In this episode of Accessibility Insights, we talk with Michal Nowicki of the CommLaw Group. Michal’s work has focused on disability issues primarily technology-based. Michael has expertise in the 21st Century Communications and Video Accessibility Act (CVAA) and works to advocate for the widespread implementation of audio description.
Hello, everyone. This is Thomas Logan from Equal Entry here with Ken Nakata of Converge Accessibility. In this episode of Accessibility Insights, we’re talking to Senior Associate Attorney Michal J. Nowicki of the CommLaw Group.
We’re excited because Michal brings a new perspective to our podcast. Like Ken, he’s an attorney but Michal is also blind and specializes in telecommunications law, a slightly different area where technology and disability rights intersect.
He also focuses on digital accessibility as a broad topic, and as you know, this is what we focus on here at A11yInsights. So we’re very excited to have him here today.
Trump Presidency and Accessibility
Thomas Logan: Ken, can you start us off with our first question for Michal?
Ken Nakata: Sure. So, Michal, as we enter this new administration, what do you think that the second Trump administration will mean for the future of digital accessibility in terms of legal landscape here in the United States?
Michal Nowicki: That is a great question, Ken. Well, of course, nobody knows what it will be like for sure.
However, there are some educated guesses that we can make based on what happened during President Trump’s first term in office. During President Trump’s first term, the Department of Justice withdrew a notice of proposed rulemaking under Title II of the Americans with Disabilities Act that was issued under the Obama administration that would have required websites and mobile apps to be made accessible to people with disabilities, signaling that this clearly was not a priority for the Trump DOJ.
Now, since then, those regulations were propagated under the Biden administration and, while I don’t expect another Republican administration to repeal those regulations, it seems unlikely that we will get regulations under Title III of the ADA, which are the regulations that would apply to privately operated entities, private places of public accommodations.
Another thing that we’ve seen is the withdrawal of some high-profile appeals that the Department of Justice was prosecuting, which further underscores that this area is likely to be a much lesser priority for the incoming administration. However, there are some areas where the federal government is expected to remain more active in the accessibility landscape. For example, the Federal Communications Commission had a lot of bipartisan cooperation around telecommunications relay services (TRS) for people with hearing or speech disabilities.
So in that area, I don’t expect any kind of major overhaul of the regulatory landscape. And, the contrary, the incoming administration might push more towards encouraging innovative technologies, such as automatic speech recognition, TRS solutions, as well as, cracking down more on violations of FCC rules and combating fraud, waste, and abuse of the TRS funds.
So in that regard, a Republican administration could be even more active in regulating the providers of those services. As far as web accessibility litigation, most of that is under state law anyway. Because the Americans with Disabilities Act (ADA), does not allow plaintiffs to sue for damages. So, a lot of that is under California’s Unruh Act.
We have some under New York law, some under Florida law. So, I don’t expect any kind of major shifts there. So, the bottom line is while the federal government may prioritize accessibility less, it’s still an important issue and carries legal compliance risks, both at the federal and state level. And one thing to keep in mind that even under federal law, especially the Americans with Disabilities Act, lawsuits will still be filed and some courts may still be more sympathetic to the plaintiffs than the DOJ.
Thomas Logan: Could you define the term TRS solutions or TRS funds?
Michal Nowicki: Yes, absolutely! So, TRS stands for Telecommunications Relay Services. They are assistive services that allow people with hearing or speech disabilities to make telephone calls, either by using sign language or by communicating in text form with a relay operator who then provides the voice link between the user with a disability and a hearing person on the other into the call. The TRS fund reimburses the providers of those services.
Those providers do not charge eligible users for their services. They’re not like regular telephone providers. So they are funded from a federal fund into which providers of telecommunications services pay mandatory contributions, surcharges.
Thomas Logan: Excellent. Could you explain under the first term of Trump, the withdrawal of the notice of proposed rulemaking under Title II of the Americans with Disabilities Act, who was the ultimate decision maker to withdraw that, or how did that happen under that administration? When that did occur?
Michal Nowicki: The ultimate decision maker to withdraw the rulemaking was the U. S. Department of Justice, which was led by an attorney general who was appointed by President Trump.
Accessibility in Devices Vs. Organizational Responsibility
Thomas Logan: Michal, I imagine that several of the people that you reach out to in your practice may not have had any experience with accessibility. So, what are some of the common questions or feedback that you hear from people when you first reach out to them about their inaccessible technology?
Michal Nowicki: One thing that I would like to highlight in particular is that many people who have not had any prior experience with accessibility think that they can just rely on the native accessibility features of Windows, Apple, Google, or other products on which their software runs. So, I had various clients who come to me and say, “We’ve done a little bit of research. We’ve seen that Apple has a screen reader called Voiceover or screen magnification tools, other accessibility features for people with other disabilities. So, you can just rely on those and we’re good, right?”
And then I have to explain to them that, “No, that is not necessarily the case.” The software still needs to be compatible with those accessibility features and that the way they need to approach is as if the accessibility software that people with disabilities are using is an operating system within the operating system.
If they cannot use those accessibility features, then they cannot use the product at all. So, the product needs to be able to talk to the accessibility features. So, when you’re designing these apps, you need to worry about not just designing them to work on Windows, Linux, Mac, iPhones, but you also need to design them to work with JAWS, voiceover, screen magnification software like ZoomText, Dragon NaturallySpeaking software, etc.
Thomas Logan: Michal, I love to speak because I do think that this is a blind spot that people have in accessibility, obviously in the technology world as a whole, but people think, “Oh, I mentioned that I have an accessibility feature. It just works.”
And I think that your experience of what people first respond to, if they go to Apple’s website or Microsoft’s website, they do see that information on those companies’ websites. They probably don’t see information about, “Hey, you’re the developer. You also need to do this and this and this.”
I think that’s a really interesting point of like the probably common — it’s not even a malicious point of view from a lot of these people, but it’s just an assumption. “Oh, I don’t have any education in this space. I assumed this was working.” Do you have any ideas of how these companies could better position that or explain that to the developers and their ecosystem to make sure they understand what their responsibility is?
Michal Nowicki: That is a great question. Those companies do have dedicated resources publicly available specifically designed for developers, like developer guides and toolkits.
And it is unclear to me to what extent those resources are difficult to find, versus to what extent the ignorance of businesses is coming into play. When a business comes into this sphere and they really don’t know anything about the accessibility, they can easily see the accessibility features and, they may easily think that they are covered because of that, as I have seen with my clients.
So, maybe one way to make this more easily visible to the businesses that design products would be to find some way to flag those features on the main accessibility pages. But then, where my concern is that those pages are really oriented towards the consumers who use the products and while there may be mentioned that some third-party apps may not be compatible with those products.
Those may not be easily visible to the businesses that design those products. So, I don’t really have a great answer for making those points more visible to the developers. Ken, do you perhaps have any suggestions on that?
Ken Nakata: Yeah, that’s always going to be a challenge about how do you drill down that information down to developers.
Thomas Logan: Thank you so much, Michal, for your conversation with us today, and as Ken mentioned, we’ll love to have you on again in the future. For those of you all that have listened to our conversation today, we really appreciate you participating with us here on our A11yInsights podcast. We’d love to hear from you, so let’s continue the conversation.
Add any comments on our post or on our podcast, and we’ll be happy to respond. Thank you so much for your time and we will see you in our next episode.
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