Through a recent Public Notice, the FCC reminded entities that provide traditional telecommunications services, interconnected VoIP, advanced communications services (ACS) (which includes non-interconnected VoIP, electronic messaging services, and interoperable video conferencing), and mobile web browsers to submit recordkeeping compliance certifications and contact information to the FCC by April 1, 2017. Unless subject to a waiver, the aforementioned entities must complete the required certifications in connection with the accessibility obligations imposed by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The certifications, which attest that the covered entity has recordkeeping processes in place that comport with FCC rules, must be supported by an affidavit or declaration of an authorized officer with actual knowledge of the entity’s recordkeeping processes, and be filed using the FCC’s online registry.
Pursuant to section 14.31 of the FCC’s rules, and subject to substantial forfeitures for non-compliance, telecommunications service providers,1 VoIP, ACS providers and manufactures not subject to waivers must keep records of:
- Efforts to consult with individuals with disabilities (defined broadly to include people with hearing, vision, movement, manipulative, speech, and cognitive disabilities) about product or service accessibility barriers and solutions;
- Descriptions of the accessibility features of products and services;
- Information about the compatibility of products and services with peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities; and
- The extent to which, if a product or service is not accessible, compliance was not “achievable” (or “readily achievable” in the case of telecommunications or interconnected VoIP services offered prior to October 8, 2010).
Records must be updated and maintained until two years after a product or service ceases to be offered. Significantly, these same records may be relied upon by covered entities when defending against complaints that covered services and products are not accessible. Therefore, if it is determined that accessibility is not achievable; pursuant to section 14.10 of the FCC’s rules, the entity’s records should also include information sufficient to demonstrate the fact that accessibility is not achievable under the FCC’s four factor analysis:
- The nature and cost of steps needed to make the product or service accessible;
- The technical or economic impact on the operations of the manufacturer or provider and on the operation of the specific equipment or service in question;
- The types of operations of the manufacturer or provider; and
- The extent to which the service provider or manufacturer offers services or equipment containing varying degrees of functionality and features, and offered at differing price points.
Please contact DWT if you would like assistance in developing recordkeeping processes that meet the FCC requirements and/or completing the required online certification by April 1, 2017.
FOOTNOTE 1 Subsequent to the reclassification of broadband internet access service (“BIAS”) as a telecommunications service, the FCC subjected BIAS providers to section 255 of the Communications Act and the FCC’s implementing rules, which require telecommunications service providers and equipment manufacturers to make their services and equipment accessible to individuals with disabilities, if readily achievable. However, while the substantive section 255 obligation is now in effect, the Recordkeeping Compliance Certification and Contact Information Registry requirements will not be enforced against BIAS providers until the FCC receives approval from the Office of Management and Budget under the Paperwork Reduction Act, and the FCC publishes a notice in the Federal Register announcing such approval and the relevant effective date. See Accessibility Recordkeeping Compliance Certification and Contact Information Reporting Requirements for Entities Subject to Sections 255, 716, and 718 of the Communications Act, Public Notice, DA 16-281 (rel. Mar. 16, 2016); Accessible Telecommunications and Advanced Communications Services and Equipment, OMB Control Number 3060-1167. In any event, the reclassification of BIAS as a telecommunications service may change under the new FCC Chairmanship before OMB approval is given or published.
This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.