Summary

1. Background to the complaint - difficulties with GSM

In this report we make some remarks about closure of the analog service. Some submissions to this inquiry dealt with that issue and it seems advisable to make a statement clarifying the scope of the DDA in this regard. The outcome of the present complaint does not depend on what is say about the analog closure and this material is in Appendix B.

Under the DDA it is unlawful to discriminate on the grounds of disability in the manner of provision of goods, services and facilities. For the purposes of the DDA services includes services relating to telecommunications.

Electromagnetic fields generated by many digital mobile phones interfere with hearing aids to such an extent that hearing aid wearers cannot use those mobile phones. With closure of the AMPS analog network, in which this sort of interference is insignificant, hearing impaired users of mobile phones can be faced with a serious problem. They face restrictions on their capacity to access the same mobile telephone service that the community as a whole uses.

There are at present two digital carriage technologies to consider. GSM causes the most hearing aid interference and for some years has been the only commercially available digital technology in the spectrum made available by the Government for digital cellular services.

GSM mobile phones appear to give acceptable performance with hearing aids only when further devices are used that enable the phone to be kept at a distance from the hearing aid. This does not work for all hearing aid users.

Australian Hearing, through the National Acoustic Laboratories, has conducted an extensive investigation of CDMA mobile phone compatibility with hearing aids. The general conclusion is that CDMA provides a much more acceptable alternative with research indicating that a majority of hearing aid users will experience significantly less electromagnetic interference from CDMA phones than they do from GSM phones. The Commission reproduces in this report a summary of the Australian Hearing research and a commentary by Telstra on its findings and implications is at Appendix A.

The Federal Department of Communications, Information Technology and the Arts has conducted meetings between people with disabilities, the mobile phone industry and hearing services to explore solutions to these issues. These meetings have been valuable and provided a forum for information exchange which was perhaps lacking throughout much of the 1990s. It is important that these channels for consultation be kept open.

2. Aims of the Inquiry

The context and aims of the inquiry are set out in a notice published in September 1999 and reproduced at Appendix E.

The principal formal aims of the inquiry have been to assist the parties and to inform exercise of any powers that may affect the course of the complaint. Informally the inquiry is one of many contributions to discussion about how digital communications technology can be made accessible to all people.

Submissions to the inquiry closed in December 1999.

A draft of this report was circulated to interested parties on the basis that the information and suggestions presented might assist the parties to reach a conciliated agreement. A number of constructive comments were made on that have materially improved the final report and the Commission is grateful to all those who took the trouble to comment.

In April 2000 the power to deal with complaints under the DDA was vested in the President of the Commission. Further decisions about the conduct of the complaint that gave rise to this inquiry will be made by the President.

3. Conclusions about rights and responsibilities

Service providers

• For the purposes of the DDA, the service that telecommunications companies provide is access to telecommunications.
• Service providers are obliged by the DDA to provide accessible services unless doing so subjects them to unjustifiable hardship. This means that people with disabilities have the right to receive the telecommunications services that are received by the community as a whole.
• Service providers are constrained by the availability of technical solutions at commercially competitive costs and this must be taken into consideration in assessing unjustifiable hardship under the DDA.
• Service providers are also subject to Trade Practices Act requirements concerning description of services and fairness of contracts.

Retailers

• Equipment retailers are obliged to make goods available in a manner that does not discriminate against people with disabilities. This means that the way the goods are provided must be accessible but is not a guarantee that goods themselves will be useable.
• Retailers when selling equipment are not obliged by the DDA to supply only items that can be used by people with disabilities, nor are they obliged to supply any items that can be used by people with disabilities.
• Retailers are obliged by the Trade Practices Act to properly describe what they sell and warrant that it is suitable for the customer's purpose. This includes the purposes of people with disabilities provided that the consumer gives appropriate information to the retailer to make the retailer aware of the needs of the consumer and the purpose for which the goods are services are to be used.
• Retailers who sell mobile phones bundled as part of a contract providing access to a telecommunications service are obliged to ensure that the mobile phone is fit for the customer's purpose of using the service. This is both a DDA and Trade Practices Act obligation.

Manufacturers

• Telecommunications equipment manufacturers are not required by the DDA to make accessible mobile phones.
• Manufacturers are required by the Trade Practices Act to properly describe the products that they do make. This extends to appropriate information and labelling that would assist a customer who wears a hearing aid to make a decision about whether a particular mobile phone fits their needs.

Hearing aids

• Hearing aid manufacturers and retailers have the same obligations under the DDA and the Trade Practices Act as do mobile phone manufacturers and retailers. That is, they must describe their goods properly, give reasonable warrant that the goods are suitable for the customers purpose and make the goods available in a manner that does not discriminate unlawfully. This means providing information to consumers about the compatibility of hearing aids and mobile phones whether by way of labelling or otherwise.

It is important to note that for the purposes of the DDA the law of principal and agent is applied subject to section 123 of the Act.. Acts or omissions of an agent may in some circumstances be taken to be acts or omissions of the principal.

