Broadcasting Notice of Public Hearing CRTC 2008-8 Telecom Public Notice CRTC 2008-8
Unresolved Issues related to the Accessibility of Telecommunications and Broadcasting Services to Persons with Disabilities
Initial Comments of ARCH Disability Law Centre
Lana Kerzner, Barrister and Solicitor Thomas Rajan, Articling Student Phyllis Gordon, Barrister and Solicitor, Outside Counsel
ARCH Disability Law Centre 425 Bloor Street East, Suite 110 Toronto, Ontario M4W 3R5 (416) 482-8255 (Voice) (416) 482-1254 (TTY) (416) 482-2981 (Fax)
July 24, 2008 2
Initial Comments of ARCH Disability Law Centre
In
Broadcasting Notice of Public Hearing CRTC 2008-8 Telecom Public Notice CRTC 2008-8 Unresolved Issues related to the Accessibility of Telecommunications and Broadcasting Services to Persons with Disabilities
July 24, 2008
Request to make Oral Presentation at Public Consultation
1. Pursuant to paragraph 22 of Broadcasting Notice of Public Hearing CRTC 2008- 8, Telecom Public Notice CRTC 2008-8, ARCH Disability Law Centre (ARCH) requests permission to make an oral presentation at the public consultation in relation to this proceeding. ARCH wishes to make our oral presentation in Gatineau. We will not require communications support to participate in the public consultation.
2. ARCH has been a party in several proceedings before the Commission. In each case our goal has been to advance the rights of people with disabilities in telecommunications and to ensure that they are able to receive telecommunications services in a non-discriminatory fashion and on an equal basis with all other Canadians. We have expressed concerns about the approach the Commission has taken to addressing these issues and in previous proceedings have recommended that the Commission conduct a proceeding to address exclusively and comprehensively issues relating to people with disabilities.1
3. The array, breadth and depth of concerns and recommendations that ARCH has relating to this public notice is extensive and detailed. It is essential that we appear at the public consultation to give the Commission an opportunity to
1 See, for example, ARCH’s Comments in Telecom Public Notice CRTC 2008-1 and our Reply Argument in Telecom Public Notice CRTC 2005-2. 3
explore our submissions fully, to ask for clarification and to allow us to address any concerns of the Commission or the other parties.
Summary of ARCH’s Comments and Recommendations
4. Telecommunications customers reflect the diversity of Canadian society, including people with disabilities.
5. People with disabilities are a group of Canadians with substantial and important telecommunications concerns. The barriers that they experience in relation to their access to telecommunications are extensive and are experienced in relation to the wide array of telecommunications and products and services. The barriers have been well documented in recent consultations with the disability community.
6. The competitive market has not been sufficient to ensure non-discriminatory access to telecommunications by people with disabilities. Broad, systemic and proactive regulation is essential. ARCH submits that such regulatory measures are in compliance with the Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives.2
7. In these Initial Comments ARCH makes several specific recommendations of how the Commission should regulate in relation to ensure accessibility for people with disabilities.
8. ARCH recommends that the Commission itself must conduct its activities to address the barriers experienced by people with disabilities. This includes establishing a “disability unit” within the Commission.
9. ARCH submits that the provision of a fully accessible telecommunications environment in Canada is a legal obligation shared by the Commission and the telecommunications industry. Non-discriminatory obligations, with which they must comply, are found in the Telecommunications Act, the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.
2 Order-in-Council P.C. 2006-1534, dated December 14, 2006. 4
10. ARCH’s Initial Comments identify several issues that the Commission must address in this proceeding, such as the regulation of terminal equipment, provision of information, customer service, the Statement of Consumer Rights and employment of people with disabilities.
11. ARCH has several concerns with respect to the procedure established in this public notice, many aspects of which perpetuate barriers for people with disabilities.
Introduction
12. ARCH Disability Law Centre (ARCH) submits the following Initial Comments in this proceeding relating to unresolved telecommunications and broadcasting issues for people with disabilities.
13. ARCH commends the Commission for initiating this proceeding and welcomes the opportunity to assist the Commission to establish a systemic approach to addressing the unequal access to telecommunications that is a daily reality for many Canadians with disabilities. Communication by telephone and new technologies is at the heart of Canadian social and economic life. The isolation that exists when individuals cannot communicate is unacceptable in a society that promotes full inclusion and participation.
“By working together to build a more inclusive society, we make it possible for all Canadians to contribute, and, in so doing, help to ensure that Canadian society reaches its highest potential.”3
- The Honourable Diane Finley, P.C., M.P. as Minister of Human Resources and Social Development
14. Accessibility must be addressed comprehensively and proactively, now and on an ongoing basis. Technological development in telecommunications is advancing rapidly. Until regulatory measures address accessibility
3 Human Resources and Social Development Canada, Advancing the Inclusion of People with Disabilities 2006, ‘Message from the Minister’.
comprehensively, barriers to full participation experienced by people with disabilities will continue to grow.
15. As a legal clinic, ARCH works towards achieving its goals of defending and advancing the equality rights of people with disabilities, through legal and policy work. Accordingly, these comments provide a disability law and policy analysis. We expect that various disability organizations will be participating in this proceeding and will document the details of the barriers that their communities face.
16. This public notice raises several fundamental issues for people with disabilities. Given the unsatisfactorily short time frames (see procedure section below), and the fact that these comments are initial in nature and precede an extended procedure with several opportunities to comment, ARCH specifically reserves the right to elaborate in our subsequent written submissions and at the public consultation on the issues and concerns raised in these Initial Comments. ARCH also reserves the right to raise additional issues and concerns that are not set out in these Initial Comments.
17. In these Initial Comments we do not address the broadcasting issues raised in the Public Notice, however, we may do so at a subsequent stage in this proceeding. ARCH’s focus over the last number of years has been with respect to telecommunications rather than broadcasting. We understand that participants in this proceeding, including disability organizations, will be addressing broadcasting issues. We reserve the right to comment on those submissions. The fact that we have not addressed broadcasting should not be taken to mean that we believe that discrimination does not exist and that regulatory action need not be taken.
6
About ARCH
18. ARCH is an Ontario-based community legal clinic that is dedicated to defending and advancing the equality rights of people with disabilities. ARCH represents national and provincial disability organizations and individuals in test case litigation at all levels of tribunals and courts. We provide public legal education about disability law, and offer a telephone summary legal advice and referral service. We address public issues of importance to the disability community. ARCH is governed by a volunteer board of directors, a majority of whom are people with disabilities. Further information about ARCH can be obtained from our website at www.archdisabilitylaw.ca.
19. Over recent years ARCH has extended our work to the arena of telecommunications because it is of such significant concern for people with disabilities as well as the increasing aging population. ARCH has participated as a party in several proceedings before the Commission, including proceedings initiated by Telecom Public Notices CRTC 2004-14, 2004-25, 2005-26, 2007-167, and 2008-18. ARCH staff have written papers and spoken at conferences about accessible telecommunications. We made submissions to the Telecommunications Policy Review Panel and before the Standing Committee on Industry, Science and Technology of the House of Commons relating to deregulation of telecommunications. ARCH was also an active member of the CISC committee (Accessibility Issues Working Group) relating to accessibility of VoIP for people with disabilities.
4 Review and disposition of deferral accounts for the second price cap period 5 Regulatory framework for voice communication services using Internet Protocol 6 Forbearance from regulation of local exchange services 7 Proceeding to consider the organization and mandate of the Commissioner for Complaints for Telecommunications Services 8 Call for comments on priorities regarding the review of social and other non-economic regulatory measures 7
People with Disabilities as Telecommunications Customers
20. Madam Justice Abella, in a recent Supreme Court of Canada decision clearly articulated what should be a statement of the obvious: members of the public who are disabled are members of the public.9
21. Telecommunications customers reflect the diversity of Canadian society, including people with disabilities. People with disabilities are a segment of telecommunications customers for whom telecommunications is equally important, if not more so, as for other Canadian customers.
