In 2011, the FCC adopted rules that include new accessibility, recordkeeping, certification, and consumer complaint procedures to help ensure that people with disabilities can access various communication services.  The new recordkeeping requirements are effective January 30, 2013.  Also, beginning this year, all covered providers, other than those subject to a small entity exemption for certain services, must file a compliance certificate with the FCC each April 1 certifying that they have operating procedures in place to ensure compliance with the recordkeeping requirements.

Background. Congress enacted the Twenty-First Century Communications and Video Accessibility Act of 2010 to ensure that people with disabilities, such as the visually and hearing-impaired, would have access to new advanced communications services.  Accessibility obligations already existed for telecommunications services and interconnected VoIP services under Section 255 of the Communications Act.  The new recordkeeping and certification requirements, which were enacted to help ensure accessibility, now apply to all covered providers.

Who is covered by the new record keeping requirements? The new recordkeeping requirements apply to:

• Telecommunications providers
• Interconnected VoIP providers
• Providers of advanced communication services (“ACS”), which are:
  • New VoIP services not available before October 8, 2010;
  • Non-interconnected VoIP services;
  • Electronic messaging services (services that provide real time or near real time messages in text format, such as instant messaging); and
  • Interoperable video conferencing services.

What records must be kept? All covered providers are required to maintain the following records of their compliance with accessibility rules:

• Information about efforts to consult with individuals with disabilities;
• Descriptions of accessibility features of products and services;
• Information about compatibility with peripheral devices used to achieve access; and
• Records supporting any determination that accessibility is “not achievable.”

What are the annual certification requirements? All covered providers are required to submit an annual certification each April 1, beginning this year, through the FCC’s web-based Recordkeeping Compliance Certification and Contact Registry available here.  The certifications must include:

• Certification that the company has established operating procedures that are adequate to ensure compliance with the recordkeeping rules and that the records are being kept accordingly;
• Designation of a contact person authorized to resolve accessibility-related complaints; and
• Designation of an agent to accept service of complaints.

Are any exemptions available? Yes.  The rules provide a temporary exemption from the accessibility and recordkeeping requirements for providers of ACS that are small entities as determined by the Small Business Administration (“SBA”).  Based on the SBA’s size standards, cable operators, broadband Internet service providers, and VoIP providers that have fewer than 1,500 employees, including affiliates, are automatically exempt from the accessibility and recordkeeping requirements.  The exemption expires October 8, 2013.

Note:  The exemption applies only to providers as to their ACS offerings; it does not apply to telecommunications or interconnected VoIP offerings.  Providers of telecommunication services or interconnected VoIP services must file their compliance certificates by April 1, 2013 regardless of their size.

What do the rules require regarding accessibility for ACS? The new rules require that providers of ACS make the services accessible to and usable by people with disabilities unless doing so is “not achievable.”

Accessibility. Accessible means that input, control, and mechanical functions must be locatable, identifiable, and operable to people with vision, hearing, physical, and cognitive disabilities.

Supplemental documentation must be accessible.  The rules also require that the information and documentation given to customers, including bills, installation guides, and software, be made available in alternate formats as needed.  The requirement to provide access to information also involves ensuring that individuals with disabilities can access, at no extra cost, call centers and customer support regarding the product and its accessibility features.

Achievability. Achievable means “with reasonable effort or expense.”  Service providers may determine for themselves whether accessibility is achievable for any given new product.  To help guide that determination, the FCC identified four factors it will consider:

• The nature and cost of steps needed to meet the accessibility requirements for a given product;
• The technical and economic impact on the provider’s operations and on the equipment or service;
• The type of operations; and
• The extent of accessible services or equipment the provider offers with various functions and features, and at different prices.

Covered entities are allowed to meet their accessibility requirements by relying on built-in and third-party solutions, as well as external peripheral devices commonly used by the disabled and available at a nominal cost.

The FCC has provided additional information about the rules in a recent Public Notice.

If you have any questions about the rules, developing operating procedures or filing the certifications, please contact Bruce Beard at (314) 394-1535 or bbeard@cm-chi.com or Jake Baldwin at (312) 372-3930 or jbaldwin@cm-chi.com.