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 8

[CG Docket No. 10-213; WT Docket No. 96-198; CG Docket No. 10-145; FCC 11-37]

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:

Proposed rule.

SUMMARY:

In this document, the Commission proposes to adopt rules that implement provisions in section 104 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), the most significant piece of accessibility legislation since the passage of the Americans with Disabilities Act in 1990. This proceeding would update and amend the Commission's rules to ensure that individuals with disabilities are able to fully utilize advanced communications services (ACS) and equipment and networks used for such services. Specifically, we seek comment on ways to implement the CVAA's requirements on providers of ACS and manufacturers of equipment used for ACS to make their services and products accessible to people with disabilities. The intended effect is to promote rapid deployment of and universal access to broadband services for all Americans across the country, because broadband technology can stimulate economic growth and provide opportunity for all Americans.

DATES:

Submit comments on or before April 13, 2011. Submit reply comments on or before May 13, 2011.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. A copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via e-mail to

PRA@fcc.gov.

You may submit comments, identified by FCC 11-37, or by CG Docket No. 10-213, WT Docket No. 96-198, CG Docket No. 10-145, by any of the following methods:

•

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

•

Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/.

Follow the instructions for submitting comments.

•

People with Disabilities:

Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail:

FCC504@fcc.gov

or phone: (202) 418-0530 or TTY: (202) 418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process,

see

the

SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT:

David Hu, Broadband Division, Wireless Telecommunications Bureau, FCC at (202) 418-7120 or via the Internet to

David.Hu@fcc.gov,

or Rosaline Crawford, Disability Rights Office, Consumer and Governmental Affairs Bureau, FCC at (202) 418-2075 or via the Internet to

Rosaline.Crawford@fcc.gov.

For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Judith B. Herman at (202) 418-0214, or submit your PRA comments via the Internet at

PRA@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's

Notice of Proposed Rulemaking,

FCC 11-37, adopted on March 2, 2011, and released on March 3, 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 e-mail at

fcc@bcpiweb.com.

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

http://wireless.fcc.gov/edocs_public/attachment/FCC-11-37A1doc.

This full text may also be downloaded at:

http://wireless.fcc.gov/releases.html.

Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via e-mail to

bmillin@fcc.gov.

Summary

I. Introduction and Overview

1. This Notice of Proposed Rulemaking (“NPRM”) initiates a proceeding to update the Commission's rules to ensure that the 54 million individuals with disabilities are able to fully utilize advanced communications services and equipment and networks used for such services. Also, this NPRM proposes to adopt rules that implement provisions in section 104 of the “Twenty-First Century Communications and Video Accessibility Act of 2010” (hereinafter referred to as the “CVAA”), Public Law 111-260, 124 Stat. 2751 (2010), the most significant piece of accessibility legislation since the passage of the Americans with Disabilities Act in 1990 (“ADA”). (

See also

Public Law 111-265, 124 Stat. 2795 (2010) (making technical corrections to the CVAA)).

2. In explaining the need for the CVAA, Congress noted that the communications marketplace has undergone a “fundamental transformation” since Congress acted to ensure access to telecommunications services and equipment by people with disabilities as part of the Telecommunications Act of 1996. See S. Rep. No. 111-386 (2010) and H.R. Rep. No. 111-563 (2010). Specifically, Congress stated that since it added section 255 to the Communications Act of 1934, as amended (hereinafter referred to as “the Communications Act” or “the Act”), “Internet-based and digital technologies * * * driven by growth in broadband * * * are now pervasive, offering innovative and exciting ways to communicate and share information.” Congress found, however, that people with disabilities often have not shared in the benefits of this rapid technological advancement and that they face disproportionately higher rates of unemployment and poverty than those without disabilities. Recent surveys confirmed this finding, showing a gap of 38 percentage points in the rates of employment of working-age people with disabilities and those without disabilities (21% v. 59%) and a gap of 27 percentage points in the rates of Internet access (54% v. 81%).

3. These trends are even more troubling when one considers the pace at which the communications marketplace is changing and how we as a society are becoming more dependent on such technologies to succeed in the workplace and to manage our daily lives. Statistics show, for example, that more than ever, Americans rely on their mobile phones for much more than phone service. Increasingly, wireless handsets have evolved into multi-media devices capable of accessing the Internet, sending e-mails or text messages, downloading music, and viewing streaming video programming that can, for example, enable distance education and telemedicine. As described in the National Broadband Plan, one of the Commission's most important policy objectives is the rapid deployment of and universal access to

broadband services for all Americans across the country, because broadband technology can stimulate economic growth and provide opportunity for all Americans. To that end, the recommendations in the National Broadband Plan were consistent with the objectives set forth in the CVAA. This law will bring existing communication laws protecting people with disabilities in line with 21st Century technologies by ensuring that people with disabilities are not left behind and that they will be able to share fully in the economic, social, and civic benefits of broadband.

4. This NPRM seeks comment on the way in which we should implement the requirements of sections 716 and 717, which were added by section 104 of Title I of the CVAA. The statute requires the Commission to adopt rules within one year of enactment. section 716 requires that providers of “advanced communications services” (or “ACS”) and manufacturers of equipment used for ACS make their services and products accessible to people with disabilities, unless it is not achievable to do so. The CVAA provides flexibility to the industry by allowing covered entities to comply with section 716 by either building access features into their equipment or services or relying on third party applications, peripheral devices, software, hardware, or customer premises equipment (or “CPE”) that is available to individuals with disabilities at nominal cost. If such compliance is not achievable, covered entities must ensure that their equipment and services are compatible with “existing peripheral devices or specialized customer premises equipment” commonly used by persons with disabilities to achieve access, unless it is not achievable to do so. Section 717 requires that the Commission establish new recordkeeping and enforcement procedures for manufacturers and providers subject to section 255 and section 716. Appendix D contains the full text of the CVAA as enacted (Pub. L. 111-260 and Pub. L. 111-265).

5. While section 255 of the Act will be the starting point for our implementation of these sections, our proposed approach reflects several important differences between section 255 and section 716. First, section 716 covers a broader scope of services and related equipment than section 255. In addition, relative to section 255, section 716 requires a higher standard of achievement for covered entities but also allows for greater flexibility in how to accomplish these requirements. In the NPRM, we propose to adopt a new rule part to implement sections 716 and 717 of the Act and to amend the rules implementing section 255 of the Act to incorporate any relevant definitional changes in section 716 and establish the new recordkeeping and enforcement procedures set forth in section 717. The regulatory oversight we propose in this proceeding is not intended to prejudge the scope of the Commission's authority in other proceedings that derive from different statutory grants of authority.

6. The NPRM also seeks comment on section 718, which is effective three years after the date of enactment of the CVAA and requires manufacturers and service providers to make Internet browsers built into mobile phones accessible to people who are blind or have visual impairments. Specifically, the NPRM seeks input on what steps the Commission and stakeholders can take to ensure that manufacturers and service providers can meet their obligations when section 718 goes into effect in 2013.

II. Background

7. Section 255 of the Act, which was added by the Telecommunications Act of 1996, requires manufacturers of telecommunications equipment and providers of telecommunications services to ensure that their equipment and services are accessible to and usable by people with disabilities, if readily achievable. When the accessibility requirements of section 255 are not readily achievable, manufacturers and service providers must ensure compatibility with existing peripheral devices or specialized CPE commonly used by individuals with disabilities, if readily achievable. A related provision in section 251(a)(2) of the Act prohibits a telecommunications carrier from installing network features, functions or capabilities that do not comply with the guidelines and standards established pursuant to section 255.

8. Section 255 directed the United States Access Board (“Access Board”) to work with the Commission to establish guidelines for the accessibility of telecommunications equipment and CPE within 18 months of enactment. In June 1996, the Access Board convened the Telecommunications Access Advisory Committee (TAAC), a federal advisory committee consisting of consumer, industry, and government stakeholders, for this purpose. The TAAC delivered its final report to the Access Board in January 1997, which the Access Board then used to develop its section 255 guidelines. In September 1999, the Commission adopted a Report and Order adding parts 6 and 7 to its rules to implement section 255, in large part incorporating the Access Board's guidelines for telecommunications equipment and customer premises equipment (“CPE”). In addition to drawing heavily on these guidelines for its rules implementing section 255 of the Act on telecommunications equipment and CPE (in part 6 of its rules), the Commission utilized the general principles contained in these guidelines to outline the general obligations of telecommunications service providers. In part 7 of these rules, the Commission also used its ancillary jurisdiction to adopt rules relating to voicemail and interactive voice response providers and equipment manufacturers. In 2007, the Commission extended its section 255 accessibility rules to interconnected Voice-over-Internet Protocol (“VoIP”) service providers and equipment manufacturers.

9. The rules adopted to implement section 255 require that where readily achievable, manufacturers and service providers must evaluate the accessibility, usability, and compatibility features of covered services and equipment; incorporate such evaluation throughout product design, development, and fabrication, as early and consistently as possible; and identify barriers to accessibility and usability as part of the product design and development process. The rules also provide that where readily achievable, manufacturers and service providers must ensure that product and service information and documentation provided to customers is accessible to customers with disabilities. In addition, under the rules, equipment manufacturers must pass through cross-manufacturer, nonproprietary, industry-standard codes, translation protocols, formats or other information necessary to provide telecommunications in an accessible format, where readily achievable. The rules also contain an informal complaint procedure by which manufacturers and service providers must attempt to resolve the complainant's concerns and respond to the Commission within 30 days.

10. In 2006, the Access Board initiated a review of its accessibility guidelines for telecommunications equipment and CPE covered under section 255 of the Act and its standards for electronic and information technology covered under section 508 of the Rehabilitation Act. Under section 508, federal agencies must “develop, procure, maintain, and use” electronic and information technologies that are accessible to people with disabilities, unless doing so would cause an undue burden. The goal of this review was to

bring the section 255 and section 508 guidelines and standards up to date and to harmonize them with each other and international accessibility standards. Again, the Access Board established an advisory board of interested stakeholders for this purpose, and in April 2008, the Telecommunications and Electronic and Information Technology Advisory Committee (“TEITAC”) issued its final report, containing a set of recommended updates to these guidelines and standards. In March 2010, the Access Board released for public comment draft information and communication technology (“ICT”) guidelines and standards, which were based on these stakeholder recommendations.

11. During the spring of 2010, the Consumer and Governmental Affairs Bureau (“CGB”) and the Wireless Telecommunications Bureau (“WTB”) (“the Bureaus”) held two workshops to explore the telecommunications access needs of people with disabilities, along with solutions to address these barriers. At the first of these, held on May 13, 2010, the Commission received feedback on expanding disability access to wireless telecommunications; at the second, held on June 15, 2010, young adults who are deaf-blind discussed the barriers they experience in accessing telecommunications and in obtaining information about accessible technologies.

12. Building on those workshops, on July 19, 2010, the Bureaus issued a public notice in DA 10-1324, in CG Docket No. 10-145 expressing the concerns “that people who are blind or have other vision disabilities have few accessible and affordable wireless phone options” and “that many wireless technologies may not be compatible with Braille displays needed by individuals who are deaf-blind.” The July public notice sought comment on, among other things, the barriers faced by these populations, the cost and feasibility of technical solutions, and the actions that the agency should take to address the current lack of access. The Bureaus received over 200 submissions in the record from consumers, consumer groups, trade associations, and individual companies, many of whom provided details about the lack of access to basic and smart phones. While staff continues to consider the steps the agency should take to address those concerns, we have incorporated the record from the July public notice into the record of this proceeding because the record in CG Docket No. 10-145 is particularly relevant and may inform our understanding of the issues raised here, including the difficulties that people with disabilities face in finding accessible products and getting the technical and customer support that they need in today's marketplace.

13. On October 21, 2010, CGB and WTB issued a public notice in DA 10-2029, seeking input on key provisions in sections 716, 717, and 718 of the Communications Act, as amended by the CVAA. The Bureaus received 24 comments and 25 reply comments, which have helped to shape the development of this NPRM.

III. Statutory Definitions

A. Scope of Coverage

1. Background

14. Section 716 of the Act covers a broad array of manufacturers of equipment and providers of services that are not covered under section 255. As discussed in more detail

below,

the requirements of section 716 apply to the manufacturers of equipment used for non-interconnected VoIP services, electronic messaging services, and interoperable video conferencing services (all of which are “advanced communications services” as defined in section 3(1) of the Act) and the providers of those services. (Although interconnected VoIP service also constitutes an ACS, such service is subject to section 255 of the Act and thus need not comply with the requirements of section 716.) We agree with AT&T's statement that “section 716 reflects the reality that ACS is delivered in a complex Internet ecosystem” and that “[a]ccessibility obligations must be shared by all entities in that ecosystem for consumers to have an accessible experience.” We discuss the evolution of the “complex Internet ecosystem” below and seek further comment on how we should interpret section 716 requirements, in light of this evolution and the statute's broader purposes of ensuring that ACS and equipment used for ACS is accessible to and usable by people with disabilities.