22. People with disabilities are a group of Canadians with demonstrated substantial and important telecommunications concerns. Indeed, in the past 25 years over 30 decisions of the CRTC have dealt with disability issues10, including alternate format billing statements11, discounts for long distance calls using TTYs12 and accessibility of pay phones for people who have hearing and speech disabilities13.
23. Accessible telecommunications will affect most people at some point in their lives. Every Canadian is likely to have a disability at some time or other. Many people have had a disability all of their life. Others may have a disability that is caused by an accident or an illness that can be either temporary or permanent. The process of ageing brings various impairments of function which often lead to permanent disability. Whatever the origin of the disability, people with disabilities wish to live as independently as possible. Accessible telecommunications is essential to achieve this end.
24. According to Statistics Canada approximately 14% of Canadians report having some level of disability.14 As Canadians age their likelihood of experiencing a disability increases greatly. Of adults over 65 years of age, approximately 43% 9 Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 at para 221. 10 See Appendix A to ARCH’s Comments, A Chart of Telecom Disability Related Decisions. 11 See, for example, Telecom Order CRTC 96-1191,
have disabilities.15 It is estimated that 25% of Canada’s population will be over 65 years of age by 2041,16 as compared to 12.2% in 1996.17 Thus the total number of Canadians who have disabilities is expected to rise in the future.
25. Disability must be viewed in the mainstream, and not as a fringe issue. The population of Canadians who have disabilities is not fixed and static. It evolves and grows as people develop disabilities at various points in their lives. The increase in the numbers of older people in our population, as well, comes with an increase in the number of people with disabilities.
26. Further, making telecommunications accessible for people with disabilities, will result in a marked benefit for industry and all Canadians, not only those with disabilities. This may be referred to as the “curb cut advantage”. As an analogy, curb cuts in sidewalks were designed for people who use wheelchairs, but are used most often for bicycles, strollers and skateboards.
Barriers Experienced By People with Disabilities
27. Accessible telecommunications does not mean accessibility for a select group of people with well-defined disabilities. It means that everyone with a disability will be able to use the telecommunications products and services they wish.
28. The problems that people with disabilities experience with telecommunications are diverse because disability is diverse. While individuals with vision and hearing disabilities experience barriers in their telecommunications use, it is important to understand that people who have other disabilities, such as those
14 Canada, Statistics Canada, “Participation and Activity Limitation Survey 2006: Tables” (Ottawa: Minister of Industry) at 32, online: Statistics Canada < http://www.statcan.ca/english/freepub/89-628- XIE/2007003/series1-en.htm> (date accessed: July 24, 2008). 15 Ibid. 16 Canada, Statistics Canada, Schellenberg, A Portrait of Seniors in Canada by M. Turcotte and G. Schellenberg (Ottawa: Minister of Industry) at 28, online: Statistics Canada
related to mobility, agility, pain, communication and cognition, also experience barriers to their telecommunications use.
29. The barriers to accessibility faced by people with disabilities are real, documented, substantial and ongoing. The consultation conducted by ARCH in 200318, the Acuity Research Report19, and the CONNECTUS Report20 all provide details on the discrimination faced by people with disabilities. Some of these include: a lack of available, accessible information21, inaccessible customer support and service22, and inaccessible terminal equipment and wireless devices23 24 25. ARCH expects that several parties to this proceeding will more fully describe these and other barriers in more detail on the record of this proceeding, and we expect to provide further details at subsequent stages of this proceeding.
The Need for Regulation
30. It is our submission that due to the absence of focused regulation, numerous barriers exist, as briefly described above, which prevent Canadians with disabilities from being able to access all forms of telecommunications services on an equal basis with Canadians who do not have disabilities. Historically competition has not been sufficient to protect the interests of all users of telecommunications services, including people with disabilities. For example, although cellular phones have been in the competitive market for years, they are markedly inaccessible to many people with disabilities.26 Likewise, the
18 ARCH General Submissions and Responses to Interrogatories in Stark Application to Review and Vary Decision 94-19 (Stark Proceeding), Appendix A: Summary of Consultation
CONNECTUS report extensively documented the inaccessibility of terminal equipment for people with disabilties.27 This is without question a situation of market failure in the absence of any regulatory intervention.
31. The process and decisions at the Commission have considered disability issues as an add-on to the weightier matters of economic regulation. As such, removal of telecommunications barriers faced by people with disabilities has not been addressed as a systemic issue that requires resolution.
32. The regulatory measures that currently exist (as set out in Appendix A) are a patch work. They address specific issues and are reactive in nature in that they usually occur only after a person with a disability or disability organization has experienced a barrier and has asked the Commission to address it. The result has been that accessibility is addressed only partially and as an afterthought.
Regulation relating to Accessibility for People with Disabilities is Consistent with the Order
33. ARCH submits that the recommendations included in our Comments are consistent with the Order28 issued under section 8 of the Telecommunications Act29 (the Act). The Order recognizes that there are circumstances when the Commission will need to rely on regulation, of both a non-economic as well as an economic nature. 30 The Commission's requirement to uphold all of the legislated policy objectives in section 7 of the Act, both economic and social, was not diminished in the Order. 31
34. The Commission has clearly articulated the necessity to continue to regulate regarding accessibility of telecommunications for people with disabilities. In its decision with respect to the regulation of retail local exchange services, the Commission stated that market forces alone may not be sufficient to protect the
27 Ibid, ‘Terminal Equipment’ 28 Order-in-Council P.C. 2006-1534, dated December 14, 2006. 29 S.C. 1993, c.38. 30 Supra, para. 1(b). 31 Ibid, Regulatory Impact Analysis Statement at para. 16. 11
interests of people with disabilities. 32 The Telecommunications Policy Review Panel also stated that “social regulation will remain a necessary complement to economic regulation in Canada’s overall telecommunications policy as telecommunications markets become more innovative and competitive.” 33
35. The Order establishing guidelines for acceptable regulation specifies three aspects which are relevant for non-economic and social regulation. 34 The Commission should:
a. Specify the Telecommunications Act policy objective(s) advanced by the regulatory measure35;
b. Ensure, to the greatest extent possible, the measure is implemented in a symmetrical and competitively neutral manner36; and
c. Demonstrate compliance with the Order37.
36. ARCH’s recommendations are consistent with, and clearly further, the telecommunications Policy Objectives38. Specifically, ss. 7(b) and 7(h) are advanced in that taking the measures ARCH suggests will ensure telecommunications services are accessible to Canadians (s.7(b)) and will ensure that telecommunications services respond to the social requirements of its users (s.7(h)), including those with disabilities.
37. All of ARCH’s recommendations should be applied to all service providers symmetrically. Symmetrical regulation achieves not only compliance with the Order, but also ensures that people with disabilities have equal access, not just to some, but to all telecommunications services. This further advances the Policy Objectives in s.7(b) and s.7(h).
32 Telecom Decision CRTC 2006-15 at para. 346. 33 Telecom Policy Review Panel Final Report, page 6-3 at para. 5. 34 Supra, s.1(b) 35 Ibid, s.1(b)(i) 36 Ibid, s.1(b)(iii) 37 Ibid, s.1(b)(i). 38 Telecommunications Act, supra, s.7. 12
ARCH’s Recommendations regarding Regulatory Requirements
38. ARCH submits that for telecommunications services to be available to all Canadians with disabilities on a non-discriminatory basis, the CRTC must establish regulatory measures which are comprehensive and detailed. There must be a clearly established process which is both transparent and well- publicized, for the establishment, implementation and enforcement of the measures. To this end, the Commission must assume a proactive role in the establishment, administration and enforcement of accessibility-specific regulatory measures and must devote sufficient resources to these tasks.
39. Non-discrimination obligations are not static in time. They are ongoing legal obligations. In the context of the telecommunications industry in which technical innovation and change is a reality, on a continuing basis, the Commission must regularly assess accessibility and implement new regulatory measures as necessary to ensure ongoing accessibility. In particular, the Commission should make sure to do so each time there is a significant telecommunications development.
