In the first action of its kind, the Federal Communications Commission has approved, in part, five class waivers of its new accessibility rules for advanced communications services ("ACS"), which were adopted last October (the "ACS Order") pursuant to the Twenty-First Century Communications and Video Accessibility Act (the "CVAA").
These ACS accessibility rules, which generally will become enforceable in October 2013, require most equipment or services that may be used to access to be made accessible to persons with disabilities, unless doing so is not achievable or the offering is subject to a waiver. The CVAA also provided for a few specific types of waivers of these requirements, including a waiver for offerings with multiple purposes but that have a primary purpose, as designed, that is not ACS. The CVAA stated that these "multipurpose" waivers may cover individual models or a class of similar offerings, and the FCC set forth multiple criteria for determining what classes of offerings may qualify for a waiver as part of its promulgation of its ACS accessibility rules.
In spring 2012, three major trade associations sought multipurpose class waivers: (i) the Consumer Electronics Association sought a waiver until July 2016 for Internet protocol-enabled television sets and digital video players; (ii) the National Cable & Telecommunications Association sought a waiver, also until July 2016, for set-top boxes with IP functionalities that are leased to cable customers; and (iii) the Entertainment Software Association pursued three waivers, one for video game hardware, one for video game online networks, and one for video games themselves, until October 2021. Each of the waiver requests noted that the primary purpose of the equipment or service was entertainment or gameplay, not ACS. In comments responding to public notice of the waivers, multiple groups, including the National Association of the Deaf and the American Council for the Blind, opposed the proposed waivers.
This week, the FCC Consumer and Governmental Affairs Bureau, acting on delegated authority, concluded that it would approve all of the waivers until October 8, 2015, although each may be renewed pursuant to a further agency proceeding. The Bureau explained that longer waivers may not serve the public interest because of the evolving nature of ACS and these offerings. It also focused on the time period need to bring a relevant product from design to market, not the entire lifecycle of the product, contrary to the suggestions by multiple waiver petitions. However, the Bureau confirmed that once a product model or service was introduced to the market during the waiver period, that model or service would not become subject to the ACS accessibility rules even if the waiver expired, unless there were substantial post-waiver changes made to the model.
Procedurally, the Bureau acted on each of the waiver petitions within the six-month timeline established by the ACS Order, which may bode well for future requests. Although the FCC did not address all the remaining questions regarding its new ACS requirements, the recent action sheds new light as to how the FCC may decide to enforce its new rules. It also offers manufacturers or providers with offerings covered by the waivers additional opportunity to see how other developers and the FCC intend to respond to the new accessibility rules once they become generally enforceable next year.