15. Since section 255 was first enacted, communication technology has changed significantly, both in terms of its usage of the Internet and packet-switched networks instead of circuit-switched networks and in its common architecture. In many cases, communication devices had a single function, and were created by a single manufacturer and often closely tied to a specific communication service or network. As the fixed and mobile Internet has evolved, mass-market communication devices are now often general-purpose computers or devices such as smart phones incorporating aspects of general-purpose computers, with an architecture reflecting the evolution of computer technology. This architecture has been common for personal computers since the 1980s, but has more recently also made its way into mobile devices such as smart phones and tablets, and into entertainment devices such as game consoles and set-top boxes. In all of these cases, systems can be divided into at least five components that can be pictured, roughly, as layers, with the hardware at the bottom and the application and services at the top:

• Hardware (commonly referred to as the “device”): Every advanced communications service relies on hardware with general-purpose computing functionality. It typically includes a computing component (“CPU”), several kinds of memory, one or more network interfaces (cellular, IEEE 802.11 “WiFi,” Ethernet, Bluetooth, etc.), built-in peripherals such as keyboards and displays, and both generic and dedicated-purpose interfaces to external peripherals. A common example of a generic interface is a USB interface, as it can support just about any input or output technology, from audio to keyboards and cameras. A dedicated-purpose interface can only support one media type, such as audio.

• Operating system (“OS”): The OS manages the system resources enumerated above and provides common functionality, such as network protocols, to applications. Almost all devices with a CPU have an OS.

• User interface layer: Most modern devices have a separate user interface (“UI”) layer upon which almost all applications rely to create their graphical user interface. Currently, the OS and user interface layer are typically provided as a package and are often referred to collectively as the OS, but this is not always the case. For example, at least one common OS allows users to replace the user interface layer. In many cases, web browsers are considered to be part of the UI layer although they themselves are also an application.

• Application (commonly referred to as an “app”): Software is used to implement the actual advanced communications functionality. The software may be embedded into the device and non-removable, installed by the system integrator or user, or reside in the cloud.

• Network services: Advanced communication applications, such as VoIP, rely on network services to interconnect users. These networks perform many functions, ranging from user authentication and authorization to call routing and media storage. In many

cases, such network services simply route the call signaling information and do not touch the actual media exchanged. In these cases, the service itself may not know or care what kind of media (audio, video, text) is exchanged between communicating end systems. In other cases, the network services may perform more than transport functions and offer video, voice, and other data capabilities.

While the particulars of the above components have evolved, the basic architecture has remained stable for several decades and there are no obvious successors under development in the research community. Thus, it appears reasonably safe to assume that this division will continue for the immediate future, although we note that the components listed above overlap with each other.

16. Because each of the above components may be created by a different manufacturer and sold separately, this division has three major consequences. First, a manufacturer or provider of one component may have limited ability to know which other components are being used to deliver an advanced communications service. For example, a PC- and web-based collaboration service can run on most personal computers, using an almost infinite set of combinations of hardware, operating systems and web browsers. Second, components of the service can change over time. Users can often upgrade their hardware, OS, or application, without consulting with the manufacturer or provider of the other components. Third, the accessibility features of each component are likely to evolve over time. Manufacturers of hardware, OS, and user interface layers may not know whether the components they produce will be used for advanced communications services in the future and for which ones.

17. In order to enable individuals with disabilities to use an advanced communications service, all of the components may have to support accessibility features and capabilities. Conversely, if one component does not offer a particular function, it is often impossible for another component to compensate for that omission. For example, only the hardware component can support an audio jack or a connection to an external Braille device, while only the OS and user interface layer can enable screen readers. In addition, it should be noted that while upper layers cannot make up for the lack of accessibility features at the lower layers, they can impede their use. For example, an application could render text in such a way that screen readers or Braille devices cannot function,

e.g.,

to protect content against extraction as part of digital rights management functionality. While this environment complicates the ability to implement capabilities that support people with disabilities, we also recognize that these challenges are inherent in the design of any mass market application or hardware device. At the same time, we recognize that this environment also has the potential to provide new solutions for people with disabilities which were not previously possible.

18. We seek comment on whether the above description accurately reflects the basic architecture and components involved in the delivery of ACS. Below, we seek comment on how we should interpret the statute's directives, in light of the architecture and components discussed above.

2. Manufacturers of Equipment Used for Advanced Communications Services

19. Section 716(a) of the Act provides that, with respect to equipment manufactured after the effective date of applicable regulations established by the Commission and subject to those regulations, the accessibility obligations apply to a “manufacturer of equipment used for advanced communications services, including end user equipment, network equipment, and software * * * that such manufacturer offers for sale or otherwise distributes in interstate commerce.”

20. We first seek comment on the meaning of the term “manufacturer.” We note that in our rules implementing section 255 of the Act we define “manufacturer” as “an entity that makes or produces a product.” In the

Section 255 Report and Order,

we found that “[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 propose to adopt the same definition of “manufacturer” in our rules implementing section 716 and seek comment on this proposal.

21. We also seek comment on the meaning of “end user equipment,” “network equipment” and “software,” as those terms are used in section 716(a). We propose to define “end user equipment” as including hardware as described above; “software” includes the OS, the user interface layer, and applications, as described above, that are installed or embedded in the end user equipment by the manufacturer of the end user equipment or by the user; and “network equipment” includes equipment used for network services, as described above. We seek comment on whether upgrades to the software (OS, user interfaces, or applications) by manufacturers are encompassed in these definitions. We also seek comment on whether there are any circumstances in which a manufacturer of end user equipment would be responsible for the accessibility of software that is installed or downloaded by the user. In particular, we seek comment on commenters' assertions that the limitations on liability in section 2(a) of the CVAA generally preclude manufacturers from being liable for third party applications that are installed or downloaded by the consumer.

22. In addition, we seek comment on the meaning of the phrase “used for advanced communications services,” in section 716(a), for the purposes of determining a manufacturer's obligations under this section. As a general matter, must equipment subject to section 716(a) be capable of offering ACS on a standalone basis or merely support ACS in some way? If the former, then how should this standard be applied, for example, to Internet-enabled ACS intended to run on separately distributed general computing platforms?

23. We also seek comment on the meaning of “offers for sale or otherwise distributes in interstate commerce” by “such manufacturer.” Hardware, as described above, commonly meets this definition. We seek comment on whether other components that are used for advanced communications services are offered for sale or otherwise distributed in interstate commerce by the manufacturer when installed or embedded by the manufacturer. We propose to treat generally the act of a manufacturer's making software available for download as a form of distribution. We seek comment, however, for purposes of the CVAA, on what should constitute making software available for download.

24. We propose to hold manufacturers of end user equipment responsible for the accessibility of their products, including the software, such as the OS, the user interface layer, and the applications that they install. We also propose to find manufacturers of software used for advanced communications services that is offered for sale or otherwise distributed in interstate commerce by such manufacturers and that is downloaded or installed by the user as being covered by section 716(a).

3. Providers of Advanced Communications Services

25. 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.”

26. In the

Section 255 Report and Order,

the Commission found that providers of telecommunications services include resellers and aggregators. The Commission's decision was based on its interpretation of the statutory definition of “telecommunications carrier” as defined in section 3(51) of the Act. Specifically, the Commission noted that “[section 3(51)] states that a `telecommunications carrier' means any `provider of telecommunications services' with the exception of aggregators, thus indicating that a `provider of telecommunications services' would otherwise include aggregators.” While the CVAA does not provide similar guidance with respect to the definition of provider of ACS, we believe that the general principle that the Commission adopted in the

Section 255 Report and Order

—that “Congress intended to use the term “provider” broadly * * * to include all entities that make telecommunications services available”—has applicability here. Accordingly, we propose to find providers of ACS to include all entities that make ACS available in or affecting interstate commerce, including resellers and aggregators. We seek comment on this proposal.

27. We also seek comment on additional issues relating to the meaning of “providers of advanced communications services.” We propose to find such providers to include entities that provide ACS over their own networks as well as providers of applications or services accessed (

i.e.,

downloaded and run) by users over other service providers' networks, as long as these providers make advanced communications services available in or affecting interstate commerce. We also seek comment on whether there are any circumstances in which a service provider would be responsible for the accessibility of third party services and applications or whether the liability provisions in section 2(a) of the CVAA would generally preclude such a result. We seek comment on these proposed approaches and on whether the fact that we are required under section 716(e)(1)(C) to “determine the obligations under this section of manufacturers, service providers, and providers of applications or services accessed over service provider networks” should have any bearing on how we interpret the meaning of providers of ACS. Specifically, we seek comment on the meaning of “providers of applications or services accessed over service provider networks” and how this term differs from “providers of advanced communications services.” Finally, we also seek comment on the meaning of “in or affecting interstate commerce.” Are there any circumstances in which advanced communications services that are downloaded or run by the user would not meet this definition?

4. Advanced Communications Services

28. 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. That provision sets forth definitions for each of these terms.

a. Interconnected VoIP Service

29. 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. § 9.3 of the Commission's rules, 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. We propose to continue to define interconnected VoIP in accordance with § 9.3 of the Commission's rules. We seek comment on this proposal.

30. Section 716(f) of the Act provides that “the requirements of this section shall not apply to any equipment or services, including interconnected VoIP service, that are subject to the requirements of section 255 on the day before the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010.” In the

October Public Notice,

the Bureaus sought comment on how to address the accessibility obligations of equipment that is used to provide both telecommunications and advanced communications services and how to treat interconnected VoIP. In its comments, AT&T states that “the Commission should subject multi-purpose devices to section 255 to the extent that the device provides a service that is already subject to section 255 and apply section 716 solely to the extent that the device provides ACS that is not otherwise subject to section 255.” We seek comment on AT&T's interpretation and also seek comment on alternative interpretations of section 716(f).

b. Non-interconnected VoIP Service

31. 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 that “does not include any service that is an interconnected VoIP service.” We propose to define “non-interconnected VoIP service” in our rules in the same way and seek comment on this proposal.

32. We propose to treat any offering that meets the criteria of the statutory definition set forth above as a “non-interconnected VoIP service,” and note that the statutory definition of non-interconnected VoIP does not exclude offerings with a purely incidental VoIP component. We seek comment on this proposal. We also note that, as discussed below, the statute allows the Commission to waive the requirements of section 716 for equipment or services “designed primarily for purposes other than using advanced communications service.” In addition, as discussed below, section 716(i) provides that the requirements of this Section do not apply to “customized equipment or services that are not offered directly to the public.”

c. Electronic Messaging Service

33. 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. In accordance with this definition, we propose to define this term in the Commission's rules as “a service that provides real-time or near real-time non-voice messages in text form between individuals over communications networks.” Consistent with language of the Senate and House Reports, we also propose 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 websites.” We seek comment on these proposed definitions. For reasons similar to those discussed below in the section on interoperable video conferencing services, we believe that Internet protocol relay (“IP Relay”) services that otherwise fit the definition of “electronic messaging services” are services subject to the requirements of section 716.

34. We also seek comment on the assertion of several commenters that the phrase “between individuals” in the above definition 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. In addition, we seek comment on TIA's assertion that “services and applications that merely provide access to an electronic messaging service, such as a broadband platform that provides an end user access to an HTML-based e-mail service, are not covered.”

d. Interoperable Video Conferencing Service

35. Section 3(1) of the Act, as added by the CVAA, defines the term “advanced communications services” to include “interoperable video conferencing service,” which, in turn, is defined in section 3(27) as “a service that provides real-time video communications, including audio, to enable users to share information of the user's choosing.” We note that while earlier versions of the legislation did not include the word “interoperable” in the definition of the term “advanced communications services,” the definition of “interoperable video conferencing services” in the enacted legislation is identical to the definition of “video conferencing services” found in earlier versions. In addition, language in the Senate Report regarding “interoperable video conferencing services” is identical to language in the House Report regarding “video conferencing services.” Both the Senate Report and the House Report state, for example, that “[t]he inclusion * * * of these services within the scope of the requirements of this act is to ensure, in part, that individuals with disabilities are able to access and control these services” and that “such services may, by themselves, be accessibility solutions.” In light of the above symmetries between the earlier and later versions of this definition, as well as the reports prepared by each chamber of Congress, we will first seek comment on the meaning of “video conferencing service” and then on the meaning of “interoperable” in this context.

i. Video Conferencing Service

36. We first seek comment on what services meet the statutory definition of “providing * * * real-time video communications, including audio, to enable users to share information of the user's choosing” and what end user equipment, network equipment, and software are used for these services. We propose to classify a range of services and end user equipment under this statutory definition, including, but not limited to videophones and software applications used for conversation between and among users. Such end user equipment includes smart phones and computers with the capability of using interactive video, text and audio conferencing applications such as the Apple iPhone 4.0, Motorola Droid X and computers and videophones such as ASUS Skype, Grandstream, Ojo, and Polycom. Examples of video conferencing software applications include, for example, Google Voice & Video Chat, ooVoo, AOL Instant Message (“AIM”) Chat, WebEx, and Skype. We seek comment on this proposal.

