Report to Australian Mobile Telecommunications Association (AMTA) Access Committee
on Work of the US Access Board Pursuant to Refresh of Rehabilitation Act Section 508 and Telecommunicatinos Act section 255
Disability Rights Unit
Human Rights and Equal Opportunity Commission
July 24, 2008
This report deals with the work of the US Access Board in its project to conduct a “refresh” of Section 508 of the Rehabilitation act 1973 , and Section 255 of the Telecommunications Act 1996 . Both these sections relate specifically to the procurement of products accessible to people with disabilities. One key aspect of this Refresh, as will be discussed further below, is to harmonise, as far as possible, similar provisions in both Acts.
The Human Rights and Equal Opportunity Commission (“the Commission”) was one of four international representatives involved in the Refresh process. I attended the inaugural meeting of the committee in Washington in September 2006, and once again I am pleased to thank AMTA for assisting with the costs associated with this attendance.
About the US Access Board
1965-68: Accessibility Becomes a Major Concern
The development of social policy is influenced by many factors, but often it is the experiences of individuals that lead to the most fundamental change. In the US of the mid-1960s, Hugh Gallagher was an aide to Senator EL Bartlett of Alaska. Gallagher used a wheelchair, and he found that he was unable to enter the National Gallery of Art without assistance. Barriers to accessibility became a particular focus for him and the Senator, and the result was the passage of the Architectural Barriers Act (“ABA”) of August 1968. This Act gave effect to the recommendations of the National Commission on Architectural Barriers to Rehabilitation of the Handicapped, which had been created by the US Congress in September 1965. The Act aimed to secure access to facilities built, leased or refurbished with Federal US Government funding, and as such, it was ground-breaking by virtue of its recognition that national governments have a special responsibility to show leadership in promoting social inclusion. The resonances of the ABA can be seen in such legislation as the Americans with Disabilities Act , and even in our own Disability Discrimination Act 1992 .
As Congress began implementing the requirements of the ABA, it had an expectation that the improvements in access to federal buildings and facilities would act as a stimulus to similar activities undertaken by the various US State governments. It is instructive to note that although the current Section 508 applies only to the federal jurisdiction, it is used as a model, either in whole or in par, by many State authorities. In fact, one of the issues discussed during the Refresh process was the divergence of interpretation of some provisions by different States.
1973: The Access Board is Created
Despite the initial enthusiasm that greeted the passage of the ABA, it was clear by 1973 that compliance was patchy, and that insufficient work was being done on the development of technical design standards for accessibility.
Congress therefore determined that a single agency needed to have responsibility for enforcing the ABA and developing associated standards and guidelines. It took the opportunity afforded by a 1973 review of the Rehabilitation Act to create the US Access Board (created by Section 502 of the Act, and originally named the Architectural and Transportation Barriers Compliance Board). "The Board was charged with ensuring Federal agency compliance with the ABA and proposing solutions to the environmental barriers problems addressed in the ABA." (http://www.access-board.gov/about/history.htm)
The Board held its first meeting in March 1974. In the same year, Congress strengthened the Board's powers to enforce compliance and penalise agencies for non-compliance (including by withholding Federal government funding). At the same time, the Board was directed to establish a Consumer Advisory Panel, most of whose members were people with disability. This mechanism laid the foundations of an approach that regards the development of standards as involving dialogue and consensus-building among various stakeholders, including especially the community whose rights they are primarily designed to protect.
1975-77: The Work of the Access Board Begins
In 1975, the Board appointed its first Executive Director (James S. Jeffers). In 1976 it was engaged in various collaborative activities designed to make national monuments accessible in time for the celebrations of the US bicentenary.
During 1976 and 1977, the Board was instrumental in organising public awareness campaigns, including a film that was produced for a White House presentation and then distributed nationally.
1978: Major Changes to the Board
The Board's mandate and structure were expanded in 1978 by amendments to the Rehabilitation Act. The Board was now authorised to establish minimum accessibility guidelines under the ABA and to ensure compliance with the requirements. The first set of such guidelines were produced in 1982. The Board's technical assistance role was also expanded to include providing help on the removal of communication barriers communication barriers in federally-funded buildings and facilities.
