-
WITH FREEDOM COMES RESPONSIBILITY: ENSURING THAT
THE NEXT GENERATION OF TECHNOLOGIES IS
ACCESSIBLE, USABLE AND AFFORDABLE*
William E. Kennard** and Elizabeth Evans Lyle***
"No one wants to regulate the Internet. But withfreedom comes
responsibility. So industry must meetits responsibility in the
digital age . . and• . . ensure that no American gets left behind.
'
I. INTRODUCTION: PROVIDING ACCESS INA CHANGING TECHNOLOGICAL
ANDREGULATORY ENVIRONMENT
A. The Access Imperative
The landscape of communications is changingdramatically. Being
connected will not just be
* The authors wish to thank numerous colleagues at theFederal
Communications Commission ("FCC") for theirsupport and advice
throughout this project, includingKathryn Brown, Tom Sugrue,
Dorothy Attwood, EllenBlackler, Robert Pepper, Dale Hatfield, Karen
Peltz Strauss,Pam Gregory, Scott Marshall, Jennifer Simpson,
HowardShelanski, Dave Farber, Don Stockdale, Robert Atkinson,Lisa
Sockett, Linda Kinney and Maryanne McCormick. Theauthors also wish
to acknowledge the contributions ofnumerous colleagues outside the
Commission, includingLaura Ruby of Microsoft, William Plummer of
Nokia, JudyHarkins of Gallaudet University, Pam Ransom of
CommonGround Solutions, Judy Brewer of the World Wide
WebConsortium's Web Accessibility Initiative, Mary Brooner
ofMotorola, Andrea Williams of the CellularTelecommunications and
Internet Association, PaulSchroeder of the Alliance for Public
Technology, ClaudeStout of TDI, Brenda Battat of SHHH, Brian Fontes
andSusan Palmer of Cingular, Richard Ellis of Verizon,
JimMcConnaughey and Steve Saleh of the NationalTelecommunications
and Information Administration,Elizabeth Echols of the Office of
the Vice President, DavidCapozzi of the Access Board, Ed Reniker of
the GovernmentServices Administration, Phil Rosche of ADIT, Kristan
VanHook of Simon Strategies, Bruce Jacobs and Susan Hafeli ofShaw
Pittman, Don Gips of Level 3, David Wye of AT&TWireless, Dan
Phythyon of Wilmer, Cutler & Pickering, KarenBrinkmann of
Latham & Watkins and Michele Farquhar ofHogan &
Hartson.
** A.B. Stanford University, 1978; J.D., Yale University,1981.
Formerly Chairman, Federal Communications Com-mission. Currently
Managing Director, TelecommunicationsGroup, The Carlyle Group.
*** A.B. Dartmouth College, 1985; J.D., University ofChicago,
1990. Attorney-Advisor, Office of the General Coun-sel, Federal
Communications Commission.
I William E. Kennard, Chairman, FCC, Address at The
about having phone and perhaps Internet service.It will mean
broadband2 delivery of increasinglyconverging services such as
interactive voice, dataand full motion video. Consumers will be
able toreceive these "always on" services in single boxes,on large
screens, in small mobile devices, in theircars, 3 in their
household appliances,4 on theirwrist watches 5-perhaps even through
fibers intheir clothes. 6 They will receive their services
fromproviders using cable, digital subscriber lines("DSL"), fiber,
fixed wireless, satellite and lasertechnologies. 7 And as networks
become digital
10th Anniversary of the Americans With Disabilities Act,Torch
Relay, Los Angeles, Cal. (June 19, 2000).
2 In this paper, "broadband" and "future technologies"include
but are not limited to the more precisely definedterms "advanced
telecommunications capability," "advancedservices," and
"high-speed" services. In its latest report on thedeployment of
advanced telecommunications capability, theCommission defines
advanced telecommunications capabilityand advanced services as
infrastructure capable of deliveringa speed of 200 kilobits per
second ("kbps") in each direction,and high-speed services as those
services with over 200 kbpscapability in one direction. See In re
Inquiry Concerning theDeployment of Advanced Telecommunications
Capability toAll Americans in a Reasonable and Timely Fashion, and
Pos-sible Steps To Accelerate Such Deployment Pursuant to Sec-tion
706 of the Telecommunications Act of 1996, Second Re-port, 15 FCC
Rcd. 20,913, 20,917, para. 8 (2000) [hereinafterSecond Advanced
Services Report].
3 See, e.g., Study Shows That Cars And Internet Are Potent
Mix,ALLNETDEVICES, at
http://www.allnetdevices.com/wireless/news/2000/04/07/study-shows.html
(Apr. 7, 2000).
4 A study by Allied Business Intelligence states that thehome
networking market was $134 million in 1999 but willbe $495 million
by the end of the year and $2.4 billion by2005. Home Networks Set
to Take Off Led by Net Devices,ALLNETDEVICES, at
http://devices.internet.com/news/0005/0005l9homenet.htm (May 19,
2000).
5 IBM Develops Prototype of Wrist Watch Running Linux,YAHOO!
NEWS, at http://www.wideopen.com/story/1157.html (Aug. 7,
2000).
6 Group Takes Next Step Toward Tiny Computers,ABCNEWS.COM, at
http://www.abcnews.go.com/sections/tech/DailyNews/mollecules00818.html
(Aug. 18, 2000).
7 GLOBAL INTERNET PROJECT, CONVERGENCE AND CYBER-
SPACE: NEW CHALLENGES EMERGE 1, at
http://www.gip.org/publications/papers/gipwp20500.asp (May 2000)
[hereinaf-ter CONVERGENCE AND CYBERSPACE].
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COMMILAW CONSPECTUS
end to end, a whole array of new services willemerge.8
It will be imperative that all Americans have ac-cess to the
technologies of tomorrow. Our societyhas benefited greatly from
policies that have pro-moted broad access to today's technologies.
Duelargely to state and federal universal service poli-cies,9 over
94% of American households have tele-phone service.I( These
programs have allowedthose living in the farthest reaches in our
country,and those with the lowest incomes, to be con-nected to this
country's communications network,benefiting all users of the
network." The E-rateprogram, established pursuant to the
universalservice provisions in the Telecommunications Actof 1996
(the "1996 Act"),' 1 2 also has connectedour children to the
Internet; the percentage ofpublic schools that have Internet access
has risenfrom 35% in 1994 to 95% in 1999, with 63% of allclassrooms
connected. 13 E-rate funds have al-lowed remote places like Pago
Pago, American Sa-moa, where it often takes six months just to get
a
8 See Comments of Level 3 Communications, In re Inple-mentation
of Sections 255 and 251 (a) (2) of the Communica-tions Act of 1934,
as Enacted by the Telecommunications Actof 1996, Access to
Telecommunications Service, Telecommu-nications Equipment and
Customer Premises Equipment byPersons with Disabilities, Report and
Order and Further Notice ofInquiry, WT Dkt. No. 96-198, FCC 99-181,
at 3 (Jan. 13, 2000);see also Comments of Trace/Gallaudet, In re
Implementationof Sections 255 and 251 (a) (2) of the Communications
Act of1934, as Enacted by the Telecommunications Act of 1996,
Ac-cess to Telecommunications Service, TelecommnnicationsEquipment
and Customer Premises Equipment by Personswith Disability, Report
and Order and Further Notice of Inquiry,WT Dkt. No. 96-198, FCC
99-181, at 13-14 (Jan. 13, 2000)[hereinafter Trace/ Gallaudet
Section 255 Comments].
9 Some of the universal service programs that promoteaccess
include the high-cost program, which provides sup-port to eligible
telecommunications companies for some ofthe costs of providing
service to rural and other high-cost ar-eas; the Lifeline program,
which reduces the monthlycharges for qualifying low-income
consumers; and the LinkUp program, which provides support to reduce
low-incomeconsumers' initial connection charges. THE CONSUMER
EN-ERGY COUNCIL OF AMERICA, UNIVERSAL SERVICE: TOWARDS A
2 1 ' CENTURY PLATFORM 5-10, at
http://www.cecarf.org/projects/US/USforumproposal.pdf Uune 2000)
[hereinafterCECA UNIVERSAL SERVICE REPORT].
10 FEDERAL COMMUNICATIONS COMMISSION, STATISTICS OF
COMMUNICATIONS COMMON CARRIERS 228 (Aug. 11, 2000)available at
http://www.fcc.gov/Bureaus/Common_-Carrier/Reports/FCC-StateLink/socc.html.
But penetration rates incertain areas are still significantly below
the national average.For example, only 47% of Indian tribal
households on triballands have a telephone. In re Federal-State
Board on Univer-sal Service; Promoting Deployment and
Subscribership inUnserved and Underserved Areas, Including Tribal
and Insu-lar Areas, Twelfth Report and Order, Memorandum Opinion
and
phone line, to have 1,000 high-speed, satellite-connected
computers in its forty-six schools andone public library. 14 And
the Rural Health CareProgram, also provided for under the 1996
Act,will provide over $9 million in discounts for not-for-profit
rural health care facilities in its first twoyears, 15 enabling
rural health care providers tohave rates that are comparable to
urban rates forsimilar services. I6
It also is clear that laws passed to promote com-munications
access to people with disabilities havemade an enormous difference,
particularly in thelast ten years. '7 In testimony to a Senate
panel lastsummer, a deaf child who spends a great deal oftime with
his family in Israel spoke about howmany more opportunities he has
and how mucheasier his life is in the United States."' Here,
un-like Israel, he can use the TelecommunicationsRelay Service,
which allows deaf people to makeand receive phone calls to anyone
in the worldwithout the other person having a text telephone
Order, and Further Notice of Proposed Rulemaking, 15 FCC
Rcd.12,208, 12,211-12, para. 2 (2000). In the last year, the
Com-mission has implemented new rules and policies to addressthis
problem, such as adopting new universal service policiesthat will
substantially reduce the price of basic phone servicefor low-income
customers on tribal lands and providinggreater incentives for
wireless carriers to serve tribal lands.See William E. Kennard,
Chairman, FCC, Remarks Before theIndian Telecom Training
Initiative, St. Paul, Minn., at http://www.fcc.gov/Speeches/ Ken
nard/2000/spwekO21 .html(Sept. 28, 2000).