40. In this regard, the Commission has stated that:
… the use of inclusive design principles at the early stage of service development would improve access to telecommunications services by making them usable by as many people as possible, without the need for adaptation or specialized design.39
41. ARCH makes some recommendations below relating to regulatory measures that the Commission should adopt. However, this list should not be viewed as a list of all measures which should be imposed. It is illustrative of the kinds of measures which must be in place to achieve full accessibility for people with disabilities in telecommunications.
39 Telecom Decision CRTC 2008-1 at para 20. 13
42. All regulatory measures must embrace the principles of universal design40. Universal design is essential to achieving full accessibility for people with disabilities and is based on the goal of full inclusion upfront, without after-the-fact adaptation or retrofitting. When ‘universal design’ principles are incorporated into the design of new products, the products become usable by all people to the greatest extent possible, without the need for adaptation or specialized design. The United Nations Convention on the Rights of Persons with Disabilities41 assigns a prominent role to the principle of universal design and includes strong reference to universal design in the General Obligations section of the Convention.
43. Making new telecommunications technology and products accessible in this way has the potential to not only benefit people with disabilities but also the increasing number of seniors.42 ARCH submits that the Commission must respond to the disability community’s call for such a proactive approach43 and notes that the Commission has, in fact, endorsed the importance of universal design in its most recent decision relating to the use of deferral account funds.44
44. Regulatory measures should be established taking into account examples of the same issue from telecommunications regulators in other jurisdictions, such as the
40 Universal design refers to “...the design of products, environments, programs and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”: Convention (see footnote 36) Article 2. Note that the terms “universal design” and “inclusive design” are sometimes used interchangeably. 41 Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106 [adopted by consensus at the UN on Dec. 13, 2006] [Convention]. Canada signed the Convention on March 30, 2007 but has not ratified it. The Convention came into force on May 3, 2008. 42 Tiresias, online: Guidelines: Inclusive Design http://www.tiresias.org/guidelines/inclusive.htm Universal design is based on the following premises: (a) varying ability is not a special condition of the few but a common characteristic of being human and we change physically and intellectually throughout out lives; (b) if a design works well for people with disabilities, it works better for everyone; (c) at any point in our lives, personal self-esteem, identity, and well-being are deeply affected by our ability to function in our physical surroundings with a sense of comfort, independence and control; and (d) usability and aesthetics are mutually compatible at http://www.adaptenv.org/universal/index.php. See "Report of International Seminar on Environmental Accessibility; planning and design of accessible urban development in developing countries” (Beirut, 30 November - 3 December 1999) at http://www.un.org/esa/socdev/enable/disisea.htm. 43 Final Comments of the Coalition of Disability Groups in Telecom Public Notice CRTC 2006-15, July 31, 2007 at para. 48. 44 Telecom Decision CRTC 2008-1 at para. 20. 14
United States45 and Australia46, as well as international standards and obligations.
45. Telecommunications services must be implemented consistently with all current Commission decisions that have provided accessibility requirements for people with disabilities. Appendix A sets out the current regulatory measures of the Commission.
46. Telecommunications service providers must be required to audit their services to identify barriers to people with disabilities and to design and implement barrier removal strategies.
47. Telecommunications service providers must be required to report on a regular basis (e.g. once per year) to the Commission regarding the accessibility of their services for people with disabilities and specific details regarding their plans for barrier removal.
48. The Commission has already established reporting requirements in the specific context of the deferral accounts. In approving the ILECs’ accessibility initiative proposals, the Commission established ongoing, annual reporting obligations beginning in 2009. The reports are to include “details regarding the initiatives implemented in the previous year, including a description of each initiative, the anticipated customers, the manner in which the initiative improves accessibility, the date when service was offered, [and] the associated costs.”
49. ARCH submits that the Commission must establish reporting requirements for implementing all accessibility initiatives required by the present proceeding.
50. These reports must be available to the public in multiple accessible formats. Public release would enhance transparency and provide people with disabilities the information they need to select the service provider which is able to meet their needs.
45 Federal Communications Commission: Disability Rights Office: http://www.fcc.gov/cgb/dro/ 46 Australia Communications and Media Authority, Access to Disability Services
51. Telecommunications services must be required to meet all future regulatory conditions, including decisions, policies and guidelines, which the Commission may impose and standards or regulations which the Government may enact to ensure ongoing accessibility of telecommunications services for people with disabilities.
52. All regulation must apply equally to all telecommunications service providers. Applying regulation symmetrically will help ensure competitive neutrality since all carriers will have identical obligations to the public and their subscribers.
53. The Commission must be vigilant and proactive in establishing new regulatory measures as the need arises.
Regulation and Terminal Equipment
54. Ending the discriminatory provision of terminal equipment and wireless devices is an issue of primary importance to ARCH and the disability community at large.
55. ARCH began its work advocating an accessible telecommunications environment for people with disabilities at the CRTC during the Stark proceeding47 (Stark Proceeding). The Review and Vary application was in specific reference to the Commission’s forbearance from regulating terminal equipment in Decision 94-19. In its decisions in the Stark Proceeding the Commission denied the application but also undertook to look at ‘unresolved issues’ in the present proceeding. ARCH thus refrained from appealing the decision relying on the promise of future examination in a comprehensive accessibility proceeding.
56. The CONNECTUS report prepared for the CRTC identified issues with terminal equipment and wireless devices as the foremost concern of the disability community.48 Further, ARCH’s limited consultation in 2003 as part of our participation in the Stark Proceeding established terminal equipment as a major concern for people with disabilities.49
47 CRTC File #8662-S49-01/01, supra. 48 CONNECTUS Report, supra, 49 Stark Proceeding, supra, ARCH 2003 Consultation, supra. 16
57. Despite the deep concern of ARCH and the disability community it appears that the Commission is not prepared to address the regulation of terminal equipment in the current proceeding.50 ARCH submits that the Commission appears to be confusing the fact that it does not regulate terminal equipment with the idea that it can not regulate terminal equipment. ARCH submits that the Commission does have jurisdiction to regulate some aspects of terminal equipment. Even in light of the Commission’s forbearance from regulation in Decision 94-19, the perception that the CRTC cannot regulate does not recognize its retained jurisdiction under s.24 of the Act.51. The Telecommunications Policy Review Panel Final Report52 (TPRP Report) also states as fact that “[t]he CRTC plays an ancillary role in the regulation of telecommunications equipment and devices via its regulation of telecommunications carriers and their services. The Commission can also regulate matters related to telecommunications equipment as part of its jurisdiction over network interconnection.”53 In light of these powers, and the repeated articulation of barriers, ARCH wonders why the Commission has refused to act, and in fact apparently denies that it has the power to do so.
58. Moreover, while in ARCH’s view the Commission can regulate terminal equipment, it submits that the Commission has a legal duty to exercise this power to prevent the ongoing discrimination against people with disabilities. Further, that the Commission should regulate terminal equipment is one of the recommendations of the TPRP.54 Their rationale is that “The Panel believes consolidation of [terminal equipment regulation within the Commission] will provide benefits by improving economic efficiency, reducing administrative costs, avoiding duplication and overlap, and providing consistency.”55
59. ARCH recommends that the regulation of terminal equipment in relation to accessibility for people with disabilities must be examined in this proceeding. There are clear recommendations from the disability community in the 50 Telecom Public Notice CRTC 2008-8 at para 16 51 Supra. 52 Telecommunications Policy Review Panel, Final Report 2006. 53 Ibid, pg 5-28 54 Ibid, Recommendation 5-12. 55 Ibid, pg 5-28. 17
CONNECTUS report that, for example, “a basic, universally designed device within their stable of products, 'that will not become obsolete with the next network upgrade'. This would address both affordability barriers for consumers with disabilities, and provide a basic accessible device for the market.”56
60. In addition the Commission must introduce some regulatory incentive for market participants to procure and demand from manufacturers that they use inclusive design principles. The CRTC has endorsed these recently in Decision 2008-157
Regulation and Forbearance
62. ARCH submits that in any proceeding in which forbearance is an issue, the Commission must retain the jurisdiction necessary to address discrimination experienced by people with disabilities.
