A. Statutory and rulemaking history

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204 (a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131-65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors´ offices) and requires newly constructed or altered places of public accommodation--as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the title III regulation, at 28 CFR part 36, app. A, contains the ADA Standards for Accessible Design. On September 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations to adopt revised ADA Standards based on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (2008 NPRM) to adopt the revised ADA Standards and revise the title II and title III regulations. 73 FR 34466. The NPRM addressed the issues raised in the public´s comments to the ANPRM and sought additional comment.

Although the Department did not propose to include NG 9-1-1 accessibility provisions in the 2008 NPRM, the Department received comments urging it to amend the title II rule to mandate that PSAPs move towards the implementation of NG 9-1-1 services that will provide voice and data (such as text, pictures, and video) capabilities so that they will be able to directly receive various kinds of voice-, text- and video-based "calls." Several commenters, including the National Emergency Number Association (NENA) and the National Association of the Deaf, requested the development of standards for direct access to NG 9-1-1. Based on these comments and the reasons detailed below, the Department has decided to begin the process of soliciting comments and suggestions with respect to what an NPRM regarding NG 9-1-1 access should contain.

B. Legal foundation for access to NG 9-1-1

The Department´s current title II regulation, as interpreted and administered by the Department, requires that PSAPs provide direct access to individuals with disabilities who use TTYs. 28 C.F.R. 35.162. The Department has interpreted title II so as to require that PSAPs provide "direct, equal access" to 9-1-1 for individuals with disabilities who use TTYs. Direct access means that PSAPs must be able to directly receive TTY calls without relying on an outside relay service or third-party services, i.e., the PSAP must be able to engage in TTY-to-TTY calls. Equal access requires that 9-1-1 services provided for individuals who use TTYs be as effective as those provided for individuals who make voice calls, in terms of response time, response quality, hours of operation, and all other features offered (e.g., automatic number identification, automatic location identification, automatic call distribution). PSAPs also must follow proper procedures and practices when TTY calls are received, including Voice-Carry Over (VCO) and Hearing-Carry Over (HCO).^[2]

The Department recognizes that many individuals with disabilities now rely on Internet Protocol (IP)-based and digital wireless devices, rather than analog-based TTYs, as their primary modes of telecommunications and 9-1-1 call-taking centers are shifting from existing traditional telephone emergency services to new IP-enabled NG 9-1-1 services. Therefore, this ANPRM seeks comments from members of the public and covered entities on possible revisions to the title II rule to establish new requirements and guidance to ensure that NG 9-1-1 services are made accessible to, and usable by, individuals with disabilities.

This ANPRM identifies specific issues on which the Department solicits comment. The Department is also interested in comments on any other issues that affect access to NG 9-1-1 services. The Department will consider all comments before deciding whether to propose revisions to the title II regulation.

The Department requests comments regarding appropriate steps to provide individuals with disabilities with access to NG 9-1-1 technology at 9-1-1 emergency call-taking centers, including converging^[3] IP 9-1-1 technologies that are as effective as those provided for individuals without disabilities. In this ANPRM, the Department is asking two key questions: (1) what devices and modes of communication (voice, text, video, and data) are individuals with disabilities using to make "calls," including emergency calls?, and (2) what steps should the Department take to ensure that any new IP-based PSAP platforms can receive direct calls from these devices?

C. Major migration in communications devices and 9-1-1 services

As communication technologies are developing, individuals with disabilities are transitioning from analog or legacy devices to digital and IP-based devices. Among these devices are both wired and mobile videophones, text messaging wireless devices, including "smart" phones, as well as computers (including computers with web cams) and captioned telephones. Many PSAPs or emergency 9-1-1 call-taking centers are not yet equipped to directly receive video calls or text calls over the Internet. As a result, individuals who have to call 9-1-1 using their IP-based videophone or texting device must call through third-party telecommunications relay services (TRS). TRS uses a relay operator called a communication assistant (CA) who relays the call between the caller using text or video and the PSAP.^[4] In most IP-based video-or text-relay services, the CA receives the call from the person originating the call, places the call to the PSAP, and then relays the conversation between the caller and the PSAP.^[5] Relay services are under the jurisdiction of the Federal Communications Commission (FCC).^[6]

