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Presenter(s)
Lainey Feingold, Esquire
Law Office of Elaine B. Feingold
1524 Scenic Avenue
Berkeley, CA 94708
Phone: 510.548.5062
Fax: 510.548.5508
Email: lfeingold1@earthlink.net
Tim Creagan, Esquire
Director of Consumer Training
Information Technology Technical Assistance And Training Center (ITTATC) Georgia Institute of Technology- CATEA 1700
N. Moore Street, Suite 1910 Arlington, VA 22209
Phone: 703-528-0883, ext. 32
Facsimile: 703-528-8419
Email: tim.Creagan@ittatc.org
Goals of this Training
After attending this session, participants will better understand recent case law involving accessible electronic information technology and telecommunications, and they will be able to use some of the techniques discussed here to enforce their own legal rights to accessible E&IT and telecommunications.
I. INTRODUCTION
There are many laws and regulations that can potentially be used to increase the accessibility of electronic and information technology and telecommunications, including the ADA, 508, and 255, among others. How are these laws actually being used to increase access now, and how can they be used more effectively in the future? How can persons with disabilities advocate for themselves, and when does it make sense to go to a lawyer? Are government agencies a help or a hindrance? What advocacy strategies have recently been effective and how are consumer organizations helping? How can technology consumers educate themselves and their peers to use existing laws be better advocates? What resources are available? These are some of the questions that this session will explore.
II. Different Ways that Laws can be used to Increase Accessibility
Many strategies can be used to achieve accessible electronic and information technology and telecommunications. A discussion of some strategies follows.
A. Filing Complaints with Regulatory Agencies
Disability rights laws are civil rights laws. They can generally be enforced by private parties in the courts, but various types of violations can also be brought to regulatory agencies. For example, the Department of Justice has the authority to investigate ADA violations and has reached many settlements, both in court and out, with public and private entities. While the Department of Justice has not been particularly active in the realm of information technology, it remains a possible avenue for pursuing legal claims. The Department does prepare a report on the conformance of federal agencies with the accessibility requirements under Section 508 of the
Rehabilitation Act.
Verizon Cell Phone Settlement: The Federal Communications Commission (FCC) recently facilitated a settlement between Verizon Wireless and Dr. Bonnie O'Day resolving a complaint concerning the accessibility of Verizon Wireless' wireless products and services. The terms of the Settlement were not made public, but Verizon will be making changes to upcoming products.
B. Persuading State Attorneys General to investigate and prosecute access violations In 2004 there were two very significant accessibility victories resulting from investigations by offices of State Attorneys General, who often have resources and clout to bring to the issue of accessible technology that private parties do not. 1. Movie Captioning in New Jersey: On September 15, 2004, the Attorney General of New Jersey announced settlements with four theater owner companies which agreed to make theaters more accessible for movie goers who are Deaf and Hard of Hearing by installing Rear Window Captioning systems. Suit will be filed against a fifth company. . 2. Web Accessibility in New York: In August, 2004, the Attorney General of New York announced settlements with two travel-related websites. As part of the settlements, the companies agreed to implement accessibility standards authored by the Web Accessibility Initiative of the World Wide Web Consortium ("W3C"). The settlements require that the public be informed of the accessibility changes, such as a "Frequently Asked Questions page specifically for blind and visually impaired users" on one site.
C. Negotiating with Companies in lieu of litigation Talking ATMs:[mk1] Since October 1, 1999, nearly 30,000 Talking ATMs have been installed in the United States. Coordinated advocacy efforts using disability rights laws in structured negotiations have been very successful in getting companies to enter into legally binding settlements requiring them to install thousands of talking ATMs across the country.
Alternative Format Systems. Structured negotiations have also been used successfully to persuade companies to apply a systematic and sophisticated approach to the provision of Braille, large print, and audio information.
