Below is testimony I presented on Tuesday, August 13, 1996 on the
Assistive Technology Warranty Act, a bill introduced in the last
session of the Illinois General Assembly. The testimony was
presented at the Illinois Disability Policy Forum in Chicago.
Versions of the bill have been enacted in 10 states. Overall the
bill as introduced will benefit users of electric wheelchairs and
similar devices and have unintended disastrous consequences for
blind persons and users of information technology. The approach
I favor is one of empowerment of people with disabilities about
existing laws and assistive technology programs rather than
another layer of vaguely defined and misunderstood rights. A
copy of the law appears at the end of this post following my
remarks.
kelly
Testimony of:
Kelly J. Pierce
A recent report by the National Council on Disability
identifies the widespread use of technology as one of the four
big megatrends that have impacted the lives of people with
disabilities in the last decade. The report predicts that this
trend will continue for at least another 10 years. It is for
this reason that I come here today with significant concerns
about the Assistive Technology Warranty Act introduced in the
last session of the General Assembly. The bill needs to
encompass the issues relevant to blind and print-impaired users
of information access technology. This would include narrowing
the scope of the bill to include only products specifically
intended for people with disabilities, basing protection on
product type rather than consumer identity, reducing the warranty
period for computer software, and empowering consumers of
assistive technology to take more responsibility when purchasing
products. If the bill is not changed, it will stall the gains in
information access, impede efforts for universal design, and have
significant negative impacts on availability and development of
electronic products and services useful to blind persons.
Known by many as the "wheelchair lemon law," the act would
require manufactures of all assistive technology to offer a full
one year warranty for replacement or refund on a product if it
cannot be fixed after four attempts, if it is out of service for
more than a total of 30 days, or if the assistive device has any
conditions or defects which substantially impairs the value of
the assistive device to the consumer.
However, the right of redress for diminish value offers
blind persons who use adapted technology what I believe will be
reduced availability of such technology in the long run.
Fundamentally, the bill extends far beyond taking the sourness
out of the technology lemons consumers sometimes have. In the
end it fails to empower consumers to take responsibility for the
technology choices that are made, usually at the expense of a
third party, such as the Illinois Department of Rehabilitation
Services, Medicaid, insurance, family members, schools, and
service clubs. Education about options and assistive technology
issues is one way consumers can have the tools to take charge.
Sharing the risk is another way. Property insurers have
deductibles so that consumers take steps in their self interest
as well as the insurance company's. Student aid requires
students to maintain a certain grade point average and a course
will only be paid for once. If you choose the wrong school, have
low grades, or pick the wrong courses, you must pay for the
correction yourself. Consumers of accessible information
technology need empowerment more than they need rights.
Empowered consumers who choose products that meet their needs,
pick their own vendors, and decide upon a training approach that
is right for them have more satisfactory results than what might
be achieved through the diminished value clause. For blind users
of information technology, we are trying to fix the problem from
the back end of what is essentially a front end problem.
Another troubling aspect of the bill is its application to
mainstream products. To understand the problem the technology
must be understood. People with disabilities use essentially two
kinds of assistive technology. One kind is that specifically
designed, manufactured and marketed to people with disabilities
and those that serve them. Examples are obvious such as
wheelchairs, braille embossers, and portable ventilator units.
The other kind of tool that allows for independence, is that
found in mainstream products. These are products not
specifically designed for people with disabilities but provide as
much benefit and independence as specialized products do.
Examples include the Sharp talking clock and calculator, talking
watches at Radio Shack, and vcr's that can be programmed by
speaking to them.
Further, a trend is ongoing called universal design. This
process encourages manufactures of products to consider all the
potential users of a product including children, people with
disabilities, older persons, and those with limited cognitive
skills. Advocates say that this reduces or eliminates the need
for unique, specialized products that are often expensive and
hard to find and use. Proponents of universal design point to
closed captioned decoders as their success story. The decoders
began being sold in the 1970s to allow people with hearing
impairments access to spoken matter on television. Certain
television programs are transcribed and the text is displayed at
the bottom of the screen only with sets connected to such
decoding equipment. Now the "equipment" is etched on a microchip
and installed into every television set sold in the United
States, no matter who buys it. The benefits to those who are
deaf or hard of hearing are obvious: access to television
programming will be available anywhere without a specialized,
attached device. Other people benefit also from this mainstream
design of a specialized technology. Translation software has
been added to some sets that allow for instantaneous translation
of the closed captioned material into Spanish, French, German and
other languages, certainly a help to the nearly one million new
immigrants to the U. S. each year. In some bars bartenders click
on the captioning feature so that patrons can access the play-by-
play sports commentary without needing to have sets turned up so
loud. In the end, everyone benefits when television sets are
designed for everyone.
