PhoneAbility

6. Will current or future legislative and regulatory policies make for better design of communication equipment?

Tony Shipley - COST219/PhoneAbility

Perhaps I had better start with a few words of explanation about COST219. The COST programme is a series of collaborative ventures in science and technology, mainly among European Union member countries but with a few illustrious partners from outside the EU. Its formal title is 'European Co-operation in the field of Scientific and Technical Research' and the project line COST219 addresses 'Accessibility for All to Services and Terminals for Next Generation Networks'. The current project is the third COST219 action in a sequence that began in 1987 and the theme throughout has been access to telecommunications by disabled and elderly people. In PhoneAbility, which is the national reference group for COST219 in the United Kingdom, we have paid particular attention to the legislative and regulatory background in telecommunications, because that is where the obligations of service providers are established and where the powers to intervene, should the service be unsatisfactory, are to be found.

Telecommunications has changed out of all recognition since the start of COST219 in 1987. COST projects are by their very nature forward-looking, because they are founded in the process of scientific research, but even so the early reports from COST219 have a flavour of times past. Fixed line was dominant and the exciting future was going to be digital, with the ISDN as the way forward. Mobile scarcely got a mention and the anarchic flexibility of the Internet had yet to be conceived. But if the flavour of those early reports now seems to be somewhat quaint, that could not be said of the substance, for the examination of barriers to access was couched in fundamental principles rather than in transient detail. That is of course the way in which researchers seek to ensure that their work will have long-term relevance, and it is a strategy which has come to be adopted by legislators when they are confronted with fast-changing technology.

The telecommunications sector within the European Union is subject to legislative Directives that have been negotiated and agreed upon by the Member States. Those negotiations are in themselves a lengthy process and they will not be made easier by the EU's enlargement. It is seen to be in the common interest to 'future-proof' such Directives by concentrating upon the fundamentals and leaving the details of specific technology to be handled in other ways, for example through reliance upon Standards. As the sector forms part of the European Single Market, the legislative package limits the powers of individual Member States to introduce national legislation, and it is of course part of a global industry in which the EU cannot afford to be isolated. One most significant consequence of the global picture is the recognition of a factor which has come to be known as 'convergence', which simply means that the hitherto separate domains of telecommunications, broadcasting and computing are now so closely interwoven and so independent of territorial boundaries that it is futile to attempt to legislate for them individually. We now have to get used to the term 'electronic communications' to signify any or all of them and the sector legislation in the EU adopts this framework.

So, can we expect that legislation and regulation applied to this ubiquitous sector of electronic communications will result in better equipment design, and what is a better design anyway? The answers to these questions will depend upon your point of view, but there certainly will not be an instant flash of enlightenment. We should not expect to see prescriptive regulations governing the features to be included in every terminal, except in the most general terms, for that is not the way of a de-regulated market.

To examine this topic further we need to think about what we mean by the term 'design'. It is easy to determine that an object is badly designed, for it will offend our aesthetic sensibilities or fail to function in the way in which we had hoped. We might consider that the design is good if the object is pleasing to the eye and to touch, as well as performing all the functions we require of it. Already we are in the realm of personal judgement, and therefore personal choice. But personal choice is meaningful only when there is a selection from which to choose, otherwise the only choice is 'take it or leave it'. So perhaps we must conclude that better design, especially in the context of utilitarian devices, must be linked to a situation in which a range of the devices is available from which we can make our choice.

Design is a creative process of a kind that is resistant to improvement by legislation, so any beneficial impact of regulatory policies might more readily come about through the removal, rather than the imposition, of restraints. The European Union has very deliberately followed a strategy of de-regulation in its approach to the Single European Market and that strategy has been enthusiastically supported - and in many instances led - by the United Kingdom. The social and economic benefits of creating a relatively unfettered environment for innovation are there to be seen, notably in the electronic communications sector where the pace of development has been tremendous. The scope for innovation is so vast that the resulting range of products and services to choose from is bewildering. Electronic communications are a major contributor to changing lifestyles, not just in our homes and our workplaces but on the move as well. And this is with Third Generation networks just coming into being and Fourth Generation still in the research stage. It is no wonder that legislators have given up the notion of intrusive control.

But there is another side to this picture. The consumers who benefit most from this market-led philosophy are those whose needs coincide with those of the majority. Those who require anything other than a mainstream product may well find that their needs are not well-served. The situation where the market does not deliver necessary products or services, or delivers them only at inflated prices, is termed 'market failure'. The legislators have recognised this possibility and in consequence regulators are empowered to intervene in such circumstances. Persuading the regulators to intervene may be difficult however, especially where the 'market failure' relates to the non-availability of a specific product type, such as a telephone terminal with particular accessibility features. Action on market failure of this type is made difficult by the structure of electronic communications legislation in Europe, which has deliberately created a division between the network and the terminal.