63. The Commission has jurisdiction under section 34 of the Act to determine the scope of its forbearance. ARCH submits that the Commission must be careful to retain its jurisdiction under subsections 27(2) and 27(4) of the Act when deciding to forbear in order to fulfill its legal duties to prevent unjust discrimination against people with disabilities.
64. Failure to retain its jurisdiction under subsection 27(2) would undermine the Commission's ability, and indeed legal obligation, to address discrimination faced by people with disabilities in their access to telecommunications services. Further, section 47 provides that the Commission shall exercise its powers and perform its duties under the Act with a view to ensuring the provision of telecommunications services in accordance with section 27.
ARCH’s Recommendations regarding Commission’s Activities
65. ARCH submits that the manner in which the Commission conducts is activities fails to address, and in some cases perpetuates, the barriers experienced by
56 Under heading ‘Proposed Solutions’ at para 3. 57 Telecom Decision CRTC 2008-1 at para 20. 18
people with disabilities. As the Commission’s activities are subject both to the Canadian Charter of Rights and Freedoms58 and the Canadian Human Rights Act59 (CHRA), the Commission has non-discrimination obligations not only in its decision-making and regulatory activities, but in all of its activities.
66. ARCH therefore recommends that the Commission take several steps to ensure that its activities are in compliance with the Charter and the CHRA.
67. Accessibility must be addressed by the Commission proactively, systemically and comprehensively. It must be addressed from the outset and on an ongoing basis.
68. The Commission must engage in consultations with the disability community to determine current and emerging issues and barriers.
69. When new issues come to the CRTC, in the initial review by Commission staff and formulation of the proceeding, the Commission should identify on its own its own initiative and through consultation with the disability community, the potential for discriminatory outcomes that might be part and parcel of the new initiative.
70. All Commission activities must be guided by the principles of universal design.60 The disability community has been advocating for such a proactive approach61 as it is necessary for the successful achievement of full inclusion.
71. ARCH submits that an important activity for the Commission to attain the goal of full accessibility for people with disabilities is to create a special unit within the CRTC with a mandate to focus on accessibility in a comprehensive fashion. For the purpose of these Comments, we refer to it as the “Disability Unit”.
72. Examples of activities the Disability Unit could undertake include the following:
58 Constitution Act, 1982, s.15, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11. 59 R.S.C. 1985, c. H-6. 60 See above for details regarding universal design. 61 Final Comments of the Coalition of Disability Groups in Telecom Public Notice CRTC 2006-15, July 31, 2007 at para. 48. 19
receive input from the public and consumers regarding potential emerging issues for people with disabilities, and monitor these issues
undertake research and analysis with respect to the issues identified. This could be carried out by different professionals as required, including CRTC personnel or those contracted externally
as part of the CRTC’s regulatory and other activities, seek input from the disability community, the public generally and industry regarding the matter
as part of the CRTC’s regulatory activities, provide research and information about disability issues
provide education to people with disabilities and industry-focussed education with respect to social and accessibility regulatory requirements
promote public participation in CRTC proceedings about accessibility and disability, and promote funding for such participation. Promoting public participation would include ensuring that all communication is made in formats and modes of delivery that are accessible to people with disabilities and reach them
assist people with disabilities to participate in CRTC proceedings and other CRTC processes, such as CISC committees
support the CRTC in making it fully accessible, such as its website, communications, offices and proceedings
Legal Foundation for ARCH’s Submissions
73. The provision of a fully accessible telecommunications environment in Canada is a legal obligation shared by the Commission and the industry. When exercising its powers under the Telecommunications Act, the Commission must ensure that 20
telecommunications services are offered on a non-discriminatory basis. That is, services must be available to people with disabilities in a manner that enables them to enjoy the full benefit of the service, as do all other Canadians.
74. The constitutional and statutory framework makes it clear that when exercising its powers under the Act, the Commission must ensure that telecommunications services are available on a non-discriminatory basis to persons with disabilities
75. The Commission must rely on CHRA62 and Charter provisions and jurisprudence to give context and meaning to its interpretation of the Act. The CRTC must ensure that the conditions they set and regulatory measures they establish are fully informed by and consistent with human rights jurisprudence.
The Canadian Charter of Rights and Freedoms
76. The Supreme Court of Canada has confirmed that the Charter applies to decisions and orders of administrative bodies that exercise statutory decision- making powers.63
77. ARCH thus submits that the Charter applies to decisions made by the CRTC pursuant to the Telecommunications Act. The CRTC must conduct all of its deliberations in accordance with the Charter, and its decisions must be consistent with all Charter requirements. The Commission has, in fact, considered Charter issues in the past.64
78. Thus, the Act and telecommunications policy objectives65 must be interpreted and applied in accordance with the requirements of section 15 of the Charter, which guarantees the right of Canadians, including people with disabilities, to equal protection and equal benefit of the law.
79. When exercising its powers, the Commission’s decisions must require that telecommunications services are offered on a non-discriminatory basis. That is,
62 Canadian Human Rights Act, supra. 63 Slaight Communications Inc. v. Davidson [1989] 1 S.C.R. 1038. 64 Telecom Decision CRTC 2006-16 65 Telecommunications Act, supra s.7. 21
services must be available to people with disabilities in a manner that enables them to enjoy the full benefit of the service, as do all other Canadians. This will only be a reality when customers with disabilities have equal access to all telecommunications products and services. The Commission must therefore exercise its regulatory powers in a manner which addresses and remedies the discrimination which is currently occurring, and will continue to occur, without such regulation.
The Canadian Human Rights Act
80. The CHRA prohibits discrimination on the basis of disability and pursuant to section 5 it is a discriminatory practice to deny access to any service or accommodation available to the general public on that basis.
81. The Telecommunications Act must be interpreted and applied by the Commission in a manner consistent with the CHRA.
82. The Supreme Court of Canada has recently confirmed that an administrative body is obligated to apply the CHRA when interpreting statutory provisions.66
83. In Council of Canadians with Disabilities v. VIA Rail Canada Inc, the court stated the following:
[…] where a statutory provision is open to more than one interpretation, it must be interpreted consistently with human rights principles. The Agency [Canadian Transportation Agency] is therefore obliged to apply the principles of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, when defining and identifying “undue obstacles” in the transportation context.
66 Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650 at para. 115: “It follows as a natural corollary that where a statutory provision is open to more than one interpretation, it must be interpreted consistently with human rights principles. The Agency is therefore obliged to apply the principles of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, when defining and identifying “undue obstacles” in the transportation context.” 22
84. The SCC has repeatedly espoused the fundamental importance of human rights protection and human rights statutes are endowed with quasi-constitutional status.67
85. Telecommunications service providers too must be required to undertake all of their activities in a manner that is consistent with the obligations in the CHRA.
86. While the CHRA is an important source of law in relation to telecommunications and telecommunications service providers, the existence of another statute of general application such as the CHRA does not oust the equality claims to which people with disabilities are entitled under the Telecommunications Act.
87. In a previous decision of the Commission in relation to local Forbearance68 the Commission explicitly acknowledged that while the Canadian Human Rights Act provides some protection for vulnerable customers, it would not be sufficient to deal with the concerns of people with disabilities in relation to local forbearance.69
Telecommunications Act
88. The existence of the Canadian Human Rights Act and Charter does not mean that accessibility of telecommunications is a matter which is exclusively human rights in nature and not a legal concern for Canada’s telecommunications regime.
89. On the contrary, the Telecommunications Act itself requires that all Canadians with disabilities have access to telecommunications on an equal basis to other Canadians.