37. We also seek comment on whether video relay services (“VRS”) meet the above definition. VRS is a form of TRS under section 225 of the Act that enables individuals who are deaf or hard of hearing and who use American Sign Language to communicate over distances with voice telephone users through a remotely located sign language interpreter called a CA. The person who is deaf or hard of hearing makes a VRS call using video equipment (a television or a computer with a video camera device) that connects such individual with the CA over a broadband connection. The CA then relays the conversation between the parties—in sign language with the VRS user (the “video leg”), and by voice with the telephone user (the “telephone leg”). Voice telephone users can also initiate VRS calls by simply dialing the telephone number of the person who uses sign language. The call is then automatically connected to a CA, who then relays the conversation.

38. Commenters disagree about whether the CVAA covers the video conferencing service and equipment used in the provision of VRS. Sorenson cites to the legislative history and submits that “Section 716 was intended to cover mass market services and equipment (such as personal computers and smart phones) that have not been designed for use by people with disabilities, not services and equipment (such as VRS and point-to-point) that have been designed specifically to be accessible to and usable by persons with disabilities.” Consumer Groups disagree, stating that “VRS equipment and [video conferencing] services * * * should be made accessible in accordance with the Accessibility Act, if achievable.” Sorenson also asserts that the phrase “including audio” in the definition suggests the exclusion of VRS “video conferencing service” or equipment. Consumer Groups reject Sorenson's assertion because widely distributed VRS equipment includes audio functions that “benefit users who engage in voice carryover (`VCO') and hearing carryover (`HCO').”

39. We agree with Consumer Groups and believe that the “video leg” of a VRS call meets the statutory definition of “provid[ing] * * * real-time video communications, including audio, to enable users to share information of the user's choosing.” Just as a voice telephone user uses telecommunications services and equipment to communicate with the VRS CA (the “telephone leg” of a VRS call), we propose to find that a VRS consumer uses video conferencing services and equipment to communicate with the VRS CA (the “video leg” of a VRS call). We find nothing in the statute or the legislative history to suggest that providers of video conferencing services and manufacturers of equipment used for VRS who otherwise are covered under the CVAA should be excluded from its requirements simply because their services are a kind of TRS provided pursuant to section 225 of the Act. While VRS equipment and services are specifically designed for people who are deaf or hard of hearing and use sign language, they are not necessarily designed for those who have additional disabilities as well (

e.g.,

individuals who are deaf and have low vision, a mobility, or dexterity disability). We do not believe this interpretation will in any way diminish or change the obligations of VRS providers that are contained in part 64 of the Commission's rules. We seek further comment on this issue and on whether such an interpretation would create any difficulties or conflicts in our implementation of the VRS program.

40. We note that consumers who are deaf or hard of hearing also use video equipment distributed by VRS providers for point-to-point calls with other users of this equipment. We believe that such point-to-point calling also meets the CVAA's statutory definition of “providing * * * real-time video communications, including audio, to

enable users to share information of the user's choosing,” and seek comment on this analysis.

41. We also seek further comment on whether webinars are a covered service. TIA states that “a service that enables users to share information necessarily implies a two-way service, not a broadcast-style webinar video.” The IT and Telecom RERCs disagree, however, asserting that webinar systems should be subject to Section 716 because these systems are “not designed to broadcast information but rather to provide user interaction in the form of chat, voting, and hand-raising, etc.”

42. Next, we seek comment on Consumer Groups' assertion that “the scope of the [CVAA] should not be limited by the type of communication conveyed by the video conferencing service (

i.e.,

uni-, bi-, or multi-directional), but by the fact that the service is capable of providing real-time communications that enable users to share information.” Consumer Groups suggest, for example, that the fact that “video conferencing services may be used to leave a `video mail' (similar to a `voice mail') message,” does not preclude the service's coverage under the CVAA. Consistent with our seeking comment on how to treat multi-purpose devices above we seek comment on Consumer Groups' suggestion. We also seek comment more generally on whether services that otherwise meet the definition of “provid[ing] * * * real-time video communications, including audio, to enable users to share information of the user's choosing” but that also provide non-real-time functions (such as video mail) are covered under the CVAA. If so, are the non-real-time functions or near-real-time functions of such a service (such as video mail) subject to the requirements of section 716? If such functions are not covered, should we, similar to what we did in the section 255 context, assert our ancillary jurisdiction to cover video mail? Specifically, the Commission employed its ancillary jurisdiction to extend the scope of section 255 to both voicemail and interactive menu services under part 7 of the Commission's rules because “the failure to ensure accessibility of voicemail and interactive menu services, and the related equipment that performs these functions, would [have] seriously undermined the accessibility and usability of telecommunications services required by sections 255 and 251(a)(2).” Similarly, we seek comment on whether the exclusion of video mail from our rules governing section 716 would hinder our ability to ensure the accessibility and usability of advanced communications services.

43. TIA also asserts, similar to the argument that it made with respect to the scope of VoIP services covered under the CVAA, that “products that offer a video connection that is incidental to the principal purpose and nature of the end user offering fall outside the definition as well,” we believe the same analysis that we propose to apply to the scope of non-interconnected VoIP should apply here. We therefore propose to classify any offering that meets the criteria of the statutory definition set forth above as a “video conferencing service” and note that the statutory definition does not exclude “products that offer a video connection that is incidental to the principal purpose and nature of the end user offering.” Again, we note that this issue may be relevant to our waiver authority set forth in section 716(h), or the exclusion of customized equipment or services pursuant to section 716(i). We seek comment on this proposed classification.

ii. Interoperable

44. We seek further comment on the meaning of “interoperable” in the term “interoperable video conferencing service,” again noting the symmetries of the definition and interpretation of this term in the various drafts of the CVAA and the legislative history of this law. Commenters appear to be divided on the significance of this term. ITI asserts that the inclusion of the modifier “interoperable” after earlier versions of the legislation did not include the word “strongly suggests that Congress consciously decided to target only a subset of all video conferencing services.” TIA urges an interpretation of the word “interoperable” to mean that a video conferencing service must operate “inter-platform, inter-network, and inter-provider” before it is subject to the accessibility provisions of the CVAA. Similarly, CEA concludes that “most nascent two-way video services and applications commercially available in the marketplace have not yet reached true interoperability and are not covered by the statute.” However, Consumer Groups believe that “interoperable” should be interpreted to achieve a broad application of the requirements of the CVAA. Similarly, the RERC-IT urges that the inclusion of the word “interoperable” suggests a broad application of the CVAA so that “all video conferencing services are covered and that they should be made interoperable.” Other commenters express concerns about the current lack of interoperability of video conferencing services,

i.e.,

that consumers are not able to make point-to-point calls using different video conferencing programs.

45. We are concerned that limiting coverage of this provision to only currently available video conferencing services that are “inter-platform, inter-network, and inter-provider” may undermine the statute's intent to the extent the definition results in little or no video conferencing service or equipment being “interoperable.” We note that “video conferencing service” in the legislative history and “interoperable video conferencing service” in the statute have the exact same definitions.

46. We seek comment on how to define “interoperable” in a manner that is faithful to both the statutory language and the broader purposes of the CVAA. Specifically, we seek comment on how the Commission should define interoperable video conferencing services within the scope of covered services to ensure that “such services may, by themselves, be accessibility solutions” and “that individuals with disabilities are able to access and control these services” as Congress intended. For example, which characteristics of video conferencing services and equipment, including software, should determine “interoperability”?

47. The Commission requires VRS services and equipment to be “interoperable” for the provision of VRS under section 225 of the Act. The Commission also requires video conferencing services and equipment used for point-to-point calls between VRS equipment users to be “interoperable” under the authority of ancillary jurisdiction. These interoperability requirements pertain only to VRS providers and equipment used by registered VRS users for VRS and point-to-point communications and do not require interoperability among VRS and other platforms, networks, or providers. We seek comment on whether how we define interoperability in the context of VRS should have any bearing on how we define “interoperable” in the term “interoperable video conferencing service.”

5. Customized Equipment or Services

48. Section 716(i) states that the provisions of this section “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.” While the Senate Report did not discuss this provision, the House Report explains that section 716(i) is a “narrow

exemption” that encompasses “equipment and services [that] are customized to the unique specifications requested by an enterprise customer.” It goes on to state that this provision “permit[s] manufacturers and service providers to respond to requests from businesses that require specialized and sometimes innovative equipment to provide their services efficiently” and is “not intended to create an exemption for equipment and services designed for and used by members of the general public.”

49. Several other commenters urge us to find that manufacturers and service providers are subject to Section 716 only to the extent that they are offering their equipment and services directly to the public. In contrast, the RERC-IT urges us to “carefully limit the exception for customized equipment and services” and to cover equipment and services that have been customized in “minor ways” and “that are made available to the public indirectly through employers, schools, or other institutions.” The RERC-IT also urges that we define “public” in this context to “include public institutions, such as educational institutions and government agencies.”

50. We believe that the guidance offered by the House Report evinces Congress's intent that section 716(i) be narrow in scope and applicable only to customized equipment and services offered to business or other enterprise customers, rather than to equipment and services “used by members of the general public.” We seek comment on this analysis, as well as on the extent to which the equipment and services used by private institutions but made available to the public, such as communications equipment and services used by libraries and schools, should be covered by the CVAA. More specifically, we seek comment on what additional guidance by the Commission is needed to define equipment and services that are “used by members of the general public.” Finally, we seek comment on the extent to which section 716 covers products and services that are offered to the general public, but which have been customized in minor ways to meet the needs of private entities.

51. Consistent with Motorola's assertions, we propose to find section 716's definition of advanced communications services not to extend to public safety communications networks and devices and find that these networks and devices are “equipment and services that are not offered directly to the public.” We agree that the Commission's recent proposal not to apply its hearing aid compatibility requirements to public safety equipment is instructive here. We note, however, that employers still have obligations under the ADA, and 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.” We seek comment on this analysis.

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

52. Section 716(h)(1) of the Act states: The Commission shall have the authority, on its own motion or in response to a petition by a manufacturer or provider of [ACS] or any interested party, to waive the requirements of [section 716] for any feature or function of equipment used to provide or access [ACS], or for any class of such equipment, for any provider of [ACS], or for any class of such services that —(A) is capable of accessing an [ACS]; and (B) is designed for multiple purposes but is designed primarily for purposes other than using [ACS]. We note that, in making waiver decisions, the Commission generally considers whether special circumstances exist that warrant deviation from the general rule, and whether the waiver will serve the public interest. In the October public notice, the Bureaus asked what factors would be relevant to determining whether a product or service is eligible for a waiver and whether there are any specific classes of products or services that warrant the establishment of a categorical or blanket waiver.

53. Both the Senate and House Reports state that section 716(h) “provides the Commission with the flexibility to waive the accessibility requirements for any feature or function of a device that is capable of accessing advanced communications services but is, in the judgment of the Commission, designed primarily for purposes other than accessing advanced communications.” Consistent with the statutory language and legislative history, we propose to focus our inquiry on determining whether the offering is designed primarily for purposes other than using ACS.

54. In making our waiver assessment, we agree with commenters that the “core” function of an offering is an issue relevant to our analysis, we also agree with the IT and Telecom RERCs's suggestion that the “primary feature of a multi-feature device or service [may] vary from person to person.” Furthermore, we do not believe the fact that a “core” function of a device is to play games to be dispositive of the issue whether such device is entitled to waiver under section 716(h). As the IT and Telecom RERCs note, “[g]aming is used for education, rehabilitation, and social interaction [and] * * * should not be exempted simply because the basic feature is a game.” We seek comment on this analysis. We also seek comment on AFB's contentions that “how [a product] is marketed” and “[how] most people think of the device” should not be relevant to our analysis; rather, “[t]he issue is whether the advanced communications features and functions can be operated apart from the device's [primary] functions.”

55. ESA also suggests that why consumers access the gaming products is an important consideration: “Consumers do not play an online game, [for example], as a means of accessing chat—a consumer in search of a general purpose messaging service will find simpler, more direct alternatives than navigating through the various features of a gaming device or online game service.” We seek comment on this assertion and on whether how consumers actually use the communications component of a multi-purpose device or service is relevant to our assessment of the primary purpose for which a device or service was designed. In addition, we seek comment on ESA's proposal that we consider as part of our waiver determination whether the offering is designed for a “specific class of users who are using the ACS features in support of another task.”

