The National Association of the Deaf (NAD) testified today at the Department of Justice's hearing on ANPRMs on Accessibility of Web Information and Services Provided by Entities Covered by the ADA presented by Shane H. Feldman, Chief Operating Officer; Accessibility of Next Generation 9-1-1 presented by Debra J. Patkin, Staff Attorney; and Movie Captioning and Video Description presented by Suzy Rosen Singleton, NAD volunteer advocate. The NAD will provide written comments on Equipment and Furniture. The transcript of their testimonies are provided below.
COMMENTS OF THE NATIONAL ASSOCIATION OF THE DEAF REGARDING ACCESSIBILITY OF WEB INFORMATION AND SERVICES
Good afternoon. My name is Shane H. Feldman. I am the Chief Operating Officer of the National Association of the Deaf. My testimony today is about the ANPRM on Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.
More and more business and government activities are conducted through the Web. More importantly, the Web is often the only option for obtaining certain information, goods, and services. The Internet is already an indispensable part of all aspects of our lives: from providing health care information, education, and shopping opportunities; to renewing one’s driver’s license, registering to vote, and researching online libraries. The Web provides people with the ability to receive educational services, apply for employment, and engage in civic participation – but only if the information, communication, and services provided through the Web are accessible. It is essential that we ensure Web accessibility for people with disabilities – including people who are deaf or hard of hearing – and we must do this now.
No longer is the Internet made up of static websites with visual information only. Today’s websites provide information audibly and visually. The use of audiovisual material on websites has also become commonplace. For example, websites that provide education services, both private and public, and for people of all ages, typically includes videos. The entertainment industry has also turned increasingly to streaming videos. Health information websites have audio and video material discussing various health ailments and conditions.
Most of the audio and audiovisual material that exists on the Web today is not accessible to people who are deaf or hard of hearing. To make it accessible, transcripts of audio material must be provided, and captions must be provided for audiovisual material. Our experience leads us to an unavoidable conclusion that accessibility must be mandated and enforced, or it does not happen. This is particularly true for entities engaged in commerce and providing covered services, or “public accommodations.” If we do not require accessibility, the deaf and hard of hearing community gets left behind, often for generations of time. We do not want to see this history repeated.
As an initial matter, the NAD strongly encourages the DOJ to explicitly and unequivocally state that a “place” of public accommodation does not require a physical presence, location, or facility where the public can physically go to receive information, goods, or services. The Web has made it possible for public accommodations to engage in commerce and provide covered services without these things. These public accommodations are businesses – legal “persons” – that exist in the legal and physical world, engage in commerce, and provide covered services. They must be covered, or people with disabilities will be excluded and denied equal opportunities, just as if we had shut and locked the doors.
If an entity is covered when it engages in commerce and provides a covered service at a physical location or facility, an entity must be covered when it engages in commerce and provides a covered service on the Web. “Cyberspace” is a “place” where public accommodations engage in commerce and provide covered services. The ADA must cover services that public accommodations provide physically or virtually, exclusively, or in some combination.
Websites, information, communication, services, programs and activities of government entities and public accommodations must be accessible. This includes entities such as Netflix that provides entertainment service; Kaplan and Phoenix universities that provide educational services; and Zappos.com that provides retail services.
The accessibility requirements of the ADA, with respect to captioning or other “auxiliary aids and services,” must be met unless it results in an undue burden or fundamental alteration. In this respect, the Department should clarify that converting audio information to a visual format, such as transcripts of audio material and captions for audiovisual material, does not result in a fundamental alternation.
The NAD urges that the standards adopted by the Department ensure individuals who are deaf and hard of hearing have visual access to any and all aurally delivered materials on the Web that is provided by a covered entity. Such standards must allow for flexibility to adapt to new technologies and systems, yet provide functional performance objectives that must be met to ensure accessibility for individuals with disabilities. Such standards, the NAD urges, must provide access to all forms of Web-based content, including, but not limited to, webinars, online tutorials, videoclips, online courses, and original Web-based entertainment such as “webisodes.” Both pre-recorded and live audio material must be included.