1 1 Metcalfe's law provides that as networks grow, the util-ity
of being connected to the network grows exponentially.FCC, OPP
WORKING PAPER 29, DIGrrAL TORNADO: THE IN-TERNET AND
TELECOMMUNICAT[IONS POLICY 6 (authored by Ke-vin Werbach) (1997),
available at http://www.fcc.gov/opp/workingp.html.
12 Pub. L. No. 104-104, 110 Stat. 56 (codified in
scatteredsections of 47 U.S.C.).
13 NATIONAL CENTER FOR EDUCATION STATISTICS, IN-
TERNET ACCESS IN U.S. PUBLIC SCHOOLS AND CLSSROOMS:
1994-1999, at http://www.NCES.ed.gov (Feb. 2000).14 Jeri
Clausing, With Project Expanding Net's Reach, [here
Are No Strangers in Paradise, N.Y. TIMES, July 13, 2000, at
G8.15 Second Advanced Services Report, 15 FCC Rcd. at 20,980,
para. 175 (quoting the Universal Service Administrative
Com-pany's 1999 Annual Report to Congress and the FCC: Reach-ing
and Connecting American (Mar. 31, 2000)).
I' 47 U.S.C. § 254(h)(1)(B) (1994 & Supp. IV 1999).17
William E. Kennard, FCC Chairman Recognizes National
Disability Awareness Month, at
http://www.fcc.gov/dtf/wek-disability.html (last visited June 11,
2001).
18 The Americans with Disabilities Act ("ADA "): Opening
theDoors to the Workplace, Hearing Before the Senate Comm. on
Health,Education, Labor, and Pensions, 107th Cong., at
http://www.senate.gov/-labor/hearings/julyOOhrg/07260pwt/07260pwt.htIn
(2000).
[Vol. 10
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With Freedom Comes Responsibility
("TIY"), 19 and watch television and cable pro-gramming with
closed captions on any televisionset.20 Section 25521 of the 1996
Act has helped toensure that new telecommunications productswill
contain features, such as distinctively shapedbuttons, adjustable
fonts, vibrating ringers andnibs on five keys, that will make these
productseasier for people with disabilities to use. As man-dated by
Section 50822 of the Rehabilitation ActAmendments of 1998,
government agencies arenow in the process of making the electronic
prod-ucts they use, including their Web pages, accessi-ble to
people with disabilities. 2
3
As important as providing access to today'stechnologies has
been, it will be even more impor-tant to provide access to the
broadband technolo-gies of the future. Doing so will ensure
that'allAmericans fully share the benefits of the informa-tion age
at a time when communication is becom-ing an ever more central and
critical part of ourlives. As 3Com Chairman Eric Benhamou
hasstated:
[Information technology ("IT")] access and IT skillsare no
longer an option but an essential requirementfor functioning in
modern society and becoming a full
19 The Telecommunications Relay Service ("TRS"), es-tablished
pursuant to Title IV of the Americans with Disabili-ties Act of
1990 and available on a uniform, nationwide basissince July 26,
1993, enables persons with hearing and speechdisabilities to
communicate by telephone with persons whomay or may not have such
disabilities. TRS Centers arestaffed by Communications Assistants
("CAs") who relay con-versations between people who use a TTY and
people whocommunicate by voice. See In re Telecommunications
RelayServices and Speech-to-Speech Services for Individuals
withHearing and Speech Disabilities, Report and Order and
FurtherNotice of Proposed Rulemaking, 15 FCC Rcd. 5140, 5141-42,
pa-ras. 1-2 (2000).
20 The Television Decoder Circuitry Act of 1990 requiresthat
television receivers with picture screens 13 inches orlarger
contain built-in decoder circuitry designed to
displayclosed-captioned television transmissions. In July 2000,
theCommission amended its rules to require closed-captioningdisplay
capability in digital television receivers. See In reClosed
Captioning Requirements for Digital Television Re-ceivers; Closed
Captioning and Video Description of VideoProgramming,
Implementation of Section 305 of the Tele-communications Act of
1996, Video Programming Accessibil-ity, Report and Order, 15 FCC
Rcd. 16,788, 16,788-89, para.3-4 (2000).
21 47 U.S.C. § 255 (1994 & Supp. IV 1999).22 29 U.S.C. §
794(d) (1994 & Supp. IV 1999).23 See Carrie Johnson, Agencies
Act to Ease Internet Use by
Disabled, THE WASHINGTON POST, Aug. 24, 2000, at A23
[here-inafterJohnson]. People with disabilities are much less
likelythan people without disabilities to have Internet access
andto use computers. According to a report last year by the
De-partment of Commerce, people who have a disability are onlyhalf
as likely to have access to the Internet compared to those
participant in the new economy. We should think of itin the same
fundamental way as two centuries ago,when people thought of the
skills of reading, writing,and counting.
24
But perhaps even more critically, access tobroadband and future
technologies has the po-tential to help underserved communities
evenmore than anyone else because the technologieshave the
potential to bridge gaps and provide op-portunities that were
inconceivable in the past.Broadband may allow inner city school
childrenwhose schools have no budget to take even theshortest field
trips to take a real-time virtual tourof the best museums in the
world. Broadband mayallow Indian communities, who have seen toomany
of their people die in emergency situationsbecause they did not
even have basic phone ser-vice,25 to have access to doctors who can
providediagnoses and services remotely.26 And broad-band may allow
people who are deaf to use signlanguage over distances, enabling
them, asTrace/Gallaudet note, "to see the speaker (lipreading and
facial expression) to fully understandconversation."
2 7
Clearly, in the digital age, it will be more impor-
without a disability (21.6% versus 42.1%). In addition, closeto
60% of people with disabilities have never used a personalcomputer,
while 25% of people without disabilities havenever used a computer.
U.S. DEPARTMENT OF COMMERCE,FALLING THROUGH THE NET: TOWARD DIGITAL
INCLUSION 61,available at http://search.ntia.doc.gov/pdf/fttn00.pdf
(Oct.2000) [hereinafter TOWARD DIGITAL INCLUSION].
24 Press Release, 3Com, 3Com CEO Eric Benhamou Pro-vides Keynote
Address on Digital Divide For CommonwealthClub of Silicon Valley,
at http://www.3com.com/news/releases/pr00/jul2000a.html (July 19,
2000).
25 Rea Howarth, Getting Connected: Bridging the
Telecommu-nications Divide in Indian Country, AMERICAN INDIAN
REPORT,Mar. 2000, at 12.
26 See generally In re Amendment of Parts 2 and 95 of
theCommission's Rules to Create a Wireless Medical
TelemetryService, Report and Order, 15 FCC Rcd. 11,206 (2000).
27 Access to broadband will open up a myriad of
otherpossibilities for people with disabilities as well. See
Trace/Gal-laudet Section 255 Comments, supra note 8, at 13-15.
Trace andGallaudet note, for example, that two or more parties
whohave screens and keyboards could carry on text conversationas
well as voice conversation, permitting direct communica-tions among
deaf and hearing-impaired people without theuse of a relay service.
Id. at 14. Video phone conversationswould allow people who are hard
of hearing to read lips andsee facial expressions, and also would
allow people to betterunderstand people with speech disabilities
because theycould see their facial expressions and gestures. Id.
Interpret-ers, captioners and speech-to-speech assistants could be
con-ferenced in on multimedia calls. Id. at 15. Trace and
Gal-laudet believe that people who are deaf eventually will beable
to use speech recognition to see voice conversations, inmuch the
same way that people who are blind can use speech
20011
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COMAIDLAW CONSPECTUS
tant than ever that no American gets left behind.Some may ask
what can be done now at this earlystage of deployment of new
technologies, when,for example, broadband technologies have
pene-trated less than 2% of American households,
2 s
and when it is unknown which technologies willemerge as the
winners and losers. But muchneeds to be done if the vision of
leaving no Ameri-can behind in the digital age is to become a
real-ity. Specifically, now is the time to be concernedwith three
components of access: technical acces-sibility, usability and
affordability. If the technolo-gies of tomorrow are to be
technically accessibleto all Americans, then those who are
designingand developing new products and networks mustwork together
and consider how to make theirproducts accessible to people with
disabilities. Ifnew technologies are going to actually be usableby
all Americans, then those designing and devel-oping new
technologies must understand the spe-cial challenges faced by
educators; communityleaders in rural, urban and other underserved
ar-eas; and people with disabilities. Finally, if thenext
generation of critical technologies is goingto be affordable to all
Americans, then those whomay be providing those services and
sharing inthe responsibility of making the services afforda-ble
should help fashion an efficient and equitableuniversal service
policy for the future.
How will society ensure that the next genera-tion of
communications is, broadly speaking, ac-cessible-that is,
technically accessible, usable andaffordable? Ideally, access to
tomorrow's technol-ogies should be provided without resorting to
yes-terday's regulatory tools. Rather, a new model isneeded that
will allow society to meet its accessgoals in a way that recognizes
the benefits of regu-latory freedom. The purpose of this article is
topromote a discussion about what this new modelshould look like
and how it should be achievedamong industry (including those who
tradition-ally have not been regulated); consumers; educa-
synthesis to read e-mail now. Id.28 Second Advanced Services
Report, 15 FCC Rcd. at 20,942,
para. 70.29 See generally FCC, OPP WORKING PAPER 31, THE FCC
AND THE UNREGULATION OF THE INTERNET (authored by JasonOxman)
(1999), available at http://www.fcc.gov/opp.workingp.htmI
[hereinafter UNREGULATION OF THE IN-TERNET].
3) Id. at 10.31 Id. at 9.
tors; local, state and federal policy-makers; andother
stakeholders.
