FCC makes a nuanced call on accessibility requirements for devices having advanced but non-essential functions.

It’s not easy being the FCC. Just when you think you’ve managed to put various devices into their appropriate regulatory pigeonholes, somebody comes along to argue that some device ought to be excepted out of one pigeonhole and placed in another.

Case in point: e-readers like the Kindle and the Nook. The FCC requires that all Advanced Communications Services (ACS) – VoIP, email, Instant Messaging, SMS text messaging, video chat, and the like – and all devices used for ACS be accessible to individuals with disabilities.  Many, possibly most, e-readers include ACS capabilities, so they must be accessible to persons with disabilities, right?

Not necessarily.  That requirement may be waived if a device is “designed primarily” for other purposes. And now the FCC has decided that, at least for the time being, some e-readers will not be required to comply with the accessibility rules.

Specifically, for the next year (until January 28, 2015) certain of the ACS accessibility rules – in particular, Sections 14.20, 14.21 and 14.31 of the FCC’s rules – have been waived for “basic e-readers”. The universe of e-readers falling into that “basic” category consists of devices that: 

  1. have no LCD screen;
  2. have no camera;
  3. are not offered or shipped to consumers with built-in ACS client applications (and the manufacturer doesn’t develop such applications for the devices in question); and
  4. are marketed and promoted as reading devices without touting ACS capability.

How the FCC analyzed the issues and defined the boundaries and duration of the waiver show some elegant solutions to dealing with the complex and ever-changing world of consumer devices.

ACS include the sorts of functions we’ve come to love on our computers, smartphones, and tablets. The FCC requires that ACS-equipped devices be designed to accommodate people with disabilities, primarily the blind. And with good reason. The Internet revolution has changed the way we interact with each other and the world around us. It would be unfair to leave a portion of the population behind.

But full accessibility for folks with disabilities is usually not cheap; it can require lots of additional programming, and potentially even hardware changes. That’s why the FCC decided to give some kinds of hardware a pass: no need to hamstring the development and proliferation of different kinds of devices by requiring accessibility where lack of accessibility would not likely impose serious disadvantages on those with disabilities.

Drawing those distinctions in practice, though, is difficult. For devices in which ACS functionality is a peripheral feature, the manufacturer might prefer to take one of several courses, none of them desirable, to avoid the costs and practical burdens imposed by an accessibility requirement. The manufacturer could: (1) simply remove the ACS functionality altogether; or (2) raise the price to cover those additional costs; or (3) stop manufacture of the device altogether. None of these is a good option. But the FCC also wants to make sure any exception it carves out doesn’t swallow the rule.

In some ways, e-readers are the perfect test case. Many people who own e-readers might be surprised to learn that they are capable of some ACS functions. Yet the social features of these devices, such as sharing book passages with friends or collaborating on a manuscript, are definitely part of their appeal.

The FCC decided (quite smartly, in my opinion) to focus on how these devices are marketed, as opposed to just looking at the list of features. Do ads for the Nook or the Kindle stress the ability to share through Twitter what you’re reading on the e-reader? Or do such ads focus instead mostly on non-ACS features such as the book selection, screen quality, battery life, storage space, etc.? The marketing sheds useful light on how people are primarily using these devices – or at least how the manufacturers and retailers believe they’ll be used.

After due consideration of the available evidence, the Commission decided to give e-readers a one-year waiver of the accessibility requirements.

The waiver does impose some specific hardware limitations on e-readers. In particular, the waiver does not apply to devices that include a camera or an LCD screen. Those represent two of the major differences between e-readers and their tablet cousins, some of which are marketed under the same product name. Accordingly, the standard Kindle and Nook, which have e-ink screens and no camera, need not be accessible to persons with disabilities; the Kindle Fire and Nook HD, which have LCD screens and cameras, must be.

(E-ink uses small amounts of electricity to control a magnetically charged fluid, making it suitable for text and black-and-white images; e-ink screens are not backlit, and once an image is rendered, it can remain on the screen without using any additional power, making it ideal to display books and newspapers. LCD screens, ubiquitous on tablets, laptops, and desktop monitors, project light through pixels working in concert to form an image; they refresh faster and have much higher resolution, and show better color, but they also consume much more power.)

Waiver opponents argued, unsuccessfully, that the social and ACS features of e-readers are more important that their manufacturers represent, and that technological progress might make the LCD/e-ink distinction meaningless in a short time.

The FCC was convinced that e-readers in their present state are not designed and marketed for their ACS features and thus may be entitled to a waiver. But the FCC acknowledged that the technology and marketplace are developing rapidly and that e-readers’ ACS features could become a “co-primary purpose” of the devices in the reasonably short term. Recognizing that, and also that the lifecycle of the class of “basic e-readers” is just one year, the FCC determined that a one-year waiver would be appropriate, subject to possible extension down the line.

This Order is about more than just tablets and e-readers. Counterintuitive though it may seem, waivers are a crucial part of the regulatory system – perhaps as crucial as the rules themselves. Justice and fairness require that agencies make their decisions based on generally applicable rules, but without some release valve for cases at the margins, the system cannot truly serve the public interest. It is impossible to write a rule or law that perfectly and permanently fits the ever-changing state of communications technology. The FCC must continue to struggle with finding the right balance between strictly applying the rules and waiving them when circumstances warrant.

This Order demonstrates the FCC’s practical flexibility, recognizing the appropriateness of a waiver under prevailing circumstances today, while acknowledging that a permanent (or even long-term) waiver may quickly become over- or under-inclusive in the rapidly changing environment.

This writer is particularly impressed, favorably, with the FCC’s treatment of marketplace factors as relevant to the disposition of the waiver here. Increased consideration of, and reliance on, real-world marketplace developments should give the FCC a more accurate picture of the true nature of consumer devices such as e-readers, especially since the information it gets from such sources as advertisements will, ideally, be less influenced by lawyers trying to work around regulatory rules. Marketing data can add an important piece to the regulatory puzzle, especially when important conflicting interests need to be resolved – for example, the need to assure persons with disabilities access to ACS-equipped devices v. the need to encourage technical development.. This writer hopes that the Commission adopts this kind of framework in appropriate future waiver proceedings, if for no other reason than to let the market play a greater role in setting these regulatory categories.