizations, and to work closely with the manufacturers of devices for people with accessibility needs.?[94]

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  1. TIA states that its members ?have also been (and plan to continue to) liaising with the disability community to develop and share best practices and to develop standards for inclusive design.?[95]? As an example, TIA notes that its members consulted with the disability community in the development of voluntary industry Conversational Gain standards for wireline phones.[96]? TIA states that it is actively involved in further development of the hearing aid compatibility standard for wireless devices, and that the percentage of hearing aid compatible phones across offering tiers and models has increased over time.[97]

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  1. One consumer advocacy group, however, reports that it is ?unaware of mainstream mobile phone manufacturers or service providers who include people with hearing loss in their market research, product design, testing, pilot demonstrations or product trials.?[98]? According to HLAA, while some mobile phone manufacturers are working with non-consumer entities, such as hearing aid companies and research institutions, at least on a limited basis, manufacturers have not sought much input from HLAA about features that would make mobile phones accessible and usable for people with hearing loss since the ATIS hearing aid compatibility incubator group disbanded around 2010.[99]

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  1. Information, documentation, and training.[100]? CTIA reports that Verizon offers free 411 assistance for individuals who are blind, or who have low vision, dexterity disabilities, or cognitive disabilities, and provides these customers with bills and other print material in alternate formats such as in Braille and large print.[101]? Likewise, CTIA states that U.S. Cellular provides written material in Braille and large print for individuals who are visually impaired.[102]

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  1. CTIA claims that wireless service providers and manufacturers train and educate personnel about accessibility issues, citing AT&T?s customer service center for customers with disabilities and RIM?s internal training module on accessibility.[103]? As a result, industry believes that the disability community ?is better informed about the diverse range of wireless services, equipment and applications that are available to meet their needs.?[104]

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  1. CTIA also claims that persons with disabilities are better informed because of CTIA?s award-winning website AccessWireless.org and other collaborative efforts by the wireless industry and the accessibility community.[105]? According to CTIA, the recently revamped and re-launched AccessWireless.org site features direct links to service provider and manufacturer accessibility websites; information relevant to individuals who are senior citizens, deaf or hard of hearing, blind, and physically, cognitively or speech impaired; tools for service providers? retail store employees to help customers; and other features.[106]? In addition, ?CTIA also has partnered with the Mobile Manufacturers Forum (?MMF?) to bring the Global Accessibility Reporting Initiative (?GARI?) to AccessWireless.org,? to provide an online database that consumers can use to search for wireless handsets based on built-in accessibility features.[107]

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  1. Notwithstanding these efforts by industry, some consumers complain about the training of customer service personnel.? HLAA reports that ?personnel often do not know what a [hearing aid compatible] phone is or how to find which phones are [hearing aid compatible] among those the service provider sells.?[108]? As a result, consumers shopping for hearing aid compatible mobile phones in retail stores may not find what they need unless the store staff is in fact well trained and knowledgeable.[109]

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  1. Service plans.? CTIA states that wireless service providers such as CTIA members Sprint, AT&T, T-Mobile, Verizon Wireless, and U.S. Cellular are offering voice, text, and data service plans specifically for persons with disabilities, including unlimited text or data plans or message- or data-only plans for people who are deaf, hard of hearing or have a speech disability.[110]

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  1. Consumer Groups, however, are concerned about the growing trend towards metering and capping data plans, particularly because of the impact on deaf and hard of hearing individuals who rely on video technology for direct communication and for telecommunications through a relay service.[111]? Consumer Groups report that some of their members are exceeding wireless monthly 2 GB and 3 GB data caps and that many are paying overage fees, which advocates predict will become a larger problem as wireless network speeds improve and video availability and use increases.[112]? Consumer Groups contend that these increasing costs add to the higher costs that people who are deaf or hard of hearing already pay for equipment and services to achieve functionally equivalent telecommunications.[113]? Consumer Groups and the major wireless providers are engaged in discussions about possible solutions to ensure that the deaf and hard of hearing community does not experience a significant disparity in costs.[114]

