Implementing the Provisions of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 6, 7, and 14

[CG Docket No. 10-213; WT Docket No. 96-198; CG Docket No. 10-145; FCC 11-151]

Implementing the Provisions of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Commission adopts rules that implement provisions of section 104 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Public Law 111-260, the most significant accessibility legislation since the passage of the Americans with Disabilities Act (ADA) in 1990. A Proposed Rule relating to implementation of section 718 of the Communications Act of 1934, as enacted by the CVAA, is published elsewhere in this issue of the

Federal Register

. This proceeding amends the Commission's rules to ensure that people with disabilities have access to the incredible and innovative communications technologies of the 21st-century. These rules are significant and necessary steps towards ensuring that the 54 million Americans with disabilities are able to fully utilize and benefit from advanced communications services (ACS). People with disabilities often have not shared in the benefits of this rapid technological advancement. The CVAA implements steps in addressing this inequity by advancing the accessibility of ACS in a manner that is consistent with our objectives of promoting investment and innovation. This is consistent with the Commission's commitment to promote rapid deployment of and universal access to broadband services for all Americans.

DATES:

Effective January 30, 2012, except 47 CFR 14.5, 14.20(d), 14.31, 14.32, and 14.34 through 14.52, which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the

Federal Register

announcing the effective date of those sections.

FOR FURTHER INFORMATION CONTACT:

Rosaline Crawford, Consumer and Governmental Affairs Bureau, at (202) 418-2075 or

rosaline.crawford@fcc.gov;

Brian Regan, Wireless Telecommunications Bureau, at (202) 418-2849 or

brian.regan@fcc.gov;

or Janet Sievert, Enforcement Bureau, at (202) 418-1362 or

janet.sievert@fcc.gov.

For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams, Federal Communications Commission, at (202) 418-2918, or via email

Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's

Report and Order,

FCC 11-151, adopted and released on October 7, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, facsimile (202) 488-5563, or via email at

fcc@bcpiweb.com.

The complete text is also available on the Commission's Web site at

http://hraunfoss.fcc.gov/edocs_public/attachment/FCC-11-151A1doc.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to

fcc504@fcc.gov

or call the Consumer and Governmental Affairs Bureau (202) 418-0530 (voice), (202) 418-0432 (TTY).

Final Paperwork Reduction of 1995 Analysis

This document contains new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in document FCC 11-151 as required by the PRA of 1995, Public Law 104-13. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,

see

44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

In this proceeding, we adopt new recordkeeping rules that provide clear guidance to covered entities on the records they must keep to demonstrate compliance with our new rules. We require covered entities to keep the three categories of records set forth in section 717(a)(5)(A) of the CVAA. We also require annual certification by a corporate officer that the company is keeping the required records. We have assessed the effects of these rules and find that any burden on small businesses will be minimal because we have adopted the minimum recordkeeping requirements that allow covered entities to keep records in any format they wish. This approach takes into account the variances in covered entities (

e.g.,

size, experience with the Commission), recordkeeping methods, and products and services covered by the CVAA. Furthermore, this approach provides the greatest flexibility to small businesses and minimizes the impact that the statutorily mandated requirements impose on small businesses. Correspondingly, we considered and rejected the alternative of imposing a specific format or one-size-fits-all system for recordkeeping that could potentially impose greater burdens on small businesses. Moreover, the certification requirement is possibly less burdensome on small businesses than large, as it merely requires certification from an officer that the necessary records were kept over the previous year; this is presumably a less resource intensive certification for smaller entities. Finally, we adopt a requirement that consumers must file a “Request for Dispute Assistance” with the Consumer and Governmental Affairs' Disability Rights Office as a prerequisite to filing an informal complaint with the Enforcement Bureau. This information request is beneficial because it will trigger Commission involvement before a complaint is filed and will benefit both consumers and industry by helping to clarify the accessibility needs of consumers. It will also encourage settlement discussions between the parties in an effort to resolve accessibility issues without the expenditure of time and resources in the informal complaint process. We also note that we have temporarily exempted small entities from the rules we have adopted herein while we consider, in the Accessibility

FNPRM,

whether we should grant a permanent exemption, and what criteria should be associated with such an exemption.

Synopsis

I. Executive Summary

1. In this

Report and Order,

we conclude that the accessibility requirements of section 716 of the Act apply to non-interconnected VoIP services, electronic messaging services,

and interoperable video conferencing services. We implement rules that hold entities that make or produce end user equipment, including tablets, laptops, and smartphones, responsible for the accessibility of the hardware and manufacturer-provided software used for email, SMS text messaging, and other ACS. We also hold these entities responsible for software upgrades made available by such manufacturers for download by users. Additionally, we conclude that, except for third-party accessibility solutions, there is no liability for a manufacturer of end user equipment for the accessibility of software that is independently selected and installed by the user, or that the user chooses to use in the cloud. We provide the flexibility to build-in accessibility or to use third-party solutions, if solutions are available at nominal cost (including set up and maintenance) to the consumer. We require covered entities choosing to use third-party accessibility solutions to support those solutions for the life of the ACS product or service or for a period of up to two years after the third-party solution is discontinued, whichever comes first. If the third-party solution is discontinued, however, another third-party accessibility solution must be made available by the covered entity at nominal cost to the consumer. If accessibility is not achievable either by building it in or by using third-party accessibility solutions, equipment or services must be compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, unless such compatibility is not achievable.

2. We also conclude that providers of advanced communications services include all entities that offer advanced communications services in or affecting interstate commerce, including resellers and aggregators. Such providers include entities that provide advanced communications services 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. Consistent with our approach for manufacturers of equipment, we find that a provider of advanced communications services is responsible for the accessibility of the underlying components of its service, including software applications, to the extent that doing so is achievable. A provider will not be responsible for the accessibility of components that it does not provide, except when the provider relies on a third-party solution to comply with its accessibility obligations.

3. We adopt rules identifying the four statutory factors that will be used to conduct an achievability analysis pursuant to section 716: (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. Pursuant to the fourth achievability factor, we conclude that covered entities do not have to consider what is achievable with respect to every product, if such entity offers consumers with the full range of disabilities products with varied functions, features, and prices. We also conclude that ACS providers have a duty not to install network features, functions, or capabilities that impede accessibility or usability.

4. We adopt rules pursuant to section 716(h)(1) to accommodate requests to waive the requirements of section 716 for ACS and ACS equipment. We conclude that we will grant waivers on a case-by-case basis and adopt two factors for determining the primary purpose for which equipment or a service is designed. We will consider whether the equipment or service is capable of accessing ACS and whether it was designed for multiple purposes but primarily for purposes other than using ACS. In determining whether the equipment or service is designed primarily for purposes other than using ACS, the Commission shall consider the following factors: (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.

5. Our new accessibility rules further provide that we may also waive, on our own motion or in response to a petition, the requirements of section 716 for

classes

of services and equipment that meet the above statutory requirements and waiver criteria. To be deemed a class, members of a class must have the same kind of equipment or service and same kind of ACS features and functions.

6. We further conclude that the Commission 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. Parties filing class waiver requests must explain in detail the expected lifecycle for the equipment or services that are part of the class. All products and services covered by a class waiver that are introduced into the market while the waiver is in effect will ordinarily be subject to the waiver for the duration of the life of those particular products and services. For products and services already under development at the time when a class waiver expires, the achievability analysis conducted may take into consideration the developmental stage of the product and the effort and expense needed to achieve accessibility at that point in the developmental stage. To the extent a class waiver petitioner seeks a waiver for multiple generations of similar equipment and services, we will examine the justification for the waiver extending through the lifecycle of each discrete generation.

7. We adopt a timeline for consideration of waiver requests similar to the Commission's timeline for consideration of applications for transfers or assignments of licenses or authorizations relating to complex mergers. We delegate to the Consumer and Governmental Affairs Bureau the authority to act upon all waiver requests, and urge the Bureau to act promptly with the goal of completing action on each waiver request within 180 days of public notice. In addition, we require that all public notices of waiver requests provide a minimum 30-day comment period. Finally, we note that these public notices will be posted and highlighted on a Web page designated for disability-related information in the Disability Rights Office section of the Commission's Web site.

8. The Commission has already received requests for class waivers for gaming equipment, services, and software, and TVs and Digital Video Players (“DVPs”) enabled for use with the Internet. While we conclude that the record is insufficient to grant waivers for gaming and IP-enabled TVs and DVPs, parties may re-file requests consistent with the new waiver rules.

9. We construe section 716(i) of the Act to provide a narrow exemption from

the accessibility requirements of section 716. Specifically, we conclude that equipment that is customized for the unique needs of a particular entity, and that is not offered directly to the public, is exempt from section 716. We conclude that this narrow exemption should be limited in scope to customized equipment and services offered to business and other enterprise customers only. We also conclude that equipment manufactured for the unique needs of public safety entities falls within this narrow exemption.

10. We find that the record does not contain sufficient support to adopt a permanent exemption for small entities. Nonetheless, we believe that relief is necessary for small entities that may lack the legal, technical, or financial ability to conduct an achievability analysis or comply with the recordkeeping and certification requirements under these rules. Therefore, we adopt 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 pursuant to the

Further Notice of Proposed Rulemaking released simultaneously with this order (“Accessibility FNPRM”),

or (2) October 8, 2013.

11. We adopt as general performance objectives the requirements that covered equipment and services be accessible, compatible, and usable. We defer consideration of more specific performance objectives to ensure the accessibility, usability, and compatibility of ACS and ACS equipment until the Access Board adopts Final Guidelines and the Emergency Access Advisory Committee (EAAC) provides recommendations to the Commission relating to the migration to IP-enabled networks. Additionally, consistent with the views of the majority of the commenters, we refrain from adopting any technical standards as safe harbors for covered entities. To facilitate the ability of covered entities to implement accessibility features early in product development cycles, we gradually phase in compliance requirements for accessibility, with full compliance required by October 8, 2013.

12. We also adopt new recordkeeping rules that provide clear guidance to covered entities on the records they must keep to demonstrate compliance with our new rules. We require covered entities to keep the three categories of records set forth in section 717(a)(5)(A). We remind covered entities that do not make their products or services accessible and claim as a defense that it is not achievable for them to do so, that they bear the burden of proof on this defense.

13. In an effort to encourage settlements, we adopt a requirement that consumers must file a “Request for Dispute Assistance” with the Consumer and Governmental Affairs' Disability Rights Office as a prerequisite to filing an informal complaint with the 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.

II. Report and Order

1. Advanced Communications Services

a. General

14. Section 3(1) of the Act defines “advanced communications services” to mean (A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service. We will adopt into our rules the statutory definition of “advanced communications services.” We thus agree with commenters that urge us to include all offerings of services that meet the statutory definitions as being within the scope of our rules. In doing so, we maintain the balance that Congress achieved in the CVAA between promoting accessibility through a broadly defined scope of covered services and equipment and ensuring industry flexibility and innovation through other provisions of the Act, including limitations on liability, waivers, and exemptions.

15. Some commenters asserted that the Commission should exclude from the definition of advanced communications services such services that are “incidental” components of a product. We reject this view. Were the Commission to adopt that approach, it would be rendering superfluous section 716's waiver provision, which allows the Commission to waive its requirements for services or equipment “designed primarily for purposes other than using advanced communications service.” Several parties also ask the Commission to read into the statutory definition of advanced communications services the phrase “offered to the public.” They argue that we should exclude from our definition advanced communications services those services that are provided on an “incidental” basis because such services are not affirmatively “offered” by the provider or equipment. There is nothing in the statute or the legislative history that supports this narrow reading. Section 3(1) of the Act clearly states that the enumerated services are themselves “advanced communications services” when provided, and does not limit the definition to the particular marketing focus of the manufacturers or service providers.

b. Interconnected VoIP Service

16. Section 3(25) of the Act, as added by the CVAA, provides that the term “interconnected VoIP service” has the meaning given in § 9.3 of the Commission's rules, as such section may be amended from time to time. Section 9.3, in turn, defines interconnected VoIP as a service that (1) enables real-time, two-way voice communications; (2) requires a broadband connection from the user's location; (3) requires Internet protocol-compatible CPE; and (4) permits users generally to receive calls that originate on the public switched telephone network (“PSTN”) and to terminate calls to the PSTN. As urged by commenters, we adopt the definition of “interconnected VoIP service” as having the same meaning as in § 9.3 of the Commission's rules, as such section may be amended from time to time. Given that this definition has broad reaching applicability beyond this proceeding, we find that any changes to this definition should be undertaken in a proceeding that considers the broader context and effects of any such change.

17. We confirm that section 716(f) means that section 255, and not section 716, applies to telecommunications and interconnected VoIP services and equipment offered as of October 7, 2010. Our proposed rule read, in part, that “the requirements of this part shall not apply to any equipment or services * * * that were subject to the requirements of section 255 of the Act on October 7, 2010.” We decline to amend our proposed rule by substituting the word “were” with the word “are,” as urged by NCTA. The statute makes clear that any equipment or service that was subject to section 255 on October 7, 2010, should continue to be subject to section 255, regardless of whether that equipment or service was offered before or after October 7, 2010. With respect to a new service (and equipment used for that service) that was not in existence on October 7, 2010, we believe we have the authority to classify the service as a service subject to either section 255 or section 716 (or

neither). In addition, Congress anticipated that the definition of interconnected VoIP service may change over time. In that event, it is possible, for example, that certain non-interconnected VoIP services that are currently subject to section 716 may meet a future definition of interconnected VoIP services and yet remain subject to section 716.