1990: The Americans with Disabilities Act ("ADA") Expands the Board's Mission
During the 1980s, the Board continued its work in enforcing and providing technical assistance on the ABA. However, it was also becoming more involved with research on accessibility and providing input to Government on access-related issues. This was a time when people with disability were starting to organised into a more cohesive force advocating for civil rights, including the right to access all aspects of the physical environment. This groundswell was instrumental in securing the passage of the Americans with Disabilities Act , ("ADA") in 1990. The ADA was landmark legislation and helped bring about a radical reshaping of the social landscape for people with disability, not just in the US, but elsewhere, as countries such as Australia and the UK developed disability discrimination legislation. In signing the ADA into law on July 26 1990, US President George H. Bush noted:
"In this extraordinary year, we have seen our own Declaration of Independence inspire the march of freedom .... It is altogether fitting that the American people have once again given clear expression to our most basic ideals of freedom and equality. The Americans with Disabilities Act represents the full flowering of our own democratic principles."
The ADA expanded the Access Board's mandate to include:
- developing the accessibility guidelines for facilities and vehicles covered by the law;
- providing technical assistance and training on these guidelines; and
- conducting research to support and maintain the guidelines.
The Board began immediately to develop accessibility guidelines under the ADA and published its final guidelines on the first anniversary of the ADA's signing, July 26, 1991.
Beyond the ADA
After the ADA Accessibility Guidelines were published, the Board commenced a technical assistance and training program on the design requirements of the ADA that still continues today.
Throughout the 1990s and into the 21 st century, the Board has continued to supplement and update the ADA Accessibility Guidelines to address areas where further guidance is necessary because of such factors as technological developments. To facilitate this process, it has become standard practice for the Board to establish advisory or regulatory negotiation committees, again emphasising the essentiality of stakeholder consultation, consumer involvement, and consensus.
Background to the Telecommunications Act and Section 508
The work of the Access Board in the Refresh process that is the focus of this report imbricates the Telecommunications Act and Section 508 of the Rehabilitation Act . It is useful, therefore, to provide some background to both before discussing the Refresh process itself.
The Telecommunications Act 1996
In 1996, the US Congress passed the Telecommunications Act , which is a comprehensive law regulating the telecommunications industry. The Act recognises the importance of access to telecommunications for people with disability. In this respect, there are some similarities with the corresponding Australian legislation, the Telecommunications (Consumer Protection and Service Standards) Act 1999 , and the Telecommunications Act 1998.
Section 255 of the US Act requires telecommunications products and services to be accessible to people with disabilities where the provision of such access is "readily achievable." Manufacturers must ensure that products are "designed, developed, and fabricated to be accessible to and usable by individuals with disabilities". The Act gives the Access Board the responsibility of developing guidelines that specify what makes telecommunications products accessible.
The Board's initial guidelines were published in February 1998, and were developed with help from an ad hoc advisory committee known as the Telecommunications Access Advisory Committee. included representatives from product manufacturers, service providers, disability groups, and experts in communication access. A challenge of developing accessibility guidelines in an area such as telecommunications is that technologies are changing rapidly, and guidelines that are framed with a particular set of technologies in mind will quickly become obsolete. For this reason, the Board's telecommunications access guidelines were expressed as a set of performance requirements that detail the operating characteristics and product capabilities necessary for access. The guidelines address products and equipment, including input, output, operating controls and mechanisms, as well as product information and documentation. Access is covered for people with disabilities affecting hearing, vision, movement, manipulation, speech, and interpretation of information. These guidelines are clearly much broader and more comprehensive than anything that exists in Australia.
