WITH FREEDOM COMES RESPONSIBILITY: ENSURING THAT

THE NEXT GENERATION OF TECHNOLOGIES IS

ACCESSIBLE, USABLE AND AFFORDABLE*

William E. Kennard** and Elizabeth Evans Lyle***

"No one wants to regulate the Internet. But withfreedom comes responsibility. So industry must meetits responsibility in the digital age . . and• . . ensure that no American gets left behind. '

I. INTRODUCTION: PROVIDING ACCESS INA CHANGING TECHNOLOGICAL ANDREGULATORY ENVIRONMENT

A. The Access Imperative

The landscape of communications is changingdramatically. Being connected will not just be

* The authors wish to thank numerous colleagues at theFederal Communications Commission ("FCC") for theirsupport and advice throughout this project, includingKathryn Brown, Tom Sugrue, Dorothy Attwood, EllenBlackler, Robert Pepper, Dale Hatfield, Karen Peltz Strauss,Pam Gregory, Scott Marshall, Jennifer Simpson, HowardShelanski, Dave Farber, Don Stockdale, Robert Atkinson,Lisa Sockett, Linda Kinney and Maryanne McCormick. Theauthors also wish to acknowledge the contributions ofnumerous colleagues outside the Commission, includingLaura Ruby of Microsoft, William Plummer of Nokia, JudyHarkins of Gallaudet University, Pam Ransom of CommonGround Solutions, Judy Brewer of the World Wide WebConsortium's Web Accessibility Initiative, Mary Brooner ofMotorola, Andrea Williams of the CellularTelecommunications and Internet Association, PaulSchroeder of the Alliance for Public Technology, ClaudeStout of TDI, Brenda Battat of SHHH, Brian Fontes andSusan Palmer of Cingular, Richard Ellis of Verizon, JimMcConnaughey and Steve Saleh of the NationalTelecommunications and Information Administration,Elizabeth Echols of the Office of the Vice President, DavidCapozzi of the Access Board, Ed Reniker of the GovernmentServices Administration, Phil Rosche of ADIT, Kristan VanHook of Simon Strategies, Bruce Jacobs and Susan Hafeli ofShaw Pittman, Don Gips of Level 3, David Wye of AT&TWireless, Dan Phythyon of Wilmer, Cutler & Pickering, KarenBrinkmann of Latham & Watkins and Michele Farquhar ofHogan & Hartson.

** A.B. Stanford University, 1978; J.D., Yale University,1981. Formerly Chairman, Federal Communications Com-mission. Currently Managing Director, TelecommunicationsGroup, The Carlyle Group.

*** A.B. Dartmouth College, 1985; J.D., University ofChicago, 1990. Attorney-Advisor, Office of the General Coun-sel, Federal Communications Commission.

I William E. Kennard, Chairman, FCC, Address at The

about having phone and perhaps Internet service.It will mean broadband2 delivery of increasinglyconverging services such as interactive voice, dataand full motion video. Consumers will be able toreceive these "always on" services in single boxes,on large screens, in small mobile devices, in theircars, 3 in their household appliances,4 on theirwrist watches 5-perhaps even through fibers intheir clothes. 6 They will receive their services fromproviders using cable, digital subscriber lines("DSL"), fiber, fixed wireless, satellite and lasertechnologies. 7 And as networks become digital

10th Anniversary of the Americans With Disabilities Act,Torch Relay, Los Angeles, Cal. (June 19, 2000).

2 In this paper, "broadband" and "future technologies"include but are not limited to the more precisely definedterms "advanced telecommunications capability," "advancedservices," and "high-speed" services. In its latest report on thedeployment of advanced telecommunications capability, theCommission defines advanced telecommunications capabilityand advanced services as infrastructure capable of deliveringa speed of 200 kilobits per second ("kbps") in each direction,and high-speed services as those services with over 200 kbpscapability in one direction. See In re Inquiry Concerning theDeployment of Advanced Telecommunications Capability toAll Americans in a Reasonable and Timely Fashion, and Pos-sible Steps To Accelerate Such Deployment Pursuant to Sec-tion 706 of the Telecommunications Act of 1996, Second Re-port, 15 FCC Rcd. 20,913, 20,917, para. 8 (2000) [hereinafterSecond Advanced Services Report].

3 See, e.g., Study Shows That Cars And Internet Are Potent Mix,ALLNETDEVICES, at http://www.allnetdevices.com/wireless/news/2000/04/07/study-shows.html (Apr. 7, 2000).

4 A study by Allied Business Intelligence states that thehome networking market was $134 million in 1999 but willbe $495 million by the end of the year and $2.4 billion by2005. Home Networks Set to Take Off Led by Net Devices,ALLNETDEVICES, at http://devices.internet.com/news/0005/0005l9homenet.htm (May 19, 2000).

5 IBM Develops Prototype of Wrist Watch Running Linux,YAHOO! NEWS, at http://www.wideopen.com/story/1157.html (Aug. 7, 2000).

6 Group Takes Next Step Toward Tiny Computers,ABCNEWS.COM, at http://www.abcnews.go.com/sections/tech/DailyNews/mollecules00818.html (Aug. 18, 2000).

7 GLOBAL INTERNET PROJECT, CONVERGENCE AND CYBER-

SPACE: NEW CHALLENGES EMERGE 1, at http://www.gip.org/publications/papers/gipwp20500.asp (May 2000) [hereinaf-ter CONVERGENCE AND CYBERSPACE].

COMMILAW CONSPECTUS

end to end, a whole array of new services willemerge.8

It will be imperative that all Americans have ac-cess to the technologies of tomorrow. Our societyhas benefited greatly from policies that have pro-moted broad access to today's technologies. Duelargely to state and federal universal service poli-cies,9 over 94% of American households have tele-phone service.I( These programs have allowedthose living in the farthest reaches in our country,and those with the lowest incomes, to be con-nected to this country's communications network,benefiting all users of the network." The E-rateprogram, established pursuant to the universalservice provisions in the Telecommunications Actof 1996 (the "1996 Act"),' 1 2 also has connectedour children to the Internet; the percentage ofpublic schools that have Internet access has risenfrom 35% in 1994 to 95% in 1999, with 63% of allclassrooms connected. 13 E-rate funds have al-lowed remote places like Pago Pago, American Sa-moa, where it often takes six months just to get a

8 See Comments of Level 3 Communications, In re Inple-mentation of Sections 255 and 251 (a) (2) of the Communica-tions Act of 1934, as Enacted by the Telecommunications Actof 1996, Access to Telecommunications Service, Telecommu-nications Equipment and Customer Premises Equipment byPersons with Disabilities, Report and Order and Further Notice ofInquiry, WT Dkt. No. 96-198, FCC 99-181, at 3 (Jan. 13, 2000);see also Comments of Trace/Gallaudet, In re Implementationof Sections 255 and 251 (a) (2) of the Communications Act of1934, as Enacted by the Telecommunications Act of 1996, Ac-cess to Telecommunications Service, TelecommnnicationsEquipment and Customer Premises Equipment by Personswith Disability, Report and Order and Further Notice of Inquiry,WT Dkt. No. 96-198, FCC 99-181, at 13-14 (Jan. 13, 2000)[hereinafter Trace/ Gallaudet Section 255 Comments].

9 Some of the universal service programs that promoteaccess include the high-cost program, which provides sup-port to eligible telecommunications companies for some ofthe costs of providing service to rural and other high-cost ar-eas; the Lifeline program, which reduces the monthlycharges for qualifying low-income consumers; and the LinkUp program, which provides support to reduce low-incomeconsumers' initial connection charges. THE CONSUMER EN-ERGY COUNCIL OF AMERICA, UNIVERSAL SERVICE: TOWARDS A

2 1 ' CENTURY PLATFORM 5-10, at http://www.cecarf.org/projects/US/USforumproposal.pdf Uune 2000) [hereinafterCECA UNIVERSAL SERVICE REPORT].

10 FEDERAL COMMUNICATIONS COMMISSION, STATISTICS OF

COMMUNICATIONS COMMON CARRIERS 228 (Aug. 11, 2000)available at http://www.fcc.gov/Bureaus/Common_-Carrier/Reports/FCC-StateLink/socc.html. But penetration rates incertain areas are still significantly below the national average.For example, only 47% of Indian tribal households on triballands have a telephone. In re Federal-State Board on Univer-sal Service; Promoting Deployment and Subscribership inUnserved and Underserved Areas, Including Tribal and Insu-lar Areas, Twelfth Report and Order, Memorandum Opinion and

phone line, to have 1,000 high-speed, satellite-connected computers in its forty-six schools andone public library. 14 And the Rural Health CareProgram, also provided for under the 1996 Act,will provide over $9 million in discounts for not-for-profit rural health care facilities in its first twoyears, 15 enabling rural health care providers tohave rates that are comparable to urban rates forsimilar services. I6

It also is clear that laws passed to promote com-munications access to people with disabilities havemade an enormous difference, particularly in thelast ten years. '7 In testimony to a Senate panel lastsummer, a deaf child who spends a great deal oftime with his family in Israel spoke about howmany more opportunities he has and how mucheasier his life is in the United States."' Here, un-like Israel, he can use the TelecommunicationsRelay Service, which allows deaf people to makeand receive phone calls to anyone in the worldwithout the other person having a text telephone

Order, and Further Notice of Proposed Rulemaking, 15 FCC Rcd.12,208, 12,211-12, para. 2 (2000). In the last year, the Com-mission has implemented new rules and policies to addressthis problem, such as adopting new universal service policiesthat will substantially reduce the price of basic phone servicefor low-income customers on tribal lands and providinggreater incentives for wireless carriers to serve tribal lands.See William E. Kennard, Chairman, FCC, Remarks Before theIndian Telecom Training Initiative, St. Paul, Minn., at http://www.fcc.gov/Speeches/ Ken nard/2000/spwekO21 .html(Sept. 28, 2000).