There are no powers within the EU Single Market to force a manufacturer to make a certain type of product, so any regulatory requirements concerning goods have to be applied to all the products in a definable class, and to all imports as well as those manufactured anywhere in the EU. For telecommunications terminals, these regulatory requirements are largely confined to safety measures and to spectrum usage (for radio terminals). Although there is provision in the relevant Directive for the introduction of measures that would facilitate access by disabled users, extensive discussions over the past six years have failed to persuade the European Commission of the need to use such powers. Having de-regulated the terminals market and dismantled the pre-market approval system that monitored products offered for sale, there is a very strong reluctance to re-introduce regulation. Coupled with the understandable desire to avoid inserting technology-specific (and therefore potentially short-lived) requirements in legislation, and the likely conflict with World Trade obligations which the EU has signed up to, these factors mean that there is in-built opposition to further regulatory requirements for terminals. In fact, there is some pressure for further de-regulation on the grounds that terminal equipment that does not use radio spectrum could be treated as ordinary consumer goods and subjected only to general consumer protection measures.

National regulators, such as OFCOM, have considerable powers to act within their territory and within the framework imposed by the Electronic Communications Directives. Those powers, however, are much more concerned with networks and services than with equipment. As we have noted, there is no provision within the Single Market to force manufacturers to make any particular product, and there is no scope for the introduction of national technical requirements related to the design of terminals. We must remember also that the Disability Discrimination Act, which applies to the provision of goods and services in the United Kingdom, does not extend to the features of the goods offered for sale, but deals only with the manner in which they are sold. If there is no desire to introduce EU-wide accessibility requirements for terminals, the only way to influence manufacturers and importers to offer accessible goods is by persuasion. If persuasion fails, the only avenue left may be for the Communications regulator to arrange for the purchase of a quantity to special order, so that the desired features are included, and then make them available to users. This avenue is complicated by the problem of finding the funds for such an initiative, as regulators are not in the retail business.

In theory, the funds could be raised by means of a levy on the industry - using a mechanism known as the Universal Service Fund - or by allocation from central or local Government, but this is a debate that can be protracted endlessly. The notion of the Universal Service Fund is that socially necessary but financially non-viable telecommunications services can be made available by designated providers, who then reclaim their losses through contributions from the other service providers, under the watchful eye of the regulator. Since the purpose of the exercise is to ensure access to the services as a right for Europe's citizens, and since access is impossible without the appropriate equipment, it should be possible to apply this principle to equipment supply. There are some precedents in the EU for so doing. However, recent discussions have shown that the European Commission is retreating rapidly from any further consideration of this possibility. The reason perhaps is not hard to find. Extension of the earlier telecommunications legislation into the field of broadcasting, under the new heading of Electronic Communications, does create the concept of universal service in this sector also, particularly to meet the costs of public service broadcasting. To raise the issue of subsidised equipment supply as well would seem to be a complication too far.

The situation as described in the EU is clearly very different from that in the USA, where legislators and regulators have introduced various measures, some highly technology-specific, to improve accessibility. In the past these have proved very effective and many disabled people will wonder why they are not copied here. Last year, the Federal Communications Commission announced that manufacturers would be required to offer hearing aid compatible mobile handsets to network carriers, who would in turn have to offer them to users. The handset manufacturers will have to resolve the interference problems with hearing aids, and include a facility for inductive coupling - a set of requirements that many here would no doubt approve of. Could this be done in the EU, when the legal framework does not allow a regulator to tell a manufacturer that some of his product must have this or that feature?

Demanding specific features such as inductive coupling poses difficulties, but the interference question is different. Mobile phones that cannot be used with hearing aids because of interference are arguably in breach of the general requirement of the EMC (ElectroMagnetic Compatibility) Directive. Unfortunately, this Directive is impossible to interpret without reference to European Standards and we hit the problem that the expert committees that draft standards for hearing aids and standards for mobile phones have little to say to each other - they are not even working for the same standards body. Hearing Aid standards are within the jurisdiction of CENELEC, while telecommunications standards are under the management of ETSI. In contrast, the American Standards body ANSI has shown that significant reductions in interference are possible with existing technology, given co-operation between the makers of hearing aids and mobile handsets. Both industries are represented at this meeting, so perhaps the Panel discussion can throw up some answers.