The 9-1-1 number has been designated for public use throughout the United States to report an emergency, request emergency assistance, or both. The original 9-1-1 system is based on traditional telephone technology, which cannot process text, data, image, and video sent from handheld devices and computers (e.g., personal digital assistant (PDA), cellular phone, portable media player, video phone, or camera). To address the changing technology, State and local governments are working to improve their 9-1-1 emergency communications systems and are moving towards an IP-enabled network. The ultimate goal is to have an emergency network that will enable the general public to make a 9-1-1 "call" via voice, text, or video from wired and wireless devices and directly communicate with personnel at the PSAP. Several States, regions, and counties, including Indiana, Montana, Vermont, Texas, Florida, Minnesota, Allegheny County, Pennsylvania and the District of Columbia, are either considering or implementing an IP network or next generation related components in preparation for NG 9-1-1. http://www.nena.org/ng911-project/state-status (last visited July 12, 2010).

The Department is aware of two PSAPs´ efforts to provide access to individuals with disabilities who use smart phones as texting devices. For example, in 2003, the police department in Sacramento, California began to accept "9-1-1" emails from individuals with disabilities. That police department also has accepted emails from as far away as Los Angeles and Texas asking Sacramento police to relay emergency information to their local authorities. www.helpkidshear.org/news/media/2003/2003-11-21-cbs.htm (last visited July 12, 2010). Another PSAP, Black Hawk County, Iowa, recently started to receive and respond to short message service (SMS) messages from cell phones or pagers. See Enforcing the ADA, Update April, September 2009, page 12, available at http://www.ada.gov/aprsep09.pdf (last visited July 12, 2010). With these additional services, individuals with disabilities are able to report an accident or other emergency quickly using their PDAs, without the necessity of locating and using a TTY or relying on another person to report the incident

D. Other Federal efforts

The Department is familiar with ongoing efforts by other Federal agencies to ensure that advances in telecommunications systems, including NG 9-1-1 services, are accessible for all Americans, including individuals with disabilities. The National E-911 Implementation Coordination Office (National 9-1-1 Office) issued in September 2009, a national plan (Plan) for migrating to IP-enabled 9-1-1 Systems. See National Plan for Migrating to IP-Enabled 9-1-1 Systems, available at http://www.ntis.gov/search/product.aspx?ABBR=PB2010102716 (last visited June 5, 2010). As required by the NET 911 Improvement Act, 47 U.S.C. 942(d), the Plan identified and analyzed 9-1-1 system migration issues and assessed potential options to resolve them. The Plan drew heavily from the United States Department of Transportation´s (DOT) NG 9-1-1 Initiative work and findings. DOT had concluded that IP-enabled systems provide the optimal technical solution for future 9-1-1 networks. One of the requirements of the NET 9-1-1 Improvement Act is to identify solutions for providing 9-1-1 and enhanced 9-1-1 access to individuals with disabilities and needed steps to implement such solutions. 47 U.S.C. 942(d)(I). In addressing policy barriers and issues, the National 9-1-1 Office stated that "to foster the migration to IP-enabled 9-1-1, Federal * * * regulatory agencies will need to review current * * * regulations to keep pace with the rapidly changing 9-1-1 marketplace." Plan, at 5-10.

Last year, DOT´s National Highway Traffic Safety Administration and the United States Department of Commerce´s National Telecommunications and Information Administration announced more than $40 million in grants to help PSAPs nationwide implement next-generation technologies.

Another Federal agency has called for action to ensure that IP technology is accessible to individuals with disabilities. The National Council on Disability, in its 2006 report, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination,^[7] calls for such Federal action because experience has shown that market forces are not sufficient to ensure individuals with disabilities equal access to emerging technologies. As the responsible agency for writing regulations to ensure that 9-1-1 services are accessible to individuals with disabilities,^[8] in this ANPRM the Department is seeking comments from the public, including 9-1-1 stakeholders, in addressing barriers to NG 9-1-1 and ensuring access to NG 9-1-1 services.