However, under the proposed legislation, everything that
could be used for "a major life activity" to increase a person's
ability to see, hear, maneuver, or communicate would be covered
by the act. This would include not only specialize products and
services but mainstream ones as well, such as the new television
sets. It is firmly believed that manufactures of all products
have an obligation to ensure that all products and services and
be used by the greatest number of people in the community.
Otherwise, blind persons and those with disabilities will be
excluded from the information age. I believe though that this
legislation is not the means to force manufacturers to design
accessible products for people with disabilities. Displays that
can only be read visually, buttons that are hard to press or
manipulate, or audible alarms that must be responded to are all
examples of product features that by their very design are
inaccessible to some people with disabilities. In a changing
marketplace, this law could be used to force manufacturers to
refund the cost of a slightly inaccessible product if a newer,
competing product offers more features and improvements that
could benefit someone with a disability. The road to better
products and adoption of universal design principles by
manufactures is not through litigation in the courts. Universal
design standard setting, such as that found in the
Telecommunications Deregulation Act of 1996, should be a mutual
process involving all the interested parties that could be
affected by the decision, such as government, industry, and the
disability community.
Further, blind persons and those with disabilities should
not have special rights when purchasing mainstream products and
services. To fulfill the needs of people with disabilities who
may buy the wrong products to serve their needs or who do not
know how to get products to work, I support full enforcement of
the Americans with Disabilities Act and extending it if necessary
Current law requires dealers and salespersons to read printed
information on contracts, boxes and store displays so that blind
consumers can make an informed choice. Certainly more education
must occur for consumers if people with disabilities are to know
about and exercise this right. This bill will likely turn most
electronic products sold at mainstream retail outlets into
"assistive technology" worthy of special protection. This could
include every television set now on the market and most computer
equipment. The law creates a two-tiered standard of protection:
one for the mainstream and the other for the disabled. This
double standard that the law creates may in the end be more
harmful than helpful. This law creates an incentive, if applied
on a national level, for manufactures to not include features
that could be useful to someone with a disability. This is
because manufactures would avoid the possibility of being
regulated by the act. The two-tiered system of consumer rights
and protection inevitably resulting from this bill would further
isolate and perpetuate the dependence the blind and people with
disabilities have on government and social service agencies, not
allowing us to take responsibility for our lives. Equal status
on terms of equality means just that: nothing more and certainly
nothing less.
The bill as introduced fails to recognize the unique issues
of computer software. The mainstream issues are obvious: nearly
all computer software on the market sold in commercial,
mainstream venues can enhance the communication of people with
disabilities. This would regulate an entire class of products
based on the kind of consumer who bought the product rather than
regulating the product class in and of itself. As described
above, I do not believe that the Assistive Technology Warranty
Act should apply to mainstream products. Moreover, mainstream
computer software producers are adding features useful to people
with disabilities. For example, both the Apple MacIntosh and
Windows 95 operating systems include features that enlarge text
on the monitor, allow for one-handed keyboard operation, and use
of the interface without a mouse. Some commercial mainstream
communication programs allow a personal computer to emulate a
telecommunications device for the deaf. I believe that if this
bill were adopted software designers would avoid putting such
features into mainstream software, opting instead for specialized
programs to avoid being regulated in this new way. This would
limit, rather than expand, mainstream participation for people
with disabilities and impede universal design efforts,
ghettoizing the disability community.