1 1 Metcalfe's law provides that as networks grow, the util-ity of being connected to the network grows exponentially.FCC, OPP WORKING PAPER 29, DIGrrAL TORNADO: THE IN-TERNET AND TELECOMMUNICAT[IONS POLICY 6 (authored by Ke-vin Werbach) (1997), available at http://www.fcc.gov/opp/workingp.html.

12 Pub. L. No. 104-104, 110 Stat. 56 (codified in scatteredsections of 47 U.S.C.).

13 NATIONAL CENTER FOR EDUCATION STATISTICS, IN-

TERNET ACCESS IN U.S. PUBLIC SCHOOLS AND CLSSROOMS:

1994-1999, at http://www.NCES.ed.gov (Feb. 2000).14 Jeri Clausing, With Project Expanding Net's Reach, [here

Are No Strangers in Paradise, N.Y. TIMES, July 13, 2000, at G8.15 Second Advanced Services Report, 15 FCC Rcd. at 20,980,

para. 175 (quoting the Universal Service Administrative Com-pany's 1999 Annual Report to Congress and the FCC: Reach-ing and Connecting American (Mar. 31, 2000)).

I' 47 U.S.C. § 254(h)(1)(B) (1994 & Supp. IV 1999).17 William E. Kennard, FCC Chairman Recognizes National

Disability Awareness Month, at http://www.fcc.gov/dtf/wek-disability.html (last visited June 11, 2001).

18 The Americans with Disabilities Act ("ADA "): Opening theDoors to the Workplace, Hearing Before the Senate Comm. on Health,Education, Labor, and Pensions, 107th Cong., at http://www.senate.gov/-labor/hearings/julyOOhrg/07260pwt/07260pwt.htIn (2000).

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With Freedom Comes Responsibility

("TIY"), 19 and watch television and cable pro-gramming with closed captions on any televisionset.20 Section 25521 of the 1996 Act has helped toensure that new telecommunications productswill contain features, such as distinctively shapedbuttons, adjustable fonts, vibrating ringers andnibs on five keys, that will make these productseasier for people with disabilities to use. As man-dated by Section 50822 of the Rehabilitation ActAmendments of 1998, government agencies arenow in the process of making the electronic prod-ucts they use, including their Web pages, accessi-ble to people with disabilities. 2

3

As important as providing access to today'stechnologies has been, it will be even more impor-tant to provide access to the broadband technolo-gies of the future. Doing so will ensure that'allAmericans fully share the benefits of the informa-tion age at a time when communication is becom-ing an ever more central and critical part of ourlives. As 3Com Chairman Eric Benhamou hasstated:

[Information technology ("IT")] access and IT skillsare no longer an option but an essential requirementfor functioning in modern society and becoming a full

19 The Telecommunications Relay Service ("TRS"), es-tablished pursuant to Title IV of the Americans with Disabili-ties Act of 1990 and available on a uniform, nationwide basissince July 26, 1993, enables persons with hearing and speechdisabilities to communicate by telephone with persons whomay or may not have such disabilities. TRS Centers arestaffed by Communications Assistants ("CAs") who relay con-versations between people who use a TTY and people whocommunicate by voice. See In re Telecommunications RelayServices and Speech-to-Speech Services for Individuals withHearing and Speech Disabilities, Report and Order and FurtherNotice of Proposed Rulemaking, 15 FCC Rcd. 5140, 5141-42, pa-ras. 1-2 (2000).

20 The Television Decoder Circuitry Act of 1990 requiresthat television receivers with picture screens 13 inches orlarger contain built-in decoder circuitry designed to displayclosed-captioned television transmissions. In July 2000, theCommission amended its rules to require closed-captioningdisplay capability in digital television receivers. See In reClosed Captioning Requirements for Digital Television Re-ceivers; Closed Captioning and Video Description of VideoProgramming, Implementation of Section 305 of the Tele-communications Act of 1996, Video Programming Accessibil-ity, Report and Order, 15 FCC Rcd. 16,788, 16,788-89, para.3-4 (2000).

21 47 U.S.C. § 255 (1994 & Supp. IV 1999).22 29 U.S.C. § 794(d) (1994 & Supp. IV 1999).23 See Carrie Johnson, Agencies Act to Ease Internet Use by

Disabled, THE WASHINGTON POST, Aug. 24, 2000, at A23 [here-inafterJohnson]. People with disabilities are much less likelythan people without disabilities to have Internet access andto use computers. According to a report last year by the De-partment of Commerce, people who have a disability are onlyhalf as likely to have access to the Internet compared to those

participant in the new economy. We should think of itin the same fundamental way as two centuries ago,when people thought of the skills of reading, writing,and counting.

24

But perhaps even more critically, access tobroadband and future technologies has the po-tential to help underserved communities evenmore than anyone else because the technologieshave the potential to bridge gaps and provide op-portunities that were inconceivable in the past.Broadband may allow inner city school childrenwhose schools have no budget to take even theshortest field trips to take a real-time virtual tourof the best museums in the world. Broadband mayallow Indian communities, who have seen toomany of their people die in emergency situationsbecause they did not even have basic phone ser-vice,25 to have access to doctors who can providediagnoses and services remotely.26 And broad-band may allow people who are deaf to use signlanguage over distances, enabling them, asTrace/Gallaudet note, "to see the speaker (lipreading and facial expression) to fully understandconversation."

2 7

Clearly, in the digital age, it will be more impor-

without a disability (21.6% versus 42.1%). In addition, closeto 60% of people with disabilities have never used a personalcomputer, while 25% of people without disabilities havenever used a computer. U.S. DEPARTMENT OF COMMERCE,FALLING THROUGH THE NET: TOWARD DIGITAL INCLUSION 61,available at http://search.ntia.doc.gov/pdf/fttn00.pdf (Oct.2000) [hereinafter TOWARD DIGITAL INCLUSION].

24 Press Release, 3Com, 3Com CEO Eric Benhamou Pro-vides Keynote Address on Digital Divide For CommonwealthClub of Silicon Valley, at http://www.3com.com/news/releases/pr00/jul2000a.html (July 19, 2000).

25 Rea Howarth, Getting Connected: Bridging the Telecommu-nications Divide in Indian Country, AMERICAN INDIAN REPORT,Mar. 2000, at 12.

26 See generally In re Amendment of Parts 2 and 95 of theCommission's Rules to Create a Wireless Medical TelemetryService, Report and Order, 15 FCC Rcd. 11,206 (2000).

27 Access to broadband will open up a myriad of otherpossibilities for people with disabilities as well. See Trace/Gal-laudet Section 255 Comments, supra note 8, at 13-15. Trace andGallaudet note, for example, that two or more parties whohave screens and keyboards could carry on text conversationas well as voice conversation, permitting direct communica-tions among deaf and hearing-impaired people without theuse of a relay service. Id. at 14. Video phone conversationswould allow people who are hard of hearing to read lips andsee facial expressions, and also would allow people to betterunderstand people with speech disabilities because theycould see their facial expressions and gestures. Id. Interpret-ers, captioners and speech-to-speech assistants could be con-ferenced in on multimedia calls. Id. at 15. Trace and Gal-laudet believe that people who are deaf eventually will beable to use speech recognition to see voice conversations, inmuch the same way that people who are blind can use speech

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COMAIDLAW CONSPECTUS

tant than ever that no American gets left behind.Some may ask what can be done now at this earlystage of deployment of new technologies, when,for example, broadband technologies have pene-trated less than 2% of American households,

2 s

and when it is unknown which technologies willemerge as the winners and losers. But muchneeds to be done if the vision of leaving no Ameri-can behind in the digital age is to become a real-ity. Specifically, now is the time to be concernedwith three components of access: technical acces-sibility, usability and affordability. If the technolo-gies of tomorrow are to be technically accessibleto all Americans, then those who are designingand developing new products and networks mustwork together and consider how to make theirproducts accessible to people with disabilities. Ifnew technologies are going to actually be usableby all Americans, then those designing and devel-oping new technologies must understand the spe-cial challenges faced by educators; communityleaders in rural, urban and other underserved ar-eas; and people with disabilities. Finally, if thenext generation of critical technologies is goingto be affordable to all Americans, then those whomay be providing those services and sharing inthe responsibility of making the services afforda-ble should help fashion an efficient and equitableuniversal service policy for the future.

How will society ensure that the next genera-tion of communications is, broadly speaking, ac-cessible-that is, technically accessible, usable andaffordable? Ideally, access to tomorrow's technol-ogies should be provided without resorting to yes-terday's regulatory tools. Rather, a new model isneeded that will allow society to meet its accessgoals in a way that recognizes the benefits of regu-latory freedom. The purpose of this article is topromote a discussion about what this new modelshould look like and how it should be achievedamong industry (including those who tradition-ally have not been regulated); consumers; educa-

synthesis to read e-mail now. Id.28 Second Advanced Services Report, 15 FCC Rcd. at 20,942,

para. 70.29 See generally FCC, OPP WORKING PAPER 31, THE FCC

AND THE UNREGULATION OF THE INTERNET (authored by JasonOxman) (1999), available at http://www.fcc.gov/opp.workingp.htmI [hereinafter UNREGULATION OF THE IN-TERNET].

3) Id. at 10.31 Id. at 9.

tors; local, state and federal policy-makers; andother stakeholders.