B. The Promise of Regulatory Freedom
The explosive development of the Internet un-derscores why a
general policy of not regulatingnew technologies will be so
important. Over thelast generation, the Federal
CommunicationsCommission ("FCC" or the "Commission") hastaken steps
to ensure that the Internet could growand that industry could
innovate without the con-straints of regulation. 29 One of the ways
in whichthe FCC sheltered the Internet from regulationwas to
distinguish computer applications over thetelecommunications
network, known as "en-hanced" services, from phone or "basic"
ser-vices.3" "Basic" services (later designated
"tele-communications services" in the 1996 Act) weresubject to the
full panoply of Title II regulation;"enhanced" services (later
designated "informa-
tion services" in the 1996 Act) stayed completelyunregulated. 3
1 The FCC also has deregulated thetelecommunications equipment
market and al-lowed users to connect their own terminal equip-ment,
which helped to foster the widespread de-ployment of the modem. 3 2
Furthermore,enhanced service providers were exempted fromthe access
charges paid by interexchange carriers,which, in turn, has allowed
Internet Service Prov-iders ("ISPs") to charge low monthly
fees.
3 3
The Internet has flourished under this modelof unregulation.
Between December 1998 and Au-gust 2000, for example, the share of
U.S. house-holds with Internet access rose by 58%, from26.2% to
41.5%. 3 4 This jump has been fueled bylower prices for hardware,
and the emergence offree ISPs and affordable broadband service. 35
Astudy funded by Cisco Systems found that the In-ternet industry
generated nearly $524 billion inrevenue in 1999, an increase of 62%
from a yearearlier. 36 The Internet is changing the way in
32 Id. at 16.33 Id.34 TOWARD DIGITAL INCLUSION, supra note 23,
at xv, 2.35 Ben Charny, More U.S. Households Online than Not,
YA-
HOO! NEWS/ZDNET NEws, at http://daily news.yahoo.com(Aug. 17,
2000).
36 CISCO SYSTEMS AND THE UNIVERSITY OF TEXAS, MEASUR-
ING T-IE INTERNET ECONOMY 2, at
http://www.internetindi-cators.com/june-full-report.PDF (June 6,
2000).
[Vol. 10
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With Freedom Comes Responsibility
which we learn, work, shop and communicatewith our colleagues,
friends and family, and, inshort, is quickly becoming the most
importantcommunications medium ever.
3 7
It will not be enough, however, to recognize theimportance of
regulatory freedom for the In-ternet and new technologies.
Generally speaking,future policies also must acknowledge that the
dis-tinctions between regulated and unregulated ser-vices are
blurring, and, that as this continues,these services should be
treated with regulatoryparity. The regulatory wall between
"basic/tele-communications" services and "enhanced/infor-mation"
services may have allowed the Internet togrow unfettered but it
quickly is becoming un-workable in the age of convergence as the
regula-tory challenges posed by Internet telephonydemonstrate. 38
And, of course, there are manyother examples of converging services
that do notfit neatly into traditional regulatory boxes,
includ-ing: Internet services delivered over digital assis-tances
("PDAs") and cable modems; Internet ser-vices delivered over
telephone lines to televisionsets via systems like Web TV; and
radio and TVprogramming webcast on the Internet.
39
As the world becomes more digital, as morecompression techniques
develop, as computingpower increases and as broadband networks
de-ploy, more services and combinations of serviceswill cut across
traditional regulatory lines.40 Ser-vice providers will offer a mix
of services, some ofthem traditionally regulated, some of them
not.Generally speaking, it will not make sense (and
37 UNREGULATION OF THE INTERNET, supra note 29, at 4.38 Indeed,
the classification of Internet telephony has
caused challenges both with respect to universal service andto
disability access. In re Federal-State Joint Board on Univer-sal
Service, Report to Congress, 13 FCC Rcd. 11,501, 11,510,para. 14
(1998) [hereinafter Universal Service Report to Con-gress]. The
Universal Service leport to Congress states that:
The record currently before us suggests that certainforms of
'phone-to-phone' IP telephony services lack thecharacteristics that
would render them 'information ser-vices' within the meaning of the
statute, and insteadbear the characteristics of 'telecommunications
services.'We do not, however, believe it is appropriate to makeany
definitive pronouncements in the absence of a morecomplete record
focused on individual service offerings.
Id.; see also In re Implementation of Sections 255 and251 (a)
(2) 251 (a) (2) of the Communications Act of 1934, asEnacted by the
Telecommunications Act of 1996, Access toTelecommunications
Service, Telecommunications Equip-ment and Customer Premises
Equipment by Persons withDisabilities, Report and Order of Further
Notice of Inquiry, WTDkt. No. 96-198, FCC 99-181, para. 173 (rel.
Sept. 29, 1999)
will cause economic distortions) to treat circuit-switched
telephony providers differently than IPtelephony providers, data
providers and videoprogramming providers. 41 Furthermore, the
tradi-tional notice and comment rulemaking process,in which it can
take months, if not years, to pro-mulgate rules, will probably be
less and less ableto adjust to the rapid pace of
technologicalchange, the short time-to-market in an increas-ingly
competitive market, and the complexities re-sulting from the sheer
number and differentkinds of entities providing services.
In this rapidly changing and increasingly com-petitive and
converging environment, the Com-mission's general approach will be
to avoid regu-lating new services and to deregulate
currentlyregulated services as they become competitivewith and
converge with new services. This will bepart of a larger transition
that the Commission isundertaking over the next five years as it
shiftsfrom a role of "industry regulator" to "marketfacilitator."42
Rather than automatically resortingto the rulemaking process, the
Commission islooking more and more to industry to make thefirst
attempt at solving complex technical and pol-icy problems. For
example, at then ChairmanKennard's urging, last year the Consumer
Elec-tronics Association and the National Cable Televi-sion
Association reached agreement on at leastsome of the issues that
are delaying the ability ofconsumers to receive the benefits of
digital pro-gramming on their cable systems. 43 The Commis-sion
also encouraged a coalition of long-distance
[hereinafter Section 255 Order]. The Section 255 Order
statesthat:
There is a vast array of communications-related
servicesavailable today that are not covered by these rules ...We
must ensure that the disability community is not de-nied access to
innovative new technologies, for exampleInternet and computer-based
services, that may becomecomplements to, or even replacements for,
today's tele-communications services and equipment.
Id. at para. 173.39 CONVERGENCE AND CYBERSPACE, supra note 7, at
1.40 Id.41 See Trace/Gallaudet Section 255 Comments, supra note
8,
at 9.42 FEDERAL COMMUNICATIONS COMMISSION, REPORT CARD
ON IMPLEMENTATION: DRAFr STRATEGIC PLAN-A NEW FCCFOR THE 21ST
CENTURY 1 (Mar. 2000).
43 Press Release, Federal Communications Commission,Statement of
FCC Chairman William E. Kennard: IndustryAgreement Will Jump Start
Digital Television, at
http://www.fcc.gov/Speeches/Kennard/Statements/2000/stwek0l3.html
(Feb. 23, 2000).
20011
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COMMLAW CONSPECTUS
and local exchange companies (the Coalition forAffordable Local
and Long-Distance Services orCALLS) to submit a plan to revise the
current ac-cess charges and universal service rules, whichthen
became the basis for a Commission order.
44
The Commission also has created an Enforce-ment Bureau and
Consumer Information Bureauin recognition of the importance of
organizingthe Commission by function rather than by tradi-tional
regulatory areas, and of facilitating marketsolutions through
outreach at the front end andenforcement on the back end.
45
Will the imperative of making the next genera-tion of
technologies technically accessible, usableand affordable be
accomplished in a way that isconsistent with the Commission's
overall deregu-latory and unregulatory approach? Some maythink that
competitive forces alone will not beenough to ensure that the
access problems of to-morrow will be adequately addressed-and
thatsome form of regulation will be necessary. Othersmay think that
any form of regulation will preventnew services from reaching the
marketplace andwill keep industry from addressing new
accesschallenges in the most flexible and innovativeway. One thing
we do know: if there is going to bea new model that will allow
society to meet its ac-cess goals in a way that recognizes the
benefit ofregulatory freedom, then it is not only the Com-mission
that must prepare for a new role in thecoming years. Industry, both
individual compa-nies and collectively, must take responsibility
andensure that no American gets left behind. Therest of this
article lays out in more detail what in-dustry must do if full
access to tomorrow's tech-nologies is to be provided without
relying on thetraditional regulatory process.
II. INDUSTRY'S RESPONSIBILITY
"To speak with a human voice, companies must sharethe concerns
of their communities. But first they mustbelong to a community.
Companies must ask themselveswhere their corporate cultures end. If
their cultures endbefore the community begins, they will have no
market."
-- Theses 34-37, The Cluetrain Manifesto
A. New Role for Industry
There are numerous reasons why industryshould be concerned with
making the next gener-ation of technologies accessible, usable and
af-fordable. Certainly addressing access concernswill help stave
off government regulation. Ad-dressing access concerns also will
enable industiyto tap into a vast new market of unserved
commu-nities-whether it is a school child who is finallytaught IT
skills or a blind person who can finallyuse her wireless PDA to
access the Internet. Andthe more widely accessible a product is,
the morevaluable it is to all customers. This is true in thecase of
the network generally, and also is true forproducts designed to be
accessible to people withdisabilities that have great mass market
appeal(such as vibrating pagers and speaker phones) .46
Industry also must care about the concerns ofthe broader
community if it is going to relate toand keep its customers in the
Internet age. This,at least, is a premise of The Cluetrain
Manifesto,47 arecent book by four Internet gurus (Rick
Levine,Christopher Locke, Doc Searls and David Wein-berger) that
has gotten attention in high-tech andbusiness circles. 48 It offers
some insights abouthow and why companies must act differently
andmore responsively in the Internet age. 49 One of
44 Press Release, Federal Communications Commission,FCC Reduces
Access Charges By $3.2 Billion: Reductions To-tal $6.4 Billion
Since 1996 Telecommunications Act, at http:/
/www.fcc.gov/Bureaus/Common_Carrier/NewsReleases/2000/nrccOO29.html
(May 31, 2000).
45 Press Release, Federal Commtnications Commission,FCC Reshapes
for the Future-Establishes New Enforcementand Consumer Information
Bureaus to be Effective Novem-ber 8, 1999, at
http://www.fcc.gov/cb/NewsReleases/reorg.html (Oct. 26, 1999).
