Stern Warning for Video Game Industry to Incorporate Disabilities Access Capabilities in Future Generations

The Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA") establishes new obligations for service providers and equipment manufacturers to ensure that people with disabilities have access to modern communications technologies, including VoIP, texting, instant messaging and social networking communications.  Federal Communications Commission ("FCC" or "Commission") rules require providers of advanced communications services ("ACS") and manufacturers of equipment used for ACS to make their products and services accessible to persons with disabilities, unless it is not "achievable" to do so.  For a complete description of the FCC requirements implementing the CVAA, see our Kelley Drye Client Advisory on the topic.  The majority of the FCC's requirements take effect by October 8, 2013.

The Commission's rules also permitted the agency to grant waivers of the CVAA requirements for classes of multipurpose equipment or services that have features or functions that are capable of accessing ACS but are nonetheless designed primarily for purposes other than using ACS.  In an order released on October 15, 2012, the FCC granted  a two year waiver of the compliance deadline for three classes of services and equipment.  Specifically, as discussed below, the FCC granted class waivers to IP-enabled TVs, cable set-top boxes and video game equipment and software.  Under the order any covered equipment or services introduced to the market on or before October 8, 2015 are exempt from the CVAA requirements for the duration that those products or services are sold.  Thus, covered equipment or services could be sold in the market for much longer than the two year waiver granted in the order.  The Order warns entities to plan early for compliance after the expiration of the waiver, and reserves explicit warnings to the video game industry, where ACS elements are the most prevalent.

Scope of the Waivers

IP-TVs.  The Order grants a two year waiver of the CVAA requirements to (1) Internet protocol-enabled television sets ("IP-TVs") and (2) Internet protocol-enabled digital video players ("IP-DVPs").  Covered IP-TVs are defined as those televisions designed primarily to receive and display video content, principally full-length, professional quality video programming.  Similarly, IP-DVPs are digital video players designed primarily for the playback and rendering of video content, principally full-length, professional-quality video programming.

The Commission found that ACS features and functions were "just beginning to make their way into these devices."  The primary purpose of these devices are the display or playback of video content, including video-on-demand content.  ACS is not designed or marketed as a co-primary feature of these devices.

Cable Set-Top Boxes.  The Order grants a two year waiver of the CVAA requirements to set-top boxes leased by cable operators to their customers.  The covered equipment is defined as a standalone device that is primarily designed to convert the video signals delivered by cable systems to consumers' homes and to transmit the converted signal to television sets or other display devices for viewing.  Importantly, the waiver does not apply to third-party set-top boxes, nor to set-top boxes purchased by consumers rather than leased from cable operators.

Similar to IP-TVs, the Commission concluded that although consumers may be able to use ACS features to a limited extent on some set-top boxes, the primary purpose of the devices is to receive and deliver video programming.

Video Game Consoles and Software.  The video game industry sought a waiver for three classes of equipment and services:  (1) for game consoles, both home and handheld, and their associated peripherals and integrated online networks (i.e., XBox Live); (2) for game distribution and online game play services that distribute game software or enable game play across a network; and (3) for game software used for game play.  The Order grants a waiver for each of these classes for two years.  It declared this waiver a "close call," however, noting that the inclusion of ACS elements is more prevalent in the game industry.

The Order also includes several important clarifications of the scope of the class waivers.  For Class I – game consoles – the FCC granted a waiver to home and handheld game consoles (and, importantly, to both their peripherals and integrated online networks) so long as the console is "designed for multiple entertainment purposes but with a primary purpose of playing games."  For Class II – game distribution and game play networks – the FCC emphasized that the class does not include general communications services or "general online social networking services" that may incidentally offer game play.  Similarly, "generalized distribution platforms originating outside of the game industry" are not covered by the waiver.  Finally, for Class III – game software – virtually all game software appears to qualify.

Two Year Limit and Warning to the Game Industry.  Although each of the petitioners sought a longer waiver, the FCC limited each waiver to two years – waiving compliance with the CVAA requirements until October 8, 2015.  As the Commission emphasized, the waiver applies to products or services introduced to the market before October 8, 2015, even if the products or services continue to be sold after that date.  However, the Commission warned manufacturers and service providers to plan for compliance prior to the expiration of the waiver.  "We expect manufacturers ...," the Commission stated, "to plan for accessibility now so that they are ready to implement accessible features and functions when the class waiver period expires on October 8, 2015."

The Commission reserved special concerns for the game industry.  As stated, the FCC found the waiver for game equipment and software a "close call" due to the more prevalent existence of ACS features in games already.  Indeed, the Commission found a "clear trend towards marketing" the ACS features in gaming equipment and services.  It found an "increasing role" that ACS is beginning to play in gaming systems and services "both in the ability to compete effectively and with respect to engaging in communications that are unrelated to game play."  Further, the Commission predicted that, as "gaming takes on an ever-present role in our society," gaming environments may increasingly take on the attributes of a social network "for which communication is essential."

As a result, the Commission signaled that the game industry would have to consider accessible design during the waiver period "to better enable them to eliminate accessibility barriers" when the class waiver expires.  It also warned that, if the waiver were to be extended for gaming systems, any extension likely would be narrower than the current grant.