Press Releases & Advisories
24 October 2011
Regulatory Advisory: FCC Issues Two Orders on the Twenty-First Century Communications and Video Accessibility Act of 2010
On October 7, 2011, the FCC issued two orders interpreting various provisions of the Twentieth-Century Communications and Video Accessibility Act ("CVAA"). The CVAA expands communications and video access for individuals with disabilities and affects communications providers, video programmers and distributors, and equipment manufacturers. It requires the Commission to implement regulations interpreting the CVAA no later than October 8, 2011. The two orders released address "advanced communications services" ("ACS") and requirements for certain non-interconnected VoIP providers to contribute to the Telecommunications Relay Fund.
Advanced Communications Services Order and Further Notice of Proposed Rulemaking
The CVAA imposes accessibility requirements on manufacturers and service providers of ACS, which are defined as interconnected VoIP, non-interconnected VoIP, electronic messaging service, and video conferencing service. Manufacturers and service providers of ACS must ensure that their products are "accessible to and usable by individuals with disabilities, unless doing so is not achievable."
The ACS Order adopted the statutory definition of ACS and rejected any exclusion of products that have "incidental" ACS capabilities. Instead, manufacturers of products or services that are designed primarily for non-ACS purposes may apply for a waiver under Section 716 of the CVAA.
The four ACS services are defined as follows:
Interconnected VoIP will continue to be defined as it is in Section 9.3 of the Commission's rules. The ACS Order also established that multipurpose devices—those used for both telecommunications and ACS—will be subject to Section 255 only as it applies to the components used for telecommunications. Section 716 will apply to the components used for ACS.
Non-interconnected VoIP will be defined, as set forth in the CVAA, as a service that "(i) enables real-time voice communications that originate from or terminate to the user's location using Internet protocol or any successor protocol; and (ii) requires Internet protocol compatible customer premises equipment" and that "does not include any service that is an interconnected VoIP service." As noted above, those products and services that include incidental non-interconnected VoIP service are not automatically excluded from the statutory definition.
Electronic messaging services will be defined as in the CVAA and include real or near-real time messaging as well as SMS, instant messenger (IM), and email. The ACS Order exempted "messages posted on social networking websites," as indicated in the Senate and House Reports, but did not exempt "two-way interactive services offered through such websites."
Interoperable videoconferencing services will be defined as in the CVAA and will include services and equipment that provide real-time video communication between two or more users. Where real-time video communications are sent only from one user, those communications will not be considered videoconferencing services, even if real-time electronic messaging or VoIP is offered alongside those communications.
The ACS Order also defines "manufacturers and service providers" as those entities that make or produce end-user equipment, including any software updates. These manufacturers and service providers will bear the ultimate responsibility for ensuring that all of the components they provide are accessible. The FCC excluded "software developers that are neither manufacturers of equipment nor providers of advanced communications services," noting that including such entities would significantly expand the Commission's jurisdiction without any clear statement of such an intent by the drafters. Finally, the ACS Order established that manufacturers and service providers are not responsible for the accessibility of user-selected and installed software or cloud services.
The CVAA requires manufacturers and service providers found to be included in the above definitions to include accessibility features if "achievable," and establishes specific factors to be considered in determining achievability. The ACS Order construes this requirement broadly. ACS providers will be responsible for ensuring the accessibility of the underlying components of the service being provided, including software applications.
Accessibility may be achieved by means of a built-in solution or by use of third-party equipment, as long as that equipment is available at a nominal cost, including setup and maintenance. If a manufacturer or service provider chooses to achieve accessibility with a third-party solution, it is responsible for ensuring that that solution is supported for the life of its product or for two years after the discontinuance of the third-party solution. If the third-party solution is discontinued, the manufacturer or service provider must choose an alternative product.