56. We also seek comment on the process that we should adopt for determining whether to waive the requirements of section 716 and specifically on the extent to which we need to adopt any procedures to ensure that such process is efficient and effective. Alternatively, we seek comment on whether we should handle waivers as we have in the normal course pursuant to § 1.3 of the Commission's rules. We agree with commenters who state that we should “incorporate protections for confidential information” and propose that parties seeking waivers be able to request confidential treatment of information pursuant to § 0.459 of the Commission's rules. At the same time, we agree with AAPD that, to the extent possible, the process should be “transparent and public,” and propose to seek comment on any waiver petition that we receive pursuant to section 716(h). We seek comment on these proposals.

57. We also recognize the need, after appropriate consideration, for making waiver determinations in an “expeditious manner,” although we

propose not to “incorporate an automatic grant date for waiver requests” as TIA urges. We note that TIA requests that “if the Commission fails to timely act on a good faith waiver request, the company in question [should] be able to initiate the product or service without penalty, and incorporate accessibility features in a reasonable time frame prospectively.” Given that such a “deemed granted” provision is not contemplated by the statute, we do not intend to propose the framework outlined by TIA. We seek comment on this analysis.

58. In addition, in light of the fact that, as the NFB observes, “[t]echnology is ever changing and the `primary purpose' of multi-purpose products is always evolving,” we seek comment on AAPD's assertion that “there should be no permanent waivers.” Should waivers be temporary, and, if so, what should the duration of the waivers be? If we decide that waivers should only be temporary, should we establish a process for renewing waivers, and, if so, should the factors we consider for renewal vary from the factors we consider for the original waiver grant?

59. We also seek comment on whether we should consider waivers for a “class” of services or equipment under this section and what specific showing is needed to justify such waivers. Several commenters suggest that we should grant blanket waivers in order to support innovation and competition. For example, Microsoft states that “[g]ranting prospective categorical waivers is essential to encourage manufacturers and service providers to build communication features into services and equipment devices that do not have as their core purpose advanced communications * * * [f]ostering this innovation will enrich the communications choices and solutions available to all consumers, including those with disabilities.” In contrast, many consumer commenters suggest that blanket waivers are never appropriate, given rapid technological advancement and the belief that “much accessibility and usability will be accomplished through software and related changes.”

60. We seek further comment on the specific factors that we should consider in determining whether a particular “class” of services or equipment should be granted a waiver. How can we determine what services or equipment are similarly situated enough to be designated a “class”? Is it possible to structure a blanket waiver in such a way as to address consumers' concerns that any such waiver could quickly become outdated? Are there specific classes of services or equipment that we should consider waiving in our final rules on section 716? If we do decide to grant waivers for an entire class of services or equipment, should such waivers be permanent or temporary? As discussed above (for individual waivers), should we establish a renewal and/or revocation process for categorical waivers?

7. Exemptions for Small Entities

61. Section 716(h)(2) states that “the Commission may exempt small entities from the requirements of this section.” While the Senate Report did not discuss this provision, the House Report notes that under this section, the Commission may “waive the accessibility requirements for certain small businesses and entrepreneurial organizations” because they “may not have the legal, financial, or technical capability to incorporate accessibility features.” Otherwise, the Report notes, the “application of these requirements in this limited case may slow the pace of technological innovation.” It also states that “the Commission is best suited to evaluate and determine which entities may qualify for this exemption,” and that it expects we will consult with the Small Business Administration (“SBA”) when defining the small entities to be exempted.

62. NTCA asks the Commission to exercise its authority under section 716(h)(2) to exempt small businesses from section 716 and to define “small businesses,” as such term is defined in the Regulatory Flexibility Act, thereby enabling small, rural local exchange carriers (“RLECs”) and their affiliates to deploy and offer ACS “without facing outsized or unachievable regulatory burdens.” Similarly, Blooston Rural Carriers request that small RLECs, RLEC affiliates, and other similarly situated small entities be exempted under section 716(h)(2) from both section 716, and the related enforcement and recordkeeping requirements of section 717. In the alternative, they request that the Commission adopt “streamlined procedures and simplified criteria” that make “appropriate waivers reasonably available to qualifying entities in a timely, predictable, and economically reasonable manner.”

63. Consumer Groups, however, urge that “[i]ndividuals with disabilities should not be denied accessible advanced communications equipment and services simply because they happen to live in underserved or rural areas,” and assert that “RLECs can ensure their own compliance with the [CVAA] through contracts with larger providers and mass market vendors * * * who must also comply with the [CVAA].” ACB opposes small entity waivers “without such entities having done due diligence on whether or not product accessibility is `achievable'* * * [contending] a case-by-case approach to granting waivers would better serve the needs of consumers.” Moreover, ACB recommends that, if the Commission grants categorical waivers for small entities, any such waivers only be granted for a year or less, subject to renewal at the Commission's discretion. Similarly, AAPD urges the FCC Commission to utilize caution when reviewing circumstances that would allow small entities an exemption from these requirements. AAPD does not favor “permanent exemptions or waivers.”

64. In considering the proper scope of possible exemptions from the provisions of section 716 for small entities, we note that other provisions of that section also recognize the need to consider the circumstances of such entities in applying the accessibility requirements. As discussed in section III.B.1

infra,

section 716 provides that service providers and manufacturers must meet the accessibility requirements of section 716 “unless [those requirements] are not achievable.” Section 716(g) defines “achievable” as “with reasonable effort or expense,” and requires the Commission to consider four factors in determining whether meeting a requirement of section 716 is “achievable.” Two of those four factors necessarily incorporate consideration of the size and capabilities of an entity: “[t]he 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;” and “[t]he type of operations of the manufacturer or provider.”

65. The discretionary authority to exempt one or more groups of small entities in section 716(h)(2) supplements the protections that are built into the section 716(g) achievability analysis with an additional tool to ensure that our rules do not unduly burden such entities. We acknowledge that certain small entities may lack the legal, financial, or technical capability to incorporate the accessibility features required by the CVAA, and that in certain instances this may warrant an exemption from our accessibility requirements for certain small entities that provide ACS as well as some of those small entities that manufacture equipment used for ACS.

We agree with consumers that any such exemptions should be carefully tailored to ensure that individuals with disabilities are not denied access to advanced communications equipment and services in rural and other underserved areas.

66. In light of these competing concerns, we seek comment on whether we should exercise our exemption authority, and if so, how we should structure the exemption. For example, should we base the exemption on the number of employees or the annual revenues of the entity or a combination of the two? Are there other criteria that we should consider? We also seek input on the impact of any exemption that commenters urge us to make. In particular, we request information on the percentage of manufacturers and service providers that would be exempted from our section 716 requirements for any specific criteria proposed. We also seek comment on the percentage of equipment (including software) and services in the ACS marketplace that would be exempted from the requirements of section 716 if we exempted entities based these proposed criteria. In addition, we seek comment on how use of any recommended criteria would affect the availability of ACS and equipment used for ACS, especially in rural and underserved areas. Finally, if we adopt criteria to exempt small entities, should we consider limiting the time period of any exemption that may be granted under these criteria? We also propose to review periodically any basis that we adopt for granting exemptions to small entities to ensure that they reflect the current state of the industry.

B. Nature of Statutory Requirements

1. Achievable Standard

a. General Approach

67. Service providers and manufacturers must meet the accessibility requirements of section 716 “unless [those requirements] are not achievable.” Section 716(g) of the Act defines the term “achievable” to mean “with reasonable effort or expense, as determined by the Commission.” As noted above, section 716 requires a higher standard of achievement than section 255. Under section 255, covered entities must ensure the accessibility of their products if it is “readily achievable” to do so, which the statute defines by cross reference to the ADA to mean “easily accomplishable and able to be carried out without much difficulty or expense.”

68. Specifically, section 716(g) requires the Commission to consider the following factors in making determinations about what “constitutes reasonable effort or expense”: (1) The nature and cost of the steps needed to meet the requirements of this [s]ection with respect to the specific equipment or service in question; (2) 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; (3) the type of operations of the manufacturer or provider; and (4) 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.

69. We seek comment on each of these factors. At the outset, we note that the Senate and House Reports state that we should “weigh each factor equally when making an achievability determination.” The House Report also states that in implementing section 716, the Commission should “afford manufacturers and service providers as much flexibility as possible, so long as each does everything that is achievable in accordance with the achievability factors.” Consistent with this legislative history, we generally agree with AT&T that an assessment of what is achievable should be “fact-based, flexible, and applied on a case-by-case basis,” but also agree with NFB that flexibility should not be so paramount that “accessibility is never achieved.” The House Report also states that “the Commission [should] interpret the accessibility requirements in this provision the same way as it did for [s]ection 255, such that if the inclusion of a feature in a product or service results in a fundamental alteration of that service that it is

per se

not achievable to include that function.” Accordingly, we agree with commenters who urge us to interpret the achievability requirements consistent with this directive. We seek comment on this analysis.

70. We also seek comment on whether or to what extent we have the discretion to weigh other factors not specified in the statute in making an achievability determination. ITI urges us to do so, and specifically asks us to consider “how the lack of economies of scale and scope can sometimes hinder the development and deployment of accessibility solutions.” We note that Congress specifically set forth in section 716 the factors that we must consider in determining whether accessibility is achievable, and directed us to weigh these factors equally. In light of the statute and this legislative history, we propose to only consider the factors enumerated in the statute in making our achievability determinations. We would note, however, that we propose to construe the factors broadly and weigh any relevant considerations in determining their meaning. We believe, for example, that the “lack of economies of scale and scope” could be a relevant consideration in determining the meaning of the second factor, “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 seek comment on this analysis.

b. Specific Factors

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

71. Section 716(g)(1) of the Act states that in determining whether the statutory requirements are achievable, the Commission must consider “[t]he nature and cost of the steps needed to meet the requirements of [716(g)] with respect to the specific equipment or service in question.” The Senate Report requires the Commission to consider “the nature and cost of the steps needed to make the specific equipment or service in question accessible” and states that “[t]he Committee intends for the Commission to consider how such steps, if required, would impact the specific equipment or service in question.” The House Report reiterates the need for the Commission to focus on the “specific product or service in question” when conducting this analysis. We believe that it is appropriate for us to consider whether accessibility has been achieved by competing products, but agree with T-Mobile that, in doing so, we must also consider the unique circumstances of each covered entity. We seek comments on this analysis and also seek comment on whether we should define this standard with more specificity in order to make sure that our standards are fully enforceable. We further request input on ACB's suggestion that we consider the totality of the steps that a company needs to take in our achievability analysis, as well as the need to compare the cost of making a product accessible with the organization's entire budget.

(ii) Technical and Economic Impact on the Operation

72. The second factor in determining whether compliance with section 716 is

“achievable” requires the Commission to consider the “technical and economic impact of making a product or service accessible on the operations 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 seek comment on how we should assess this factor and how our analysis should take into account the development and deployment of new communications technologies.

(iii) Type of Operations

73. 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.” The Senate and House Reports state that this factor permits “the Commission to consider whether the entity offering the product or service has a history of offering advanced communications services or equipment or whether the entity has just begun to do so.” We seek comment on the extent to which we should consider an entity's status as a new entrant in the ACS market in conducting our achievability analysis. How should a manufacturer or service provider's recent entry into this market affect our analysis if such entity has significant resources or otherwise appears capable of achieving accessibility? What other criteria should we use in assessing this factor as part of our achievability analysis?

(iv) Extent to Which Offering Has Varied Functions, Features, and Prices

74. 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.” The Senate and House Reports state that “the Commission [should] interpret this factor in a similar manner to the way that it has implemented its hearing aid compatibility rules.” The Commission's rules governing hearing aid compatibility (“HAC”) obligations for wireless devices require manufacturers and service providers to ensure that a range of phones comply with the HAC standards. Specifically, those rules direct such companies to ensure that hearing aid users are able to select “from a variety of compliant handset models with varying features and prices.”

75. Several industry commenters read Congress's directive to incorporate this criteria into the achievability analysis, in conjunction with the legislative history and Section 716(j), as an outright rejection of the finding in the

Section 255 Report and Order

to require covered entities to consider the accessibility of every product. On the other hand, the RERC-IT states that “if every function of a particular device can achievably be made accessible to every disability, every function should be made accessible.” We question whether any of these proposed interpretations appropriately take into account the more balanced approach contemplated by Congress, which gives equal weight to each of the four achievability factors and applies them on a flexible, case-by-case basis. We do, however, generally agree with TIA that this factor should be interpreted to “give individuals with disabilities meaningful choices in accessible products, and to reward those companies who provide such choices.” While section 716's flexible approach is not amenable to the fixed number or percentage approach the Commission has employed in the HAC context, section 716(g)(4) seems to require that where a company has made a good faith effort to incorporate accessibility features in different products across multiple product lines, this should count favorably toward a determination that the company is in compliance with section 716 for the product in question. Where companies offer a range of accessible products that perform different functions at varied price points, consumers with disabilities will have a range of devices from which to make their purchases. In those instances, so long as other criteria under the achievability analysis are met, a company charged with having an inaccessible product might not have to make that specific product accessible. This approach would appropriately reward companies that make substantial investments in accessible products, while allowing flexibility to account for marketplace realities.

