In late 2011, the Federal Communications Commission (“FCC” or “Commission”) released a Report and Order implementing provisions of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) to ensure that people with disabilities have access to advanced communications services (“ACS”). Providers of ACS and manufacturers of equipment used for ACS will be required to make their products and services accessible to people with disabilities, unless it is not “achievable” to do so. The CVAA and this Report and Order complement longstanding rules that require equipment manufacturers and providers of telecommunications services (and more recently interconnected VoIP service providers) to make their products and services accessible to people with disabilities. This Advisory provides key information to assist telecommunications and ACS providers and manufacturers of covered equipment in complying with the rules.

Under the FCC rules, all covered entities are required to file a compliance report with the FCC by April 1, 2013.

Who has to comply?

Section 255 of the Communications Act already applies accessibility requirements to:

providers of telecommunications services
manufacturers of telecommunications equipment and CPE
providers of voicemail and interactive menus (and related equipment) (even though those are information services)
providers of interconnected VoIP services (since 2007)
manufacturers of specially designed equipment used to provide interconnected VoIP services

Section 716 of the CVAA extends new accessibility requirements to:

Providers of non-interconnected VoIP service (e.g., one-way VoIP)
Providers of electronic messaging service (text, IM)
Providers of interoperable video conferencing service

Electronic messaging service is a service that provides real-time or near real-time non-voice messages in text form between individuals over communications networks. It includes text messaging, instant messaging and email, but it does not include blog posts, online publishing or messages posted on social networking websites, or non-human-human machine communications.

The FCC has not yet defined the key term “interoperable” for determining the scope of the Act’s obligations for video conferencing providers. When fully defined, interoperable video conferencing service will include equipment such as personal computers, tablets and smartphones that are used for two-way video conferencing (e.g., Facetime) even though such devices are not designed specifically or even primarily for interoperable video conferencing. It does not include real-time video broadcasting or features of such services that provide interactive text messaging, chatting, voting or hand-raising during a broadcast event.

Providers are all entities that make ACS available in whatever manner, including aggregators and resellers. This also includes those that make web-based email services available to consumers (e.g., Gmail), those that provide non-interconnected VoIP services through applications downloaded to devices and those that provide texting services over a cellular network.

What has to be done?

There are three separate components to what has to be done to comply: (1) substantive accessibility and useability of services and products requirements, (2) record-keeping requirements and (3) an annual certification filing requirement.

(1) The Substantive Accessibility and Useability Requirements

The goal of these statutes is to ensure that individuals with disabilities are able to access and use the services and products in the same way that individuals without disabilities are able to do so. Therefore, these substantive requirements are the heart of the statutes.

To that end, both statutes require that the services be accessible and useable to individuals with disabilities. Section 255 requires that they be accessible and useable if it is “readily achievable” to make them so. Section 716, however, imposes a tougher standard of requiring them to be useable and accessible if it is “achievable.”

In order to be accessible, features must be incorporated into the products and services in order to allow individuals with disabilities to access those products. This can be done either through incorporation of features in the device/service itself or by making the service/product compatible with third-party solutions/software that are affordable and accessible to the disabled community.

In order to be useable, individuals with a disability must be able to use the same functions, features and documentation for the product as a non-disabled individual. This means that individuals with disabilities can use all of the same functions, features and supporting documentation for the product, including but not limited to product information and technical support.

The statutes cover a wide range (and largely unbounded) set of disabilities. An individual with a disability is anyone who has a physical or mental impairment that substantially limits one or more major life activity. This will include a wide range of disabilities, such as any disability from blindness and deafness to a paraplegic to someone who has a cognitive disability to someone who has a physical impairment that prevents them being to exert pressure when they press buttons.

As already stated, there is a limitation on the requirement to make these products and services useable and accessible: if it is not readily achievable or achievable (depending on the applicable section), then it is not necessary to make them useable and accessible.

The Section 255 readily achievable standard (which has existed for several years) means that useability and accessibility can “be easily accomplished and [are] able to be carried out without much difficulty or expense.” The achievable standard for ACS, by contrast, sets a higher bar which has not been defined precisely.

In applying either standard, the FCC applies a set of factors in a fact-based case-by-case inquiry of achievability. There are some differences between the factors applied to the two different standards but the factors include the nature and cost of the action needed, the financial resources of the company, the economic and technical impact of making the product/service accessible and useable, the experience of the company in ACS, and whether the company offers other products and services that are accessible.

(2) Record-Keeping Requirements

All entities subject to these two statutes must keep records documenting how their products and services are accessible and useable by individuals with disabilities. There are no specific records required to meet this requirement and a company’s records will vary based on which route it takes to compliance. If, the product or service is not accessible and useable because it was not achievable or readily achievable, then there must be documentation addressing all the factors that the FCC uses to assess whether the standard is met. Regardless of the route to compliance that a company takes, it will need documents showing its efforts to consult with individuals with disabilities early in the development process.

(3) Annual Certification

Covered entities are required to file an annual certification no later than April 1 beginning this year. This certification must state that the entity is in compliance with the record-keeping requirements and it must identify a contact that can address complaints that are made. (The certification need not document how the entity is in compliance, however.) In addition and importantly, an officer certification must accompany the certification. This is a key requirement because it opens up the door to officer liability if the person has incorrectly certified that the company is complying with the requirements.

The FCC is in the process of establishing an online registration form and process for the certification. It appears that the certification form will be a series of statements that are certified to be true based on checking a box. This system should be available well in advance of the April 1 deadline.

When must it be done?