18. With respect to multipurpose devices, including devices used for both telecommunications and advanced communications services, we agree with the vast majority of commenters that argued that section 255 applies to telecommunications services and to services classified as interconnected VoIP as of October 7, 2010, as well as to equipment components used for those services, and section 716 applies to non-interconnected VoIP, electronic messaging, and interoperable video conferencing services, as well as equipment components used for those services. We reject the suggestion of some commenters that such multipurpose devices should be governed exclusively by section 255. Nothing in the statute or legislative history indicates that Congress sought to exclude from the requirements of section 716 a device used for advanced communications merely because it also has telecommunications or interconnected VoIP capability. Rather, both the House Report and the Senate Report state that smartphones represent a technology that Americans rely on daily and, at the same time, a technological advance that is often still not accessible to individuals with disabilities. If multipurpose devices such as smartphones were subject exclusively to section 255, then the advanced communications services components of smartphones, which are not subject to section 255, would not be covered by section 716. That is, there would be no requirement to make the advanced communications services components of multipurpose devices such as smartphones accessible to people with disabilities. Such an approach would, therefore, undermine the very purpose of the CVAA.

19. Due to the large number of multipurpose devices, including smartphones, tablets, laptops and desktops, that are on the market, if section 716(f) were interpreted to mean that section 716 applies only to equipment that is used exclusively for advanced communications services, and that section 255 applies only to equipment that is used exclusively for telecommunications and interconnected VoIP services, almost no devices would be covered by section 716 and only stand-alone telephones and VoIP phones would be covered by section 255. That reading would undercut Congress's clear aim in enacting the CVAA. Such a result is also contrary to how section 255 is currently applied to multipurpose equipment and services. Under Commission rules implementing section 255, “multipurpose equipment * * * is covered by section 255 only to the extent that it provides a telecommunications function” and not “to all functions * * * whenever the equipment is capable of any telecommunications function.” Similarly, “[a]n entity that provides both telecommunications and non-telecommunications services * * * is subject to section 255 only to the extent that it provides a telecommunications service.” We also disagree with commenters that suggest that such multipurpose devices should be governed exclusively by section 716. Such an interpretation would render section 716(f) meaningless.

20. We recognize that the application of section 255 and section 716 to such multipurpose devices means that manufacturers and service providers may be subject to two distinct requirements, but as discussed above, we believe any other interpretation would be inconsistent with Congressional intent. As a practical matter, we note that the nature of the service or equipment that is the subject of a complaint—depending on the type of communications involved—will determine whether section 255 or section 716, or both, apply in a given context.

c. Non-interconnected VoIP Service

21. Section 3(36) of the Act, as added by the CVAA, states that the term “non-interconnected VoIP service” means 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 “does not include any service that is an interconnected VoIP service.” The IT and Telecom RERCs urge us to modify the statutory definition of non-interconnected VoIP to read “any VoIP that is not interconnected VoIP.” They are concerned that the language in section 3(36) which reads “does not include any service that is an interconnected VoIP service” could be interpreted to mean that if a service “includes both interconnected and non-interconnected VoIP, then all the non-interconnected [VoIP] is exempt because it is bundled with an interconnected VoIP service.” In response to these concerns, we clarify that a non-interconnected VoIP service is not exempt simply because it is bundled or provided along with an interconnected VoIP service. Accordingly, we agree with other commenters that it is unnecessary and not appropriate to change the statutory definition and hereby adopt the definition of “non-interconnected VoIP service” set forth in the Act.

d. Electronic Messaging Service

22. Section 3(19) of the Act, as added by the CVAA, states that the term “electronic messaging service” “means a service that provides real-time or near real-time non-voice messages in text form between individuals over communications networks.” We adopt, as proposed, the definition of “electronic messaging service” contained in the Act. We agree with most commenters and find it consistent with the Senate and House Reports that electronic messaging service includes “more traditional, two-way interactive services such as text messaging, instant messaging, and electronic mail, rather than * * * blog posts, online publishing, or messages posted on social networking Web sites.” While some common features of social networking sites thus fall outside the definition of “electronic messaging service,” other features of these sites are covered by sections 716 and 717. The Wireless RERC asserts that, to the extent a social networking system provides electronic messaging services as defined in the Act, those services should be subject to sections 716 and 717. While the statute does not specifically reference the use of electronic messaging services as part of a social networking site, the comments referenced above in the Senate and House Reports suggest it was well aware that such aspects of social networking sites would fall under the Act. The reports specifically exclude “messages posted on social networking Web sites,” but do not exclude the two-way interactive services offered through such Web sites. We therefore conclude that to the extent such services are provided through a social networking or related site, they are subject to sections 716 and 717 of the Act.

23. We also find, as proposed in the

Accessibility NPRM,

that the phrase “between individuals” precludes the application of the accessibility requirements to communications in which no human is involved, such as automatic software updates or other device-to-device or machine-to-machine communications. Such exchanges between devices are also excluded from the definition of electronic messaging

service when they are not “messages in text form.” The definitional requirement that electronic messaging service be “between individuals” also excludes human-to-machine or machine-to-human communications.

24. We conclude that section 2(a) of the CVAA exempts entities, such as Internet service providers, from liability for violations of section 716 when they are acting only to transmit covered services or to provide an information location tool. Thus, service providers that merely provide access to an electronic messaging service, such as a broadband platform that provides an end user with access to a web-based email service, are excluded from the accessibility requirements of section 716.

e. Interoperable Video Conferencing Service

25. An “interoperable video conferencing service” is one of the enumerated “advanced communications services” in the CVAA. Such a service is defined by the CVAA as one “that provides real-time video communications, including audio, to enable users to share information of the user's choosing.” Many commenters argue that that the word “interoperable” cannot be read out of the statute, and we agree. Congress expressly included the term “interoperable,” and therefore the Commission must determine its meaning in the context of the statute. We find, however, that the record is insufficient to determine how exactly to define “interoperable,” and thus we seek further comment on this issue in the

Accessibility FNPRM.

26. We also find that the inclusion of the word “interoperable” does not suggest that Congress sought to

require

interoperability, as some commenters have suggested. There simply is no language in the CVAA to support commenters' views that interoperability is required or should be required, or that that we may require video conferencing services to be interoperable because “interoperability” is a subset of “accessibility,” “usability,” and “compatibility” as required by section 716.

27. We reject CTIA's argument that personal computers, tablets, and smartphones should not be considered equipment used for interoperable video conferencing service, because these devices are not primarily designed for two-way video conferencing, and accessibility should be required only for equipment designed primarily or specifically for interoperable video conferencing service. Consumers get their advanced communications services primarily through multipurpose devices, including smartphones, tablets, laptops and desktops. If section 716 applies only to equipment that is used exclusively for advanced communications services, almost no devices would be covered by section 716, and therefore Congress's aims in enacting the statute would be undermined.

28. With respect to webinars and webcasts, we find that services and equipment that provide real-time video communications, including audio,

between two or more users,

are “video conferencing services” and equipment, even if they can also be used for video broadcasting purposes (

only from one user

). We disagree, however, with the IT and Telecom RERCs that providing interactive text messaging, chatting, voting, or hand-raising by or between two or more users, along with real-time video communications, including audio,

only from one user,

constitutes a “video conferencing service.” In this example of a system that provides multiple modes of communication simultaneously, providing text messaging between two or more users is an electronic messaging service. Similarly, telecommunications or VoIP services may be provided as part of a webinar or webcast. The provision of electronic messaging, VoIP, or other services, alongside real-time video communications, including audio,

only from one user,

does not convert the latter into a “video conferencing service.”

29. Finally, we agree with commenters that non-real-time or near-real-time features or functions of a video conferencing service, such as video mail, do not meet the definition of “real-time video communications.” We defer consideration to the

Accessibility FNPRM

as to whether we should exercise our ancillary jurisdiction to require that a video mail service be accessible to individuals with disabilities when provided along with a video conferencing service. We also do not decide at this time whether our ancillary jurisdiction extends to require other features or functions provided along with a video conferencing service, such as recording and playing back video communications on demand, to be accessible.

2. Manufacturers of Equipment Used for Advanced Communications Services

30. Section 716(a)(1) states the following:

A manufacturer of equipment used for advanced communications services,

including end user equipment, network equipment, and software,

shall ensure that the equipment and software that such manufacturer offers for sale or otherwise distributes in interstate commerce shall be accessible to and usable by individuals with disabilities, unless the requirements of this subsection are not achievable.

31. In the

Accessibility NPRM

the Commission proposed to find that developers of software that is used for advanced communications services and that is downloaded or installed by the user rather than by a manufacturer are covered by section 716(a). The IT and Telecom RERCs support that proposal on the grounds that coverage should not turn on how a manufacturer distributes ACS software (pre-installed on a device or installed by the user). Microsoft and the VON Coalition, on the other hand, argue that section 716(a) must be read as applying only to manufacturers of equipment, that “software” is not “equipment,” and that our proposal would impermissibly extend the Commission's authority beyond the limits set by Congress in the CVAA.

32. We find that, while the language of section 716(a)(1) is ambiguous, the better interpretation of section 716(a)(1) is that it does not impose independent regulatory obligations on providers of software that the end user acquires separately from equipment used for advanced communications services.

33. Section 716(a)(1) can be read in at least two ways. Under one reading, the italicized phrase “including end user equipment, network equipment, and software” defines the full range of equipment manufacturers covered by the Act. Under this construction, manufacturers of end user equipment used for ACS, manufacturers of network equipment used for ACS, and manufacturers of software used for ACS, would all independently be subject to the accessibility obligations of section 716(a)(1), and to the enforcement regime of section 717. “Equipment,” as used in the phrase “a manufacturer of equipment used for advanced communications services” would thus refer both to physical machines or devices and to software that is acquired by the user separately from any machine or device, and software would be understood to be a type of equipment. This first reading is the interpretation on which we sought comment in the

Accessibility NPRM.

34. Under a second possible reading, the phrase “manufacturer of equipment” would be given its common meaning as referring to makers of physical machines or devices. If such equipment is used for advanced communications services, then the equipment manufacturer is responsible for making it accessible. Under this

reading, the phrase “including end user equipment, network equipment, and software” makes clear that both end user equipment and network equipment, as well as the software included by the manufacturer in such equipment, must be consistent with the CVAA's accessibility mandate. We have modified the definitions of “end user equipment” and “network equipment” that are proposed in the

Accessibility NPRM

to make clear that such equipment may include both hardware and software components. Thus, to the extent that equipment used for advanced communications services include software components—for example, operating systems or email clients—the manufacturer of the equipment is responsible for making sure that both “the equipment

and

software that such manufacturer offers for sale or otherwise distributes in interstate commerce” is accessible.

35. The text of the CVAA does not compel either of these inconsistent readings. The first, more expansive, reading accords more easily with the use of commas surrounding and within the phrase “, including end user equipment, network equipment, and software,” but it requires giving the term “equipment” a meaning that is far broader than its ordinary usage. In addition, if “equipment” means “software” as well as hardware, then there was no need for Congress to say in the same sentence that “the equipment

and software

” that a manufacturer offers must be made accessible. The second, narrower, reading gives a more natural meaning to the word “equipment” and explains why it was necessary for Congress to say that the manufacturer of equipment used for ACS must make both “equipment and software” accessible. The second reading is thus more consistent with the interpretive canon that all words in a statute should if possible be given meaning and not deemed to be surplusage (as “software” would be in this phrase under the first reading).

36. Looking to other provisions of the CVAA, the language of section 716(j) is more consistent with the second, narrower understanding of section 716(a)(1). Section 716(j) establishes a rule of construction to govern our implementation of the Act, stating that section 716 shall not be construed to require a manufacturer of equipment used for ACS or a provider of ACS “to make every feature and function of every

device or service

accessible for every disability.” The word “device” refers to a physical object and cannot reasonably be construed to also refer to separately-acquired software. If, as in the broader interpretation of section 716(a)(1), “manufacturer of equipment” includes manufacturers of separately acquired software, then Congress created a rule of construction for section 716 as a whole that applies to only some of the equipment that is subject to section 716(a). The narrower interpretation of section 716(a)(1) produces a more logical result, in that section 716(j), as it applies to manufacturers of equipment, has the same scope as section 716(a).

37. Examining the legislative history of the CVAA, we find no indication in either the Senate Report or the House Report that Congress intended to instruct the Commission to regulate directly software developers that are neither manufacturers of equipment nor providers of advanced communications services—a class of businesses that the Commission historically has not regulated. There is, on the other hand, evidence that Congress had makers of physical objects in mind when it made “manufacturers of equipment” responsible for accessibility. For example, the Senate Report states that the Act requires manufacturers of equipment used for ACS and providers of ACS to “make any such equipment, which they design, develop,

and fabricate,

accessible to individuals with disabilities, if doing so is achievable.” The Senate Report further says that sections 716(a) and 716(b) “require that manufacturers and service providers, respectively, make their devices and services accessible to people with disabilities.” Likewise, the House Report states that sections 716(a) and 716(b) “give manufacturers and service providers a choice regarding how accessibility will be incorporated into a device or service.” Software is not fabricated, nor are software programs or applications referred to as devices. Particularly in light of this legislative history, we are doubtful that Congress would have significantly expanded the Commission's traditional jurisdiction to reach software developers, without any clear statement of such intent.