46 Section 255 Order, supra note 38, at para. 7.47 See RICK
LEVINE ET" AL., THE CLUETRAIN MANIFESTO Xii
(2000) [hereinafter LEVINE]. See generally THE CLUETRAIN
MANIFESTO, at http://www.cluetrain.com.48 See Lisa G. Everitt,
"Cluetrain" Pulls into the Station: Irrel-
evant Book Strikes a Responsive Chord on E-Commerce
Dichotomy,DENVER ROCKY MOUNTAIN NEWS, Jan. 31, 2000, at 4B;
E-com-merce Experts Endorse Cluetrain Manifesto; Forthcoming Book
Her-alds End of Business As Usual, Bus. WIRE, Dec. 15, 1999
("'TheCluetrain Manifesto is about to drive business to a full
boil.Recall what the jungle did to meat packing, what SilentSpring
did to chemicals, what Unsafe at Any Speed did to De-troit. That's
the spirit with which the Cluetrain Manifestotakes the arrogance of
corporate e-commerce.' ").
49 LEVINE, supra note 47, at xi-xii.
[Vol. 10
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With Freedom Comes Responsibility
the major theses of the book is that if corpora-tions are going
to survive, they need to adjust tothe realities of how the rise of
the Internet andintranet are changing the way corporations
com-municate and work externally and internally.
50
On the Internet, people are having open, real andhuman
conversations about what is relevant tothem, including products and
services in the mar-ketplace-and that information is traveling
atlightning speed. As a result, markets are muchsmarter now and
much too sophisticated to re-spond to one-way public relations
"happy talk"-or as the authors say, "companies that speak inthe
language of the pitch, the dog-and-pony show,are no longer speaking
to anyone."
5 1
What the authors recommend to companies isthat they tear down
the firewall that separatestheir corporation from the outside
market andjoin the real conversations in the networked mar-ket. In
the old world, companies saw marketing asa public relations
project-mission statements,brochures, press releases and jingles.
In today'sworld, companies need to let their employees re-ally
communicate with their customers-be hon-est with them and
responsive to their concerns-and not try to "trick" them into
buying a product.Today's knowledgeable consumers will not
givecompanies a second chance.
Similarly, companies will have to change theway they communicate
about and respond to ac-cess problems if they are going to build
consum-ers' trust. Their task is more than figuring out theminimal
action necessary to be compliant with alaw or regulation. In
today's world, companiesmust concern themselves with the challenges
fac-ing our communities. They must develop real andsustained
conversations with their customers, in-cluding consumers with
disabilities, educators andcommunity leaders. They must respond to
theircustomers' concerns, or at least explain clearlywhat the
company can do and when it can do it.And companies must make sure
that their em-ployees working on access issues have the high-level
support and the ability to pull resourcesfrom throughout the
company, so that they canbe responsive.
50 Id. at xix.51 Id. at xiii.52 See In re Revision of the
Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Sys-tems,
Order, 13 FCC Rcd. 21,746, 21,746-48, paras. 2-4(1998).
The experience of the TTY Forum ("Forum"),an industry forum
established three years ago todetermine how to make TTYs compatible
withdigital wireless phones, shows both the difficultiesof the old
corporate mentality and the promisesof the new breed of corporate
problem solver.
52
The Forum consists of wireless service providers,wireless phone
manufacturers, TTY manufactur-ers, relay providers and consumers
representingthose who have hearing disabilities. The Forumwas
formed after the Commission mandated in1996 that wireless service
providers be able to passthe tones of TTYs for purposes of making
911calls. 53 Analog wireless phones were able to meetthis
requirement, but TTY calls got garbled in thedigital network. The
Commission encouraged in-dustry to work out a solution, rather than
trying tomandate a specific technical solution itself.
5 4
In some ways, particularly early in the process,this experiment
in letting industry take the leadin addressing an access problem
was a frustratingexperience for nearly all who were involved.
Gen-erally speaking, the Forum was slow to get startedand did not
really appear to be motivated to solvethe problem until a
high-level official from theCommission started attending its
meetings, andthe Chairman and other Commissioners startedexpressing
concern about the Forum's lack ofprogress.
In other ways, though, something exciting anddifferent has
emerged from this process: a sharingof information and spirit of
cooperation that hasmade a real difference in the Forum's
work.There were some key corporate employees whowere clearly
empowered to work on behalf oftheir corporation but whose concerns
went be-yond that of their corporation. Their main focuswas working
with consumers and others in indus-try to solve the problem, and
their conversa-tions-and actions-reflected this. Some were
theengineers who actually came up with the technicalsolutions that
will allow digital wireless phones topass TTY tones. 55 Some were
the policy-makerswho pushed their own company and their vendorsto
make deadlines that others in industry saidwere impossible to make.
These kinds of people
53 Id.54 See In re Revision of the Commission's Rules to
Ensure
Compatibility with Enhanced 911 Emergency Calling Sys-tems,
Memorandum Opinion and Order, 12 FCC Rcd. 22,665,22,686-87, para.
43 (1997).
55 To date, the TTY Forum's collaborative-and compet-
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COMMLAW CONSPECTUS
will be critical to industry's efforts to take the leadin
solving the access problems of tomorrow. Moreand more in this age,
corporate employees-peo-ple who understand the inner workings of
compa-nies, the technology of their products and thebroader policy
concerns trying to be addressed-will play an indispensable role in
the efforts tomake all the connections necessary to produce
asolution.
So if industry is going to address the next gen-eration of
access problems, and do so in an unreg-ulated environment, first
and foremost, it musttruly adopt the concerns of the broader
commu-nity as its own. Individual companies must committo make
access issues a real priority in their com-pany with the support of
management at the toplevels. Three high-tech CEOs recently have
calledon their industry to exhibit more leadership toclose the
digital divide. Eric Benhamou, chairmanand CEO of 3Com Corporation,
who led an on-line discussion on the digital divide at an
eventsponsored by the Commonwealth Club, statedthat "I don't think
there's been a strong voice onthis topic coming from ... [the
high-tech] indus-try. But . . . [w]ith sufficient focus and
attention,the problem will get solved."56 At a recent
AspenInstitute Conference, Time Warner CEO GeraldLevin called on
high-tech leaders to "channeltheir social convictions through their
compa-nies . . .There's a vacuum of leadership right
• "57
now." And to a standing ovation at the sameconference,
Hewlett-Packard's CEO Carly Fiorinarecently challenged industry to
"produce 'digitalMedicis' with interest in reforming society as
wellas making money. "58
Of course, it will take more than the commit-ment of individual
companies to change their in-ternal processes to address the next
generation ofaccess problems. The problems that industryneeds to
address are complicated, and require co-operation and coordination
among all those who
itive-environment has yielded some major solutions thatwill
allow digital wireless phones to pass 7lY tones. In early1999,
Lucent Technologies presented to the Forum a poten-tial solution to
the TTY/digital problem. The Lucent solu-tion subsequently was
approved by the TelecommunicationsIndustry Association ("TIA")
Subcommittees TR45.5(CDMA) and TR45.3 (TDMA) standards bodies. In
addition,Ericsson has proposed a solution that has been adopted
bythe GSM standards body, which is awaiting final adoption.Motorola
is currently working on a solution for its proprie-tary iDEN
technology. In re Revision of the Commission'sRules To Ensure
Compatibility with Enhanced 911 Emer-
are relevant to providing the next generation ofservices. Such
an effort will have to be led by in-dustry and governed by a
consortium of trade as-sociations representing all industry
interests rele-vant to the issues, including providers of
voice,video and data services; backbone and other net-work
providers; equipment manufacturers;software manufacturers; and
content providers.Key participants in any collaborative effort
mustinclude consumers with disabilities, educators,community
leaders, employers, and local, state,and federal policy-makers.
These stakeholders willbe critical in identifying the issues that
need to beaddressed, working with industry to devise solu-tions,
monitoring progress and determining howsolutions should be
implemented.
Industry will face numerous challenges in its ef-forts to ensure
that the next generation of tech-nologies will be accessible,
usable and affordable.There are some ongoing industry efforts, both
in-dividual and collective, from which to build ineach of these
areas, as discussed in more detailbelow. Industry will have to
determine whether itshould coordinate and expand existing
efforts,such as the numerous forums, standards groups,advisory
councils, initiatives, listserves, and public-private partnerships
to meet these goals-orwhether it should create a new, broadly based
col-laborative forum. What is critical, though, is thatindustry
makes a collective and high-level commit-ment to solve the access
problems of tomorrow.Industry also must be able to guard against
"free-rider" problems and ensure that all relevant com-panies and
industry segments contribute to the ef-fort. Finally, industry must
do more than identifyproblems (as some advisory councils and
forumshave done) or even identify solutions (as somestandards
groups have done). If industry wants toavoid regulation altogether,
it must ensure that itssolutions are fully implemented as well.
gency Calling Systems, Fourth Report and Order, 15 FCC
Rcd.25,216, 25,217, para. 3 [hereinafter Fourth E-911 7I'Y
Order].In a recently adopted order, the Commission set a June
30,2002 deadline for all digital wireless carriers to implement
asolution that will allow digital wireless phones to pass
TflYtones. Id. at 25,218, para. 6.
56 Q&A: Eric Benhamou on Building Online Communities,SILICON
VALLEY NEWS, at
http://wwwO.mercurycenter.com/svtech/news/indepth/docs/qa071700.htm
(July 16, 2000).
57 7W's Levin Says Tests Can Prove Value of Cable Open Ac-cess,
COMM. DAILY, Aug. 22, 2000, at 4.
58 Id. at 3.
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With Freedom Comes Responsibility
B. Ensuring That Products Are TechnicallyAccessible
One of the biggest challenges-and one that in-dustry will need
to address early-is ensuring thattomorrow's technologies are
accessible to peoplewith disabilities. It is critical for industry
to con-sider how to make their products and networksaccessible to
people with disabilities in the designand development stage, rather
than trying to re-trofit a product with an accessibility solution
afterthe product is on the market, when it is muchmore expensive to
do so. There are numerous ex-amples of accessibility problems that
could havebeen easily avoided if considered at the designand
development stage, but that are now difficultto address. Industry
has spent an enormousamount of time and money over the last few
yearstrying to make digital wireless phones and TTYscompatible.
Similarly, industry is now just begin-ning to consider how to make
interactive voice re-sponse ("IVR") services and voicemail usable
todeaf consumers or other consumers with disabili-ties-long after
these services have beendeployed. 59 Pursuant to Section 508,60
discussedbelow, the federal government is also spending anenormous
amount of money and time to redesignits web pages to make them
accessible to peoplewith disabilities.