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  1. Findings on compliance with Sections 255, 716, and 718.[115]? With respect to Section 255, based on the limited record provided in response to the CVAA Assessment PN, the Commission finds that services and equipment subject to this longstanding statutory obligation generally are meeting the hearing aid compatibility needs of people with hearing loss, and that feature phones continue to offer only limited accessibility for consumers who are blind or visually impaired.? The record indicates that consumers who are blind or visually impaired have consistently and persistently expressed frustration with the overall inaccessibility of telecommunications equipment that has grown increasingly complex over time.[116]? Although the Commission has successfully resolved some informal Section 255 complaints,[117] we agree with ACB that the resolution of Section 255 complaints during this reporting period does not necessarily ?provide the entire picture? with respect to compliance.[118]? The complaint data indicate that the Section 255 complaint process has resolved relatively simple complaints;[119] thus we find that the resolution of these types of complaints is only one factor in assessing the level of compliance with Section 255.

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  1. The Commission is currently without sufficient information to accurately assess the level of compliance with Section 716 of the Communications Act.? The Commission expects to be better informed after October 8, 2013, when Section 716 and the recordkeeping and enforcement provisions of Section 717 are fully effective.[120]? However, the Commission finds that industry is taking multiple steps to comply with the communications accessibility provisions of the CVAA, and we expect that such steps will result in the availability of accessible equipment used for advanced communications services with a diverse range of low-end and high-end features, functions, and prices when Section 716 is fully effective.

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  1. Because Section 718 is not yet effective, the Commission is unable to present? findings with respect to the level of compliance with that provision.

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C.??????? Accessibility Barriers in New Communications Technologies

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  1. Section 717(b)(1)(B) of the Communications Act requires the Commission to provide an evaluation of the extent to which any accessibility barriers still exist with respect to new communications technologies.[121]? In the CVAA Assessment PN, the Commission noted that the CVAA does not define ?new communications technologies? in this context, and sought comment on whether the scope of this inquiry may be broader than ?telecommunications? and ?advanced communications services? technologies covered under Section 255 and Section 716.[122]? The Commission also sought comment on the extent to which new communications services or equipment have been deployed for the general public, the accessibility barriers that still exist with respect to these new communications technologies, and whether these barriers will be addressed by accessibility obligations under Section 716 or the mobile phone Internet browser accessibility obligations under Section 718 that will become effective on October 8, 2013.[123]

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  1. Contrary to the assertions of some commenters, we believe that our assessment of accessibility barriers with respect to ?new communications technologies? should not be limited to those technologies covered under Sections 255, 716, and 718.[124]? We also disagree with TIA that any assessment of accessibility barriers that still exist ?must be evaluated by what is achievable with current technology.?[125]? These limitations do not appear in the CVAA or its legislative history with respect to this Report to Congress.? Given that Congress has acted in the past, in 1996 and more recently with the CVAA, to ensure access to communications equipment and services by people with disabilities, and may do so again to the extent ?the extraordinary benefits of [ ] technological advances are [ ] not accessible to individuals with disabilities,?[126] we believe that adopting a narrow interpretation of the phrase ?new communications technologies? in Section 717(b)(1)(B) would defeat congressional intent to ensure such access to emerging communications technologies.

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  1. Regarding accessibility barriers in new communications technologies, CTIA reports that its member companies offer more than 600 unique wireless devices, while consumer advocates identify only a few devices as being accessible ?out-of-the-box? to individuals who are blind or visually impaired.[127]? Consumer Groups acknowledge that new communications technologies can result in eliminating accessibility barriers.[128]? For example, for individuals who are deaf or hard of hearing, the development of e-mail, text messaging, video conferencing, captioned telephones, and the mobile technologies to support these services has helped to level the communications playing field.[129]? Nonetheless, Consumer Groups also point out that new communications technologies can create accessibility barriers.[130]? For example, Consumer Groups state that such new technologies as video conferencing services and advanced communications service components of video gaming are not accessible.[131]? Consumer Groups also note the lack of vibrating alert systems across all applications that provide audible notifications of incoming messages or other communication, the inability to adjust vibration settings similar to the ability to select ringtones, and the need to make equipment used for advanced communications services compatible with residential signaling systems.[132]

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  1. Findings on accessibility barriers in new communications technologies.[133] ?The Commission believes that Congress will be better informed about the state of communications that are or are not accessible to individuals with disabilities, the impact of the CVAA, and the need for additional legislative action, if any, if the Commission?s Report includes an account of accessibility barriers with respect to ?new communications technologies? that fall within and outside the scope of the Communications Act and that can and cannot be eliminated with reasonable effort or expense.

