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Equal Measures: Closing the Accessibility Gap

Edited by Tony Shipley and John Gill

Contributors:
Gunela Astbrink,
Erkki Kemppainen,
Patrick Roe,
Gregg Vanderheiden,
Erland Winterberg and
Nicholas Young.


ISBN 1 86048 032 2
© Copyright reserved, 2005.
Design by www.laker-sharville.com

Summary

The European Union has produced a set of Directives governing the provision of electronic communications facilities. These Directives have been developed from earlier legislation related specifically to telecommunications, so that they now cover a spectrum of services - including broadcasting. This set of legislation is intended to provide a framework through which these rapidly evolving and technologically advanced systems can be regulated, without hindering innovation, so as to ensure the continuity of socially essential public services as well as an open and competitive market for the providers. It is intrinsic to the spirit and to the letter of this legislation that accessibility to electronic communication networks is available to everyone; the Information Society is heralded as an inclusive society.

People who have disabilities, or who are elderly and are now experiencing some loss of function, are at risk of exclusion from this new world of electronic communications unless special note is made of their needs. However, the pace of technological change is such that specific technical measures are quickly rendered obsolete, and so have no place in legislation that is intended to be of lasting value. If the primary legislation can only point to the basic fundamentals, and if the market-place is not yet ready to acknowledge a wider spectrum of functional ability amongst its customers, how can this risk of exclusion be addressed?

The aim of this publication is to show how, with a degree of European co-operation, the powers devolved to national regulators can be applied to close the gap and bring in short- term measures that are consistent with the overall framework while addressing immediate problems of accessibility.

Key Recommendations

Preface

The COST Programme has been operating for more than 30 years as an intergovernmental framework for European Cooperation in the field of Scientific and Technical Research, allowing the coordination of nationally funded research on a European level.

One outcome of the collaboration in the programme is this booklet "Equal Measures: Closing the Accessibility Gap", resulting from the work of their COST 219ter Action ("Accessibility for All to Services and Terminals for Next Generation Networks").

The first message it conveys is one of inclusion. People with disabilities and the elderly are at risk of exclusion from the new world of electronic communications unless special note is taken of their needs. It is argued that their immediate problems of accessibility can be addressed by regulators, in a perspective of European cooperation, in full compliance with the relevant regulatory framework. The role of Public Procurement in influencing accessibility is also discussed. This pragmatic policy approach is in line with the strategic thinking that motivated the launch of a Commission consultation on eAccessibility at the beginning of January. This consultation will lead to the adoption of a Commission Communication on eAccessibility in May 2005. The aim is to integrate all users into the Information Society, providing everyone with suitable access to information and communication technology products and services. It is likely that the use of accessibility requirements in public procurement will be one of the main pillars put forward.

A second message addresses the European legislative process: the need to ensure that the electronic communications regulatory framework keeps pace with technology development. In this context I welcome the views expressed by COST 219ter. They will be considered as an early contribution to the legislative revision process alongside contributions from other stakeholders.

I encourage the COST 219ter Action to continue to facilitate research cooperation on the wide range of issues that need to be addressed to foster an Information Society for All in Europe.

Viviane Reding
European Commissioner for Information Society and Media

Contents

Part One - The Current Legislative Framework for Electronic Communications

Introduction

The Five Framework Directives

The RTTE Directive

Review of Directives (RTTE, USO)

The Public Procurement Directive

The Employment Equality Directive

National Legislation in the EU

Legislation in non-EU Countries


Part Two - Scope for Regulatory Measures

Introduction

National Regulation - NRAs

The Role of COCOM and INCOM

Terminal Equipment and TCAM

Standards and Mandates


Part Three - Outcomes

Standards and Yardsticks

Inclusive Design: Design for All

Testing for Accessibility

Conclusions

Acronyms

ADA Americans with Disabilities Act

ADSL Asynchronous Digital Subscriber Line

CE Official mark required by the EC for all conforming equipment

CEC Commission of the European Communities

CEN Comité Européen de Normalisation (European Committee for Standardisation)

CENELEC European Committee for Electrotechnical Standardisation

COCOM Communications Committee

COST European Cooperation in the field of Scientific and Technological Research

DDA Disability Discrimination Act

EC European Communities

ETSI European Telecommunications Standards Institute

EU European Union

EMC Electro-Magnetic Compatibility

ICT Information and Communication Technology

INCOM Inclusive Communications Sub-Committee of COCOM

NRA National Regulatory Authority

PATS Publicly Available Telephone Service

POTS Plain Old Telephone System

RTTE Radio equipment and Telecommunications Terminal Equipment

SMS Short Message Service

TCAM Telecommunications Conformity Assessment and Market Surveillance Committee

TRAC Technical Regulations Applications Committee

USO Universal Service Obligation

VoIP Voice over Internet Protocol

xDSL Digital Subscriber Line

3G Third generation mobile telecommunications

4G Fourth generation mobile telecommunications

Part One

The Current Legislative Framework for Electronic Communications

Introduction

By the end of the twentieth century the European Single Market was close to accomplishment. This objective, which had its origins with the original six members signing the Treaty of Rome in 1957, called for the creation of a Europe-wide trading community with harmonised rules and with no internal barriers to trade between its Member States. Tariff barriers, in the shape of customs dues, were abolished at an early stage but the technical barriers imposed by differing national standards and regulations were more difficult to dismantle. The problem was tackled through a series of Single Market Directives, which outlawed national rules and specifications for the products within their scope, replacing these with a set of harmonised requirements that would apply across the whole of the European Community. A supplier who could show that his product or service complied with these requirements could then market it anywhere within the Community, without needing any further testing or approval to satisfy national administrations.

During the final decade of the century, the telecommunications sector was brought into the Single Market. Fixed line services were dominant at the start of that decade, with incumbent national operators - either State-owned or recently privatised - as the leading providers. As these providers owned the infrastructure and wrote the technical specifications, it was not an easy matter to open the national markets to competitors, using harmonised rules. An early move involved the separation of the networks from the terminals so that suppliers could sell, and consumers could choose to buy, a wide range of telephone terminals to connect to the networks. By the end of the decade, this process was taken a stage further with Directive 1999/5/EC, known as the RTTE Directive. This abolished the former Type Approval regimes, except for terminals using the radio spectrum, so that equipment manufacturers became able to self-certify their products and place them on the market without any independent pre-market assessment or approval. If a terminal did not function, because it was unsuited to the characteristics of the network it had been connected to, that was a matter for Consumer Protection laws applying to a product deemed unfit for its stated purpose. However, the European Commission has reported that few problems of this nature have been encountered.