38. We disagree with commenters that suggest that the Commission's interpretation of CPE in the

Section 255 Report and Order

compels us to find that software developers that are neither manufacturers of ACS equipment nor providers of ACS are covered under section 716(a). First, in the

Section 255 Report and Order,

the Commission found that CPE “includes software integral to the operation of the telecommunications function of the equipment, whether sold separately or not.” Although the statutory definition of CPE did not reference software, the Commission found that it should construe CPE similarly to how it construed “telecommunications equipment” in the Act, which Congress explicitly defined to include “software integral to such equipment (including upgrades).” The Commission did not in the

Section 255 Report and Order

reach the issue of whether any entity that was not a manufacturer of the end user equipment or provider of telecommunications services had separate responsibilities under the Act.

39. Second, in the CVAA, Congress gave no indication that it intended the Commission to incorporate, when defining the scope of “equipment and software” for purposes of section 716(a)(1), the definitions we have established for the different, but analogous, terms (“telecommunications equipment” and “customer premises equipment”) used in section 255. Here, we interpret the statutory language to include all software, including upgrades, that is used for ACS and that is a component of the end user equipment, network equipment, or of the ACS service—and do not limit software to meaning only software that is integral to the network equipment or end user equipment. As we discuss further in paragraph 58,

infra,

if software gives the consumer the ability to engage in advanced communications, the provider of that software is a covered entity, regardless of whether the software is downloaded to the consumer's equipment or accessed in the cloud.

40. The purpose of sections 716 through 718 of the CVAA—to ensure access to advanced communications services for people with disabilities—is fully served by the narrower interpretation of section 716(a) that we describe above because that interpretation focuses our regulatory efforts where they will be the most productive.

41. Advanced communications services are delivered within a complex and evolving ecosystem. Communications devices are often general-purpose computers or devices incorporating aspects of general-purpose computers, such as smartphones, tablets, and entertainment devices. In the

Accessibility NPRM

the Commission observed that such systems are commonly described as having five components or layers: (1) Hardware (commonly referred to as the “device”); (2) operating system; (3) user interface layer; (4) application; and (5) network services. We agree with ITI that three additional components in the architecture play a role in ensuring the

accessibility of ACS: (1) Assistive technology (“AT”) utilized by the end user; (2) the accessibility application programming interface (“API”); and (3) the web browser.

42. For individuals with disabilities to use an advanced communications service,

all

of these components may have to support accessibility features and capabilities. It is clear, however, that Congress did not give us the task of directly regulating the manufacturers, developers, and providers all of these components. Rather, Congress chose to focus our regulatory and enforcement efforts on the equipment manufacturers and the ACS providers.

43. We believe that end user equipment manufacturers, in collaboration with the developers of the software components of the equipment and related service providers, are best equipped to be ultimately responsible for ensuring that all of the components that the end user equipment manufacturer provides are accessible to and usable by individuals with disabilities. Manufacturers are responsible for the software components of their equipment whether they pre-install the software, provide the software to the consumer on a physical medium such as a CD, or require the consumer to download the software. The manufacturer is the one that purchases those components and is therefore in a position to require that each of those components supports accessibility. Similarly, as we discuss further below, the provider of an advanced communications service is the entity in the best position to make sure that the components (hardware, software on end user devices, components that reside on the web) it provides and that make up its service all support accessibility.

44. We believe these conclusions will foster industry collaboration between manufacturers of end user equipment, software manufacturers, and service providers and agree with TWC that this collaboration must be a central tenet in the efforts to implement the CVAA. For example, as Microsoft states, “a laptop manufacturer that builds ACS into its device will need to consult with the developer of the operating system to develop this functionality, and in that way the operating system provider will be deeply involved in solving these problems and promoting innovations in accessibility, such as making an accessibility API available to the manufacturer.” The consumer, who is not a party to any arrangements or agreements, contractual or otherwise, between an end user equipment manufacturer and a software developer, will not be put in the position of having to divine which entity is ultimately responsible for the accessibility of end user equipment used for advanced communications services.

45. We recognize that consumers are able to change many of the software components of the equipment they use for advanced communications services, including, for some kinds of equipment, the operating systems, email clients, and other installed software used for ACS. We believe that, as a practical matter, operating systems and other software that are incorporated by manufacturers into their equipment will also be accessible when made separately available because it will not be efficient or economical for developers of software used to provide ACS to make accessible versions of their products for equipment manufacturers that pre-install the software and non-accessible freestanding versions of the same products. Therefore, we believe that we do not need to adopt an expansive interpretation of the scope of section 716(a) to ensure that consumers receive the benefits intended by Congress.

46. Section 717(b)(1) of the Act requires us to report to Congress every two years, beginning in 2012. We are required, among other things, to report on the extent to which accessibility barriers still exist with respect to new communications technologies. We intend to pay particular attention in these reports to the question of whether entities that are not directly subject to our regulations, including software developers, are causing such barriers to persist.

47. Finally, the narrower interpretation of the scope of section 716(a) that we adopt herein makes this statutory program more cost-effective than would the more expansive interpretation. Covered entities are subject not only to the substantive requirement that they make their products accessible, if achievable, but also to an enforcement mechanism that includes recordkeeping and certification requirements. This type of enforcement program imposes costs on both industry and the government. Congress made a determination, which we endorse and enforce, that these costs are well justified to realize the accessibility benefits that the CVAA will bring about. But the costs of extending design, recordkeeping, and certification requirements to software developers would be justified only if they were outweighed by substantial additional accessibility benefits.

48. As explained above, it appears that the benefits of accessibility, as envisioned by Congress and supporters of the CVAA, can be largely (and perhaps entirely) realized under the narrower, less costly interpretation of section 716(a)(1). Furthermore, the biennial review requirement of section 717(b)(1) ensures that, if our prediction proves incorrect, the Commission will have an occasion to examine whether application of the CVAA's requirements directly to developers of consumer-installed software is warranted, and make any necessary adjustments to our rules to achieve accessibility in accordance with the intent of the CVAA. This biennial review process gives us additional confidence that applying the statute more narrowly and cautiously in our initial rules is the most appropriate policy at this time.

49. With respect to the definition of “manufacturer,” consistent with the Commission's approach in the

Section 255 Report and Order

and in the

Accessibility NPRM,

we define “manufacturer” as “an entity that makes or produces a product.” As the Commission noted in the

Section 255 Report and Order,

“[t]his definition puts responsibility on those who have direct control over the products produced, and provides a ready point of contact for consumers and the Commission in getting answers to accessibility questions and resolving complaints.” We believe this definition encompasses entities that are “extensively involved in the manufacturing process—for example, by providing product specifications.” We also believe this definition includes entities that contract with other entities to make or produce a product; a manufacturer need not own a production facility or handle raw materials to be a manufacturer.

50. TechAmerica argues that section 716(a) should apply only to equipment with a “primary purpose” of offering ACS. We reject this interpretation. As discussed above, consumers commonly access advanced communications services through general purpose devices. The CVAA covers equipment “used for ACS,” and we interpret this to include general purpose hardware with included software that provides users with access to advanced communications services.

51. Commenters also expressed concerns about the impact of software upgrades on accessibility. The IT and Telecom RERCs state that “[u]pgrades can be used to increase accessibility * * * or they can take accessibility away, as has, unfortunately occurred on numerous occasions.” Wireless RERC urges that “[e]nd-users who buy an accessible device expect manufacturer-provided updates and upgrades to continue to be accessible.” We agree

that the purposes of the CVAA would be undermined if it permitted equipment or services that are originally required to be accessible to become inaccessible due to software upgrades. In accordance with our interpretation of section 716(a)(1) above, just as a manufacturer of a device is responsible for the accessibility of included software, that manufacturer is also responsible for ensuring that the software developer maintains accessibility if and when it provides upgrades. However, we agree with CTIA that a manufacturer cannot be responsible for software upgrades “that it does not control and that it has no knowledge the user may select and download.”

52. Indeed, we recognize more generally, as ITI urges, that manufacturers of equipment are not responsible for the components over which they have no control. Thus, manufacturers are not responsible for software that is independently selected and installed by users, or for software that users choose to access in the cloud. Furthermore, we generally agree with commenters that a manufacturer is not responsible for optional software offered as a convenience to subscribers at the time of purchase and that carriers are not liable for third-party applications that customers download onto mobile devices—even if software is available on a carrier's Web site or application store.

53. A manufacturer, however, has a responsibility to consider how the components in the architecture work together when it is making a determination about what accessibility is achievable for its product. If, for example, a manufacturer decides to rely on a third-party software accessibility solution, even though a built-in solution is achievable, it cannot later claim that it is not responsible for the accessibility of the third-party solution. A manufacturer of end-user equipment is also responsible for the accessibility of software offered to subscribers if the manufacturer requires or incentivizes a purchaser to use a particular third-party application to access all the features of or obtain all the benefits of a device or service, or markets its device in conjunction with a third-party add-on.

54. Because we did not receive a full record on the unique challenges associated with implementing section 718, we will solicit further input in the

Accessibility FNPRM

on how we should proceed. In particular, we seek comment on the unique technical challenges associated with developing non-visual accessibility solutions for web browsers in a mobile phone and the steps that we can take to ensure that covered entities will be able to comply with these requirements on October 8, 2013, the date on which section 718 becomes effective. Section 718 requires a mobile phone manufacturer that includes a browser, or a mobile phone service provider that arranges for a browser to be included on a mobile phone, to ensure that the browser functions are accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable. In the

Accessibility FNPRM,

we also seek to develop a record on whether Internet browsers should be considered software generally subject to the requirements of section 716. Specifically, we seek to clarify the relationship between sections 716 and 718 and solicit comment on the appropriate regulatory approach for Internet browsers that are not built into mobile phones.

3. Providers of Advanced Communications Services

55. Section 716(b)(1) of the Act provides that, with respect to service providers, after the effective date of applicable regulations established by the Commission and subject to those regulations, a “provider of advanced communications services shall ensure that such services offered by such provider in or affecting interstate commerce are accessible to and usable by individuals with disabilities,” unless these requirements are “not achievable.”

56. Consistent with the proposal in the

Accessibility NPRM,

we agree with commenters that state that we should interpret the term “providers” broadly and include all entities that make available advanced communications in whatever manner. Such providers include, for example, those that make web-based email services available to consumers; those that provide non-interconnected VoIP services through applications that consumers download to their devices; and those that provide texting services over a cellular network.

57. As is the case with manufacturers, providers of ACS are responsible for ensuring the accessibility of the underlying components of the service, to the extent that doing so is achievable. For example, a provider of a web-based email service could meet its obligations by ensuring its services are coded to web accessibility standards (such as the Web Content Accessibility Guidelines (WCAG)), if achievable. For services downloaded onto the OS of a desktop or mobile device, service providers could meet their obligations by ensuring, if achievable, that their services are coded so they can work with the Accessibility API for the OS of the device. Accessibility APIs are specialized interfaces developed by platform owners, which software applications use to communicate accessibility information about user interfaces to assistive technologies. Those that provide texting services over a cellular network, for example, must ensure that there is nothing in the network that would thwart the accessibility of the service, if achievable.

58. COAT raises the concern that some software used for ACS may be neither a component of the end user equipment nor a component of a service and thus would not be covered under the statute. Specifically, COAT argues that H.323 video and audio communication is peer-to-peer and does not require a service provider at all. Similarly, it argues that it is possible to have large-scale examples of peer-to-peer systems without service providers and that models used in the non-ACS context could be expanded to be used for ACS. We believe that COAT construes the meaning of “provider of advanced communications services” too narrowly. If software gives the consumer the ability to send and receive email, send and receive text messages, make non-interconnected VoIP calls, or otherwise engage in advanced communications, then provision of that software is provision of ACS. On the other hand, provision of client software such as Microsoft Outlook is not provision of ACS. While consumers use such client software to manage their ACS, the client software standing alone does not provide ACS. The provider of that software would be a covered entity, and the service, including any provided through a small-scale or large-scale peer-to-peer system, would be subject to the requirements of the statute. We also disagree with COAT's suggestion that ACS used with an online directory would not be covered. While online directories are excluded from coverage under the limited liability provisions in section 2(a)(2) of the CVAA, the ACS used with such directories are covered. This is true regardless of whether the software is downloaded to the consumer's equipment or accessed in the cloud.

59. We disagree with Verizon's assertion that the requirement in section 716(e)(1)(C) that the Commission shall “determine the obligations

under this section

of manufacturers, service providers, and providers of applications or services accessed over service provider networks” compels the conclusion that developers of applications have their own independent accessibility obligations. We note that the regulations that the

Commission must promulgate pursuant to section 716(e) relate to the substantive requirements of the Act found in sections 716(a)-(d) encompassing accessibility (sections 716(a) and 716(b)); compatibility (section 716(c)); and network features, functions, and capabilities (section 716(d)). Each of these obligations applies to manufacturers of ACS equipment and/or providers of ACS. There are no independent substantive requirements in these sections that apply to “providers of applications or services accessed over service provider networks.” We believe the most logical interpretation of this phrase is the one proposed in the

NPRM:

that providers of advanced communications services include entities that provide advanced communications services 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. We adopt this interpretation, which we believe comports with our analysis above that providers of ACS are responsible for ensuring the accessibility of the underlying components of the service, including the software applications, to the extent that doing so is achievable.

60. We find, however, that a provider of advanced communications services is not responsible for the accessibility of third-party applications and services that are not components of its service and that the limitations on liability in section 2(a) of the CVAA generally preclude such service provider liability. This approach is consistent with commenters that argue that service providers and manufacturers should be responsible only for those services and applications that they provide to consumers. They explain that they have no control over third party applications that consumers add on their own and that such third party applications have the potential to significantly alter the functionality of devices. Notwithstanding that conclusion and consistent with section 2(b) of the CVAA, we also agree with commenters that the limitation on liability under section 2(a) does not apply in situations where a provider of advanced communications services relies on a third-party application or service to comply with the accessibility requirements of section 716.