The interference problem is not the only one where the hearing aid and the mobile phone industries need to get together. Compatibility is not just a matter of avoiding interference but, as the FCC has noted, it is also about communication between the devices, that is, coupling. The FCC has mandated inductive coupling, with reason, because it is the only widely used modality at present. But will it still be in 2008, when their new requirements take full effect? There are plenty of good technical reasons why it ought to be superseded, to be replaced by a mainstream modality that supports communication between all types of peripheral devices. We do not have one yet, but there are several possible contenders. Replacing an old and marginalised coupling technology with a multi-purpose and efficient state-of-the-art facility would certainly rank as better design, but it will be industry co-operation rather than legislation that will bring it about.

What I have described adds up to a fairly bleak prospect. What have bodies like COST219 and PhoneAbility been doing all these years if so little has been achieved? Neither of these organisations sees detailed regulation as the answer for improving equipment accessibility, but the legislative process does play an important part. It is not just that over-detailed regulation acts as a brake on technological progress but, more importantly I think, there has to be a recognition that the diversity of disability brings conflicting requirements. If there was to be a mandatory requirement for accessibility, then accessibility for whom? A terminal that was accessible to all the disability groups that put their views to the recent INCOM meetings, where this topic was discussed in Brussels, would have to be put on wheels. It certainly would not be portable. It could never merit the epithet 'better design'. It would illustrate the old industry saying that 'a camel is a horse designed by a committee'. But nobody really meant it quite like that. What the users want, what the pressure groups want, what COST219 and PhoneAbility want, is a range of products that permits people with any of the multitude of forms of disability to be able to choose the equipment that suits their purpose. So can we legislate for that? Well, not directly but we can circle round it.

The answer must lie in awareness, in particular awareness amongst manufacturers and service providers that there is a great range of abilities across their customer base. A range that needs to be considered very carefully when they conduct their market studies and plan new products. Some suppliers have done this for a long time, but others need to be convinced that it is in their own interests to do so. COST 219, PhoneAbility and other organisations have put a lot of effort into analysing and presenting the data on user needs and user numbers, trying to persuade manufacturers that there are markets to be exploited by pushing outwards the boundaries of received thinking on user requirements and expectations. These wider markets become especially important when growth is levelling off and sales begin to depend upon existing customers trading up to the latest fashion.

This is the positive picture, showing that much can be achieved if manufacturers and service providers are persuaded of the mutual benefits of extending the scope of their mainstream products. In that way there is less need for special equipment solutions. Legislative and regulatory policies are beginning to turn in this direction, giving encouragement for suppliers to adopt the approach of inclusive design. There is a growing recognition that inclusive design is in fact synonymous with better design, for it signifies that the product will be judged to be fit for purpose by a greater number of potential users. It is also economic design, for building in the necessary facilities at the design concept stage should add little to the final cost, whereas making provision later for accessibility add-ons is an expensive and clumsy business.

Inclusive design, sometimes called Design for All, cannot be expected to resolve all problems of accessibility but, by dealing with the more numerous issues, it can highlight the remaining intransigent areas that will still need special resources for special solutions. The case for finding those special resources from social care programmes then becomes stronger.

There are various ways in which inclusive design can be supported by legislation, indirectly if not directly. The Disability Discrimination Act is important because, although it does not bear upon the design of goods, it does influence employers, service providers and others who buy and use those goods. The EU does not yet have an equivalent to the DDA, although one is promised, but the Employment Equality Directive which became effective in December last year will ensure that the workplace aspects are applied across the whole of the EU. Anyone who employs disabled people has to provide the equipment that is necessary for them to do their work, and will prefer not to have to source special items with all the delay and expense that would entail. So, in that way, a market for accessible workplace equipment is created, not just in one country but throughout the whole of the enlarged EU. That is a powerful influence. Government departments and other large public sector employers are then justified in writing accessibility requirements into their purchase contracts, and it is expected that a review of the EU Public Procurement Directive will make it easier for them to do this without flouting Community rules. The effectiveness of public procurement measures in the USA, in influencing accessibility of mainstream computer equipment, has not been lost upon the EU's legislators.

Designing equipment specifically for disabled people can be counter-productive, for it gives the product a 'disability' label and purchasers then shun it, so it has to be sold expensively in a niche market. But a mainstream product that is truly inclusive, designed so that it is fit for purpose for a very wide target group, will be attractive to many. It will be a better designed product. Legislation alone will not bring this about, but it can help to create the economic climate that drives the process. The real moving force will be the consumers themselves.

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