Provision of services is a very different matter from the supply of equipment. Fixed line networks developed and owned by State monopoly providers have technical, as well as cultural, associations within the State which may be deep-rooted. The scope for competitors to enter was therefore limited and a main aim of the initial liberalisation was to prevent the incumbent operators from restricting competition through abuse of their market power. A major difficulty was, and to some extent still is, that the final connection to each subscriber's premises was effectively controlled by the incumbent operator. Unbundling of this local loop to give access to competitors was going to be a complex matter. For residential users, unless they had access to cable services, competition in the fixed line networks was going to be from other providers reselling call time and offering alternative trunk networks, while the users still relied upon local lines rented from the former monopoly supplier. Harmonised liberalisation of fixed line networks across Europe was impractical and the services Directives reflected this by retaining a strong measure of national control.

The picture looked very different at the end of the decade. Mobile telephony had relegated fixed line services to the status of the Plain Old Telephone System (POTS) and the future for fixed line voice telephony was beginning to look problematic. Mobile networks were looking to 3G (Third Generation) services and were beginning to think about 4G. Greater bandwidth was being sought and promised in both fixed and mobile networks. For many users, the local loop could be upgraded to broadband capability by means of techniques such as ADSL, so that fast Internet access and multi-media capability could be offered in fixed line terminals. Above all, the convergence of various technologies now meant that it was no longer meaningful to think of the separate domains of telecommunications, broadcasting and the Internet. If it was not meaningful to think of these separately, it certainly was no longer effective to regulate them separately. Technological progress was fast and becoming faster, so a legislative framework that was not technologically specific was needed. In 2000, proposals for five new European Directives were put forward to provide this new framework across the whole area of electronic communications.

The Five Framework Directives

The five Directives proposed in 2000 were for:

These five Directives, together with the RTTE Directive of 1999, make up the current European regulatory framework.

Directive 2002/21/EC

The first of these Directives [Framework Directive, 2002/21/EC] sets the scene. It provides for the harmonised regulation of electronic communications services and it establishes the role of National Regulatory Authorities (NRAs), who will be responsible for administering the regulation in each Member State. There are two important exclusions in the Framework Directive; it does not cover the content matter transmitted by electronic communications services (although Member States may choose to add regulatory powers over content matter to the scope of their NRAs, as a matter of national legislation), also it does not extend to terminal equipment covered by the RTTE Directive. It is therefore significant that the European Parliament and the Council included the following statement in the Recitals to the Framework Directive - "It is important for regulators to encourage network operators and terminal equipment manufacturers to co-operate in order to facilitate access by disabled users to electronic communications services" (Recital 8).

The Framework Directive also contains the legal definitions of electronic communications networks and services, which will apply in determining the scope of this and the other Directives within the framework.

Directive 2002/22/EC

The second Directive [Universal Service Directive, 2002/22/EC] is crucial in setting out the basic facilities that Member States must ensure are available within their territories, and if these facilities are not provided by an open market then the Regulator must intervene to remedy the deficiencies. It is the definitive document describing user's rights and, separately, a set of social obligations which must be met by at least one service provider if not all. However, much of the obligatory provision is linked to the concept of a 'publicly available telephone service', which is defined for the purpose of this Directive and is far more restrictive than the broad concept of an electronic communication network. This restriction is bound to become increasingly insupportable as communication technologies converge and the consequent problems will inevitably figure in the process of regular review. Particular difficulties may be expected as voice over internet protocol (VoIP) services grow in popularity.

The definition of a publicly available telephone service (PATS) is linked to networks which support the handling of calls between network termination points (subscriber connections) that are identified in a national numbering plan. The calls may transmit speech, fax or data, and may be on fixed line or mobile, but the use of a national (or international) numbering plan is integral to the definition of PATS. These limitations to the scope of the Universal Service Directive must be noted when seeking to apply its requirements.

This Directive sets out various user's rights, some of which relate to the form of contract for the provision of service and others concern the nature of the service itself. All users of a PATS must be able to access operator assistance and directory enquiry services, and be able to call emergency services free of charge using the European call number 112. Calls to the 112 number must be answered and handled appropriately in a manner best suited to national conditions. Other facilities, such as tone dialling and caller identification, must be available subject to technical feasibility.

At first sight, it would seem that the right established in European law to be able to call emergency services using the 112 number would benefit those disabled users who were unable to set up and make a voice call, by requiring the provision of facilities appropriate to their needs. Unfortunately, this is not the case. The separation in these Directives of terminals and networks means that users are only able to exercise their rights if they are using appropriate terminals. The selection and provision of a terminal is the user's responsibility, unless it is a public pay telephone or has been supplied as part of the service provider's package. Even when the terminal has been connected so that a call can be made, the Directive does not require that the call be answered in the mode selected by the user. A 112 call sent as text (including SMS), fax or in a language unrecognised by the service is unlikely to be answered, and the obligations imposed by the Directive would appear to be met if the call is then treated as a 'silent call'. If the manner best suited to national arrangements is a speech response in a specified language, then that is all that is required to comply with the Directive.

In addition to the user's rights, which are to be respected in all relevant service delivery, the Universal Service Directive sets out basic requirements which are to be available to all users of PATS although not necessarily from all service providers. These include the assurance of a connection to the fixed network on reasonable request, capable of carrying voice calls, fax and data at rates sufficient to permit access to the Internet. The data rates offered have to stand comparison with those enjoyed by the majority of subscribers in the prevailing technology, so there is a presumption that this aspect of universal service will advance steadily. Other universal service obligations are to ensure the provision of a comprehensive directory, and a directory enquiry service available to all end-users. The provision of pay telephones is covered, in terms of numbers, distribution, accessibility for disabled users and quality of service. An important requirement is that Member States have to take specific measures to ensure that PATS is accessible and affordable for disabled users, with access to emergency services and directory information specifically mentioned. Although these universal service obligations are to be provided by a designated undertaking if the market fails to deliver them, Member States may act to ensure that disabled users do have the freedom of choice that is available to the majority of users. This could mean designating more than one undertaking to provide services or, especially where national legislation on discrimination applies, to require all service providers to ensure that their services are accessible. Here again, it must be remembered that action under this Directive does not extend to terminals, except where those terminals are part of the network.

