January 19, 2001
The Honorable William E. Kennard
Federal Communications Commission
Washington, DC 20554
Dear Chairman Kennard:
Thank you for your informative letter to Attorney General Reno concerning whether the federal regulations implementing the Americans with Disabilities Act of 1990 (ADA) require covered entities to provide an effective means of telephone communication for individuals with disabilities who are unable to access interactive voice response systems and voicemail. Your letter provides information that people with disabilities who rely on relay services to facilitate telephone communication are unable to use these systems despite the Federal Communications Commission's (FCC) repeated efforts to address access through the regulations governing the relay system required by title IV of the ADA and the regulations implementing the Telecommunications Act of 1996.
Your letter suggests that there are several alternative means through which access to the services provided by IVR systems or voicemail may be provided to individuals with disabilities. These options include obtaining and using accessible IVR and voicemail equipment, providing a dedicated TDD line, allowing an individual to "opt out" of an IVR system to speak with a live operator, or providing an alternative telephone number at which a relay system user could contact a live operator.
At the present time, the regulations implementing the ADA, 28 C.F.R. pts.. 35 and 36, do not require covered entities to utilize accessible IVR systems, accessible voicemail equipment, or dedicated TDD lines. Public entities are required to use TDD's or "equally effective telecommunications systems" when the public entity communicates with applicants and beneficiaries by telephone. 28 C.F.R. section 35.161. However, the appendix to the regulation specifically states that public entities may meet this obligation by utilizing the TDD relay service required by title IV of the ADA. 28 C.F.R. pt. 35, App. A. Similarly, the auxiliary aids provisions of the title III regulation, 28 C.F.R. section 36.303(d)(2), provides that "[t]his part does not require a public accommodation to use a TDD for receiving or making telephone calls incident to its operations." In responding to commenters who questioned the application of these provisions to automated systems or voice recordings, the Department noted its view that these telecommunication issues would be more appropriately addressed by the FCC in its rulemaking under title IV of the ADA. 28 C.F.R. pt. 35, App. A; 28 C.F.R. pt. 36, App. B.
It is significant to us that, although the FCC has addressed these issues in its regulations, you continue to receive a significant number of consumer complaints that indicate that the FCC's regulations have failed to ensure that relay system users achieve effective communication with entities that use interactive voice response systems or voicemail. Because the FCC's extensive efforts have not proven successful in providing effective communication, we believe that it is appropriate and necessary for the Department of Justice to revisit this issue under the ADA regulations. We anticipate that the Department will be proposing amendments to its ADA regulations later this year. We will include new regulatory language on the use of interactive voice response systems and voicemail among the issues that are addressed in that rulemaking. We will also include the information in your letter as a factual basis for the development of new rules establishing requirements for what constitutes effective communication.
Thank you for bringing this important issue to our attention. Please do not hesitate to contact the Department if we can be of assistance in other matters.
Bill Lann Lee
Assistant Attorney General
Civil Rights Division