61. We also confirm that providers of advanced communications services may include resellers and aggregators, which is consistent with the approach the Commission adopted in the

Section 255 Report and Order.

Several commenters support that conclusion. We disagree with Verizon's suggestion that, to the extent that a carrier is strictly reselling an advanced communications service as is (without alteration), the sole control of the features and functions rests with the underlying service provider, not the reseller, and the reseller should not have independent compliance obligations. To the extent that the underlying service provider makes those services accessible to and usable by individuals with disabilities in accordance with the CVAA mandates, those services should remain accessible and usable when resold as is (without alteration). Resellers offer services to consumers who may or may not be aware of the identity of the underlying service provider. It is both logical and in keeping with the purposes of the CVAA for consumers to be able to complain against the provider from whom they obtain a service, should that service be inaccessible. While a reseller may not control the features of the underlying service, it does have control over its decision to resell that service. Its obligation, like that of any other ACS provider, is to ensure that the services it provides are accessible, unless that is not achievable.

62. Because the networks used for advanced communications services are interstate in nature, and the utilization of equipment, applications and services on those networks are also interstate in nature, we conclude that the phrase “in or affecting interstate commerce” should be interpreted broadly. Nonetheless, the IT and Telecom RERCs suggest that an entity that has its own network “completely off the grid, that it creates and maintains, and that does not at any time connect to another grid” would not be covered. We agree that advanced communication services that are available only on a private communications network that is not connected to the Internet, the public switched telephone network (“PSTN”), or any other communications network generally available to the public may not be covered when such services are not “offered in or affecting interstate commerce.” An example of a private communications network is a company internal communications network. Nonetheless, where such providers of advanced communications services are not covered by section 716, they may have accessibility obligations under other disability related statutes, such as section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act of 1990.

4. General Obligations

63. Section 716(e)(1)(C) of the Act requires the Commission to “determine the obligations * * * of manufacturers, service providers, and providers of applications or services accessed over service provider networks.” Below, we discuss the obligations of manufacturers and service providers, including the obligations of providers of applications or services accessed over service provider networks.

a. Manufacturers and Service Providers

64. As set forth below, we adopt into our rules the general obligations contained in sections 716(a)-(e). As the Commission did in the

Section 255 Report and Order,

we find that a functional approach will provide clear guidance to covered entities regarding what they must do to ensure accessibility and usability. Consistent with AFB's comments, we modify our rules as proposed to make clear that any third party accessibility solution that a covered entity uses to meet its accessibility obligations must be “available to the consumer at nominal cost and that individuals with disabilities can access.”

• With respect to equipment manufactured after the effective date of the regulations, a manufacturer of equipment used for advanced communications services, including end user equipment, network equipment, and software, must ensure that the equipment and software that such manufacturer offers for sale or otherwise distributes in interstate commerce shall be accessible to and usable by individuals with disabilities, unless such requirements are not achievable.

• With respect to services provided after the effective date of the regulations, a provider of advanced communications services must ensure that services offered by such provider in or affecting interstate commerce are accessible to and usable by individuals with disabilities, unless such requirements are not achievable.

• If accessibility is not achievable either by building it into a device or service or by using third-party accessibility solutions available to the consumer at nominal cost and that individuals with disabilities can access, then a manufacturer or service provider shall ensure that its equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, unless such compatibility is not achievable.

• Providers of advanced communications services shall not install network features, functions, or capabilities that impede accessibility or usability.

• Advanced communications services and the equipment and networks used to provide such services may not impair or impede the accessibility of information content when accessibility has been incorporated into that content for transmission through such services, equipment, or networks.

65. We further adopt in our rules the following key requirements, supported by the IT and Telecom RERCs, with some non-substantive modifications to clarify the rules proposed in the

Accessibility NPRM.

These requirements are similar to §§ 6.7-6.11 of our section 255 rules but are modified to reflect the statutory requirements of section 716:

• Manufacturers and service providers must consider performance objectives at the design stage as early and as consistently as possible and must implement such evaluation to the extent that it is achievable.

• Manufacturers and service providers must identify barriers to accessibility and usability as part of such evaluation.

• Equipment used for advanced communications services must pass through cross-manufacturer, nonproprietary, industry-standard codes, translation protocols, formats, or other information necessary to provide advanced communications services in an accessible format, if achievable. Signal compression technologies shall not remove information needed for access or shall restore it upon decompression.

• Manufacturers and service providers must ensure access by individuals with disabilities to information and documentation it provides to its customers, if achievable. Such information and documentation includes user guides, bills, installation guides for end user devices, and product support communications, in alternate formats, as needed. The requirement to provide access to information also includes ensuring that individuals with disabilities can access, at no extra cost, call centers and customer support regarding both the product generally and the accessibility features of the product.

The IT and Telecom RERCs urge that all information provided with or for a product be available online in accessible form. Although we will not require manufacturers and service providers to build Web sites, to the extent that they provide customer support online, such Web sites must be accessible, if achievable.

b. Providers of Applications or Services Accessed Over Service Provider Networks

66. Section 716(e)(1)(C) requires the Commission to “determine the obligations under * * * section [716] of manufacturers, service providers, and providers of applications or services accessed over service provider networks.” As noted previously, to the extent they provide advanced communications services, “providers of applications or services accessed over service provider networks” are “providers of advanced communications services” and have the same obligations when those services are accessed over the service provider's own network or over the network of another service provider. No party suggested that any additional obligations apply to this subset of providers of ACS, and we do not adopt any herein.

c. Network Features

67. According to section 716(d) of the Act, “[e]ach provider of advanced communications services has the duty not to install network features, functions, or capabilities that impede accessibility or usability.” As proposed in the

Accessibility NPRM,

we adopt rules that include the requirements set forth in section 716(d), just as our section 255 rules reflect the language in section 251(a)(2). Commenters generally agree that the duty not to impede accessibility is comparable to the duty set forth in section 251(a)(2) of the Act.

68. As stated above, this obligation applies when the accessibility or usability of ACS is incorporated in accordance with recognized industry standards. We agree with industry and consumer commenters that suggest that stakeholder working groups should be involved in developing new accessibility standards. As explained in the next section, we believe that there are several potential mechanisms to develop these standards. Accordingly, we recommend that stakeholders either use existing working groups or establish new ones to develop standards that will ensure accessibility as the industry applies network management practices, takes digital rights management measures, and engages in other passive or active activities that may impede accessibility. We do not agree, however, that we should wait to require compliance with our rules governing network features until an industry working group “formulates and offers such standards for the industry.” We agree with ACB that “existing standards and expertise will ensure that manufacturers have sufficient functional approaches” on which to base accessibility and that “[f]urther experience and products will improve this process.” We believe this approach provides certainty through the use of recognized industry standards while at the same time recognizing the importance of not unnecessarily delaying the development of accessibility solutions.

d. Accessibility of Information Content

69. As proposed in the

Accessibility NPRM,

we adopt a rule providing that “advanced communications services and the equipment and networks used with these services may not impair or impede the accessibility of information content when accessibility has been incorporated into that content for transmission through such services, equipment or networks.” This rule incorporates the text of section 716(e)(1)(B) and is also consistent with the Commission's approach in the

Section 255 Report and Order.

We believe that this rule is broad enough to disapprove of accessibility information being “stripped off when information is transitioned from one medium to another” and thus find it unnecessary to add this specific language in the rule itself, as originally suggested by the IT and Telecom RERCs.

70. The legislative history of the CVAA makes clear that the requirement not to impair or impede the accessibility of information content applies “where the accessibility of such content has been incorporated in accordance with recognized industry standards.” We agree with the IT and Telecom RERCs that sources of industry standards include: (1) International standards from an international standards body; (2) standards created by other commonly recognized standards groups that are widely used by industry; (3) de-facto standards created by one company, a group of companies, or industry consortia that are widely used in the industry. We believe that these examples illustrate the wide range of recognized industry standards available that can provide guidance to industry without being overly broad or requiring covered entities to engineer for proprietary networks. We therefore decline to adopt CEA's proposal that “recognized industry standards are only those developed in consensus-based, industry-led, open processes that comply with American Standards Institute (“ANSI”) Essential Requirements.”

71. At this time, we are unable to incorporate any aspects of the Access Board criteria or the WCAG into our

rules relating to accessibility of information content. The WCAG are technical specifications developed by industry, disability, and government stakeholders for those who develop web content, web authoring tools, and web accessibility evaluation tools. As such, we believe it may be appropriate to consider the WCAG an “industry recognized standard” for purposes of applying our rule (

i.e.,

the requirements of our rule would apply where the accessibility of the content has been incorporated consistent with WCAG specifications), rather than incorporating aspects of the WCAG into our rules. Because the Access Board's process for developing guidelines is still not complete, we believe that it would be premature and inefficient to adopt them at this juncture. We acknowledge, however, that the IT and Telecom RERCs support the WCAG developed by the W3C and argue that “these web standards in the proposed Access Board revisions to [sections] 508 and 255 * * * should definitely be incorporated in the rules.” Because technology is changing so quickly, we encourage stakeholders to use existing or form new working groups to develop voluntary industry-wide standards, including on issues such as encryption and other security measures. We will monitor industry progress on these issues and evaluate the Access Board guidelines when they are finalized to determine whether any amendments to our rule might be appropriate.

72. Finally, we agree with CEA and the IT and Telecom RERCs that, consistent with the CVAA's liability limitations, manufacturers and service providers are not liable for content or embedded accessibility content (such as captioning or video description) that they do not create or control.

5. Phased in Implementation

73. The responsibilities of manufacturers and service providers begin on the effective date of this

Report and Order

and are both prospective and continuing. First, the regulations we set forth herein will be effective 30 days after publication in the

Federal Register

, except for those rules related to recordkeeping and certification. Next, the rules governing recordkeeping and certification will become effective after OMB approval, but, as discussed above, no earlier than one year after the effective date of our regulations implementing section 716.

74. As several commenters recommend, we are phasing in the requirements created by the CVAA for covered entities. Beginning on the effective date of these regulations, we expect covered entities to take accessibility into consideration during the design or redesign process for new equipment and services. Covered entities' recordkeeping obligations become effective one year from the effective date of the rules adopted herein. By October 8, 2013, covered entities must be in compliance with all of the rules adopted herein. We find that phasing in these obligations is appropriate due to the need for covered entities to implement accessibility features early in product development cycles, the complexity of these regulations, and our regulations' effects on previously unregulated entities. As CEA and ITI have stated, we have utilized phase-in periods previously in similarly complex rulemakings. Below, we discuss details of the phase-in process.

75. Beginning on the effective date of these regulations, we expect covered entities to take accessibility into consideration as early as possible during the design or redesign process for new and existing equipment and services and to begin taking steps to “ensure that [equipment and services] shall be accessible to and usable by individuals with disabilities, unless * * * not achievable [as determined by the four achievability factors.]” As part of this evaluation, manufacturers and service providers must identify barriers to accessibility and usability.

76. Beginning one year after the effective date of these regulations, covered entities recordkeeping obligations will become effective. We note that certain information collection requirements related to recordkeeping adopted herein are subject to the Paperwork Reduction Act and will be submitted to the OMB for review. Those requirements will become effective after OMB approval but no earlier than one year after the effective date of rules promulgated pursuant to section 716(e). After OMB approval is obtained, the Consumer and Governmental Affairs Bureau will issue a public notice instructing covered entities when and how to file their annual certification that records are being maintained in accordance with the statute and the rules adopted herein. As we further explain below, we require covered entities to keep and maintain records in the ordinary course of business that demonstrate that the advanced communications products and services they sell or otherwise distribute are accessible to and usable by individuals with disabilities or demonstrate that it was not achievable for them to make their products or services accessible.

77. Beginning on October 8, 2013, products or services offered in interstate commerce must be accessible, unless not achievable, as defined by our rules. Several commenters have called for at least a two-year phase-in period for these regulations. By October 8, 2013, we expect that manufacturers and service providers will be incorporating accessibility features deep within many of their most complex offerings, instead of patching together ad-hoc solutions shortly before enforcement begins. Some commenters are concerned that a long phase-in period will leave individuals with disabilities waiting for access to new technologies. Although AAPD is correct that many covered entities have been aware of the existence of this rulemaking, the specific rules were not in place until now. The Commission is also cognizant of the fact that our new implementing regulations will touch entities not traditionally regulated by this Commission. A phase-in date of October 8, 2013 will give all covered entities the time to incorporate their new obligations into their development processes. We believe two years to be consistent with complex consumer electronics development cycles. A two-year phase-in period is also consistent with the Commission's approach in other complex rulemakings.

78. Also, beginning October 8, 2013, the requirements we discuss elsewhere regarding peripheral device compatibility and pass-through of industry standard codes and protocols come into effect. The obligation not to impair or impede accessibility or the transmission of accessibility information content through the installation of network, features, functions, or capabilities as clarified above in Network Features, and Accessibility of Information Content, also begins October 8, 2013. We also expect covered entities to provide information and documentation about their products and services in accessible formats, as explained earlier, beginning October 8, 2013.

79. In addition, on October 8, 2013, consumers may begin filing complaints. Prior to that date, the Commission will issue a public notice describing how consumers may file a request for dispute assistance with the CGB Disability Rights Office and informal complaints with the Enforcement Bureau. Formal complaints must be filed in accordance with the rules adopted in this

Report and Order.