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  1. Based on comments filed in response to the CVAA Assessment PN, we find that accessibility barriers still exist with respect to both existing and new communications technologies.[134]? In particular, we find that presently, new video conferencing technologies that are available for peer-to-peer and video relay services are not meeting the full communication access needs of people who communicate via American Sign Language.[135]? Further, the Commission agrees with Consumer Groups that deployment of new communications technologies can either eliminate existing accessibility barriers or create new ones.? The Commission finds that many accessibility barriers in new communications technologies will likely be addressed by industry compliance with the new accessibility requirements under Section 716 and Section 718 when those requirements are fully effective, and by the enforcement procedures mandated by Section 717 and the Commission?s rules.? There may, however, still be many accessibility barriers to new communications technologies that fall outside the scope of the CVAA, including, for example, video conferencing services that are not interoperable.

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D.??????? Complaints Received Pursuant to Section 717

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  1. Sections 717(b)(1)(C)-(F) of the Communications Act ?require the Commission to report on the following issues with respect to complaints received pursuant to Section 717(a) of the Communications Act that allege violations of Sections 255, 716, or 718 of the Communications Act:

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  • the number and nature of complaints received during the two years that are the subject of the Commission?s Report;
  • the actions taken to resolve such complaints, including forfeiture penalties assessed;
  • the length of time that was taken by the Commission to resolve each such complaint; and
  • the number, status, nature, and outcome of any actions for mandamus and any appeals filed.[136]

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Before addressing each of these matters, this section of the Report provides a brief explanation of the existing procedures for the handling of accessibility complaints and how those procedures will be changed to implement the CVAA.

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  1. Existing accessibility complaint procedures.? During the period covered by this Report,[137] consumers filing accessibility complaints utilized the Commission?s existing informal complaint procedures, which were adopted under Section 255 of the Communications Act.[138]? Currently, an informal accessibility complaint may be communicated to the Consumer and Governmental Affairs Bureau?s (CGB) Disability Rights Office (DRO) by letter, phone call, fax, online form, or other reasonable means.[139]? The complaint is entered into the Consumer Complaint Management System (CCMS) and is then assigned to a DRO telecommunications specialist, who forwards the complaint to and serves a Notice of Informal Complaint (NOIC) on the service provider and/or equipment manufacturer.[140]? The provider or manufacturer has 30 days in which to respond to the NOIC.[141]? DRO then analyzes the response.? If all issues are satisfied and the consumer?s satisfaction with the resolution is verified, or if DRO determines that no further action is required or that DRO can take no further action, DRO considers the matter closed and sends the consumer a close-out letter.[142]? Under the existing complaint procedure, DRO is not authorized to impose forfeitures or take other enforcement action in response to an informal complaint alone; however, if the consumer is not satisfied with the provider?s or manufacturer?s response to the complaint and the DRO decision to terminate action, the consumer may file a formal complaint.[143]? In some cases, DRO may forward the complaint to the Enforcement Bureau to determine whether a material and substantial question remains with respect to compliance.[144]? If so, the Enforcement Bureau may investigate further to determine compliance and what, if any, remedial actions and/or sanctions are warranted.[145]

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  1. Future accessibility complaint procedures. ?On October 8, 2013, the complaint process will change upon full implementation of the enforcement provisions of Section 717(a).[146]? Before filing a complaint, a consumer must make a request to DRO for dispute resolution assistance with the applicable service provider or equipment manufacturer.[147]? If the two parties do not reach a settlement within 30 days after the filing of a request for dispute resolution assistance, the parties may agree to extend the time for dispute resolution in 30-day increments, or the requester may file an informal complaint with the Enforcement Bureau.[148]? Informal complaints alleging a violation of Section 255, 716, or 718 of the Communications Act must be filed with the Commission?s Enforcement Bureau, instead of with DRO.[149]

