773

August 31, 1998

The Honorable Joseph I. Lieberman

United States Senate

Washington, D.C. 20510

Dear Senator Lieberman:

This letter responds to your inquiry on behalf of your constituent, xxxxxxxxxxxxxxx, and his wife, who is an individual with a hearing impairment. Mr. xxxxxxxxxx and his wife support strengthening the Americans with Disabilities Act (ADA) by requiring all businesses to have telecommunication devices for deaf persons, or TDD's, also known as TTY's, or text telephones. Please excuse the delay in responding.

Your constituent is correct in advising that the ADA does not necessarily require all businesses to have TDDs. First, not all businesses are covered by the ADA. Title III of the ADA, in relevant part, covers private businesses that are places of public accommodation. A business is a place of public accommodation if its operations affect commerce, and if it falls into one of twelve categories specified in the statute and regulation, examples of which are places of lodging, sales or rental establishments, service establishments, places serving food and drink, and places of entertainment.

Second, covered businesses are required to ensure effective communication with individuals who have hearing impairments, but they are not specifically required to use a TDD in receiving and making telephone calls. Title IV of the ADA establishes a relay service in every State that enables TDD callers who have hearing or speech impairments to call private businesses, and businesses to call individuals with hearing or speech impairments. Relay calls are facilitated through a relay operator, who uses a TDD to communicate with the TDD user, and, typically, uses her or his voice to communicate with the business entity. In this way, the relay operator conveys the TDD user's questions or responses to the business, and vice versa.

During notice and comment rulemaking for the Department of Justice's regulation implementing title III, the Department received some comments from individuals who were concerned that the relay service would not be sufficient for all types of communication. The Department felt that this concern was best addressed by the Federal Communications Commission, which was the agency responsible for rulemaking under title IV, which provides for the relay service. To obligate all businesses to have TDDs, therefore, is likely to require a change in the statute or its implementing regulations.

Under some circumstances, however, businesses are required to have TDDs. If a business customarily offers the use of telephone services to its customers on more than an incidental, or convenience basis, then it must provide use of TDDs. So, for example, a hospital or hotel that offers patients or patrons the opportunity to make outgoing calls would be required to provide a TDD on request. On the other hand, retail stores, doctors offices, or restaurants generally would not be required to have TDDs, because orders or appointments could be made using the relay service.

I hope that this information is helpful to you in responding to your constituent.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division