Information technology, particularly software, changes so
rapidly that the capitalization necessary to fund development of
access technology would be restricted if a full refund were
allowed for software bugs in programs designed and intended for
the blind and those with disabilities that could not be fixed
within a year of purchase. I believe that this bill could
dramatically increase the number of returned units of software
and encourage frequent switching of products, escalating the
costs of accessing computers for blind and print-impaired
persons. The unintended consequence would be to limit choices
and options rather than increasing them. The bill should be
changed to require only a full refund 30 days after purchase and
free upgrades of purchased software up to a year after purchase,
a common practice in the adapted technology field. This change
would protect those sold incompatible software or that which is
inappropriate for their needs while at the same time minimizing
the increased cost to other consumers with disabilities resulting
from abuses in a broad-based and overly flexible policy.
To be sure, Added protection for unsophisticated consumers
who buy specialized products for their own independence make
sense. People who own electric wheelchairs want greater
reliability and security in the devices they use for their daily
independence. Blind persons and those with disabilities are
unsophisticated consumers that depend on these products to keep
and obtain a job, to travel, and for everyday community
participation. Most jobs now require use of a computer. Blind
persons can now work in fields before unavailable because blind
individuals can access information displayed on the video monitor
through having it read in a synthesized voice or on a refreshable
braille display. The blind person's job now depends on this
technology working reliably and effectively. This is why I
support a right of recourse for conditions and defects of
specialized products that impairs the value of the product to the
consumer.
Not only are most people with disabilities unsophisticated
consumers, many of the issues seeking protection by this act
occur because the consumer buys a piece of information technology
that is ill-suited or inappropriate for him. Assistive
technology dealers aggressively pursue potential consumers, some
in the process of losing their vision, to persuade them to buy
particular devices or products. It is only until later when the
consumer tries to use a product, does he discover that the
dealer's claims are outlandish and untrue. Examples abound of
blind consumers with no useful vision being sold or attempted to
be sold software that enlarges text on a computer screen. The
software works; however, the assistive technology dealer knew in
each instance that the consumer would likely not be able to use
the product. Unfortunately, newly disabled people are often
desperate for anything that might minimize the disability, no
matter the logic of the sales pitch. I also support this
provision for specialized products designed, marketed, and
developed for people with disabilities because of the
incompatibility issues so common with information access
technology. While a speech synthesizer or braille display may be
free from defects, the product may not be compatible with the
equipment of the user, despite assurances of a dealer eager to
make a sale.
Finally, any law on technology access is of no value unless
we halve the resolve and commitment to implement it and see that
it is enforced. A significant example of the failure to
implement the technology access sections of the Americans with
Disabilities Act occurs from one of the very sponsors of this
policy forum, the Mayor's Office of the city of Chicago. After
nearly three years of being aware of the problem and the steps to
correct it, the Daley administration still has not made computer
workstations and information services at the Chicago Public
Library accessible to people with disabilities. Requests for
meetings with the library commissioner have been refused and
assistance from Larry Gorski, the Director of the Mayor's Office
for People with Disabilities has been minimal at the very best.
More money or the lack of it is neither the solution or the
problem. The Illinois State Library granted more than $60,000 to
the Chicago Public Library for a pilot project. The computers,
speech synthesizers, and access software are sitting unused
because they have not been installed. The mayor's office created
a position on assistive technology issues the salary of which
exceeds $35,000. Further, Library commissioner Mary Dempsey
pledged nearly a year ago at a city budget hearing in this very
room to have completed by January 1 an ADA transition plan on
when such access would be a reality. The plan is not finished by
the library's ADA compliance officer, Jim Pletz. Earlier this
year Microsoft Chairman Bill Gates donated one million dollars
for the library's efforts to go online and expand information
access to every library branch in the City of Chicago. Neither
the library or the mayor's office has said yet how people with
disabilities will participate in this information initiative.
The benefits of technology will accrue to people with
disabilities not through additional litigation from vaguely
worded laws such as the warranty act, but through the cooperation
and commitment of existing parties working together to implement
current policy and programs.
Assistive Technology Warranty Act
Senate bill 1398
As used in this Act, the following terms are defined as:
SECTION ONE
1. "Assistive device", any device, including a demonstrator,
that a consumer purchases, leases or accepts transfer of in this
state which is used for a major life activity which includes, but
is not limited to, manual wheelchairs, motorized wheelchairs,
motorized scooters, and other aides that enhance the mobility of
an individual; hearing aids, telephone communication devices for
the deaf (TTY), assistive listening devices, and other aids that
enhance an individual's ability to hear; voice synthesized
computer modules, optical scanners, talking software, braille
printers, and any other devices that enhance a sight impaired
individuals's ability to communicate; and any other assistive
device that enables a person with a disability to communicate,
see, hear, or maneuver;
2. "Assistive device dealer", a person who is in the business
of selling assistive devices;
3. "Assistive device lessor", a person who leases an assitive
device to a consumer, or who holds the lessor's rights under a
written lease.
