The FCC s New Disabilities Access Requirements

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1 The FCC s New Disabilities Access Requirements What Telcos, VoIP Providers and Advanced Communications Service Providers Need to Know Now (Before It s Too Late) Steven Augustino John Heitmann Joshua Guyan Barbara Miller January 23, 2013 Presenters Steve Augustino Co-Chair, Telecommunications Group Kelley Drye & Warren LLP John Heitmann Co-Chair, Telecommunications Group Partner, Privacy & Information Security Group Kelley Drye & Warren LLP Joshua Guyan Telecommunications Group Associate, Kelley Drye & Warren LLP Barbara Miller Telecommunications Group Associate, Kelley Drye & Warren LLP 2 1

2 Overview What are Sections 255, 716 & 717? Who has to comply? What has to be done? When must it be done? Are waivers or exceptions available? What can happen if a company fails to comply? What are some practical tips that can help my company navigate these requirements successfully? 3 What are Sections 255, 716 & 717? These sections of two statutes require that products and services be accessible and useable by persons with disabilities by Imposing substantive accessibility requirements Imposing consulting and product/service development requirements Imposing record-keeping requirements Establishing a consumer complaint and enforcement process 4 2

3 Who Has to Comply? Section 255 of the Communications Act Providers of telecommunications services Manufacturers of telecommunications equipment and CPE Providers of voic and interactive menus (and related equipment) Even though those are information services Providers of interconnected VoIP services (since 2007) Manufacturers of specially designed equipment used to provide interconnected VoIP services 5 Who Has to Comply? Section 716 of the Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA) Providers of non-interconnected VoIP service Providers of electronic messaging service (Text, IM) Providers of interoperable video conferencing service Service that provides real-time video communications, including audio No decision on the meaning of interoperable 6 3

4 Who Has to Comply? What is equipment? End user equipment Network equipment Software 7 Under 255 products & services must be: accessible and usable if readily achievable. Under 716 products & services must be: accessible and usable if achievable. 8 4

5 What is accessible? Accessible can be reached by: Accessibility features in the service or equipment itself OR Compatibility with devices or equipment that create accessibility 9 What is usable? The service or product must: Permit access to full functionality of the product/service Permit access to full documentation for the product/service 10 5

6 Achievable? Achievable with reasonable effort or expense Readily achievable? Easily accomplishable and able to be carried out without much difficulty or expense 11 Record Keeping Rules ( 717) Records must contain information about: Accessibility Features or Compatibility, or Why not Achievable or Readily Achievable and Consultation with individuals with disabilities 12 6

7 Certification Certification of Compliance must be filed annually by April 1 and it must: State that you are in compliance Be supported by an officer s sworn statement Identify representative contact information 13 When Must Covered Entities Comply? Section 255 requirements for telcos providers/manufacturers been effective since January 28, 2000 and since October 5, 2007 for interconnected VoIP Sections 716 and 717 of the CVAA January 30, 2012 Consider accessibility requirements during design or redesign process for new equipment and services October 8, 2013 products and services offered in interstate commerce must be compliant and consumers can begin filing complaints with the FCC Section 717 Recordkeeping and Reporting (applies to Sections 255 and 716 entities) January 30, 2013 recordkeeping requirements to demonstrate compliance April 1, 2013 first annual certification that records are being maintained in accordance with statute and rules 14 7

8 What Exceptions Apply? Customized equipment or services not offered directly to the public Public safety equipment/services Temporary Small Business Exception Does not apply to Section 255 telcos/inteconnected VoIP providers/manufacturers Exception applies to Section 716 ACS providers/manufacturers that, along with affiliates, meet the criteria for a small business concern in their primary industry under the Small Business Act s rules and size standards Expires October 8, 2013 unless there is a rule change pursuant to the Further Notice 15 What Exceptions Apply? Software Publishers Computer Systems Design and Related Services Data Processing, Hosting and Related Wired, Wireless Telecommunications Carriers and Telecom Resellers All Other Telecom Wireless Equipment Manufacturers $25 million or less annual receipts $25 million or less annual receipts $25 million or less annual receipts 1500 or fewer employees $25 million or less annual receipts 750 or fewer employees 16 8

9 What Waivers Apply? Section 716(h) FCC can waive the requirements for any feature or function of a multipurpose device or service that is designed primarily for purposes other than accessing ACS 17 What Waivers Apply? Waiver Order (October 15, 2012) granted waivers until October 8, 2015 IPTVs and IP-DVPs designed primarily to view video content, but also access ACS Cable set top boxes Gaming: (1) game consoles, (2) game distribution and online game play services, and (3) game software Analyzes the marketing of the product is ACS part of the pitch? 18 9

10 How Will the Requirements Be Enforced? No private right of action in court For both Section 255 and 716, consumers can: File an informal complaint with the FCC, but first must file a Request for Dispute Assistance with CGB File a formal compliant with the FCC 19 What Are Some Practical Tips? Record-keeping Document, document, document Accessibility The earlier the better Consultation Consult a range of groups 20 10

11 Questions? Steven Augustino John Heitmann Joshua Guyan Barbara Miller PARTNER PARTNER ASSOCIATE ASSOCIATE Phone: (202) Phone: (202) Phone: (202) Phone: (202)

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