B. The Promise of Regulatory Freedom

The explosive development of the Internet un-derscores why a general policy of not regulatingnew technologies will be so important. Over thelast generation, the Federal CommunicationsCommission ("FCC" or the "Commission") hastaken steps to ensure that the Internet could growand that industry could innovate without the con-straints of regulation. 29 One of the ways in whichthe FCC sheltered the Internet from regulationwas to distinguish computer applications over thetelecommunications network, known as "en-hanced" services, from phone or "basic" ser-vices.3" "Basic" services (later designated "tele-communications services" in the 1996 Act) weresubject to the full panoply of Title II regulation;"enhanced" services (later designated "informa-

tion services" in the 1996 Act) stayed completelyunregulated. 3 1 The FCC also has deregulated thetelecommunications equipment market and al-lowed users to connect their own terminal equip-ment, which helped to foster the widespread de-ployment of the modem. 3 2 Furthermore,enhanced service providers were exempted fromthe access charges paid by interexchange carriers,which, in turn, has allowed Internet Service Prov-iders ("ISPs") to charge low monthly fees.

3 3

The Internet has flourished under this modelof unregulation. Between December 1998 and Au-gust 2000, for example, the share of U.S. house-holds with Internet access rose by 58%, from26.2% to 41.5%. 3 4 This jump has been fueled bylower prices for hardware, and the emergence offree ISPs and affordable broadband service. 35 Astudy funded by Cisco Systems found that the In-ternet industry generated nearly $524 billion inrevenue in 1999, an increase of 62% from a yearearlier. 36 The Internet is changing the way in

32 Id. at 16.33 Id.34 TOWARD DIGITAL INCLUSION, supra note 23, at xv, 2.35 Ben Charny, More U.S. Households Online than Not, YA-

HOO! NEWS/ZDNET NEws, at http://daily news.yahoo.com(Aug. 17, 2000).

36 CISCO SYSTEMS AND THE UNIVERSITY OF TEXAS, MEASUR-

ING T-IE INTERNET ECONOMY 2, at http://www.internetindi-cators.com/june-full-report.PDF (June 6, 2000).

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With Freedom Comes Responsibility

which we learn, work, shop and communicatewith our colleagues, friends and family, and, inshort, is quickly becoming the most importantcommunications medium ever.

3 7

It will not be enough, however, to recognize theimportance of regulatory freedom for the In-ternet and new technologies. Generally speaking,future policies also must acknowledge that the dis-tinctions between regulated and unregulated ser-vices are blurring, and, that as this continues,these services should be treated with regulatoryparity. The regulatory wall between "basic/tele-communications" services and "enhanced/infor-mation" services may have allowed the Internet togrow unfettered but it quickly is becoming un-workable in the age of convergence as the regula-tory challenges posed by Internet telephonydemonstrate. 38 And, of course, there are manyother examples of converging services that do notfit neatly into traditional regulatory boxes, includ-ing: Internet services delivered over digital assis-tances ("PDAs") and cable modems; Internet ser-vices delivered over telephone lines to televisionsets via systems like Web TV; and radio and TVprogramming webcast on the Internet.

39

As the world becomes more digital, as morecompression techniques develop, as computingpower increases and as broadband networks de-ploy, more services and combinations of serviceswill cut across traditional regulatory lines.40 Ser-vice providers will offer a mix of services, some ofthem traditionally regulated, some of them not.Generally speaking, it will not make sense (and

37 UNREGULATION OF THE INTERNET, supra note 29, at 4.38 Indeed, the classification of Internet telephony has

caused challenges both with respect to universal service andto disability access. In re Federal-State Joint Board on Univer-sal Service, Report to Congress, 13 FCC Rcd. 11,501, 11,510,para. 14 (1998) [hereinafter Universal Service Report to Con-gress]. The Universal Service leport to Congress states that:

The record currently before us suggests that certainforms of 'phone-to-phone' IP telephony services lack thecharacteristics that would render them 'information ser-vices' within the meaning of the statute, and insteadbear the characteristics of 'telecommunications services.'We do not, however, believe it is appropriate to makeany definitive pronouncements in the absence of a morecomplete record focused on individual service offerings.

Id.; see also In re Implementation of Sections 255 and251 (a) (2) 251 (a) (2) of the Communications Act of 1934, asEnacted by the Telecommunications Act of 1996, Access toTelecommunications Service, Telecommunications Equip-ment and Customer Premises Equipment by Persons withDisabilities, Report and Order of Further Notice of Inquiry, WTDkt. No. 96-198, FCC 99-181, para. 173 (rel. Sept. 29, 1999)

will cause economic distortions) to treat circuit-switched telephony providers differently than IPtelephony providers, data providers and videoprogramming providers. 41 Furthermore, the tradi-tional notice and comment rulemaking process,in which it can take months, if not years, to pro-mulgate rules, will probably be less and less ableto adjust to the rapid pace of technologicalchange, the short time-to-market in an increas-ingly competitive market, and the complexities re-sulting from the sheer number and differentkinds of entities providing services.

In this rapidly changing and increasingly com-petitive and converging environment, the Com-mission's general approach will be to avoid regu-lating new services and to deregulate currentlyregulated services as they become competitivewith and converge with new services. This will bepart of a larger transition that the Commission isundertaking over the next five years as it shiftsfrom a role of "industry regulator" to "marketfacilitator."42 Rather than automatically resortingto the rulemaking process, the Commission islooking more and more to industry to make thefirst attempt at solving complex technical and pol-icy problems. For example, at then ChairmanKennard's urging, last year the Consumer Elec-tronics Association and the National Cable Televi-sion Association reached agreement on at leastsome of the issues that are delaying the ability ofconsumers to receive the benefits of digital pro-gramming on their cable systems. 43 The Commis-sion also encouraged a coalition of long-distance

[hereinafter Section 255 Order]. The Section 255 Order statesthat:

There is a vast array of communications-related servicesavailable today that are not covered by these rules ...We must ensure that the disability community is not de-nied access to innovative new technologies, for exampleInternet and computer-based services, that may becomecomplements to, or even replacements for, today's tele-communications services and equipment.

Id. at para. 173.39 CONVERGENCE AND CYBERSPACE, supra note 7, at 1.40 Id.41 See Trace/Gallaudet Section 255 Comments, supra note 8,

at 9.42 FEDERAL COMMUNICATIONS COMMISSION, REPORT CARD

ON IMPLEMENTATION: DRAFr STRATEGIC PLAN-A NEW FCCFOR THE 21ST CENTURY 1 (Mar. 2000).

43 Press Release, Federal Communications Commission,Statement of FCC Chairman William E. Kennard: IndustryAgreement Will Jump Start Digital Television, at http://www.fcc.gov/Speeches/Kennard/Statements/2000/stwek0l3.html (Feb. 23, 2000).

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COMMLAW CONSPECTUS

and local exchange companies (the Coalition forAffordable Local and Long-Distance Services orCALLS) to submit a plan to revise the current ac-cess charges and universal service rules, whichthen became the basis for a Commission order.

44

The Commission also has created an Enforce-ment Bureau and Consumer Information Bureauin recognition of the importance of organizingthe Commission by function rather than by tradi-tional regulatory areas, and of facilitating marketsolutions through outreach at the front end andenforcement on the back end.

45

Will the imperative of making the next genera-tion of technologies technically accessible, usableand affordable be accomplished in a way that isconsistent with the Commission's overall deregu-latory and unregulatory approach? Some maythink that competitive forces alone will not beenough to ensure that the access problems of to-morrow will be adequately addressed-and thatsome form of regulation will be necessary. Othersmay think that any form of regulation will preventnew services from reaching the marketplace andwill keep industry from addressing new accesschallenges in the most flexible and innovativeway. One thing we do know: if there is going to bea new model that will allow society to meet its ac-cess goals in a way that recognizes the benefit ofregulatory freedom, then it is not only the Com-mission that must prepare for a new role in thecoming years. Industry, both individual compa-nies and collectively, must take responsibility andensure that no American gets left behind. Therest of this article lays out in more detail what in-dustry must do if full access to tomorrow's tech-nologies is to be provided without relying on thetraditional regulatory process.

II. INDUSTRY'S RESPONSIBILITY

"To speak with a human voice, companies must sharethe concerns of their communities. But first they mustbelong to a community. Companies must ask themselveswhere their corporate cultures end. If their cultures endbefore the community begins, they will have no market."

-- Theses 34-37, The Cluetrain Manifesto

A. New Role for Industry

There are numerous reasons why industryshould be concerned with making the next gener-ation of technologies accessible, usable and af-fordable. Certainly addressing access concernswill help stave off government regulation. Ad-dressing access concerns also will enable industiyto tap into a vast new market of unserved commu-nities-whether it is a school child who is finallytaught IT skills or a blind person who can finallyuse her wireless PDA to access the Internet. Andthe more widely accessible a product is, the morevaluable it is to all customers. This is true in thecase of the network generally, and also is true forproducts designed to be accessible to people withdisabilities that have great mass market appeal(such as vibrating pagers and speaker phones) .46

Industry also must care about the concerns ofthe broader community if it is going to relate toand keep its customers in the Internet age. This,at least, is a premise of The Cluetrain Manifesto,47 arecent book by four Internet gurus (Rick Levine,Christopher Locke, Doc Searls and David Wein-berger) that has gotten attention in high-tech andbusiness circles. 48 It offers some insights abouthow and why companies must act differently andmore responsively in the Internet age. 49 One of

44 Press Release, Federal Communications Commission,FCC Reduces Access Charges By $3.2 Billion: Reductions To-tal $6.4 Billion Since 1996 Telecommunications Act, at http:/ /www.fcc.gov/Bureaus/Common_Carrier/NewsReleases/2000/nrccOO29.html (May 31, 2000).

45 Press Release, Federal Commtnications Commission,FCC Reshapes for the Future-Establishes New Enforcementand Consumer Information Bureaus to be Effective Novem-ber 8, 1999, at http://www.fcc.gov/cb/NewsReleases/reorg.html (Oct. 26, 1999).