It follows from these conclusions that service providers or retailers who sell phones bundled with services are obliged by the DDA to make available accessible services. In meeting this obligation they are entitled to claim that any particular measure required of them will impose unjustifiable hardship. If manufacturers make no equipment that facilitates accessibility and if transmission technology presents intractable barriers then clearly defences of unjustifiable hardship will be readily available. The DDA does not compel people to achieve what is technically or commercially impossible.

4. Unjustifiable hardship

In providing for unjustifiable hardship, however, Parliament clearly had in mind that some costs that assist achieving equality, independence and dignity are justifiable. In the present context justifiable costs may be those flowing from the facts that manufacturers do make equipment that facilitates accessibility and there is a suitable transmission technology, namely CDMA. The ready availability of equipment and the projected wide coverage of CDMA suggest that the costs of providing services that are useable by hearing aid wearers may be subsumed by the ordinary operating costs attributed to consumer protection generally. In saying this we do not suggest that CDMA services are the only ones that attract DDA requirements. GSM service providers have obligations to provide access within the limits of technical and commercial feasibility and those limits do not appear so strict as to rule out a number of steps they may take without unjustifiable hardship.

The most significant feature of telecommunications today is its global nature. The market for telecommunications services covers every country and therefore so does the industry that provides those services. In turn the industries that support the service providers make products, whether it be switching gear or mobile phones, that are used in many countries. And there are many different regulatory regimes around the world.

The work of the International Telecommunications Union in setting standards is important but not complete. Those standards are devised in part through interaction with the larger national markets and their regulators. The United States in particular has a significant impact because of the size of its market, the technical sophistication of its industry and the role of the Federal Communications Commission.

United States law about telecommunications accessibility extends to equipment manufacturers. They have to make accessible equipment where this is "readily achievable". Even without this legal obligation, there is evidence that principles of universal design and the desire to capture as wide a market share as possible motivate equipment manufacturers to produce items in their range of models that promote access for people with disabilities. An example is provided in the submission by Motorola.

There is no law about equipment in Australia similar to that in the United States nor, given the small size of our market and the overseas sources of most equipment, is it easy to see how there could be one. What matters most from an Australian perspective is that international developments are producing solutions in transmission technology and customer equipment that enhance accessibility of telecommunications. This reduces the strength of arguments for unjustifiable hardship in Australia. It is becoming less likely that, although something is available in another country, we cannot do it here. It is a vital issue for Australians that the best equipment commercially available be used here within reasonable time frames. Current Australian policy is directed to ensuring that we are not a marginal market but a global participant in telecommunications.

5. Perceived problems with CDMA

There has been publicity concerning perceived issues surrounding the rollout of the new CDMA network. Closure of the analog AMPS network was a controversial policy in a number of respects. Most of that controversy was about access in rural and regional Australia and issues concerning people with disabilities did not receive the same level of media attention.

For technical and practical reasons CDMA has been introduced gradually. These reasons are not relevant to the fundamental issue concerning compatibility of GSM services and hearing aids. It is not surprising that variations in service quality may occur until the CDMA effectively replaces AMPS. The Commission understands that the CDMA rollout is now very advanced.

Telstra maintains that perceptions of CDMA performance may have been based on early experiences when the network was incomplete and a significant amount of performance optimisation was being undertaken. The Commission's view is that service difficulties that occur for users in general are not in themselves grounds for complaint under the DDA unless there are additional factors that give rise to discrimination on the ground of disability.

Questions of CDMA network coverage and signal strength are outside the scope of this report.

6. Complaint against manufacturers should be closed

With respect to manufacturers we recommend that the President exercise the power to decline to continue to investigate the complaint. Even though the DDA complaint against them may be closed, obligations manufacturers have under the Trade Practices Act are important and must be taken seriously.

In closing this aspect of the present DDA complaint the President would not be deciding whether or not a failure by equipment manufacturers to meet Trade Practices Act obligations might also impose indirect discrimination on people with disabilities. Such discrimination might in some circumstances give rise to a cause of action under DDA section 6.

7. Complaint against service providers should be conciliated

Effective resolution of this complaint has two aspects. It is necessary to address problems that individuals may have encountered through lack of adequate information about digital mobile phone services. There is evidence that some people have entered into service contracts for GSM services and have acquired GSM phones without sufficient understanding on the part of

The second aspect is finding a way of reducing the risk to both consumers and service providers that circumstances such as those that prompted this inquiry will arise again.

In respect of the service providers about the following options for improving access for hearing aid wearers and reducing liability under the DDA. This will inform the remaining parties to the complaint in framing their own courses of action and may contribute to a conciliated outcome. It will also assist the President in deciding the further exercise of any formal powers.

The following three options may bear on resolution of this complaint. It should be noted that these are possibilities that the parties to the complaint may wish to explore. They are not things the Human Rights and Equal Opportunity Commission or the Disability Discrimination Commissioner can do. All we can do is close the complaint or continue with it. If the complaint continues, the Commission can facilitate discussions between the parties. If the complaint is closed but a constructive dialogue is maintained, as everyone expects it would be, then the Commission would also be happy to contribute.

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