3 Background

3.1   A History of Section 508
3.2   A History of Section 255

3.1   A History of Section 508

Section 508 was created in 1986 when Congress added this section to the Rehabilitation Act of 1973. The Rehabilitation Act contains comprehensive prohibitions against employment discrimination by the Federal government, 29 U.S.C. §791, by contractors for the Federal government, 29 U.S.C. §793, and by programs and activities receiving Federal financial assistance.  29 U.S.C. §794.  In the 1980’s Federal agencies significantly increased their dependency on electronic office technologies.  Section 508 was added to ensure that such E&IT would be accessible to individuals with disabilities.  Pub. L. 99-506, Title VI, §603(a); Title I §103(d)(2)(A), (C), as amended, Pub. L 100-630, Title II, §206(f); Pub. L. 102-569, Title V §509(a), codified at 29 U.S.C. §794d.

Section 508 guidelines were initially released in October 1987, and adopted by the GSA in Sept 1988.  In January 1991 the GSA published Bulletin C-8 containing these guidelines as amended, in the Federal Information Resources Management System (FIRMR). In April 1987, the GSA had published Bulletin 48 in the FIRMR that sets forth requirements for agencies to provide accommodations designed to meet the needs of employees with disabilities when replacing the agencies’ computer systems.

In 1997, the Federal Electronic and Information Technology Accessibility Compliance Act was introduced and incorporated into the Workforce Investment Act of 1998, revising Section 508 through the Rehabilitation Act Amendments of 1998.  Pub. L. 105-220, Title IV, §408(b), codified at 29 U.S.C. §794d. Section 508 places strict requirements on Federal agencies that develop, procure, maintain, or use EI&IT that is accessed by both Federal employees with disabilities and individuals with disabilities outside the government who need government information, unless doing so would impose an undue burden.  The law specifically directs Federal agencies to provide access to information and data to people with disabilities that is comparable to the access available to individuals without disabilities. Where providing access would result in an undue burden, agencies are directed to (1) provide documentation on why compliance will create an undue burden and (2) provide the information and data through an alternative means of access.

The amended version of Section 508 directed the Access Board to publish standards by setting forth (1) a definition of electronic and information technology, and (2) technical and functional performance criteria necessary to achieve electronic and information access.  The definition of electronic and information technology established by the Access Board had to be consistent with the definition of information technology contained in the Clinger-Cohen Act.  40 U.S.C. §1401(3). This was completed through the formation of the Electronic and Information Technology Accessibility Advisory Committee (EITAAC).  The revised provisions of Section 508 went into effect in June 2001. The Attorney General also prepared the first biennial report to the

President on the extent to which electronic and information technology available within agency was accessible and usable by individuals with disabilities. The Federal Acquisition Regulatory Council was to revise the Federal Acquisition Regulation and each Federal agency had to revise its own Federal procurement policies and directives to incorporate the new Section 508 standards.  The amended Section 508 allows individuals to file complaints against Federal agencies alleging noncompliance with Section 508 in procurements or for an agency award to be protested by a contractor or vendor bidding on a contract.  Agencies receiving such complaints are directed to utilize their existing complaint procedures for Section 504 of the Rehabilitation Act.

A separate law, the Technology-Related Assistance for Individuals with Disabilities Act of 1988, Pub.L.100-407, later replaced by the Assistive Technology Act of 1998, as amended, Pub.L.108-364, 29 U.S.C. §3001 and now known as the AT Act, requires States to provide an assurance of their compliance with Section 508 as a condition to receiving Federal funds for the State Grants for Assistive Technology.  The 2004 amendments to the Assistive Technology Act of 1998, clarified the scope specifying that the assurance apply only to the State Assistive Technology Program.  However, many states have adopted or adapted Section 508 accessibility requirements in state law, executive order, legislation, or other policy initiatives.  As a result, the new Section 508 standards will have wide reaching impact at the state level.

3.2   A History of Section 255

Section 255 was enacted as part of the amendments to the Communications Act of 1934, contained in the Telecommunications Act of 1996, Pub. L. 104-104, codified at 47 U.S.C. This section requires telecommunications services and equipment to be accessible to and usable by people with disabilities, where readily achievable.6 Where not readily achievable, such services and equipment must nevertheless be compatible with existing peripheral devices or specialized customer premises equipment (CPE) commonly used by people with disabilities to achieve access to telecommunications, again where this is readily achievable.  Readily achievable is defined as "easily accomplishable and able to be carried out without much difficulty or expense." In determining whether an access feature is readily achievable, the FCC has directed entities to weigh the nature and cost of that feature with the overall financial resources of the manufacturer or service provider, including such factors as the type, size, and nature of that company’s operation.7 The legislation contemplates that manufacturers and service providers will consider access needs during the design, development and fabrication of their offerings, as well as whenever a natural opportunity to review the design of the service or product arises, so that expensive and burdensome retrofitting for access will not be necessary.

Section 255 directed the Access Board to develop guidelines for accessibility of telecommunications equipment and CPE within eighteen months after the legislation’s enactment.  In order to accomplish this task, the Access Board created a body similar to EITAAC – called the Telecommunications Access Advisory Committee, or TAAC.  After meeting over a period of seven months, TAAC presented its proposed guidelines to the Access Board in January of 1997. The contents of these proposals formed the basis for the Access Board’s Section 255 guidelines, released to the public on February 3, 1998, 63 Fed. Reg. 5608 (Feb. 3, 1998) codified at 36 C.F.R. Part 1193, and effective as of March 5, 1998.  The FCC then used these guidelines to develop its regulations to implement Section 255’s mandates for telecommunications equipment and service providers.  Those rules, released in September 1999, also created procedures to enforce Section 255’s provisions with respect to telecommunications services, telecommunications equipment, and CPE.

The Access Board’s guidelines on Section 255 created detailed requirements for the accessibility, usability, and compatibility of telecommunications equipment and CPE.  36 C.F.R. §1193 et. seq. Among other things, the guidelines contain requirements for input, output, display, control, and mechanical functions to be accessible by individuals with varying disabilities and functional limitations.  The compatibility requirements focus on the need for standard connectors, compatibility of controls with prosthetics, and TTY compatibility.  In order to identify access needs and solutions, the guidelines directed manufacturers to consider consulting with individuals with disabilities, and suggested including individuals with disabilities in market research and the validation of access solutions.  The rules defined "usable" as access to information about how to use the product, and directed that "instructions, product information … documentation, and technical support" be functionally equivalent to that which is provided to individuals without disabilities. In order to monitor the industry’s progress in making telecommunications equipment accessible, in January 2000, the Access Board compiled and released a "market monitoring report," that identified the state of the art of CPE and telecommunications equipment, as well as problem areas and solutions that have been used to achieve access to these products.