46 Section 255 Order, supra note 38, at para. 7.47 See RICK LEVINE ET" AL., THE CLUETRAIN MANIFESTO Xii

(2000) [hereinafter LEVINE]. See generally THE CLUETRAIN

MANIFESTO, at http://www.cluetrain.com.48 See Lisa G. Everitt, "Cluetrain" Pulls into the Station: Irrel-

evant Book Strikes a Responsive Chord on E-Commerce Dichotomy,DENVER ROCKY MOUNTAIN NEWS, Jan. 31, 2000, at 4B; E-com-merce Experts Endorse Cluetrain Manifesto; Forthcoming Book Her-alds End of Business As Usual, Bus. WIRE, Dec. 15, 1999 ("'TheCluetrain Manifesto is about to drive business to a full boil.Recall what the jungle did to meat packing, what SilentSpring did to chemicals, what Unsafe at Any Speed did to De-troit. That's the spirit with which the Cluetrain Manifestotakes the arrogance of corporate e-commerce.' ").

49 LEVINE, supra note 47, at xi-xii.

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the major theses of the book is that if corpora-tions are going to survive, they need to adjust tothe realities of how the rise of the Internet andintranet are changing the way corporations com-municate and work externally and internally.

50

On the Internet, people are having open, real andhuman conversations about what is relevant tothem, including products and services in the mar-ketplace-and that information is traveling atlightning speed. As a result, markets are muchsmarter now and much too sophisticated to re-spond to one-way public relations "happy talk"-or as the authors say, "companies that speak inthe language of the pitch, the dog-and-pony show,are no longer speaking to anyone."

5 1

What the authors recommend to companies isthat they tear down the firewall that separatestheir corporation from the outside market andjoin the real conversations in the networked mar-ket. In the old world, companies saw marketing asa public relations project-mission statements,brochures, press releases and jingles. In today'sworld, companies need to let their employees re-ally communicate with their customers-be hon-est with them and responsive to their concerns-and not try to "trick" them into buying a product.Today's knowledgeable consumers will not givecompanies a second chance.

Similarly, companies will have to change theway they communicate about and respond to ac-cess problems if they are going to build consum-ers' trust. Their task is more than figuring out theminimal action necessary to be compliant with alaw or regulation. In today's world, companiesmust concern themselves with the challenges fac-ing our communities. They must develop real andsustained conversations with their customers, in-cluding consumers with disabilities, educators andcommunity leaders. They must respond to theircustomers' concerns, or at least explain clearlywhat the company can do and when it can do it.And companies must make sure that their em-ployees working on access issues have the high-level support and the ability to pull resourcesfrom throughout the company, so that they canbe responsive.

50 Id. at xix.51 Id. at xiii.52 See In re Revision of the Commission's Rules to Ensure

Compatibility with Enhanced 911 Emergency Calling Sys-tems, Order, 13 FCC Rcd. 21,746, 21,746-48, paras. 2-4(1998).

The experience of the TTY Forum ("Forum"),an industry forum established three years ago todetermine how to make TTYs compatible withdigital wireless phones, shows both the difficultiesof the old corporate mentality and the promisesof the new breed of corporate problem solver.

52

The Forum consists of wireless service providers,wireless phone manufacturers, TTY manufactur-ers, relay providers and consumers representingthose who have hearing disabilities. The Forumwas formed after the Commission mandated in1996 that wireless service providers be able to passthe tones of TTYs for purposes of making 911calls. 53 Analog wireless phones were able to meetthis requirement, but TTY calls got garbled in thedigital network. The Commission encouraged in-dustry to work out a solution, rather than trying tomandate a specific technical solution itself.

5 4

In some ways, particularly early in the process,this experiment in letting industry take the leadin addressing an access problem was a frustratingexperience for nearly all who were involved. Gen-erally speaking, the Forum was slow to get startedand did not really appear to be motivated to solvethe problem until a high-level official from theCommission started attending its meetings, andthe Chairman and other Commissioners startedexpressing concern about the Forum's lack ofprogress.

In other ways, though, something exciting anddifferent has emerged from this process: a sharingof information and spirit of cooperation that hasmade a real difference in the Forum's work.There were some key corporate employees whowere clearly empowered to work on behalf oftheir corporation but whose concerns went be-yond that of their corporation. Their main focuswas working with consumers and others in indus-try to solve the problem, and their conversa-tions-and actions-reflected this. Some were theengineers who actually came up with the technicalsolutions that will allow digital wireless phones topass TTY tones. 55 Some were the policy-makerswho pushed their own company and their vendorsto make deadlines that others in industry saidwere impossible to make. These kinds of people

53 Id.54 See In re Revision of the Commission's Rules to Ensure

Compatibility with Enhanced 911 Emergency Calling Sys-tems, Memorandum Opinion and Order, 12 FCC Rcd. 22,665,22,686-87, para. 43 (1997).

55 To date, the TTY Forum's collaborative-and compet-

2001]

COMMLAW CONSPECTUS

will be critical to industry's efforts to take the leadin solving the access problems of tomorrow. Moreand more in this age, corporate employees-peo-ple who understand the inner workings of compa-nies, the technology of their products and thebroader policy concerns trying to be addressed-will play an indispensable role in the efforts tomake all the connections necessary to produce asolution.

So if industry is going to address the next gen-eration of access problems, and do so in an unreg-ulated environment, first and foremost, it musttruly adopt the concerns of the broader commu-nity as its own. Individual companies must committo make access issues a real priority in their com-pany with the support of management at the toplevels. Three high-tech CEOs recently have calledon their industry to exhibit more leadership toclose the digital divide. Eric Benhamou, chairmanand CEO of 3Com Corporation, who led an on-line discussion on the digital divide at an eventsponsored by the Commonwealth Club, statedthat "I don't think there's been a strong voice onthis topic coming from ... [the high-tech] indus-try. But . . . [w]ith sufficient focus and attention,the problem will get solved."56 At a recent AspenInstitute Conference, Time Warner CEO GeraldLevin called on high-tech leaders to "channeltheir social convictions through their compa-nies . . .There's a vacuum of leadership right

• "57

now." And to a standing ovation at the sameconference, Hewlett-Packard's CEO Carly Fiorinarecently challenged industry to "produce 'digitalMedicis' with interest in reforming society as wellas making money. "58

Of course, it will take more than the commit-ment of individual companies to change their in-ternal processes to address the next generation ofaccess problems. The problems that industryneeds to address are complicated, and require co-operation and coordination among all those who

itive-environment has yielded some major solutions thatwill allow digital wireless phones to pass 7lY tones. In early1999, Lucent Technologies presented to the Forum a poten-tial solution to the TTY/digital problem. The Lucent solu-tion subsequently was approved by the TelecommunicationsIndustry Association ("TIA") Subcommittees TR45.5(CDMA) and TR45.3 (TDMA) standards bodies. In addition,Ericsson has proposed a solution that has been adopted bythe GSM standards body, which is awaiting final adoption.Motorola is currently working on a solution for its proprie-tary iDEN technology. In re Revision of the Commission'sRules To Ensure Compatibility with Enhanced 911 Emer-

are relevant to providing the next generation ofservices. Such an effort will have to be led by in-dustry and governed by a consortium of trade as-sociations representing all industry interests rele-vant to the issues, including providers of voice,video and data services; backbone and other net-work providers; equipment manufacturers;software manufacturers; and content providers.Key participants in any collaborative effort mustinclude consumers with disabilities, educators,community leaders, employers, and local, state,and federal policy-makers. These stakeholders willbe critical in identifying the issues that need to beaddressed, working with industry to devise solu-tions, monitoring progress and determining howsolutions should be implemented.

Industry will face numerous challenges in its ef-forts to ensure that the next generation of tech-nologies will be accessible, usable and affordable.There are some ongoing industry efforts, both in-dividual and collective, from which to build ineach of these areas, as discussed in more detailbelow. Industry will have to determine whether itshould coordinate and expand existing efforts,such as the numerous forums, standards groups,advisory councils, initiatives, listserves, and public-private partnerships to meet these goals-orwhether it should create a new, broadly based col-laborative forum. What is critical, though, is thatindustry makes a collective and high-level commit-ment to solve the access problems of tomorrow.Industry also must be able to guard against "free-rider" problems and ensure that all relevant com-panies and industry segments contribute to the ef-fort. Finally, industry must do more than identifyproblems (as some advisory councils and forumshave done) or even identify solutions (as somestandards groups have done). If industry wants toavoid regulation altogether, it must ensure that itssolutions are fully implemented as well.

gency Calling Systems, Fourth Report and Order, 15 FCC Rcd.25,216, 25,217, para. 3 [hereinafter Fourth E-911 7I'Y Order].In a recently adopted order, the Commission set a June 30,2002 deadline for all digital wireless carriers to implement asolution that will allow digital wireless phones to pass TflYtones. Id. at 25,218, para. 6.

56 Q&A: Eric Benhamou on Building Online Communities,SILICON VALLEY NEWS, at http://wwwO.mercurycenter.com/svtech/news/indepth/docs/qa071700.htm (July 16, 2000).

57 7W's Levin Says Tests Can Prove Value of Cable Open Ac-cess, COMM. DAILY, Aug. 22, 2000, at 4.

58 Id. at 3.

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With Freedom Comes Responsibility

B. Ensuring That Products Are TechnicallyAccessible

One of the biggest challenges-and one that in-dustry will need to address early-is ensuring thattomorrow's technologies are accessible to peoplewith disabilities. It is critical for industry to con-sider how to make their products and networksaccessible to people with disabilities in the designand development stage, rather than trying to re-trofit a product with an accessibility solution afterthe product is on the market, when it is muchmore expensive to do so. There are numerous ex-amples of accessibility problems that could havebeen easily avoided if considered at the designand development stage, but that are now difficultto address. Industry has spent an enormousamount of time and money over the last few yearstrying to make digital wireless phones and TTYscompatible. Similarly, industry is now just begin-ning to consider how to make interactive voice re-sponse ("IVR") services and voicemail usable todeaf consumers or other consumers with disabili-ties-long after these services have beendeployed. 59 Pursuant to Section 508,60 discussedbelow, the federal government is also spending anenormous amount of money and time to redesignits web pages to make them accessible to peoplewith disabilities.

