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Presenter(s)
Cynthia D. Waddell, JD, Executive Director
Law, Policy and Technology Subject Matter Expert
The International Center for Disability Resources on the Internet
5027 Crail Way
El Dorado Hills, California 95762
Email: Cynthia.Waddell@icdri.org
Introduction
Because the accessible design of information technology and telecommunications products and services is a civil right in the United States, individuals with disabilities continue to influence legislation and file complaints to protect that right. This paper provides a general overview of selected litigation and legislation trends in the past year as of September 2004. The conference presentation will be updated in March 2005 if there are significant changes since the writing of this paper.
Accessible Cell Phones
Section 255 of the Telecommunications Act of 1996 is a federal law that provides for accessibility of products and services. In February 2003, Dr. Bonnie O'Day filed a complaint with the Federal Communications Commission (FCC) contending that Verizon Wireless and Audiovox Communications Corporation violated Section 255 by failing to make its wireless telephones and services accessible to people with visual disabilities.
Both parties eventually entered into settlement agreements and the case was dismissed. Audiovox settled in December 2003 and Verizon Wireless settled in August 2004. Dr. O'Day praised the settlements, saying, "I filed the complaint because blind and low vision people were frustrated with the pace of process achieved by the wireless industry." The resulting settlements, which are confidential, commit both cell phone companies to take steps to address accessibility.
For example, Verizon Wireless disclosed that they intend to introduce a moderately priced wireless handset with new accessibility features to address some of the concerns raised by Dr. O'Day. Verizon also has taken steps to provide people with disabilities easier access to user information such as bills, manuals, and product information in accessible formats; to modify its Web site to be more user friendly for blind and low vision customers; and to modify employee training on disability issues. In addition, Verizon is assessing more advanced speech output capabilities for mobile handsets carried on its network with a view toward incorporating these capabilities in future models.
Similarly, Audiovox disclosed that they would also make a number of significant improvements, including those listed above by Verizon. For example, Audiovox's 9900 series was expected to provide a more accessible keypad and audible announcement of certain visually displaying information, such as dialed and incoming phone numbers, battery power and roaming status.
Accessible Textbooks
A significant update must be reported since my CSUN 2004 presentation on accessible textbooks. On July 27, 2004, U.S. Secretary of Education Rod Paige announced that students with blindness, low vision and print disabilities will gain improved access to textbooks under a voluntary standardized format for electronic files - the National Instructional Materials Accessibility Standard.
"President Bush believes that every single child can learn and deserves the opportunity to learn - that's why he pushed for the historic education reforms of the No Child Left Behind Act," Secretary Paige said. "Today, we're taking another step toward this goal with a new, voluntary standard that will enable students and teachers to more quickly access general curriculum materials, thereby opening more doors of opportunity to students."
By producing textbooks and classroom materials using the voluntary standard, the standard electronic format can be adapted to products ranging from Braille editions of textbooks to on-screen displays of text and graphics. The lack of a standardized format has meant that publishers had to produce materials in multiple formats while schools also scrambled to obtain accessible formats; resulting in delays causing students with disabilities to not receive their textbooks in time at the beginning of class. Further information about the standard can be found at http://www.cast.org/ncac/nimas/index.htm.
The Department of Education will also fund two centers to support further development and assist states with implementing the voluntary standard.
Accessible Web Sites
Fraudulent Tax Scheme
An interesting twist to the accessible web litigation came with the U.S. Department of Justice lawsuit against a telemarketing firm and other defendants for selling a sham-website scheme designed to cause customers to claim bogus disabled-access credit on their income tax returns. In May 2004, a permanent injunction was issued against a California-based company that defrauded the U.S. Treasury of an estimated $99 million.
The U.S. Department of Justice reported that the Oryan Management and four individuals were selling "websites" designed to help customers claim to have a business on a website and then improperly claim tax deductions and credits for supposedly "modifying" the website in order to comply with the Americans with Disabilities Act. The case was part of the Justice Department's initiative to stop the spread of fraudulent tax schemes.
