FCC to Consider ACS Accessibility Waivers on a Case By Case Basis
TV sets and video game consoles that allow their users to make phone calls, video calls and send text messages aren’t yet categorically exempt from new federal accessibility rules, but their manufacturers can seek waivers from those rules on a case-by-case basis, said an FCC order implementing parts of the 21st Century Communications and Video Accessibility Act (CVAA) released late Friday. CEA and the Entertainment Software Association had sought broader class-waivers from the accessibility rules (CD July 21 p11). They aren’t in the order released Friday, but the commission said it will consider waivers for classes of devices as they come in.
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"We believe that petitioners will benefit from the opportunity to re-file these waiver requests consistent with the requirements in the Report and Order,” the order said. “Because of the phase-in period for the implementation of these rules, petitioners will have flexibility to seek a waiver subsequent to this Report and Order without incurring unreasonable compliance expense,” it said, encouraging them to seek such waivers.
The commission will consider what purpose the device was developed for and whether it was designed for multiple purposes, it said. “The CVAA would have little meaning if we were to consider waiving Section 716 with respect to the e-mail and text messaging features on a smartphone on the grounds that the phone was designed in part for voice communications,” the order said. And a device’s marketing will play a role in the FCC’s waiver analysis, the order said.
In granting waivers for entire classes of devices, the commission will look for petitioners to specifically define the class of devices, provide information on the expected lifecycle of the equipment, and consider waiver requests that cover multiple generations of a product, it said. Concern among parties that class waivers could result in a class of inaccessible products and services will be addressed by the FCC’s “fact-specific, case-by-case analysis of waiver petition and the specific duration for which we will grant each class waiver,” it said.
CEA praised the order Friday. “Although there are outstanding issues to be addressed, CEA commends the Commission for its open consideration of views from all parts of the public,” said Julie Kearney, CEA vice president of regulatory affairs.
Commissioners Michael Copps and Mignon Clyburn had concerns with provisions that exempt software from parts of the accessibility rules. “Except for third-party accessibility solutions, there is no liability for a manufacturer of end user equipment for the accessibility of software that is independently selected and installed by the user, or that the user chooses to use in the cloud,” the order said. Copps’ concerns led him to dissent from that part of the order, but Clyburn said she believed the order took the right approach. “I see reasonable arguments on both sides of this issue,” Clyburn said in a statement released with the order. Copps said he saw no ambiguity: “When Congress said ’software,’ I don’t think it was ambiguous.” Rep. Ed Markey, D-Mass., said all software, whether it’s already loaded on a device or purchased separately, should have to meet the same accessibility standards. “I encourage the Commission to be vigilant to ensure that the Order’s narrower interpretation on software does not create a loophole that limits accessibility,” he said.