A further feature of the universal service obligations is that NRAs are obliged to calculate the net costs to designated operators if they (the NRAs) consider that these may represent an unfair burden. If there is shown to be an unfair burden, Member States may decide to compensate the operators from public funds or to share the net cost between the providers of networks and services. This provision, which is a diluted form of the Universal Service Fund described in earlier Directives, allows for subsidy of unprofitable but socially necessary aspects of service. It would not apply where the obligations applied to every operator, as with non-discrimination legislation for example, for no one operator would then be taking an unfair proportion of the costs.

Although most of the Universal Service Directive is concerned with telecommunications, and continues provisions that were introduced in earlier sector directives, it does include outline requirements for the interoperability of consumer digital television receivers. Radio and television receivers are excluded from the RTTE Directive, so perhaps there was no other place to put this.

Review of the working of the Universal Service Directive is called for not later than July 2006 but the scope of universal service is to be reviewed one year earlier. This review of scope, to be repeated at three year intervals thereafter, is to look at changed circumstances of service usage by consumers and of service offerings to them, including technological developments. Altered patterns of usage in which a majority of consumers have migrated to types of service which are not available to others could lead to exclusion. There could be a general public benefit in promoting the availability of some types of service which market forces alone would not have achieved. Issues such as these are to be explored in the reviews of scope, with some emphasis upon the expansion of mobile and broadband facilities. The Commission is obliged to institute these reviews, gathering information as necessary from the Member States and the NRAs, and to report to the European Parliament and the Council.

Directive 2002/19/EC

This Directive [Access Directive, 2002/19/EC] sets out the conditions upon which access to infrastructure may be made available to competing network operators. If freely negotiated access cannot be achieved, the NRAs may intervene and establish the terms on which access has to be granted. These powers apply to arrangements for the interconnection of networks and the sharing of facilities, including sites for masts and other components of infrastructure. However, the powers for regulating the supply of leased lines are laid down elsewhere (in the Universal Service Directive). A crucial topic in the Access Directive is the unbundling of the local loop, whereby undertakings other than the infrastructure owner may be given shared access, or even full access, to this final link from the network to the subscribers' premises. Shared access means the capability to use the frequency spectrum of the local loop outside the voice band, for example for xDSL transmission, while the voice band continues to be used to provide PATS service. The opening of networks to other operators is a key element throughout these electronic communication Directives, and the Access Directive provides the means of ensuring this objective.

Directive 2002/58/EC

The Privacy Directive [2002/58/EC] updates earlier legislation concerning the confidentiality of personal data transmitted over electronic communications systems. It prohibits the retention of data required for setting up a call, after the call or billing process has been completed, and it makes provision for users to withhold personal information from directory services or calling line identifiers. These conditions can be over-ridden only in certain specified circumstances. Various types of unsolicited communication are prohibited. There are obligations on Member States to limit the use of line tapping and surveillance devices, other than for legally authorised purposes such as the detection of crime. Personal surveillance systems such as social alarms would be acceptable provided that the user has given consent, and a user could consent to a line tap in order to trace nuisance calls. In general, data about identified users may be stored by a network operator only if prior consent has been given, and the same restriction applies to the passing on of such data. This would seem to include information about a user's disability and the profile of alternative service provision requested. Storage of similar information on an intelligent terminal would then be subject to the same principle of consent.

Directive 2002/20/EC

This Directive [Authorisation Directive, 2002/20/EC] completes the set under the new framework. It simplifies the procedure for establishing electronic communication networks and services by making use of general authorisations, instead of specific licences and conditions applying in each case. Undertakings may be required to notify the national regulator of their intention to provide a network or services, and they must observe the conditions attached to the general authorisation for that type of network or service, but they do not need to negotiate individual licences. The conditions which the national regulator may apply are limited to those set out in the Directive and among these is the requirement to make financial contributions to the funding of universal service. Where the intended service is to be made available to the public, the conditions set out as Users' Rights in the Universal Service Directive will also apply and all undertakings will have the opportunity to be designated to provide elements of universal service.

Rights of use for radio frequencies, and for numbers from the national numbering plan, will usually have to be negotiated separately and may be subject to competitive tender or auction where supply is limited and demand is high. The main purpose of this Directive is to enable undertakings which have acquired use of radio channels, numbers, wayleaves and other essential pre-requisites to commence services without further negotiation.

The RTTE Directive (1999/5/EC)

To give it its full title, the Directive on 'Radio equipment and Telecommunications Terminal Equipment and the mutual recognition of their conformity' has the dual effect of harmonising and deregulating the supply of terminal equipment within the EU. It swept away the former approval regimes that closely regulated much of this equipment and, except where the terminal embodies a radio transmitter, it permits the manufacturer to self-certify compliance with the requirements of the Directive without the involvement of an independent assessor. The only independent assessments that must be undertaken before a product is placed on the market relate to proving compliance with radio spectrum management rules. Requirements that apply to all forms of RTTE are for the protection of the health and safety of the user and others, and for the avoidance of interference to other types of equipment. These requirements are set out in the Low Voltage Directive and the EMC (electro-magnetic compatibility) Directive, and apply to all forms of electrical apparatus in the consumer sector. Once a terminal has been properly certified as complying with the RTTE Directive, and the CE mark has been applied, it may be marketed anywhere in the EU without hindrance - although there are necessary provisions for removing non-complying equipment from the market. So all fixed line terminals are treated as consumer market products, as are mobile terminals that fully comply with harmonised standards applicable to them.

There is scope within this Directive for the European Commission to introduce further requirements applicable to apparatus of particular types, and for particular reasons. One of the stated reasons is to support certain features ensuring access to emergency services, and another is to support certain features in order to facilitate use by users with a disability. It would seem that these powers could be used to make specific accessibility features in terminals mandatory, but various organisations (including COST 219) have worked closely with the Commission to explore this possibility - so far without success. Three elements are necessary before a regulatory requirement of this kind can be introduced: it must be possible to define unambiguously the equipment types subject to the requirement, it must be possible to write the requirement in terms such that all parties will be able to see whether or not it has been met, and it must be possible to enforce the requirement. These elements are generally present when there is a pre-market approval system, because the approval body acts as the interpreter of the regulations. In a deregulated consumer market approach, there is no such certainty. Apart from the minimal action of requiring all terminals having a keypad to have a raised tactile dot on the '5' key, it is difficult to see how an effective accessibility facility can be framed under this Directive. There is a working consensus that further requirements will be introduced only in the event of market failure, that is where it is evident that market forces have failed to address a proven need. Since most terminals with keypads do have a tactile marker of some kind, even this modest feature is unlikely to become mandatory by this route.

