Over the Columbus Day weekend, the Federal Communications Commission (FCC) released its Report and Order setting forth new accessibility rules requiring “advanced communications services” (ACS) to be “accessible” to people with disabilities (the ACS Order). ACS is a newly created statutory category of services which includes all VoIP services (one-way, two-way, interconnected, and non-interconnected), as well as electronic messaging, and interoperable video conferencing services.

The rules establish new standards of accessibility for those with hearing, vision, movement, manipulative, speech and cognitive disabilities, among others, and reach nearly every device manufacturer and service provider that incorporates ACS into their product, whether as a primary feature or just an incidental component. For example, the new rules apply to web e-mail services, social networking sites, real-time text and video chat applications, as well as manufacturers of gaming consoles and other multi-purpose media and communication devices. Many of these services have not previously been subject to state or federal regulatory oversight. Providers will likely find that they are now subject to the FCC's jurisdiction with respect to these new obligations and liabilities.

The ACS Order implements Sections 716 of the 21st Century Communications and Video Accessibility Act (CVAA), enacted in Oct. 2010, which requires ACS to be accessible if “achievable,” which means “with reasonable effort or expense.” It also implements Section 717 to establish new recordkeeping requirements for telecommunications, VoIP and ACS providers and device manufacturers to ensure compliance with their respective accessibility obligations. The ACS Order also addresses Section 718 of the CVAA by requesting additional comments on the accessibility of mobile web browsers in a further notice of proposed rulemaking (FNPRM) accompanying the ACS Order.

What is covered?

The ACS rules apply to (1) interconnected VoIP; (2) non-interconnected VoIP; (3) electronic messaging service; and (4) interoperable video conferencing services.

  1. Interconnected VOIP: For purposes of ACS, the FCC adopts the definition of that term as provided under the FCC’s rules (which is subject to change from time to time). It is important to note that interconnected VoIP services (and related devices) that existed as of Oct. 7, 2010 will continue to operate under the existing accessibility requirements of Section 255 of the Communications Act. For any new interconnected VoIP service or related device that did not exist as of Oct. 7, 2010, the FCC has reserved its authority to determine if such service or device will be subject to Section 255, Section 716 (and the new ACS rules), or neither;
  2. Non-interconnected VoIP: Unlike interconnected VoIP, the definition of non-interconnected VoIP is not limited to two-way communications over broadband, but is more broadly defined as a service that “(i) enables real-time voice communications that originate from or terminate to the user’s location using [IP] or any successor protocol; and (ii) requires [IP] compatible customer premises equipment” and “does not include any service that is an interconnected VoIP service.” Thus, one-way VoIP services are covered;
  3. Electronic messaging service (EMS) is defined as “a service that provides real-time or near real-time non-voice messages in text form between individuals over communications networks,” and broadly encompasses interactive services like text messaging and instant messaging. EMS also includes traditional e-mail, but not blog posts or online publishing. Although social networking posts are not EMS, any ACS feature offered through the social networking site is covered;
  4. Interoperable video conferencing service means “real-time video communications, including audio, to enable users to share information of the user’s choosing.” The service must involve two or more users (like video chat), and thus does not include one-way video broadcasts like webinars and webcasts. In the FNPRM, the FCC has requested further input as to the meaning and scope of the term “interoperable.” The FNRPM also seeks comment on whether the ACS rules should be extended to “video mail” pursuant to the FCC's ancillary jurisdiction, much like what the FCC did with voice mail in the context of telephone service.

What is not covered?

The ACS Order exempts “customized equipment and services offered to business and other enterprise customers only.” Enterprise customers can include government agencies, educational organizations and public institutions. The equipment or service must be “customized” to the “unique specifications” of the customer. Mere cosmetic changes, or changes that do not significantly alter the functionalities of the device or service provided to the general public, do not qualify for the exemption. If the product is customized but then subsequently offered directly to the public, the exemption no longer applies; however, the exemption will apply if the general public can use what is otherwise a custom enterprise solution.

The ACS Order also exempts small businesses based on the rules and size standards of the Small Business Administration, but only on a temporary basis. The FNPRM seeks additional comment on whether and how small businesses should be exempt. Small businesses will be exempt until the FCC establishes formal small business exemption rules pursuant to the FNPRM or Oct. 8, 2013, whichever is earlier.

The ACS Order recognizes that ISPs are not liable under the ACS rules if the ISP is merely transmitting covered services or provides an information location tool, e.g., providing end user access to a web-based e-mail client. However, ISPs and other network providers have a duty not to impair or impede the accessibility of information content if incorporated into that content for transmission through the network.

ACS services provided over private networks (i.e., not connected to the Internet, the PSTN, or “any other communications network generally available to the public”) also are not subject to the ACS rules.