While the CVAA complaint process will not be available to consumers until 2013, we remind industry that it has a current obligation to ensure that telecommunications services and equipment are accessible to

and usable by individuals with disabilities. Consumers may file complaints at any time under our existing informal complaint procedures alleging violations of the accessibility requirements for telecommunications manufacturers and service providers under section 255 of the Communications Act. Furthermore, separate from the complaint process, the Disability Rights Office in CGB will be available to assist consumers, manufacturers, service providers and others in resolving concerns about the accessibility and usability of advanced communications services and equipment as of the effective date of our rules (

i.e.,

October 8, 2013).

80. Since ACS manufacturers and service providers must take accessibility into account early in the ACS product development cycle beginning on the effective date of our rules, we anticipate that many ACS products and services with relatively short development cycles will reach the market with accessibility features well before October 8, 2013.

B. Nature of Statutory Requirements

1. Achievable Standard

a. Definitions

(i) Accessible to and Usable by

81. Given that commenters generally agree that the Commission's definitions of “accessible” and “usable” in §§ 6.3(a) and 6.3(l), respectively, are “well established,” we will continue to define “accessible to and usable by” as the Commission did with regard to implementation of section 255. We agree with the Wireless RERC that this approach will “reduce both the potential for misunderstanding as well as the regulatory cost of compliance” and promote “the objective of consistency.” We also plan to draw from the Access Board's guidelines once they finalize them.

82. While we note that there is a great deal of overlap between section 255's definition of “accessible” and the criteria outlined in the Access Board Draft Guidelines, at this time, we are unable to incorporate the Access Board's draft definitions of “accessible” or “usable” into both our section 255 rules and our section 716 rules because the Access Board's process for developing guidelines is not complete. Once the Access Board Draft Guidelines are complete, the Commission may revisit its definitions of “accessible” and “usable” and harmonize them with the Access Board's final definitions, to the extent there are differences.

(ii) Disability

83. Section 3(18) of the Act states that the term “disability” has the meaning given such term under section 3 of the ADA. The ADA defines “disability” as with respect to an individual: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment * * * ” Having received only one comment on this issue and finding that our current rules incorporate the definition of “disability” from section 3 of the ADA, we adopt this definition, as proposed, in our section 716 rules as well. To provide additional guidance to manufacturers and service providers, as the Commission did in the

Section 255 Report and Order,

we note that the statutory reference to “individuals with disabilities” includes people with hearing, vision, movement, manipulative, speech, and cognitive disabilities. The definition of “disability,” however, is not limited to these specific groups. Determinations of whether an individual has a disability are decided on a case-by-case basis.

b. General Approach

84. As provided in the CVAA and its legislative history, we adopt the Commission's proposal in the

Accessibility NPRM

to limit our consideration of achievability to the four factors specified in section 716 and to weigh each factor equally when considering whether accessibility is not achievable. We agree with AFB that the CVAA requires covered entities to make their products accessible unless it is “not achievable” to do so and that the section 716 standard is different from the section 255 “readily achievable” standard. ACB suggests adding seven more factors to the achievability analysis. These proposed factors, which address the commitment of the manufacturer or service provider to achieving accessibility, include (1) engagement of upper level executives; (2) the budgeting process for accessibility as compared to the overall budget; (3) consideration of accessibility early in the planning process; (4) covered entity devotion of personnel during planning stages to achieving accessibility; (5) inclusion of people with disabilities in testing; (6) devotion of resources to the needs of people with disabilities; and (7) record of delivering accessible products and services. While we do not adopt these as additional achievability factors, we do believe they are useful guidance that will help covered entities meet their obligations under the statute.

85. We will be applying the four achievability factors in the complaint process in those cases in which a covered entity asserts that it was “not achievable” to make its equipment or service accessible. Thus, as proposed by AT&T and supported by many of the commenters, we will be taking a flexible, case-by-case approach to the determination of achievability. We reject the suggestion by Words+ and Compusult that the Commission should evaluate products and services on a category-by-category basis. Words+ and Compusult are concerned that the Commission will not be able to evaluate the many products that are introduced each year. This will not be necessary, since the Commission will be evaluating only those products that are the subject of a complaint. The approach suggested by Words+ and Compusult would not be consistent with the four factors mandated by Congress. We also share the concerns expressed by NFB and supported by the Consumer Groups that flexibility should not be so paramount that accessibility is never achieved.

86. We note that nothing in the statute limits the consideration of the achievability of accessibility to the design and development stage. While we believe in many instances, accessibility is more likely to be achievable if covered entities consider accessibility issues early in the development cycle, there may be other “natural opportunities” for consideration of accessibility. Natural opportunities to assess or reassess the achievability of accessibility features may include, for example, the redesign of a product model or service, new versions of software, upgrades to existing features or functionalities, significant rebundling or unbundling of product and service packages, or any other significant modification that may require redesign. If, however, a covered entity is required by the Commission to make the next generation of a product or service accessible as a result of an enforcement proceeding, an achievability analysis may not be used for the purpose of determining that such accessibility is not achievable. We agree with Consumer Groups that new versions of software or services or new models of equipment must be made accessible unless not achievable and “that this burden is not discharged merely by having shown that accessibility is not achievable for a previous version or model.”

87. We expect that accessibility will be considered throughout the design and development process and that

during this time “technological advances or market changes” may “reduce the effort and/or expense needed to achieve accessibility.” We reject CTIA's argument that requiring manufacturers and service providers to reassess the accessibility of products and services at key development stages would result in companies refraining from issuing new versions of their products. Beyond this conclusory statement, nothing in the record supports this contention. We note that no party has asserted that the identical requirement in the section 255 context hampered innovation and competition, and there appears to be no reason to believe that it will have such an impact here.

88. Consistent with both the

Section 255 Report and Order

and the legislative history of the CVAA, section 716 does not require manufacturers of equipment to recall or retrofit equipment already in their inventories or in the field. In addition, consistent with our section 255 implementation, cosmetic changes to a product or service may not trigger a manufacturer or service providers' reassessment.

c. Specific Factors

(i) Nature and Cost of Steps Needed With Respect to Specific Equipment or Service

89. Consistent with the House Report, we find that if the inclusion of an accessibility feature in a product or service results in a fundamental alteration of that product or service, then it is

per se

not achievable to include that accessibility function. We find that the most appropriate definition of “fundamental alteration” can be found in the

Section 255 Report and Order,

where the Commission defined it to mean “reduce substantially the functionality of the product, to render some features inoperable, to impede substantially or deter use of the product by individuals without the specific disability the feature is designed to address, or to alter substantially and materially the shape, size or weight of the product.” We caution, however, that in many cases, features such as voice output can be added in ways that do not fundamentally alter the product, even if earlier versions of the product did not have that capability. Since all accessibility enhancements in one sense require an alteration to the design of a product or service, not all changes to a product or service will be considered fundamental alterations. Rather, the alteration to the product or service must be

fundamental

for the accessibility feature to be considered

per se

not achievable. As we explained in the

Section 255 Report and Order,

“the `fundamental alteration' doctrine is a high standard and * * * the burden of proof rests with the party claiming the defense.”

90. We disagree with those commenters that argue that we should not consider whether accessibility has been achieved by competing products in determining whether accessibility is achievable under this achievability factor. Rather, if an accessibility feature has been implemented for competing products or services, we find that such implementation may serve as evidence that implementation of the accessibility feature is achievable. To ignore such evidence would deprive the Commission of a key element of determining whether achievability is possible. We note, however, that a covered entity may rebut such evidence by demonstrating that the circumstances of the product or service offered by that particular entity renders the feature not achievable. We will consider all relevant evidence when considering the nature and cost of the steps necessary to achieve accessibility for the particular device or service for the particular covered entity.

91. We also reject CEA's assertion that this factor requires us to consider “the entire cost of implementing the required accessibility functionality relative to the production cost of the product.” Under the first factor, the Commission is required to consider the

cost

of the steps needed to meet the requirements of this section with respect to the specific equipment or service in question. The first factor, however, does not provide that the costs should be compared to the production cost of the product; indeed, the factor does not provide for a comparison of the costs at all. As explained further below, this inquiry more directly fits under the second factor, which examines directly the economic impact of the cost of the accessibility features.

(ii) Technical and Economic Impact on the Operation

92. The second factor in determining whether compliance with section 716 is “achievable” requires the Commission to consider 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.” We find that to determine the “economic impact of making a product or service accessible on the operation of the manufacturer or provider,” it will be necessary to consider both the costs of making a product or service accessible and an entity's total gross revenues.

Consistent with the

Section 255 Report and Order,

we will consider the total gross revenues of the entire enterprise and will not limit our consideration to the gross revenues of the particular subsidiary providing the product or service. CEA argues that the Commission should not be able to consider an entity's entire budget in evaluating the cost of accessibility because Congress dropped from the final version of the statute a fifth achievability factor which specifically considered “the financial resources of the manufacturer or provider.” We disagree. CEA does not suggest a reason why Congress eliminated this language and does not address the possibility that Congress may have found the factor to be redundant in light of the fact that under the second factor we consider the “economic impact on the operation of the manufacturer or provider.”

93. We agree with TIA that some new entrants may not initially have the resources to incorporate particular accessibility features into their products immediately. All covered entities should examine the technical and economic impact on their operations of achieving accessibility, as stated in the language of section 716(g)(2). The need to provide an accessibility feature, however, can have a greater impact on a smaller entity than a larger one. In other words, the provision of a particular feature may have negligible impact on a large company but may not be achievable with reasonable effort or expense for a small business. For example, a small start up manufacturer may not have the resources to evaluate all the design considerations that must be considered to make a potential product accessible, even though a larger manufacturer might have the resources to do so as a matter of course. A smaller service provider looking for accessible customer premises equipment to provide to its customers may find that the models with accessibility features are available only to larger service providers, or if they are available to the smaller provider, the acquisition price is considerably higher than the price for a larger carrier, thereby rendering such devices cost prohibitive for the smaller provider. Similarly, while a larger service provider may perform as a matter of course a network upgrade that would include the addition of accessibility features, it may not be achievable with reasonable effort or expense for a smaller service provider to perform a similar network upgrade, either because the upgrade is not yet

available to the smaller provider or it is cost-prohibitive to the company at that time.

94. Some commenters argue that the Commission should consider the cost of implementing accessibility relative to the production cost of the product. CEA suggests that if the cost of accessibility significantly raises the cost of a particular device, it may result in overpricing the device for consumers, which could result in fewer devices being purchased. Similarly, TechAmerica argues that if the cost of an accessibility feature exceeds the cost of having the product in the marketplace, then that accessibility feature is

per se

not achievable. We decline to adopt this

per se

approach. The Commission does recognize, however, that if the nature and cost of the steps needed for accessibility would have a substantial negative technical or economic impact on the ability to produce a product or service, that fact may be taken into consideration when conducting the overall achievability analysis. To completely ignore this fact altogether could discourage manufacturers and service providers from introducing new and innovative products that, for some reason, would require extremely costly accessibility features relative to the cost of the product. Congress's balanced approach in the statute, including its desire to refrain from hampering innovation and investment in technology, require us to consider the cost of accessibility relative to the cost of producing a product in certain situations.

95. In its comments, ITI proposes that manufacturers and service providers should be given the flexibility to make necessary adjustments during the testing stage prior to fully incorporating accessibility technology. According to ITI, to do otherwise would result in one set of accessibility features for the beta version of a product, and then a second, different set of accessibility features for the final version. The VON Coalition argues that manufacturers of devices used for ACS and providers of ACS should not be subject to the CVAA with respect to products they are testing. We find that, if a covered entity is testing accessibility features along with the other functions of the product or service, to the extent the beta testing reveals that the accessibility features need modification to work properly, then under such circumstances, accessibility would not be fully achievable at the beta stage but would be considered achievable once the modifications are implemented for the final product design. We will not take enforcement action against a manufacturer or service provider in regard to the accessibility of products and services that are being beta tested. We will, however, carefully examine any claim that a product or service is in beta. If it appears that a covered entity is keeping a product or service in beta testing status and/or making it available to the general public for extended periods of time as a means of avoiding accessibility obligations, we will enforce section 716 with respect to that product or service.

(iii) Type of Operations

96. The third factor in determining whether compliance with section 716 is “achievable” requires the Commission to consider “[t]he type of operations of the manufacturer or provider.” Consistent with the legislative history, we will take into consideration whether a covered entity has experience in the advanced communications services market or related markets when conducting an achievability analysis. We disagree with Words+ and Compusult's argument that this factor will necessarily provide a competitive advantage to a new entrant. All companies that do not qualify for the small business exemption, whether new entrants or incumbents, must engage in an achievability analysis. All companies are required to provide accessibility unless it cannot be done “with reasonable effort or expense.” Given the multitude of factors that affect a company's prospects in the marketplace, we do not see much of a competitive advantage arising from the ability of a new entrant to assert this third factor as a defense to a complaint.

97. The degree to which this factor affects a finding of achievability will depend upon a number of considerations. We agree with CEA that the Commission should give little weight to whether a new entrant has experience in other unrelated markets. In this regard, we consider the various telecommunications and information technology markets to be related. We agree with T-Mobile that because each service provider has different technical, financial, and personnel resources, with different business models and distinct technology configurations and platforms, this factor requires that we look at each company individually when we consider the impact on the operation of the covered entity of providing the accessibility feature.