76. Accordingly, we seek comment on whether covered entities generally should not have to 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. At the same time, we also seek comment on whether there are some accessibility features that are so important or easy to include (like a “nib” on the 5 key) that they should be deployed on every product, unless it is not achievable to do so. If so, we seek comment on whether we should identify in our rules some of these specific accessibility features that are currently available, to provide clarity on what accessibility features should be universally deployed, if achievable. We further express our general belief that section 716(j), does not preclude our identifying “easy” accessibility features that must be included on every product, if achievable. While the Senate Report did not address this specific provision, our belief is confirmed by the House Report, which states that the Commission's approach to section 255 is consistent with section 716(j). Finally, we seek comment on whether we should define with more specificity the meaning of “varying degrees of functionality and features” and “differing price points.” In particular, we seek comment on ACB's assertion that “[i]t is essential that manufacturers and service providers make available a range of devices that fit various price ranges along with corresponding accessible features * * * this may be accomplished by dividing devices into classes and making certain that each class has at least one option that is fully accessible.”

2. Industry Flexibility

77. Sections 716(a)(2) and (b)(2) of the Act provide manufacturers and service providers, respectively, flexibility on how to ensure compliance with the accessibility requirements of the CVAA. Specifically, a manufacturer or service provider may comply with these requirements either by building accessibility features into the equipment or service or “by relying on third party applications, peripheral devices, software, hardware, or [CPE] that is available to consumers at nominal cost and that can be accessed by people with disabilities.” While the Senate Report did not discuss these provisions, the House Report makes clear that the choice between these two options “rests solely with the provider or manufacturer.” We believe that the statutory language and legislative history preclude us from preferring built-in accessibility over third party accessibility solutions, as some consumer commenters urge us to do. We acknowledge the integral role that universal design has played in ensuring that mainstream products and services are accessible to people with disabilities, and we believe that universal design will continue to play an important role in providing accessibility to people with disabilities. We believe, however, that the industry flexibility provisions of the CVAA reflect the fact that there are new ways

to meet the needs of people with disabilities that were not envisioned when Congress passed section 255, which relied primarily on universal design principles. With new and innovative technologies, in some cases, personalized services and products may now be able to more efficiently and effectively meet individual needs than products built to perform in the same way for every person. Sometimes called “auto-personalization,” where available, this allows devices to adapt to individual needs based on the user's preferences, according to the device's capabilities. In a growing and increasingly mobile computing environment, for example, consumers may be able to set their preferences so that the interfaces on a device or the content produced by that device automatically become accessible for that individual's disability needs.

78. We do, however, seek comment on what actions we should take to ensure that third party accessibility solutions meet the needs of consumers in a manner comparable to solutions that are built into the equipment. First, we seek comment on the meaning of the requirement that the third party accessibility solutions “must be available to the consumer at nominal cost.” Some commenters assert that “nominal cost” cannot be a static definition or constitute a set amount or percentage of total cost, but rather should be determined on a case-by-case basis. In contrast, the RERC-IT, noting that people with disabilities are “poor at alarming rates,” urges the Commission to limit “nominal cost” at to one percent (1%) of the total cost of the device or service, or the total cost of the device plus service, as applicable. AFB notes further that ongoing costs to keep third party software and hardware up to date and in good working order should be included, such that the total cost to the consumer cannot be more than nominal. While Congress did not prescribe a percentage or amount, it did intend 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 propose to adopt this definition of “nominal cost” and seek comment on this proposed definition. We are concerned, however, that this definition, by itself, might not ensure that the cost of accessibility for the consumer is truly nominal, and we seek comment on whether we need to provide further guidance on the issue.

79. We believe that manufacturers and service providers can rely on a range of third party solutions, subject to the requirements that we discuss further below, including the use of third party applications, peripheral devices, software, hardware, and CPE. We propose to adopt the following definitions of these potential third party accessibility solutions:

(a) “Applications” means “computer software designed to perform or to help the user perform a specific task or specific tasks, such as communicating by voice, electronic text messaging, or video conferencing”;

(b) “Peripheral devices” means “devices employed in connection with equipment covered by this [proceeding] to translate, enhance, or otherwise transfer advanced communications services into a form accessible to individuals with disabilities”;

(c) “Software” means “computer programs, procedures, rules, and related data and documentation that direct the use and operation of a computer or a related device and instruct it to perform a given task or function”;

(d) “Hardware” means “a tangible communications device, equipment, or physical component of communications technology, including peripheral devices, such as a smart phone, a laptop computer, a desk top computer, a screen, a keyboard, a speaker, or an amplifier”; and

(e) “Customer premises equipment” means “equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications.”

We seek comment on these definitions and whether they are sufficiently inclusive of third party solutions available to manufacturers and service providers.

80. Second, we seek comment on the requirement that individuals with disabilities must be able to “access” the third-party solutions. Specifically, we seek comment on ACB's assertions that the third party solutions (i) “cannot be an after-market sale for which the user must perform additional steps to obtain;” (ii) “must be fully operable by a person with a disability without having to turn to people without disabilities in order to perform setup or maintenance;” and (iii) “must be fully documented and supported.” We believe that for covered entities to meet the “access” requirement of this provision, they must ensure that the third party solution not be more burdensome to a consumer than a built-in solution. In that vein, should a service provider or manufacturer relying on third party solutions be responsible for finding and installing the solution, and supporting the solution over the life of the product? We seek comment on this analysis, on what a company must do to achieve such parity with built-in solutions, and on whether it is necessary to require that covered entities bundle the third party solutions with its products in order to meet the requirements of the statute.

3. Accessible to and Usable by

81. Under sections 716(a) and (b) of the Act, covered service providers and equipment manufacturers must make their products “accessible to and usable by” people with disabilities, unless it is not achievable. In this section, we seek comment on the extent to which we should continue to define “accessible to and usable by” as we have for our implementation of section 255, which requires telecommunications service providers and equipment manufacturers to make their products “accessible to and usable by” people with disabilities, if readily achievable.

82. In the

Section 255 Report and Order,

the Commission adopted a definition of “accessible” in § 6.3(a) of the Commission's rules which incorporated the functional definition of this term from the Access Board guidelines and includes various input, control, and mechanical functions, output, display, and control functions. The

Section 255 Report and Order

also adopted a definition of “usable” in § 6.3 that incorporated the Access Board's definition of this term. Specifically, § 6.3(l) provides that usable “mean[s] that individuals with disabilities have access to the full functionality and documentation for the product, including instructions, product information (including accessible feature information), documentation, and technical support functionally equivalent to that provided to individuals without disabilities.”

83. We seek comment on whether we should adopt these definitions for purposes of section 716 or whether we should take this opportunity to make changes to these definitions that would apply to both our section 255 of the Communications Act and our section 716 of the CVAA based on the Access Board Draft Guidelines that were released for public comment in March 2010. While we note that there is a great deal of overlap between section 255's definition of “accessible” and the Access Board's proposed updated functional criteria for ICT, there are some differences. To the extent that there are differences between these definitions and criteria, should we work to reconcile those differences? For example, the rules implementing section 255 of the Act address cognitive disabilities whereas the draft ICT guidelines do not; and the draft ICT guidelines address photosensitive seizures, whereas the rules implementing section 255 of the Act do not. In addition, we note that the Access

Board Draft Guidelines on “usability” are broader and more detailed than the rules implementing section 255 of the Act. The Access Board Draft Guidelines, for example, cover training and alternate methods of communication.

4. Disability

84. 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 * * *.” Our current rules incorporate this definition of disability, and we propose to use that definition in our section 716 rules.

5. Compatibility

85. Under section 716(c) of the Act, whenever accessibility is not achievable either by building in access features or using third party accessibility solutions as set forth in sections 716(a) and (b), a manufacturer or service provider must “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 that is not achievable. Section 255 of the Act contains a similar compatibility requirement for telecommunications service providers and manufacturers if it is readily achievable to do so, in cases where built-in accessibility is not readily achievable.

86. Our rules implementing section 255 of the Act define peripheral devices to mean “devices employed in connection with equipment covered by this part to translate, enhance or otherwise transform telecommunications into a form accessible to individuals with disabilities.” We stated in the

Section 255 Report and Order

that these might include “audio amplifiers, ring signal lights, some TTYs, refreshable Braille translators, [and] text-to-speech synthesizers.” Our rules implementing section 255 of the Act define specialized CPE as customer premises equipment that is commonly used by individuals with disabilities to achieve access.

87. For purposes of section 716, we propose to define peripheral devices to mean “devices employed in connection with equipment, including software, covered under this part to translate, enhance, or otherwise transform advanced communications services into a form accessible to individuals with disabilities.” This definition is based on our section 255 definition, with some refinements to reflect the statutory language in section 716. We also propose to define specialized CPE, as we do in our rules implementing section 255 of the Act, as “customer premises equipment which is commonly used by individuals with disabilities to achieve access.” 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.” As we found in the

Section 255 Report and Order,

we do not believe that it would be feasible for the Commission to maintain a list of peripheral devices and specialized CPE commonly used by individuals with disabilities, given how quickly technology is evolving. For the same reason, we also believe that covered entities do not have a duty to maintain a list of all peripheral devices and specialized CPE used by people with disabilities. We do believe, however, 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). We seek comment on these proposed definitions.

88. We also seek additional comment on what should be required to ensure compatibility in the context of advanced communications services. Under our rules implementing section 255 of the Act, we use four criteria 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. We seek comment on whether the four criteria listed above remain relevant in the context of advanced communications services. For example, we understand that a sizeable majority of consumers who previously relied on TTYs for communication are transitioning to more mainstream forms of text and video communications. If we want to encourage an efficient transition, should we phase out the third and fourth criteria as compatibility components in our section 716 rules? Should we phase out the criteria from our rules implementing section 255 of the Act as well? If so, should we ensure that these requirements are phased out only after alternative forms of communication, such as real-time text, are in place?

89. While the Access Board Draft Guidelines address compatibility primarily with content providers in mind, they may still be helpful in defining what “compatible” should mean as we update our accessibility rules. The Access Board Draft Guidelines define compatibility to be the “interaction between assistive technology, other applications, content, and the platform,” as well as the preservation of accessibility in alternate formats. We seek further comment on whether and how we should use the Access Board Draft Guidelines to help us define compatibility for purposes of section 716.

90. We also seek comment on whether we should adopt additional criteria for determining compatibility under section 716 and section 255. The Access Board Draft Guidelines note that accessibility programming interfaces (“APIs”) enable interoperability with assistive technology. Code Factory explains, for example, that it is better able to develop a screen reader application if “manufacturers and operating system developers develop an Accessibility API, which is essentially a layer between the device user interface and the screen reader that can be used to pull information that must be spoken to the user.” The Access Board Draft Guidelines direct platforms, applications, and interactive content to comply with World Wide Web Consortium's Web Content Accessibility Guidelines (WCAG) 2.0 Level AA Success Criteria and Conformance Requirements or to comply with specific accessibility criteria in Chapter 4 of the Access Board Draft Guidelines. Are there aspects of the WCAG guidelines or Access Board criteria that we should incorporate into our definition of compatibility? We also seek comment on the status of industry development of APIs and whether incorporating criteria related to APIs into our definition of compatibility could promote the development of APIs.

6. Network Features

91. Under 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.” In the October public notice, the Bureaus sought comment on how this provision compares to a similar provision in section 251(a)(2) of the Act (relating to section 255) and whether the

requirement has a different meaning in the context of advanced communications services networks.

92. We agree with commenters who generally believe that this duty not to impede accessibility is comparable to the duty set forth in section 251(a)(2) of the Act. We propose that our rules should include the requirements set forth in section 716(d), just as our rules implementing section 255 of the Act reflect the language in section 251(a)(2). We also agree with Verizon and AAPD, who stress that section 716(d) applies to a much broader range of providers, and seek comment on how we can best reach out to newly covered entities and ensure that they are aware of their new responsibilities.

93. We note that both the Senate and House Reports state that the obligations imposed by section 716(d) “apply where the accessibility or usability of advanced communications services were incorporated in accordance with recognized industry standards.” CTIA states that until the Commission identifies and requires the use of industry-recognized standards, it should “refrain from enforcing these obligations on network providers.” We seek comment on CTIA's assertion and on what industry standards currently exist that can be used to incorporate accessibility or usability in advanced communications services. We also seek comment on what, if any, industry standards should be developed to incorporate accessibility or usability in advanced communications services and how these standards should be developed.

94. In addition, we seek comment on assertions by the RERC-IT that our rules should prohibit “passive inaction or setting of options * * * that impede access.” We also seek comment on AFB's statement that under this provision “digital rights management or network security features or functions must * * * be installed so as not to impede accessibility.” Finally, we seek comment on CTIA's assertion that “any rules seeking to limit the incorporation of any network features or functions recognize the need for covered entities to manage all network traffic, including advanced communications services.”

