On March 3, 2011, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking to implement Sections 716 and 717 of the Communications Act, both products of the Twenty-First Century Communications and Video Accessibility Act (Accessibility Act), which the President signed into law in Oct. 2010. Section 716 requires providers of “advanced communications services” (ACS) to make services accessible to and usable by people with hearing- and vision-related disabilities.1 The services covered by Section 716 include both interconnected and non-interconnected VoIP, electronic messaging services (e.g., text messages and email) and interoperable video conferencing services (e.g., video chat).

These obligations complement those currently imposed on telecommunications and interconnected VoIP providers under Section 255 of the Communications Act and corresponding FCC regulations (47 C.F.R. parts 6 and 7) (collectively, the Section 255 rules). However, Section 716 arguably imposes a more stringent standard of compliance compared to Section 255, but also gives the industry flexibility not available under the Section 255 rules.

In addition, Section 717 directs the FCC to establish new recordkeeping rules for all entities covered by either Section 255 or 716, as well as new enforcement procedures that apply under both sections, with new forfeiture amounts of up to $1 million for violations.

While Section 716 attempts to overcome the shortcomings of Section 255 (both substantively and in its application), the practical impact of the new accessibility rules is not yet clear, as the NPRM attempts to address the difficulties presented by the fact that Section 716 covers a broad range of services and service providers, including hybrid services and devices that may invoke both Section 255 and 716. Although established services (including interconnected VoIP) that are subject to Section 255, are exempt from Section 716 (but not Section 717), providers of communication services that have never been subject to accessibility rules, or even FCC regulation in general, will soon find themselves subject to a multitude of compliance, recordkeeping and complaint resolution obligations mandated by federal law.