6'
Some companies, such as Microsoft, Motorola,Cingular and Verizon
already have established ac-cessibility policies in place. 62 These
policies pro-
59 Trace/Gallaudet Section 255 Comments, supra note 8, at
8.Gallaudet University, the Association of Access
EngineeringSpecialists ("AAES") and the Rehabilitation Engineering
Re-search Center ("RERC") sponsored an industry meeting onJune 6-7,
2000, at Gallaudet University for "companies inter-ested in
understanding both the barriers and the solutions"to making
interactive voice response systems accessible. Asso-CIATION OF
ACCESS ENGINEERING SPECIALISTS, ACCESSIBLE
VOICE SYSTEMS AND SERVICES: JTY AND OTHER ACCESSIBILITYISSUES
WITH VOICE MAIL AND AUDIOTEXT, JUNE 6-7, 2000MEETING 1, at
http://www.access-aaes.org/ivr-accessibility_workshop_-_000606.html
(last visited May 2, 2001).
60 Rehabilitation Act § 508, 29 U.S.C. § 794d (1994 &Supp. V
1999).
61 SeeJohnson, supra note 24, at 23 (noting that the fed-eral
government will spend between $85 million to $691 mil-lion making
its websites and other technologies accessible topeople with
disabilities).
62 See Reply Comments of Microsoft Corp., In re Imple-mentation
of Section 255 of the Telecommunications Act of1996; Access to
Telecommunications Services, Telecommuni-cations Equipment, and
Customer Premises Equipment byPersons with Disabilities, Notice of
Proposed Rulemaking, 13 FCCRcd. 20,391, at para. 1 (rel. Aug. 14,
1998).
vide for the consideration of access issues earlyand throughout
the product design and develop-ment process; and for the use of
advisory councils,task forces, and focus groups to solicit and
re-spond to consumer concerns. 6 3 And more andmore companies are
recognizing the importanceof undertaking these activities. In
September, forexample, the CEOs of over forty-five
high-techcompanies, including America Online, Compaq,eBay, Hewlett
Packard and Sun Microsystems,wrote to President Clinton a pledge to
adopt "bestpractices" to promote accessibility. 64 These
CEOsfocused their discussion on the training of theirworkers to
develop accessible products and ser-vices, and on identifying and
solving accessibilityproblems in new versions of their hardware
andsoftware.
65
And, of course, some in industry have consid-ered how to make
their products accessible be-cause they are required under law to
do so. Sec-tion 255 of the 1996 Act requires thattelecommunications
service providers and equip-ment manufacturers make their products
accessi-ble, if readily achievable. 66 Under regulationsadopted by
the Commission last year, telecommu-nications service providers and
equipment manu-facturers (as well as interactive voice response
andvoicemail service providers, and equipment man-ufacturers67)
must develop a process to evaluatethe accessibility, usability, and
compatibility oftheir services and equipment."8 And Section 508
63 See id.64 Press Release, The White House, Next Stop on
Presi-
dent Clinton's "Digital Divide" Trip: Digital Opportunity
ForAmericans With Disabilities, at http://www.nara.gov (Sept.21,
2000); see also Letter from Technology Executives to Presi-dent
Clinton, at http://www.fcc.gov/cib/dro/Clinton_letter. doc (Sept.
21, 2000).
65 Press Release, The White House, Next Stop on Presi-dent
Clinton's "Digital Divide" Trip: Digital Opportunity ForAmericans
With Disabilities, at http://www.nara.gov (Sept.21, 2000); see also
Letter from Technology Executives to Presi-dent Clinton, at
http://www.fcc.gov/cib/dro/Clinton-letter.doc (Sept. 21, 2000).
66 47 U.S.C. § 255(a)(2), (b)-(c).67 Voicemail and interactive
voice response services are
not technically telecommunications services. The Commis-sion,
however, asserted its ancillary jurisdiction to cover theseservices
under the statute. Additionally, the court of appealsupheld the
Commission's ancillary jurisdiction "'because theCommission's
judgment on how the public interest is bestserved is entitled to
substantial judicial deference.'" Section255 Order, supra note 38,
at paras. 93-95.
68 See id. at paras. 21-36. Accessibility "generally refers
tothe incorporation of specific features in products and ser-
2001]
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COMMLAW CONSPECTUS
of the Rehabilitation Act Amendments of 1998provides a great
incentive for companies to maketheir electronic and information
products accessi-ble. Under Section 508, the federal governmentmay
not procure, develop, maintain, or use elec-tronic or information
technology-such as fed-eral websites, telecommunications, software,
hard-ware, printers, fax machines, copiers andinformation
kiosks-that is inaccessible to peoplewith disabilities, unless
following this mandatewould create an "undue burden."69
Several industry groups are currently trying toaddress certain
access problems. The World WideWeb Consortium ("W3C") is an
international fo-rum consisting of nearly 400 member organiza-tions
that develop technologies for the Web.
70
One of the W3C's four subgroups is the Web Ac-cessibility
Initiative ("WAI"), which has developedthree sets of accessibility
guidelines: one for web-sites; one for the software that website
designersuse when they build websites; and one for brows-ers and
multimedia players. 71 International stan-dards groups also have
been active in certain ar-eas. Working groups in the
InternationalTelecommunications Union ("ITU") and the In-ternet
Engineering Task Force ("IETF"), for ex-ample, have been developing
recommendationsand standards to ensure that the emerging multi
vices that will allow people with disabilities to access
thoseproducts." Id. at para. 23. Usability "generally refers to
theability of people with disabilities to learn about and
operatethose features effectively." Id. Compatibility under
Section255 means that equipment manufacturers and service
provid-ers are required, to the extent readily achievable, to
ensurethat their products are "compatible with existing
peripheraldevices or specialized customer premises equipment
com-monly used by individuals with disabilities to achieve
access,where readily achievable." Id. at para. 31 (quoting 47
U.S.C.§ 255(d)).
69 29 U.S.C. § 794d(a) (1). The Access Board, an inde-pendent
federal agency devoted to accessibility for peoplewith
disabilities, issued final standards for electronic and
in-formation technology under Section 508 of the Rehabilita-tion
Act on Dec. 21, 2000. See generally Access Board, at
http://www.access-board.gov (last visited June 12, 2001)
[herein-after Access Board]. On Apr. 25, 2001, the Department
ofDefense, the GSA, and the National Aeronautics and
SpaceAdministration published a final rule, amending the
FederalAcquisition Regulation ("FAR"), to implement Section 508.See
generally Federal IT Accessibility Initiative, at
http://www.section508.gov (last visited June 12, 2001).
70 See generally World Wide Web Consortium ("W3C"),
athttp://www.w3.org (Mar. 27, 2001).
71 See generally Web Accessibility Initiative ("WAI"),
athttp://www.w3.org/WAI (last visited May 12, 2001). TheWeb Content
Accessibility Guidelines were released on Nov.6, 2000; the
Authoring Tool Accessibility Guidelines were re-
media, IP networks are compatible with TTYs. 72
In addition, a Government Services Administra-tion ("GSA")
funded group, the Accessibility Fo-rum, held its first meeting on
May 11, 2001. TheAccessibility Forum, which includes users,
indus-try and government stakeholders, will, accordingto its
mission statement, "identify, prioritize, andconduct projects that
assist government in makinginformed decisions about Section 508
related pro-curement, and allow government, industry, andusers to
communicate and highlight areas wherefurther effort is needed.
'" 73
It is too early to evaluate the work of the Acces-sibility
Forum, but this may prove to be a modelfor future collaborative
efforts. We also know thatexisting laws, standards and guidelines,
as exem-plary as they may be, are not sufficient to ensurethat all
of the critical technologies of tomorrowwill be accessible. First,
industry must do morethan write accessibility standards and
guidelines-it must fully implement them.74 Industry also willhave
to ensure that the mechanisms it developedto address accessibility
issues are fast and flexibleenough to adjust to the rapid pace of
change.This can be a challenge for standards bodies, asthe lengthy
and ongoing process for developing astandard to make digital
wireless phones compati-ble with hearing aids illustrates. 75 The
European
leased on Feb. 3, 2000; and The User Agent
AccessibilityGuidelines will be released, pending the completion of
theW3C review process. Id.
72 See generally Gunnar Hellstrom, Total Conversationand Text
Telephony in the IP Revolution, Address Before theVON coalition
meeting with Accessibility Actors and theFCC, Washington, D.C.
(Dec. 13, 1999).
7- See generally Accessibility Forum, at
http://adit.aticorp.org/index.html (last visited June 12,
2001).
74 Industry has not committed on a widespread basis toadopt
either the WAI's accessibility guidelines or the
ITU'srecommendations. See The Applicability of the Americans
withDisabilities Act (ADA) to Private Internet Sites: Hearing
Before theSubcomm. on the Constitution of the House Comm. on the
Judiciary,106th Cong. 48-51 (2000) (statement of Judy Brewer,
Direc-tor, Web Accessibility Initiative International Program
Office,World Wide Web Consortium), available at
http://www.house.gov/judiciary/brew02O9.htm; Trace! Gallaudet
Sec-tion 255 Comments, supra note 8, at 17.
75 See Letter from the Wireless Access Coalition to theSecretary
of the FCC, In re Section 68.4(a) of the Commis-sion's Rules,
Hearing Aid-Compatible Telephones, RM-8658,at 2 (Oct. 7, 2000); see
also Trace/Gallaudet Section 255 Com-ments, supra note 8, at 16. It
is not just standards bodies whoface this challenge-the TY Forum is
struggling to stay cur-rent as well. As noted before, industry has
been working foryears on a solution to make digital wireless phones
compati-ble with TTYs and is in the process of implementing at
leasttwo solutions. At the same time, however, the use of TTYs
[Vol. 10
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With Freedom Comes Responsibility
Commission, in fact, is exploring alternativemechanisms to the
current international stan-dards bodies, such as high-tech
consortia thatwould "promote the establishment of quick
proce-dures, open workshops, and other means."76
Industry also will have to address a wide rangeof accessibility
issues in a coordinated, high-leveleffort that would include
representatives from allthe relevant industries as well as consumer
andgovernment stakeholders. Equipment manufac-turers, software
manufacturers, service providers,network providers and content
providers wouldall have to work together on many, if not
most,accessibility issues. Accessibility problems are get-ting more
and more complex and devising solu-tions will depend upon
cooperation among all ofthe above industry segments. As
technologyevolves, entities that have not had to think
aboutaccessibility will have to start. Between April andJuly 2000,
for example, the number of U.S. house-holds with digital devices
that can access the In-ternet without personal computers grew 12%.