Although many commenters urged it to do so, the FCC did not exempt services or devices that only “incidentally” use ACS in its service. Gaming consoles, for example, which may incorporate voice or text services during online gaming, are thus subject to the rules. The FCC similarly rejected requests to exempt multi-purpose devices (like smartphones, tablets, laptops and desktops) that may not be primarily designed for ACS use. These services and devices must instead request formal waivers pursuant to the FCC's new ACS waiver process, though the waiver process has been designed to specifically address multi-purpose services and devices.

Who is covered?

Equipment Manufacturers. The ACS rules apply to manufacturers of equipment and devices that use ACS, including end user equipment, network equipment and software. If a covered device includes embedded or pre-installed software (e.g., an operating system or e-mail client), the manufacturer is responsible for the accessibility of that software (even if provided by a third-party). This includes software that is separately available, including upgrades. The manufacturer is not, however, responsible for third-party software that consumers may download or access on their own.

ACS Providers. The ACS rules apply to providers of ACS, including resellers and aggregators. Such providers may include providers of web-based e-mail services, desktop or mobile ACS applications, and mobile text messaging services. Providers are covered whether they provide ACS over their own networks or another service provider’s network. Note that the ISP exemption would apply to the network provider in the latter case. As with manufacturers, providers are not liable for third-party applications accessed or downloaded by consumers.

What does “achievable” mean?

The CVAA adopted the ADA's broad definition of disability, which not only includes people with hearing or vision impairments, but those with movement, manipulative, speech, and cognitive disabilities, among others.  However, this broad range of covered disabilities is somewhat tempered by the “achievable” standard for accessibility, described by Section 716 to mean “with reasonable effort or expense, as determined by the [FCC].”  

The “achievable” standard (which differs from the current Section 255 “readily achievable” standard) takes into equal consideration four factors as set forth in Section 716:

  1. The nature and cost of the steps needed to achieve accessibility with respect to specific equipment or services in question (including whether accessibility will require fundamental alterations to the product or service);
  2. The technical and economic impact (including costs and gross revenues) on the operation of the manufacturer or provider, and on the operation of the specific equipment or service in question, including on the development and deployment of new communications technologies;
  3. The type of operations of the manufacturer or provider (including relevant experience with ACS); and
  4. The extent to which the service provider or manufacturer in question offers accessible services or equipment containing varying degrees of functionality and features at differing price points.

Covered entities may provide accessibility using built-in solutions or third-party solutions (if achievable), available at nominal cost (e.g., initial and on-going costs) to the consumer. Covered entities that cannot achieve such accessibility must ensure that their products are “compatible” with existing peripheral devices and specialized CPE commonly used by individuals with disabilities to achieve access—unless even compatibility is not “achievable.” Peripheral devices may include “mainstream” devices and software, and CPE can include wireless devices.

Waiver procedure

As noted above, the FCC did not exempt services or devices not primarily designed for ACS, but instead developed a waiver process to address such products on a case-by-case basis. The FCC will look at two factors: (1) whether the service or device is designed to be used for ACS by the general public, and (2) whether the service or device is marketed for the ACS feature or functionality. The FCC's existing good cause and public interest standards also apply. The Consumer and Governmental Affairs Bureau will consider all Section 716 waiver requests. There is no automatic shot clock, but the FCC desires a 180 day resolution period, subject to public notice and a minimum 30-day comment period. A covered entity is not required to comply with its ACS accessibility obligations while the waiver petition is pending.

Recordkeeping

The ACS Order establishes new recordkeeping requirements that apply to service providers and device manufacturers subject to Section 255 (i.e., telecommunications and interconnected VoIP service providers), Section 716, and/or mobile devices and services subject to Section 718. Covered entities must maintain sufficient records to support any defense that accessibility was not “achievable,” specifically addressing the four “achievable” factors discussed above. Records must be maintained for 2 years after the entity ceases to offer or distribute the service or device. Covered entities must submit an annual certification to the FCC that the required records are being maintained in accordance with Section 717 and the FCC's rules.

Enforcement

Prior to invoking the FCC’s informal complaint process, consumers are required to file a “Request for Dispute Resolution” with the Consumer and Governmental Affairs Bureau, which triggers arbitration-style settlement proceedings between the consumer and covered entity, with the assistance of the Bureau. If settlement is not reached within 30 days, the consumer may file an informal complaint with the Enforcement Bureau, or the parties may agree to extend the negotiations for another 30 days, and additional 30-day increments thereafter.

Consumers may alternatively file formal complaints with the FCC, which would not require a Request for Dispute Resolution, as the FCC’s rules governing formal complaints require parties to indicate in the complaint discussions or attempts to discuss, in good faith, the possibility of settlement prior to filing.

Compliance

The ACS rules become effective 30 days after publication in the Federal Register. Compliance with the Section 717 recordkeeping requirements (including annual certification) begins after OMB approval, but no earlier than one year after the effective date of the rules. Compliance with Section 716’s accessibility requirements is phased in with full compliance required by Oct. 2013; however, the FCC expects covered manufacturers and providers to immediately begin contemplating how to incorporate accessibility into their product cycles. Significantly, Section 716 does not require manufacturers to recall or retrofit equipment already in inventory or in the field.