Reminder: Accessibility Record Keeping Certification Required by April 1, 2014

Entities providing traditional telecommunications services, interconnected VoIP, advanced communications services (ACS) (which includes non-interconnected VoIP, electronic messaging services, interoperable video conferencing) and mobile web browsers must submit recordkeeping compliance certifications and contact information to the FCC annually by April 1, 2014, in connection with accessibility requirements imposed by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) unless subject to a waiver. Significantly, previously exempt small businesses must certify for the first time next month. The certifications, which attest that the covered entity has record keeping processes in place that comport with FCC rules, must be supported by an affidavit or declaration of an authorized officer with actual knowledge and be filed using the FCC’s online registry.

As explained in our December 2012 and May 2013 advisories, pursuant to FCC Rules, and subject to substantial forfeitures for non-compliance (up to $1 million per violation), telecommunications, VoIP, ACS providers and manufactures not subject to waivers must keep records of:

1. Efforts to consult with individuals with disabilities (defined broadly to include people with hearing, vision, movement, manipulative, speech, and cognitive disabilities) about product or service accessibility barriers and solutions;
2. Descriptions of the accessibility features of products and services;
3. Information about the compatibility of products and services with peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities; and
4. The extent to which, if a product or service is not accessible, compliance was not “achievable” (or “readily achievable” in the case of telecommunications or interconnected VoIP services offered prior to Oct. 8, 2010).

Records must be updated and maintained until two years after a product or service ceases to be offered. Significantly, these same records may be relied upon by covered entities when defending against complaints that covered services and products are not accessible. To this end, if it is determined that accessibility is not achievable the company’s records should also include information sufficient to demonstrate as much under the FCC’s four factor analysis:

1. The nature and cost of steps needed to make the product or service accessible;
2. The technical or economic impact on the operations of the manufacturer or provider and on the operation of the specific equipment or service in question;
3. The types of operations of the manufacturer or provider; and
4. The extent to which the service provider or manufacturer offers services or equipment containing varying degrees of functionality and features, and offered at differing price points.

Under the FCC’s accessibility rules, telecommunications, VoIP, ACS and mobile browser providers must take accessibility into consideration as soon as possible in the design and redesign/upgrade process of ACS development and deployment, and must meet certain performance requirements for equipment and services launched or materially upgraded after Oct. 8, 2013. Certain services and equipment (including basic e-readers, IP TVs, IP- DVPs, cable set top boxes and specific model gaming equipment) obtained waivers of the accessibility requirements including recording keeping giving them until 2015 to come into compliance.

Please contact one of the attorneys listed here if you would like assistance in developing record keeping processes that meet the FCC requirements and/or completing the online certification.