Subsection 27(2)
90. The Commission’s interpretation of subsection 27(2) must be consistent with the equality protections in the Charter.
67 Insurance Corp. of British Columbia v. Heerspink, [1982] S.C.J. No. 65, Ontario (Human Rights Commission) and O’Malley v. Simpsons Sears Ltd. [1985] 2 S.C.R. 536, Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] S.C.J. No. 63, Tranchemontagne v. Ontario [2006] 1 S.C.R. 513. 68 Telecom Decision CRTC 2005-15 69 Ibid at para 459 23
91. It is ARCH’s submission that s.27(2) of the Telecommunications Act embodies an important power for remedying the discrimination faced by people with disabilities in telecommunications.
92. Subsection 27(2) of the the Act imposes a prohibition against “unjust discrimination” in respect of the provision of a telecommunications service. It states that “[n]o Canadian carrier shall, in relation to the provision of a telecommunications service … unjustly discriminate or give undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.” This section gives the Commission clear authority to address any unjust discrimination.
93. The Commission has relied on s.27(2) to address unjust discrimination against people with disabilities, for example, in relation to the provision of billing statements and billing inserts in alternate formats70 and the provision of pay telephone service in a manner that takes account of people who are Deaf.71
94. Section 47 highlights the importance of s.27 in that it requires the Commission to exercise its powers and perform its duties under the Act with a view to ensuring the provision of telecommunications services in accordance with section 27.
95. Accordingly, ARCH submits that the Commission must exercise its powers such that its regulatory activities address all unjust discriminatory treatment experienced by customers with disabilities.
Telecommunications Policy Objectives
96. Our submission is supported by the policy objectives set out in section 7 of the Act. In the opening words of section 7 the Act affirms “that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty.”72 It is our submission that the Canadian identity includes a vision of full citizenship for all and the right to accessible services for all.
70 Telecom Order CRTC 96-1191
97. Accessibility is a key social objective of the Act. Building accessibility requirements as a standard for the delivery of telecommunications in Canada is consistent with, and furthers, certain specific policy objectives set out in the Act.
98. Subparagraphs 7(b) and 7(h) are advanced in that requiring telecommunications to be accessible to customers with disabilities will ensure that telecommunications services are accessible to Canadians (s.7(b)) and will ensure that telecommunications services respond to the social requirements of its users (s.7(h)), including those with disabilities.
99. As well, s. 7(a) highlights that the social and economic fabric of Canada is to be safeguarded and strengthened. In order for telecommunications to safeguard and strengthen the social and economic fabric of the country, they must be accessible to all Canadians.
100. Subparagraph (i) provides that telecommunications policy is “to contribute to the protection of the privacy of persons.” Some people with disabilities are unable to dial or use phones independently because of design barriers.73 As a result, they must rely on the assistance of others to use the telephone. In such instances, the failure to provide accessible telephone design fails to contribute to the protection of personal privacy.
Convention on the Rights of Persons with Disabilities
101. In undertaking its activities the Commission should be cognizant of the United Nations Convention on the Rights of Persons with Disabilities (the Convention) 74, to which Canada is a signatory.
102. The Supreme Court of Canada has stated in Baker v. Canada,75 with respect to international instruments that “…the values reflected in international human rights
73 J. Gill & T. Shipley, “Telephones – What features do disabled people need?” online: Tiresias
law may help inform the contextual approach to statutory interpretation and judicial review.”76
103. The Canadian Government has articulated its commitment to the Convention. In connection with the Convention, the Honourable Peter MacKay, Minister of Foreign Affairs and Minister of the Atlantic Canada Opportunities Agency, stated the following:
The Commitment of Canada’s new Government with respect to issues of disability is clear. We have a strong commitment to ensuring that persons with disabilities enjoy full participation in society and can contribute to the community to their full potential.77
104. The Convention recently entered into force. It promotes respect for people with disabilities and prohibits all discrimination on the basis of disability and requires that all appropriate steps be taken to ensure reasonable accommodation.78
105. It specifically addresses telecommunications in that it includes a provision which requires taking measures to remove barriers to accessibility in order to ensure full participation to information and communications, as well as their associated technologies.79
ARCH’s Comments on Issues Raised in Paragraph 12 of the Public Notice
106. To respond fully to the specific areas of Commission determinations set out in paragraph 12 of the Public Notice is an enormous undertaking that cannot be accomplished in the time frames for preparing Initial Comments. In most instances the items may be best addressed by disability organizations as it is people with disabilities themselves who have direct knowledge about their experiences with telecommunications and broadcasting. However ARCH
76 Ibid. at para 70 77 Foreign Affairs and International Trade Canada, News Release No. 50, “Canada Signs UN Convention on the Rights of Persons with Disabilities” (30 March 2007),
provides some brief comments below. ARCH may provide fuller comments on these issues in subsequent stages of this proceeding. The lack of details below should not be construed to mean a lack of concern or that ARCH condones the current regulatory and policy framework in that area.
Video Relay Service (VRS)
107. In ARCH’s view, an effective, national service is essential. Those who are Deaf, Deafened or hard of hearing are entitled to as comprehensive a telecommunications system as any other Canadian. The Commission felt it was forced to reject the calls for the creation of a national VRS system because of the rules governing the use of the deferral account monies.
108. ARCH submits that this proceeding must re-examine the creation of a national VRS system.
Customer Service and Support
109. ARCH considers the lack of dedicated customer service and support an important failing of the current regulatory framework, and it is a major focus of the CONNECTUS Report80. The provision of information and support through customer service can mean the difference between an accessible and inaccessible telecommunications product or service.
110. While certain service providers have used monies set aside in the deferral accounts for accessibility initiatives and have taken strides towards increased service and support for people with disabilities81, in ARCH’s opinion ongoing regulatory requirements need to be imposed on all telecommunications service providers, for heightened service and support to move to equality for people with disabilities in accessing telecommunications. Establishing and regulating reporting requirements for quality of service standards for accessibility should be a goal of this proceeding. ARCH submits that service providers should be required to report annually to the Commission and the public on their accessibility
80 CONNECTUS Report supra, heading ‘Customer Service and Support’. 81 See, for example, Bell Special Needs Centre: http://www.bell.ca/specialneeds 27
and in meeting the telecommunications needs of Canadians with disabilities. Such a requirement would help to ensure that gains in accessibility achieved through this proceeding are not lost.
111. ARCH submits that the Commission must take leadership in the provision of customer service, support and information for people with disabilities. ARCH recommends that the Commission create a dedicated unit within the Commission to create a single point of contact and information for people with disabilities.
Information Provision to Customers with Disabilities
112. An important aspect of customer service and support is the provision of information.
113. ARCH recently filed Comments in Telecom Public Notice CRTC 2008-7 relating to the Commission’s review of the regulatory requirements to provide information to customers using various means of communication in light of Telecom Decision 2008-34. ARCH made submissions in that proceeding because of the importance of telecommunications information for people with disabilities and the barriers they experience with several aspects of telecommunications information.
114. ARCH submits that the informational barriers that people with disabilities face must be specifically addressed in this proceeding. To properly understand and address these barriers the Commission must receive evidence and argument from the disability community: the people who themselves experience the barriers. Because Public Notice CRTC 2008-7 was not written in a manner to specifically address these issues, the disability community has not had any opportunity to express their views and it is essential that they have the opportunity to do so in this proceeding.
115. There are three aspects to the provision of information that are of particular importance to people with disabilities. These are as follows:
116. The format in which information is provided (e.g. Braille and large print) 28
117. The mode of delivery of providing information (e.g. white pages directories and websites)
118. The substance of information (e.g. information about the Statement of Consumer Rights and information about accessible telecommunications products and services)
Information and Inaccessible Telecommunications
119. While inaccessibility of telecommunications results partly from telecommunications products and services which cannot be used by people with disabilities, an equally important barrier for people with disabilities relates to inaccessible or unavailable telecommunications information.