Although a phase-in period may be appropriate for other types of regulations such as ADA construction standards, it does not make sense in the context of Web design. Accessibility can often be achieved without any significant delay or expense. Thus, a two-year waiting period following publication of the final regulations, especially in light of the publicity this matter will receive through the ANPRM and NPRM processes, is simply unwarranted.
Thank you for this opportunity to present these comments to you today. This concludes my testimony. We will provide further written comments in January.
COMMENTS OF THE NATIONAL ASSOCIATION OF THE DEAF REGARDING ACCESSIBILITY OF NEXT GENERATION 9-1-1
Good afternoon. My name is Debra Patkin. I am a staff attorney at the National Association of the Deaf. My testimony today focuses on Next Generation 911 (NG911). NG911 has the potential, when implemented, to improve access to emergency services for the nation, and particularly for the deaf and hard of hearing community.
The Americans with Disabilities Act (ADA) improved access to 911 emergency services in two ways:
A lot has changed since 1990. Among other things, telephone communication has been revolutionized by mobile, cellular, wireless, and Internet technologies. Relay services have also been revolutionized by Internet, video, and captioning technologies. With each of these technological advances, efforts have been made to ensure that people who use these new telephone and new relay service technologies can connect to 911 emergency call centers.
At the same time, these technological advances have lead to the decline in the use of the TTY.
We must recognize and acknowledge that, with all of these technological advances and 20 years after the ADA became law, the TTY is still the only means of direct communication between people who do not communicate by telephone and 911 emergency call centers.
We must also recognize and acknowledge that TTYs are not mobile devices. People cannot carry their TTYs around in their pockets and use them like they do with their cell phones or smart phones.
There are countless stories of deaf and hard of hearing individuals who, despite having the most current mobile technology, are unable to reach and communicate directly with a 911 emergency call center from anyplace other than their home – and only if they still have and use a home telephone service and a TTY.
In the absence of the ability to communicate directly with 911 emergency call centers, deaf and hard of hearing people must have access to and rely on relay services and a communications assistant. We do that today.
We want to communicate directly with 911 emergency call centers, from anywhere and at any time – just like people who use telephones, cell phones, and smart phones. We believe that NG911 holds the promise of direct communication because it will enable direct communication, using Internet-based technologies, by people who communicate by voice, text, and video.
NG911 is capable of enabling the exchange of text and video, in real time, between anyone (deaf or hearing) and a 911 emergency call center. To enable directing text or video communication to the appropriate 911 emergency call center, we are confident that current GPS or other automatic location identification systems can be integrated into text and video communications systems. We are equally confident that NG911 is capable of enabling a 911 emergency call center to connect a video call with a qualified sign language or other language interpreter, also by video, to assist on the video call when necessary.
The Federal Communications Commission (FCC), along with other federal agencies and industry, have been exploring and planning for the transition to NG911 for some time now. These plans, as required by earlier law, must consider the needs of people with disabilities. In addition, the FCC recently established an Emergency Access Advisory Council in compliance with the recently passed Twenty-first Century Communications and Video Accessibility Act which will explore this further and make additional recommendations.
These efforts, along with the comments the Department receives in response to this ANPRM, will be an invaluable asset as the Department moves forward with the regulatory process to ensure equal access to 911 emergency call center services by everyone, including people who are deaf or hard of hearing.
In the interim, we urge the Department to require the provision of accessible direct communications with 911 emergency call centers that are available today. For example, serious consideration should be given to enable deaf and hard of hearing individuals to communicate directly with 911 emergency call centers via SMS or other available and commonly used mobile text communications technologies. To direct text communication to the appropriate 911 emergency call center, current GPS or other automatic location identification systems can be integrated into text communications systems. Alternatively, or in the interim, a national text communication center can facilitate location identification, text message routing and connection, and communication, when necessary.
Thank you for the opportunity to present this testimony today. We will provide further written comments in January.
