Updated August 9, 2023: This blog has been updated to reflect the comment deadlines for the Notice of Proposed Rulemaking since published in the Federal Register and the recently announced expiration date for the privacy screen waiver.
The FCC's June 2023 Report and Order clarifying the broad scope of video conferencing services that must be made accessible to persons with disabilities was published today in the Federal Register. As such, by no later than September 3, 2024, all online video conferencing services and related equipment must be accessible to and usable by persons with hearing, speech and vision related disabilities, among others. The associated Notice of Proposed Rulemaking ("NPRM") proposes rule changes requiring video conference service providers to implement specific accessibility solutions and to integrate Communications Assistants and other aspects of the Telecommunications Relay Service ("TRS") into the video conferencing platform. Comments on the NPRM are due September 6, 2023, with reply comments due October 6, 2023.
Section 716 of the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA") requires Advanced Communications Services ("ACS"), which includes VoIP, email, text, and interoperable video conferencing services ("IVCS"), and related equipment, to be accessible to and usable by people with disabilities, unless doing so is not achievable. The FCC rules implementing Section 716 of the CVAA are set forth in 47 CFR Part 14.
Today, ACS providers and manufacturers may comply with the FCC's Part 14 accessibility requirements by either building accessibility features into their services and equipment or by incorporating third-party accessibility solutions at nominal cost to the user. If a provider cannot achieve accessibility through these means, it must make its products and services compatible with peripheral devices, software, hardware, or customer premises equipment that is available to the consumer at nominal cost and that individuals with disabilities can access. The FCC rules do not dictate the specific methods for achieving accessibility; rather, compliance today is measured against disability-related performance objectives.
In addition to ensuring that ACS is accessible, covered providers and manufacturers must also ensure that their ACS products are usable by individuals with disabilities. To be usable, individuals with disabilities must have access to the full functionality and documentation for the product, including instructions, product information (including accessible feature information), billing documentation and technical support functionally equivalent to that provided to individuals without disabilities. Among other things, support, information and billing materials that are available online must be accessible to persons who are blind, or visually impaired.
Covered providers must also create and maintain contemporaneous records of efforts taken to ensure that covered services and equipment are accessible, and must certify compliance with this recordkeeping requirement to the FCC on an annual basis.
Report and Order
Until the FCC released its June 2023 Report and Order, questions remained concerning whether the FCC would limit the scope of covered video conferencing services to those services that interoperate between platforms, networks, or providers. After a more than 10-year hiatus in the rulemaking process, the FCC decided to adopt the statute's broad definition of IVCS, which does not limit covered conferencing services based on the term "interoperable" but instead encompasses all services and equipment that "provid[e] real-time video communications, including audio, to enable users to share information of the user's choosing."
As clarified by the FCC, covered services include all video conferencing services, regardless of whether they are used for point-to-point or point-to-multipoint conversations or by professionals or casual users; are offered to the public or to a private group of users; are available through a downloadable app or a web browser; and regardless of the type equipment used to access the conferencing service or the operating systems or browsers the equipment may use. Thus, it is now clear that the FCC's accessibility rules extend to a variety of video conferencing services that are commonly used today, or may be used in the future, to enable two or more users to share information with one another.
The Order becomes effective September 1, 2023, 30 days after publication in the Federal Register. However, recognizing service providers and manufacturers may need additional time to make their products accessible and usable, the FCC extended the date for compliance with the Part 14 video conferencing service rules until one year from the effective date, i.e., September 3, 2024.
The associated NPRM proposes specific amendments to the Commission's Part 14 ACS accessibility rules to expressly address the manner in which hearing and sight-related performance objectives must be met for IVCS. It also proposes to amend Part 14 to integrate TRS in video conferencing platforms and to amend its TRS rules to help accomplish this integration. Specifically, the NPRM proposes and seeks comment on the following rule changes:
- The proposed FCC accessibility rules would require video conferencing providers to offer text-to-speech and synchronous captioning, accommodate sign language interpretation (including user requests for interpreters), and give control to video conference attendees over certain user interface features (such as the appearance of captions and speakers). The NRPM seeks comments concerning how best to implement and enforce these requirements, including whether the FCC may require both built-in functionality as well as integrated support for third-party solutions, and whether there should be a safe harbor for video conference providers that comply with certain technical standards.
- The proposed accessibility rule changes would also require video conference providers to facilitate user access to Communications Assistants, including sign language interpreters and/or transliterators, supplied by Video Relay Service (VRS) providers.
- The FCC also proposes to amend its TRS rules to facilitate the integration of VRS and video conferencing services, including by clarifying that the integrated provision of TRS in video conferencing can be supported by the TRS Fund, historically available only to support audio calls. This raises the question, not addressed in the item, whether the FCC will seek to require video conferencing service providers to contribute to the TRS Fund.
- The NPRM proposes a rule prohibiting TRS providers and Communications Assistants from disclosing the content of any relayed conversation and from keeping records beyond the duration of the call, other than at the request of the user for the completion of consecutive calls.
- The NPRM addresses several issues stemming from the integration of the dial-up-based TRS program with an Internet-based platform, including: how to authenticate VRS users; how to capture TRS minutes of use for cost recovery for the TRS Fund; funding allocations for TRS calls requiring multiple Communications Assistants; and accommodating the use of visual privacy screens.
- The NPRM seeks input on the costs and benefits of the proposed rule changes, and asks for input on a number of general issues, such as the extent of current employer-provided or publicly available accommodations and the extent to which IVCS and VRS providers are already working on integrating accessibility features.
Comments and reply comments on the NPRM are due September 6, 2023, with reply comments due October 6, 2023.
The June item also included an immediately effective Order granting all certified VRS providers a one-year, partial waiver of the privacy screen rule to allow VRS users and Communications Assistants to turn off video during a video conference, subject to certain conditions. The waiver requires VRS providers to identify in their monthly compensation requests every video conference call in which VRS is provided on an integrated basis. Providers must also provide the TRS Fund administrator with all information reasonably requested to determine TRS payments and the compensability of such video conference calls. Additionally, to inform customers of any technical limitations and provide solutions for resolution, VRS providers are required to prominently display a notice to their VRS consumers connecting to video conferencing services as follows:
- "This application for connecting to video conferencing services is in development and its features and functions may change as development continues;
- At this time, this application allows connections with only [name and applicable IVCS providers] and not to all video conferencing services; and
- Consumers should contact a [name of VRS provider] representative at EMAIL/NUMBER if they cannot connect to a [name of applicable IVCS provider] video conference with the application or if the application fails during a [name applicable IVCS provider] video conference after an initial connection."
The temporary one-year waiver, which became effective June 12, 2023, applies to all certified VRS providers but is limited to "multi-party video conferences," meaning video conferences involving three or more participants, in addition to persons providing TRS or other accessibility services. The waiver will end August 1, 2024.