President's Message: ACB Speaks to the Justice Department

by Mitch Pomerantz

In July 2010, the United States Department of Justice (DOJ) issued four Advance Notices of Proposed Rulemaking (ANPRM's) regarding proposed changes to Titles II and III of the Americans with Disabilities Act (ADA). The four ANPRM's under consideration were: Accessible Web Information and Services; Movie Captioning and Video Description; Accessibility of Next Generation 9-1-1; and Accessible Equipment and Furniture. 

Release of the ANPRM's marked the beginning of a comment period during which all interested parties had the opportunity to provide input concerning those proposed rules. (The comment period concluded on January 24th.) Both written and oral comments were accepted and I want to thank and acknowledge the efforts of a working group that I asked to draft ACB's written responses. This group included Paul Edwards, Kim and Brian Charlson, Mark Richert, Pratik Patel, Eric Bridges and Judy Jackson. 

Along with written comments, DOJ conducted three public hearings -- in Washington, D.C., Chicago and San Francisco -- to take testimony regarding the aforementioned ANPRM's. The latter hearing took place on January 10th and I was able to follow the proceedings on the Internet and to testify representing ACB via telephone. I borrowed heavily from the working group for my remarks. The remainder of this month's column is taken up with my comments to the Justice Department officials. 

My name is Mitch Pomerantz and I am the president of the American Council of the Blind. ACB is a major national grass-roots consumer advocacy organization with 70 state and special-interest affiliates throughout the nation. I wish to thank the United States Department of Justice and especially John Wodatch for the opportunity to briefly address some of our general concerns relative to the recently issued ANPRM's. More extensive written comments addressing specific concerns will be forthcoming. 

ACB believes that regulations must be drafted which recognize the convergence of Section 508 of the Rehabilitation Act, Section 255 of the Telecommunications Act, and the recently enacted 21st Century Communications and Video Accessibility Act (a bill sponsored by the American Council of the Blind). Without taking such laws into consideration, the department will be developing standards which will be irrelevant because effective communication will be thwarted. ACB would argue it is time that the ADA acknowledge these federal laws which have begun creating standards of accessibility. 

ACB recognizes the department's efforts to date to clarify that the ADA requires access to web information and services. If blind and visually impaired people are to compete on equal terms with our sighted peers, regulations must be promulgated which guarantee access to web sites operated by both Title II and Title III entities. 

The department should clarify that audio description is an auxiliary aid and service which assures effective communication. It is not a fundamental alteration of a theater's service and should be acknowledged in the regulations. 

Let me comment here that the term "video description" is wholly inappropriate given that since 1981, the generic phrase referencing the use of language to provide access to visual images has been "audio description." It is essential that the department adopt audio description as the only appropriate term to describe this method of effective communication. 

ACB believes that DOJ should unequivocally state that the accessibility of equipment is an inherent component of making programs, activities and places of public accommodation accessible. We are convinced that people with disabilities have waited long enough for a clear statement by the department that there is an affirmative obligation to assure that equipment used to provide access to programs and services under Title II and equipment being employed in places of public accommodation under Title III must, within the constraints contained in both titles, be accessible. 

Further, since virtually every piece of equipment today makes use of computers or is directly connected to the Internet or accessed wirelessly or via remote control, we must move beyond looking at equipment in a "stand-alone" context. The accessibility of computers, whether in home appliances or public kiosks, must be a basic consideration in any regulations developed for equipment accessibility. It is no longer appropriate to see the regulation of equipment, the web and audio description as separate endeavors. All three of the ANPRM's of particular interest to blind and visually impaired people overlap. It is time that the department consider adoption of general principles that clearly articulate the convergence which the computer chip has created. 

In conclusion, the Department of Justice must take this opportunity to absolutely articulate that there is a categorical requirement for equipment accessibility which applies equally to state and local governments and to places of public accommodation. The department must champion principles of universal design which will, within a reasonable time frame, require Title II and III entities to acquire equipment that is accessible. ACB is certain that if the Department of Justice adopts this unequivocal general principle, we will get to a place where equipment accessibility will assume the place it should as a civil right for all people with disabilities. Thank you.