Other discussions have centred around the protocols to be used by Text Telephones, which are dedicated terminals of a readily identifiable nature. These, however, are commonly described as 'legacy equipment' rapidly being superseded by other text send and receive facilities, and a requirement that could apply only to newly sold products would have little effect. Other solutions are available, based on network rather than terminal configuration, which can solve interoperability problems for existing users.

It would be premature to give up altogether on the possibility of introducing effective accessibility requirements under the RTTE Directive, but the prospects do not appear to be good and pressure to follow this line ought not to be allowed to deflect attention from other approaches.

Review of Directives

EU Directives are subjected to review at intervals of a few years and the RTTE Directive was being reviewed in 2004. One suggestion emerging from the review process is that RTTE which does not use radio and is not confined in its use to particular Member States for any reason should be removed from the Directive's scope. It would then become solely consumer market apparatus subject to the Low Voltage Directive and the EMC Directive, with non-compliances being investigated and dealt with by consumer protection bodies. That is effectively the situation now for this class of equipment, so little would be changed except that the Commission and its co-ordinating committee for the Directive would no longer have to take note of it. What would be lost is the opportunity to introduce a new requirement on accessibility under this Directive. Another suggestion in the review is that accessibility requirements should be considered with a view to mandating some action, although this is scarcely a review matter as the powers are currently contained in the Directive: lengthy and detailed considerations have produced no action to date. As these two suggestions are directly contradictory for the fixed line equipment class, the outcome of the review will be significant.

Review of the Universal Service Directive also commenced in 2004 and the progress of this will have a particular bearing on how the application of legislation develops. Two issues in particular are expected to dominate; the extension to the mobile sector of those universal service obligations which are at present confined to fixed line operators, and the inclusion of some elements of broadband services. The first of these is not likely to cause great controversy because market forces have already delivered most of what would be required, and more. There may be debate over the areas of special measures for disabled users required by some NRAs, particularly for a real-time two-way text facility coupled with access to relay services for connecting to non-text users. This, however, is a matter for NRAs to negotiate and it is undeniable that non-availability of a real-time text mode on mobile networks will lead to exclusion. A linked topic would be the introduction of an enhanced (ie ensured priority) SMS service for emergency calls, even if the 112 number could not be used.

Extension of universal service obligations into broadband services will be much more controversial, especially as the present Directive sets no preferred data rates, but refers only to 'rates sufficient to permit functional Internet access'. This has been regarded as a matter for interpretation by individual NRAs, taking account of the prevailing levels of service in their own territories. There is, however, an incipient problem with VoIP which, although not exclusive to broadband, is closely associated with the roll-out of added-value broadband facilities on the fixed line networks. The basic facilities demanded of PATS are not necessarily obligatory when VoIP is used, because the obligations could be held to apply to the infrastructure network and not to the xDSL component superimposed on it.

The review of the Universal Service Directive provides an important opportunity for influencing the scope of future regulation, whether that is to be at the community level or - perhaps more likely - by the introduction of further national measures with some informal harmonisation.

The Public Procurement Directive

There is a new Public Procurement Directive [Directive 2004/18/EC] which Member States are required to implement by 31st January 2006. It replaces a set of earlier Directives and amendments dating back to 1992/93, and these themselves replaced previous Directives. The importance of Community legislation in this area arises because public sector contracting could otherwise lead to serious breaches of the open principles of the Single Market. Public bodies would often frame contractual procedures in ways that were familiar only to the regular bidders for the contracts, and this made it very difficult for an outsider to get an invitation to tender. The variety of national approaches and technical specifications acted as a deterrent to bidders from other nations and such processes were fundamentally incompatible with the Single Market rules of transparency and fairness. The Community has devoted considerable effort to legislating for open procedures in public purchasing, with strict rules for advertising and awarding contracts. These rules also eliminate the use of technical specifications that would favour particular groups of bidders. The series of Public Procurement Directives has pushed purchasing bodies towards reliance upon European technical standards and specifications, or the national standards which transpose them, and Member States which persisted in using non-harmonised national standards have been fined heavily. It is possible for a public purchasing body to use non- harmonised specifications, where there are over-riding reasons for doing so (such as the need for compatibility with installed equipment), but the procedures for sanctioning this are lengthy and involve additional work. The simplest course is, as was intended, to use European technical specifications. However, one effect of this has been to prevent Member States from writing accessibility requirements into their public purchasing specifications, as such requirements are not commonly found in European technical standards used for procurement purposes. Public procurement has in consequence provided less of a lever to promote accessibility in Europe than it has in the USA, for example, where Government purchasing has had a pronounced positive effect on the availability of accessible ICT equipment.

The new Directive recognises this problem and goes some way towards adopting accessibility principles while still keeping to the fundamental rules of transparency and fairness. Recital 29 includes the comment "Contracting authorities should, whenever possible, lay down technical specifications so as to take into account accessibility criteria for people with disabilities or design for all users". It adds "The technical specifications should be clearly indicated, so that all tenderers know what the requirements established by the contracting authority cover". In other words, it is not sufficient to require that the items must be accessible; the manner of accessibility must be specified in a way that allows the tenderer to prove compliance. Recitals are not binding, but the Articles of a Directive are. Article 23 requires technical specifications to be set out in the contract documents, and includes the wording "Whenever possible, these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users". This is expanded in Annex VI, which deals with the way in which technical specifications define the characteristics required in the purchased items; among the listed types of characteristics are "design for all requirements (including accessibility for disabled persons) and conformity assessment".

With Directive 2004/18/EC, it will be possible to use accessibility criteria in public procurement even where accessible features are not immediately essential to the purchaser's objective. But in order to do this, there will need to be appropriate European standards which set out the criteria unambiguously and include tests for conformity. Developing these will not be an easy matter, especially in the context of sensory disabilities where the diversity of disability types is great, and the corresponding range of needs is considerable and sometimes mutually incompatible.