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  1. The Commission has established minimum requirements for information that must be contained in an informal complaint, effective October 8, 2013.[150]? The Commission will investigate the complaint and, within 180 days after the complaint was filed, will issue an order determining whether a violation has occurred.[151]? The Commission may, in such order, or in a subsequent order, direct the service provider or equipment manufacturer to bring the service or, in the case of a manufacturer, the next generation of the equipment, into compliance with the requirements of Section 255, 716, or 718 within a reasonable period of time and take other authorized and appropriate enforcement action.[152]? Any manufacturer or service provider that is the subject of such an order shall have a reasonable opportunity to comment on the Commission?s proposed remedial action before the Commission issues a final order with respect to that action.[153]

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1.???? Number and Nature of Complaints Received

  1. From October 8, 2010, to December 31, 2011, the time period covered by this Report, 73 informal complaints were filed with the Commission alleging violations of Section 255 of the Communications Act or its implementing rules.[154]? Of those complaints, approximately 33% alleged violations by equipment manufacturers and 53% alleged violations by service providers, with the remaining 14% alleging both service and equipment violations.

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  1. Equipment-related complaints raised a wide range of issues, illustrating difficulties encountered by consumers with various types of disabilities in obtaining accessible equipment.? For example, in one informal complaint filed with the Commission, a consumer who is deaf needed a hearing aid compatible cell phone with a full keyboard, but the cell phone he had previously used was discontinued by his service provider.? Another individual complained that she could not find a cell phone with the type of Bluetooth signal needed to communicate with specialized CPE.? Consumers who are blind or visually impaired filed several complaints about the difficulty of locating cell phones with fully accessible features, such as an accessible contact list.? Complaints related to obtaining equipment that meets the needs of consumers with multiple disabilities were also filed.? Several complainants sought hearing aid compatible phones with buttons that were easy to control for individuals with dexterity disabilities due to carpal tunnel syndrome or multiple sclerosis.

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  1. In complaints against service providers, the predominant issues were as follows:

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  • need for instructions or billing in an accessible format;
  • need for accessible customer service;
  • need for alternatives to an inaccessible telephone directory (e.g., free directory assistance);
  • requests for waiver of early termination fees when a phone that did not meet accessibility requirements was exchanged for another phone that was accessible; and
  • requests to modify a bundled service plan to eliminate charges for service(s) not used due to disability (e.g., phone plans with text only).

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2.???? Actions Taken to Resolve Such Complaints

  1. For each complaint filed with the Commission during the period covered by this Report, DRO forwarded the complaint to and served an NOIC on the service provider and/or equipment manufacturer alleged to have violated Commission rules.? In most cases, equipment manufacturers and service providers attempted to work with consumers to resolve their particular needs.? Equipment manufacturers often addressed complaints by providing the requested equipment, identifying equipment that was available as an upgrade, or informing consumers of new models that would be issued in the future.? Service providers also accommodated consumers who needed accessible formats for billing, equipment instructions, and directory assistance.? As a result, for a majority of complaints DRO was able to confirm that the consumer was satisfied with the resolution.

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  1. For all but eight of the complaints filed, DRO verified the consumer?s satisfaction with the resolution or determined that no further action was required or that DRO could take no further action, and sent the consumer a close-out letter.? For two of the remaining eight complaints, DRO determined that the complaints involved issues outside the Commission?s jurisdiction, referred the complainants to the U.S. Department of Justice, advising consumers of their right to file a complaint alleging violation of the Americans with Disabilities Act or other disability-related law.? DRO is making best efforts to facilitate resolution of the remaining six complaints that are still pending, which involve general dissatisfaction with services or equipment or complex issues of accessibility that include determining the extent to which the accessibility requested is readily achievable.

?

  1. The Commission did not assess any forfeiture penalties for accessibility-related violations during the period covered by this Report.

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3.???? Time to Resolve Each Complaint

  1. Under existing procedures, there is no prescribed time frame for resolving informal complaints alleging violations of Section 255.? Of the 67 informal complaints that have been closed by DRO, two complaints, or about 3%, were resolved within the first 30 days after receipt.? Another 41 complaints, or about 61%, were closed within 90 days.? Another 22 complaints, or approximately 33%, were closed within 180 days.? Two complaints, or about 3%, were closed within a year.

?

4.???? ?Actions for Mandamus and Appeals Filed

  1. There were no actions for mandamus or appeals filed with respect to Section 255 complaints during the period covered by this Report.

?

