The Federal Communications Commission (FCC) released a Report and Order on April 29, 2013, reversing an earlier interpretation in its October 2011 rulemaking, and clarifying that Internet browsers used for advanced communications services (ACS) that are installed by ACS equipment manufacturers or provided by ACS service providers are considered software subject to the ACS accessibility requirements of Section 716 of the Communications Act of 1934, as amended (the “Act”). The Order also adopted regulations requiring that Internet browsers on mobile phones be accessible to users who are blind or visually impaired pursuant to Section 718 of the Act. In practical terms, this means that Internet browsers used for ACS must make existing functionality, such as inputting URLs into the address bar, utilizing toolbar buttons (home, back, forward, refresh, etc.), and activating zooming features, accessible to individuals with disabilities, including vision, hearing, physical and cognitive. For mobile browsers, this generally means providing audio prompts and inputs for browsing commands for blind or visually impaired users.

Significantly, the FCC reversed its prior conclusion that Section 718, the statutory section that requires mobile browsers to be accessible to the blind and visually impaired for any purpose, was an exception to the ACS browser requirements found under Section 716, a section that requires manufacturers of equipment used for ACS, including end user equipment, network equipment, and software, to ensure that such equipment and software is accessible to individuals with disabilities generally. The FCC concluded instead that the requirements overlap. That is, Section 716 applies to all Internet browsers that comprise a component of an ACS—which, in practice, means browsers that are used for email or text messaging services—while Section 718 applies only to browsers installed on mobile devices (but for any purpose, not just for using email or text messaging services).

As a result of this reversal, the FCC concluded that there would be no special phase-in for mobile browsers; rather, any service or equipment introduced after Oct. 8, 2013 must meet the requisite accessibility performance objectives and must be usable (i.e., information necessary to enjoy the full functionality of the product must also be accessible). The FCC extended its Part 14 rules applicable to ACS to Section 718 mobile browsers, but with three exceptions:

  • There is no requirement to pass-through accessibility information, because browsers don’t pass through any information but rather find, display and retrieve web pages;
  • There is no compatibility requirement, meaning that mobile phone browsers need not be compatible with existing peripheral devices or specialized customer premises equipment commonly used by persons with disabilities to achieve access; and
  • There is no exemption for customized equipment or services not offered to the public.

Among the rules that do apply, accessibility performance objectives for individuals who are blind or visually impaired must be considered by ACS manufacturers and service providers at the design stage as early as possible, and must be implemented in any products or services offered after Oct. 8, 2013, if achievable. As with its earlier ACS rules, the FCC has incorporated industry flexibility provisions that offer service providers and manufacturers flexibility in determining how the accessibility performance objections will be accomplished.

The accessibility requirements include ensuring that any browsers incorporated by mobile service providers and equipment work with the accessibility features of the service or equipment; making information, documentation and support for the service or products accessible to blind and visually impaired persons; keeping records detailing efforts to comply with the accessibility rules; and certifying compliance with such rules.