The European Commission has announced that it is working towards the issue of mandates to the Standardisation Bodies, in order to promote development of these standards, and this is a move which is to be greatly welcomed.

The Employment Equality Directive

The principle of equal treatment in the workplace is well-established in Community law, being regarded as an essential factor in fostering freedom of movement throughout the European Union for its citizens, which is one of the four freedoms declared in the founding Treaty of Rome. Equal treatment for men and women was introduced in a Directive in 1976 and some other aspects of discrimination were addressed in later legislation. Then in 2000, the Employment Equality Directive [2000/78/EC] set out a general framework covering all forms of discrimination in the workplace, extending the legislative scope to discrimination on grounds of disability and age (among others). As this is a framework Directive the specific legislation is left to Member States, who were required to implement the necessary measures by December 2003, although an additional period of 3 years was allowed to those whose situation did not make achievement of the earlier deadline possible. Any Member State which needs to take advantage of this extended period has to report annually to the European Commission on its progress in tackling age and disability discrimination. Several of the Member States had, at the time of entry into force of this Directive in December 2000, already enacted legislation against discrimination in the workplace, covering most if not all of its objectives.

In order to avoid discrimination against disabled people employers have to adopt reasonable measures to accommodate them; the test of what is 'reasonable' being made by reference to the prevailing disability policy within the Member State concerned. The required measures will not necessarily be limited to matters of physical access but may include the provision of assistance or equipment of various kinds that will enable the disabled employees to perform the tasks, to engage in training and participate in other work-related activity. In the area of electronic communication, it follows that reasonable measures to accommodate the needs of employees with impaired vision, speech and hearing are likely to be demanded.

This Directive, and the national legislation that implements it, will not place direct obligations upon suppliers of workplace equipment to include features which improve its accessibility. However, the obligations placed upon employers will inevitably influence their choice when purchasing such equipment. The cost of modifying individual items of equipment at a work-station to facilitate use by a disabled employee may be a significant factor when considering purchase of ICT systems, so that the ease of adaptation of terminals may then be an important procurement criterion. It may be considered unreasonable for an employer to replace his entire telephone system because it is incompatible with the needs of a hearing-impaired user, but the installation of a separate line could be seen as the accepted - if expensive - practice. Systems which have the needed facilities as options at installation and as 'retro-fits' will come to have a commercial advantage. The effect of non-discrimination can be expected to drive the business equipment market in this direction.

National Legislation in the EU

Many European Member States have legislation in place which bears directly or indirectly upon the accessibility of electronic communication services. This may take the form of provisions in the national Telecommunications Acts or it may be more general, for example as a requirement to take account of the needs of disabled people in employment. A few States have horizontal legislation that prohibits discrimination upon grounds of disability in all areas of commerce and services. Others have implemented policies of non- discrimination in central and local government service, without introducing legislation that would require other organisations to follow suit. The Nordic countries in particular have well-established systems for supporting disabled people and for providing the types of service delivery and the equipment which are needed, funded either by the State or by the telecommunications service providers.

In some cases, the provisions for disabled users made in national telecommunications regulations are simply a continuation of the earlier arrangements that applied when the service providers were State monopolies and, although the precedents are important, the detail may be out of date. A case can be made for further harmonisation without infringing the principle of subsidiarity and without attempting to dictate how the measures should be funded, as each Member State will have its own national preferences. However, electronic communication is global rather than national and the EU should at least be able to foster a system which appears to be seamless to the roaming traveller. There are mechanisms for doing this which do not require new Directives and these will be examined further in the following Parts.

More information about national legislation may be found in Bridging the Gap, Editor: Patrick Roe, COST 219bis, published by the Commission of European Communities, November 2001.

Legislation in non-EU Countries

In Australia the Disability Discrimination Act of 1992 and the Telecommunications Act of 1997 are the primary drivers for accessible telecommunications. The DDA was quickly used to establish that a disabled user was discriminated against when his telecommunications service provider failed to supply him with a rented terminal suited to his needs. This finding led to the expansion of network services for disabled users and an increased range of terminal types for rental. Then the concept of universal service was taken up in the Telecommunications Act, with obligations on the designated providers that are similar to those found in the EU. Carrier licences for all operators include a condition that an industry development plan must be provided, and one aspect of this plan is the notification of the carrier's activities in the development of facilities and the supply of equipment to address the needs of disabled people. Consumer representation is accepted as important and the Act provides for State funding for this purpose.

In the USA, there are three legislative drivers: the Americans with Disabilities Act, Section 255 of the Telecommunications Act, and Section 508 of the Rehabilitation Act. The ADA enshrines the rights of disabled people to make use of facilities and services that are available to the general public. It does not include a demand that manufacturers must make products that are accessible - it is the access to the goods, rather than the goods themselves, that must not exclude anyone on grounds of disability. In contrast, Section 255 of the Telecommunications Act does require the manufacturers of telecommunications equipment to make products that are accessible wherever that is readily achievable. Section 508 of the Rehabilitation Act goes further by stipulating that the Federal Government and its agencies should give preference in their purchasing of ICT equipment to models which are accessible, unless it would present an undue burden to do so.

Further information about legislation in Australia and the USA may be found in the COST 219bis publication Bridging the Gap, referenced above.

This very brief summary of national legislation points to the difficulties of making regulatory demands upon manufacturers of electronic communications equipment, so as to influence the accessibility of terminal equipment. The Americans with Disabilities Act in the USA stops short of a requirement that goods should be accessible. It is 'access to goods', meaning the ability to use the services of shops and other suppliers selling goods, that must be available to people with disabilities. The Disability Discrimination Act in Australia, and its counterpart in the United Kingdom, both adopt the same principle. It is not possible in a free market to tell manufacturers what they should make, although it is possible to impose general requirements - such as those for product safety - on the items which they do decide to make. If formal Standards that defined a broad consensus on the concept of accessibility existed, in the manner of product safety standards, then the situation might be different. Section 255 of the US Telecommunications Act imposes accessibility requirements, although there might be debate as to what precisely these should be, but the EU has deliberately dismantled the regulatory environment which is needed to make such rules enforceable. Similarly, the government preference exercised in ICT equipment purchasing would be subject to challenge if applied in an EU Member State, because of the rules on fairness and transparency, unless the accessibility requirements were set out in a formal standard accepted throughout the Community. These issues will be considered in later sections.

