Internet and Section 255, NOI

[Paul Schroeder <pws@afb.net>]

John Nissen brings up an interesting question when he
writes:"Do the Section 255 rules apply to services provided via
telecommunications from the Internet?" He then asks: "Is there
an argument that, since they surely apply to  "Internet
appliances", they therefore must apply indirectly to the Internet
services provided thereon?" 

As Gregg explained, the issue of Section 255 coverage of Internet access
and services is part of a notice issued by the FCC at the time it
established the 255 rules. They are now taking input on that "Notice
of Inquiry." Comments can be sent to the FCC in reply to a series of
comments already sent in earlier this month in response to that notice.
Additional comments, known as "Reply Comments" must be
submitted by February 14.

I thought some background might be helpful, so I apologize for the length
of the material that follows, but I hope it helps put the issues in
context and encourages people to look carefully at Section 255 and its
coverage.

When the FCC issued the rules for Section 255 last September, it
concluded that its telecommunications access provisions included
essentially basic telephone calls and services that facilitate the
completion of telephone calls  such as speed dialing, call
forwarding and caller identification. IN addition, voice mail and
interactive menu services were included through a legal argument known as
ancillary jurisdiction. Services such as electronic mail, fax, and
audiotext are not covered under the access requirements of Section 255.
So the current application of Section 255 to Internet appliances would be
limited to the telecommunications functions (if any) of those
appliances.

In the "Notice of Inquiry," included with the 255 rules, the
FCC asks for input on these difficult issues. Stating in
part:

... There is a vast array of communications-related services
available today that are not covered by these rules.  In addition,
there are new technologies, which may be outside the scope of these
rules, being developed that may further revolutionize the way we
communicate.  ...  We must ensure that the disability community
is not denied access to innovative new technologies, for example Internet
and computer-based services, that may become complements to, or even
replacements for, today's telecommunications services and equipment.



Accordingly, we are issuing this Notice of Inquiry (NOI) to aid our
understanding of the access issues presented by communications services
and equipment not covered by the rules we adopt in this Order. 



We are also expressly interested in commenters' views on the extent
to which government regulation will be necessary to ensure accessibility
of communications technology in the future.  ...  Because of
our strong interest in ensuring that the disability community is not
denied access to any 
communications technologies, we ask commenters to tell us what we
can do the guarantee that access. 

As a bit more background, In the 255 rules (known as a "Report and
Order," the FCC said:

We decline to expand the meaning of "telecommunications
services" to include information services for purposes of section
255, as urged by some commenters.[178]  In the NPRM, we recognized
that under our interpretation of these terms, some important and widely
used services, such as voicemail and electronic mail, would fall outside
the scope of section 255 because they are considered information
services.[179]  We conclude, however, that we may not reinterpret
the definition of telecommunications services, either for purposes of
section 255 only or for all Title II regulation.  


Both voicemail and interactive menu services, and the related
equipment that perform these functions, are at the very least
"incidental" to the "receipt, forwarding and delivery of
communications."  Indeed, the evidence here persuades us
that  these two information services are not only incidental to
communications, but essential to the ability of persons to effectively
use telecommunications.[226]  


Unlike voicemail and interactive menus, other information services
discussed by commenters do not have the potential to render
telecommunications services themselves inaccessible. Therefore, we
decline to exercise our ancillary jurisdiction over those additional
services.  Many of these other services are alternatives to
telecommunications services, but not essential to their effective use.
For example, e-mail,  electronic information services, and web pages
are alternative ways to receive information which can also be received
over the phone using telecommunications services. In contrast,
inaccessible and unusable voicemail and interactive menus operate in a
manner that can render the telecommunications service itself inaccessible
and unusable.
In comments filed earlier this month, the American Foundation for
the Blind (AFB), noted that Email and web pages are more than mere
alternatives to access via the telephone. After all manufacturers of
wireless telephones are adding email and Web access capabilities at an
astonishingly rapid rate. The Internet is probably the “single most
important communications tool in existence and it is the “communications
medium of choice for millions of users. We suggested that it makes no
sense for the Commission to determine that voice mail and interactive
menu services are fundamental - so fundamental as to require Section 255
protection, yet deny email access to people who are blind or visually
impaired. 

