Thread Subject: Re: "very readily achievable" ?

Note

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From: Jim Tobias
Date: Tue, Jan 02 2007 10:20 AM

Thanks for all the discussion on this point. I certainly did not intend to
try to create a new legal standard, one which, as Karen says, would in fact
be lower than "readily achievable". I was going after two things:

1. A historical recount that explained the solution that the FCC decided on.
Some people had proposed that accessibility be looked at from a product line
perspective: as long as there was at least one model that met each of the
guidelines, accessibility would be attained. The counter-argument was that
every product needed to meet every guideline, or there would not be enough
consumer choice, and consumers would have to shop based on the features they
needed (the "nib model", the "large LCD model", etc.). It seems to me that
the FCC decision was a compromise: it allowed companies to look at
achievability across products and not force-fit all accessibility features
into every product, but that some features were expected to be universal.

2. An attempt to explain a difference between 255 and 508. One way of
looking at much of 508 is as a list of accessibility features that must be
universally deployed. Certainly 508 is more a list of design criteria,
while 255 is a list of performance criteria. For a telecom system, for
example, 508 requires TTY compatibility, while 255 requires access to
content by people who cannot hear. In our job of reconciling 255 and 508,
it's important to understand this difference.


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From: Karen Peltz Strauss [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Tuesday, January 02, 2007 8:53 AM
To: Pam Ransom; TEITAC Telecommunications Subcommittee
Subject: Re: [teitac-telecom] [teitac-subparta] "very readily achievable" ?


Hi - now it is my turn to apologize for not jumping in sooner to this
discussion. Let me offer a compromise. I believe that it is Jim'g goal to
develop a list of access features that can be universally integrated into
all products of a certain kind (i.e., because a manufacturer can do so
without much difficulty or expense). I do think this would be of great
value. The FCC was in fact trying to make clear that in such instances all
products in a product line must have such features. However, the problem
comes in when we start to suggest that the FCC's created a new standard (the
"very" readily achievable standard) in paragraph 51 . The danger of this is
that the readily achievable standard is already somewhat weaker than the
undue burden standard, and the "very readily achievable" standard would then
seem to take things down a notch further. It would suggest that now only
really, really easy things would need to be added universally, and that the
"readily achievable" standard would no longer apply across product lines.
Since that is not the case, why don't we just agree that it will be
beneficial to identify a list of access features that can be universally
integrated into every similar product - technically, these would simply be
readily achievable access features. In addition, please remember that the
standard under Section 508 is undue burden, so clearly all such features
would fit into the Section 508 requirements as well.

Karen



----- Original Message -----
From: Pam <mailto: = EMAIL ADDRESS REMOVED = > Ransom
To: TEITAC Telecommunications <mailto: = EMAIL ADDRESS REMOVED = >
Subcommittee
Sent: Friday, December 29, 2006 1:41 PM
Subject: Re: [teitac-telecom] [teitac-subparta] "very readily achievable" ?

As a consumer, whenever its readily achievable to put an access feature(s)
in a product, I'd want ALL of those readily achievable feature(s) in that
product. (Not just the ones that are "very readily achievable".)

One could argue that if an access solution is "very readily achievable" to
incorporate into the product, then the manufacturer should already be doing
it under its "readily achievable" requirement.

I'd suggest that we not begin to go down the path of parsing out what are
"very readily achievable" access solutions and what are not "very readily
achievable" access solutions. Because this opens up another can of worms in
Narrative Paragraphs 57 and 58 - which states that for "more significant
readily achievable accessibility features" manufacturers and service
providers can use the "cumulative cost" of what they've spent on all
accessibility actions over the period of a fiscal year as a defense for not
incorporating a "more significant readily achievable access feature" into a
product.

I don't think that going in this "very readily achievable" direction is
going to result in consumers getting "more substantive" access features in
products. I'll just leave it at that... And it may be that we just
disagree on this point... Hope that you have a Happy New Year! Pam








It may be that we just don't agree on this point...

----- Original Message -----
From: Jim <mailto: = EMAIL ADDRESS REMOVED = > Tobias
To: 'Pam Ransom' <mailto: = EMAIL ADDRESS REMOVED = > ; 'TEITAC
Telecommunications <mailto: = EMAIL ADDRESS REMOVED = > Subcommittee'
Sent: Thursday, December 28, 2006 10:37 PM
Subject: Re: [teitac-telecom] [teitac-subparta] "very readily achievable" ?

I'm sorry if I have been the cause of confusion on this point. But it's
clear from Paragraph 51 that the FCC intended to create a class of features
that were to be found on every product. No other reading of this paragraph
makes sense to me, anyway. Whether or not this part of the order creates a
new regulatory standard is beyond my acumen. But it is a clear distinction,
isn't it -- *every* similar product must have the feature, and manufacturers
cannot refer potential customers to the feature available on another
product in the same line. The problem is, the FCC let manufacturers
determine which features were very readibly achievable (VRA), and which were
only readily achievable (RA), and did not require them to inform customers
which class they assigned a feature to. So a nib on the '5' key could be
VRA, or just coincidentally RA for every product.

My larger point is that we are under no such restriction. We could, I
believe, identify a list of VRA features, and recommend that the list be
part of the refreshed regulations.


