FCC Adopts New Accessibility Requirements for Video Conferencing Services

On September 26, 2024, the Federal Communications Commission ("FCC") adopted a Report and Order (the "Second R&O") setting forth new rules to make interoperable video conferencing services ("IVCS") more accessible to people with disabilities. Among other things, the Second R&O established specific performance objectives for IVCS and adopted requirements to support the provision of Telecommunications Relay Services ("TRS")—which allow people with hearing, visual, and speech disabilities to communicate via telephone with the support of communications assistants ("CAs") and other intermediaries—in video conferences. In addition, the commission issued a Further Notice of Proposed Rulemaking ("FNPRM") inviting public comment on a wide range of potential additional requirements to enhance the accessibility of IVCS. Altogether, the new and proposed rules are intended to give greater meaning to what was previously a more nebulous directive in an earlier Report & Order (the "First R&O") to simply make IVCS accessible.

Background

Section 716 of the 21st Century Communications and Video Accessibility Act of 2010 ("CVAA") requires advanced communications services ("ACS") to be accessible to people with disabilities, subject to certain limited exceptions. In its 2011 order implementing Section 716, the FCC concluded that IVCS was a form of ACS and, thus, that such services had to be made accessible under Part 14 of the FCC's rules (where the then-new ACS requirements were ultimately codified). However, the commission found that the record was insufficient at that time to determine how the term "interoperable," as used in the phrase "interoperable video conferencing service," should be interpreted. As we explained in a prior advisory, the FCC resolved this longstanding ambiguity last June in the First R&O, clarifying that all video conferencing services—regardless of their interoperability with other services—must comply with the accessibility requirements found in Section 716 and Part 14.

Although the First R&O clarified the scope of IVCS that must be made accessible, questions remained over exactly how IVCS providers, equipment manufacturers, and software suppliers should achieve this goal. Accordingly, in a companion to the First R&O, the FCC released a Notice of Proposed Rulemaking ("NPRM") that invited public comment on a number of proposals intended to provide a more concrete definition of the IVCS accessibility requirement. After considering the record in response to the NPRM, the commission prepared and published the Second R&O.

Second R&O

Performance Objectives

The Second R&O amended Part 14 to incorporate the following IVCS-specific performance objectives:

• Captioning. IVCS must provide at least one mode with captions that accurately and synchronously display the spoken communications in a video conference. IVCS must also: (1) enable users to connect with third-party captioning services on the user's conference screen; and (2) provide a mechanism for conference hosts and users to connect with an IP Captioned Telephone Service ("IP CTS") provider on the conference screen, if that is their preference.
• Sign Language Interpretation. IVCS and any equipment and software used with IVCS must enable the use of sign language interpretation provided by third parties, with sufficient video quality to allow users and interpreters to clearly see and understand each other's signing.
• User Interface Controls. IVCS and any equipment and software used with IVCS must provide user interface control functions that allow users to activate and adjust the display of captions, speakers, signers, user names, and other features necessary for accessibility without the host's permission (e.g., ability to alter the size, font, and on-screen location of captions and to adjust the color and opacity of captions and caption backgrounds; ability to minimize, hide, and expand windows; and ability to use pinning, multi-pinning, spotlighting, and window configurations). 

Note, however, that the Second R&O did not change any of the recordkeeping or certification requirements to which ACS (including IVCS) is already subject under existing FCC rules.

Separately, the FCC considered but declined to adopt several proposals that were raised by commenters in response to the NPRM, including those that would have required that:

• Video functionality, screen-sharing, video window resizing, and video sharing be compatible with tablets;
• IVCS providers offer text-to-speech functionality;[1]
• IVCS providers offer a dial-in option via a 10-digit telephone number to enable TRS-eligible IVCS users to use TRS in video conferences;
• Recordings of video conferences comply with IVCS accessibility requirements;
• All IVCS platforms use the "universal captioning symbol"—"(CC)"—to identify captioning settings; and
• Captioning settings be on the first screen of the settings menu for IVCS platforms.