98. In addition, as suggested by the IT and Telecom RERCs and ACB, when applying this factor, we will take into consideration the size of the company. We agree that a small start-up company, which may need time to develop its financial resources and learn the field and its requirements, should be treated differently than a larger company with the resources available to more rapidly achieve accessibility features. While we reject TIA's suggestion that the size of the company should not matter when applying this factor, we agree with TIA that a company's size alone is not a proxy for determining whether accessibility can be achieved. Consistent with the legislative history, we find that the existence of substantial financial resources does not, by itself, trigger a finding of achievability.

(iv) Extent to Which Accessible Services or Equipment Are Offered With Varying Functionality, Features, and Prices

99. The fourth factor in determining whether compliance with section 716 is “achievable” requires the Commission to consider “[t]he 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.” To satisfy the fourth achievability standard, a covered entity is required by the CVAA to offer people with each type of disability (this includes people with multiple disabilities) accessibility features within a line of products that includes the full range of functionality within the product line as well as a full range of prices within the product line, if achievable. We interpret the plain language of the statute and legislative history to mean that covered entities generally need not consider what is achievable with respect to every product, if the entity offers consumers with the full range of disabilities meaningful choices through a range of accessible products with varying degrees of functionality and features, at differing price points. Although a range of accessible products with varying degrees of functionality and features, at differing price points must be offered across a product line for people with the full range of disabilities if achievable, in the context of a complaint proceeding, only the facts of the complaint will be considered. In other words, a complaint proceeding will not consider the accessibility of a product for types of disabilities that are not the subject of the complaint.

100. Furthermore, to satisfy this factor, offering the full range of accessible products with varying degrees of functionality and features at different price points must be done effectively. We acknowledge the concern expressed by the IT and Telecom RERCs in their comments that company-chosen sets of devices to be

made accessible may not provide good representation of the range of products offered by the company, and as a result, accessible versions may not always appear in stores, may not always be available as part of bundles, may be more expensive and difficult to obtain than the comparable non-accessible products, may not always represent the full range of features and prices available to everyone else, may not always be supported by employers and their information technology departments, and may not always be available in certain parts of the country.

101. Because section 716(g)(4) specifically calls for “varying degrees of functionality and features, and offered at differing price points,” we emphasize that accessibility features must be made available within a line of products that includes the full range of functionality and prices for that line of products. In other words, if a line of products includes low-end products, it is just as important that low-end products and services be accessible as high-end products and services if achievable.

102. We decline to mandate ACB's proposal that, for the purpose of making available a range of devices that fit various price ranges along with corresponding accessible features, the devices may be divided into classes, making certain that each class has at least one option that is fully accessible. We agree with CEA that mandating such a proposal would be unworkable for some manufacturers and service providers, given that technology and consumer preferences are constantly evolving.

103. We also share the concern expressed by Words+ and Compusult that the fourth achievability factor not be interpreted in a way that would result in people with disabilities needing to purchase multiple devices to obtain all the disability features that they require. We find that a reasonable interpretation of sections 716(g)(4) and 716(j) calls for the bundling of features within a single device to serve a particular type of disability, if achievable. For example, if a series of features, such as a screen reader and a voice interactive menu, were required to be bundled into the same device to render the device accessible to people who are blind, then a common sense interpretation of the statute would require that these features be bundled together if achievable under the four factors.

104. We find that ITI misunderstands sections 716(g)(4) and 716(j) when it asserts that covered entities are compliant “so long as some reasonable subset of features and services are accessible,” because such an approach could result in lack of accessibility over the full range of functionality and prices. After carefully considering section 716(j), we find a more reasonable interpretation to be that there may be some devices with accessibility features for people with one type of disability, different devices with accessibility features for people with other types of disabilities, and yet other devices that are not accessible because accessibility is not achievable for those particular devices or because the entity offers a full range of accessible products with varying degrees of functionality and features, at differing price points to discharge its responsibility under section 716. In other words, section 716(j) provides a rule of reason when interpreting section 716(g).

105. We decline at this time to designate a list of accessibility features that are easy to achieve. Not only would such a list become outdated very quickly, but it is impossible to assume that any given accessibility feature would be easy to achieve for every device or service. Nevertheless, we strongly encourage, but do not require, all covered entities to offer accessibility features that are easy to achieve with every product. By way of example, AFB suggests that audible output of menu functions and on-screen text is easy to achieve. Although the record is insufficient to determine whether AFB's assertion is accurate, if a covered entity finds during the course of its achievability analysis that audible output of menu functions and on-screen text is easy to achieve in all of its products, we would encourage the covered entity to install audible output of menu functions and on-screen text in those products. Voluntary universal deployment of accessibility features that are easy to achieve as products evolve will further enable the maximum number of people with disabilities to enjoy access to products that people without disabilities take for granted.

2. Industry Flexibility

106. Sections 716(a)(2) and (b)(2) of the Act provide manufacturers and service providers flexibility on how to ensure compliance with the accessibility requirements of the CVAA. As urged by several commenters, we confirm that section 716 allows covered entities the flexibility to provide accessibility through either built-in solutions or third-party solutions, so long as the third-party solutions are available at nominal cost to consumers. As suggested by TIA, we find that manufacturers and service providers should be able to rely on a wide range of third-party accessibility solutions and whether such solutions meet the accessibility requirements should be decided on a case-by-case basis. Moreover, by putting the decision in the hands of the manufacturers and service providers—those who are in the best position to determine the most economical manner of compliance—we ensure that the aims of the statute will be met in the most cost-effective manner. At the same time, we encourage such manufacturers and service providers who wish to use third party accessibility solutions, to consult with people with disabilities about their accessibility needs because these individuals will be best equipped to provide guidance on which third-party accessibility solutions will be able to meet those needs. Consultation with the disability community will best achieve effective and economical accessibility solutions.

107. The Commission acknowledged in the

Accessibility NPRM

that “universal design,” which is “a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly accessible (without requiring assistive technologies), and products and services that are interoperable with assistive technologies,” will continue to play an important role in providing accessibility for people with disabilities. At the same time, the Commission acknowledged that, while section 255 had relied primarily on universal design principles, the industry flexibility provisions of the CVAA reflect that there are new ways to meet the needs of people with disabilities that were not envisioned when Congress passed section 255. We agree with Consumer Groups that new and innovative technologies may now be able to more efficiently and effectively meet individual needs by personalizing services and products, than services and products built to perform in the same way for every person. Accordingly, as supported by several commenters, we affirm that the Commission should afford manufacturers and service providers as much flexibility to achieve compliance as possible, so long as each does everything that is achievable in accordance with the achievability factors.

108. As supported by several commenters, we adopt the Commission's proposal in the

Accessibility NPRM

that “any fee for third-party software or hardware accessibility solutions be `small enough

so as to generally not be a factor in the consumer's decision to acquire a product or service that the consumer otherwise desires.' ” We will apply this definition in accordance with the proposal submitted by AFB that in considering whether the cost to the consumer is nominal, we must look at the initial purchase price, including installation, plus the ongoing costs to the consumer to keep the third-party solution up to date and in good working order, and that the total cost to the consumer must be nominal as perceived by the consumer. We believe that this approach, which emphasizes the definition of nominal cost as perceived by the consumer, addresses the IT and Telecom RERCs' concerns that our proposed definition of nominal cost provides insufficient guidance and does not take into account that many people with disabilities are poor and already face greater costs for nearly every aspect of their lives. In other words, the definition of nominal cost as perceived by the consumer will take into account the financial circumstances generally faced by people with disabilities.

109. As suggested by several commenters, we will not adopt a fixed percentage definition for nominal cost. We are mindful of T-Mobile's concern that we should not interpret the term nominal cost so narrowly as to negate the opportunity for third-party accessibility solutions. As supported by several commenters, we will therefore determine whether the cost of a third-party solution is nominal on a case-by-case basis, taking into consideration the nature of the service or product, including its total lifetime cost.

110. Several commenters also express concerns about the Commission's proposal in the

Accessibility NPRM

that a third-party solution not be more burdensome to a consumer than a built-in solution would be, arguing that this test would not be workable because it would result in no third-party solutions. In response to these concerns, we clarify how we intend to interpret those requirements to ensure their workability. Because adaptive communications solutions are often not available with mainstream products and finding these solutions often has been difficult for people with disabilities in the past, we agree with those commenters that assert that a manufacturer or service provider that chooses to use a third-party accessibility solution has the responsibility to identify, notify consumers of, find, and arrange to install and support the third-party technology along with the covered entity's product to facilitate consumer access to third-party solutions. Although we will not adopt the testing requirements proposed by the IT and Telecom RERCs because we believe that the other requirements we adopt herein with respect to third-party solutions will ensure accessibility of ACS products and services to consumers with disabilities, we nevertheless encourage covered entities to test third-party accessibility solutions with people with disabilities to ensure that such third-party solutions work as intended. We find that the covered entity must support the third-party solution for the life of the ACS product or service or for a period of up to two years after the third-party solution is discontinued, whichever comes first, provided that another third-party accessibility solution is made available by the covered entity at nominal cost to the consumer. In other words, to ensure accessibility of products and services covered by the CVAA, if another third-party solution is not made available by the covered entity at nominal cost to the consumer, then the covered entity may not discontinue support for the original third-party solution. We believe that the requirement to provide support for a replacement third-party accessibility solution addresses the concern expressed by the IT and Telecom RERCs.

111. We agree with those commenters that suggest that we should not impose a requirement to bundle third-party solutions with ACS products and services, because a bundling requirement would provide industry with less flexibility than Congress intended. Therefore, third-party solutions can be made available after-market, rather than at the point of purchase, provided that such third-party solutions are made available around the same time as when the product or service is purchased. This will ensure that the consumer has access to the product near the time of purchase, allow for additional implementation steps that may be needed, and promote innovation by reducing the likelihood of being locked into the accessibility solutions available at the time the product was offered for sale.

112. As explained in the preceding paragraphs, the total cost to the consumer of the third-party solution, including set-up and maintenance, must be nominal. We expect the set-up and maintenance for a third-party accessibility solution to be no more difficult than the set-up and maintenance for other applications used by consumers. If the third-party solution by its nature requires technical assistance with set-up or maintenance, we find that the covered entity must either provide those functions, including personnel with specialized skills if needed, or arrange for a third party to provide them.

113. We reject Verizon's argument that manufacturers and service providers should not be required to provide support for the third-party solutions, because such a requirement would effectively require a contractual relationship, including intricate knowledge of the third party's proprietary solution, where none may exist. Verizon's theory would conflict with the plain meaning of sections 716(a)(2) and (b)(2), which afford manufacturers and service providers the option to rely on third-party solutions to ensure that their products and services are accessible if achievable. If the covered entities elect to offer third-party solutions to achieve accessibility but do not support such third-party solutions, they would be undermining the availability of such solutions.

3. Compatibility

114. We adopt the definition of “peripheral devices” proposed in the

Accessibility NPRM.

We agree with the vast majority of commenters that peripheral devices can include mainstream devices and software, as long as they can be used to “translate, enhance, or otherwise transform advanced communications services into a form accessible to individuals with disabilities” and the devices and software are “commonly used by individuals with disabilities to achieve access.” We did not receive comments on the IT and Telecom RERCs proposal to expand our definition of peripheral devices and decline to adopt their proposal at this time. However, we seek further comment in the

Accessibility FNPRM

on its proposal.

115. We also adopt the same definition of specialized CPE as is used in our section 255 rules and proposed in the

Accessibility NPRM.

The Commission has traditionally interpreted CPE broadly to include wireless devices such as cellular telephone handsets, and we retain the flexibility to construe the scope of specialized CPE consistent with Commission precedent. Therefore, changing the regulatory definition of CPE, as the IT and Telecom RERCs suggest, to explicitly include mobile devices carried by the user is unnecessary. We also note that a mobile device could meet the definition of a peripheral device to the extent that it is used to “translate, enhance, or otherwise transform advanced communications services into a form accessible to people with disabilities.”

116. Consistent with the Commission's decision in the

Section 255 Report and Order,

we will require manufacturers and service providers to exercise due diligence to identify the types of peripheral devices and specialized CPE “commonly used” by people with disabilities with which their products and services should be made compatible. We also find that when determining whether a particular device is commonly used by individuals with disabilities, a manufacturer or provider should look at the use of that device among persons with a particular disability. In addition, we agree with AFB that for compatibility to be achieved, a third party add-on must be an available solution that the consumer can access to make the underlying product or service accessible. Compliance is not satisfied because a device's software architecture might someday allow a third party to write an accessibility application. We agree with ITI, however, that “a manufacturer or service provider need not make its equipment or service compatible with every peripheral device or piece of customer equipment used to achieve access.” Covered entities are also not required to test compatibility with every assistive technology device in the market.

117. Consistent with the

Section 255 Report and Order,

we decline to maintain a list of peripheral devices and specialized CPE commonly used by individuals with disabilities or to define how covered entities should test devices which are “commonly used” by people with disabilities, given how quickly technology is evolving. For the same reason, we agree with the IT and Telecom RERCs that covered entities do not have a duty to maintain a list of all peripheral devices and specialized CPE used by people with disabilities. At this time, we also decline to limit the definition of “existing” peripheral devices and specialized customer premises equipment to those that are currently sold, as ITI proposes. As discussed above, we believe that “existing” peripheral devices and specialized customer premises equipment include those which continue to be “commonly used” by people with disabilities. For example, a particular screen reader may no longer be manufactured, but could still be “commonly used.” We do note, however, that peripheral devices and specialized customer premises equipment that are no longer sold will eventually cease being “commonly used.” We also believe that covered entities have an ongoing duty to consider how to make their products compatible with the software and hardware components and devices that people with disabilities use to achieve access and to include this information in their records required under section 717(a)(5).

