Video Game Software Industry Seeks a Final Disabilities Access Waiver Extension

by Kelley Drye & Warren LLP
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The Federal Communications Commission (“Commission” or “FCC”) recently released a Public Notice seeking comment on a petition filed by the Entertainment Software Association (“ESA”) seeking a one year final extension of its class waiver from the FCC’s accessibility requirements (“Petition”). Specifically, ESA seeks waiver from the 21st Century Communications and Video Accessibility Act’s (“CVAA”) requirement that advanced communications services (“ACS”), like voice and text communications, built into video game software be made accessible for people with disabilities. Comments on the Petition are due by December 1, 2017.

The FCC has granted three class waivers already for video game software and the latest waiver ends on December 31, 2017. In granting these waivers, the Commission has found that video game software qualifies for a waiver under the rules even though it has the ability to access ACS because the primary purpose of the software is gaming and not ACS.

In this Petition, ESA argues that gaming remains the primary purpose and that ACS capabilities are secondary and not prominently advertised. ESA also asserts that there are unique challenges involved with gaming software, such as the display technologies used by video games, creation of highly specialized code, and the successful and simultaneous integration of numerous specialized functions, animation, graphics, audio and artificial intelligence. Further, video games use specialized controllers rather than standard equipment like a mouse. In contrast, “most assistive technologies are intended to work with standardized inputs and controls.” The inherent lag time for technologies like audio transcription can also be difficult for fast-paced gaming communications. The Petition states that despite these challenges, over the course of the multiple waivers, the video game industry has released games that “are increasingly accessible—even as it continues to experiment with ACS accessibility solutions for video game software.” The Petition offers several examples of video games that have incorporated accessibility technologies, including real-time text transcription of audio game chat and text-to-audio features in game chat on Microsoft’s Xbox One console.

In spite of this progress, ESA contends that certain challenges remain and that additional time is needed to explore accessibility solutions for ACS and core game play activities before video game software can comply fully with the ACS rules. ESA argues that another year will allow video game software developers to continue to look for alternative solutions where standard assistive technologies are insufficient, permit industry to continue to release innovative games in the meantime, and allow industry to continue an ongoing dialogue with members of the disability community.

ESA is likely to be successful receiving an additional waiver, however, it is clear that time is running out. The first waiver granted was for three years but the last two have only been for one year, with the last one including a requirement for a mid-year progress report that was filed in June. ESA appears to recognize this in asking for a “final” waiver. However, other industries and technologies that are subject to the ACS rules and that have a primary purpose other than ACS should consider a similar waiver request. This is especially true for new and innovative technologies and applications.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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