6'

Some companies, such as Microsoft, Motorola,Cingular and Verizon already have established ac-cessibility policies in place. 62 These policies pro-

59 Trace/Gallaudet Section 255 Comments, supra note 8, at 8.Gallaudet University, the Association of Access EngineeringSpecialists ("AAES") and the Rehabilitation Engineering Re-search Center ("RERC") sponsored an industry meeting onJune 6-7, 2000, at Gallaudet University for "companies inter-ested in understanding both the barriers and the solutions"to making interactive voice response systems accessible. Asso-CIATION OF ACCESS ENGINEERING SPECIALISTS, ACCESSIBLE

VOICE SYSTEMS AND SERVICES: JTY AND OTHER ACCESSIBILITYISSUES WITH VOICE MAIL AND AUDIOTEXT, JUNE 6-7, 2000MEETING 1, at http://www.access-aaes.org/ivr-accessibility_workshop_-_000606.html (last visited May 2, 2001).

60 Rehabilitation Act § 508, 29 U.S.C. § 794d (1994 &Supp. V 1999).

61 SeeJohnson, supra note 24, at 23 (noting that the fed-eral government will spend between $85 million to $691 mil-lion making its websites and other technologies accessible topeople with disabilities).

62 See Reply Comments of Microsoft Corp., In re Imple-mentation of Section 255 of the Telecommunications Act of1996; Access to Telecommunications Services, Telecommuni-cations Equipment, and Customer Premises Equipment byPersons with Disabilities, Notice of Proposed Rulemaking, 13 FCCRcd. 20,391, at para. 1 (rel. Aug. 14, 1998).

vide for the consideration of access issues earlyand throughout the product design and develop-ment process; and for the use of advisory councils,task forces, and focus groups to solicit and re-spond to consumer concerns. 6 3 And more andmore companies are recognizing the importanceof undertaking these activities. In September, forexample, the CEOs of over forty-five high-techcompanies, including America Online, Compaq,eBay, Hewlett Packard and Sun Microsystems,wrote to President Clinton a pledge to adopt "bestpractices" to promote accessibility. 64 These CEOsfocused their discussion on the training of theirworkers to develop accessible products and ser-vices, and on identifying and solving accessibilityproblems in new versions of their hardware andsoftware.

65

And, of course, some in industry have consid-ered how to make their products accessible be-cause they are required under law to do so. Sec-tion 255 of the 1996 Act requires thattelecommunications service providers and equip-ment manufacturers make their products accessi-ble, if readily achievable. 66 Under regulationsadopted by the Commission last year, telecommu-nications service providers and equipment manu-facturers (as well as interactive voice response andvoicemail service providers, and equipment man-ufacturers67) must develop a process to evaluatethe accessibility, usability, and compatibility oftheir services and equipment."8 And Section 508

63 See id.64 Press Release, The White House, Next Stop on Presi-

dent Clinton's "Digital Divide" Trip: Digital Opportunity ForAmericans With Disabilities, at http://www.nara.gov (Sept.21, 2000); see also Letter from Technology Executives to Presi-dent Clinton, at http://www.fcc.gov/cib/dro/Clinton_letter. doc (Sept. 21, 2000).

65 Press Release, The White House, Next Stop on Presi-dent Clinton's "Digital Divide" Trip: Digital Opportunity ForAmericans With Disabilities, at http://www.nara.gov (Sept.21, 2000); see also Letter from Technology Executives to Presi-dent Clinton, at http://www.fcc.gov/cib/dro/Clinton-letter.doc (Sept. 21, 2000).

66 47 U.S.C. § 255(a)(2), (b)-(c).67 Voicemail and interactive voice response services are

not technically telecommunications services. The Commis-sion, however, asserted its ancillary jurisdiction to cover theseservices under the statute. Additionally, the court of appealsupheld the Commission's ancillary jurisdiction "'because theCommission's judgment on how the public interest is bestserved is entitled to substantial judicial deference.'" Section255 Order, supra note 38, at paras. 93-95.

68 See id. at paras. 21-36. Accessibility "generally refers tothe incorporation of specific features in products and ser-

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COMMLAW CONSPECTUS

of the Rehabilitation Act Amendments of 1998provides a great incentive for companies to maketheir electronic and information products accessi-ble. Under Section 508, the federal governmentmay not procure, develop, maintain, or use elec-tronic or information technology-such as fed-eral websites, telecommunications, software, hard-ware, printers, fax machines, copiers andinformation kiosks-that is inaccessible to peoplewith disabilities, unless following this mandatewould create an "undue burden."69

Several industry groups are currently trying toaddress certain access problems. The World WideWeb Consortium ("W3C") is an international fo-rum consisting of nearly 400 member organiza-tions that develop technologies for the Web.

70

One of the W3C's four subgroups is the Web Ac-cessibility Initiative ("WAI"), which has developedthree sets of accessibility guidelines: one for web-sites; one for the software that website designersuse when they build websites; and one for brows-ers and multimedia players. 71 International stan-dards groups also have been active in certain ar-eas. Working groups in the InternationalTelecommunications Union ("ITU") and the In-ternet Engineering Task Force ("IETF"), for ex-ample, have been developing recommendationsand standards to ensure that the emerging multi

vices that will allow people with disabilities to access thoseproducts." Id. at para. 23. Usability "generally refers to theability of people with disabilities to learn about and operatethose features effectively." Id. Compatibility under Section255 means that equipment manufacturers and service provid-ers are required, to the extent readily achievable, to ensurethat their products are "compatible with existing peripheraldevices or specialized customer premises equipment com-monly used by individuals with disabilities to achieve access,where readily achievable." Id. at para. 31 (quoting 47 U.S.C.§ 255(d)).

69 29 U.S.C. § 794d(a) (1). The Access Board, an inde-pendent federal agency devoted to accessibility for peoplewith disabilities, issued final standards for electronic and in-formation technology under Section 508 of the Rehabilita-tion Act on Dec. 21, 2000. See generally Access Board, at http://www.access-board.gov (last visited June 12, 2001) [herein-after Access Board]. On Apr. 25, 2001, the Department ofDefense, the GSA, and the National Aeronautics and SpaceAdministration published a final rule, amending the FederalAcquisition Regulation ("FAR"), to implement Section 508.See generally Federal IT Accessibility Initiative, at http://www.section508.gov (last visited June 12, 2001).

70 See generally World Wide Web Consortium ("W3C"), athttp://www.w3.org (Mar. 27, 2001).

71 See generally Web Accessibility Initiative ("WAI"), athttp://www.w3.org/WAI (last visited May 12, 2001). TheWeb Content Accessibility Guidelines were released on Nov.6, 2000; the Authoring Tool Accessibility Guidelines were re-

media, IP networks are compatible with TTYs. 72

In addition, a Government Services Administra-tion ("GSA") funded group, the Accessibility Fo-rum, held its first meeting on May 11, 2001. TheAccessibility Forum, which includes users, indus-try and government stakeholders, will, accordingto its mission statement, "identify, prioritize, andconduct projects that assist government in makinginformed decisions about Section 508 related pro-curement, and allow government, industry, andusers to communicate and highlight areas wherefurther effort is needed.

'" 73

It is too early to evaluate the work of the Acces-sibility Forum, but this may prove to be a modelfor future collaborative efforts. We also know thatexisting laws, standards and guidelines, as exem-plary as they may be, are not sufficient to ensurethat all of the critical technologies of tomorrowwill be accessible. First, industry must do morethan write accessibility standards and guidelines-it must fully implement them.74 Industry also willhave to ensure that the mechanisms it developedto address accessibility issues are fast and flexibleenough to adjust to the rapid pace of change.This can be a challenge for standards bodies, asthe lengthy and ongoing process for developing astandard to make digital wireless phones compati-ble with hearing aids illustrates. 75 The European

leased on Feb. 3, 2000; and The User Agent AccessibilityGuidelines will be released, pending the completion of theW3C review process. Id.

72 See generally Gunnar Hellstrom, Total Conversationand Text Telephony in the IP Revolution, Address Before theVON coalition meeting with Accessibility Actors and theFCC, Washington, D.C. (Dec. 13, 1999).

7- See generally Accessibility Forum, at http://adit.aticorp.org/index.html (last visited June 12, 2001).

74 Industry has not committed on a widespread basis toadopt either the WAI's accessibility guidelines or the ITU'srecommendations. See The Applicability of the Americans withDisabilities Act (ADA) to Private Internet Sites: Hearing Before theSubcomm. on the Constitution of the House Comm. on the Judiciary,106th Cong. 48-51 (2000) (statement of Judy Brewer, Direc-tor, Web Accessibility Initiative International Program Office,World Wide Web Consortium), available at http://www.house.gov/judiciary/brew02O9.htm; Trace! Gallaudet Sec-tion 255 Comments, supra note 8, at 17.

