April 2000
Cable, Internet Access and the Commonwealth: Evaluating The Ballot Initiative's Impact on Government and Consumers
By Stuart N. Brotman

C. Internet Access for People with Disabilities

The history of the United States has been a constant evolution of opening more doors, breaking down more barriers and extending basic human rights to more and more people. In 1990, for the first time ever, a new comprehensive law was enacted to extend federal civil rights protection to 43 million Americans with disabilities. The Americans with Disabilities Act was a breakthrough for those seeking employment in the private sector, services provided by state and local governments, transportation, public accommodations and telecommunications.

Until the ADA was passed, only one-third of the states had established telephone relay services that allowed hearing- and speech-impaired individuals to initiate and receive telephone calls utilizing specialized TTY/TDD machines and personal computers, combined with third-party operators capable of translating text to speech and vice versa. Even in states that had such service, it often was limited as to length of call or whether the call was interstate and therefore not covered. Many services had restricted funding and virtually all lacked a stable base of funding.⁴⁵

The ADA revolutionized telephone service for people with disabilities because it imposed a uniform national requirement for all states to provide round-the-clock, unrestricted relay service and to develop a secure funding mechanism to pay for it.

With the battle for telephone service behind us, the next revolution for people with disabilities is to ensure that their access to the Internet affords them the same pleasures and opportunities as it provides those without disabilities. Access to the Internet may be even more critical for certain segments of the population with disabilities. For example, many adults with disabilities are unable to work in a traditional environment. The virtues of telecommuting and home business activities that are promoted by Internet usage may allow a number of those not employed to move from welfare to work in ways that were unimaginable just a few years ago. And for the largest segment of our population with disabilities -- the elderly -- the Internet represents a powerful new tool for "shut-ins," a way to navigate and interact with the world while not leaving home.

Internet usage by people with disabilities offers great promise, but it also can create frustration for those who want to have working, reliable service, whether offered through narrowband or broadband network facilities. The challenge for all of us is to create an environment that maximizes ease of use for people with disabilities and minimizes barriers caused by complexity, confusion and in some instances, a lack of understanding regarding how to offer Internet access in a way that truly provides access for all citizens.

To its credit, Massachusetts has helped lead the nation in thinking about how to improve the capabilities and operations of the Internet to accommodate people with a wide range of sensory- and motor-based disabilities.

For example, the Massachusetts Assistive Technology Partnership is increasing access to assistive technology for people of all ages and all abilities through a variety of consumer-focused activities. It operates an electronic bulletin board and a Web site to provide information and referrals on assistive technology products and services.⁴⁶

The CPB/WGBH National Center for Accessible Media is a research and development facility that works to make media accessible to underserved populations, including people with disabilities. It is part of the Media Access department of the WGBH Educational Foundation in Boston. The other parts of that department are the Caption Center and Descriptive Video Services, which provide text and spoken translations or descriptions for hearing- and sight-impaired cable subscribers on every operating system in the Commonwealth.⁴⁷

Clearly, the current challenge regarding the Internet and people with disabilities is to provide a service that is user friendly and that reflects consistent sensitivity to the needs of those who require specialized adaptive technologies or techniques. In blunter terms, the value of having a quality-controlled set of high-speed cable Internet services is a value that proponents of the ballot initiative have not yet addressed.

By its nature, the ballot initiative's approval will mark a step backward in promoting Internet access for people with disabilities. Since any ISP will be permitted to lease cable network facilities at government-compelled rates, there is bound to be a variation among the services each offers to people with disabilities. In this environment, it will be up to each individual to discover these features or the lack thereof, and move on to another one if the provider is not accommodating his or her personal needs.

This process of discovering, changing, then discovering again can be frustrating and painful for people with disabilities. And when potential fraudulent practices such as slamming and cramming are taken into account, the picture becomes darker and the promise of Internet access for individuals becomes that much more distant.

The real-world implications of this scenario already are being felt in Massachusetts. Last year, nine blind Commonwealth citizens filed a federal lawsuit in Boston against an independent ISP. These individuals joined with the National Federation for the Blind to argue that federal law requires that this ISP design its Internet service so that blind people can use it. As the Federation's president, Marc Maurer, noted when the lawsuit was filed, "Blind people have the same rights as everybody else to take part in the Information Age."⁴⁸

If the lawsuit is successful, the ISP would be forced to make its software compatible with a variety of computer products that let blind people "read" a computer screen. Its current software employs unlabeled graphics and mouse-only commands and custom controls that are "painted" on the screen.

Whether this lawsuit will be successful, however, remains an open question. Prior court cases have refused to apply the "places of public accommodation" provisions of the ADA for other technologies, such as television closed captioning, because they did not include any connection with access to a physical facility.⁴⁹ Perhaps cyberspace will be different, but by its very nature, it seems difficult to define along the lines of a restaurant, hotel or sports arena. Moreover, even if this was found to be the case, a series of judicial appeals surely would follow for several years.

Meanwhile, under the ballot initiative's scheme, there may be 5, 10 or 50 similar ISPs who emerge to lease cable network facilities at government-compelled rates, each with their own special software that undermines any friendly features that are built into the cable network and offered by the network's own Internet service. The cable industry has an extraordinary record in providing video services that provide effective access to people with disabilities; with this base of customers, it would be irrational for the cable operator to offer a high-speed Internet service or select other ISPs that did not reflect sensitivity to the needs of people with disabilities.

In contrast, there is little evidence to date that all independent ISPs on cable systems would offer comparable services for people with disabilities, especially since they would have no legal mandate to do so under the ballot initiative. Given this reality, there is no small sense of irony that those who argue in favor of "access" limit the use of that term to the commercial setting, rather than take into account another type of access -- access by people with disabilities -- that is a far more compelling measure regarding whether the Internet will fulfill its promise for all Americans, particularly those who would rather have a handful of quality accessible services than an unlimited number with varying degrees of accommodations to their special needs.

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