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In addition, some commentators highlight other flaws in the proposed enforcement framework also caused by the prohibition against private rights of action. They argue that the option of initiating formal procedures against respondents must not be left entirely to the discretion of the Commission, particularly as the informal procedures "provide very limited protection for the complaina . . . and no apparent opportunity for participating beyond the issuance of a Commission report." In essence, such a restriction is a denial of the due process of complainants and the Commission should be required to institute such actions where requested by the complainant. This provision of the proposed rule demonstrates that private rights of action may be necessary in the future. It is evident that Congress may have sought to prevent such actions due to the fact that the courts are overly-burdened by civil rights lawsuits. However, given the informal nature of the enforcement process and the fact that industry may view accessibility as an expensive technological consideration in a world where products are constantly changing, Congress may need to amend section 255 in the future to permit the filing of such suits. At the very least, the Commission should begin the formal resolution process where requested by complainants with legitimate concerns.
Chapter IUniversal Access – Technology
Thus, the Commission should permit complainants to file complaints with the FCC without having to contact potential respondents first; FCC employees would then be responsible for forwarding the complaints to respondents, as currently required in the proposed rule. Perhaps the current hope is that requiring contact before an official complaint filing will reduce the number of complaints received by the Commission as some problems will be resolved quickly (without the Commission’s involvement) and some complainants will choose not to pursue their complaints due to frustration or other factors. Notwithstanding this interest in the efficient allocation of the Commission’s resources, the agency’s early involvement in these actions is necessary, especially as there are no private rights of action authorized pursuant to section 255. Such a system would force respondents to address accessibility complaints from the beginning, rather than using the complaint process to frustrate complainants.