120. When information on telecommunications products and services of particular relevance to people with disabilities is unavailable, barriers to their access to telecommunications result. For example, while there may be mobile devices that can be used by people who are blind, if they have no way of finding out that these devices exist, to them barriers remain in place. In reality, they will not purchase or use mobile devices because they will mistakenly believe that these devices are not accessible for them. Thus, providing information about accessible telecommunications is a crucial part of providing non-discriminatory telecommunications to people with disabilities.
121. Furthermore, while making information about accessible telecommunications available is necessary, it is not sufficient. The information must be available in multiple formats that people with disabilities can access. Information, disability- specific or not, must be in formats that people with disabilities can access.
122. The lack of available information regarding telecommunications products and services has been described on the record in Commission proceedings in Chris and Marie Stark’s (the Starks) Review and Vary Application82 (the Stark proceeding). The Starks, both blind, submitted that “accessible information was
82 CRTC File #8662-S49-01/01;
crucial” and “though the Commission had already suggested that this information should be readily available, it was their repeated experience that it was not possible to obtain this information.” 83 The Commission agreed that the “information for persons who are blind might be difficult to obtain.” 84
123. The Starks also submitted that the information that accompanied terminal equipment was unavailable in a format accessible to them.85
124. Within the Stark proceeding the CRTC attempted to help alleviate the lack of available information regarding telecommunications equipment for people who are blind by commissioning the Acuity Research Group Report entitled “Telephone terminals and accessibility with special reference to visual disabilities” 86 (the Acuity Report). The Acuity Report included the results of research looking into the accessibility of information on the websites of five Canadian telecommunications companies. 87 The report concluded that information on accessibility itself was often inaccessible due to difficulty in locating it. 88
Regulation relating to the Provision of Information for People with Disabilities
125. Current regulatory requirements allow for the provision of information in ways which exacerbate the barriers people with disabilities face in telecommunications.
126. The Commission’s regulatory requirements relating to the provision of information are not uniform nor at all sufficient to ensure that people with disabilities have the same access to information as all other Canadian customers. Below are some examples which illustrate our concerns with the Commission’s regulatory requirements to provide information to customers.
83 Telecom Decision CRTC 2007-20 at para. 10; in reference to information about accessible terminal equipment. 84 Ibid at para. 20. 85 Stark Proceeding, supra, Starks’ Review and Vary Application Letter
127. With respect to the Statement of Consumer Rights, the Commission directed the ILECs to provide it “…in alternate formats, upon request, to persons with a visual disability.”89 While ARCH supports this requirement, we submit that there should be a much broader requirement to disseminate the Statement of Consumer Rights to ensure that it is accessible to all people with disabilities. ILECs should be required to provide it to anyone whose disability requires an alternate method of communication, not just people with visual disabilities. For example, American Sign Language (ASL) or Langue des Signes Québécoise (LSQ) video may be necessary for people who are Deaf whose first language may not be English or French. See below for more detailed information regarding multiple formats.
128. While there are regulatory requirements relating to provision of information about the Terms of Service to customers,90 there is no requirement altogether that the Terms be provided in multiple formats for people with disabilities.91
129. In the context of Public Notice CRTC 2008-7, and a Part VII application which preceded it92, the Companies93 argued that removal of the full Terms of Service from the white pages directory will promote efficiency.94 One of their rationales was that the “rapid rise of the Internet as a means of obtaining detailed information on products and services has created a more convenient alternative channel for customers to access the Terms of Service.”95 The proposed shift of information provision to the internet, in fact, will create additional barriers for some people with disabilities. Posting publications on a website in HTML and
89 Decision 2006-52, para 22, amended by Decision 2006-78, para 12. 90 See Telecom Decision CRTC 86-7 s.5, for example. 91 While Telecom Decision CRTC 86-7 does specify that information pages “… should be required in the introductory section of the carriers’ directories…accessibility to special needs centres and voice relay services, where applicable.”, it is not clear to ARCH exactly what this requires and in any event, it does not ensure that the information is provided in multiple formats for people with disabilities. 92 The Companies’ Part VII Application, CRTC File #: 8665-B2-200802092.
PDF formats is not sufficient to meet the needs of all people with disabilities.96 Not all blind, deaf-blind or visually impaired people have the necessary skills or equipment to access or read online information.97 According to the CNIB, only 23% of its clients have access to the web.98 Those who do not have access require documents in alternative print or audio formats.
130. Although the Terms of Service message proposed by the Companies included contact information for further information99, including reference to the Special Needs Centre, ARCH submits this type of message is not satisfactory. It should contain a clear statement that the text is also available in accessible formats.
131. In the CRTC’s decision relating to 900 service safeguards100 protection measures are required relating to the provision of certain information to customers. Requirements specify the format in which the text must appear, including that it must be easily legible, in plain language and in 12-point font size.101 While these measures will be sufficient for some people with disabilities, they will not ensure accessibility for others. For example, someone who has low vision and can only read material in 16 point font size102 would have no access to information that is required to be in 12-point font size.
96 Canadian Human Rights Commission, “No Alternative: A review of the Government of Canada’s Provision of Alternative Text Formats for People who are Blind, Deaf-Blind or Visually Impaired”, (Minister of Public Works and Government Services: 2006), pg. 3,
132. ARCH submits that the CRTC must expand its regulatory requirements relating to the provision of information to customers to require the provision of information, disability-specific and other customer information, in multiple formats and by modes of delivery which are accessible to people with disabilities. Further, the CRTC must ensure that people with disabilities have the information that they need in order to have equal access to telecommunications products and services. This will involve regulatory requirements to provide customers with complete and up to date information about the extent of accessible telecommunications products and services provided by each telecommunications service provider.
133. ARCH submits that all regulatory requirements relating to the provision of information, to the extent possible, should apply symmetrically to all telecommunications service providers, not just one group such as the ILECs.
Multiple Formats and Modes of Delivery
134. ARCH submits that all information communicated by telecommunications service providers must be readily available in a variety of formats to all customers, including those with disabilities, to ensure equal access.
135. The information in this section is intended to assist service providers and the Commission with respect to their information-related obligations.
136. About 10% of Canadians have disabilities which prevent them from reading standard print.103 For example, people who are blind may not be able to read print altogether and those with limited vision may only be able to read print that is larger than the standard size. People who are Deaf, whose first language is sign language, may have unique needs for written formats of communication. Various alternate formats may also be needed for people with learning or developmental/intellectual disabilities who may have difficulty reading.
103 The Council on Access to Information for Print-Disabled Canadians, “Manager’s Guide to Multiple Formats”, (Ottawa: Library and Archives Canada, 2003) pg. 2
. “Multiple format” refers to any non-traditional publishing format.104 Some types of formats used by people with disabilities that are described in government reports and by disability organizations include the following:
. The use of straightforward, conversational language105
. American Sign Language (ASL) / Langue des Signes Québécoise (LSQ) video for people who are Deaf106
. Audio recording of text for people who have visual or learning disabilities107
. Large print for people with visual disabilities who have some usable vision108
. Braille for people who are blind109
. Electronic documents in accessible formats including plain text files for people with visual disabilities110
137. ARCH submits that for information to be fully accessible, the Commission must require that all telecommunications service providers’ websites meet the World Wide Web Consortium’s (W3C) accessibility guidelines111. Website accessibility
104 Ibid., pg. 4 105 The Canadian Hearing Society “A Guide to Service Providers and Businesses” (2004) pg. 3
means that “people with disabilities can perceive, understand, navigate, and interact with the Web, and that they can contribute to the Web.”112 Without accessible websites people with disabilities will be excluded from accessing information they need about telecommunications products and services which is available to other customers. An accessible Web can help people with disabilities more actively participate in society.”113
138. There is no finite list of formats that ensures information is accessible to everyone because people with different disabilities communicate differently. For example, while one person who is blind may use Braille, another may use a computer with synthetic speech. Further, formats are constantly changing with strides in technology.