118. In declining to limit the definition of “existing” peripheral devices and specialized customer premises equipment to those that are currently sold, we recognize that we may be imposing an additional burden on industry resources. We are open to any idea that could facilitate transition without consumers having to bear the costs. In reaching this decision, we acknowledge this additional burden against the benefits of maintaining access for consumers with disabilities to “commonly used” peripheral devices and specialized customer premises equipment. We believe that ensuring that people with disabilities continue to have access to “commonly used” technologies that facilitate their ongoing participation in economic and civic activities outweighs the burden on industry and furthers the statute's overriding objective “[t]o increase the access of persons with disabilities to modern communications.”

119. Finding that the four criteria used in our section 255 rules for determining compatibility remain relevant in the context of advanced communications services, we adopt the following factors for determining compatibility: (i) External access to all information and control mechanisms; (ii) existence of a connection point for external audio processing devices; (iii) TTY connectability; and (iv) TTY signal compatibility. The Commission declines, at this time, to eliminate or modify (iii) and (iv) of this criteria. The Commission agrees with Consumer Groups that at this time, “[a] forced phase-out of TTY would impose considerable hardship on a large segment of the population the CVAA is intended to protect.” Therefore, we shall maintain the existing rules for TTY compatibility until alternative forms of communication, such as real-time text, are in place. Until a real time text standard is adopted, we believe that it would be premature to modify the third and fourth criteria as the IT and Telecom RERCs suggest. The provision of real-time text as communications technologies, including those used for 9-1-1 emergency services by people with disabilities, transition from the PSTN to an IP-based environment is being examined by the EAAC.

120. At this time, the Commission will not incorporate criteria related to APIs or software development kits (SDKs) into our definition of compatibility. We do agree with commenters, however, that APIs “can facilitate both accessibility (via third-party solutions) as well as compatibility” and “reduce the work needed by both mainstream and assistive technology (AT) developers.” We encourage stakeholders to use existing working groups—or form new ones—to develop and distribute voluntary industry-wide standards, since this approach will offer the industry flexibility in advancing the goals of compatibility articulated in sections 716 and 255.

121. Several commenters generally support the Access Board's proposed definition of “compatibility” and the VON Coalition suggests that the Commission should defer to the Access Board's determination of “compatibility” under section 508, thereby creating consistency between the CVAA and section 508. Because the Access Board has not yet completed its guidelines process, we will not adopt the Access Board's proposed definition of “compatibility” at this time but may revisit this decision after the Access Board completes its guidelines process.

C. Waivers and Exemptions

1. Customized Equipment or Services

122. Section 716(i) states that the accessibility requirements of section 716 “shall not apply to customized equipment or services that are not offered directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” We hereby find that section 716(i) sets forth a narrow exemption that should be limited in scope to customized equipment and services offered to business and other enterprise customers only. Our decision is consistent with the legislative history of the CVAA, which demonstrates that Congress intended for section 716(i) to be a narrow exemption limited to specialized and innovative equipment or services built to the unique specifications of businesses:

The Committee recognizes that some equipment and services are customized to the unique specifications requested by an enterprise customer. The Committee believes this narrow exemption will encourage technological innovation by permitting manufacturers and service providers to respond to requests from businesses that require specialized and sometimes innovative equipment to provide their services efficiently. This provision is not intended to create an exemption for equipment and services designed for and used by members of the general public.

123. We also conclude that section 716's accessibility requirements do not extend to public safety communications networks and devices, because such networks and devices are “equipment and services that are not offered directly to the public.” As Motorola points out, this conclusion is consistent with the Commission's recent proposal not to apply its hearing aid compatibility requirements to public safety equipment. In that proceeding, the Commission proposed to find that insofar as public safety communications networks have different technical, operational, and economic demands than consumer networks, the burdens of compliance would outweigh the public benefits. For the same reasons, we find that section 716 should not be imposed on public safety equipment.

124. We disagree with commenters such as Consumer Groups, and Words+ and Compusult who posit that public safety networks and devices should not be exempt from section 716 because their employees should be covered like the general population. These commenters argue that exempting public safety networks will create barriers to employment for people with disabilities employed in the public safety sector. We note, however, that employers, including public safety employers, are subject to accessibility obligations imposed under the ADA. Because employees of public safety institutions are protected by the ADA, and because the equipment we exempt is customized for the unique needs of the public safety community, we conclude that imposing the accessibility requirements of section 716 on such equipment would create an unnecessary burden on the development of public safety equipment without any concomitant benefit for employees with disabilities. Nonetheless, we agree with CSD that “to the extent possible, public safety systems should be designed to accommodate the needs of deaf [and] hard-of-hearing employees and employees with other disabilities.”

125. We agree with CEA that products customized by a manufacturer for an enterprise that are not offered directly to the general public are exempt, even if such products are “used by members of the general public.” We also agree with the IT and Telecom RERCs that if a customized product built to an enterprise customer's unique specifications is later made directly available to the public, it then becomes subject to the CVAA. Although the legislative history specifies that the exemption set forth in section 716(i) encompasses equipment/services customized to the “unique specifications requested by an enterprise customer,” we find that where a customized product is subsequently offered directly to the public by the originating manufacturer or service provider, that product is then not serving the unique needs of an enterprise customer and thus should not be exempt from the accessibility requirements of section 716.

126. We disagree with commenters such as Consumer Groups, the IT and Telecom RERCs, and Words+ and Compusult who advocate that we expand the definition of “public” as used in section 716(i), to include government agencies, educational organizations, and public institutions. While Congress clearly meant to draw a distinction between equipment or a service that has been “customized to the unique specifications requested by an enterprise customer” from “equipment and services designed for and used by members of the general public” in enacting the exemption in section 716(i), there is no support for the proposition that the use of the term “public” in the foregoing phrase was meant to extend to public institutions. Furthermore, there are many instances where public institutions, acting as enterprise customers, order customized equipment, such as library cataloging systems, whereby such systems would never be designed for, sold to, and used directly by members of the general public. Under Consumer Groups' approach, a public institution could never be considered an enterprise customer, even when procuring specialized equipment that would not be offered to the public or even other enterprise customers. There is nothing in the statute demonstrating that Congress intended to treat public institutions differently from other enterprise customers who are in need of customized or specialized equipment. Therefore, we decline to expand the definition of the word “public” as used in section 716(i) to public institutions. Equipment, such as general purpose computers, that are used by libraries and schools without customization, and are offered to the general public—

i.e.,

library visitors and students, would not fall within the exemption and must meet the accessibility requirements of section 716.

127. We further conclude that customizations to communications devices that are merely cosmetic or do not significantly change the functionalities of the device or service should not be exempt from section 716. We agree with Words+ and Compusult that the section 716(i) exemption should be narrowly construed, and further agree with Consumer Groups that manufacturers and service providers should not be able to avoid the requirements of the CVAA through customizations that are “merely cosmetic” or have “insignificant change to functionality” of the product/service. We note that the majority of commenters support the conclusion that this exemption should not extend to equipment or services that have been customized in “minor ways” or “that are made available to the public.”

128. Beyond the narrow exemption that we carve out for public safety communications, we refrain from identifying any other particular class of service or product as falling within the section 716(i) exemption. We disagree with NetCoalition that the exemption should apply to ACS manufacturers or service providers who offer their products to a “discrete industry segment” and only a “relatively small number of individuals.” The exemption is not based on the characteristics of the manufacturer or the provider, but rather, on whether the particular equipment or service in question is unique and narrowly tailored to the specific needs of a business or enterprise.

129. The customized equipment exemption will be self-executing. That is, manufacturers and providers need not formally seek an exemption from the Commission, but will be able to raise section 716(i) as a defense in an enforcement proceeding.

2. Waivers for Services or Equipment Designed Primarily for Purposes Other Than Using ACS

130. Section 716(h)(1) of the Act grants the Commission the authority to waive the requirements of section 716. We adopt the Commission's proposal to focus our waiver inquiry on whether a multipurpose equipment or service has a feature or function that is capable of accessing ACS but is nonetheless designed primarily for purposes other than using ACS. This approach is founded in the statutory language. We disagree with the IT and Telecom RERCs' assertion that our waiver analysis should focus on whether the

features or functions

are designed primarily for purposes other than using ACS. The statute specifically anticipates waivers for multipurpose

equipment and services

or classes of such equipment and services with ACS features or functions. As the House and Senate Reports explain, “a device designed for a purpose unrelated to accessing advanced communications might also provide, on an incidental basis, access to such services. In this case, the Commission may find that to

promote technological innovation the accessibility requirements need not apply.”

131. We will exercise the authority granted under section 716(h)(1) to waive the requirements of section 716 (a waiver of the obligations of section 716 also consequently relieves the waived entity from the recordkeeping and annual certification obligations of section 717) through a case-by-case, fact-based analysis on our own motion, or upon petition of a manufacturer of ACS equipment, a provider of ACS, or any interested party. AT&T and CEA generally support this approach. As we discuss in more detail below, the rule we adopt provides specific guidance on the two factors that we will use to determine whether equipment or service is designed primarily for purposes other than using ACS.

132. We will examine whether the equipment or service was designed to be used for advanced communications service purposes by the general public. We agree that the language of the statute requires an examination of the purpose or purposes for which the manufacturer or service provider designed the product or service and that consumer use patterns may not always accurately reflect design. Therefore, this is not an examination of post-design uses that consumers may find for a product; but rather, an analysis of the facts available to the manufacturer or provider and their intent during the design phase. We may, for example, consider the manufacturer or provider's market research, the usage trends of similar equipment or services, and other information to determine whether a manufacturer or provider designed the equipment or service primarily for purposes other than ACS.

133. We note that equipment and services may have multiple primary, or co-primary purposes, and in such cases a waiver may be unwarranted. Convergence results in multipurpose equipment and services that may be equally designed for multiple purposes, none of which are the exclusive primary use or design purpose. For instance, many smartphones appear to be designed for several purposes, including voice communications, text messaging, and email, as well as web browsing, two-way video chat, digital photography, digital video recording, high-definition video output, access to applications, and mobile hotspot connectivity. The CVAA would have little meaning if we were to consider waiving section 716 with respect to the email and text messaging features of a smartphone on the grounds that the phone was designed in part for voice communications.

134. We will also examine whether the equipment or service is marketed for the ACS features or functions. We agree with many commenters who suggest that how equipment or a service is marketed is relevant to determining the primary purpose for which it is designed. We will examine how and to what extent the ACS functionality or feature is advertised, announced, or marketed and whether the ACS functionality or feature is suggested to consumers as a reason for purchasing, installing, downloading, or accessing the equipment or service. We believe the best way to address the IT and Telecom RERCs' concern that a covered entity's assessment of how a product is marketed may be “subjective and potentially self-serving” is to examine this factor on a case-by-case basis and to solicit public comment on waiver requests, as discussed below.

135. Several commenters suggest additional factors that we should consider when examining the primary purpose for which equipment or service is designed. While some of these factors may be valuable in some cases, we decline to incorporate these factors directly into our rules. However, these factors may help a petitioner illustrate the purpose for which its equipment or service is primarily designed. For instance ESA suggests we examine “[w]hether the ACS functionality intends to enhance another feature or purpose.” Microsoft similarly suggests we examine “[w]hether the offering is designed for a `specific class of users who are using the ACS features in support of another task' or as the primary task.” Whether the ACS functionality is designed to be operable outside of other functions, or rather aides other functions, may support a determination that the equipment or service was or was not designed primarily for purposes other than ACS. Similarly, an examination of the impact of the removal of the ACS feature or function on a primary purpose for which the equipment or service is claimed to be designed may be relevant to a demonstration of the primary purpose for which the equipment or service is designed. Further, ESA suggests we examine “[w]hether there are similar offerings that already have been deemed eligible for a * * * waiver.” An examination of waivers for similar products or services, while not dispositive for a similar product or service, may be relevant to whether a waiver should be granted for a subsequent similar product or service. These and other factors may be relevant for a waiver petitioner, as determined on a case-by-case basis.

136. Conversely, we believe there is little value in examining other suggested factors on the record. We do not believe that the “processing power or bandwidth used to deliver ACS vis-à-vis other features” is relevant. No evidence provided supports the notion that there is a direct relationship between the primary purpose for which equipment or service is designed and the processing power or bandwidth allocated to that purpose. For example, text messaging on a wireless handset likely consumes less bandwidth than voice telephony, but both could be co-primary purposes of a wireless handset. Further, we do not believe that an examination of whether equipment or service “provides a meaningful substitute for more traditional communications devices” adds significantly to the waiver analysis. The waiver analysis requires an examination of whether the equipment or service is designed primarily for purposes other than using ACS. The inquiry therefore is about the design of the multipurpose service or equipment, not the nature of the ACS component.

137. In addition to the above factors we build into our rules and others that petitioners may demonstrate, we intend to utilize our general waiver standard, which requires good cause to waive the rules, and a showing that particular facts make compliance inconsistent with the public interest. CEA agrees with this approach. The CVAA grants the Commission authority to waive the requirements of section 716 in its discretion, and we intend to exercise that discretion consistent with the general waiver requirements under our rules.