E.???????? Effect of Section 717?s Recordkeeping and Enforcement Requirements on the Development and Deployment of New Communications Technologies

?

  1. Section 717(b)(1)(G) of the Communications Act requires the Commission to provide an assessment of the effect of the requirements of Section 717 of the Communications Act on the development and deployment of new communications technologies.[155]?Section 717(a) requires the Commission to establish new recordkeeping and enforcement procedures for service providers and equipment manufacturers that are subject to Sections 255, 716, and 718.[156]? In October 2011, the Commission adopted these procedures,[157] which require service providers and equipment manufacturers to maintain records to demonstrate compliance with Sections 255, 716, and 718 when a complaint is filed.[158]? In the CVAA Assessment PN, the Commission sought comment on whether service providers and equipment manufacturers have taken measures in anticipation of the new recordkeeping and enforcement requirements that will result in increased accessibility for people with disabilities.[159]

?

  1. Comments in response to this inquiry in the CVAA Assessment PN were sparse.? CTIA states that it appreciates and agrees with the Commission?s establishment of its consumer dispute assistance process as a prerequisite to the filing of an informal complaint.[160]? CTIA reports that the wireless industry is ?actively preparing and initiating measures to meet the enforcement and recordkeeping requirements of the CVAA.?[161]? In addition, TIA states that its members ?have been complying with the recordkeeping requirements.?[162]? CEA reports that manufacturers and service providers are modifying internal recordkeeping systems to accommodate the records that the new rules require to be kept.[163]

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  1. At the same time, CTIA suggests that developing an effective recordkeeping process may require some experience with the rules and their enforcement:? ?CTIA appreciates the FCC?s decision to adopt a flexible approach to recordkeeping . . . [but] the lack of any guidance against which regulated entities can judge their individual recordkeeping systems places those entities at risk of being found in violation of the requirements, despite their best efforts to comply.? [164]? As a result, CTIA urges the Commission not to penalize entities that are attempting in good faith to comply with the rules if their records are ultimately found to be insufficient or non-compliant.[165]? In other words, CTIA urges the Commission to maintain ?a flexible approach to recordkeeping requirements.?[166]? TIA also urges the Commission to take a flexible approach in its first enforcement action to ensure that ?anticipatory documentation requirements do not burden or derail the product design process.?[167]

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  1. Consumer Groups perceive ?ongoing resistance by some members of the industry to incorporate and implement accessibility features? as an underlying cause of many communications accessibility barriers.[168] ?They claim that industry appears to collaborate in good faith with consumers as members of organized accessibility committees, but express frustration that this spirit of collaboration dissolves outside of those settings.[169]? They suggest that industry requests for waiver of the accessibility rules ?can lead consumer groups to question the sincerity of industry stakeholders.?[170]? In contrast, CEA asserts that the granting of waiver requests would avoid the anticipated negative effect of the accessibility rules, including the recordkeeping and enforcement requirements of Section 717.[171]

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  1. Findings on the effect of Section 717?s recordkeeping and enforcement requirements on the development and deployment of new communications technologies.[172]? Industry commenters express concerns about the anticipated burden of maintaining the records required by Section 717 to demonstrate compliance with Sections 255, 716, and 718.? Yet, industry commenters also report that they are already complying or preparing to comply with the new recordkeeping requirements.? We find that nothing in the record indicates that Section 717?s recordkeeping and enforcement requirements will hinder the development and deployment of new communications technologies.? We also find, however, that there is insufficient information to assess whether initial steps taken in anticipation of the new recordkeeping and enforcement requirements will result in the development and deployment of new communications technologies that are accessible to and usable by individuals with disabilities.

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F.???????? Conclusion

?