7. Accessibility of Information Content

95. Section 716(e)(1)(B) of the Act states that the Commission's regulations shall “provide that advanced communications services, the equipment used for advanced communications services, 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].” In the October public notice, the Bureaus sought comment on how this provision should be implemented and the types and nature of information content that should be addressed. We note that the legislative history of the CVAA makes clear that the requirements apply “where the accessibility of such content has been incorporated in accordance with recognized industry standards.”

96. We seek further comment on what these standards should be and how they should be developed and reflected in the Commission's rules, subject to the limitation on mandating technical standards in section 716(1)(D). In particular, we seek comment on the RERC-IT proposal that our regulations need to ensure that (i) “the accessibility information (

e.g.,

captions or descriptions) are not stripped off when information is transitioned from one medium to another;” (ii) “parallel and associated media channels are not disconnected or blocked;” and (iii) “consumers * * * have the ability to combine text, video, and audio streaming from different origins.” We also seek comment on how we can best ensure that encryption and other security measures do not thwart accessibility, while at the same time ensuring that we “promot[e] network security, reliability, and survivability in broadband networks.”

97. We also note that the Access Board Draft Guidelines require content, which includes “information and sensory experience communicated to the user and encoding that defines the structure, presentation, and interactions associated with those elements” to be accessible. The Draft Guidelines provide text, images, sounds, videos, controls, and animations as examples of content and encourage, as a best practice, the maximization of compatibility of content with existing and future technologies, including assistive technology. The Draft Guidelines also require user interfaces and their functions to be accessible. For example, under these Draft Guidelines, advanced communications services, equipment, and networks cannot strip captions that make content accessible to people who are deaf or hard of hearing from content that provides closed captioning. We seek comment on whether all or some of these Draft Guidelines would be appropriate for industry-recognized standards or inclusion in the Commission's rules.

98. Finally, we agree with CEA that, consistent with the legislation's liability limitations, that 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. We seek comment on this assessment.

IV. Implementation Requirements

A. Obligations

99. 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 seek comment and make proposals relating to the obligations of manufacturers and service providers and ask further questions about the obligations of providers of applications or services accessed over service provider networks.

1. Manufacturers and Service Providers

100. With respect to equipment manufacturers and service providers of ACS, we propose to adopt general obligations that mirror the language of the statute, similar to the approach taken in §§ 6.5 and 7.5 of our rules and section 255 of the Communications Act. Specifically, we propose that the Commission's rules set forth the following “General Obligations”:

○ 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 in or using third party accessibility solutions, 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.

101. In addition, we propose to adopt requirements similar to those in our rules implementing section 255 of the Act regarding product design, development, and evaluation (§§ 6.7 and 7.7); information pass through (§§ 6.9 and 7.9); and information, documentation and training (§§ 6.11 and 7.11), modified to reflect the statutory requirements of section 716. Consistent with the

Section 255 Report and Order,

we find that adoption of the functional approach reflected in such requirements will provide clear guidance to covered entities regarding their obligation to ensure accessibility and usability. Some key requirements of these proposed rules include the following:

○ 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, including end user equipment, network equipment, and software 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.

○ 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.

102. We seek comment on these proposed obligations for equipment manufacturers and service providers of ACS. In particular, we seek comment on whether we should adopt additional obligations or make modifications to our proposals.

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

103. We also seek comment on what, if any, obligations we should impose on “providers of applications or services accessed over service provider networks.” Are there any requirements that we should impose on these providers in order to ensure that the statutory mandates of section 716 are carried out? We also seek comment on the meaning of “accessed over service provider networks.” How does this apply to applications and services that are downloaded and then run as either native or web applications on the device? How does this apply to applications and services accessed through cloud computing?

B. Performance Objectives

104. Section 716(e)(1)(A) of the Act provides that in prescribing regulations for this section, the Commission shall “include performance objectives to ensure the accessibility, usability, and compatibility of advanced communications services and the equipment used for advanced communications services by individuals with disabilities.” In the October public notice, the Bureaus sought comment on how to interpret this provision, including the extent to which these objectives should be specific or general. The October public notice also sought comment on the usefulness of the Access Board's March 2010 draft standards and guidelines on section 508 of the Rehabilitation Act.

105. We agree with the broad range of commenters who stress the importance of having performance objectives that would clearly define the outcome needed to be achieved without specifying how these ends should be accomplished. More specifically, we agree with those commenters who suggest that we incorporate into the performance objectives the outcome-oriented definitions of “accessible,” “compatibility,” and “usable” from §§ 6.3 and 7.3 of the Commission's rules. We propose to adopt these definitions as performance objectives subject to any changes that we make to these definitions as part of this proceeding. We also agree with the IT and Telecom RERCs that “performance standards must * * * be testable, concrete, and enforceable” and seek further comment about how we can accomplish these objectives. We disagree with ITI's suggestion that performance objectives be merely “aspirational.”

106. We seek additional comment on whether to adopt more specific performance objectives, and on the procedures and timelines that we should use to develop these objectives. While as a general matter it may be desirable to harmonize the Commission's rules with the Access Board Guidelines after the Access Board finalizes its Guidelines, we seek comment on what parts of the Access Board Draft Guidelines may be useful to us if we develop specific performance objectives in the interim. We also seek comment on AT&T's assertion that “the specific functionalities and standards mandated by section 508 [for government purchases of technology] * * * may not be appropriate in all circumstances for industry wide, mass market application contemplated by section 716.” In which instances would the Access Board standards not be appropriate for mass market application? In which areas might they be particularly instructive?

107. We also propose to update our performance objectives, as appropriate, after the Emergency Access Advisory Committee (“EAAC”), which was established pursuant to section 106 of the CVAA, provides its recommendations to the Commission in December 2011. The EAAC, among other things, is considering “what actions are necessary as part of the migration to a national Internet protocol-enabled network to achieve reliable, interoperable communication transmitted over such network that will ensure access to emergency services by individuals with disabilities.” We express our general belief that achieving reliable, interoperable communication over IP-enabled networks will have applicability outside the emergency access context and may be relevant to developing performance objectives under section 716 for advanced communications services and equipment used for these services. We note as well that the Access Board Draft Guidelines contain a proposal for real time text requirements for hardware and software whenever real-time voice is supported, further supporting the need to move forward with the recommendation in our National Broadband Plan to consider a standard for reliable and interoperable real-time text any time that VoIP is available and supported.

108. With respect to interoperable video conferencing services, we seek input on what performance objectives or rules need to be established to ensure that, where achievable, interoperable

video conferencing services and equipment are accessible to and usable by, individuals with disabilities, such as individuals who are blind, have a visual impairment, have limited manual dexterity, or who are deaf, hard of hearing, or deaf-blind. We also seek comment on whether and to what extent we have the authority to adopt industry-wide performance objectives that would set objectives for covered entities collectively. We recognize, for example, that no single entity working alone, can ensure that video conferencing services (or other advanced communications services) are interoperable. If we were to interpret section 716 to require interoperability among all video conferencing services, what industry-wide performance objectives are needed to achieve and ensure such interoperability so that consumers are able to make point-to-point calls using different video conferencing services and equipment? We also seek comments on what performance objectives are needed to address concerns expressed by consumers about the general inability of current video conferencing services to connect to VRS in a manner that achieves functional equivalency with conventional voice telephone services. In this regard, Consumer Groups urge that mainstream video conferencing equipment and services be required to “comply with standards, such as requisite resolution and frame-rate, to support real-time video conferencing used for VRS, remote video interpreting, and point-to-point communication.” We note that the Access Board Draft Guidelines on section 508 propose that products used to transmit video conversations provide sufficient quality and fluidity for real-time video conversation in which at least one party is using a visual method of communication, such as sign language.

109. It appears that video conferencing equipment now available off-the-shelf to the general public does not match the capabilities of proprietary equipment offered by VRS providers in other ways as well. First, although our VRS rules require ten-digit numbering capability on VRS-provided video equipment—to enable the owners of such equipment to make point-to-point calls to one another—this capability does not presently exist in video conferencing equipment such as off-the-shelf videophones. Consumer Groups urge that the North American Numbering Plan (“NANP”) 10-digit telephone number system be “adopted and/or adapted by [mainstream] video conferencing equipment and service providers to make their systems interoperable with other systems and users, including VRS users.” Finally, we note, that while not yet universal, Consumer Groups envision multipoint control unit (MCU) capability in video conferencing services when VRS is provided so that all parties to the call can see the VRS communications assistant and each other simultaneously. We therefore seek comment on performance objectives for mainstream interoperable video conferencing services and equipment to address multiple video conferencing needs by people with disabilities, including the need for point-to-point calls where at least one party is using a visual method of communication, such as sign language; for functionally equivalent VRS; for multi-party conferencing via MCUs; for ten-digit numbering (or an alternative means of identifying and contacting one another); for effective emergency access; and for the delivery of video remote interpreting services.

110. We also seek comment on whether industry or the Commission should establish a working group of diverse stakeholders to address the interoperability issues relating to video conferencing services and equipment. If so, should the goals be focused on ensuring interoperability among the largest service providers and equipment manufacturers? How can we ensure that new entrants and software application developers would be fully represented in such a process? We ask commenters to set forth in detail the goals of such a group, which stakeholders should be included, the specific issues that such a working group should consider, and a timeline for completion of its work. We further ask whether such group should be part of the Commission's Consumer Advisory Committee, or be a stand-alone entity. Finally, we seek comment on what industry efforts are ongoing to address interoperability challenges and the degree to which such efforts have been effective.

111. Finally, we note that the comments to the October public notice contain relatively little discussion of “electronic messaging services” and “non-interconnected VoIP services.” We seek further comment about the specific accessibility concerns relating to these services and whether we should adopt specific performance objectives to address these concerns. We also seek comment on whether it would be appropriate to establish a working group of diverse stakeholders to provide recommendations related to such performance objectives.

V. Industry Guidance

A. Safe Harbors

112. Section 716(e)(1)(D) of the Act provides that the Commission “shall * * * not mandate technical standards, except that the Commission may adopt technical standards as a safe harbor for such compliance if necessary to facilitate the manufacturers' and service providers' compliance” with the accessibility and compatibility requirements in section 716. In the October public notice, we sought comment on whether we should adopt safe harbor technical standards.

113. The vast majority of commenters oppose establishing technical standards as safe harbors. CTIA and AT&T assert that safe harbors will result in

de facto

standards being imposed that will limit the flexibility of covered entities seeking to provide accessibility. The IT and Telecom RERCs state that the Commission's rules should not include safe harbors because “technology, including accessibility technology, will develop faster than law can keep up.” AFB asserts that it is too early in the CVAA's implementation “to make informed judgments * * * about whether and which safe harbors should be available.” While ITI supports safe harbors, noting they provide clarity and predictability, it warns against using safe harbors “to establish implicit mandates [that] * * * lock in particular solutions.” In light of the concerns raised in the record, we agree with AFB that it is too early in the implementation of the CVAA to make informed judgments about whether safe harbor technical standards should be established. Therefore, we propose not to adopt any technical standards as safe harbors at this time. We seek comment on this proposal.

B. Prospective Guidelines

114. Section 716(e)(2) of the Act requires the Commission to issue prospective guidelines concerning the new accessibility requirements. While the Senate Report did not discuss this provision, the House Report notes that such guidance “makes it easier for industry to gauge what is necessary to fulfill the requirements” by providing industry with “as much certainty as possible regarding how the Commission will determine compliance with any new obligations.”

115. We agree with CTIA that the prospective guidelines that we adopt must be clear and understandable and provide service providers and manufacturers as much flexibility as possible, so long as achievable accessibility requirements are satisfied.

We seek comment on a proposal by the RERC-IT, endorsed by ACB, that we use “an approach to the guidelines similar to that used by the World Wide Web Consortium's Web Content Accessibility Guidelines (WCAG), which provide mandatory performance-based standards and non-mandatory technology-specific techniques for meeting them.” We also seek comment on whether any parts of the Access Board's Draft Guidelines on section 508 of the Rehabilitation Act should be adopted as prospective guidelines. In addition, we seek comment on the process that should be used to develop prospective guidelines and to ensure that a diverse and broadly-based group of stakeholders participate in such an effort. Should the Commission, for example, establish a consumer-industry advisory group to prepare these?

VI. Section 717 Recordkeeping and Enforcement

A. Overview

116. Section 717(a) of the Act requires the Commission to establish new recordkeeping and enforcement procedures for “manufacturers and providers subject to [sections 255, 716, and 718.]” In the October public notice, the Bureaus sought comment on these requirements, including the types of records that should be maintained and the possible enforcement procedures that should be imposed. We will discuss the recordkeeping and enforcement requirements in further detail below, including a proposal to amend the existing rules implementing section 255 of the Act and to add a new rule subpart to implement the requirements of section 717. For purposes of our discussion below, we propose to apply the section 717 requirements to manufacturers of equipment used for telecommunications services, interconnected VoIP, voicemail and interactive menu services subject to section 255 of the Act; manufacturers of equipment used for ACS subject to section 716; and manufacturers of telephones used with public mobile services which include an Internet browser, subject to section 718. We also propose to apply the section 717 requirements to providers of telecommunications services, interconnected VoIP services, voicemail or interactive menu services subject to section 255 of the Act; providers of ACS subject to section 716; and providers of mobile services who arrange for the inclusion of a browser in telephones, subject to section 718. Finally, we reiterate our proposal to subject providers of applications and services that can be used for ACS and that can be accessed (

i.e.,

downloaded or run) by users over other service provider networks to the requirements of section 716 and thus by extension cover them under section 717. We seek comment on these proposals.