77
And one industry forecast estimates that by 2002,wireless data
subscribers in the U.S. will outnum-ber wire line data subscribers.
78 As noted earlier,we are and will be seeing a tremendous numberof
new sources for Web and broadband access:televisions and other home
appliances, the dash-boards of cars, wristwatches, and perhaps even
thefibers of our clothes.
What exactly are the accessibility issues withwhich industry
needs to be concerned? Generally,all relevant entities must
consider how to maketheir products, networks, and services
accessibleto people with disabilities as they are designing
with proprietary enhanced communications protocols, whichallow
the TIYs to operate more quickly and to interrupt, hasgrown
rapidly. Unfortunately, the new solutions that industryis
implementing do not appear to work with the TTfYs usingthe
proprietary protocols. See Fourth E-911 7Y'Y Order, 15 FCCRcd. at
25,216, 25,222-23, paras. 2, 20-23.
76 Standards bodies struggle to stay current, ELECTRONICNEWS,
July 31, 2000, at 2.
77 Non-PC Net Device Usage Grows in U.S., INTERNETNEWS,at
http://www.internetnews.com/bus-news/article/0,,3_124542_Ext,00.html
(Sept. 20, 2000).
78 In re Implementation of Section 6002(b) of the Omni-bus
Budget Reconciliation Act of 1993; Annual Report andAnalysis of
Competitive Market Conditions With Respect toCommercial Mobile
Services, Fifth Report, 15 FCC Rcd.17,660, 17,693-94.
79 SeeJamal Le Blanc, Access and Accessibility, THE DIGITALBEAr,
Mar. 2000, at 2, available at
http://www.benton.org/DigitalBeat/db031 000.html.
80 Id.
and developing the next generation of technolo-gies. In some
cases, this might mean implement-ing guidelines that already have
been developed.The WAI, for example, has guidelines in place
forcontent providers regarding font sizes, colorschemes, image
placement and background pat-terns that will promote accessibility
for peoplewith low vision.7 9 The guidelines also stress
theimportance of using alternative text descrip-tions-or "ALT"
tags-which allow people withsight disabilities to use screen
reading software toaccess images.8 0
In other cases, this will mean ensuring that theaccess solutions
of this generation can be success-fully carried over to the next
generation of tech-nologies. For example, it will be an important
pri-ority for video delivered over broadband networksto provide for
closed captions and video descrip-tion."' WGBH Educational
Foundation("WGBH") notes in comments to the FCC thatnone of today's
major Web-based programminghas closed captioning even though
Web-basedprogramming will rapidly continue to grow.82 By2006, it
predicts, "the delivery of video over theInternet will become so
commonplace . . . thatcertain Web-based media channels will
actuallyregister on the Nielsen charts and score higherratings than
some cable channels."8 WGBH alsonotes that already thoughtlessly
designed com-pression schemes and other problems are in
someinstances preventing the closed-captioning dataand
video-description audio from TV signals topass through satellite
systems, cable systems, digi-tal video disks ("DVDs") and personal
digitalvideo recorders .
4
81 See Comments of WGBH Educational Foundation, Me-
dia Access Division, In re Inquiry Concerning Deployment
ofAdvanced Telecommunications Capability to All Americansin a
Reasonable and Timely Fashion, and Possible Steps ToAccelerate Such
Deployment Pursuant to Section 706 of theTelecommunications Act of
1996, Notice of Inquiry, 15 FCCRcd. 16,641, at 2 (Mar. 20, 2000)
[hereinafter WGBH Section706 Comments]. The FCC's closed-captioning
mandates applyonly to cable and TV providers, and the TV Decoder
Cir-cuitry Act of 1990 applies to television receivers that are
13inches or more but to no other devices. The Commission'svideo
description regulations, adopted in July 2000, apply
tobroadcasters, cable operators and satellite providers, but notto
ISPs. Id. at 2-3; see also In re Implementation of VideoDescription
of Video Programming, Report and Order, 15 FCCRcd. 15,230,
15,238-44, paras. 19-30 (2000).
82 WGBH Section 706 Comments, supra note 81, at 2-3.83 Id. at
2.84 Id. at 4.
20011
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COMMLAW CONSPECTUS
Industry also must ensure that new technolo-gies do not pose
barriers to people with disabili-ties. For example, we know already
that peoplewho are blind and have sight disabilities cannotuse the
touch screens on wireless hand held de-vices. Soft buttons on these
devices also are notusable because their functions change as the
usermoves through the on-screen menu. 85 We alsoknow that broadband
services will have to be con-structed so that they can activate a
visual or vibrat-ing signal so that people who are deaf will
knowwhen someone is trying to call them, just as flash-ing ring
indicators are used on phones to alertpeople who cannot hear that a
call is coming in.86
These, of course, are just a few examples of thekinds of issues
that industry must address if it is tomake the next generation of
technologies accessi-ble to people with disabilities. Many new
chal-lenges will arise that cannot be anticipated rightnow. Given
the complex issues and number of en-tities involved, industry,
working with consumersand government, is in the best position to
deter-mine how to achieve these goals. It will not beeasy for
industry to devise a process, which on onehand, will be fast and
flexible enough to addressnew challenges as they arise, and on the
otherhand, include all the stakeholders necessary tofashion the
most effective solution. As daunting asthis task may seem, it must
be done and done nowwhile advanced services are still in the
earlieststages of deployment.
C. Ensuring That Products Are Actually Usable
Technology has the potential to transform thelives of those
living in underserved communities,of school children and of people
with disabilities.But it is not enough to merely have the
infrastruc-ture in place. Nor is it enough to make the net-works of
tomorrow technically accessible. Thetechnology actually has to be
usable by all Ameri-
85 A phone, for example, may have two buttons below itsscreen
that will be labeled "directory" and "re-dial" at the be-ginning of
a call, but then will change to "backspace" and"okay" as soon as a
call is initiated, and then to "transfer" and"hold" once the call
is in progress. See Trace/Gallaudet Section255 Comments, supra note
8, at 12-13.
86 See generally Trace! Gallaudet Section 255 Comments,
supra
note 8, at 14.87 47 U.S.C. § 255.88 Section 255 Order, supra
note 38, at para. 23.89 See generally Access Board, supra note 69.
The Access
Board, is an independent federal agency devoted to accessi-
cans who want to use it, and industry will have toconcern itself
with this issue.
What exactly does "usable" mean? Certainly "us-able" includes
the concept that was developed inthe disabilities access context.
Section 255 re-quires that telecommunications service providersand
manufacturers of telecommunications equip-ment make their products
"accessible to and usa-ble by" people with disabilities, if readily
achieva-ble.8 7 In its discussion of the meaning of "usable,"the
Commission stated that " 'usable by' generallyrefers to the.
ability of people with disabilities tolearn about and operate ...
[product] .. .fea-tures effectively.""8 Thus, the Commission
regula-tions, as well as the Access Board guidelines 9 onwhich they
were based, provide that people withdisabilities have access to
product information(including information on accessible
features),operating instructions and technical support thatis
functionally equivalent to that provided to peo-ple without
disabilities. 91
No doubt, the technologies of tomorrow willhave to be usable in
this sense. As WGBH pointsout in comments to the Section 706
proceeding,those developing video programming deliveredover
broadband will have to determine how tomake programming guides in
accessible for-mats.9 1 But ensuring that the broadband
technol-ogies of tomorrow are usable will present
broaderchallenges, both in the sense that many differentcommunities
will have needs that will have to beaddressed, and that tomorrow's
technologies willbe inherently more complex than telephony.
We already know some of the challenges. Forexample, only 23% of
teachers feel well preparedwhile only 10% feel very well prepared
to use thecomputers and the Internet in their teaching.
9 2
Other Americans who could benefit the mostfrom being connected
simply do not have thetechnological literacy skills to use the
Internet atall. As Andy Carvin of the Benton Foundation
bility for people with disabilities. Under Section 255, the
Ac-cess Board was given responsibility for promulgating
accessi-bility guidelines for telecommunications
equipmentmanufacturers. The FCC rules were identical to or
basedupon the Access Board guidelines, with a few minor
excep-tions. Section 255 Order, supra note 38, at para. 14.
90 Section 255 Order, supra note 38, at para. 22.91 WGBH Section
706 Comments, supra note 81, at 5.92 NATIONAL CENTER FOR EDUCATION
STATISTICS,
TEACHER USE OF COMPUTERS AN1D THE INTERNET IN PUBLIC
SCHOOLS 2, at http://www.NCES.ed.gov (Apr. 2000).
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With Freedom Comes Responsibility
writes, "Am I going to know how to use Netscapein order to go on
the Web? Do I have a clue howto use a search engine successfully?
Can I useMicrosoft Word to create that resume that I'vebeen meaning
to get done?" 93 And a recent studyby the Children's Partnership
has found "that it isas important to create useful content on the
In-ternet-material and applications that serve theneeds of millions
of low-income and underservedInternet users-as it is to provide
computer andInternet connections."9 4 The study found a lack
of meaningful content for underserved Ameri-cans, 95 including
local information about theircommunities, such as information about
employ-ment, education and business development; infor-mation that
is understandable for those with lim-ited literacy skills;
information in multiplelanguages; and content that is culturally
appropri-ate.
