Telecom Providers and Manufacturers: Accessibility-Related Recordkeeping and Certification Requirements Are Now in Effect

For some time already many, if not most, communications service providers and equipment makers have had to ensure accessibility to the disabled; now they’ve got to keep records of those efforts AND separately certify to the FCC that they’re in fact keeping those records.

If you happen to be subject to Section 255, 716 and/or 718 of the Communications Act, the FCC wants to make sure that you know you’ve got some recordkeeping to do – and some reporting, too. (Fuzzy on whether you’re in that club? If you are not a communications service provider or equipment manufacturer, you need read no further. If you do happen to fall into one or both of those categories, you should read on, although it may turn out that you, too, are off the hook.)

The new recordkeeping requirements – which took effect on January 30, 2013 – arise from Congress’s repeated efforts to ensure that telecommunications services and equipment are accessible to folks with disabilities. Thanks to those efforts, certain service providers and manufacturers must take affirmative steps to provide accessibility to the extent achievable. 

And now, in addition to actually taking those steps, the affected companies must also maintain records of the steps they’ve taken . . . and they’ve also got to confirm to the FCC, once a year, that they are indeed maintaining such records.

What kind of recordkeeping are we talking about?

According to the Commission, affected entities must maintain, in the ordinary course of business:

  • records of information about efforts to consult with individuals with disabilities;
  • descriptions of the accessibility features of their products and services; and
  • information about the compatibility of such products and services with peripheral devices or specialized customer premise equipment commonly used by individuals with disabilities to achieve access.

Section 14.31, which imposes this obligation, is light on specifics – no particular format for the records is mandated. However, the records must be kept “for a two year period from the date a product ceases to be manufactured or a service ceases to be offered”. (The Commission’s public notice about the recordkeeping rule says – unhelpfully, and perhaps a bit misleadingly – that the records must be maintained “for a reasonable period”.) 

Once the records have been prepared, there is no obligation that they be submitted to the FCC (unless a complaint is filed and the FCC then asks for them). But that doesn’t mean that you don’t have to file anything at all.

Au contraire. The Commission wants to be sure that everybody that’s supposed to be keeping records is in fact keeping records, even if the FCC isn’t particularly interested in seeing the records themselves. So, as of this year, every telecom service provider and manufacturer subject to the recordkeeping requirement must submit a certificate to the FCC, annually, confirming that the certifying entity “has established operating procedures that are adequate to ensure compliance with the recordkeeping rules and that it is keeping records accordingly”. That certificate must be supported by a statement – signed under oath or penalty of perjury – from an authorized company official verifying the truth and accuracy of the report.

In addition, the certificate must include the name and contact information of company personnel authorized to receive service, and/or resolve, complaints about possible violations of the accessibility rules.

When do these certificates have to be filed? By April 1 of each year (but note that the certificate must be updated as necessary to keep the contact information current).

What period of time is covered by each annual certificate? According to Section 14.31(b)(3), each certificate relates to “records pertaining to the previous calendar year”. That, of course, poses something of a problem with respect to the certificate due to be filed April 1, 2013, since the recordkeeping requirement did not take effect until January 30, 2013 and, thus, nobody was required to keep records during the previous calendar year. The Commission’s public notice addresses that conundrum by asserting that the certificate due by this coming April Fool’s Day “must certify that, as of January 30, 2013 (the effective date of the recordkeeping rules), records are being kept in accordance with the Commission’s rules.” That’s not really what the actual rule (that would be Section 14.31(b)(3)) seems to provide, but if you opt to comply with the public notice’s direction, the FCC probably won’t hold it against you.

How do you file these certificates and updates? Electronically, through the FCC’s web-based Recordkeeping Compliance Certification and Contact Information Registry. (You’ll need your FRN and password to access the upload site.)

