On February 12, 2020, the Federal Communications Commission (FCC) released a Public Notice to service providers and equipment manufacturers as a reminder to maintain records on compliance efforts to make their technology accessible for persons with disabilities. Covered service providers and equipment manufacturers must submit accessibility recordkeeping compliance certifications and contact information to the FCC no later than April 1, 2020.
The FCC’s Public Notice reminds entities providing traditional telecommunications services, interconnected VoIP, advanced communications services (ACS) (which includes non-interconnected VoIP, electronic messaging services, and interoperable video conferencing), and mobile web browsers to submit the required certification and contact information.
Unless subject to a waiver, covered entities must complete the required certifications in connection with the accessibility obligations imposed by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The certifications, which attest that the covered entity has recordkeeping processes in place that comport with FCC rules, must be supported by an authorized officer with actual knowledge of the entity’s recordkeeping processes, and be filed using the FCC’s online registry.
CVAA Recordkeeping Requirements
Pursuant to Section 14.31 of the FCC’s rules, service providers and equipment manufacturers not subject to waivers must keep records of:
- Efforts to consult with individuals with disabilities (defined broadly to include people with hearing, vision, movement, manipulative, speech, and cognitive disabilities) about product or service accessibility barriers and solutions;
- Descriptions of the accessibility features of products and services;
- Information about the compatibility of products and services with peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities; and
- The extent to which, if a product or service is not accessible, compliance was not “achievable” (or “readily achievable” in the case of telecommunications or interconnected VoIP services offered prior to October 8, 2010).
Records must be updated and maintained until two years after a product or service ceases to be offered. Significantly, these same records may be relied upon by covered entities when defending against complaints that covered services and products are not accessible.
Therefore, if it is determined that accessibility is not achievable, pursuant to Section 14.10 of the FCC’s rules, the entity’s records should also include information sufficient to demonstrate the fact that accessibility is not achievable under the FCC’s four factor analysis:
- The nature and cost of steps needed to make the product or service accessible;
- The technical or economic impact on the operations of the manufacturer or provider and on the operation of the specific equipment or service in question;
- The types of operations of the manufacturer or provider; and
- The extent to which the service provider or manufacturer offers services or equipment containing varying degrees of functionality and features, and offered at differing price points.