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Telecommunications equipment and the Disability Discrimination Act

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 color perception. Provide at least one
mode that does not require user color 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)).