The FCC also declined to adopt any technical standards as a safe harbor to facilitate compliance with the IVCS performance objectives. However, the commission did reiterate that the performance objectives are subject to the "achievability" exception applicable to all ACS, which exempts covered entities from complying with the rules if doing so is not achievable, defined in terms of "reasonable effort or expense" (as determined under a set of criteria described further in the ACS rules).

TRS in Video Conferences

The FCC made a number of modifications to its rules to facilitate the provision of TRS in IVCS, although it did not go so far as to require TRS providers to provide TRS in video conferences on an integrated basis. Among other things, the FCC amended its existing TRS confidentiality rule to expressly prohibit CAs from disclosing or maintaining records concerning content that is not relayed by the CA during the video conference (e.g., sidebar conversations between call participants that are not intended to be communicated to all call participants; chat conversations, presentation material, and other information that is relayed in textual form only). In addition, the commission prohibited exclusivity agreements between IVCS providers and TRS providers, whether such arrangements are express or implied. The Second R&O also clarified how the integrated provision of Video Relay Service ("VRS") and other forms of TRS in video conferences can be supported by the Interstate TRS Fund ("TRS Fund"), including through the imposition of new requirements related to user validation; call detail records; the commencement of compensable time; CA-related issues (such as the number of compensable CAs that are permitted on a VRS call); the privacy screen rule; and retention of the requirement that TRS providers accept calls and assign CAs in the order they are received.

Compliance Deadlines

The rules pertaining to performance objectives for IVCS will not come into force until two years after the Second R&O is published in the Federal Register (i.e., the Second R&O effective date). In contrast, the TRS-related rules adopted in the Second R&O will take effect on the Second R&O effective date.

Further Notice of Proposed Rulemaking

The FNPRM invites public comment on a number of additional proposed accessibility requirements for IVCS, including those touching on the following topics:

• Specific performance objectives for people with speech disabilities, including those pertaining to text-to-speech and speech-to-speech functionality;
• Specific performance objectives for people with cognitive and mobility disabilities;
• More granular caption, participant, and user control requirements (e.g., specific obligations with respect to font size, font edge, color, background, and screen-reader verbosity controls; storage of user accessibility preferences for future sessions);
• Whether IVCS must be made compatible with tablets;
• Additional video and audio presentation and quality requirements (e.g., gallery view mode; support for a certain number of videos without video or audio degradation)
• Dedicated text and video side channels;
• Audio description and visual image description;
• Tactile modes;
• Compensation-related TRS issues (e.g., multiple CAs on a call, consumer requests for CAs mid-call, assignment to specialized CAs, setting the order in which calls are responded to, IP CTS-specific issues); and
• Integration of other forms of TRS into IVCS, including non-internet-based TRS (i.e., TTY, Captioned Telephone Service, and Speech-to-Speech Relay) and IP Relay.

Initial comments in response to the FNPRM will be due 30 days after the FNPRM is published in the Federal Register. Reply comments will be due 30 days after the initial comment deadline.

Next Steps

The rules adopted in the Second R&O represent the most significant action taken by the FCC with respect to video conferencing accessibility since the CVAA was enacted nearly 15 years ago. Although the ACS-related requirements will not take effect for over two years, achieving compliance will likely require meaningful engineering and administrative resourcing for the IVCS providers, equipment manufacturers, and software suppliers subject to the rules. TRS providers will have even less time to comply with the requirements in the Second R&O, so it will be important for such providers to begin taking the steps necessary to meet their new obligations (particularly given the implications of noncompliance on TRS Fund compensation). The Second R&O in many instances provides covered entities flexibility in terms of how to achieve compliance, but successful implementation of the changes needed to comply with the new rules will still require careful planning, and the proposals raised in the FNPRM may portend the arrival of even more IVCS requirements in the not-so-distant future.

DWT has written extensively on a wide range of accessibility-related matters and developments, including those touching on closed captioning settings, online video programming, navigation devices and digital apparatus, and accessibility recordkeeping and certification requirements. If you have any questions or would like to learn more about the Second R&O, the FNPRM, or accessibility requirements generally, please contact Brandon Johnson or Maria Browne.