Generally, the ADA Accessibility Guidelines (ADAAG) (sections 217 and 704) provide scoping and access standards for public telephones (i.e., coin-operated and coinless public pay telephones, public closed-circuit and courtesy phones). These guidelines generally require the provision of TTYs. As described further below, more advanced technologies exist which can provide greater access. The NAD advocates for the provision of public telephones that can deliver digital voice, text, and video communications over the Internet to meet the needs of any user. The ADAAG does not address the common provision of telephone equipment by public accommodations for use by their customers, clients, patients, or participants, such as hotel and motel guests, hospital patients, and others.
In 2008, the U.S. Department of Justice proposed new rules for Title III of the Americans with Disabilities Act (ADA), which apply to public accommodations (business and commercial entities). The Department proposed the following rule about opportunities for people to make outgoing telephone calls:
28 C.F.R. § 36.303(d)(1)(ii): A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, public telephones equipped with volume control mechanisms, hearing aid compatible telephones, or text telephones (TTYs) for the use of an individual who is deaf or hard of hearing, or has a speech impairment.
On August 18, 2008, the NAD filed this response:
The past decade has seen a considerable migration away from TTYs by individuals who are deaf or hard of hearing, in favor of more advanced telecommunica¬tions technologies that provide multiple voice, text, and video functions, take advantage of digital technologies, and often utilize Internet-based technologies. The proposed regulation omits videophones, captioned telephones, instant messaging, and other technologies in regular use by people who are deaf or hard of hearing to place TRS (“relay”) calls. Individuals who are deaf or hard of hearing are increasingly using videophones and other equipment as their principal means of making relay calls.
Today, video communication – both direct “point-to-point” calls and calls made to telephone users through video relay service (VRS) – has surpassed text-based communication services as the preferred, regular, daily communication method for individuals who use and rely on American Sign Language (ASL). This is because the ability to communicate in ASL via video – either directly or through VRS – enables people who use ASL to converse comfortably and naturally, using emotional context and other non-verbal information that can not be conveyed through text. Video communication also enables ASL users to participate in conference calls and access interactive voice response systems that employ menu prompts because the communications assistant interprets the communication in real-time and virtually at the same speed as voice communication. Put simply, this form of telephone communication allows ASL users to finally have natural, real-time conversations with one another and with telephone users that mirror the speed and style of voice-to-voice conversations. In fact, for individuals who communicate primarily in ASL, access to a videophone may be the only way they can communicate effectively with a person who uses a telephone.
The popularity of video communication among individuals who use ASL is reflected in the skyrocketing use of VRS. Every month, millions of minutes are processed by the VRS industry. In contrast, the use of TTY relay services has dropped approximately 50% in the last few years. Similarly, the use of “point-to-point” video services, which allow individuals who are deaf and hard of hearing to communicate directly with each other over the Internet, has become a routine and daily form of communication for people who use ASL – much the same as hearing people call each other using voice telephones. Clearly, ASL users have stopped using TTYs over the public switched telephone network (except when necessary) and use VRS or direct video communication whenever given the opportunity and access to do so.
The Department should encourage places of public accommodation to provide these and other new technologies to enable individuals who are deaf or hard of hearing to place outgoing calls. To this end, the Department should add a sentence encouraging places of public accommodation to provide “voice, text, and video-based telecommunica¬tions products and systems, such as videophones and captioned telephones.” Updating the regulation in this manner would fulfill Congress’ intent that the ADA “keep pace with the rapidly changing times.” (1)
The NAD objects to the addition and use of the term “public” telephones in the proposed regulation. Generally, the ADAAG (sections 217 and 704) provides scoping and access standards for public telephones (i.e., coin-operated and coinless public pay telephones, public closed-circuit and courtesy phones). The ADAAG does not address the common provision of telecommunications equipment by public accommodations for its customers, clients, patients, or participants, such as hotel and motel guests, hospital patients, and others. The inclusion of the term “public” would, in this instance, appear to significantly narrow the scope of a public accommodation’s obligation to provide any telecommunications access for people with disabilities other than that which is currently covered by the ADAAG under its “public” telephone provisions. Such could not have been intended by the Department. Deletion of the word “public” would retain the intent and application of the current regulation to include offers to make outgoing calls through the use of “public” and “non-public” telephones, such as found in hotel, motel, and hospital rooms.
This proposed new rule also appears to be an attempt to update the Department’s existing rule by adding “public telephones equipped with volume control mechanisms, hearing aid compatible telephones” to the existing regulation. This section is problematic.
Under the Hearing Aid Compatibility Act of 1988, all wireline and cordless telephones, and most wireless telephones imported into or manufactured in the United States since August 1989 have had to be both hearing aid compatible (HAC) and equipped with volume control. (2) Indeed, the requirement for “public” coin phones to have these accessibility features actually dates back even further, to FCC rules issued in 1983, which implemented the Telecommunications for the Disabled Act of 1982. (3) Thus, a rule that says that public accommodations need to have phones that are equipped with volume control and HAC is senseless, because nearly all phones in America (with exceptions only for HAC on certain wireless phones) have such capabilities.
In light of the above comments, the Department should revise the proposed regulations as follows:
28 C.F.R. § 36.303(d)(1)(ii): A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, [REMOVE] public telephones equipped with volume control mechanisms, hearing aid compatible telephones, or [END REMOVE] text telephones (TTYs), [INSERT] and other voice, text, and video-based telecommunications products and systems, such as videophones and captioned telephones [END INSERT] for the use of an individual who is deaf or hard of hearing, or has a speech impairment.
The NAD also recommended that the Department issue a similar new rule for Title II of the Americans with Disabilities Act (ADA), which apply to state and local governments to address opportunities for people to make outgoing telephone calls:
The NAD recommends that the Department consider adding a provision in the Title II regulations that mirrors the Title III provision related to offering the opportunity to make outgoing telephone calls on more than an incidental convenience basis. Public entities, such as hospitals and other health care facilities, educational institutions, temporary lodging facilities, and detention facilities, routinely provide the opportunity for individuals to make telephone calls. Unfortunately, an equal opportunity to make outgoing calls is not always provided individuals who are deaf or hard of hearing. Inclusion of a new provision in this section, which would mirror a similar provision in Title III, would make this obligation clearer to public entities. As such, the NAD recommends the following addition:
28 C.F.R. § 35.161(d): A public entity that offers an applicant, participant, or member of the public the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, text telephones (TTYs), and other voice, text, and video-based telecommunications products and systems, such as videophones and captioned telephones for the use of an individual who is deaf or hard of hearing, or has a speech impairment.
(1) H.R. Rep. No. 101-485, pt. 2, at 108.
(2) 47 U.S.C. §610. FCC implementing regulations are found at 47 C.F.R. Part 68. See also Access to Telecommunications Equipment and Services by Persons with Disabilities, Report and Order, CC Dkt. 87-124, FCC 96-285, 11 FCC Rcd 8249 (July 3, 1996).
(3) 47 U.S.C. §610, Access to Telecommunications Equipment by the Hearing Impaired and other Disabled Persons, Report and Order, CC Dkt. 83-427, FCC 83-565, 55 RR 2d 531 (December 23, 1983), creating a requirement for coin phones to be HAC in 47 C.F.R. §68.112.