9 6
But we do not know all of the challenges thatusers face. If we
are going to ensure that the tech-nologies of tomorrow-as well as
the technologiesof today-are actually used to their full
potentialby all communities, industry needs to work closelywith
these communities, understand their specialneeds and respond to
them. As discussed in moredetail below, there are many private and
public-private initiatives that are providing some technol-ogy
training. And clearly, there are some productson the market-and
websites-that respond tosome special needs. The new toll-free voice
por-tals from Lycos, Tellme and others are useful toeveryone
because their voice recognition technol-ogies allow people with
sight and physical disabili-ties, and people without a computer, to
access in-formation from the Internet about traffic,weather,
entertainment and other interests.9 7 En-trepreneurs also are
creating websites, such asQuepasa.com, NetNoir.com and
Black-Planet.com, that provide black and Hispanic-ori-ented online
content.9 8 And on the new Internet,
93 Andy Carvin, Beyond Access: Understanding the Digital
Di-vide, BENTON FOUNDATION, 3, at
http://wwv.benton.org/Di-vide/thirdact/speech.html (May 19,
2000).
94 The Children's Partnership, Online Content For Low-Income and
Underserved Americans: The Digital Divide'sNew Frontier, at
http://www.childrenspartnership.org (Mar.2000).
95 Underserved Americans, for purposes of the studycited,
include those who have low incomes, live in rural com-munities,
have a limited education, and are members of ra-cial or ethnic
minorities. Id.
96 Id.
"e-learning" businesses are changing the educa-tion marketplace,
according to a recent report byPeter Stokes that was commissioned
by the De-partment of Education. 99 Classroom Connect, forexample,
offers classroom course content, tech-nology training for teachers
and virtual online ex-plorations with such partners as the
AmericanMuseum of Natural History, the Discovery Chan-nel School
and the New York Times LearningNetwork.100
But much needs to be done if the broadbandnetworks of tomorrow
are truly going to be usableand meaningful to all Americans. And as
impor-tant as the ongoing efforts are, so much morecould be done if
companies made a sustained, in-dustrywide commitment to address the
concernsof underserved communities. A broadly based in-dustry
consortia, for example, could maintain atleast a minimal staff and
could coordinate effortsthat an individual company (particularly a
smallercompany) could not undertake.
The first thing that industry could do to maketechnologies more
usable is to figure out how itcan best reach and foster regular and
ongoing di-alogues with underserved communities. Whetherit is
through face-to-face meetings, e-mails or list-serves, industry
must get to know these communi-ties and the problems that they are
facing beforeit can address the problems. When the AccessBoard' 0'
formed consumer-industry advisoryboards to make recommendations
with respect tothe Section 255 and Section 508 rulemakings, itwas
the first time that so many in industry and the
disability community had been brought togetherto discuss such a
broad range of issues. Therewere disagreements, to be sure, but
both repre-sentatives from the disability community and
rep-resentatives from industry came away from theprocess with a
much greater understanding of thechallenges that the others were
facing in trying toachieve access. And there are continuing
commu-
97 See, e.g., John Borland, Telime Web-over-phone service
goesnational, CNET NEWS.COM, at
http://news.cnet.com/news/0-1004-200-2330870.html (July 24,
2000).
98 Eric Rhodes, Bridging the Digital Divide, 4, at http://
www.ideas2000.org/Issues/Education/DigitalDivide.pdf(July 2000)
[hereinafter Rhodes].
99 See Peter Stokes, E-Learning: Education Businesses Trans-form
Schooling, EDUVENTURES.COM at
http://www.Eduventures.com/pdf/doe-elearning.pdf (June 2000).
100 Id. at 7.101 See generally Access Board, supra note 69; see
also Sec-
tion 255 Order, supra note 38, at 13-14.
2001]
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COMMLAW CONSPECTUS
nications between the disability community andsome industry
segments. The Voice Over Net("VON") coalition, for example,
sponsored a full-day outreach session at the FCC in December1999 to
work toward a better understanding ofthe disability community's
concerns over the ac-cessibility of Internet telephony. Industry
needs toundertake a broader and ongoing effort to learnabout what
is going on in underserved communi-ties, and how technology can be
relevant to them.What is the inside of a classroom like today?
Whatdifficulties will Indian communities face as theyleap from
having no phone service to havingbroadband? How can we make it
easier for some-one with low literacy skills to effectively
navigatethrough the content on the Web? How should wedesign a
communications product for a personwho is deaf but who can
speak?
1 2
Industry also can organize a virtual clearing-house (accessible
also by a toll-free number) withinformation about communications
technologies.The information should be regularly updated,with links
to companies for more specific informa-tion. This would allow, for
example, people withdisabilities to make industrywide inquiries
aboutthe availability of certain accessibility features oncertain
products.11 It also would allow educatorsand community leaders to
find niche productsthat would best serve their needs. An industry
fo-rum also could post and disseminate "lessonslearned" from its
outreach activities and, as appro-priate, discuss the "usability"
solution it devel-oped.
Industry also can provide technology trainingfor schools,
community centers, employers inter-ested in hiring people with
disabilities and other
102 See Section 255 Order, supra note 38, at 17. The
Forumoutreach activities will be an important source of
informationin order to ensure that the next generation of products
istechnically accessible.
103 See generally CELLULAR TELECOMMUNICATIONS AND IN-TERNET
ASSOCIATION, CTIA's WORLD OF WIRELESS COMMUNI-CATION, at
http://www.wow-com.com/consumer/access/guide/index.cfm (last
visited Mar. 22, 2001). CTIA providessome general information for
consumers about disabilitiesaccess and a list of companies (with
links to their Web pages)that have products that may be useful for
people with certaindisabilities. What is contemplated here,
however, is aclearinghouse in which consumers could easily link to
spe-cific products that contain the accessibility features that
theyneed.
104 In June 2001, the Commission held a follow-up con-ference in
St. Paul, Minn., for business leaders in telecommu-nications and
utilities to learn from Native American experts
entities. Of course, a number of private initiativesand
public-private partnerships are already under-way, which, for
example, provide online mentor-ing and technical support to
underserved commu-nities. Last September, the Commission hosted
afour-day telecommunications seminar for triballeaders, in which
over fifty experts from U.S. gov-ernment agencies, tribal
communities, the privatesector, and foundations provided technical,
finan-cial and regulatory information about the tele-communications
industry.' 4 PowerUp, a nationalinitiative supported by nonprofit
organizations,major corporations and federal agencies, cur-rently
has four pilot projects (and a great numbermore planned) that focus
on teaching technologi-cal skills to youth. 10 5 The CEO Forum on
Educa-tion and Technology, consisting of twenty-fourCEOs and other
high-level representatives fromhigh-tech companies and the
education commu-nity, has developed reports and other materials
tohelp teachers use technology effectively in theclassroom. 1° The
Department of Education alsosponsored the Secretary's Conference on
Educa-tional Technology: Measuring the Impacts andShaping the
Future, in which Secretary RichardRiley brought together high-tech
companies, edu-cators, nonprofits and consultants to examine
is-sues relating to the effective use of technology inthe schools.
11 7 Additionally, last year, the Depart-ment of Education spent
$75 million on grants toensure that new teachers can successfully
inte-grate technology into their curricula.'018 The Cen-tury
Foundation has recommended that the fed-eral government initiate a
much larger scaletechnology training program (to be capped at$1.75
billion over four years) for "at risk" young
how to successfully develop business ventures in Indian
terri-tory. See generally FEDERAL COMMUNICATIONS COMMISSION,
IN-DIAN TELECOM TRAINING INrrIATIVE, at
http://www.fcc.gov/in-dians/ (last visited Mar. 22, 2001)
(describing upcomingIndian Telecom Training Initiative Conference
to be held onSept. 23-26, 2001, in Las Vegas, Nevada).
105 See generally PowerUp, at http://www.PowerUp.org(last
visited Mar. 22, 2001).
106 See generally CEO Forum, at http://www.ceoforum.org (last
visited May 13, 2001).
107 The conference was held last September. DEPART-MENT OF
EDUCATION, SECRETARY'S CONFERENCE ON EDUCA-
TIONAL TECHNOLOGY, at
http://www.ed.gov/Technology/techconf/2000/ (last visited Mar. 22,
2001).
108 Press Release, The White House, The Clinton-Gore
Administration: From Digital Divide to Digital Opportunity,at
http://www.digitaldivide.gov/2000-02-02.html (Feb. 2,2000).
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With Freedom Comes Responsibility
people and teachers.' 0 9
It is beyond the scope of this paper to attemptto make a
recommendation about the appropri-
ate mix of private and public funds and effortsnecessary to
ensure that teachers, students andothers have the training they
need to take full ad-vantage of today's and tomorrow's
technologies.But it is likely that providing technology
trainingwill continue to be an effort undertaken by theprivate,
nonprofit and public sectors. And whentwo-thirds of all teachers
feel they are not well pre-pared to use technology effectively in
the class-room, it is clear that much remains to be done.An
industry forum could play a critical role in co-ordinating a
broadly based technology training in-itiative.
A forum also could conduct an accessibilityawareness campaign
targeted at those in industrywho are outside of the
communications/high-tech sectors (and thus not in the forum)
butwhose actions affect the accessibility of communi-cations
products. For example, a forum couldwork with retailers like
Wal-Mart to ensure thattheir employees understand the accessible
fea-tures on the communications products they sell. Italso could
educate employers about how technol-ogy can enable people with
disabilities to do theirjobs.1 10 An industry forum could stress to
organi-zations, such as banks and catalog companies, thebenefits of
configuring their phone systems sothat interactive voice response
services are accessi-ble to people with disabilities."1 I Finally,
the fo-rum could strive to get as many companies as pos-sible to
make their Web pages accessible.
The activities recommended here-reachingout to underserved
communities, providing an in-dustrywide clearinghouse, coordinating
technol-ogy training and launching an accessibility aware-
109 Rhodes, supra note 98, at 6.110 Industry already has
undertaken some important ini-
tiatives in this area. For example, in Oct. 2000, CEOs of ma-jor
corporations, including high-tech industries, submitted aletter to
President Clinton pledging to take concrete actionsto help boost
the employment of people with disabilities. Let-ter from CEOs to
President Clinton, at
http://groups.yahoo.com/group/dd-confcall/messages/432 (Oct. 25,
2000).
111 See Section 255 Order, supra note 38, at paras. 101-02.The
Section 255 Order states that:
The access barriers created by inaccessible and/orunusable
voicemail and interactive menus has made itextremely difficult for
people with hearing, vision, orphysical disabilities either to
reach the party to whomthey have placed the call or to obtain the
informationthey seek in their phone call . . . For example, the
ness campaign-could go a long way toaddressing the usability
concerns with today'stechnologies. And by focusing on these
issuesnow, industry can prevent the recurrence of thesame problems
in tomorrow's technologies. Bybetter understanding the concerns of
under-served communities, industry will make productsthat are more
usable and meaningful for every-body.