ADA Title III Web Accessibility Settlements
In August 2004 New York Attorney General Eliot Spitzer announced settlements with two major travel web sites to make the sites more accessible for people with visual disabilities. The web sites, Ramada.com and Priceline.com, have agreed to implement a variety of accessibility standards from the World Wide Web Consortium Web Accessibility Initiative.
The Attorney General interprets the Americans with Disabilities Act to apply to commercial web sites as "places of public accommodation" and that all "goods, services, facilities, privileges, advantages or accommodations" of places of public accommodation must be accessible to consumers with disabilities, absent undue hardship. This is the same legal analysis discussed in my 1998 presentation before the American Bar Association: "Applying the ADA to the Internet: A Web Accessibility Standard" as well as my 1999 presentation commissioned by the U.S. government: "The Growing Digital Divide in Access for Persons with Disabilities: Overcoming Barriers to Participation."
Both the American Foundation for the Blind and the Baruch College Computer Center for Visually Impaired People assisted the Attorney General. Ramada.com and Priceline.com agreed to pay the State of New York $40,000 and $37,500, respectively, to cover the costs of the Attorney General investigation about the inaccessible web sites.
In a different Ramada.com web accessibility case, Cynthia D. Waddell served as expert witness on accessible design and that case has settled.
Accessible Voting Machines
New federal legislation under the Help America Vote Act of 2002 requires accessible voting machines and polling locations so that voters with disabilities can vote in independently and in private. But the Presidential election year of 2004 has brought about significant litigation activity. A battle has emerged over the accessibility of voting machines and voter verified paper ballots. This presentation will provide an update on the federal voting machine standards as well as litigation underway including lawsuits filed in California, Florida, Ohio and Maryland.
Accessible State Computer Systems
The U.S. Electronic and Information Technology Accessibility Standards as well as state civil rights laws for procurement of accessible technology have influenced lawsuits against software companies filed in the states of Arkansas and Pennsylvania. In particular, complaints have been filed by State employees as well as States for providing inaccessible computer systems that prevent employees with visual disabilities from using the systems. This presentation will provide an update on this activity.
Conclusion
The accessible design of electronic and information technology continues to be an issue at the forefront of disability rights litigation and legislation in the United States. Advocacy by and on behalf of individuals with disabilities continues to play a significant role in protecting disability rights.
References
1. Press Release August 27, 2004. Bonnie O'Day and Verizon Wireless Settle Section 255 Formal Complaint Proceeding http://www.icdri.org/News/vzboday.htm
2. Press Release December 18, 2003. Dr. Bonnie O'Day and Audiovox announce Settlement in Section 255 Formal Complaint Proceeding http://www.cell-phone-plans.net/forum/Cell_Phone_Manufacturer_Forums_C1/Audiovox_Forum_F1/Dr_Bonnie_ODay_and_Audiovox_announce_settlement_in_section_255_formal_complaint_proceeding_P146
3. Waddell, Cynthia D. Applying the ADA to the Internet: A Web Accessibility Standard http://www.icdri.org/CynthiaW/applying_the_ada_to_the_internet.htm
4. Waddell, Cynthia D. The Growing Digital Divide in Access for Persons with Disabilities: Overcoming Barriers to Participation http://www.icdri.org/CynthiaW/the_digital_divide.htm
5. Press Release July 27, 2004. U.S. Department of Education: Students with Disabilities to Gain Improved Access to Learning - New Standard to Enable Students who are blind, print-disabled. http://www.icdri.org/News/eformat.htm
6. Press Release May 7, 2004. U.S. Department of Justice: Court Bars Oryan Management and Four Individuals from Selling Abusive Tax Schemes http://www.usdoj.gov/opa/pr/2004/May/04_tax_309.htm
7. Press Release August 19, 2004. Office of New York State Attorney General: Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired http://www.icdri.org/News/NYSAccessWeb.htm
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