75 See Letter from the Wireless Access Coalition to theSecretary of the FCC, In re Section 68.4(a) of the Commis-sion's Rules, Hearing Aid-Compatible Telephones, RM-8658,at 2 (Oct. 7, 2000); see also Trace/Gallaudet Section 255 Com-ments, supra note 8, at 16. It is not just standards bodies whoface this challenge-the TY Forum is struggling to stay cur-rent as well. As noted before, industry has been working foryears on a solution to make digital wireless phones compati-ble with TTYs and is in the process of implementing at leasttwo solutions. At the same time, however, the use of TTYs

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With Freedom Comes Responsibility

Commission, in fact, is exploring alternativemechanisms to the current international stan-dards bodies, such as high-tech consortia thatwould "promote the establishment of quick proce-dures, open workshops, and other means."76

Industry also will have to address a wide rangeof accessibility issues in a coordinated, high-leveleffort that would include representatives from allthe relevant industries as well as consumer andgovernment stakeholders. Equipment manufac-turers, software manufacturers, service providers,network providers and content providers wouldall have to work together on many, if not most,accessibility issues. Accessibility problems are get-ting more and more complex and devising solu-tions will depend upon cooperation among all ofthe above industry segments. As technologyevolves, entities that have not had to think aboutaccessibility will have to start. Between April andJuly 2000, for example, the number of U.S. house-holds with digital devices that can access the In-ternet without personal computers grew 12%. 77

And one industry forecast estimates that by 2002,wireless data subscribers in the U.S. will outnum-ber wire line data subscribers. 78 As noted earlier,we are and will be seeing a tremendous numberof new sources for Web and broadband access:televisions and other home appliances, the dash-boards of cars, wristwatches, and perhaps even thefibers of our clothes.

What exactly are the accessibility issues withwhich industry needs to be concerned? Generally,all relevant entities must consider how to maketheir products, networks, and services accessibleto people with disabilities as they are designing

with proprietary enhanced communications protocols, whichallow the TIYs to operate more quickly and to interrupt, hasgrown rapidly. Unfortunately, the new solutions that industryis implementing do not appear to work with the TTfYs usingthe proprietary protocols. See Fourth E-911 7Y'Y Order, 15 FCCRcd. at 25,216, 25,222-23, paras. 2, 20-23.

76 Standards bodies struggle to stay current, ELECTRONICNEWS, July 31, 2000, at 2.

77 Non-PC Net Device Usage Grows in U.S., INTERNETNEWS,at http://www.internetnews.com/bus-news/article/0,,3_124542_Ext,00.html (Sept. 20, 2000).

78 In re Implementation of Section 6002(b) of the Omni-bus Budget Reconciliation Act of 1993; Annual Report andAnalysis of Competitive Market Conditions With Respect toCommercial Mobile Services, Fifth Report, 15 FCC Rcd.17,660, 17,693-94.

79 SeeJamal Le Blanc, Access and Accessibility, THE DIGITALBEAr, Mar. 2000, at 2, available at http://www.benton.org/DigitalBeat/db031 000.html.

80 Id.

and developing the next generation of technolo-gies. In some cases, this might mean implement-ing guidelines that already have been developed.The WAI, for example, has guidelines in place forcontent providers regarding font sizes, colorschemes, image placement and background pat-terns that will promote accessibility for peoplewith low vision.7 9 The guidelines also stress theimportance of using alternative text descrip-tions-or "ALT" tags-which allow people withsight disabilities to use screen reading software toaccess images.8 0

In other cases, this will mean ensuring that theaccess solutions of this generation can be success-fully carried over to the next generation of tech-nologies. For example, it will be an important pri-ority for video delivered over broadband networksto provide for closed captions and video descrip-tion."' WGBH Educational Foundation("WGBH") notes in comments to the FCC thatnone of today's major Web-based programminghas closed captioning even though Web-basedprogramming will rapidly continue to grow.82 By2006, it predicts, "the delivery of video over theInternet will become so commonplace . . . thatcertain Web-based media channels will actuallyregister on the Nielsen charts and score higherratings than some cable channels."8 WGBH alsonotes that already thoughtlessly designed com-pression schemes and other problems are in someinstances preventing the closed-captioning dataand video-description audio from TV signals topass through satellite systems, cable systems, digi-tal video disks ("DVDs") and personal digitalvideo recorders .

4

81 See Comments of WGBH Educational Foundation, Me-

dia Access Division, In re Inquiry Concerning Deployment ofAdvanced Telecommunications Capability to All Americansin a Reasonable and Timely Fashion, and Possible Steps ToAccelerate Such Deployment Pursuant to Section 706 of theTelecommunications Act of 1996, Notice of Inquiry, 15 FCCRcd. 16,641, at 2 (Mar. 20, 2000) [hereinafter WGBH Section706 Comments]. The FCC's closed-captioning mandates applyonly to cable and TV providers, and the TV Decoder Cir-cuitry Act of 1990 applies to television receivers that are 13inches or more but to no other devices. The Commission'svideo description regulations, adopted in July 2000, apply tobroadcasters, cable operators and satellite providers, but notto ISPs. Id. at 2-3; see also In re Implementation of VideoDescription of Video Programming, Report and Order, 15 FCCRcd. 15,230, 15,238-44, paras. 19-30 (2000).

82 WGBH Section 706 Comments, supra note 81, at 2-3.83 Id. at 2.84 Id. at 4.

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Industry also must ensure that new technolo-gies do not pose barriers to people with disabili-ties. For example, we know already that peoplewho are blind and have sight disabilities cannotuse the touch screens on wireless hand held de-vices. Soft buttons on these devices also are notusable because their functions change as the usermoves through the on-screen menu. 85 We alsoknow that broadband services will have to be con-structed so that they can activate a visual or vibrat-ing signal so that people who are deaf will knowwhen someone is trying to call them, just as flash-ing ring indicators are used on phones to alertpeople who cannot hear that a call is coming in.86

These, of course, are just a few examples of thekinds of issues that industry must address if it is tomake the next generation of technologies accessi-ble to people with disabilities. Many new chal-lenges will arise that cannot be anticipated rightnow. Given the complex issues and number of en-tities involved, industry, working with consumersand government, is in the best position to deter-mine how to achieve these goals. It will not beeasy for industry to devise a process, which on onehand, will be fast and flexible enough to addressnew challenges as they arise, and on the otherhand, include all the stakeholders necessary tofashion the most effective solution. As daunting asthis task may seem, it must be done and done nowwhile advanced services are still in the earlieststages of deployment.

C. Ensuring That Products Are Actually Usable

Technology has the potential to transform thelives of those living in underserved communities,of school children and of people with disabilities.But it is not enough to merely have the infrastruc-ture in place. Nor is it enough to make the net-works of tomorrow technically accessible. Thetechnology actually has to be usable by all Ameri-

85 A phone, for example, may have two buttons below itsscreen that will be labeled "directory" and "re-dial" at the be-ginning of a call, but then will change to "backspace" and"okay" as soon as a call is initiated, and then to "transfer" and"hold" once the call is in progress. See Trace/Gallaudet Section255 Comments, supra note 8, at 12-13.

86 See generally Trace! Gallaudet Section 255 Comments, supra

note 8, at 14.87 47 U.S.C. § 255.88 Section 255 Order, supra note 38, at para. 23.89 See generally Access Board, supra note 69. The Access

Board, is an independent federal agency devoted to accessi-

cans who want to use it, and industry will have toconcern itself with this issue.

What exactly does "usable" mean? Certainly "us-able" includes the concept that was developed inthe disabilities access context. Section 255 re-quires that telecommunications service providersand manufacturers of telecommunications equip-ment make their products "accessible to and usa-ble by" people with disabilities, if readily achieva-ble.8 7 In its discussion of the meaning of "usable,"the Commission stated that " 'usable by' generallyrefers to the. ability of people with disabilities tolearn about and operate ... [product] .. .fea-tures effectively.""8 Thus, the Commission regula-tions, as well as the Access Board guidelines 9 onwhich they were based, provide that people withdisabilities have access to product information(including information on accessible features),operating instructions and technical support thatis functionally equivalent to that provided to peo-ple without disabilities. 91

No doubt, the technologies of tomorrow willhave to be usable in this sense. As WGBH pointsout in comments to the Section 706 proceeding,those developing video programming deliveredover broadband will have to determine how tomake programming guides in accessible for-mats.9 1 But ensuring that the broadband technol-ogies of tomorrow are usable will present broaderchallenges, both in the sense that many differentcommunities will have needs that will have to beaddressed, and that tomorrow's technologies willbe inherently more complex than telephony.

We already know some of the challenges. Forexample, only 23% of teachers feel well preparedwhile only 10% feel very well prepared to use thecomputers and the Internet in their teaching.

9 2

Other Americans who could benefit the mostfrom being connected simply do not have thetechnological literacy skills to use the Internet atall. As Andy Carvin of the Benton Foundation

bility for people with disabilities. Under Section 255, the Ac-cess Board was given responsibility for promulgating accessi-bility guidelines for telecommunications equipmentmanufacturers. The FCC rules were identical to or basedupon the Access Board guidelines, with a few minor excep-tions. Section 255 Order, supra note 38, at para. 14.

90 Section 255 Order, supra note 38, at para. 22.91 WGBH Section 706 Comments, supra note 81, at 5.92 NATIONAL CENTER FOR EDUCATION STATISTICS,

TEACHER USE OF COMPUTERS AN1D THE INTERNET IN PUBLIC

SCHOOLS 2, at http://www.NCES.ed.gov (Apr. 2000).

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With Freedom Comes Responsibility

writes, "Am I going to know how to use Netscapein order to go on the Web? Do I have a clue howto use a search engine successfully? Can I useMicrosoft Word to create that resume that I'vebeen meaning to get done?" 93 And a recent studyby the Children's Partnership has found "that it isas important to create useful content on the In-ternet-material and applications that serve theneeds of millions of low-income and underservedInternet users-as it is to provide computer andInternet connections."9 4 The study found a lack

of meaningful content for underserved Ameri-cans, 95 including local information about theircommunities, such as information about employ-ment, education and business development; infor-mation that is understandable for those with lim-ited literacy skills; information in multiplelanguages; and content that is culturally appropri-ate.