Background to Section 508
In 1998, the US Congress passed amendments to the Rehabilitation Act that deal with access to programs and services that receive Federal US government funding. Specifically, the amendments strengthen section 508 of the Rehabilitation Act and require access to electronic and information technology provided by the Federal US government. The Access Board is given the responsibility for developing accessibility standards for such technology for incorporation into regulations that govern Federal procurement practices. Thus, the effect of these amendments is that Federal US agencies have to purchase electronic and information technology that is accessible to people with disability, except where it would cause an "undue burden."
The law also provides a complaint process under which complaints concerning access to technology are investigated by the responsible Federal agency.
To enable it to achieve broad stakeholder consultation in the development of the Section 508 guidelines, the Board created the Electronic and Information Technology Access Advisory Committee. The first guidelines were published in December 2000.
Refresh of Sections 255 and 508
By 2006 it was timely for a major review of both Section 255 of the Telecommunications Act and Section 508 of the Rehabilitation Act . For one thing, technology in both telecommunications and electronic information had evolved, and even though Section 255's performance requirements provided some protection against obsolescence, there was a feeling that they needed reviewing. Technologies had also converged to a much greater extent than when both Sections were originally developed, and it was felt that there was scope for harmonising similar provisions in both sections. At the same time, international developments had occurred, with countries such as Japan, Canada and the EU moving in the direction of accessible public procurement, and groups like the Worldwide Web Consortium (W3C) working on updating the Web Content Accessibility Guidelines. Harmonising the US requirements with similar guidelines in other areas would provide greater certainty at the international level.
Establishment of TEItAC
Accordingly, the Access Board established the Telecommunications and Electronic and Information Technology Advisory Committee ("TEITAC") on April 27 2006. Its charter included the following:
"The Committee shall advise the Access Board on issues related to revising and updating accessibility guidelines for telecommunications equipment and customer premises equipment and accessibility standards for electronic and information technology. The Committee shall act solely in an advisory capacity to the Access Board and shall neither exercise any program management responsibility nor make decisions directly affecting the matters on which it provides advice."
It is important to note that this committee is, as its name makes clear, "advisory". Its report and associated recommendations will be considered by the Access Board, but there is no guarantee that any of its recommendations will be accepted or become part of the updated guidelines for Sections 255 and 508. While it is possible to discern general directions, any predictions about the content of the final guidelines are, at this stage, speculative.
The TEITAC Committee was authorised to make recommendations to the Access Board on:
"(a) types of products to be covered;
(b) barriers to the use of such products by persons with disabilities;
(c) solutions to such barriers, if known, and research on such barriers;
(d) harmonization with international standards efforts in this area; and
(e) contents of the revised and updated guidelines and standards."
TEITAC's 41 members were chosen to balance the interests of all stakeholders, and included representatives from industry, government agencies, and the disability sector, in addition to a number of members from other countries. The complete list of members is as follows:
- Adobe Systems, Inc.
- American Association of People with Disabilities
- American Council of the Blind
- American Foundation for the Blind
- AOL, LLC
- Apple, Inc.
- Assistive Technology Industry Association
- Association of Technology Act Programs
- Avaya, Inc.
- Canon USA, Inc.
- Communication Service for the Deaf
- CTIA — The Wireless Association
- Dell, Inc.
- Easter Seals
- European Commission
- Hearing Loss Association of America
- Human Rights and Equal Opportunity Commission (Australia)
- Inclusive Technologies
- Industry Canada
- Information Technology Association of America
- Information Technology Industry Council
- Japanese Standards Association
- Microsoft Corporation
- National Association of State Chief Information Officers
- National Center on Disability and Access to Education
- National Federation of the Blind
- National Network of Disability and Business Technical Assistance Centers
- Panasonic Corporation of North America
- Paralyzed Veterans of America
- SRA International, Inc.
- Sun Microsystems, Inc.
- Telecommunications Industry Association
- The Paciello Group, LLP
- Trace Research and Development Center
- Usability Professionals' Association
- U.S. Department of Homeland Security
- U.S. Social Security Administration
- WGBH National Center for Accessible Media
- World Wide Web Consortium — Web Accessibility Initiative
Work of TEITAC
TEITAC held its first meeting on September 27-29 2006 in Washington. In met regularly from then until the completion of its work in early 2008, and these face-to-face meetings were supplemented by teleconferences, especially towards the conclusion of its activities.