139. Due to the large number of alternate formats and the fast rate of technological change ARCH acknowledges that it may not be viable to require telecommunications service providers to produce information in every possible format at the outset. However, multiple formats should be readily available to all customers and all requests for information in alternate formats must be honoured. There are several useful guides and resources to assist service providers in discharging their duties in this regard.114 Additionally, telecommunications service providers should promote the availability of multiple formats, for example, by including a message on all of their communications such as the following: “This publication is available upon request in accessible
112 W3C, Introduction to Web Accessibility,
formats.”115 We note that the CRTC already incorporates a message to this effect in its notices and decisions.
Emergency Services
140. ARCH believes that persons with disabilities may have need to access Emergency 911 more often then the general public, particularly in light of the high incidence of abuse of persons with disabilities.116 In such circumstances, access to emergency services is critical. In addition, persons with disabilities often have health conditions requiring emergency attention. ARCH views Emergency 911 as a required feature to ensure full accessibility to all Canadians with disabilities; it is not merely a consumer option.
Employment of Persons with Disabilities
142. Concerns regarding the employment of people with disabilities are obviously significant to the disability community.117
143. Being subject to federal regulation, both the Canadian telecommunications industry and the Commission are subject to the Employment Equity Act118.
144. ARCH submits that this proceeding should examine these obligations more fully, including any data available from reports or audits. The Commission should
115 This message can be produced in Braille and large print. For more information see: The Council on Access to Information for Print-Disabled Canadians, “Manager’s Guide to Multiple Formats”, (Ottawa: Library and Archives Canada, 2003) pg. 9
116 National studies demonstrate that people with disabilities are abused at a higher rate compared to people without disabilities. Research demonstrates that people with disabilities are many times more likely to experience abuse as compared to people without disabilities of the same age and gender. Liz Stimpson & Margaret Best, Courage Above All: Sexual Assault Against Women with Disabilities (Toronto: DisAbled Women’s Network (DAWN), 1991) at 6. DAWN estimates that 83% of women with disabilities will be sexually abused in their lifetime. Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (North York: Roeher Institute, 1995) at 8. The Roeher Institute suggests that 60% of persons with disabilities are likely to experience some type of violence in their adult lives. Doris Rajan, Violence Against Women with Disabilities – Overview Paper (Ottawa: Minister of Public Works and Government Services Canada, 2004) at 2, online: National Clearinghouse on Family Violence
require service providers to report to it and the public, with information on hiring and employment of people with disabilities.
ARCH’s Comments on improving Accessibility of Telecommunications in response to paragraph 13 of the Public Notice
CISC and Accessibility Issues
145. ARCH submits that an examination of accessibility for people with disabilities, especially in the context of human rights and the Charter, is the responsibility of the Commission and should not be delegated to CISC. CISC is not the appropriate forum to decide policy issues.
146. Laurence Dunbar recently stated the following about CISC: The CISC process “… has proven to be useful in addressing technical issues and issues respecting inter-operability, which are akin to industry standards, but it has been less successful in the case of policy-oriented issues or commercial issues when divergent private interests prevent consensus building. In some cases, the production of “non-consensus” reports by CISC groups has resulted in the delay of a final determination by the CRTC.”119
147. ARCH participated actively in the CISC Accessibility Issues Working Group (AIWG) committee, which was established following Decision 2005-28 in which the Commission requested CISC to “assess the accessibility needs of people with disabilities with respect to the development of VoIP technologies”120 ARCH was unable to address these important issues due to the ineffectiveness and inappropriateness of having accessibility issues addressed by a CISC committee. The work of the AIWG committee culminated in a Non-Consensus Report which was submitted to the CRTC on January 31, 2006. Notwithstanding the fact that the issues raised were not addressed and several next steps were recommended, the Commission has taken no action. This is wholly
119L.J.E. Dunbar, “Dispute Resolution – New Developments: ADR in the Telecom Sector; Binding Arbitration for Tower Sharing and Roaming in the Wireless Market; and the New Telecommunications Consumer Agency” (New Developments in Communications Law and Policy, Law Society of Upper Canada, 25-26 April 2008) at pg 7-9. 120 Telecom Decision CRTC 2005-28 at para 271. 37
unsatisfactory and leaves the concerns of people with disabilities in relation to VoIP no different than they were before our participation in the proceeding. Indeed, at the termination of the CISC process we stated that ARCH “… continues to be of the view that the issues referred to CISC by the Commission in CRTC Telecom Decision 2005-28 have not been addressed appropriately by the AIWG and that they must be addressed in a more comprehensive manner in another forum.”121 A fuller exposition of ARCH’s concerns relating to the AIWG can be found in ARCH’s final contribution to the working group.122
148. ARCH makes the following specific recommendations with respect to CISC:
This proceeding must remedy the abandonment by the CRTC of people with disabilities in respect of the inaccessibility of VoIP. All aspects of VoIP and accessibility for people with disabilities must be addressed in this proceeding.
Referrals to CISC should not be made in relation to any issues addressed in this proceeding.
Statement of Consumer Rights
149. The Statement of Consumer Rights contains a section entitled: “Your additional rights if you are a person with a disability”. It is ARCH’s opinion that this requires amendment as it does not completely articulate the telecommunications rights to which people with disabilities are entitled. This includes the most fundamental and broad right for people with disabilities: the right to receive telecommunications services in a non-discriminatory manner.
150. The Commission directed the ILECs to provide Statement of Consumer Rights “…in alternate formats, upon request, to persons with a visual disability.” While ARCH supports this requirement, we submit that there should be a much broader requirement to disseminate the Statement of Consumer Rights to ensure that it is
121 CISC Accessibility Issues Working Group Non-Consensus Report, January 30, 2006, ARCH Contribution AICO014B,
accessible to all people with disabilities. ILECs should be required to provide it to anyone whose disability requires an alternate method of communication, not just people with visual disabilities. For example, American Sign Language (ASL) or Langue des Signes Québécoise (LSQ) video may be necessary for people who are Deaf whose first language may not be English or French.
151. While we know that the Commission has committed to reviewing the Statement of Consumer Rights in a separate proceeding,123 we urge the Commission to address the disability aspects of the Statement in this proceeding, where people with disabilities, to whom these important rights apply, will have an opportunity to comment. ARCH expects to provide further comments on the statement of consumer rights in subsequent stages of this proceeding.
Further Issues to be Addressed in this Proceeding
152. There are additional issues which concern ARCH and the disability community that must be examined in the proceeding but which we did not have time to address in these initial comments. These include, but are not limited to:
affordability of accessible telecom
quality of service reporting
customer complaints
Deferral Accounts and follow up of Telecom Decision CRTC 2008-1 and implementation
Procedural Concerns
153. It is ARCH’s view that the success of this proceeding is in serious jeopardy as a result of the procedural concerns set out below. The procedural deficiencies result in an unfair, exclusive and onerous procedure.
123 Telecom Decision CRTC 2008-34, Appendix 39
154. ARCH recommends that the Commission take immediate action to remedy the procedural deficiencies described below.
Costs
155. A major flaw of this proceeding is the failure to establish a procedure for the public to have their expenses of participation reimbursed. In ARCH’s opinion, if not remedied, this will substantially impair the Commission’s ability to accurately and effectively ascertain the scope and extent of the concerns that people with disabilities have with telecommunications and broadcasting in Canada.
156. The practical reality is that people with disabilities on average have lower incomes and more limited financial resources than people without disabilities. The median income for people with disabilities is $15,921, compared to the national median of $24,000,124 while the employment rate is 53% compared to 75% for those without disabilities.125 Without sufficient sources of funding, their ability to participate is limited. Similarly, many disability-specific consumer organizations have limited resources and insufficient funding to devote to the necessary resources to participating.
157. Expenses will be a particular concern in view of the need to travel and necessary disability-related accommodations in relation to the public consultation. Indeed, in-person presence at the public consultation will be essential. Requiring parties to participate by video conference solely because of financial inability to appear in person means that people with disabilities do not have the same options available to them as the well-resourced telecommunications service providers. They do not have a choice as to how to present their arguments most persuasively.
