Telecommunications equipment and the Disability Discrimination Act

This note was written in response to a request, at an ACIF (Australian Telecommunications Industry Forum) meeting, for clarification of rights and responsibilities under the Disability Discrimination Act regarding provision of equipment which is accessible to and useable by people with disabilities.

The relevant provisions of the Disability Discrimination Act are section 24, which makes unlawful discrimination in provision of goods or services; and section 6, which includes indirect discrimination in the definition of discrimination for this purpose (so that providing the same service to everyone can still involve discrimination if there are unreasonable barriers to access for people with disabilities). These provisions are set out in full at the end of this advice.

The Disability Discrimination Act does not spell out in any detail what the basic requirement of non discrimination means in this area, and how it should be complied with.

Guidance on the effect of the Disability Discrimination Act may assist government, industry, consumers and others in considering what further development of codes or standards under other laws may be appropriate, and in developing the terms of these.

The Human Rights and Equal Opportunity Commission's views of the relevant effect of these provisions, stated briefly, are as follows.

A. Provision of equipment as part of or in association with telecommunications service

1. Telecommunications service providers who provide customer equipment as part of or in association with their service (whether directly or through agents, partners, franchisees etc) are obliged to provide equipment which is accessible to and useable by people with disabilities - other than in cases where it can be demonstrated that this would involve unjustifiable hardship. This obligation was examined at length in the Commission's decisions in Scott v Telstra: available on line at http://scaleplus.law.gov.au/html/ddadec/0/95/0/DD000060.htm .

2. The Disability Discrimination Act requires accessibility of the services a service provider is in the business of providing, rather than requiring provision of new or different services which might better suit the needs of a customer with a disability. But, as found in the Scott v Telstra case, the particular equipment a service provider currently provides does not conclusively define the service for this purpose. In that case Telstra was held to be required to provide a TTY where required in place of its standard handset.

3. This obligation to provide accessible equipment is not restricted, in its terms or effect, to services presently comprised within the scope of the Standard Telephone Service and Universal Service Obligation provisions of the Telecommunications Act, or the specific provisions of that Act regarding disability access.

4. In particular, obligations under the Disability Discrimination Act include equipment provided in conjunction with mobile services as well as fixed line services. Mobile services were examined in some detail in the Commission's inquiry regarding access to mobile phone services by hearing aid users: see http://www.humanrights.gov.au/disability_rights/inquiries/MP_index/mp_i… .

5. The obligation to make equipment accessible and useable includes ensuring that equipment is directly useable, so far as this can be achieved without unjustifiable hardship. If and to the extent that the equipment does not directly achieve accessible service, the DDA also requires ensuring compatibility with assistive devices used by people with disabilities to achieve access (again subject to the unjustifiable hardship limitation).

6. Accessibility obligations might in principle be met either by ensuring that all equipment provided as part of or in association with the service is accessible (so far as is possible without unjustifiable hardship); or by ensuring access to specialised equipment as required, or by a combination of these approaches.

7. To the extent that a specialised equipment approach is relied on (i.e. to the extent that disability access requirements are not met instead by a universal design approach to all equipment), service providers will need to take particular care to avoid discrimination by ensuring that people with disabilities have access to the same choices of services, and at the same prices, as other users; and also to ensure that discrimination does not occur in practice through people with disabilities not having effective access to accurate information on services or equipment available which would provide accessible service.

8. These considerations, and possible difficulties in designing and administering eligibility criteria for a specialised equipment program to meet all disability needs (including that many people who develop disabilities associated with aging may not identify themselves as being a person with a disability), indicate that in order to minimize the risk of providers incurring liability for discrimination, and users lacking access to equally effective service, universal design approaches should be implemented as widely as possible.

9. This is not to deny that there may be design or technical constraints which prevent some products from fulfilling every disability requirement in the one piece of equipment. An adjustment might be not achievable at all, technically or economically; or it might be justifiable only to require its availability as a specialised or additional option rather than as a universal design requirement.

10. In support of a universal design approach being applied as far as possible, it is relevant to note that accessibility obligations extend to situations where the person with the disability is not the direct subscriber but is another household or family member. Section 24 applies to services provided whether for payment or not and thus does not appear limited by concepts of privity of contract. It also applies to discrimination on grounds of the disability of a person's associates (such as family members) as well as on grounds of a person's own disability.

11. An additional consideration arising from the Disability Discrimination Act in favour of implementation of universal design as far as possible is that this may assist in reducing the risk of discrimination occurring through parties such as employers having installed inaccessible equipment, and the possibility of the telecommunications provider concerned being held liable for causing the discrimination - as is provided for by section 122 of the Disability Discrimination Act.