Thus, we urged the FCC to rethink its legacy definitions of
basic/telecommunications and enhanced/information services. It is this
distinction, stemming from previous regulatory decisions by the
Commission and included in the Telecommunications Act that hinder the
obvious conclusion that Sec. 255 should cover communications technologies
regardless of the network used. Unless the Commission can be persuaded to
see Sec. 255 provisions more broadly, consumers will never be sure
whether the telecommunications equipment and services they are planning
to use will be fully accessible or only accessible for the voice
telephone functions. 
I've included below a few portions of our comments.

        3. ... AFB
encourages the Commission to use this opportunity to take a fresh look at
how it treats Internet and computer-based communications services. 
AFB argues throughout the instant comments that the Commission's
"legacy" (historical) treatment of email and other web-based
services is far too narrow.  The Commission, at least as it relates
to Section 255, can ill afford to place Internet and computer-based
services in the all too inaccessible "information services"
black box.  Specifically, AFB believes that email and other
text-based communications services, if not narrowly defined as
telecommunications services for the purposes of Section 255, are
functionally telecommunications services
and therefore must fall under the protections of Section 255. ...

        4.
... As communications technologies converge, strict adherence to the
legacy treatment of these distinctions does not reflect the way we
communicate.  As the distinction between the computer workstation
and the telephone handset disappears, various functions are increasingly
provided by linking these two devices together, and not only for voice
calls using Internet Telephony.  AFB itself has recently upgraded
its telephone switch technology and has purchased, among other things, a
message management module to provide certain capabilities, in particular
the ability to retrieve email over a touch-tone voice telephone. 
Therefore, it becomes more important to apply these definitions along
functional lines. ... Thus, as a matter of public policy, AFB believes it
is time for the Commission to extend the worthy goals of Section 255 to
the communications universe that now exists and to provide the proper and
consistent regulatory framework for ensuring access to future
communications technology innovations.

        5. In
crafting this revised, functional and practical public policy toward
access to communications technology, we encourage the Commission to shed
the mantra that it does not and will not regulate the
"Internet."  There can be no doubt that the Commission
does indeed already regulate the Internet, at least to the extent that it
regulates the underlying communications systems upon which the Internet
is built.  Similarly, we urge the Commission to recognize that the
"enhanced" or "information" services industry in no
longer fledgling (as it may have been when the Commission created the
basic/enhanced distinction in Computer
II).  Without a functional and practical approach
to the current use of text-based Internet and computer-based systems,
people who are blind or visually impaired will continue to be left out of
the communications revolution. ...

        7. In
order for the Commission to ensure that people who are blind or visually
impaired do not become third-class citizens, it must ensure that they
have access to next generation communications services.  Already
today's communications services from email, and web pages, to telephones
with visual read-outs and touch screens, to multifunction wireless
communications devices with on-screen menus, collectively are too
frequently unusable by people who are blind or visually impaired. 
Access to communications systems by the visually impaired is likely to be
more and more difficult and, at the same time, more and more important as
baby boomers age and technology continues to advance. 
Unfortunately, as currently construed, Section 255 only addresses the
telephone access barrier facing these Americans.  People who are
blind or visually impaired consider their ability to access information
and communicate through their computers indispensable – at the level of a
fundamental human and civil right.

        12. The
Commission's recent determination that email is an information service
overlooks previous Commission precedent that an email type service was a
common carrier service subject to Title II regulation. [Here we cite a
1979 case in which a concept called "Electronic Computer Originated
Mail (ECOM)" was subject to regulation."

        34.
While the tools to ensure accessibility either exist or are being
developed, ... AFB is convinced that without federal regulations
requiring access, industry will either overlook or fail to include access
features, or will develop solutions that do not provide full
access.  For example, providing a mere "audio dump" of the
contents of a display screen does not provide the user effective access
since he or she cannot selectively hear portions of the screen,
highlighted text, or other attributes.  Regulations are needed to
insure the consistency of accessibility across all platforms, whether the
plain old telephone system or computer-based.  The tools necessary
for people who are blind or visually impaired to access Internet and
computer-based communications services are particularly important as more
and more jobs require access to email, web pages and other text based
telecommunications.  Without access, people who are blind or
visually impaired face additional barriers to employment.



Paul Schroeder
Director, National Technology Program
American Foundation for the Blind
(312) 245-9961
<pws@afb.net>