In late August 2021, the Federal Communications Commission's (FCC) Enforcement Bureau issued an Order and Citation to ViaTalk, LLC, for failing to fulfill its obligations under the Commission's accessibility rules in 47 C.F.R. § 6.11(a). Specifically, the Bureau found that ViaTalk, a provider of interconnected VoIP services, did not ensure that its customers with disabilities had access to adequate product support communications and thus failed in its obligation to ensure that its services were accessible to and usable by persons with disabilities.
The FCC's Accessibility Rules
The FCC rules (implementing Section 255 and Section 716 of the Communications Act) impose obligations on manufacturers and service providers with respect to the accessibility and usability of telecommunications and advanced communications services and equipment, respectively, by individuals with disabilities to the extent that these accommodations are achievable.
Part 6 of the FCC rules governs telecommunications service providers and equipment manufacturers, including those offering interconnected VoIP services and products, on or before October 7, 2010. All non-interconnected VoIP and interconnected VoIP services offered after that date are considered "advanced communications services" governed by Section 716 and Part 14 of the FCC rules, added as part of the 21st Century Communications and Video Accessibility Act (CVAA). Part 14 of the FCC rules also includes procedures for filing a complaint against a manufacturer or service provider alleging violations of Section 255 as well as Section 716.1
In the instant case, claimant Cris Patterson, a quadriplegic, was having issues with his VoIP service and equipment provided by ViaTalk. Patterson made multiple requests to ViaTalk in May of 2020 asking for someone to call him and to help troubleshoot his issues.
When ViaTalk did not follow up with Patterson and refused to send a technician as requested, he filed an informal complaint with the Bureau alleging violations of both sections 255 and 716 of the Communications Act and that ViaTalk's VoIP service was "inaccessible." Because ViaTalk began offering its VoIP service in 2005, the FCC evaluated the claim pursuant to Section 255 and Part 6 of its rules.
- 1. Did ViaTalk satisfy its obligation to provide accessible service pursuant to section 255 and 47 C.F.R. § 6.5(b)?
- 2. Did ViaTalk satisfy its obligation pursuant to section 47 C.F.R. § 6.11(a) of the Commission's rules "to ensure access to information, including product support communications, to individuals with disabilities?"
Because Patterson had successfully used the services for over 10 years, the Bureau found that ViaTalk satisfied its obligations with respect to providing accessible VoIP services. Consequently, the defenses that ViaTalk brought regarding service obligations (e.g., small entity exemption, the service issues were caused by the Claimant's internet service provider), were not discussed in detail by the Bureau. This is significant in that there have long been concerns that VoIP's signal packet technology was not ideal for transmitting TTY messages.
However, the Bureau also concluded that ViaTalk failed in its obligation to provide adequate product support communications to the claimant. Ultimately, the Bureau found that scheduling a follow-up call with Patterson was readily achievable, and ViaTalk violated its obligation to provide product support communications by failing to do so.
Further, ViaTalk has an existing callback service that the company provides to its customers but chose not to schedule a callback because the Patterson threatened litigation. The Bureau found that the obligation to comply with Section 255 and the rules were not eliminated because the claimant threatened legal action.
That this case focused on ViaTalk's VoIP customer support is not surprising in that the vast number of accessibility complaints against service providers (as opposed to equipment manufacturers) relate to failing to provide adequate customer support rather than the underlying service.
The Bureau determined that ViaTalk's customer service support for its interconnected VoIP service failed to comply with the FCC's accessibility rules and, therefore, directed ViaTalk to take specific actions to improve its customer support for persons with disabilities but declined to impose forfeitures. Specifically, the FCC issued the following proposed remedies and gave ViaTalk 14 days to comment:
- System-Wide Improvements: The Bureau ordered ViaTalk to implement "system-wide improvements to ensure that, going forward, all individuals with disabilities will receive prompt and effective responses to concerns about their service." More specifically, within 30 days of the Remedy Order, ViaTalk must establish "processes to ensure that (1) complaints by individuals with disabilities are referred promptly to a ViaTalk representative authorized to resolve the matter and (2) ViaTalk documents all efforts to resolve such complaints and retains such documents for twenty-four (24) months."2
- Contacting Claimant: ViaTalk must contact Patterson within 14 days and schedule a call to assist him with his equipment within 28 days.3
- No Forfeiture: The Bureau declined to propose a monetary forfeiture as part of this order, but the Bureau notes that it is "not precluded from doing so in a separate proceeding."4
Notably, failure to comply with this Order may result in penalties and sanctions, including fines of up to $100,000 per violation or per day of a continuing violation.5
1 There are distinctions based on the timing service was offered. For the services governed by Section 255 on or before October 7, 2010, service providers must make the product or service accessible to or usable by individuals with disabilities if “readily achievable,” which is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9.) For services provided after October 7, 2010, the standard changed somewhat (under Section 716) to delete “readily” and require accommodation if “achievable,” defined as “with reasonable effort or expense.” 47 U.S.C. §§ 617(a)(1), (b)(1), (g). The burden for showing that accessibility is “not achievable” is high; “not readily achievable” less so.
2 Order at ¶ 27.
3 Order at ¶ 26.
4 Order at ¶ 25.
5 Citation at ¶ 2.