B. Recordkeeping

117. Beginning one year after the effective date of regulations promulgated pursuant to section 716(e), each manufacturer and provider subject to sections 255, 716, and 718 must maintain, in the ordinary course of business and for a reasonable period, records of the efforts taken by such manufacturer or provider to implement sections 255, 716, and 718, including: (1) Information about the manufacturer's or provider's efforts to consult with individuals with disabilities; (2) descriptions of the accessibility features of its products and services; and (3) information about the compatibility of such products and services with peripheral devices or specialized customer premise equipment commonly used by individuals with disabilities to achieve access. Section 717 also requires an officer of a manufacturer or provider to submit to the Commission an annual certification that records are being kept in accordance with this provision. Section 717 also states that “[a]fter the filing of a formal or informal complaint against a manufacturer or provider, the Commission may request, and shall keep confidential, a copy of the records maintained by such manufacturer or provider pursuant to [this section] that are directly relevant to the equipment or service that is the subject of such complaint.” We seek comment on how to implement these statutory requirements and solicit specific input below.

118. Some commenter urge the Commission to refrain from making the recordkeeping requirements overly burdensome, unnecessarily expensive, or repetitive of the information required by existing reports. Motorola notes that it and some covered entities already publicly provide some of the information required by Section 717, including information regarding accessibility features, consultations with individuals with disabilities, and compatibility with third party peripherals submitted in existing Commission reports, such as those required for compliance with our HAC rules. CEA also states that “outreach to individuals with disabilities either directly or indirectly through standards development organizations” should be sufficient to demonstrate a company's compliance with Section 717's requirement to document efforts to consult with individuals with disabilities. Additionally, CEA points out that some of the required information may be reflected in information provided to the clearinghouse that will be established under the CVAA.

119. We note, however, that section 717 requires the Commission to establish uniform recordkeeping and enforcement procedures for entities subject to sections 255, 716, and 718. While some of these records that section 717 requires to be kept and, potentially, produced may be available publicly, in other reports or submissions made to the Commission or Bureau, or in information submitted to a clearinghouse, most of the information required by this section is not required in existing Commission reports and it is not clear to what extent this will be available in public information.

120. While we agree that we should avoid imposing excessive burdens or requiring the same information multiple times, we also seek to ensure that specific and relevant records required by the statute are appropriately maintained by manufacturers and providers. In light of the range of potential complaints that may be filed against covered entities under the CVAA and section 255, we seek comment on how the Commission should effectively implement section 717's recordkeeping requirements without imposing excessive burden or expense on covered entities or requiring multiple submissions of the same records to the Commission.

121. Section 717 appears to give the Commission the discretion to expand the recordkeeping requirements beyond the three categories specifically set forth in subsection (a)(5)(A) to “records of the efforts taken by such manufacturer or provider to implement” these Sections. We seek comment on whether the Commission should require covered entities to maintain and, potentially, produce records to demonstrate their compliance with the provisions of section 255 and similarly structured requirements in section 716. We also seek comment on what constitutes a “reasonable time period” during which covered entities will be required to maintain these records. Should we require covered entities to create and maintain records showing their compliance with the general obligation requirements as well as the requirements of product design, development, and evaluation, information pass through, and information, documentation, and training? For example, should we

require covered entities to create and maintain records demonstrating the process they have used to assess whether it is achievable to make particular products and services accessible and usable by persons with disabilities? What kinds of records would be sufficient to demonstrate such compliance? We also seek comment on whether the Commission should require these or any other types of records to demonstrate covered entities' compliance with section 255.

122. Many comments on the recordkeeping requirement request that the Commission adopt a flexible approach to section 717's recordkeeping requirement that recognizes the differences in size and scope of covered entities and their communications services or manufacturing operations, instead of requiring a specific form of documentation. Verizon recommends that the Alliance for Telecommunications Industry Solutions (ATIS) or a similar organization develop a standard recordkeeping form that could be used to satisfy this requirement. While ATIS, on behalf of AISP.4-HAC, expresses a preference for flexible recordkeeping requirements, ATIS also supports Verizon's suggestion that industry and consumers should work together to develop a mutually agreeable form in the event the Commission decides to adopt a standardized approach. CTIA specifically requests that the Commission allow records to be kept electronically. TIA suggests that the Commission should “provide some non-exclusive guidance concerning the type of information that would be responsive to the statutory recordkeeping criteria” without precluding flexibility in the form in which those records may be kept. We seek comment on these recommendations.

123. We recognize that section 717 applies to a broad range of entities that have widely ranging business models and modes of operation. Therefore, consistent with some commenters' suggestions, we propose that we should not mandate any one form in which records must be kept in order to comply with section 717. We also propose that if a record (that the Commission requires be produced after receipt of a complaint) is not readily available, the covered entity must provide it no later than the date of its response to the complaint. We seek comment on these proposals and on whether there is any reason for the Commission to mandate a standard form of recordkeeping to comply with section 717(a)(5) or to require covered entities to submit publicly available records or those the Commission already has in another report or submission. While we cannot predict what the nature of consumers' complaints will be or provide specific guidance as to what information will be responsive to those complaints, we propose, as discussed more fully below, to require each response to a filed complaint to sufficiently describe how each record submitted is relevant to the complaint and the alleged violation, and how the provided record establishes the covered entity's compliance with the Act. Finally, given that the statute provides that recordkeeping requirements do not take effect until one year after the effective date of regulations promulgated pursuant to section 716(e), we seek comment regarding whether, and if so, in what fashion, the Commission should address this transition period, particularly for the purposes of enforcement.

C. Enforcement

1. Background

124. Section 717 requires the Commission to adopt rules that facilitate the filing of formal and informal complaints that allege a violation of section 255, 716, or 718 and to establish procedures for enforcement actions by the Commission with respect to such violations, within one year of enactment of the law. In this section, we seek comment on specific procedures to implement these requirements and propose rules to consolidate the existing enforcement provisions for section 255 with the newly proposed enforcement rules for alleged violations of sections 716 and 718.

a. Enforcement of Section 255

125. In the rules adopted in the

Section 255 Report and Order,

the Commission provided form and content requirements for informal and formal complaints alleging a violation of section 255, as well as review and disposition procedures. In particular, the Commission established specific elements to be included in any informal complaint alleging a violation of section 255 of the Act as well as the form and content for answers to such complaints. These rules provide that if the Commission determines that an informal complaint has been satisfied based on the defendant's answer, or from other communications with the parties, the Commission may, at its discretion, consider the informal complaint closed, without providing a response to the complainant or defendant. Additionally, the Commission may close the informal complaint if it determines that no further action is necessary based on the complaint and answer, and will then duly inform the complainant and the defendant of the reasons stated above. If, however, the Commission, based on the pleadings, determines that a material and substantial question remains as to a defendant's compliance with the section 255 requirements and the Commission's implementing rules, the Commission may conduct further investigation or proceedings as necessary to determine whether the defendant has violated any legal requirements, as well as whether any remedial actions and/or sanctions are warranted. If the Commission determines that a defendant has failed to comply with section 255 and its implementing rules, the Commission can order such remedial action or sanctions as are authorized by the Act and the rules as it deems appropriate. Aside from its complaint procedures, the Commission may, on its own motion, conduct inquiries and initiate proceedings as necessary to enforce the relevant requirements.

b. Section 717 Enforcement Requirements

126. As discussed above, section 717 requires the Commission within one year after the date of enactment of the CVAA to establish regulations that facilitate the filing of formal and informal complaints that allege a violation of section 255, 716, or 718, and to establish procedures for enforcement actions.

127. Specifically, the CVAA requires the Commission to establish separate and identifiable electronic, telephonic, and physical receptacles for the receipt of complaints filed under section 255, 716 or 718 as well as establish a process for filing and receiving formal or informal complaints. Further, the CVAA requires the Commission to investigate the allegations in an informal complaint and, within 180 days after the date on which such complaint was filed with the Commission, issue an order concluding the investigation and provide an explanation for its conclusion, unless such complaint is resolved before such time. If the Commission determines that a violation has occurred, the Commission may, in the order or in a subsequent order, direct the manufacturer or service provider to bring the service, or in the case of a manufacturer, the next generation of the equipment or device, into compliance with requirements of those sections within a reasonable time established by the Commission in its order. If a determination is made that a violation has not occurred, the Commission must provide the basis for

such determination. The statute also provides that before the Commission makes a determination, the party that is the subject of the complaint shall have a reasonable opportunity to respond to such complaint, and may include in its response any factors that are relevant to such determination. Before issuing a final order, the Commission is required to provide the responding party a reasonable opportunity to comment on any proposed remedial action.

2. General Requirements

128.

Pre-Filing Notice.

We seek comment on whether the Commission should require potential complainants to first notify the defendant manufacturer or provider that it intends to file a complaint based on an alleged violation of one or more provisions of section 255, 716, or 718. We note that some parties have suggested that such a pre-filing notice can potentially foster greater communication among parties. While we agree that such a requirement could lead to a more efficient resolution in advance of a complaint in some instances, we are also concerned that in other cases, such a requirement could prove burdensome to consumers and delay resolution of complaints. In the

Section 255 Report and Order,

consistent with an Access Board recommendation, we encouraged consumers to express their concerns informally to the manufacturer or service provider before filing a complaint with the Commission. We declined, however, to adopt a rule requiring consumers to contact manufacturers and service providers before they could file a complaint with the Commission, finding that our informal complaint process is “geared toward cooperative efforts.” We seek comment on whether such an approach is sufficient or whether a specific requirement is necessary. To the extent that commenters advocate that we require that consumers notify manufacturers or providers before they file a complaint, we seek comment on specific safeguards that we should adopt to ensure that this requirement does not prove onerous to the consumers.

129.

Receipt and Filing of Complaints.

We seek comment on how the Commission should establish separate and identifiable electronic, telephonic, and physical receptacles for the receipt of complaints, both formal and informal. We note that the Commission's Disability Rights Office has already established a new phone number (202-418-2517(V); (202-418-2922 (TTY) and e-mail address (

dro@fcc.gov

) for this purpose. We also note that currently, informal complaints alleging a violation of section 255 may be transmitted to the Commission via any reasonable means,

e.g.,

letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording, and Braille. We propose to retain these vehicles as means for transmission and receipt of informal complaints by the Commission under sections 255, 716 and 718 and ask commenters to consider whether additional methods are necessary to meet this statutory requirement. Similarly, as discussed more fully below, we seek comment on the extent to which we should retain or revise our current requirements under section 255 governing formal complaints that are filed for alleged violations by manufacturers and providers under sections 255, as well as sections 716 and 718, in the future. At present, these procedures are consistent with §§ 1.720-1.736 of the Commission's rules. If we make changes to facilitate the filing of informal complaints, but continue to apply our procedures for formal complaints largely in their current form to the new ACS sections (as well as maintain these procedures for section 255), will this be enough to fulfill Congress's intent to facilitate the filing of complaints under these sections? We note that since our rules implementing section 255 of the Act went into effect in 1999, the Commission has received only three formal complaints alleging violations of that section.

130.

Standing to File.

We received comments requesting that the Commission establish “reasonable” standing requirements. We note that the CVAA allows “any person alleging a violation” of the CVAA or the implementing rules to file a formal or informal complaint under section 255, 716, or 718. Given that there is no standing requirement under these sections, and there is no standing requirement under either section 208 of the Act and our existing complaint rules, we decline to propose a standing requirement and believe the minimum content requirements we propose

infra

in sections VI.C.3 and VI.C.4 will effectively deter frivolous complaint filings.

131.

Sua sponte actions by the Commission.

As noted above, the Commission's implementing rules for section 255 explicitly state that the agency may, on its own motion, conduct inquiries and proceedings as necessary to enforce the requirements of its implementing rules and that section of the Act. We intend for the Commission and its staff to continue to investigate and take action on our own motion when compliance issues or problems involving sections 255, 716 and 718 come to our attention through an accessibility-related complaint or otherwise. Rather than establishing specific guidelines for initiating investigations and other enforcement actions on the Commission's own motion, we propose to continue to follow existing protocols, and use procedures that in the opinion of the Commission best serve the purposes of Commission- and staff-initiated inquiries and proceedings. We seek comment on this approach.

132.

Remedies and Sanctions.

