TMT Law Watch

FCC Disability Accessibility Rules Published in Federal Register

By J. Bradford Currier, Marc Martin, and Marty Stern

In what the FCC described as the “most significant accessibility effort since the Americans with Disabilities Act,” manufacturers of tablets, laptops, smartphones and other devices will soon be required to ensure the accessibility of their equipment by disabled persons under final rules published in the Federal Register on December 30, 2011. The regulations, which will be phased in between January 30, 2012 and October 8, 2013, implement the disability accessibility requirements established in the Twenty-First Century Video Communications and Accessibility Act signed into law in October 2010.

Under the FCC’s Report and Order, manufacturers must make sure that device hardware and manufacturer-provided software allow disabled users to access advanced communications services such as email, voicemail, and text messaging unless such accessibility is not technically “achievable.” Manufacturers will only be responsible for the accessibility of software that they preload on their devices and will not be responsible for any software that is independently selected and installed by a user or any software which the user operates through cloud computing technology. Additionally, the new requirements will not apply to “customized equipment” created by the manufacturer for its enterprise customers which is not generally available to consumers or to devices designed primarily for purposes other than advanced communications services (e.g., electronic book reader devices).

Manufacturers may rely upon third-party hardware and software to meet the accessibility requirements so long as the third-party solutions are available at a nominal cost to the consumer. Manufacturers relying on third-party solutions must support these solutions for the life of the device or for two years after the third-party solution is discontinued, whichever occurs first. If a third-party solution is discontinued, the manufacturer must make another solution available, either through the manufacturer or another third-party entity. The disability access requirements also apply to any user guides, bills, or other customer service communications provided by the manufacturer to the user. The FCC did not impose any “universal design” plan for how devices must meet the accessibility requirements, leaving the door open for manufacturer innovation in disability access. 

Whether disability accessibility is “achievable” for a device will be evaluated under four factors: (1) the costs of manufacturing a compliant device; (2) the technical and economic impact of compliance on the manufacturer and device innovation; (3) the size and nature of the manufacturer’s operations; and (4) the extent to which the manufacturer offers other equipment with accessibility features at differing price points. The burden will be on the device manufacturer to prove that accessibility is not achievable regarding a particular device.  

Even if disability accessibility cannot be built into a device or offered for a nominal cost through a third-party solution, the manufacturer must still ensure that its devices are compatible with specialized equipment and software designed for communications access by disabled persons. Importantly, manufacturers may not install functions which impede usability by disabled persons. As a result, a device must “pass through” any features already included in content accessed by the user designed to improve accessibility, such as closed captioning. Consumers may file complaints with the FCC regarding the accessibility requirements and violators will be subject to administrative fines.

The new rules require manufacturers to “identify barriers to accessibility and usability” and to consider disability access performance objectives during device design, development, and evaluation. Manufacturers will also be required to maintain records indicating: (1) their efforts to consult with individuals with disabilities to develop compliant devices; (2) descriptions of the accessibility features of their devices; and (3) information regarding the compatibility of their devices with specialized accessibility equipment commonly used by disabled persons. The recordkeeping requirements remain under consideration by the U.S. Office of Management and Budget and will not take effect without the agency’s approval.

The FCC temporarily exempted small business entities from the accessibility requirements and will assess whether to make this exemption permanent through the Further Notice of Proposed Rulemaking published concurrently with the new regulations. The notice asks for industry input regarding how manufacturers can implement disability accessibility for Internet browsers and videoconferencing services included with devices as well as whether regulatory safe harbors should be created for manufacturers that adopt industry-created disability accessibility guidelines. The FCC will accept comments regarding the Notice of Proposed Rulemaking until February 13, 2012, with reply comments due on March 14, 2012.

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