The Impact of the Open Internet Order on Accessibility

Davis Wright Tremaine LLP

The Order does not forbear from enforcing the requirement in Section 225 that telecommunications relay service (TRS) be made available to persons with hearing and speech disabilities, such that they may have access to communications services that are functionally equivalent to the voice services used by persons without such disabilities. In contrast, the Order does forebear, for now, from requiring broadband Internet access service (BIAS) providers from contributing to the TRS fund, but reserved the right to extend TRS funding requirements to BIAS providers in the future after a rulemaking proceeding.

In declining to forbear from enforcing the “functional equivalent” TRS requirement, the Order recognized the growing use of Internet TRS (iTRS) services by persons with disabilities and sought to address potential network management practices, including those that might otherwise appear neutral, that could negatively impact iTRS users. Certain iTRS services, including video relay services (VRS), rely on high definition video conferencing and require a high bandwidth broadband connection.  Speech and hearing impaired persons also rely on other forms of iTRS, including IP Relay and IP Captioned Telephone Service. The Order views Section 225 as necessary to protect disabled consumers against network management practices that might degrade, or result in higher charges for, disabled persons relying upon, the iTRS.

The Order also does not forbear from enforcing Section 255 and the Commission’s implementing regulations. As a result, BIAS providers and equipment manufacturers must make their products accessible to and usable by persons with disabilities if readily achievable as set forth in the Commission’s rules, effective immediately. The Order also does not forbear from enforcing Section 251(a)(2) and its implementing rules, which preclude installation of “network features or capabilities that do not comply with the guidelines and standards established by Section 255.”

Accordingly, BIAS providers (and associated equipment makers) must now consider accessibility performance objectives at the product design stage as early as possible, and must implement accessibility, either directly or through “compatible” third party solutions, in any covered products or services, if “readily achievable.”  Note that to the extent that a particular form of BIAS meets the definition of an advanced communications service (ACS) (i.e., electronic messaging, interoperable video conferencing, non-interconnected VoIP services, software and equipment and browsers), it was already subject to a higher “achievable” standard.  In addition, to be compliant, covered services and equipment must be “usable” by persons with disabilities, meaning that such persons have access to the full functionality and customer support for their covered products (including web based support). BIAS providers must also immediately comply with FCC rules requiring contemporaneous recordkeeping of: (a) efforts to incorporate accessibility into product design and development, including efforts to consult with individuals with disabilities; (b) information about the compatibility of covered products with existing assistive technologies; and (c) the extent to which, if a covered product is not capable of being made accessible or compatible with assistive technologies, compliance is not readily achievable. In addition, providers must certify annually to the FCC as to compliance with the recordkeeping requirements. Finally, BIAS providers must refrain from installing network features, functions or capabilities that impede accessibility or usability of broadband services, and must pass through industry-standard codes, translation protocols or other information necessary to provide broadband services in an accessible manner. The fines for non-compliance are significant: up to $100,000 per day and $1 million per violation.

The Order recognized that accessibility requirements already have been applied to certain broadband related ACS in the context of the 21st Century Communications Video Accessibility Act (CVAA). However, the Order also recognized that some services were expressly excluded from the Act’s coverage. For example, a service provider that merely provides access to ACS, such as a broadband platform that happens to provide end users with access to a web-based email service, would not be covered by the CVAA, but will now be covered by Section 255.

The Order does not extend accessibility requirements to all web pages of entities that are not otherwise covered by the existing accessibility requirements. (Note, however, that the Department of Justice believes that this is independently required by the Americans with Disabilities Act.) For example, webpages for local restaurants or shops are not affected by this Order. It remains to be seen, however, precisely what services beyond the simple Internet access platforms on which the Order appears to be focused now are, but were not previously, covered.

Unlike the way the agency handled rollout of the CVAA requirements, the Order does not offer a phased in approach for the extension of Section 255 to BIAS providers or take into account the size of the covered entity. Accordingly, the rules will take effect as soon as the Order itself does (60 days following publication in the Federal Register) absent any judicial stay. Moreover, small entities were not exempted, even temporarily, from these new obligations. However, the fact that the lower achievability standard (“readily achievable”) applies should provide some cover as affected entities begin to implement these requirements. That said, even under that somewhat less demanding standard it is particularly important that covered entities keep sufficiently detailed records to demonstrate efforts to achieve accessibility, even where doing so is not attainable.

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Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

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