To help expedite the process of refreshing Sections 255 and 508, TEITAC established 8 subcommittees, each dealing with a different aspect of the guidelines. These subcommittees met by teleconference for the most part, supplemented by email discussions and web-based wikis. The subcommittees were:
- Subpart A (Purpose, Application, General Exceptions, Definitions, Equivalent Facilitation)
- Desktops, portables, peripherals, and other computer hardware
- Documentation and technical support (§508 Subpart D)
- Self contained, closed products
- Software, Web and Content;
The subcommittee reports were considered by the TEITAC and integrated into the final report that was presented to the Access Board on April 3 2008.
Although its role was purely advisory, TEITAC's report is likely to be very influential on the deliberations of the Access Board. “We firmly believe that the recommendations of this report will lead to new versions of the standards and guidelines that comprehensively cover accessibility in a dynamic and innovative marketplace,” stated Mike Paciello of the Paciello Group, who co-chaired the committee. Co-chair Jim Tobias of Inclusive Technologies agreed with this assessment, and noted that, “this committee, through the incredible range of expertise and talent it enlisted, indeed rose to the challenge and was not shy in confronting a host of complex issues before it.”
Because the TEITAC report is advisory only, and because the Access Board has yet to finalise its recommendations to Congress about the updates to Sections 255 and 508, it is not possible to provide a definitive assessment of what those updates will contain in their final form. So, any analysis of the TEITAC report in terms of specific provisions is premature. However, it is useful to highlight a few of the more general aspects of the TEITAC report:
First, the report recommends that references to specific product categories be replaced with references to product characteristics. This change reflects the development of products that have multiple functions and avoids, for example, the question of whether an IPhone is a computer, a mobile phone, or a PDA for purposes of application of the guidelines.
Another major change, following on from the above, is that the notion of "telephone systems" is replaced by the concept of "real-time voice conversation functionality". This change is not mere semantics, but is a further acknowledgement of the reality of convergence. Functions traditionally performed by telecommunications hardware are now mediated increasingly by software. From an access perspective, a computer program that provides real-time voice conversation capabilities (such as Skype) should be considered in the same way as a telephone, and should be equally accessible.
As mentioned earlier, one of the reasons for the Refresh of Sections 255 and 508 was the desire for greater international harmonisation of access provisions which, in turn, reflects the contemporary social and economic reality of globalisation. The TEITAC recommendations attempt to harmonise the two Sections with provisions of the Web Content Accessibility Guidelines (WCAG) 2.0, and ISO 9241-171 (which provides ergonomics guidance in the design of accessible software).
One of the goals of the Refresh was to go some way towards "future-proofing" the guidelines by making them technologically neutral. For example, HTMl is no longer the only (or even primary) language used for coding web pages, and the web itself is evolving so rapidly that it is not hard to imagine its replacement with something else in the future. Therefore, the recommendations have tried to use language that is applicable to current and future technologies alike. One example of this is the replacement of the phrase "software, web, and other content" with the more universal phrase "user interface and electronic content".
There has also been a real effort to make compliance the guidelines machine-testable as far as possible. This gives greater certainty to industry and purchasing agencies, and it follows a similar philosophy used in the development of the W3C's Web Content Accessibility Guidelines 2.0. This approach is not without its critics, who point out that some (perhaps many) aspects of access cannot be reduced to quantitative measurements: access is not a matter of numbers any more than people with disability are. The debate continues.
Finally, it is worth noting that the TEITAC recommendations envisage that the updated guidelines will deal with issues of implementation that arise after procurement. This is partly the result of consumer concerns that accessible procurement is a necessary but not a sufficient condition of access. There is little point in procuring accessible products if no provision is made for implementing them within the purchasing agency (for example, by installing accessible software and providing appropriate levels of training to users).