We seek comment on what remedies and other sanctions the Commission should consider for violations found to have occurred under section 255, 716 or 718. As a preliminary matter, as noted above, we observe that section 717(a)(3)(B) specifically authorizes the Commission to impose as a remedy for any violation an order directing a manufacturer to bring the next generation of its equipment or device, and a service provider to bring its service, into compliance within a reasonable period of time. We also observe that section 718(c) envisions that we will continue to use our existing enforcement authority under section 503 of the Act, but specifically adds that (subject to section 503(b)(5)) manufacturers and service providers subject to the requirements of sections 255, 716, and 718 are liable for forfeitures of up to $100,000 per violation or each day of a continuing violation, with the maximum amount for a continuing violation set at $1 million. We intend to use these statutorily directed remedies and sanctions as well as other remedies and sanctions authorized in the Act. We propose a change to section 1.80 of the Commission's rules to reflect the modifications of section 718(c) to the Act.

133. We seek comment on whether there are additional remedies that the Commission should consider when a violation is determined to have occurred. The Senate and House Reports make clear that we should not consider remedies that require retrofitting of equipment, and accordingly, we agree with CEA that we should not employ those remedies for violations of these provisions. We also note that AFB suggests that when a complaint is filed and a given product is not accessible, but the company nevertheless offers an array of accessible options, “the Commission should require the company to demonstrate that it can offer the complainant at least one other of its products that satisfies the [CVAA's] requirements and that would provide the complainant at least the same

features and level of functionality as the product that is the subject of the complaint” and at a comparable cost to the inaccessible product. While we agree that this may be a potential defense, we clarify that the issue of whether a subject entity satisfies its accessibility obligations is a fact-specific determination that will be decided in the context of a complaint proceeding based on the record. More specifically, we believe our determination about what is achievable must take into account all four factors enumerated under section 716(g), not just the fourth factor that considers “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.”

3. Informal Complaints

134. As described above, within one year after the date of enactment of the CVAA, the Commission is required to establish regulations that facilitate the filing of an informal complaint that alleges a violation of section 255, 716 or 718, as well as establish procedures for enforcement actions by the Commission for any violations.

135. We note that commenters suggest that any enforcement procedures should provide clarity regarding culpability, given that a product or service may potentially involve several different entities such as a device manufacturer, a broadband provider, or an application developer. We acknowledge that it may be difficult for a consumer to determine where the responsibility of one covered entity ends and another begins. We seek comment on what additional procedures the Commission might adopt to clarify which entity is “culpable” for noncompliance and further ask to what extent the Commission should be available to assist consumers in determining which entities are appropriately targeted by specific complaints? We also seek comment on what additional elements should be included in complaints that are filed under these sections, beyond what is proposed below.

136. We propose the following minimum requirements that complainants should include in their informal complaints, which are consistent with section 255 requirements as well as existing enforcement rules that have been adopted in other contexts. Specifically, we propose to include the following in any informal complaint: (1) The name, address, e-mail address and telephone number of the complainant, and the manufacturer or service provider defendant against whom the complaint is made; (2) a complete statement of facts explaining why the complainant contends that the defendant manufacturer or provider is in violation of section 255, 716 or 718, including details regarding the service or equipment and the relief requested, and all documentation that supports the complainant's contention; (3) the date or dates on which the complainant or person on whose behalf the complaint is being filed either purchased, acquired, or used (or attempted to purchase, acquire, or use) the equipment or service about which the complaint is being made; (4) the complainant's preferred format or method of response to the complaint by the Commission and defendant (

e.g.,

letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording, Braille; or some other method that will best accommodate the complainant's disability); and (5) any other information that is required by the Commission's accessibility complaint form. We seek comment on this proposal and request parties to consider what additional or modified requirements are necessary. Complaints that do not satisfy the pleading requirements will be dismissed without prejudice to refile. (The CVAA requirement for the Commission to issue an order concluding an investigation that is triggered by informal complaint, within 180 days of the filing complaint, will be tied to the Commission's receipt of complaint that satisfies its pleading requirements.)

137. We also recognize that the CVAA's recordkeeping requirements will allow the Commission to obtain records of the efforts taken by manufacturers or providers to implement sections 255, 716, and 718 and the Commission may use these records as necessary to determine whether a covered entity has complied with its legal obligations. Additionally, consistent with our rules implementing section 255 of the Act, we propose to maintain our current rule that the Commission will promptly forward any informal complaint meeting the appropriate filing requirements to each defendant named or determined to be implicated by the complaint. Also, consistent with our approach taken in our rules implementing section 255 of the Act, we propose to require manufacturers and service providers to establish points of contact for complaints and inquiries under section 255, 716 or 718. We continue to believe that this requirement will facilitate the ability of consumers to contact manufacturers and service providers directly about accessibility issues or concerns and ensure prompt and effective service of complaints on defendant manufacturers and service providers by Commission staff. We seek comment on this proposal.

138. As discussed above, the CVAA provides a party that is the subject of a complaint a reasonable opportunity to respond to such a complaint. Consistent with this requirement, we propose that answers to informal complaints must: (1) Be filed with the Commission and served on the complainant within twenty days of service of the complaint, unless the Commission or its staff specifies another time period; (2) respond specifically to each material allegation in the complaint; (3) set forth the steps taken by the manufacturer or service provider to make the product or service accessible and usable; (4) set forth the procedures and processes used by the manufacturer or service provider to evaluate whether it was achievable to make the product or service accessible and usable; (5) set forth the names, titles, and responsibilities of each decisionmaker in the evaluation process; (6) set forth the manufacturer's basis for determining that it was not achievable to make the product or service accessible and usable; (7) provide all documents supporting the manufacturer's or service provider's conclusion that it was not achievable to make the product or service accessible and usable; (8) include a certification by an officer of the manufacturer or service provider that it was not achievable to make the product or service accessible and usable; (9) set forth any claimed defenses; (10) set forth any remedial actions already taken or proposed alternative relief without any prejudice to any denials or defenses raised; (11) provide any other information or materials specified by the Commission as relevant to its consideration of the complaint; and (12) be prepared or formatted in the manner requested by the Commission and the complainant, unless otherwise permitted by the Commission for good cause shown. We seek comment on this proposal. We further propose that within ten (10) days after service of an answer, unless otherwise directed by the Commission, the complainant may file and serve a reply, which shall be responsive to matters contained in the answer and shall not contain new matters. We seek comment on this proposal as well. Given the statutory requirement for the Commission to issue an order concluding an investigation of an

informal complaint within 180 days of the filing of the complaint, are there other pleading requirements we should impose, and, if so, what should these be?

139. As noted above, the CVAA requires the Commission to issue an order that finds whether a violation has occurred within the time limits required by the Act, and to provide an explanation for its conclusion. Also, as we have noted, the statute provides that if the Commission determines that a violation has occurred, the Commission may direct the manufacturer or service provider to bring the service, or in the case of a manufacturer, the next generation of the equipment or device, into compliance with requirements of those sections within a reasonable time established by the Commission in its order. In addition, as also previously mentioned, before issuing a final order, the Commission is required to provide the responding party a reasonable opportunity to comment on any proposed remedial action. We would further note that the CVAA authorizes the Commission to direct manufacturers and service providers of ACS to bring their equipment and services into compliance either in the order concluding an investigation based on an informal complaint or “in a subsequent order.” Recognizing the importance of the rapid implementation of remedies to achieving the CVAA's broader goals, however, we will endeavor to issue a determination regarding remedies within 180 days after an informal complaint is filed, or shortly thereafter in a subsequent order, whenever feasible. (The Commission must, however, conclude the investigation and include a determination whether any violation occurred within 180 days.) We seek comment on this approach.

140. We recognize that the Commission must exercise any remedial authority selectively and carefully, based on legislative history, particularly for consumer and wireless devices, clarifying that “the Commission shall provide [service providers and manufacturers] a reasonable time to bring the service or equipment at issue into compliance * * * [and should not] require retrofitting of such equipment that is already in the market.” We seek comment on what we should consider a reasonable time in which to bring inaccessible devices or services into compliance and how best to impose compliance in this context consistent with our proposals for remedies and sanctions discussed above. We also seek input on what constitutes “reasonable opportunity” to comment on any proposed remedial action.

4. Formal Complaints

141.

Applicability of sections 1.720-1.736.

In addition to allowing aggrieved parties an opportunity to file informal complaints, section 717 states that such parties may use our more formal adjudicative procedures to pursue accessibility claims against manufacturers or service providers under sections 255, 716 and 718. This section further directs the Commission to establish regulations that facilitate the filing of such formal claims. To date, section 255 claims have been subject to the procedures laid out in §§ 1.720-1.736 of the Commission's rules. Under these rules, both complainants and defendants are required to (1) certify in their respective complaints and answers that they attempted in good faith to settle the dispute before the complaint was filed with the Commission; and (2) submit detailed, factual and legal support, accompanied by affidavits and documentation, for their respective positions in the initial complaint and answer. The rules also place strict limits on the availability of discovery and subsequent pleading opportunities to present and defend against claims of misconduct. Additionally, the rules include additional procedural and pleading requirements designed to expedite resolution of any formal complaint. We propose to require aggrieved parties to follow our existing formal complaint procedures, as modified in our proposed rules. These modifications include deleting references to provisions that are not relevant to consumer-filed complaints in the accessibility context (

e.g.,

provisions relating to complaints filed under section 271 of the Act), as well as to “rocket docket” procedures. Because the CVAA requires the Commission to address informal complaints within 180 days of filing, and because our accelerated docket procedures were designed to adjudicate disputes between carriers that satisfy certain criteria, we are inclined not to extend these procedures to formal complaints in the accessibility context. We seek comment on whether we should consider additional modifications to these rules in order to facilitate the filing of such formal complaints.

142. Additionally, we propose not to require parties to obtain Commission approval in order to file a formal complaint; we also propose not to require parties to invoke our informal complaint processes as a prerequisite to filing a formal complaint. No such requirements exist in the statute or our formal complaint rules and we find no basis in the existing record to conclude that such requirements are needed for complaints filed under section 255, 716 or 718. We seek comment on this proposal and ask parties to describe whether there are any circumstances that warrant such requirements.

VII. Section 718 Internet Browsers Built Into Telephones Used With Public Mobile Services

143. We seek further comment on the upcoming obligations imposed by section 718 which generally provides that “[i]f a manufacturer of a telephone used with public mobile services * * * includes an Internet browser in such telephone, or if a provider of mobile service arranges for the inclusion of a browser in telephones to sell to customers, the manufacturer or provider shall ensure that the functions of the included browser (including the ability to launch the browser) are accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable.”

144. While section 718's requirements will not take effect for three years, we agree with ACB that the accessibility of mobile Web access technologies is critical and seek comment on the best way(s) to implement section 718, so as to afford affected manufacturers and service providers an opportunity to provide input at the outset, as well as to make the necessary arrangements to achieve compliance by the time the provisions go into effect. We would particularly welcome input on how the Commission can best inform and assist covered entities on the means by which they can meet their obligation to provide access to Internet browsers in mobile phones. Specifically, we seek comment on Verizon's proposal that we “encourage industry forums and working groups to develop accessibility standards for mobile browsers” because a “cooperative effort” will be needed to ensure compliance. To what extent should the Commission help to facilitate this discussion, for example through an advisory committee or a working group that is part of the Commission's Consumer Advisory Committee? We also seek comment on Code Factory's recommendation that manufacturers and operating system developers develop an accessibility API to foster the incorporation of screen readers into mobile platforms across different phones which would render the Web browser and other mobile phone functions accessible to individuals who are blind or visually impaired.

VIII. Procedural Matters

Comment Period and Procedures

145. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing system (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.

See Electronic Filing of Documents in Rulemaking Proceedings,

63 FR 24121 (1998).

•

Electronic Filers:

Comments may be filed electronically using the Internet by accessing the ECFS:

http://www.fcc.gov/cgb/ecfs/

or the Federal eRulemaking Portal:

http://www.regulations.gov.

Filers should follow the instructions provided on the Web site for submitting comments.

•

For ECFS filers,

if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Comments shall be sent as an electronic file via the Internet to

http://www.fcc.gov/e-file/ecfs.html.

In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to

ecfs@fcc.gov,

and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

•

Paper filers:

Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 pm All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

•

People with Disabilities:

To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to

fcc504@fcc.gov

or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

•

Availability of Documents:

The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page:

http://www.fcc.gov.

Copies of comments and reply comments are also available through the Commission's duplicating contractor: Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 1-800-378-3160.

Initial Regulatory Flexibility Analysis

146. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), the Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on a substantial number of small entities that might result from adoption of the rules proposed in the Notice of Proposed Rulemaking (“NPRM”). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the applicable deadlines for initial comments, or reply comments, as specified in the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the NPRM and this IRFA (or summaries thereof) will be published in the

Federal Register

.

A. Need for, and Objectives of, the Propo

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