  1. On August 23, 2012, the Commission released a public notice seeking comment on its tentative findings pursuant to Section 717(b)(2) of the Communications Act (the CVAA Tentative Findings PN).[173]? Specifically, we sought comment on whether our findings accurately represent the current state of communications technologies accessibility and, if not, how they should be revised to do so.[174]? We also asked whether and the extent to which the industry actions described above have resulted in increased accessibility of telecommunications and advanced communications services and equipment.[175]? Further, we sought comment on whether such accessible services and equipment are offered with the diverse range of low-end and high-end features, functions, and prices as is offered to the general public.[176]? Finally, we asked about other kinds of information that would help the Commission to conduct these assessments for the next biennial report to Congress, to be submitted by October 8, 2014.[177]

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  1. In response to the CVAA Tentative Findings PN, the Commission received few comments, which are summarized below.? Although relatively few, we believe that the comments received in response to the CVAA Assessment PN and the CVAA Tentative Findings PN support our tentative findings and, therefore, we affirm these tentative findings which are presented as findings in this Report.[178]

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  1. Compliance with Sections 255, 716, and 718.? In response to the CVAA Tentative Findings PN, Consumer Groups representing individuals who are deaf or hard of hearing state that they appreciate that many of their accessibility concerns are noted in this Report, but ?urge the Commission to incorporate their concerns into specific findings of fact.?[179]? The Consumer Groups? accessibility concerns are noted in this section and generally throughout this Report.[180]

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  1. The National Federation of the Blind (NFB) concurs with the Commission that consumers who are blind or visually impaired have consistently and persistently expressed frustration with the overall inaccessibility of telecommunications equipment that has grown increasingly complex over time,[181] and concurs with ACB that the ?accessibility of devices covered under Section 255 is abysmal.?[182]? NFB questions the progress that industry has made to achieve accessibility in the marketplace, observing that such progress is so minimal that industry has not fundamentally changed the way it views accessibility.[183]? Specifically, NFB notes that some accessibility solutions have been around for awhile (e.g., vibrating alerts and speakerphones) and other solutions do not achieve full accessibility (e.g., the Samsung Galaxy Nexus and BlackBerry? Screen Reader).[184]? At the same time, NFB notes that several generations of the Apple iPhone have been accessible ?out of the box? to people who are blind and deaf-blind, and that ?Google is working on incorporating accessibility features into Jelly Bean, the newest Android operating system.?[185]? NFB urges manufacturers to view accessibility as ?a competitive advantage rather than a mandated burden,?[186] and requests service providers, such as AT&T and Verizon Wireless, to ?be more aggressive? and refuse to accept handsets that are inaccessible.[187]? Finally, NFB urges industry to collaborate with consumer groups to develop and implement functional performance and usability standards to ensure actual and not simply technical accessibility.[188]

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  1. In response to the Commission?s tentative conclusion that equipment subject to Section 255 is generally meeting the hearing aid compatibility needs of people with hearing loss, but that feature phones continue to offer only limited accessibility for consumers who are blind or visually impaired,[189] TIA states that it believes the ?industry has taken great strides in increasing the accessibility of ?feature phones? generally,?[190] but provides no further information about how feature phones are meeting the accessibility needs of consumers who are blind or visually impaired.? TIA further disagrees with ACB?s position that the current Section 255 complaint process is inadequate and discourages consumers from filing complaints, as well as the Commission?s tentative conclusion that the resolution of Section 255 complaints during the reporting period does not necessarily provide the entire picture with respect to compliance.[191]? Instead, TIA believes that the number of complaints is ?evidence that industry has listened to and addressed many of the complaints and concerns of consumers under Section 255.?[192]

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  1. We believe that the comments of the Consumer Groups and NFB support our tentative findings with respect to compliance with Sections 255, 716, and 718, and we are not persuaded by the comments of TIA to amend those findings.? We, therefore, affirm our findings on compliance with Sections 255, 716, and 718.[193]

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  1. Accessibility barriers in new communications technologies.? Comments in response to the Commission?s tentative conclusions on accessibility barriers in new communications technologies are limited to those submitted by the Consumer Groups and TIA.? Consumer Groups concur with the Commission?s broad interpretation of ?new communications technologies.?[194]? In response to the Commission?s tentative finding that new video conferencing technologies available for peer-to-peer and video relay services are not meeting the full communication access needs of people who communicate via American Sign Language,[195] TIA asserts that the CVAA accessibility requirements cover only ?interoperable? video conferencing service.? TIA goes on to note its belief that ?substantial progress has been made toward achieving the sort of operating environment that would achieve interoperability,? but that additional industry work, including standards development, is necessary.? TIA concludes that the Commission?s <

    Source: http://www.usatechguide.org/blog/first-report-on-twenty-first-century-communications-and-video-accessibility-act-of-2010/

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