4. "Collateral cost", expenses incurred by a consumer in
connection with the repair of a nonconformity, including the cost
of obtaining an alternative assistive device;
5. "Consumer", any of the following:
(a) The purchaser of an assistive device, if the
device was purchased from an assistive dealer or
manufacturer for purposes other than resale; (b)
A person to whom the assistive device is transferred for purposes
other than resale, if the transfer occurs before the
expiration of an express warranty applicable to the
assistive device. A person who may enforce the warranty;
(d) A person who leases an assistive device from an
assistive device lessor under a written lease;
6. "Demonstrator", an assistive device used primarily for the
purpose of demonstration to the public;
7. "Early termination cost", any expense or obligation that an
assistive device lessor incurs as a result of both the
termination of a written lease before the termination date set
forth in that lease and the return of an assitive device to a
manufacturer pursuant to this section. Early termination cost
includes a penalty for prepayment under a finance arrangement;
8. "Early termination saving", any expense or obligation that
an assistive device lessor avoids as a result of both the
termination of a written lease before that termination date set
forth in that lease and the return of an assistive device to a
manufacturer pursuant to this section. Early termination saving
includes an interest charge that the assistive device lessor
would have paid to finance the assistive device or, if the
assistive device lessor does not finance the assistive device,
the difference between the total amount for which the lease
obligates the consumer during the period of the lease remaining
after the early termination and the present value of that amount
at the date of the early termination;
9. "Manufacturer", a person who manufactures or assembles
assistive devices and agents of that person, including an
importer, a distributor, factory branch, distributor branch and
any warrantors of the manufacturer's assistive device, but does
not include an assistive device dealer;
10. "Nonconformity", a condition or defect that substantially
impairs the use, value, or safety of an assistive device, and
that is covered by an express warranty applicable to the
assistive device or to a component of the assistive device, but
does not include a condition or defect that is the result of
abuse, neglect or unauthorized modification or alteration of the
assistive device by a consumer;
11. "Reasonable attempt to repair", within the terms of an
express warranty applicable to a new assistive device: (a)
Any nonconformity within the warranty that is either subject to
repair by the manufacturer, assistive device lessor or any
of the manufacturer's authorized assistive device dealers, for
at least four times and a nonconformity continues;
(b) The assistive device is out of service for an aggregate of at
least thirty cumulative days because of warranty
nonconformity.
SECTION TWO
1.
A manufacturer who sells an assistive device to a consumer,
either directly or through an assistive device dealer, shall
furnish the consumer with an express warranty for the assistive
device. The duration of the express warranty shall be not less
than one year after first delivery of the assistive device to the
consumer. In the absence of an express warranty from the
manufacturer, the manufacturer shall be deemed to have expressly
warranted to the consumer of an assistive device that, for a
period of one year from the date of the first delivery to the
consumer, the assistive device will be free from any condition or
defect which substantially impairs the value of the assistive
device to the consumer.
2.
If a new assistive device does not conform to an applicable
express warranty and the consumer reports the nonconformity to
the manufacturer, the assistive device lessor or any
manufacturer's authorized assistive device dealers and makes the
assistive device available for repair before one year after
return delivery of the assistive device to a consumer, the
nonconformity shall be repaired at no charge to the consumer.
3.
If, after a reasonable attempt to repair, the nonconformity is
not repaired, the manufacturer shall carry out the requirement
set forth under subsection 5 of this section.
4.