Website accessibility: Structured negotiations have also resulted in seven national agreements with financial companies to make their websites more accessible. Legally binding agreements requiring these companies to follow W3C web content accessibility guidelines have been signed, and the results are evident on the websites of several major banks. This has prompted banks without web access agreements to place information on their sites demonstrating a commitment to accessibility.
D. Litigation
Lawsuits regarding the accessibility of information technology must be approached with cautiously, since an adverse ruling can have extensive effect far beyond the parties who filed the suit.
Although litigation is expensive, risky, non-collaborative and often not the best approach to solving problems of inaccessible technology, there are times when lawsuits can be an effective strategy for achieving accessible information technology and telecommunications. Some recent examples of litigation are the following:
1. Cases brought by State employees against state governments for inaccessible computer systems: In February of 2004, pursuant to a suit brought by two blind state employees, a State court Judge in Arkansas ordered the state to make its computer information system accessible to blind workers. The Arkansas Administrative Statewide Information System lacked a synthesized speech or Braille program, thus making in inaccessible to blind employees. Similar litigation is pending in Pennsylvania
2. Talking ATM litigation: Litigation against ATM manufacturers, banks and other parties have contributed to the presence of more accessible ATMs, along with the negotiated settlements mentioned earlier. Coordination amongst all counsel was an important advocacy factor.
E. Working with Regulatory Agencies in the Comment process Federal regulatory agencies, such as the Federal Communications Commission, (FCC) have primary responsibility for enforcing the laws and regulations, which cover their areas of jurisdiction. The FCC regulates access to the nation's airwaves by regulating interstate and international communications by radio, television, wire, satellite and cable. They may seek public comment on their existing or proposed regulations, in what are called Notices of Public Rulemaking.
One example of FCC regulation is the allocation of frequency spectrum for telecommunications services. The FCC is charged with determining the best use of frequency spectrum among many potentially interested parties, including disability populations, industry and government. Several pending notices of rule making will determine how frequency is allocated, which will then determine what resources are available in the marketplace. [NPRM on Advanced Wireless Services (WT Docket no. 04-356 and 02-353)] Stakeholders in this matter, such as consumers and industry members can file written comments and reply comments to the FCC to provide information which they hope will influence the FCC to decide the issue in a particular way. Interested parties may also meet face-to-face with staff at the agency in ex-parte proceedings, which are reported on the public record. During these meetings, interested parties may present information to FCC staff, which may be useful to the Agency in reaching a decision among several proposed alternative courses of action.
F. Monitoring new or emerging technologies.
1. Voice over Internet Protocol (VOIP).
Sometimes, technologies may be so new that they are available and being used in the marketplace before any agency has issued any regulations governing their use. An emerging technology today is Voice Over Internet Protocol (VOIP), which promises to revolutionize the telecommunications market. VOIP permits the integration of voice, text, video and other media on the same network. VOIP changes the analogue signal to digital, compresses and assembles voice data into packets, which are then sent over the Internet at high rates of speed. At the receiving end, the data is reassembled and is received by the listener over their communication device.
Evolving issues for consumers include the reduced fidelity of speech received and the higher rate of error for TTY transmissions due to dropping of data packets or packet delay. The FCC has not yet stated whether it may assert jurisdiction over Internet telephony services. Accordingly, interested parties, both those seeking FCC oversight of Internet telephony, and those opposing it, seek to capture the lead in defining the issue to the agency. The crux of the issue is whether or not the internet is defined as an information service, and thus exempt from federal oversight, or a communications service, in part, and thus subject to FCC oversight. Parties on either side of the issue may hold information seminars, generate publications ranging from studies to white papers promoting the "correctness" of one position or another to promote the adoption of their position.
Conclusion
There are many resources available to consumers who want to follow the numerous laws and regulations that govern the accessibility of telecommunications and electronic and information technology. Consumers can keep themselves informed and participate in the process, by exercising their legal rights under Section 255 of the Telecommunications Act and Section 508 of the Rehabilitation Act.
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