12. In determining what accessibility requirements should be met to comply with the Disability Discrimination Act, regard is required to be had to applicable standards under the Telecommunications Act. This does not amount however to displacement of the application of the Disability Discrimination Act in its own terms, particularly on any issue where the Telecommunications Act regime fails to specify what a required level of accessibility would be.

13. Pending development of voluntary or regulatory standards in Australia, overseas materials are relevant in determining the content of accessibility required by the Disability Discrimination Act.

14. The rules adopted by the United States Federal Communications Commission under section 255 of that country's Telecommunications Act (available online at http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1999/fcc99181.txt) define accessibility as follows:

6.3 Definitions

(a) The term accessible shall mean that:

1) Input, control, and mechanical functions shall be locatable, identifiable, and operable in accordance with each of the following, assessed independently:

(i) Operable without vision. Provide at least one mode that does not require user vision.

(ii) Operable with low vision and limited or no hearing. Provide at least one mode that permits operation by users with visual acuity between 20/70 and 20/200, without relying on audio output.

(iii) Operable with little or no colour perception. Provide at least one mode that does not require user colour perception.

(iv) Operable without hearing. Provide at least one mode that does not require user auditory perception.

(v) Operable with limited manual dexterity. Provide at least one mode that does not require user fine motor control or simultaneous actions.

(vi) Operable with limited reach and strength. Provide at least one mode that is operable with user limited reach and strength.

(vii) Operable with a Prosthetic Device. Controls shall be operable without requiring body contact or close body proximity.

(viii) Operable without time-dependent controls. Provide at least one mode that does not require a response time or allows response time to be by-passed or adjusted by the user over a wide range.

(ix) Operable without speech. Provide at least one mode that does not require user speech.

(x) Operable with limited cognitive skills. Provide at least one mode that minimizes the cognitive, memory, language, and learning skills required of the user.

(2) All information necessary to operate and use the product, including but not limited to, text, static or dynamic images, icons, labels, sounds, or incidental operating cues, comply with each of the following, assessed independently:

(i) Availability of visual information. Provide visual information through at least one mode in auditory form.

(ii) Availability of visual information for low vision users. Provide visual information through at least one mode to users with visual acuity between 20/70 and 20/200 without relying on audio.

(iii) Access to moving text. Provide moving text in at least one static presentation mode at the option of the user.

(iv) Availability of auditory information. Provide auditory information through at least one mode in visual form and, where appropriate, in tactile form.

(v) Availability of auditory information for people who are hard of hearing. Provide audio or acoustic information, including any auditory feedback tones that are important for the use of the product, through at least one mode in enhanced auditory fashion (i.e., increased amplification, increased signal-to-noise ratio, or combination).

(vi) Prevention of visually-induced seizures. Visual displays and indicators shall minimize visual flicker that might induce seizures in people with photosensitive epilepsy.

(vii) Availability of audio cutoff. Where a product delivers audio output through an external speaker, provide an industry standard connector for

headphones or personal listening devices (e.g., phone-like handset or earcup) which cuts off the speaker(s) when used.

(viii) Non-interference with hearing technologies. Reduce interference to hearing technologies (including hearing aids, cochlear implants, and assistive listening devices) to the lowest possible level that allows a user to utilize the product.

(ix) Hearing aid coupling. Where a product delivers output by an audio transducer which is normally held up to the ear, provide a means for effective wireless coupling to hearing aids.

15. These standards are required to be met unless this is not "readily achievable", in which case equipment is required to be compatible with existing assistive devices commonly used by people with disabilities if this is readily achievable. Compatibility is defined as follows:

(b) The term compatibility shall mean compatible with peripheral devices and specialized customer premises equipment commonly used by individuals with disabilities to achieve accessibility to telecommunications services, and in compliance with the following provisions, as applicable:

(1) External electronic access to all information and control mechanisms. Information needed for the operation of products (including output, alerts, icons, on-line help, and documentation) shall be available in a standard electronic text format on a cross-industry standard port and all input to and control of a product shall allow for real time operation by electronic text input into a cross-industry standard external port and in cross-industry standard format. The cross-industry standard port shall not require manipulation of a connector by the user.

(2) Connection point for external audio processing devices. Products providing auditory output shall provide the auditory signal at a standard signal level through an industry standard connector.

(3) TTY connectability. Products which provide a function allowing voice communication and which do not themselves provide a TTY functionality shall provide a standard non-acoustic connection point for TTYs. It shall also be possible for the user to easily turn any microphone on and off to allow the user to intermix speech with TTY use.

(4) TTY signal compatibility. Products, including those providing voice communication functionality, shall support use of all cross-manufacturer non-proprietary standard signals used by TTYs.

16. In addition to these provisions, required accessibility under the Federal Communications Commission rules also includes accessibility of information provided with or regarding the service or equipment.