If, after a reasonable attempt to repair, the nonconformity is
not repaired, then at the direction of a consumer described under
paragraph (a), (b), or of subsection (5) of section 1, the
manufacturer shall do one of the following:
(1) Accept return of the assistive device and replace the
assistive device with a comparable new assistive device and
refund any collateral cost;
(2) Accept return of the assistive device and refund to the
consumer and to any holder of a perfected security interest in
the consumer's assistive device, as their interest may appear,
the full purchase price plus any finance charge amount paid by
the consumer at the point of sale and collateral costs, less a
reasonable allowance for use. A reasonable allowance for use may
not exceed the amount obtained by multiplying the full purchase
price of the assistive device by a fraction, the demoninator of
which is one thousand eight hundred twenty-five and the numerator
of which is the number of days that the assistive device was used
before the consumer first reported the nonconformity to the
assistive device dealer;
(3) With respect to a consumer described under paragraph (d)
of subsection (5) of section 1, accept return of the assistive
device, refund to the assistive device lessor and to any holder
of a perfected security interest in the assistive device, as
their interest may appear, the current value of the written lease
and refund to the consumer the amount that the consumer paid
under the written lease plus any collateral costs, less a
reasonable allowance for use.
5.
The current value of the written lease equals the total amount
for which that lease obligates the consumer during the period of
the lease remaining after its early termination, plus the
assistive device dealer's early termination costs and the value
of the assistive device at the lease expiration date if the lease
sets forth that value, less the assistive device lessor's
reasonable allowance for use.
6.
A reasonable allowance for use may not exceed the amount obtained
by multiplying the total amount for which the written lease
obligates the consumer by a fraction, the denominator of which is
one thousand eight hundred twenty-five (1825) and the numerator
of which is the number of days that the consumer used the
assistive device before first reporting the nonconformity to the
manufacturer, assistive device lessor or assistive device dealer.
7.
To receive a comparable new assistive device or a refund due
under subsection 4 of this section, a consumer described under
subsection of section 1 shall offer to the manufacturer of the
assistive device having nonconformity to transfer possession of
that device to that manufacturer. No later than thirty days
after that offer, the manufacturer shall provide the consumer
with the comparable assistive device or refund. When the
manufacturer provides the new assistive device or refund, the
refund, the consumer shall return the assistive device having the
nonconformity to the manufacturer, along with any endorsements
necessary to transfer real possession to the manufacturer.
8.
To receive a refund due under subdivision (3) of subsection 4 of
this section, a consumer described under paragraph (d) of
subsection (5) of section 1 shall offer to return the assistive
device having the nonconformity to its manufacturer. No later
than thirty days after that offer, the manufacturer shall provide
the refund to the consumer. When the manufacturer provides the
refund, the consumer shall return to the manufacturer the
assistive device having the nonconformity.
9.
To receive a refund due under subdivision (3) of subsection 4 of
this section, an assistive device lessor shall offer to transfer
possession of the assistive device having the nonconformity to
its manufacturer. No later than thirty days after that offer,
the manufacturer shall provide the refund to the assistive device
lessor. When the manufacturer provides the refund, the assistive
device lessor shall provide to the manufacturer any endorsements
necessary to transfer legal possession to the manufacturer.
10.
No person shall enforce the lease against the consumer after the
consumer receives a refund due under subdivision (3) of
subsection 4 of this section.
11.
No assistive device returned by a consumer or assistive device
lessor in this state, or by a consumer or assistive device lessor
in another state under a similar law of that state, may be sold
or leased again in this state unless full disclosure of the
reasons for return is made to any prospective buyer or lessee.
12.
Each consumer shall have the option of submitting any dispute
arising under this section upon the payment of a prescribed fee
to an alternative arbitration mechanism established pursuant to
regulations promulgated by the attorney general.
13.
Such alternate arbitration shall be conducted by a professional
arbitrator or arbitration firm appointed by and under regulations
established by the attorney general. Such mechanism shall ensure
the personal objectivity of its arbitrators and the right of each
party to present its case, to be in attendance during any
presentation made by the other party and to rebut or refute such
presentation.
14.
This section shall not be construed to limit rights or remedies
available to a consumer under any other law.
15.
Any waiver by a consumer of rights under this section is void.
(17)
In addition to pursuing any other remedy, a consumer may bring an
action to recover for any damages caused by a violation of this
section. The court shall ward a consumer who prevails in such an
action twice the amount of any pecuniary loss, together with
costs, disbursements and reasonable attorney fees, and any
equitable relief that the court determines is appropriate.
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