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From: Pam Ransom [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Thursday, December 28, 2006 4:41 PM
To: TEITAC Telecommunications Subcommittee
Subject: Re: [teitac-telecom] [teitac-subparta] "very readily achievable" ?


I just read the string of emails below...The legal standard that is used in
Section 255 of the Telecom Act and the thus the standard used by the FCC is
"readily achievable". This standard can only be changed by Congress.

Below you have quoted Paragraph 51 of the narrative section of the FCC
Report and Order. The FCC, uses the narrative to further explain its Rules.
The FCC, in Paragraph 51 is referring to those access solutions that are
"readily achievable" (readily achievable means easily accomplishable without
much difficulty or expense). The FCC is not referring to a new category
(very readily achievable) of access solutions.

In Narrative Paragraph 51 the FCC is saying that, accessibility features
that can be incorporated into the design of different products with very
little or no difficulty or expense (aka "readily achievable") must be
deployed universally into those different products.

Pam Ransom




----- Original Message -----
From: Jim <mailto: = EMAIL ADDRESS REMOVED = > Tobias
To: 'TEITAC Subpart A <mailto: = EMAIL ADDRESS REMOVED = >
Subcommittee' ; 'TEITAC <mailto: = EMAIL ADDRESS REMOVED = >
Telecommunications Subcommittee'
Cc: 'Jasionowski, Tony' <mailto: = EMAIL ADDRESS REMOVED = >
Sent: Friday, December 22, 2006 3:14 PM
Subject: Re: [teitac-telecom] [teitac-subparta] "very readily achievable" ?

Here's the citation, paragraph 51 of the Sec. 255 Report and Order:

"

51. We recognize that there are accessibility features that can be
incorporated into the design

of products with very little or no difficulty or expense.139 These features
must be deployed

universally. We will not identify specific features that fall into this
category, because it necessarily

varies given the individual circumstances. Manufacturers and service
providers must make their

own determinations based on the factors in the readily achievable
definition. Thus, manufacturers

and service providers cannot decline to incorporate modest features that
will enhance accessibility

simply because some other product or service with the feature may be
available. We expect that,

over time, more and more features will be incorporated into all products in
this manner, and that

features that today may not be readily achievable soon will become routine
and universally

adopted.


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From: Schomburg, Paul [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Friday, December 22, 2006 3:23 PM
To: = EMAIL ADDRESS REMOVED =
Cc: Jasionowski, Tony; Schomburg, Paul
Subject: [teitac-subparta] "very readily achievable" ?



Jim: I've never heard of "very readily achievable" in FCC rules. Can you
provide a citation?



I think the FCC's definition of "readily achievable" already captures what
is easy to do for every product but also allows for other factors to be
taken into account. This flexibility allows manufacturers to provide
products with a range of accessibility features - not one size fits all -
and thus allows them to product products with a range of features to compete
in the market.



For example, the FCC determined, based on the Access Board recommendations,
that "that a manufacturer or service provider is not required to install an
accessibility feature if it can demonstrate that the feature fundamentally
would alter the product." The FCC also found that "that the concept of
fundamental alteration is implicit in the readily achievable analysis" and
thus did not require a separate factor. See discussion in FCC 99-181
paragraphs 61-64.



With regard to 508, the FCC R&O also notes: "The Access Board found that the
"fundamental alteration" concept derives from the "undue burden" test under
the ADA and, since "undue burden" is a higher standard than "readily
achievable," that the concept of fundamental alteration is implicit in the
readily achievable analysis." Therefore this same consideration should be
part of the 508 guidelines.



For these reasons, a list of "mandatory" features that should be in every
product seems to be outside of the intent and statutory limits of 255. For
508, agencies should have some flexibility to determine what features are
mandatory - balanced against their needs and other compliance requirements -
thus it seems unnecessary for this to be defined by the Access Board.



Best regards, Paul



Paul G. Schomburg, Sr. Manager

Panasonic Corporation of North America

Government & Public Affairs
1130 Connecticut Avenue, N.W., Suite 1100
Washington, DC 20036
Tel: (202) 912-3800 x114; Fax: (202) 912-3810



-----Original Message-----

From: Jim Tobias [mailto: = EMAIL ADDRESS REMOVED = ]

Sent: Friday, December 22, 2006 12:10 PM

To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'

Subject: RE: [teitac-subparta] Draft Questions







Here again a bit of market wisdom would be useful....



In the FCC's 255 rules, they put forward the concept of "very readily

achievable". This was to be applied to features that were so easy to do

that they should be found in every product, and that was their intent. (I

guess the 508 formulation would be "totally due burden".)



I think we could agree to such a list. It might not go very deeply into the

web/software space, but it could certainly cover almost all hardware

questions, and most telecom ones. Is it worth it? (By the way, the FCC

never went ahead and identified their list, nor did they, to my knowledge,

encourage anyone else to do so.)



Secondly, a compendium of recent E&IT purchases, or some other way of

sharing market information could reveal what is really available so widely

that no exceptions are necessary. An unwieldy version of this would sound

like "an accessibility feature found on 75% of the federal purchases in this

product category in the past 12 months is considered mandatory." A real

implementation nightmare, I know. I'm just being conceptual here.



But the underlying concern I have is trying to create reasonably

"prioritized" regulations without any good sense of current trends in E&IT

purchases; similarly, we lack good economic tools to define our costs and

benefits....









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