The FCC has recently undertaken a number of broadband^[9] initiatives. One of these initiatives seeks to improve the nation´s current 9-1-1 system by establishing the foundation for the transmission of voice, data, or video to PSAPs during emergency calls. Broadband & Public Safety and Homeland Security, http://www.fcc.gov/pshs/broadband.html (last visited July 12, 2010). In another NG 9-1-1 matter, the FCC´s Communications Security, Reliability and Interoperability Council´s working group is considering ways that NG 9-1-1 architectures and technologies can provide access for individuals with disabilities. See http://www.fcc.gov/pshs/advisory/csric/wg-4b.pdf (last visited July 12, 2010). With respect to emergency calls made via TRS (i.e., through a relay operator), the FCC has implemented new numbering and E9-1-1 requirements for Video Relay Services and IP-Relay Services. New Numbering and E911 Requirements for VRS and IP Relay Video In American Sign Language (ASL), http://www.fcc.gov/cgb/dro/numbering_and_e911_for_vrs_ip.html (last visited June 5, 2010). Access to PSAPs via TRS is not addressed in this ANPRM.

A. Direct, equal access to NG 9-1-1

Question 1. What modes of communication (e.g., voice, text, video, or data) do (or will) individuals with disabilities use to make direct calls to a PSAP, and from what types of devices would the calls be made?

B. Performance standards as opposed to technical standards

The Department is aware of ongoing efforts by both the National Emergency Number Association (NENA) and the Association of Public-Safety Communications Officials International to develop technical standards for guidance to service providers, equipment manufacturers, and industry-related standard setting bodies. The Department has used the performance standard of "direct access" for PSAPs in enforcing title II.

Consistent with the Department´s existing approach, the Department is considering the use of performance standards, as opposed to technical standards, as new title II requirements for access to NG 9-1-1. Two primary considerations support this approach. First, in light of evolving 9-1-1 technologies, it may not be feasible to have identical scoping and technical specifications nationwide to ensure disability access to NG 9-1-1. Second, performance standards would contain flexibility to allow operational standards, protocols, and best practices to be adopted and implemented to meet unique State and local circumstances and needs.

Question 10. Should any regulatory provision on NG 9-1-1 requirements under title II be performance-based, or should a final rule provide technical specifications for call-taking technology and equipment? Please provide as much detail as possible in support of your view.

Question 11. What are the technical issues that the Department should address in developing minimum standards?

NENA, a leading professional, nonprofit organization on 9-1-1 services, has actively worked with public safety, industry, and government groups, to develop technical and operational standards for NG 9-1-1 systems and services.

Question 12. Should the Department adopt any of NENA´s standards as the minimum standards for direct access to NG 9-1-1 services for individuals with disabilities?

Speech-to-speech service (STS) is a form of TRS that involves the use of relay operators for people with speech disabilities who have difficulty being understood on the phone. STS relay operators are trained individuals familiar with many different speech patterns and language recognition skills. The relay operator makes the call and repeats the words exactly. Individuals using STS include those with cerebral palsy, Parkinson´s disease, a laryngectomy, ALS, stuttering, muscular dystrophy, stroke, and other conditions affecting clarity of speech.^[11]

Question 13. Should the title II regulation be amended to require that PSAPs directly receive calls from individuals with speech disabilities?

C. Emergency Alerts

Public entities in many communities now send pre-recorded emergency alert messages to homes and businesses automatically by phone. For instance, emergency personnel can use emergency alerts to notify residents in the path of approaching wildfires, hurricanes, or tornadoes to seek immediate shelter or evacuate their homes. Emergency alert systems can also be set up to send emergency alert text messages to smart phones, TTYs, PDAs, and e-mail accounts. Many colleges and universities now use this kind of emergency alert system for their students, parents and staff.

Converging 9-1-1 technologies will make it possible to send automatic emergency alerts to any communication device - wired or mobile -- via Internet networks. For instance, vehicles approaching a motor vehicle accident involving hazardous materials could be notified of the danger, thereby preventing other vehicles from further complicating the accident or hindering emergency personnel. The Department will not address any other emergency mass notifications, such as federal efforts for a Common Alerting Protocol, a next generation alerting delivery system by which standardized alerts will be gathered from various alerting sources and distributed to the public (in text, audio and video) via information outlets, public safety alerting systems and personal communication devices.

Question 14. Should the regulation be amended to address sending emergency alerts to text, video, and other devices used by individuals with disabilities?