9 6

But we do not know all of the challenges thatusers face. If we are going to ensure that the tech-nologies of tomorrow-as well as the technologiesof today-are actually used to their full potentialby all communities, industry needs to work closelywith these communities, understand their specialneeds and respond to them. As discussed in moredetail below, there are many private and public-private initiatives that are providing some technol-ogy training. And clearly, there are some productson the market-and websites-that respond tosome special needs. The new toll-free voice por-tals from Lycos, Tellme and others are useful toeveryone because their voice recognition technol-ogies allow people with sight and physical disabili-ties, and people without a computer, to access in-formation from the Internet about traffic,weather, entertainment and other interests.9 7 En-trepreneurs also are creating websites, such asQuepasa.com, NetNoir.com and Black-Planet.com, that provide black and Hispanic-ori-ented online content.9 8 And on the new Internet,

93 Andy Carvin, Beyond Access: Understanding the Digital Di-vide, BENTON FOUNDATION, 3, at http://wwv.benton.org/Di-vide/thirdact/speech.html (May 19, 2000).

94 The Children's Partnership, Online Content For Low-Income and Underserved Americans: The Digital Divide'sNew Frontier, at http://www.childrenspartnership.org (Mar.2000).

95 Underserved Americans, for purposes of the studycited, include those who have low incomes, live in rural com-munities, have a limited education, and are members of ra-cial or ethnic minorities. Id.

96 Id.

"e-learning" businesses are changing the educa-tion marketplace, according to a recent report byPeter Stokes that was commissioned by the De-partment of Education. 99 Classroom Connect, forexample, offers classroom course content, tech-nology training for teachers and virtual online ex-plorations with such partners as the AmericanMuseum of Natural History, the Discovery Chan-nel School and the New York Times LearningNetwork.100

But much needs to be done if the broadbandnetworks of tomorrow are truly going to be usableand meaningful to all Americans. And as impor-tant as the ongoing efforts are, so much morecould be done if companies made a sustained, in-dustrywide commitment to address the concernsof underserved communities. A broadly based in-dustry consortia, for example, could maintain atleast a minimal staff and could coordinate effortsthat an individual company (particularly a smallercompany) could not undertake.

The first thing that industry could do to maketechnologies more usable is to figure out how itcan best reach and foster regular and ongoing di-alogues with underserved communities. Whetherit is through face-to-face meetings, e-mails or list-serves, industry must get to know these communi-ties and the problems that they are facing beforeit can address the problems. When the AccessBoard' 0' formed consumer-industry advisoryboards to make recommendations with respect tothe Section 255 and Section 508 rulemakings, itwas the first time that so many in industry and the

disability community had been brought togetherto discuss such a broad range of issues. Therewere disagreements, to be sure, but both repre-sentatives from the disability community and rep-resentatives from industry came away from theprocess with a much greater understanding of thechallenges that the others were facing in trying toachieve access. And there are continuing commu-

97 See, e.g., John Borland, Telime Web-over-phone service goesnational, CNET NEWS.COM, at http://news.cnet.com/news/0-1004-200-2330870.html (July 24, 2000).

98 Eric Rhodes, Bridging the Digital Divide, 4, at http://

www.ideas2000.org/Issues/Education/DigitalDivide.pdf(July 2000) [hereinafter Rhodes].

99 See Peter Stokes, E-Learning: Education Businesses Trans-form Schooling, EDUVENTURES.COM at http://www.Eduventures.com/pdf/doe-elearning.pdf (June 2000).

100 Id. at 7.101 See generally Access Board, supra note 69; see also Sec-

tion 255 Order, supra note 38, at 13-14.

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nications between the disability community andsome industry segments. The Voice Over Net("VON") coalition, for example, sponsored a full-day outreach session at the FCC in December1999 to work toward a better understanding ofthe disability community's concerns over the ac-cessibility of Internet telephony. Industry needs toundertake a broader and ongoing effort to learnabout what is going on in underserved communi-ties, and how technology can be relevant to them.What is the inside of a classroom like today? Whatdifficulties will Indian communities face as theyleap from having no phone service to havingbroadband? How can we make it easier for some-one with low literacy skills to effectively navigatethrough the content on the Web? How should wedesign a communications product for a personwho is deaf but who can speak?

1 2

Industry also can organize a virtual clearing-house (accessible also by a toll-free number) withinformation about communications technologies.The information should be regularly updated,with links to companies for more specific informa-tion. This would allow, for example, people withdisabilities to make industrywide inquiries aboutthe availability of certain accessibility features oncertain products.11 It also would allow educatorsand community leaders to find niche productsthat would best serve their needs. An industry fo-rum also could post and disseminate "lessonslearned" from its outreach activities and, as appro-priate, discuss the "usability" solution it devel-oped.

Industry also can provide technology trainingfor schools, community centers, employers inter-ested in hiring people with disabilities and other

102 See Section 255 Order, supra note 38, at 17. The Forumoutreach activities will be an important source of informationin order to ensure that the next generation of products istechnically accessible.

103 See generally CELLULAR TELECOMMUNICATIONS AND IN-TERNET ASSOCIATION, CTIA's WORLD OF WIRELESS COMMUNI-CATION, at http://www.wow-com.com/consumer/access/guide/index.cfm (last visited Mar. 22, 2001). CTIA providessome general information for consumers about disabilitiesaccess and a list of companies (with links to their Web pages)that have products that may be useful for people with certaindisabilities. What is contemplated here, however, is aclearinghouse in which consumers could easily link to spe-cific products that contain the accessibility features that theyneed.

104 In June 2001, the Commission held a follow-up con-ference in St. Paul, Minn., for business leaders in telecommu-nications and utilities to learn from Native American experts

entities. Of course, a number of private initiativesand public-private partnerships are already under-way, which, for example, provide online mentor-ing and technical support to underserved commu-nities. Last September, the Commission hosted afour-day telecommunications seminar for triballeaders, in which over fifty experts from U.S. gov-ernment agencies, tribal communities, the privatesector, and foundations provided technical, finan-cial and regulatory information about the tele-communications industry.' 4 PowerUp, a nationalinitiative supported by nonprofit organizations,major corporations and federal agencies, cur-rently has four pilot projects (and a great numbermore planned) that focus on teaching technologi-cal skills to youth. 10 5 The CEO Forum on Educa-tion and Technology, consisting of twenty-fourCEOs and other high-level representatives fromhigh-tech companies and the education commu-nity, has developed reports and other materials tohelp teachers use technology effectively in theclassroom. 1° The Department of Education alsosponsored the Secretary's Conference on Educa-tional Technology: Measuring the Impacts andShaping the Future, in which Secretary RichardRiley brought together high-tech companies, edu-cators, nonprofits and consultants to examine is-sues relating to the effective use of technology inthe schools. 11 7 Additionally, last year, the Depart-ment of Education spent $75 million on grants toensure that new teachers can successfully inte-grate technology into their curricula.'018 The Cen-tury Foundation has recommended that the fed-eral government initiate a much larger scaletechnology training program (to be capped at$1.75 billion over four years) for "at risk" young

how to successfully develop business ventures in Indian terri-tory. See generally FEDERAL COMMUNICATIONS COMMISSION, IN-DIAN TELECOM TRAINING INrrIATIVE, at http://www.fcc.gov/in-dians/ (last visited Mar. 22, 2001) (describing upcomingIndian Telecom Training Initiative Conference to be held onSept. 23-26, 2001, in Las Vegas, Nevada).

105 See generally PowerUp, at http://www.PowerUp.org(last visited Mar. 22, 2001).

106 See generally CEO Forum, at http://www.ceoforum.org (last visited May 13, 2001).

107 The conference was held last September. DEPART-MENT OF EDUCATION, SECRETARY'S CONFERENCE ON EDUCA-

TIONAL TECHNOLOGY, at http://www.ed.gov/Technology/techconf/2000/ (last visited Mar. 22, 2001).

108 Press Release, The White House, The Clinton-Gore

Administration: From Digital Divide to Digital Opportunity,at http://www.digitaldivide.gov/2000-02-02.html (Feb. 2,2000).

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people and teachers.' 0 9

It is beyond the scope of this paper to attemptto make a recommendation about the appropri-

ate mix of private and public funds and effortsnecessary to ensure that teachers, students andothers have the training they need to take full ad-vantage of today's and tomorrow's technologies.But it is likely that providing technology trainingwill continue to be an effort undertaken by theprivate, nonprofit and public sectors. And whentwo-thirds of all teachers feel they are not well pre-pared to use technology effectively in the class-room, it is clear that much remains to be done.An industry forum could play a critical role in co-ordinating a broadly based technology training in-itiative.

A forum also could conduct an accessibilityawareness campaign targeted at those in industrywho are outside of the communications/high-tech sectors (and thus not in the forum) butwhose actions affect the accessibility of communi-cations products. For example, a forum couldwork with retailers like Wal-Mart to ensure thattheir employees understand the accessible fea-tures on the communications products they sell. Italso could educate employers about how technol-ogy can enable people with disabilities to do theirjobs.1 10 An industry forum could stress to organi-zations, such as banks and catalog companies, thebenefits of configuring their phone systems sothat interactive voice response services are accessi-ble to people with disabilities."1 I Finally, the fo-rum could strive to get as many companies as pos-sible to make their Web pages accessible.

The activities recommended here-reachingout to underserved communities, providing an in-dustrywide clearinghouse, coordinating technol-ogy training and launching an accessibility aware-

109 Rhodes, supra note 98, at 6.110 Industry already has undertaken some important ini-

tiatives in this area. For example, in Oct. 2000, CEOs of ma-jor corporations, including high-tech industries, submitted aletter to President Clinton pledging to take concrete actionsto help boost the employment of people with disabilities. Let-ter from CEOs to President Clinton, at http://groups.yahoo.com/group/dd-confcall/messages/432 (Oct. 25, 2000).