D. Making a Recommendation About FutureUniversal Service
Policies
An industry forum can do more than solve tech-nical problems and
undertake outreach, trainingand education initiatives. It also
should engage inone of the most important communications
policyissues in the coming years: how to provide for uni-versal
service to the next generation of technolo-gies. Because tomorrow's
universal service policiesare bound to implicate a much broader
scope ofservices than they do today, it is important that
allservice providers-not just those that traditionallyhave been
regulated-participate in formulatingpolicy recommendations.
Of course at this stage of deployment of ad-vanced services, it
is too early to predict what ser-vices will be considered so
critical that they mustbe universally affordable. 112 Some
technologies,which seem so promising when they are first
intro-duced, will never be accepted by a critical mass ofconsumers,
as was the case with the betamaxhome video technology. Other
technologies, likethe television, will achieve almost 100%
penetra-tion without any special intervention. Still
othertechnologies, such as compact disc players, willnot be deemed
critical enough to ensure that theyare universally affordable.
Nevertheless, we do
voicemail or menu may not allow adequate time for acaller using
the Telecommunications Relay Service tohave the information from
the automated device relayedto the caller's TTY and a response from
the caller re-layed back to the device through the
CommunicationsAssistant... The time allowed for a person to input
thenecessary numbers . . . to select an option from a list
ofchoices or control the other functions may be too shortfor people
with motor, [learning, or hearing] disabilitiesor people who are
blind.
Id.112 According to the Second Advanced Services Report, for
example, 1.6% of U.S. households subscribed to advanced-and
high-speed services at the end of 1999. Second AdvancedServices
Report, 15 FCC Rcd. at 20,942, para. 70.
2001]
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COMMLAW CONSPECTUS
know enough to predict that some form of broad-band technology
will play an increasingly impor-tant role in our lives and that we
will be workingto ensure that these technologies are
universallyaffordable.
We have good reason to believe, however, thatthe market will be
able to ensure that critical tech-nologies will be widely
affordable. As discussedearlier, pro-competitive, deregulatory, and
un-regulatory policies have spurred technological in-novation and
lowered prices, making new tech-nologies more affordable for
everyone.' 11 Inparticular, technological innovations in
satellite,wireless and other technologies, for example, maymake
advanced services more affordable in ruraland isolated
areas.'14
Government-and industry and government to-gether-also can take
actions that will allow themarket to provide for universal service
to the ful-lest extent possible. In last year's report on the
de-ployment of advanced services, for example, theCommission
identified several actions that it had
113 TOWARD DIGITAL INCLUSION, supra note 23, at xv, 2.114 Second
Advanced Services Report, 15 FCC Rcd. at 20,932,
20,937, paras. 42, 56.115 Some of these actions include:
strengthening its col-
location rules; encouraging the resale and unbundling of
ad-vanced services; encouraging the competitive delivery of
DSLservices through line-sharing; establishing criteria for
waivingLATA boundaries where they create a barrier; ensuring
thatcompeting providers receive nondiscriminatory access to
fa-cilities and services; encouraging the deployment of wire
lineand wireless service to tribal areas; and promoting
wirelesshigh-speed service. See Second Advanced Services Report, 15
FCCRcd. at 21,004-08, paras. 249-66.
116 Some of these actions include: modifying its colloca-tion
rules to provide for competitive access to incumbentLECs' remote
terminals; streamlining the equipment ap-proval process for
customer premises equipment with ad-vanced telecommunications
capability; considering whetherto allow access by multiple ISPs to
the cable companies' infra-structure for the delivery of advanced
services; and examin-ing ways to make more licensed and unlicensed
spectrumavailable for broadband services, as well policies to
increasespectrum flexibility and efficiency. Second Advanced
Services Re-port, 15 FCC Rcd. at 21,008-12, para. 267.
117 Existing programs that play such a role include:
theDepartment of Commerce's Technology Opportunities Pro-gram,
which in FY 2000 has provided $12.5 million in match-ing grants to
public and nonprofit sector entities for modelprojects
demonstrating innovative uses of network technol-ogy; the
Department of Agriculture's Ruial Utilities Service,which has been
in existence for 50 years and has providedover $1.4 billion in
loans over the last three years for infra-structure investment for
companies that provide local ex-change telecommunications services
to rural areas; and theDepartment of Education's Community
Technology Centersprogram, which for FY 2000 is awarding $32.5
million ingrants to state and local education agencies to provide
con-
already taken, 1 5 as well as actions that it couldtake to
accelerate the deployment of advancedservices.' 16 In addition to
removing regulatorybarriers and taking actions to promote
competi-tion, government can provide grants" 17 and
otherincentives' IS that will spur deployment of broad-band
technologies. It also can provide a forum topromote public-private
partnerships and sharebest practices. The Commission, for example,
hasconvened a Federal-State Joint Conference to pro-vide for
ongoing discussion of issues relating tobroadband deployment.'
19
It seems likely that the market, for the mostpart, particularly
in conjunction with governmentgrants and other incentives, will be
able to pro-vide timely and affordable access to the
criticaltechnologies of tomorrow. On the other hand, italso seems
quite likely that some segments of ourpopulation will not have
timely and affordable ac-cess to the critical services of tomorrow,
unless ad-ditional action is taken. Indeed, the Commission
puter and Internet access and training for working class
fami-lies. See NATIONAL TELECOMMUNICATIONS AND
INFORMATIONADMINISTRATION ANt) RURAL UTILITIrS SERVICE,
ADVANCED
TELECOMMUNICATIONS IN RURAL AMERIcA: THE CHALLENGE OF
BRINGING BROADBAND SERVICE TO ALL AMERICANS 35-39,
athttp://www.ntia.doc.gov/reports/ruralbb42600.pdf (Apr.2000). In
addition, in FY 2000, the Department of Educa-tion's National
Institute of Disability Rehabilitation and Re-search ("NIDRR")
provided $86.5 million to fund researchrelating to making new
technologies accessible to peoplewith disabilities. The Assistive
Technology Act of 1998 alsoprovided $34 million in FY 2000 to
support state efforts suchas training, technical assistance and
alternative loan pro-grams relating to technologies for people with
disabilities. SeeThe White House, Clinton-Gore Administration
Accomplishments inCreating Digital Opportunity for People with
Disabilities, at
http://ofcn.org/cyber.serv/tledem/pb/2000/sep/msgOOl 78.html(Sept.
21, 2000) [hereinafter Clinton-Gore Accomplishments inCreating
Digital Opportunity].
118 The government uses its purchasing power in imple-menting
Section 508, for example, by requiring that any elec-tronic or
information product that it buys are accessible topeople with
disabilities, unless doing so would create an tin-due burden. See
Clinton-Gore Accomplishments in Creating DigitalOpportunity, supra
note 11 7.
1 19 Among other things, the Federal-State Joint Confer-ence has
identified best practices that have led to increasedaccess to
advanced services. Some of the best practices itidentified include:
"demand aggregation," a deploymenttechnique in which groups of
customers band together to at-tract investment for the construction
of new facilities; and"anchor tenancy," a strategy in which a
public entity or otherlarge customer attracts investment in
broadband facilities,which can then be used by other businesses or
residentialcustomers. Second Advanced Services Report, 15 FCC Rcd.
at20,980-81, paras. 177-80.
[Vol. 10
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With Freedom Comes Responsibility
recently stated in its Second Advanced Services Reportthat:
[d]espite our conclusion that deployment is reasonableand timely
overall, the data support the troubling con-clusion that market
forces alone may not guaranteethat some categories of Americans
will receive timelyaccess to advanced telecommunications
capability. Weidentify certain categories of Americans who are
partic-ularly vulnerable to not having access to advanced
ser-vices. These include low-income consumers, those liv-ing in
sparsely populated areas, minority consumers,Indians, persons with
disabilities and those living in theU.S. territories. 120
In light of this conclusion, the Commissionstated that, among
other things, it will workclosely with the states to consider
whetherchanges can be made to the existing high-costfund to support
advanced telecommunications ca-pability. In addition, it stated
that it also wouldwork with the states to consider whether a
newuniversal service mechanism should be created.
12 1
It is, of course, critical that industry engage inthe discussion
of how to ensure that all Americanshave reasonable and timely
access to the criticaltechnologies of tomorrow. Some important
indus-try efforts have already been launched. In Febru-ary 2001,
for example, the Consumer EnergyCouncil of America's Universal
Service Forum,consisting of participants from the
telecommuni-cations and information industries, federal andstate
government, and consumer groups maderecommendations about how the
universal serviceprogram should evolve.
1 22
It will be crucial for representatives of all serviceproviders,
including those who are not currentlysubjected to universal service
obligations, to con-tinue and build upon these efforts. As
discussedpreviously, the distinctions between "information"service
providers and "telecommunications" ser-vice providers (as well as
other service providers)
120 Id. at 20,918, para. 8.121 Id. at 21,009, para. 267.122 The
recommendations were the result of six month
consensus-building process. The recommendations included:(1)
creating a technological task force to advise the Commis-sion and
the Federal-State Joint Board on supported services;(2) utilizing a
deliberative approach for determining essen-tial services; (3)
coordinating the national development ofadvanced services through
the USF; (4) using model states asbenchmarks for low-income
policies; (5) creating a compen-dium of successful outreach tools
to publicize the low-incomeprogram; and (6) streamlining the
Eligible Telecommunica-tions Carrier certification procedures. See
CECA UNIVERSALSERVICE REPORT, supra note 9, at 51-53.
123 Former FCC Chairman Reed Hundt and others origi-nally
proposed that the revenues raised from spectrum auc-
are blurring and quickly disappearing, and overthe long run it
will be important that all serviceproviders are treated with
regulatory parity. In de-veloping recommendations for future
universalservice policies, industry should consider a rangeof
forward-looking, market-based, technology-neutral mechanisms that
perhaps are not pro-vided for under current laws or
regulations.
For example, it may we