If accessibility is not achievable by a built-in or third-party solution, manufacturers and service providers must ensure that their products and services are compatible with existing peripherals or customer premises equipment, unless even that compatibility is not achievable. The ACS Order confirms that mass market peripherals may be considered third-party accessibility solutions, but seeks further comment on that issue in the FNPRM.
In determining whether certain accessibility features are achievable, the ACS Order allows the FCC to consider the entire product line offered by a manufacturer or service provider. This is a rejection of the product-by-product approach that the FCC adopted in the Section 255 context. The FCC also declined to adopt a list of features that are so easy and inexpensive to incorporate that every manufacturer or service provider must include them. Instead, it encourages manufacturers and service providers to implement such features voluntarily.
Manufacturers of equipment or providers of services designed primarily for purposes other than ACS may seek a waiver, and the Commission will review those waiver requests on a case-by-case basis, considering two factors:
Whether the equipment or service is capable of accessing ACS, and
Whether the equipment or service was designed primarily for purposes other than ACS, considering both whether it was designed to be used for ACS by the general public and whether it is marketed for its ACS features and functions.
The Commission may grant waivers individually or to products and services as a class, and it may grant waivers for a limited period of time. Class waivers, however, will be limited to clearly defined classes and will only be granted when such a waiver would promote predictability and certainty for all stakeholders.
Finally, the Commission confirmed that specialized business and enterprise equipment is exempt from the requirements of the CVAA, including specialized equipment used by public safety.
The ACS Order establishes a number of other requirements:
The FCC adopted general performance objectives, that "covered equipment and services be accessible, compatible and usable." It deferred specific performance objectives until the Access Board adopts final guidelines under the CVAA and the Emergency Access Advisory Committee has provided its recommendations on the migration to IP-based networks.
The FCC declined to establish any technical standards as safe harbors.
The FCC established new recordkeeping and enforcement procedures, as required by the CVAA. Manufacturers and service providers claiming that accessibility is not achievable for their products and services must be prepared to produce records demonstrating that lack of achievability.
The FCC established a temporary exemption for small entities, deferring the question whether a permanent waiver should be established to the FNPRM.
The Commission seeks comment on whether small entities should be permanently exempted from the requirements of the CVAA.
The Commission seeks comment on the challenges facing Internet browsers when used on mobile devices by the blind and visually impaired. The provisions of the CVAA requiring accessibility for Internet browsers on mobile devices must be implemented by October 8, 2013.
The Commission also seeks comment on how to define "interoperability" in "interoperable video conferencing services." It proposes three alternative definitions:
(1) "'interoperable' means able to function inter-platform, inter-network, and inter-provider;
(2) 'interoperable' means having published or otherwise agreed-upon standards that allow for manufacturers or service providers to develop products or services that operate with other equipment or services operating pursuant to the standards; or
(3) 'interoperable' means able to connect users among different video conferencing services, including VRS."
Comments on the FNPRM are due 45 days after publication in the Federal Register, with reply comments due 75 days after publication.
Telecommunications Relay Fund Order
The TRS Fund Order codifies the current practice of requiring interconnected VoIP providers to contribute to the TRS Fund. It extends, for the first time, contribution obligation to non-interconnected VoIP providers if those providers' non-interconnected VoIP services are offered on a stand-alone basis for a fee. Providers of non-interconnected VoIP services that are bundled with other non-VoIP services will be required to contribute to the TRS Fund if the provider (1) also offers the non-interconnected VoIP service on a stand-alone basis for a fee; or (2) also offers the non-VoIP services without the non-interconnected VoIP services at a different, discounted price. Of note, the new contribution requirements for non-interconnected VoIP providers apply only to providers that have interstate end-user revenues.
For more information regarding these two Orders or our telecommunications practice, please contact John Nakahata at (202) 730-1320 or email@example.com, or Brita Strandberg at (202) 730-1346 or firstname.lastname@example.org.
This advisory is not intended to convey legal advice. It is circulated as a convenience and is not intended to reflect or create an attorney-client relationship as to its subject matter.