COMMENTS OF THE NATIONAL ASSOCIATION OF THE DEAF REGARDING MOVIE THEATER CAPTIONING
Greetings. My name is Suzy Rosen Singleton and I’m here on behalf of the National Association of the Deaf (NAD) regarding its position on movie theater captioning. The NAD commends the Department for its efforts to modify its regulations in light of modern technology. The NAD respectfully requests that the Department requires movie theaters to provide and display captions for 100% of the movies shown in 100% of the auditoriums in their facilities. The Department’s proposal to require only 50% of movies or 50% of movie theater auditoriums to be equipped to display captions in 5 years, is unacceptable. This limitation would effectively legalize discrimination against people who are deaf or hard of hearing.
Just like everyone else, we want to be able to attend any showing of any movie in any theater at any time, to sit anywhere in the movie theater with our family and friends, and to have equal access to the movie soundtrack through high quality captioning that is consistently reliable. We believe theaters have had ample of time to comply with the ADA. The ADA is clear that captioning must be provided unless it is an “undue burden” which means a “significant difficulty or expense.” A movie theater that can demonstrate that providing captions is an undue burden is excused by the law. The Department should not provide an exemption that Congress did not intend.
Legislative history that says movie theaters are not required to show “open” captioned films also recognized that new technology may make some accommodations possible and required someday, and that day has come. In 1990, the only captioning technology available was burning captions into film prints. Hence, the NAD asks the Department to revise its commentary that movie theaters are not required by Sec. 36.303 to present open-captioned films. Department guidance must recognize the limits of captioning technology in 1990 and the captioning technology available today. New technology often requires new terminology and the NAD respectfully requests that the Department adopts the following terminology:
It is crucial to emphasize that technology that existed in 1990 is vastly different than what exists today. As movie theaters switch to digital cinema technology, movie theaters will be able to select and display captions at no cost – zero cost – to the movie theater. It is inconceivable that anyone would consider providing captions in the digital cinema era – at no cost to a movie theater – is an “undue burden.”
Based on the experience of billions of people who view subtitled movies, we know that displaying large, clear, high quality, high contrast captions as part of the visual movie presentation is effective. Decreasing the quality or increasing the distance between subtitles or captions and the corresponding visual presentation, decreases their effectiveness.
The introduction and use of ancillary equipment has proven such individual captions to be, most of the time, ineffective. Consumers who have used existing ancillary caption display equipment report that it is often difficult to use, subject to frequent equipment malfunction and faulty hardware, and sometimes causes physical discomfort and inaccessibility for those with mobility difficulties. In fact I have had poor experience with individual captions, and will share a brief example. Once upon a time I had three children at the age of three and under, and we were at a movie theater. Personnel assisted me with the complex process of setting up the RWC device, then as the theater went black and the movie started, I realized the RWC captions were not turned on. I could not leave the theater to get this problem remedied, because my children were too young to leave unsupervised, and I was also unable to ask my young children to leave a movie that was already in process. So I had to resign to watching a movie I didn’t understand, and feeling segregated, excluded, and degraded. Once upon a time being in the back of the bus with individual captions was better than nothing, but now we know better.
The NAD urges the Department to require, in compliance with the ADA, that movie theaters provide and display closed captions, as defined above, unless doing so results in an undue burden. Captions are available for display when the movie is first released and shown in movie theaters, and displaying those captions should not be delayed for any reason. The Department should also prohibit “separate but unequal” treatment of the deaf and hard of hearing community by requiring theaters also to display closed captions during prime or peak viewing times, such as Friday and Saturday nights.
The NAD also urges the Department to require movie theaters to obtain and provide effective individual caption display systems and ancillary equipment to enable the display of captions at any showing of any movie in any theater at any time, unless doing so is an undue burden. Movie theaters and caption display system developers and manufacturers should also be encouraged to innovate and to conduct research and development to ensure that these systems are effective.
The Department should also require movie theaters to implement policies and practices that include training of employees in the use and maintenance of caption display equipment. Until 100% of all movies are shown with captions, notification of the availability of captions should also be provided wherever movie theaters advertise movie show times, such as in newspapers and online.
Thank you for the opportunity to provide these comments on behalf of the National Association of the Deaf. We will provide further written comments in January.
Links:
[1] http://www.nad.org/users/admin
[2] http://deaf.disqus.com/?url=http%3A%2F%2Fwww.nad.org%2Fnews%2F2010%2F12%2Fnad-testifies-doj-hearing