124Canada, Statistics Canada, Participation and Activity Limitation Survey 2001 [note: the 2006 equivalent statistics are currently unavailable]
158. It will be important that participants receive reimbursement for their expenses for participation regardless of whether their participation relates to broadcasting or telecommunications aspects of accessibility.126
159. ARCH is gravely concerned that limited financial resources will mean that the full and broad participation from the disability community that this proceeding envisioned will not be a reality. In considering ARCH’s submissions on this matter, the Commission must be cognizant of the fact that the sole purpose of this proceeding is to address the “unresolved issues related to the accessibility of telecommunications and broadcasting services to persons with disabilities”. As ARCH has described repeatedly in previous proceedings before the Commission, the only way to gain insight into these issues is to hear from the disability community itself. There are many different disability groups representing Canadians with many different disabilities who may all have differing perspectives on the relevant issues. It is essential that all of these views be heard so that the Commission can come to a better understanding of the issues affecting Canadians with disabilities. Without full participation from all who seek it, this proceeding will not be able to achieve its stated goals.
160. Further, the CRTC must entertain and grant cost awards on an interim basis. People with disabilities and organizations must be assured that financial resources will be available for their participation because the vast majority simply cannot afford to finance their participation in advance.
161. People with disabilities should not be resource-limited and have the same choice to participate via videoconference or in person that the regulated companies clearly have.
162. These changes would greatly encourage participation and prevent the Commission from deciding based on hearing from a select, well-resourced few.
Time Frames
126 ARCH makes this submission knowing that the broadcasting rules of procedure do not contemplate cost awards. 41
163. While recognizing the need for an expedient resolution to the discrimination faced by people with disabilities, ARCH submits that the short time frames involved in this proceeding are insufficient for the disability community to adequately prepare for and address the myriad of telecommunications and broadcasting concerns facing them. It is ironic that in a proceeding to address accessibility for people with disabilities, the time frames themselves have created serious accessibility concerns for them.
164. The disability community has expressed their views in correspondence to the Commission that the short time frame to provide initial comments was insufficient and an obstacle to full participation in the proceeding. Even the two week extension that was granted by the Commission was not enough.
165. It is likely that people and organizations who saw the initial public notice were deterred from participating because of the unreasonable time frames.
166. The CONNECTUS Report127 noted that participants recommended thirty to sixty days between stages of the proceeding. However, the Report’s comments regarding time frames were without context. Some Commission proceedings are much more extensive than others. While thirty days may be sufficient to respond to some limited and discrete issues, responding to a public notice, such as this one, which asks parties to comment on the widest possible array of issues for people with disabilities, requires much more time to prepare. Participating in this proceeding, including preparing Initial Comments, requires a substantial amount of time for people and disability groups to co-ordinate their efforts, conduct research and prepare their responses.
167. Adding to these concerns is the inclusion of both broadcasting and telecommunications issues into one proceeding. The need to prepare submissions on two vastly different areas of the Commission’s jurisdiction, with correspondingly divergent legal frameworks, has effectively halved the time available for participants to focus on each area. ARCH, for example, while
127 CONNECTUS Report supra. 42
experienced with the law and issues associated with telecommunications, has been unable to comment on the many broadcasting problems facing people with disabilities in light of the limited time allotted. Such a task is completely daunting to the many participants who are entirely new to CRTC processes.
168. While telecommunications service providers are experienced at participating in CRTC proceedings and have sufficient resources to do so, disability groups and people with disabilities have very little, if any, experience at the CRTC and have limited time to devote to the proceedings. These factors must be taken into account when the CRTC establishes time frames.
Communication to Parties
169. Thus far, the CRTC website does not contain a method for contacting parties to this proceeding. While we know that the party list will not be finalized until the Initial Comments are submitted, some companies appear to be parties automatically by virtue of being asked questions by the CRTC. The CRTC has refused to make their contact information available. The lack of a centralized list of parties has made the procedure difficult for parties, like disability organizations, who do not devote the majority of their time to CRTC proceedings. It has meant that disability organizations with an interest in the proceeding, and an intention to participate, have not had the benefit of notification, as a matter of course, of correspondence from the parties and the Commission. This is a fundamental denial of fair process.
170. The requirement to monitor the CRTC website for developments, as is suggested in the public notice, is an onerous task and will likely result in parties being unaware of potentially important developments, such as changes in procedure and submissions. We urge the Commission to develop a mechanism for ensuring that all parties receive all relevant documents, including correspondence and submissions from the Commission and other parties. We note that the some people with disabilities have privacy concerns relating to having their contact information made public. In view of this, we urge the 43
commission to devise a method for ensuring that notification is received while maintaining privacy of the parties who so desire.
Notification of this Proceeding to the Disability Community
171. There has been no visible widespread notice of this proceeding. Notification of this proceeding to the disability community was not sufficient in either scope or timeliness. The disability community has limited resources and time and individuals and organizations are unable to continually monitor the CRTC website. We are aware of organizations and individuals who wished to participate but who received no notice of the proceeding by the Commission. It appears as though the Commission ignored the CONNECTUS report, which recommended that notification be given. The rules of fundamental justice require notification of the Public Notice to parties who may have an interest in the proceeding. Furthermore, participation by a wide spectrum of people with disabilities is crucial for the success of this proceeding. The Commission’s failure to properly notify people with disabilities has limited the breadth and diversity of views available to it.
Rationale for Attendance at Public Consultation
172. ARCH notes the differences in approach with respect to the design of this proceeding with other Commission proceedings. ARCH is especially concerned that the Commission is requiring parties to provide a rationale for their request to attend at the Public Consultation in November. We are concerned that disability organizations and people with disabilities will be intimidated from participating in this proceeding by having to justify the rationale for their attendance at the consultation. This is ironic in view of the fact that it is their participation that is crucial to the success of the proceeding.
Interrogatories
173. There is also no opportunity for parties to ask Interrogatories of each other. ARCH expects that parties would have useful questions and an interrogatory 44
process would allow their participation, including comments and presentations at the public consultation, to be informed by the responses and additional information they receive. This is the ordinary approach to disclosure and ARCH sees no reason for it to be omitted in this instance.
CRTC support for Parties
174. The procedural deficiencies are magnified by the fact that the CRTC has not provided staff support in navigating the complex process for participation.
175. In the CONNECTUS Report disability organizations complained that “Commission processes and procedures tend to be difficult to navigate and confusing for many people with disabilities”128, “the Commission needs to provide better access to its processes for persons with disabilities”129 and “the submission/intervention process has too many barriers”130. Yet, in ARCH’s opinion, the Commission has failed to substantially address these concerns.
176. Further, despite Commission correspondence in response to ARCH’s extension request promising a plain-language guide to aid in coping with the proceeding131; there has been no aid produced to help in negotiating its complexities.
177. The result has been that organizations and individuals faced with the additional complexity of this proceeding have been without accessible guidance.
Conclusion
178. Telecommunications services are largely inaccessible to many customers with disabilities. The recent CONNECTUS Consulting report132 described how “the Canadian disability community expressed its deep concern that as the pace of communications technologies and devices accelerates, persons with disabilities
128 Report Part A at para 14 129 Ibid under heading Comments Concerning the CRTC, at para 17 130 Ibid. 131 2 July 2008 Letter, http://www.crtc.gc.ca/archive/ENG/Letters/2008/lt080702.htm , at para 3 132 CONNECTUS Consulting Inc, Stakeholder Consultations on Accessibility Issues for Persons with Disabilities, April 2008.
will be faced with increasingly inaccessible products and services – promoting exclusion rather than inclusion in Canadian society.”133 It is essential, and in compliance with law and the Order, that the Commission take action and take a broad, systemic, and proactive approach to regulation in relation to accessibility for people with disabilities. It is essential that the Commission act now to decelerate the rate at which people with disabilities are excluded from society by inaccessible telecommunications.
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133 Ibid at para. 1 in part A.