D. State and local plans to ensure access to NG 9-1-1 for individuals with disabilities

Title II of the ADA and the Department´s implementing regulation provide that State and local government agencies must make reasonable modifications to their policies, practices, and procedures whenever necessary to avoid discrimination against individuals with disabilities unless making the modification would fundamentally alter the nature of the service, program or activity, or would result in undue financial and administrative burdens. 28 CFR 35.130(b)(7) (reasonable modifications in policies); 28 CFR 35.164 (undue burdens). A growing number of State and local governments have studied options for IP-based 9-1-1 networks in preparation for moving to NG 9-1-1 and have developed NG 9-1-1 migration/transition plans. The Department believes that in developing new or reviewing current NG 9-1-1 plans, State and local 9-1-1 agencies must include specific plans for equal access to NG 9-1-1 for individuals with disabilities.

Question 15. In their NG 9-1-1 plans, how should PSAPs address issues related to access for individuals with disabilities?

E. Effective date

Any regulation in this area needs to address an effective date for the application of any proposed new title II requirements to upgrades to 9-1-1 networks with emerging IP technologies or existing NG 9-1-1 services. When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for public entities to become familiar with their new obligations. Title II of the ADA generally became effective on January 26, 1992, six months after the regulation was published.

Question 16. Should the effective date of any new title II requirements be modeled on the effective date used to implement the title II requirements and commence six months after publication of the final rule, or a longer period? If you favor a longer period, please indicate what period you favor and provide as much detail as possible in support of your view.

The term "triggering event" identifies the event or action that compels compliance with title II requirements. The Department´s regulation implementing title II of the ADA (28 CFR Part 35) does not establish any separate triggering events for access to emergency telephone services. Many PSAPs are making transitions to new IP networks; it is expected that some may not be completed until after the effective date of the new requirements.

Question 17. If you favor a triggering event definition that looks to the date of deployment or upgrade, please provide as much detail as possible about what should constitute an IP deployment or upgrade.

Question 18. If you favor triggering events other than an IP deployment/upgrade, please state what event you favor and provide as much detail as possible to support your proposal.

F. Defenses

The title II rule does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. 28 CFR 35.164. The Department has taken a long-standing position that, because of the essential nature of 9-1-1 services, that limitation would rarely be applied to the obligation to ensure effective communication in the context of 9-1-1.

Question 19. The Department seeks comments on whether there are certain circumstances where providing direct access to emerging NG 9-1-1 would be considered a fundamental alternation to the nature of the 9-1-1 service or be an undue financial or administrative burden on the PSAP. Please provide as much detail as possible.

G. Cost and benefits of NG 9-1-1 regulations

Because this is an ANPRM, the Department is not required, at this time, to conduct certain economic analyses or written assessments that otherwise may be required for other more formal types of agency regulatory actions (e.g., notices of proposed rulemaking or final rules) that, for example, are deemed to be economically "significant" regulatory actions with an annual economic impact of $100 million or more or that are expected to have a significant economic effect on a substantial number of small entities or non-federal governmental jurisdictions (such as State, local, or tribal governments). See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 Fed. Reg. 6113 (Jan. 30, 2009); OMB Budget Circular A-4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 5, 2010). The Department does not currently believe that any future proposed rules relating to the accessibility of NG 9-1-1 services will likely meet the economic threshold for these types of formal economic analyses and written assessments.

Nonetheless, one of the purposes of this ANPRM is to seek public comment on various topics relating to NG 9-1-1 services, including perspectives from stakeholders concerning the benefits and costs of revising the Department´s title II regulation to ensure the accessibility of NG 9-1-1 services (from both a quantitative and qualitative perspective), particularly from members of the disability community, governmental entities, and public safety organizations. The Department thus asks for information so that the Department can determine whether such a proposed rule (1) should be deemed an economically "significant regulatory action" as defined in section 3(f) of E.O. 12866; or (2) would have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (RFA) and, if so, suggested alternative regulatory approaches to minimize any such impact. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000.

Question 20. The Department encourages commenters, whenever possible, to submit detailed quantitative or qualitative information along with their respective comments relating to: the cost of NG 9-1-1 technology or services; the incremental impact on covered governmental entities to transition from current requirements for accessible analog 9-1-1 services to proposed accessible NG 9-1-1 services, including but not limited to training PSAP employees and updating 9-1-1 plans and operating procedures; personal anecdotes or experiences of individuals with disabilities illustrating the potential benefits of accessible NG 9-1-1 services; and any other information that would assist the Department in assessing the benefits and costs of proposed regulatory revisions for NG 9-1-1.

F. Other issues

Question 21. Are there additional issues or information not addressed by the Department´s questions that are important for the Department to consider? Please provide as much detail as possible in your response.