B: Equipment not provided as part of a service

17. The Disability Discrimination Act applies to discrimination regarding provision of goods as well as services.

18. As discussed above, subject to possible limitations by reference to unjustifiable hardship, the Disability Discrimination Act clearly requires telecommunications equipment to be accessible where it is "bundled" with provision of a telecommunications service. The position under the Disability Discrimination Act is less clear regarding sale of telecommunications equipment separately rather than as part of provision of a service.

19. The Disability Discrimination Act does not require provision of different goods than those a provider is in the business of supplying, simply because the goods currently provided are not useful to people with a particular disability, any more than it requires a provider to supply a service which is a different service from that which it is in the business of providing. For example, a Deaf person could not expect to complain successfully of the inaccessibility of the music output of a CD player, any more than a railway is required to provide door to door taxi service for people who cannot travel the distance to stations because of disability.

20. However, it is possible that at least some barriers to access which might be thought to be part of the goods or equipment may be found instead to be incidental conditions or requirements for access or use of the equipment, and thus be capable of being found to involve unlawful discrimination.

21. As in the area of service provision, the distinction between

features of the goods or items of equipment themselves (not covered by the Disability Discrimination Act) and
conditions or requirements for their use or access (covered by the Disability Discrimination Act)

would need to be determined on the facts of each case.

22. Given the apparently increasing capacity of digital technologies to offer input and output in a range of formats, it appears that in the telecommunications area, compared to other areas, fewer barriers to access might be necessarily accepted as essential features of the equipment or facilities concerned (so as to be immune from scrutiny for their discriminatory effect and their reasonableness), rather than being regarded as incidental conditions or requirements.

23. The uncertainty of the position in this area, and the possibility of different requirements applying to telecommunications equipment according to who supplies it, may be seen as reasons to develop consistent standards (whether on an industry or regulatory basis) rather than awaiting the outcome of possible complaint processes under the Disability Discrimination Act.

C: Service providers who do not provide any customer equipment

24. A provider of telecommunications services which does not provide, directly or indirectly, any customer equipment as part of or in conjunction with its service, would not appear to have any obligation under the Disability Discrimination Act to provide accessible equipment.

25. A "bundled" or comprehensive service provider, such a Telstra was found to be in Scott v Telstra, is in effect imposing a condition or requirement of being able to use the equipment it provides - which involves discrimination if that equipment is not accessible. A service provider who provides no customer equipment to anyone clearly cannot be said to be imposing any such condition or requirement.

26. The coverage in this respect by the Disability Discrimination Act of some telecommunications service providers but not others may well indicate a need for industry based or regulatory programs to address possible resulting gaps in effective consumer choice, at least so long as and to the extent that standard products in the telecommunications equipment market do not incorporate universal design features.

Consultation, accessibility information and monitoring

27. The ACIF meeting had before it a paper from ACE (Australian Communications Exchange) recommending a process whereby new product and service offerings would be subject to a Telecommunications Community Impact Statement to be lodged with the Australian Communications Authority.

28. Unlike the United States Federal Communications Commission Rules, the Disability Discrimination Act does not directly impose any particular procedural steps on providers making new services or equipment available so as to ensure in advance the accessibility of that equipment.

29. However, processes for providers to adopt in ensuring their own compliance may assist in removing or avoiding barriers to access, and make it more likely that providers will receive information on access concerns as useable input in the development of products and services rather than only as subsequent DDA complaints.

30. If complaints do arise, the nature of any consultation undertaken and expert advice received on access issues in developing a product or service could be relevant considerations in determining whether an adjustment to the service or product would impose unjustifiable hardship.

31. It would also be possible for a process such as this to be given stronger recognition for the purposes of the Disability Discrimination Act, through HREOC's power to grant exemptions for up to five years at a time. Obviously no particular exercise of this power can be guaranteed in advance, but as a matter of policy HREOC is prepared to use the exemption power where this can be shown to advance achievement of the objects of the Disability Discrimination Act.

32. HREOC therefore encourages further consideration of the possibilities raised by ACE's proposal.

David Mason

Director Disability Rights policy, HREOC

August 2001

Appendix: Text of relevant legislative provisions

Disability Discrimination Act

6 Indirect disability discrimination

For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

24 Goods, services and facilities

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

U.S. Telecommunications Act

The U.S. Telecommunications Act requires that:

" a manufacturer of telecommunications equipment or customer premises equipment (CPE) must ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if this is "readily achievable" (section 255(b));

" a provider of telecommunications service must ensure that the service is accessible to and usable by individuals with disabilities, if this is readily achievable (section 255(c));

if accessibility is not readily achievable, the manufacturer or telecommunications provider must ensure that the equipment or service is compatible with existing peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve access, if this is readily achievable (section 255(d)).