Communications Accessibility Record Keeping Requirements Commence Jan. 30, 2013

In less than two months, on Jan. 30, 2013, entities providing traditional telecommunications services, advanced communications services (ACS) (which includes interconnected and non-interconnected VoIP, electronic messaging services, interoperable video conferencing) and mobile web browsers must begin keeping extensive contemporaneous records of efforts to meet accessibility requirements imposed by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). These record keeping requirements–which include demonstrated outreach to the broadly defined disabled community and consideration of accessibility issues as early as possible in the product design cycle–extend to the accessibility of the covered services themselves as well as to the accessibility of customer support (including online), billing and product information materials for such services. The record keeping requirements do not extend to customized equipment or services that are not offered to the public or to providers of “passive” networks over which ACS is accessed, and are delayed for certain small entities as defined by the Small Business Administration (SBA) rules.

Pursuant to Federal Communications Commission (FCC) Rules, and subject to substantial forfeitures for non-compliance (up to $1 million per violation), telecommunications, VoIP and ACS providers and manufactures that do not qualify as small entities must, commencing Jan. 30, 2013, begin recording:

1. 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;
2. Descriptions of the accessibility features of products and services;
3. Information about the compatibility of products and services with peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities; and
4. 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 Oct. 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. To this end, if it is determined that accessibility is not achievable the company’s records should also include information sufficient to demonstrate as much under the FCC’s four factor analysis:

1. The nature and cost of steps needed to make the product or service accessible;
2. 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;
3. The types of operations of the manufacturer or provider; and
4. 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.

Shortly after the FCC’s record keeping requirements go into effect, on April 1, 2013, and annually thereafter, covered manufacturers and providers must certify compliance with the record keeping requirements. Such certification must state that the entity has established operating procedures that are adequate to ensure compliance with the FCC’s record keeping rules and be supported by an affidavit or declaration under penalty of perjury, signed and dated by an authorized officer with actual knowledge, attesting to the truth and accuracy of the certification.

The FCC’s general accessibility rules became effective earlier this year for all covered entities that do not meet the SBA’s small business criteria (for which the rules are delayed until Oct. 8, 2013). Under those rules, ACS providers must take accessibility into consideration as soon as possible in the design and redesign/upgrade process of ACS development and deployment. The record keeping requirements will necessarily focus on such efforts until Oct. 8, 2013, when compliance with the actual accessibility performance objectives (set forth in our earlier client advisory) is required.

Please contact the attorneys listed here if you have any questions or concerns about how to comply with the FCC’s imminent record keeping obligations for ACS.