Part Two

Scope for Regulatory Measures

Introduction

The shape of European legislative measures relating to electronic communication, and to the prevention of discrimination, has been described in the previous sections. These measures can be regarded as - for the most part - set and enduring. This is because they are recently adopted pieces of legislation, deliberately drafted so as to make them 'future proof' in as far as that is possible. Enacting and amending legislation in the enlarged European Union is expected to be a lengthy matter, requiring the consent of the representatives of 25 Member States in the Council and in the Parliament. Therefore, this will involve extended periods of negotiation and discussion on any contentious matter in order to arrive at a common position which may then be acceptable when put to the vote. Extended negotiation places heavy demands upon the Commission's resources and this in turn limits the number of issues that can be handled. These difficulties are greatly eased if the legislative measures have many years of validity before significant updating amendments are needed. Frameworks, setting out objectives, have a longer life-span than detailed measures and the implementation of framework objectives through national legislation and regulation serves the dual purpose of easing the burden at the centre and allowing recognition of national sovereignty through the mechanism of devolution known as 'subsidiarity'.

The operation of all EU Directives is subject to regular review, but the amendments seen to be needed as a result will be minimal if the future-proofing objective has been successfully reached. This will clearly be highly dependent upon the subject matter and, for example, a review of universal service obligations - which are geared to levels of public expectations - will produce more demands for change than a review of the authorisation process, which should be essentially stable unless severe operational difficulties have been exposed. The process of review of the Universal Service Directive and the Terminals (RTTE) Directive has been commented upon in the previous part.

The possibility of completely new EU legislation affecting the quality of life for disabled people must not be forgotten, although this must command sufficient support and goodwill if it is to get priority in the legislative queue. An EU Directive prohibiting discrimination has been mentioned as such a possibility, drawing perhaps on experience with similar legislation in the USA, Australia and the United Kingdom. Under legislation of this kind, electronic communication services offered to the public would have to recognise the requirements of people with disabilities and the obligations would apply to all operators of public services - not solely to those designated as universal service providers. Until such a Directive is in place in the Community, laws to combat discrimination will remain piecemeal, either in the form of sector-specific Directives or as wider horizontal legislation that is only of national relevance. The avoidance of discrimination is a declared Community policy, so it may be assumed that the introduction of an appropriate Directive is simply awaiting a suitable opportunity in the legislative process.

If few significant changes to existing Directives are likely to arise from the review process, any development of the legislation must come from other sources. The detailed interpretation of the framework objectives is an inherent component of the national implementation and this is largely the province of the National Regulatory Authorities. There is considerable scope here to take matters forward by constructive application of the framework principles, but with the potential danger that national practices and preferences will lead to major divergences when a more desired objective would be harmonisation. However, there are some important mechanisms in place which should avoid this danger and these will be described in the following sections.

National Regulation - NRAs

The implementation and surveillance of the set of framework Directives on electronic communication and, to a lesser extent, of the RTTE Directive, rests in each Member State with a National Regulatory Authority (NRA). Each European State is required to set up such a body to manage the implementation of these Directives, and the powers of each NRA are established in the national legislation which gives them effect. Those formal obligations arising from the Directives which are not fully covered by the national legislation will then be addressed by the NRA, which will itself create national regulations for the purpose. Therefore, although the structure of the NRAs for electronic communication may not be identical across the whole of the EU, their powers and duties will be broadly similar and they are all required to co-ordinate their activities through a formal process of liaison with the Commission.

By this means, achievement of the objectives that are set out in the framework Directives is open to scrutiny and the progress of each Member State in meeting its legal obligations is reported. This same liaison process allows also for the reporting and comparison of national policy measures which are within the subsidiarity arena. In other words those actions taken by Member States which are permitted and encouraged, although not specifically demanded, by the framework Directives can be reported to the Commission for information and comment. This provides a mechanism through which those initiatives which are then considered to represent examples of 'best practice' can be fostered, and informally harmonised, to produce a cohesive area of policy across the Community. The monitoring and reference point for the set of electronic communications Directives is defined within them; it is the Communications Committee, known as COCOM.

The Role of COCOM and INCOM

The Communications Committee (COCOM) is made up of representatives of the national administrations, including their NRAs, together with Commission staff and other interested parties. As noted above, its function is to oversee the working of the electronic communications Directives and record progress towards implementation of the obligations imposed by them. It can also act as a forum for discussing the measures which Member States have introduced under their own subsidiarity powers - measures which are consistent with the framework but not expressly demanded by it or defined within it.

Member State administrations which have introduced such subsidiarity measures, and those which are contemplating doing so, may see some merit in agreeing upon a set of common policies and practices which would with advantage be harmonised, although such harmonisation would go beyond the direct obligations set out in the Directives. Such areas of voluntary harmonisation might include, for example, the operation of various service measures to assist disabled and elderly users. Introduction of such measures is generally left to the discretion of individual Member States but some harmonisation is highly desirable if seamless levels of service are to be enjoyed throughout the Community. For these reasons, the Commission is bound to assist and encourage the evolution of elements of service provision (which are non-mandatory at the European Union level) where they align with declared community policies.

Early in 2003, the Commission established a sub-group to COCOM, which became known as INCOM (meaning Inclusive Communication). It is useful to mention the background to INCOM, because it does illustrate the sometimes complex ways in which progress is made towards common goals. When the RTTE Directive completed the liberalisation of the terminals market, and the pre-market regulation of terminals was reduced to an absolute minimum, the remaining national regulatory controls that had ensured availability of some accessibility features had to be discarded. At that point, discussions had already begun on ways of protecting the interests of disabled users should the free market fail to meet their needs.

The division between terminals and networks has been described earlier, as one of the by- products of telecommunications liberalisation. This division is fundamental; a parallel might be seen in the electrical consumer goods sector, where there is no suggestion that the supplier of electricity to residential users has any responsibility for the provision of the appliances which those users might wish to connect to the supply. Electricity suppliers may choose to sell appliances as a linked part of their business, but they have no monopoly in that market and no remit to dictate to users what kinds of appliance may, or may not, be connected. The telecommunications parallel is not quite so simple because a telephone terminal reacts with the network in more complex ways than the powering of - for example - an electric heater. However, consumer protection legislation removes from the market any electrical appliances that could cause harm to the user or to the network, and the equivalent protection in the telecommunications terminals market also appears to be effective in the majority of cases. But it was realised at an early stage in the liberalisation process that dismantling of the pre-market approval system could result in the loss of some safeguards for disabled users, and this has been an active topic of discussion since then.

