[co-author: Bradley W. Guyton]

The FCC’s Open Internet Order (the “Order”) will impose several accessibility requirements on broadband Internet access service (BIAS) providers when it takes effect this week.

First, because the Order does not forbear from Section 225, which relates to Telecommunications Relay Service (TRS), that section’s “functionally equivalent” obligations will be extended to BIAS providers.  Although BIAS providers will not be required to make contributions to support TRS – yet – they must avoid network management practices that could negatively impact Internet TRS (iTRS) services (such as video relay services (VRS)) that have high bandwidth requirements which might prevent such services from being the functional equivalent to services used by person without disabilities.

Second, the FCC did not forbear from Section 255, which requires that telecommunications services be made “accessible to and usable by” persons with disabilities, including those with vision, hearing, speech and physical disabilities.  As a result, if doing so is “readily achievable,” BIAS providers must now incorporate accessibility into product design and development, ensure that all customer support is accessible, keep contemporaneous records of efforts to make covered services and products accessible and usable, and certify annually to compliance with the recordkeeping obligations.

Note, however, to the extent a form of BIAS is considered an “advanced communications service” (ACS), such as electronic messaging, interoperable video conferencing, non-interconnected VoIP services, software and equipment and browsers, it was already subject to the accessibility requirements at the higher “achievable” standard.

Finally, the Order does not forbear from Section 251(a)(2), meaning that BIAS providers must refrain from installing network features, functions or capabilities that impede the accessibility or usability of BIAS.  They must also pass through industry-standard codes, translation protocols or other information necessary to provide BIAS in an accessible manner, as required by Section 251(a)(2), Section 255, and FCC implementing regulations.

It should be noted that the accessibility requirements mentioned above will not apply to every broadband service and provider.  The Order specifically states that “broadband Internet access service does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone services (to the extent those services are separate from broadband Internet access service).” (emphasis added)

The Order also excludes customized enterprise solutions, but non-customized business solutions are not excluded.  And although the new Open Internet rules include not only Internet service but also capabilities that are incidental to and enable the operation of Internet service, certain “network management” is excepted.