Disability-Access Bill Prone to Court Challenge, House Telecom is Told
Allowing people with disabilities to sue device makers and service providers alleging unfriendly designs could backfire in court, a former federal prosecutor testified Thursday at the House Telecom Subcommittee. It held a hearing on a draft bill to require improved access for the disabled. Lawmakers largely ignored the claims of legal peril, instead demanding that the lone industry witness explain why costs won’t quickly drop if “universal design” is required for mass-market products. The witness panel included an NFL player whose father can’t hear, a Hollywood actor who’s deaf, and an Army sergeant who can’t see.
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Americans with Disabilities Act requirements would apply to “Internet-enabled communications services” under the draft bill by Chairman Ed Markey, D-Mass. Manufacturers and service providers would have to design products to be accessible to people with disabilities, including through “real-time text support” to users. IP-based video services and products would have to enable closed captioning and video description services, and provide “top tier” and “button” access to the services through on-screen menus and remote controls. The most contentious effect of the bill could be that it would require companies to show an “undue burden” to get exemptions instead of having to take all “readily achievable” measures.
Business is bad at gauging what disability requirements cost, Markey said, saying industry said closed-captioning would cost $20 a TV set. The actual cost: $1. But Ranking Member Cliff Stearns, R-Fla., noted that Internet companies formed the Internet Captioning Forum to increase access. Markey cited a May 16 tech fair planned by several companies to demonstrate accessibility services to lawmakers and Hill staff.
Published court decisions haven’t embraced rigid access requirements like the draft bill’s, warned Ken Nakata, director of disability initiatives and government compliance at BayFirst Solutions consulting. The former prosecutor said DoJ was frustrated in its efforts to win case law to support Web site accessibility via a private 2002 lawsuit against Southwest Airlines. The suit had “terrible facts” and the court was an “inhospitable forum” that stung disability activists, Nakata said. Any legislation with a private right of action needs “procedural safeguards,” perhaps a requirement of “exhaustion of administrative remedies” at the FCC before a private lawsuit can be filed, Nakata told Rep. Jay Inslee, D-Wash.
The ADA’s “undue burden” standard was meant for “places of public accommodation” such as brick-and-mortar stores, not Web sites or devices, Nakata told Stearns, who said he worries the standard is a “stumbling block” to passing the bill. Device makers and services can push out accessibility features in serial releases, but the undue-burden standard could force them to devote “substantially all of their profits” to compliance, Nakata said. “I just can’t see a court [requiring] that.” But hope for access requirements is raised by a federal district court ruling that allowed a disability lawsuit suit to proceed against Target over its Web site design, Nakata said.
Undue-burden won’t work for cellphones and other devices with short life cycles, said Dane Snowden, CTIA vice president of external and state affairs and former chief of disabilities access at the FCC. With the wireless industry moving toward an open-access model, service providers would be hard-pressed to ensure access compliance when consumers deal directly with third parties, he said. The FCC has the authority to act against makers and services lacking disabled-friendly features, Snowden said.
The closed-captioning requirement for TV sets has “worn out its welcome” and should apply to all video devices, said Russell Harvard, a deaf actor who appeared in There Will Be Blood. Jamaal Anderson of the Atlanta Falcons said his deaf father couldn’t enjoy watching him get drafted last year because the broadcast didn’t have closed captioning. Congress must clarify that the 1996 Telecom Act intended closed captioning and video description services to be mandatory, to overcome a court decision against the FCC on the matter, said Larry Goldberg, director of media access for WGBH in Boston. U.S. Army Sergeant Major Jesse Acosta, blinded in combat in Iraq, said a Sprint store could offer him only a phone with a nub on the “5” key to accommodate his disability. Snowden promised to ask Sprint to help Acosta find a more suitable phone.
The draft bill needs to set deadlines for compliance to obtain progress, Goldberg told Markey. Closed-captioning deadlines “lit a real fire under content providers and distributors” not otherwise inclined to make the disabled market a priority, he said. Snowden said disability-access features’ cost will shrink as a growing number of people use them. But different groups need different features, he told Rep. Lois Capps, D-Calif., who proposed a self-regulatory, universal-design effort by industry. CTIA will consult House Telecom “on anything,” including a deadline for compliance, Snowden told Markey. “When you give me the deadline, I start to do my homework,” Markey said, relating his college study habits.