The RTTE Directive has its own monitoring committee (TCAM) which, like its predecessor TRAC under the previous Terminals Directive, has spent much time in considering the difficulties that might be caused for users with disabilities as a result of the liberalisation process. Several sub-committees to TRAC and TCAM have considered the situation, and have taken views from disabled people and their representatives. Their conclusion has been the same in each case: while there may be a need for regulation to ensure that suitable accessible terminals are available (and affordable), the RTTE Directive does not provide an effective mechanism. Even if a case can be made to show that necessary equipment is unobtainable, it does appear that there is no way of specifying sets of features for mandatory inclusion in all terminals so as to resolve the most pressing problems of inaccessibility. This conclusion may be challenged, but it remains true that repeated examination of the issue over the past six years or more has resulted in broadly the same result. The deregulatory nature of the RTTE Directive makes it an inappropriate vehicle for introducing regulations on accessibility, so an alternative approach is required. TCAM concluded that it could do no more and so it referred the matter to the Commission, with the inference that measures to assist disabled people were better dealt with as part of the social aspects of universal service.

The Commission responded speedily to this approach by setting up the INCOM sub-group to explore the question. INCOM is made up of representatives from disability organisations in Europe and from Member State administrations. It produced its first report and recommendations at the end of 2003. The report set out the difficulties facing disabled users in some detail and outlined the practical measures needed to resolve these. An immediate result is that awareness of the needs and realities has greatly increased throughout the electronic communications sector. COCOM began to consider the report at the start of 2004 and is making progress, although the issue of availability of accessible terminals still presents problems. INCOM is still in being and will present further information and evidence to COCOM whenever it is required, but the major action has moved away from equipment manufacture and is now with service provision.

Terminal Equipment and TCAM

As mentioned above, TCAM is the monitoring committee for the RTTE Directive. Because this is a liberalising Single Market Directive, most of the action revolves around the interpretation and monitoring of its very specific requirements. These requirements chiefly concern the use of radio spectrum and the avoidance of interference; conformity with the other requirements is readily established and gives rise to little subsequent discussion. There are powers in the Directive to introduce further specific requirements if these are considered necessary; one particular area where these powers apply is that of accessibility features in terminals and another is means of access to emergency services. TCAM has long used a set of rules by which the necessity of further requirements can be assessed, and principal among these is the question of market failure. If the free market is failing to deliver, or if it is delivering products which are potentially harmful, there is good reason to intervene, but with certain reservations. There has to be well-documented evidence of a problem, and it has to be clear that regulation (under the Directive) will be able to resolve it. The difficulty of drafting effective and enforceable mandatory requirements is a major factor here. If other regulatory routes could produce a better solution, then regulation under this Directive would be opposed. Application of these rules to the accessibility question usually results in a negative decision on regulation. A key issue would seem to be that the concept of market failure has different meanings for different people. To the industry, market failure arises when needed products are simply unavailable, even from niche suppliers at elevated prices, while the user may see market failure as the non- availability of desired products in a range of choice and price that compares with other market segments. So far, the only additional requirements that have been adopted have been linked to life-saving equipment on land and on coastal waterways, in order to permit the removal from the market of potentially dangerous devices.

Standards and Mandates

Directives will not set out technologically specific requirements, to be met in delivering services or in the construction of equipment. This is because technology changes rapidly, particularly in the electronic communications sector, and requirements of that kind would restrict development as well as quickly becoming outdated. A Directive may specify requirements of a functional kind and, where technological harmonisation is vital, it will refer to published standards.

European standards, from the standards bodies CEN, CENELEC and ETSI, form the basis of most of the standards called up in legislation in the EU. Compliance with the relevant standard is frequently 'deemed to satisfy' the associated legal requirements set out in a Directive, and use of a formal published standard will prevent charges of unfair practice in public purchasing. Compliance with standards is voluntary, unless the standard has been specifically cited in legislation, but suppliers will usually consider that compliance is a valuable means of demonstrating that their products or services are fit for purpose. The same could apply to accessibility features but there is a very considerable problem in that accessibility standards are not readily available except for physical access situations (such as wheelchair entry). The reason behind the problem lies in the very considerable diversity of function and need that is encountered with sensory and cognitive disabilities.

In pushing for accessibility requirements to be addressed in equipment and services, it must be accepted that the standards bodies are being asked to undertake a major and difficult task in setting out practical and achievable requirements. The Commission has indicated that it will issue mandates for the production of such standards but this production will not be a short-term task.

Although all the European Standards bodies have specialist groups that are looking at human factors issues, they will need more input from consumer bodies in the disability field, and a means of funding that resource will have to be found. A mandate from the Commission to produce standards means that additional funding will become available and the priority attached to the project is raised, but it cannot create experts in standards writing who have a comprehensive understanding of disability issues. In the short term, with an absence of formal standards to underpin regulation, it seems inevitable that much reliance will have to be placed upon Codes of Practice, which can be accepted by national regulators as an interim measure. Co-ordination of a programme to develop such codes could do much to facilitate the eventual production of formal standards.

Part Three

Outcomes

Standards and Yardsticks

The role of standards has been emphasised in the previous section, as a means of giving practical detail to the broader functional objectives set out in Directives and resolutions on Community policy. A requirement to ensure that a service is accessible to people with disabilities has little meaning in itself, for some disabled people will have no difficulty in using a particular service while others may never be able to use it, whatever special facilities are offered. Endless argument can be avoided only if there is a working definition of what is meant by 'accessible' while at the same time recognising that this definition will itself be transient, being subject to revision as technology brings more facilities within reach and growing expectations increase the legitimate demands of users. Published standards, which can be revised more readily than legislation, are the preferred means of stating these transient working definitions, but to be effective they must be written in a partnership involving the industry - who will understand what is possible - and the users - who will appreciate what is needed. The proper use of a standard involves at least two elements: a clear statement of what is required and a means of demonstrating unequivocally that it has been achieved. The manufacturer or service provider is entitled to ask 'How do I know when I have complied with the standard?' and it is a non-trivial question. Suppliers and consumer bodies have to be able to take a standard and assess compliance with it on a properly objective basis for, if they cannot do so, its value as a standard must be doubtful. In short, there have to be yardsticks by which accessibility can be assessed in practice.