Section 255 requirements for telecommunications service providers and equipment manufacturers have been effective since January 28, 2000 and since October 5, 2007 for interconnected VoIP services and equipment. Sections 716 and 717 of the CVAA involve more recent and upcoming deadlines:

As of January 30, 2012, covered entities were required to consider accessibility requirements during the design or re-design process for new equipment and services
As of October 8, 2013, all products and services offered in interstate commerce must be compliant (including products and services previously offered) and consumers can begin filing complaints with the FCC

There are also recordkeeping and reporting requirements that apply to entitles covered by both Sections 255 and 716.

As of January 30, 2013, all covered entities must keep records to demonstrate compliance
On or before April 1, 2013, each covered entity must file its first annual certification that records are being maintained in accordance with the applicable statute and rules. The April 1, 2013 certification will cover the period from January 1 to April 1, 2013.

Are Waivers or Exceptions available?

There is one primary and important exception to the applicability of the disabled access rules for equipment manufacturers and providers of ACS – the temporary small business exception. The exception applies to Section 716 ACS providers and manufacturers that, along with their affiliates, meet the criteria for a small business concern in their primary industry under the Small Business Act’s rules and size standards (by annual receipts or number of employees). The exception expires October 8, 2013 unless there is a rule change pursuant to the Further Notice. The small business exemption does not apply to equipment manufacturers and providers of telecommunications and interconnected VoIP services governed by Section 255, however. These entities must certify compliance by April 1, 2013 regardless of their size.

In order to determine if your company is covered by the small business exception, you must use the North American Industry Classification System (NAICS). The most likely categories of businesses that potentially face the ACS accessibility requirements are:

Software publishers ($25 million or less in annual receipts)
Computer systems design and related services ($25 million or less in annual receipts)
Data processing, hosting and related services ($25 million or less in annual receipts)

In addition, the FCC can waive the accessibility requirements for any feature or function of a multipurpose device or service that is designed primarily for purposes other than accessing ACS. On October 15, 2012, the FCC released an order that granted class waivers until October 8, 2015 for:

IPTVs and IP-DVPs, which are designed primarily to view video content, but also access ACS
Cable set top boxes
Gaming: (1) game consoles, (2) game distribution and online game play services, and (3) game software

In considering waivers and whether a device or service is primarily for ACS, the FCC analyzes the marketing of the product – i.e., is ACS part of the pitch? For example, video games will often advertise the ability to message teammates or opponents during or after the game and so that is becoming a larger part of the marketing of the game. Finally, all products and services covered by a class waiver will ordinarily be subject to the waiver for the duration of the life of those particular products and services, so the waiver extends to particular models of equipment for as long as the covered models are sold without significant upgrades.

What can happen if you do not comply?

There is no private right of action in court to enforce the accessibility requirements. The CVAA establishes a process for informal complaints to enforce the requirements, and also permits complaints pursuant to the FCC’s established formal complaint procedures.

Initially, FCC enforcement is likely to focus on compliance with the certification requirement. The FCC likely will propose fines for entities that fail to submit certifications by April 1, 2013 or that fail to submit proper certifications (as it did in CPNI enforcement, for example).

Subsequent FCC enforcement activity will be influenced by the complaint process. Before filing an informal complaint, the complaining party (which can be an individual with or without a disability or a consumer group) must file a Request for Dispute Assistance with the FCC containing specified information. The FCC will forward the Request to the applicable manufacturer or service provider and begin a 30 day settlement process with the consumer. After 30 days, the consumer can file an informal complaint or the parties can agree to extend the settlement period in additional 30 day increments.

If an informal complaint is filed, the defendant must respond within 20 days and the complainant may then reply within 10 days. After the consumer makes prima facie case, burden of proof is on the company to produce documents demonstrating due diligence in exploring accessibility and achievability in design, development, testing and deployment stages for the product or service.

The FCC has 180 days from the date of the complaint to resolve the matter. If a violation is found, the FCC can direct the covered entity to undertake broad remedial measures with implications far beyond the individual complainant’s particular situation.

The FCC can direct the company to bring the service or the next generation of the device into compliance within a reasonable time
The FCC can impose forfeitures of up to $100,000 per violation or each day of a continuing violation up to a maximum of $1 million

Finally, the Commission did not establish a statute of limitations on informal complaints, but complaints against products or services no longer offered to the public are less likely to result in beneficial outcomes for complainants.

What are some practical tips that can help your company navigate these requirements successfully?

The best record-keeping rule to keep in mind is to put it all in writing. For example, the ability to show that you meaningfully considered how to make your product or service useable and accessible early in the development process is much more likely to be persuasive to the FCC if it is documented through appointments with representative disability groups and meeting notes from those consultations. It will also be more persuasive if the consideration of methods for making a product/service accessible and useable is in writing, for example as a concrete deliverable, rather than a simple verbal assurance after the fact to the FCC that it was discussed.

As already referenced, consultation and consideration of the accessibility and useability requirements should be early in the development process. The FCC is unlikely to be convinced that you have met the achievability standard if these requirements were not considered until the product was close to completion.

In addition, once you determine that you are not going to be able to make your product or service useable and accessible, then you should consider whether to apply for a waiver and you should do so as early as possible. The waiver process is not a quick one and so the earlier it is started, the better.

There is no magic list of groups representing the disabled community that must be consulted in order to satisfy the consultation requirement. While your consultation of groups representing the disabled community does not need to encompass every group that represents one portion of the disabled community, it should include consultation with groups that represent a range of disabilities. It should include, for example, national groups that represent the blind community, the deaf community, the cognitively disabled community, and individuals with other physical disabilities.

Please be advised that attorneys in Kelley Drye & Warren’s Communications practice group are experienced in addressing Federal Communications Commission technical and regulatory compliance; certification and reporting obligations; and confidentiality and enforcement matters. For more information regarding this client advisory, please contact your usual Kelley Drye attorney or any member of the Communications practice group.

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