Industry Urges Flexibility in CVAA Implementation

The commission should not promote accessibility “only at the cost of innovation,” CEA said in its comments. “Instead, the commission should follow Congress’s flexible, practical roadmap that is based on marketplace realities,” it said. Several trade groups urged the FCC to broadly use its waiver authority. “Indeed, all equipment and services not primarily designed for ACS [advanced communications services] should be granted a waiver,” said TechAmerica. TIA said the FCC should exclude such devices in the first place. Failing that, it should grant categorical waivers for such services and equipment “to ensure industry flexibility."

The cable industry asked the FCC to find that all interconnected VoIP services are subject solely to the accessibility provisions in Section 255 of the Communications Act, even if such services are introduced after the adoption of CVAA rules. “By ensuring that such services are covered by a uniform accessibility regime, this approach will allow covered entities to focus on research and development without the need to juggle the disparate demands of section 255 and section 716” which was amended by the CVAA “for each new product,” it said.

Any rules “must promote the careful balance Congress established between increasing the accessibility of products and services for people with disabilities and avoiding burdening industry with overly detailed or restrictive regulation that hampers innovation and investment,” CTIA said. The proposed rules “fail” in “three critical respects,” it said. They “do not delineate the scope of compliance in a manner that ensures covered entities are not held responsible for the compliance or noncompliance of third parties,” the association said. “While purporting to acknowledge that Congress directed that not every product or service must be made accessible for every disability,” the commission nonetheless “seeks to read that language out of the statute and establish a structure requiring that accessibility in every product or service, unless such accessibility is not achievable.” CTIA said that “despite clear language applying the new requirements only to products and services not already covered by section 255 at the time of enactment, the proposed rules suggest there is an open issue as to whether products or services currently subject to section 255 might nonetheless be subject to the new requirements if they offer a capability covered by the new law."

AT&T urged the commission to take a light touch. Given “that the CVAA was intended to extend disability access protections, rather than replace existing protections, the Commission should narrowly construe its statutory definitions and clearly articulate the limits of the new rules,” the telco said. The CVAA’s waiver process “is essential to ensure that the newly adopted rules do not create unreasonable burdens,” it said. The commission should make rules that “do not impose liability on service providers or manufacturers for applications, devices or services provided by third parties, except where the manufacturer or service provider endorses use of the third party solution,” AT&T said.

The Voice on the Net Coalition also urged the commission to proceed carefully, arguing that definitions of “advanced communications services,” “electronic messaging between individuals” and “interoperable video conferencing” ought “to be narrowly construed.” The agency should grant waivers “liberally” to products designed “for purposes other than” advanced communications services, the coalition said. Accessibility standards “must ensure that consumers with disabilities can use advanced communications while providing flexibility to manufacturers and services providers,” the coalition said. It urged the commission to “give industry time to incorporate the requirements” of CVAA. “The Commission should allow a two-year phase-in period for products and services designed after the rules go into effect, adjusting as may be necessary for different product cycles,” the group said.

DirecTV said it doesn’t “concede that any action is necessary” on statutory licenses. A report for Congress on the potential elimination of statutory licenses should first “examine the threshold question of whether Congress should eliminate the statutory licenses,” said DirecTV. The Copyright Office should also look at the “near certain” market distortions that would go with the alternatives to elimination, as well as “skeptically examine claims that elimination of the licenses would necessarily benefit copyright holders,” the DBS company said.

If the office concludes that the elimination of the licenses is necessary for an open market, another report should describe the necessary reforms that would also be necessary to achieve that end, said DirecTV. An open market would allow distributors and copyright holders to seek out the most beneficial arrangements, which, for a company like DirecTV, may mean a national network feed that bypasses broadcasting altogether, it said. Such a setup would allow DirecTV to avoid paying “duplicative distribution of network programming in nearly 200 markets” and the company said it could be supportive, but elimination of the statutory licenses alone won’t achieve that.

Dish Network said the office should recommend improvements to statutory licensing, rather then replace or eliminate them as a whole. Elimination of statutory licensing would force “many other related rules and regulations” to be “overhauled or abolished,” the company said. Congress should adopt a single consolidated statutory license, with distinct rules for carriage of TV signals applicable to cable, satellite and online video distributors, it said. Cable and DBS are treated differently under copyright and communications law largely for historical reasons rather than technological or market ones, said Dish.