Writing accessibility standards in this form is not an easy matter, demanding much co- operation and patience. There are particular difficulties in matching this process with the needs of a fast-moving technology based industry, where technical standards tend to emerge from an industry consensus which is founded upon the cautious sharing of commercially confidential information. Users are not normally invited to participate in this activity and by the time the discussions become more open, for example in the various Standards bodies, the key decisions may have been taken and the de facto standard cannot be modified.

Inclusive Design: Design for All

If user views are to gain currency before the restricted conferring has been completed, at which point it may be too late to consider accessibility issues, they have to be presented in advance - in the form of awareness of disability issues. To do this as a reaction to products and services which are still a gleam in the suppliers' eyes is clearly impossible, so the principles rather than the details have to be introduced. The suppliers' design teams can then work with this information about potential users in their portfolios, so that the eventual product is aimed at a wider cross-section of the population than might otherwise have been the case. This is the process of inclusive design - sometimes known as Design for All, although it really means Design for More. Work is in progress on standards describing this design process and it seems increasingly possible that, like Quality Management, it will become an integral part of any serious design and development operation. It is already being suggested, in relation to public procurement for example, that it could become an auditable requirement in tendering and contract negotiations. For disabled users of goods and services the advantages are considerable. Bringing accessibility factors into mainstream products means that there are more products likely to suit their needs without going to special solutions, resulting in more choice at competitive prices.

Testing for Accessibility

Regardless of whether accessibility in some form is demanded by legislation and regulation, there is and will be a need to test products and services to see whether and in what way they are accessible to people with disabilities. Consumer bodies, especially those who work closely with disability organisations, want to test and report on items in order to inform user choice. Manufacturers and suppliers who have recognised disabled and elderly people as an important market segment want to be sure that their offerings are suitably designed and presented. Where there is regulation, the regulatory bodies themselves will need to carry out tests to see that the regulations are heeded, and to gather evidence for actions when they are not. Large scale buyers, who have written access requirements into their purchasing specifications, will want to verify that the offered items comply. All of these parties contribute to a growing demand for accessibility testing but, as has been noted earlier in connection with standards, it is valuable only if there is some consistent view as to what is meant by accessibility and some objective approach to the method of testing.

The COST 219ter Action is currently examining the process of accessibility testing, with the object of developing some guidelines for those who are uncertain of how to proceed. Because of the great diversity of disability, it is rarely possible to find a single set of criteria which will indicate that an item is accessible. In fact, 'accessible' does not relate to a unique entity, as it must be viewed in the context of the abilities and requirements of whatever target group of users is envisaged. So terms such as 'accessible' must always be linked to such a group; 'accessible to whom?' is the proper question. The user testing can be done with carefully matched groups, so that the results will be valid for users who approximate to the characteristics of those groups, but the target should be to extract objective criteria so that future testing can be done without the difficulty and expense of assembling matched groups of users. This is a common enough principle in developing test methods but it has to be done with particular care, on account of the diversity encountered in disability. There have been instances where products claimed to be 'accessible' as a result of tests have been found to be very difficult to use when real people attempt to access them, and this is hardly a helpful situation. It is inextricably linked to the question of standards and leads to the same conclusion, that it is essential to have yardsticks by which accessibility can be assessed in practice.

Conclusions

This paper has reviewed current legislation in the EU concerning electronic communications systems and the extent to which they must take account of the needs of people with disabilities. The limits to what can be achieved by legislation are set by the difficulties of accounting for the extremely wide variety of functional ability that is linked to disability and ageing. It is quite easy to set down splendid aspirations but very difficult to define precise measures. Perhaps this is not as dispiriting as it appears, because technology moves fast and public expectations grow at a matching rate, so a flexibility that allows for evolution can be welcomed. The issue is how the accessibility gap can be narrowed in the ICT arena, giving equal measures to disabled people, without reliance upon further detailed legislation. An anti-discrimination Directive would help to promote general awareness of the issues, if experience in those countries which have adopted similar legislation is an indicator, but there are other possibilities. These hinge upon the scope for national measures which EU Member States are entitled to adopt, and the ability of users at the 'grass roots' to influence their national regulators as well as the providers of ICT goods and services. This triangle, users - service providers - regulator, tends to be close enough at the national level for an interactive and constructive dialogue. In a number of Member States it is obviously already happening. What is then needed, because electronic communication is not confined by national boundaries, is a means to introduce informal harmonisation of the best of these national measures. That means does appear to exist in the form of COCOM, the Commission's monitoring Committee, with advice and support as required from the sub-group INCOM. If there can be added to that some liaison with TCAM, the equivalent Committee dealing with terminals questions, there is hope that the subject can be moved forward in line with the known policy directions for the Information Society in the Community.

Specific issues which national disability groups might wish to press for are:

The COST Programme

COST is an intergovernmental European framework for international co-operation between nationally funded research activities. COST creates scientific networks and enables scientists to collaborate in a wide spectrum of activities in research and technology. COST activities are administered by the COST Office.

Further information: www.cordis.lu/cost/

COST 219ter

The main objective of COST 219ter is to increase the accessibility of next generation telecommunication network services and equipment to elderly people and people with disabilities by design or by adaptation when required. In cases where this cannot be achieved, the project will promote the establishment of appropriate supplementary assistive services and equipment. Taking always into account inclusive design in telecommunications, especially in the mobile field, the objectives are to:

Further information: www.cost219.org

PhoneAbility

PhoneAbility is the independent UK focal point for telecommunications and the needs of disabled and elderly people. The group acts as a catalyst in this area by:

It also acts as the UK reference group to COST 219ter.

Further information: www.tiresias.org/phoneability

Equal Measures: Closing the Accessibility Gap

It is intrinsic to the spirit and to the letter of EU legislation that accessibility to electronic communication networks is available to everyone; the Information Society is heralded as an inclusive society.

COST is supported by the EU framework programme

 

 

Last updated: 20.11.2007    © Copyright reserved