111 See Section 255 Order, supra note 38, at paras. 101-02.The Section 255 Order states that:

The access barriers created by inaccessible and/orunusable voicemail and interactive menus has made itextremely difficult for people with hearing, vision, orphysical disabilities either to reach the party to whomthey have placed the call or to obtain the informationthey seek in their phone call . . . For example, the

ness campaign-could go a long way toaddressing the usability concerns with today'stechnologies. And by focusing on these issuesnow, industry can prevent the recurrence of thesame problems in tomorrow's technologies. Bybetter understanding the concerns of under-served communities, industry will make productsthat are more usable and meaningful for every-body.

D. Making a Recommendation About FutureUniversal Service Policies

An industry forum can do more than solve tech-nical problems and undertake outreach, trainingand education initiatives. It also should engage inone of the most important communications policyissues in the coming years: how to provide for uni-versal service to the next generation of technolo-gies. Because tomorrow's universal service policiesare bound to implicate a much broader scope ofservices than they do today, it is important that allservice providers-not just those that traditionallyhave been regulated-participate in formulatingpolicy recommendations.

Of course at this stage of deployment of ad-vanced services, it is too early to predict what ser-vices will be considered so critical that they mustbe universally affordable. 112 Some technologies,which seem so promising when they are first intro-duced, will never be accepted by a critical mass ofconsumers, as was the case with the betamaxhome video technology. Other technologies, likethe television, will achieve almost 100% penetra-tion without any special intervention. Still othertechnologies, such as compact disc players, willnot be deemed critical enough to ensure that theyare universally affordable. Nevertheless, we do

voicemail or menu may not allow adequate time for acaller using the Telecommunications Relay Service tohave the information from the automated device relayedto the caller's TTY and a response from the caller re-layed back to the device through the CommunicationsAssistant... The time allowed for a person to input thenecessary numbers . . . to select an option from a list ofchoices or control the other functions may be too shortfor people with motor, [learning, or hearing] disabilitiesor people who are blind.

Id.112 According to the Second Advanced Services Report, for

example, 1.6% of U.S. households subscribed to advanced-and high-speed services at the end of 1999. Second AdvancedServices Report, 15 FCC Rcd. at 20,942, para. 70.

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know enough to predict that some form of broad-band technology will play an increasingly impor-tant role in our lives and that we will be workingto ensure that these technologies are universallyaffordable.

We have good reason to believe, however, thatthe market will be able to ensure that critical tech-nologies will be widely affordable. As discussedearlier, pro-competitive, deregulatory, and un-regulatory policies have spurred technological in-novation and lowered prices, making new tech-nologies more affordable for everyone.' 11 Inparticular, technological innovations in satellite,wireless and other technologies, for example, maymake advanced services more affordable in ruraland isolated areas.'14

Government-and industry and government to-gether-also can take actions that will allow themarket to provide for universal service to the ful-lest extent possible. In last year's report on the de-ployment of advanced services, for example, theCommission identified several actions that it had

113 TOWARD DIGITAL INCLUSION, supra note 23, at xv, 2.114 Second Advanced Services Report, 15 FCC Rcd. at 20,932,

20,937, paras. 42, 56.115 Some of these actions include: strengthening its col-

location rules; encouraging the resale and unbundling of ad-vanced services; encouraging the competitive delivery of DSLservices through line-sharing; establishing criteria for waivingLATA boundaries where they create a barrier; ensuring thatcompeting providers receive nondiscriminatory access to fa-cilities and services; encouraging the deployment of wire lineand wireless service to tribal areas; and promoting wirelesshigh-speed service. See Second Advanced Services Report, 15 FCCRcd. at 21,004-08, paras. 249-66.

116 Some of these actions include: modifying its colloca-tion rules to provide for competitive access to incumbentLECs' remote terminals; streamlining the equipment ap-proval process for customer premises equipment with ad-vanced telecommunications capability; considering whetherto allow access by multiple ISPs to the cable companies' infra-structure for the delivery of advanced services; and examin-ing ways to make more licensed and unlicensed spectrumavailable for broadband services, as well policies to increasespectrum flexibility and efficiency. Second Advanced Services Re-port, 15 FCC Rcd. at 21,008-12, para. 267.

117 Existing programs that play such a role include: theDepartment of Commerce's Technology Opportunities Pro-gram, which in FY 2000 has provided $12.5 million in match-ing grants to public and nonprofit sector entities for modelprojects demonstrating innovative uses of network technol-ogy; the Department of Agriculture's Ruial Utilities Service,which has been in existence for 50 years and has providedover $1.4 billion in loans over the last three years for infra-structure investment for companies that provide local ex-change telecommunications services to rural areas; and theDepartment of Education's Community Technology Centersprogram, which for FY 2000 is awarding $32.5 million ingrants to state and local education agencies to provide con-

already taken, 1 5 as well as actions that it couldtake to accelerate the deployment of advancedservices.' 16 In addition to removing regulatorybarriers and taking actions to promote competi-tion, government can provide grants" 17 and otherincentives' IS that will spur deployment of broad-band technologies. It also can provide a forum topromote public-private partnerships and sharebest practices. The Commission, for example, hasconvened a Federal-State Joint Conference to pro-vide for ongoing discussion of issues relating tobroadband deployment.' 19

It seems likely that the market, for the mostpart, particularly in conjunction with governmentgrants and other incentives, will be able to pro-vide timely and affordable access to the criticaltechnologies of tomorrow. On the other hand, italso seems quite likely that some segments of ourpopulation will not have timely and affordable ac-cess to the critical services of tomorrow, unless ad-ditional action is taken. Indeed, the Commission

puter and Internet access and training for working class fami-lies. See NATIONAL TELECOMMUNICATIONS AND INFORMATIONADMINISTRATION ANt) RURAL UTILITIrS SERVICE, ADVANCED

TELECOMMUNICATIONS IN RURAL AMERIcA: THE CHALLENGE OF

BRINGING BROADBAND SERVICE TO ALL AMERICANS 35-39, athttp://www.ntia.doc.gov/reports/ruralbb42600.pdf (Apr.2000). In addition, in FY 2000, the Department of Educa-tion's National Institute of Disability Rehabilitation and Re-search ("NIDRR") provided $86.5 million to fund researchrelating to making new technologies accessible to peoplewith disabilities. The Assistive Technology Act of 1998 alsoprovided $34 million in FY 2000 to support state efforts suchas training, technical assistance and alternative loan pro-grams relating to technologies for people with disabilities. SeeThe White House, Clinton-Gore Administration Accomplishments inCreating Digital Opportunity for People with Disabilities, at http://ofcn.org/cyber.serv/tledem/pb/2000/sep/msgOOl 78.html(Sept. 21, 2000) [hereinafter Clinton-Gore Accomplishments inCreating Digital Opportunity].

118 The government uses its purchasing power in imple-menting Section 508, for example, by requiring that any elec-tronic or information product that it buys are accessible topeople with disabilities, unless doing so would create an tin-due burden. See Clinton-Gore Accomplishments in Creating DigitalOpportunity, supra note 11 7.

1 19 Among other things, the Federal-State Joint Confer-ence has identified best practices that have led to increasedaccess to advanced services. Some of the best practices itidentified include: "demand aggregation," a deploymenttechnique in which groups of customers band together to at-tract investment for the construction of new facilities; and"anchor tenancy," a strategy in which a public entity or otherlarge customer attracts investment in broadband facilities,which can then be used by other businesses or residentialcustomers. Second Advanced Services Report, 15 FCC Rcd. at20,980-81, paras. 177-80.

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recently stated in its Second Advanced Services Reportthat:

[d]espite our conclusion that deployment is reasonableand timely overall, the data support the troubling con-clusion that market forces alone may not guaranteethat some categories of Americans will receive timelyaccess to advanced telecommunications capability. Weidentify certain categories of Americans who are partic-ularly vulnerable to not having access to advanced ser-vices. These include low-income consumers, those liv-ing in sparsely populated areas, minority consumers,Indians, persons with disabilities and those living in theU.S. territories. 120

In light of this conclusion, the Commissionstated that, among other things, it will workclosely with the states to consider whetherchanges can be made to the existing high-costfund to support advanced telecommunications ca-pability. In addition, it stated that it also wouldwork with the states to consider whether a newuniversal service mechanism should be created.

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It is, of course, critical that industry engage inthe discussion of how to ensure that all Americanshave reasonable and timely access to the criticaltechnologies of tomorrow. Some important indus-try efforts have already been launched. In Febru-ary 2001, for example, the Consumer EnergyCouncil of America's Universal Service Forum,consisting of participants from the telecommuni-cations and information industries, federal andstate government, and consumer groups maderecommendations about how the universal serviceprogram should evolve.

1 22

It will be crucial for representatives of all serviceproviders, including those who are not currentlysubjected to universal service obligations, to con-tinue and build upon these efforts. As discussedpreviously, the distinctions between "information"service providers and "telecommunications" ser-vice providers (as well as other service providers)

120 Id. at 20,918, para. 8.121 Id. at 21,009, para. 267.122 The recommendations were the result of six month

consensus-building process. The recommendations included:(1) creating a technological task force to advise the Commis-sion and the Federal-State Joint Board on supported services;(2) utilizing a deliberative approach for determining essen-tial services; (3) coordinating the national development ofadvanced services through the USF; (4) using model states asbenchmarks for low-income policies; (5) creating a compen-dium of successful outreach tools to publicize the low-incomeprogram; and (6) streamlining the Eligible Telecommunica-tions Carrier certification procedures. See CECA UNIVERSALSERVICE REPORT, supra note 9, at 51-53.

123 Former FCC Chairman Reed Hundt and others origi-nally proposed that the revenues raised from spectrum auc-

are blurring and quickly disappearing, and overthe long run it will be important that all serviceproviders are treated with regulatory parity. In de-veloping recommendations for future universalservice policies, industry should consider a rangeof forward-looking, market-based, technology-neutral mechanisms that perhaps are not pro-vided for under current laws or regulations.

For example, it may we