Perspectives on the TEITAC Process
The TEITAC report addresses the issues presented to the Committee, but it does not resolve them all. The process unfolded through consensus, but there are numerous, and in some cases significant, differences between the groups of stakeholders. To take but one example: there was considerable discussion towards the end of e TEITAC's work about whether a piece of technology (such as a computer application) should be treated as accessible if it is possible for adaptive technology to provide access to its features, even if such adaptive technology does not in fact exist at present. The consumer perspective is that having a calculator, or a computer program, that is only accessible in theory, is little better than having no access at all. Employees need technology that they can use now. On the (somewhat) other hand, the industry perspective is that it has no control over what adaptive technology manufacturers and developers choose to support, and it should therefore be sufficient for industry to provide the technical means for achieving access. This is one issue that the Access Board will need to resolve in its analysis of the TEITAC report.
TEITAC, The Future
Completing the Refresh
The Access Board is now in the process of considering the TEITAC report. Quite a few of the Committee members submitted minority reports along with the main TEITAC report. These minority reports do not disendorse the TEITAC's work, but raise various issues that they feel warrant further consideration b the Board (an example is the "accessible in theory versus accessible in practice" issue discussed above). Once the Board as finalised its own report, it will make recommendations to Congress for changes to Section 255 of the Telecommunications Act and Section 508 of the Rehabilitation Act. It is then open to Congress to make further changes before the new Sections are promulgated. This will all take time, so a final version of the guidelines is still some way off. In the meantime, one should be cautious about drawing conclusions about the final wording or content of any of the TEItAC recommendations, notwithstanding that there are some general trends that are unlikely to change significantly (e.g., harmonisation with international standards, technological neutrality).
Implications of the TEITAC Work for Australia
There is increasing lobbying in Australia for the introduction of accessible public procurement policies here.. The recent ratification of the UN Convention on the Rights of Persons with Disabilities, and the current work on developing a new Commonwealth Disability Strategy will give added stimulus to this lobbying. Most recently, a number of submissions to the investigation into access to electronic media being conducted by the Department of Broadband, Communications and the Digital Economy have called for the introduction of accessible procurement as part of a systemic approach to addressing the inaccessibility of key aspects of electronic media.
In the ongoing discussions of public procurement in the Australian context, the TEITAC work, and the final version of the guidelines, will be significant. Once the guidelines have been enacted, they will be studied to see how feasible it would be to adopt them (with appropriate modifications) in Australia. But even if the guidelines themselves are not followed here, they will have a number of indirect consequences for Australia.
Firstly, the harmonisation of the US guidelines with international benchmarks such as WCAG2.0 and ISO9241-171 will give all sets greater credibility. Australia is currently formulating a strategic response to the soon-to-be-finalised WCAG2.0. The fact that these guidelines have informed the TEITAC recommendations will add weight to the arguments in favour of Australia's endorsement of WCAG2.0, even though a number of not insignificant concerns have been expressed by several web accessibility consultants.
A second implication for Australia of the Sections 255 and 508 Refresh is that products developed to comply with them will in many cases find their way into the Australian marketplace. Conversely, Australian manufacturers and developers who wish to bid for US Government contracts will have to comply with the guidelines. In both cases, people with disability in Australia should benefit from a greater range of accessible products.
On the other hand, we need to ensure that non-compliant products are not "dumped" on the Australian market. It may be that there will be a need for greater regulation and standards development in such areas as telecommunications and electronic media to prevent inaccessible products from being imported instead of accessible equivalents.
Many people with disability in Australia feel that Australia has fallen behind countries such as the US, Japan, Canada and the EU in developing legislation and standards aimed at improving access to goods and services. Telecommunications and electronic media (television, online and mobile content, cinema, digital radio, etc.) are becoming mainstays of Australian social, economic and cultural life, and continuing levels of inaccessibility are accentuating a "disability divide" at a time when the number of people with disability is actually increasing. The success of the TEITAC process in bringing stakeholders with a diversity of perspectives together and developing detailed recommendations through consensus should encourage us to pursue similar processes more vigorously in Australia.