On October 7, 2011, the Federal Communications Commission (“FCC”) adopted new rules that implement provisions of the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA"). The CVAA was enacted to ensure that people with disabilities have access to the modern and innovative communications technologies of the 21st-century and represents the most significant accessibility legislation since the passage of the Americans with Disabilities Act ("ADA") in 1990.

The FCC’s new rules establish the following:

  • The CVAA requirement for providers of advanced communications services (“ACS”) and manufacturers of equipment used for ACS to make their services and products accessible to people with disabilities applies to non-interconnected VoIP services, electronic messaging services, and interoperable video conferencing services.
  • Entities that make or produce end user equipment, including tablets, laptops, and smartphones, are responsible for the accessibility of the hardware and manufacturer-provided software used for e-mail, SMS text messaging, and other ACS.
  • ACS providers include all entities that offer ACS in or affecting interstate commerce, including resellers and aggregators. Such providers include entities that provide ACS over their own networks, as well as providers of applications or services accessed (i.e., downloaded and run) by users over other service providers’ networks.
  • ACS providers may be exempt from compliance to the extent it is not achievable, as determined by the following four factors: (i) the nature and cost of the steps needed to meet the requirements of Section 716 of the Act and this part with respect to the specific equipment or service in question; (ii) the technical and economic impact 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; (iii) the type of operations of the manufacturer or provider; and (iv) the extent to which the service provider or manufacturer in question offers accessible services or equipment containing varying degrees of functionality and features, and offered at differing price points.
  • Compliance waivers will be granted on a case-by-case basis based on the following two factors for determining the primary purpose for which equipment or a service is designed: (i) whether the product was designed to be used for ACS purposes by the general public; and (ii) whether the equipment or services are marketed for the ACS features and functions.
  • The FCC has the discretion to place time limits on waivers. The waiver will generally be good for the life of the product or service model or version. However, if substantial upgrades are made to the product that may change the nature of the product or service, a new waiver request must be filed.
  • There will be a timeline for consideration of waiver requests. Such requets will be reviewed by the FCC’s Consumer and Governmental Affairs Bureau with the goal of completing action on each waiver request within 180 days of public notice.
  • Equipment that is customized for the unique needs of a particular entity, and that is not offered directly to the public, is exempt from the accessibility requirements of the CVAA. This narrow exemption is limited in scope to customized equipment and services offered to business and other enterprise customers only.
  • There is a temporary exemption for ACS providers and ACS equipment manufacturers that qualify as small business concerns under the Small Business Administration’s rules and small business size standards. The temporary exemption will expire on the earlier of (1) the effective date of small entity exemption rules adopted by the FCC based in the future, or (2) October 8, 2013.
  • Covered providers are subject to new recordkeeping rules, including keeping three categories of records set forth in Section 717(a)(5)(A) of the CVAA.
  • Consumers must file a “Request for Dispute Assistance” with the FCC’s Consumer and Governmental Affairs’ Disability Rights Office as a prerequisite to filing an informal complaint with the FCC’s Enforcement Bureau. We also establish minimum requirements for information that must be contained in an informal complaint. While we also adopt formal complaint procedures, we decline to require complainants to file informal complaints prior to filing formal complaints.

In addition to establishing new rules, the FCC also issued a Further Notice of Proposed Rulemaking in which it sought comment on a number of additional proposed measures with regard to implementing the CVAA. Notable proposals and inquiries include the following:

  • Whether to adopt a permanent exemption for small entities and, if so, whether it should be based on the temporary exemption or some other criteria.
  • Whether to clarify that Internet browsers are software generally subject to the requirements of Section 716, with the exception of the discrete category of Internet browsers built into mobile phones used by individuals who are blind or have a visual impairment, which Congress singled out for particular treatment in Section 718.
  • Alternative proposed definitions of “interoperable” as used in the term “interoperable video conferencing.”
  • Whether to require that video mail service be accessible to individuals with disabilities when provided along with a video conferencing service.
  • Whether performance objectives should include certain testable criteria.
  • Whether certain safe harbor technical standards will allow the various components in the ACS architecture to work together more efficiently, thereby facilitating accessibility.

Comments on the FCC’s Further Notice of Proposed Rulemaking will be due 45 days from the date that the notice is published in the Federal Register, with reply comments due 30 days thereafter.