And who, exactly, is required to file these annual certificates? This gets a little complicated. As we said up front, the accessibility requirements – i.e., the focus of the recordkeeping/certification obligations – are imposed by Sections 255, 716 and 718 of the Act. Each of those sections applies to particular categories of communications-related service providers and the manufacturers of equipment used for such services:

  • Section 255 applies to providers of telecommunications services, interconnected VoIP services, voicemail, or interactive menu services, as well as to manufacturers of equipment for telecommunications or interconnected VoIP services.
  • Section 716 applies to providers of “advanced communications services” (ACS) and manufacturers of equipment (including end-user, network and software) for such services.  For purposes of these new requirements, covered ACS include: non-interconnected VoIP services (e.g., “one-way VoIP”), electronic messaging services (e.g., text-messaging, instant messaging, e-mail) and interoperable video conferencing services (e.g., real-time video chat).
  • Section 718 applies to manufacturers of, and service providers offering, mobile phones that include an Internet browser.

The recordkeeping and certification requirements are identical for all categories, even though the specific substantive accessibility requirements are not. 

Let’s take a quick look at those categories. Sections 255 and 718 are reasonably straightforward – if you belong to one of these, you should know it. But Section 716 is trickier.

First, the definition of ACS technically includes “interconnected VoIP” services. But “interconnected VoIP” services – as currently defined by the FCC – are not subject to Section 716. That section specifically excludes any services that were already subject to Section 255 prior to the enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) on October 8, 2010, and Section 255 was extended to interconnected VoIP services (as currently defined) in 2007. So there appears to be an inconsistency here. 

While the FCC could conceivably change the definition, or regulatory classification, of “interconnected VoIP” in the future, for the time being interconnected VoIP providers and equipment manufacturers should be pleased to know that they appear to be subject to the slightly less burdensome accessibility requirements of Section 255 as opposed to the heftier burdens of Section 716.

Second, entities subject to Section 716 can also include providers/developers of software (e.g., applications, cloud-based services, etc.) used to engage in ACS. As the FCC explained, “if software gives the consumer the ability to send and receive e-mail, send and receive text messages, make non-interconnected VoIP calls, or otherwise engage in advanced communications, then provision of that software is provision of ACS.” 

But hold on there. The FCC, somewhat confusingly, distinguishes between software which allows one to “engage” in ACS and software which merely “manages” ACS. Providing the latter type of software (for which the FCC offers Microsoft Outlook as an example) as a standalone product is apparently not the provision of ACS subject to Section 716. If you want to see the FCC’s full discussion of this, feel free to peruse the 302-page order. Otherwise, be aware that special accessibility considerations may need to be given for communications-related software.

On the positive side, Section 716 is subject to a number of exemptions or exclusions. As mentioned above, Section 716 excludes any service which was already covered by Section 255 prior to the CVAA. Additionally, Section 716 exempts customized equipment or services used on private networks, and the FCC has adopted a limited exemption for qualifying “small entities”. The qualification criteria for the “small entity” exemption are industry specific, and are based on standards established by the Small Business Administration. (Example: Most telecommunications service providers with 1,500 or fewer employees qualify as small entities, but an “Electronic Computer Manufacturing” company would qualify only if it has 1,000 or fewer employees.) 

Despite the obvious temptation, you might not want to get too heavily invested in the “small entity” exemption: it’s currently set to expire on October 8, 2013.

Finally, thanks to Section 716(h), the Commission may waive the Section 716 obligations where the equipment/service in question: “(A) is capable of accessing an advanced communications service; and (B) is designed for multiple purposes, but is designed primarily for purposes other than using advanced communications services.” Many devices are designed for multiple purposes these days, so just because a mobile phone also takes pictures does not mean the FCC will think it qualifies for a waiver under Section 716. Anybody thinking that they qualify for a waiver will have to submit a waiver request – and get that request granted – before they will be free of their statutory chores.

To read more about the new recordkeeping and certification filing requirements, check out the FCC’s recent Public Notice.

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