138. We decline to adopt the waiver analysis proffered by AFB and supported by ACB. AFB urges us to use the four achievability factors to examine waiver petitions. We find that the achievability factors are inappropriate to consider in the context of a waiver. A waiver relieves an entity of the obligations under section 716, including the obligation to conduct an achievability analysis. It would be counter to the purpose of a waiver to condition its grant on an entity's ability to meet the obligations for which it seeks a waiver. As discussed above, our waiver analysis will examine the primary purpose or purposes for which the equipment or service is designed, consistent with the statutory language.

139. The factors we establish here will promote regulatory certainty and predictability for providers of ACS, manufacturers of ACS equipment, and

consumers. We intend for these factors to provide clear and objective guidance to those who may seek a waiver and those potentially affected by a waiver. Providers of ACS and ACS equipment manufacturers have the flexibility to seek waivers for services and equipment they believe meet the waiver requirements. While a provider or manufacturer will expend some level of resources to seek a waiver, the provider or manufacturer subsequently will have certainty regarding its obligations under the Act whether or not a waiver is granted. A manufacturer or provider that receives a waiver will avoid the cost of compliance. A manufacturer or provider that is not granted a waiver can determine its obligations under the Act following an achievability analysis. The opportunity cost to seek a waiver is low since the alternative is compliance with the Act. If a waiver is warranted, the provider or manufacturer can then efficiently allocate resources to other uses.

140. We encourage equipment manufacturers and service providers to petition for waivers during the design phase of the product lifecycle, but we decline to adopt the proposal proffered by AFB to require petitioners to seek a waiver prior to product introduction. The design phase is the ideal time to seek a waiver, but we will not foreclose the ability of a manufacturer or provider to seek a waiver after product introduction. AFB correctly observes: “If inaccessible equipment or services are first deployed in the marketplace, and the subsequently-filed waiver petition is not granted, the company would remain at tremendous risk of being found in violation of the CVAA's access requirements and exposed to potential penalties.” This reality should encourage equipment and service providers to seek waivers during the design phase without necessitating a mandate.

141. The Commission will entertain waivers for equipment and services individually or as a class. With respect to any waiver, the Commission may decide to limit the time of its coverage, with or without a provision for renewal. Individual waiver requests must be specific to an individual product or service offering. This does not preclude combining multiple specific products with common attributes in the same waiver request. New or different products, including substantial upgrades that change the nature of the product or service, require new waivers. For example, a petitioner that manufactures many similar types of products—similar products of varying design, or similarly designed products with different product numbers—the petitioner must seek a waiver for each discrete product individually. This is analogous to rules implementing section 255, which require entities to consider “whether it is readily achievable to install any accessibility features in a specific product whenever a natural opportunity to review the design of a service or product arises.” Individual waiver petitioners must explain the anticipated lifecycle for the product or service for which the petitioner seeks a waiver. Individual waivers will ordinarily be granted for the life of the product or service. However, the Commission retains the authority to limit the waiver for a shorter duration if the record suggests the waiver should be so limited.

142. We will exercise our authority to grant class waivers in instances in which classes are carefully defined and when doing so would promote greater predictability and certainty for all stakeholders. For the purpose of these rules, a class waiver is one that applies to more than one piece of equipment or more than one service where the equipment or services share common defining characteristics. For the Commission to grant a class waiver, we will examine whether petitioners have defined with specificity the class of common equipment or services with common advanced communications features and functions for which they seek a waiver, including whether petitioners have demonstrated the similarity of the equipment or service in the class and the similarity of the ACS features or functions. We distinguish class waivers from categorical waivers. Several commenters urge us to adopt rules that waive the requirements of section 716 for whole categories of equipment or services. We decline to adopt waivers for broad categories of equipment or services because we believe that the facts specific to each product or product type within a category may differ such that the ACS feature or function may be a primary purpose for which equipment or service within the category is primarily designed. We will utilize a fact-specific, case-by-case determination of all waiver requests.

143. In addition, we will examine whether petitioners have explained in detail the expected lifecycle for the equipment or services that are part of the class. Thus, the definition of the class should include the product lifecycle. All products and services covered by a class waiver that are introduced into the market while the waiver is in effect will ordinarily be subject to the waiver for the duration of the life of those particular products and services. As with ordinarily granting individual waiver requests for the life of the product or service, the Commission retains the authority to limit a class waiver for a shorter duration if the record suggests the waiver should be so limited. For products and services already under development at the time when a class waiver expires, the achievability analysis conducted at that time may take into consideration the developmental stage of the product and the effort and expense needed to achieve accessibility at that point in the developmental stage.

144. To the extent a class waiver petitioner seeks a waiver for multiple generations of similar equipment and services, we will examine the justification for the waiver extending through the lifecycle of each discrete generation. For example, if a petitioner seeks a waiver for a class of devices with an ACS feature and a two-year product lifecycle, and the petitioner wishes to cover multiple generations of the product, we will examine the explanation for why each generation should be included in the class. If granted, the definition of the class will then include the multiple generations of the covered products or services in the class.

145. While many commenters agree that we should consider class waivers, we note that others are concerned that class waivers might lead to a “class of inaccessible products and services” well beyond the time that a waiver should be applicable. We believe this concern is addressed through our fact-specific, case-by-case analysis of waiver petitions and the specific duration for which we will grant each class waiver.

146. Several commenters urge us to adopt a time period within which the Commission must automatically grant waiver petitions if it has not taken action on them. We decline to do so. As the Commission noted in the

Accessibility NPRM,

in contrast to other statutory schemes, the CVAA does not specifically contemplate a “deemed granted” process. Nonetheless, we recognize the importance of expeditious consideration of waiver petitions to avoid delaying the development and release of products and services. We hereby delegate to the Consumer and Governmental Affairs Bureau (“Bureau”) the authority to decide all waiver requests filed pursuant to section 716(h)(1) and direct the Bureau to take all steps necessary to do so efficiently and effectively. Recognizing the need to provide certainty to all stakeholders with respect to waivers, we urge the Bureau to act promptly to place waiver

requests on public notice and to give waiver requests full consideration and resolve them without delay. The Commission also hereby adopts, similar to its timeline for consideration of applications for transfers or assignments of licenses or authorizations relating to complex mergers, a timeline for consideration of applications for waiver of the rules we adopt herein. This timeline represents the Commission's goal to complete action on such waiver applications within 180 days of public notice. This 180-day timeline for action is especially important in this context, given the need to provide certainty to both the innovators investing risk capital to develop new products and services, as well as to the stakeholders with an interest in this area. Therefore, it is the Commission's policy to decide all such waiver applications as expeditiously as possible, and the Commission will endeavor to meet its 180-day goal in all cases. Finally, although delay is unlikely, we note that delay beyond the 180-day period in a particular case would not be indicative of how the Commission would resolve an application for waiver.

147. We emphasize that a critical part of this process is to ensure a sufficient opportunity for public input on all waiver requests. Accordingly, our rules provide that all waiver requests must be put on public notice, with a minimum of a 30-day period for comments and oppositions. In addition, public notices seeking comment on waiver requests will be posted on a Web page designated for disability-related waivers and exemptions in the Disability Rights Office section of the Commission's Web site, where the public can also access the accessibility clearinghouse and other accessibility-related information. We will also include in our biennial report to Congress that is required under section 717(b)(1) a discussion of the status and disposition of all waiver requests.

148. We recognize that confidentiality may be important for waiver petitioners. Petitioners may seek confidential treatment of information pursuant to § 0.459 of the Commission's rules. Several commenters agree with this approach. Third parties may request inspection of confidential information under § 0.461 of the Commission's rules. We anticipate that confidentiality may be less important for class waiver petitions due to the generic nature of the request; a class waiver petition can cover many devices, applications, or services across many covered entities and will therefore not likely include specific confidential design or strategic information of any covered entity.

149. ESA urges the Commission to exclude from final rules the class “video game offerings,” which it defines to include video game consoles, operating systems, and games. CEA seeks a waiver for “[t]elevision sets that are enabled for use with the Internet,” and “[d]igital video players that are enabled for use with the Internet.” We decline to adopt or grant these requests at this time. Instead, we believe that petitioners will benefit from the opportunity to re-file these waiver requests consistent with the requirements of this

Report and Order.

Because of the phase-in period for implementation of these rules, petitioners will have flexibility to seek a waiver subsequent to this

Report and Order

without incurring unreasonable compliance expense. We encourage petitioners to seek a waiver for their respective classes of equipment and services consistent with the rules we adopt herein. For example, a petition for a waiver of equipment and services may need to seek a waiver for each as individual classes, although they may file for them in the same petition. We will specify in our biennial Report to Congress any waiver requests granted during the previous two years.

3. Exemptions for Small Entities—Temporary Exemption of Section 716 Requirements

150. Section 716(h)(2) states that “[t]he Commission may exempt small entities from the requirements of this section.” We do not have before us a sufficient record upon which to grant a permanent exemption for small entities. The record also lacks sufficient information on the criteria to be used to determine which small entities to exempt. We therefore seek comment on such an exemption in the

Accessibility FNPRM.

To avoid the possibility of unreasonably burdening “small and entrepreneurial innovators and the significant value that they add to the economy,” we exercise our authority under the Act to temporarily exempt from the obligations of section 716, and by effect section 717, all manufacturers of ACS equipment and all providers of ACS that qualify as small business concerns under the SBA's rules and size standards, pending development of a record to determine whether small entities should be permanently exempted and, if so, what criteria should be used to define small entities. We find that good cause exists for this temporary exemption.

151. Despite the lack of a meaningful substantive record on which to adopt a permanent exemption, without a temporary exemption we run the risk of imposing an unreasonable burden upon small entities and negatively impacting the value they add to the economy. At the same time, the absence of meaningful comments on any exemption criteria prohibits us from conclusively determining their impact on consumers and businesses. This temporary exemption will enable us to provide relief to those entities that may possibly lack legal, financial, or technical capability to comply with the Act until we further develop the record to determine whether small entities should be subject to a permanent exemption and, if so, the criteria to be used for defining which small entities should be subject to such permanent exemption.

152. We temporarily exempt entities that manufacture ACS equipment or provide ACS that, along with any affiliates, meet the criteria for a small business concern for their primary industry under SBA's rules and size standards. A small business concern, as defined by the SBA, is an “entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.” Entities are affiliated under the SBA's rules when an entity has the power to control another entity, or a third party has the power to control both entities, as determined by factors including “ownership, management, previous relationships with or ties to another concern, and contractual relationships.” A concern's primary industry is determined by the “distribution of receipts, employees and costs of doing business among the different industries in which business operations occurred for the most recently completed fiscal year,” and other factors including “distribution of patents, contract awards, and assets.”

153. The SBA has established maximum size standards used to determine whether a business concern qualifies as a small business concern in its primary industry. The SBA has generally adopted size standards based on the maximum number of employees or maximum annual receipts of a business concern. The SBA categorizes industries for its size standards using the North American Industry Classification System (“NAICS”), a “system for classifying establishments by type of economic activity.”

154. This temporary exemption is self-executing. Entities must determine whether they qualify for the exemption based upon their ability to meet the SBA's rules and the size standard for the

relevant NAICS industry category for the industry in which they are primarily engaged. Entities that manufacture ACS equipment or provide ACS may raise this temporary exemption as a defense in an enforcement proceeding. Entities claiming the exemption must be able to demonstrate that they met the exemption criteria during the estimated start of the design phase of the lifecycle of the product or service that is the subject of the complaint. If an entity no longer meets the exemption criteria, it must comply with section 716 and section 717 for all subsequent products or services or substantial upgrades of products or services that are in the development phase of the product or service lifecycle, or any earlier stages of development, at the time they no longer meet the criteria.

155. The temporary exemption will begin on the effective date of the rules adopted in this

Report and Order.

The temporary exemption will expire on the earlier of (1) the effective date of small entity exemption rules adopted pursuant to the

Accessibility FNPRM;

or (2) October 8, 2013.

D. Additional Industry Requirements and Guidance

1. Performance Objectives

156. As proposed in the

Accessibility NPRM,

we adopt as general performance objectives the requirements that covered equipment and services be accessible, compatible and usable. We incorporate into these general performance objectives the outcome-oriented definitions of accessible, compatibility and usable, contained in §§ 6.3 and 7.3 of the Commission's rules. Most commenters in the record support this approach. The IT and Telecom RERCs, however, disagree and propose that we reframe our Part 6 requirements as goals and testable performance criteria. Because the IT and Telecom RERCs filed their proposal in their Reply Comments, we seek comment in the accompanying

Accessibility FNPRM

on the IT and Telecom RERCs' general approach and on specific testable performance criteria.

157. We do not adopt specific performance objectives at this time. As we discuss in greater detail in the

Accessibility FNPRM,

we will defer consideration of specific performance criteria until the Access Board adopts Final Guidelines. As proposed in the

Accessibility NPRM,

we will wait until after the EAAC provides its recommendations on issues relating to the migration to IP-enabled networks, including the adoption of a real-time text standard, to the Commission in December 2011 to update our performance objectives, as appropriate.

2. Safe Harbors

158. We decline, at this time, to adopt any technical standards as safe harbors. The majority of commenters either oppose the Commission adopting technical standards as safe harbors or only support the adoption of safe harbors subject to important limitations and qualifications. CEA, for example, argues that safe harbors should only be used in limited circumstances and warns that the Commission should not lock in outdated technologies or impose implicit mandates. The IT and Telecom RERCs assert that APIs should be encouraged, but should not be a safe harbor. ITI, however, argues that we should adopt safe harbors as a “reliable and sustainable method to achieve interoperability between” all of the components necessary to make ACS accessible. AFB and Words+ and Compusult argue that it is still too early

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