CVAA – Covered Products and Services
Advanced Communication Services
Advanced Communication Services (ACS) are defined broadly and cover four key areas in the CVAA, including:
Interconnected VoIP service
Which is a classic VoIP service connected to the public telephone network. The requirements here overlap and build on prior requirements in Section 255 of the Communications Act. The definition of “interconnected VoIP service” is both provided for directly in the CVAA and is updated, as needed, from time to time based on 47 CFR 9.3 with the latter definition taking precedence. Broadly, this definition resolves to “classic” VOIP phone applications that allow the user to make and receive calls through the public phone network from a VOIP phone. Example providers include Vonage, MagicJack, Skype and related service providers.
The requirements here overlap and build on prior requirements in Section 255 of the Communications Act. For voice communication services over the Internet, both Section 255 (Phones) and the Section 717 (ACS) cover the same set of requirements with the pre-existing requirements (255 and, accordingly 47 CFR 6) taking precedence. The regulations require that services or equipment that was subject to the Section 255 requirements remain subject to the Section 255 requirements. In practice, this indicates that interconnected VOIP products would be regulated by the 255 regulations and not the ACS regulations. In practice, though, this is not likely to have much of an impact, as the regulations that cover the VOIP products and services under 255 – 47 CFR 6 – are materially the same as those covering ACS products under 47 CFR 14.
Non-interconnected VoIP Service
Which is a VoIP service not connected to the public telephone network. This broadly covers any voice communication products and services that are not connected to the public telephone network. Broadly this covers any service that provides voice based communication including Skype, Google Talk, Facebook Chat or other voice chat services.
Electronic Messaging Service
Which is “a service that provides real-time or near real-time non-voice messages in text form between individuals over communications networks.” In practice, this means software or services providers of text messaging, instant messaging, text chat, e-mail or other communication programs where the communication is occurring primarily in text format. This includes classic chat programs like AOL Instant Messenger, Google’s G-mail product, Yahoo mail, Outlook web client, AOL Instant Messenger, iMessage, Facebook’s chat and messaging features and any components of a device or service that supports electronic messaging. Commenting and other community notation features are excluded, as electronic messages are limited to “more traditional, two-way interactive services such as text messaging, instant messaging, and electronic mail, rather than . . . blog posts, online publishing, or messages posted on social networking websites.” While it is unclear exactly where the burden would fall the CVAA also would likely cover web based chat as this would qualify as a portion of a product or service that provides real time text communication.
Interoperable Video Conferencing Service
Is “a service that provides real-time video communications, including audio, to enable users to share information of the user’s choosing.” This includes the video conferencing capabilities of Skype, Google hangouts, Facetime and other video conferencing services. This includes technologies like web-based video conferencing and, potentially, some forms of screen casting technology when used to facilitate communication between multiple parties. The FCC is currently seeking further clarification and comments on these sections as part of a Further Notice of Proposed Rulemaking issued under the ACS Report and Order (FCC 11-151).
Services and applications that provide access to advanced communications services, such as a broadband platform, are not responsible for ensuring content transmitted over their network is accessible. They are, however, responsible for ensuring that the platform properly transmits any standard accessibility information and does not strip this information out.
Except for third-party accessibility solutions included by the manufacturer, manufacturers are not liable for software that is independently installed by end users, or that users choose to use in the cloud. Manufacturers are generally only responsible to ensure conformance for what they put in the services or device – be that hardware or installed software and applications. Software, hardware peripherals and other items installed by the user after manufacture are generally not the responsibility of the manufacturer.
It should be noted, however, that if an installed application gives the consumer the ability to engage in advanced communications, the provider of that application is a covered entity, regardless of whether the software is downloaded to the consumer’s equipment or accessed in the cloud. So while the manufacturer of the device is not responsible for the compliance of customer-installed ACS components, the manufacturer of those components is required to ensure they conform. While not a direct requirement under the Communications Act, this may be an item to note as part of the overall accessibility support process.
Coverage in Part
The FCC views offerings or services that fall under any of the definitions above in part to be Advanced Communications Services. The scope of goods and services that could be classified as ACS is intentionally broad and includes virtually any voice, text or video communication systems – in whole or part. This means that virtually all software and service providers of voice, e-mail, text or video communications or any service that provides such communications be compliant with relevant portions of the Communications Act.
The commission explicitly noted that when multifunction devices, including laptops, desktops, tablets and smartphones, are used to access advanced communications services they fall under the scope of ACS. Features of the equipment used to access ACS – or other telecommunications services – must conform to the relevant requirements. As an example, “a complaint about the accessibility of an electronic messaging service on a mobile phone will be resolved in accordance with the mandates of Section 716, while a complaint about the accessibility of the voice-based telecommunications service on the same mobile phone will be resolved in accordance with the mandates of Section 255.”
In general, if a function of the device provides interconnected VOIP functionality that functionality would fall under the Section 255 requirements and by extension the regulations found in 47 CFR 6. If a function of the device provided non-interconnected VOIP functionality – or other ACS services – the requirements of Section 716 of the Act would apply and the functionality would fall under 47 CFR 14.
The requirements of Section 716 also apply in part to services – notably websites – that provide ACS. In the example provided in the Report and Order (FCC 11-151 ¶43) , a social networking web site needs to ensure that electronic messaging services provided by the site are accessible and compliant with the requirements of Section 716.
By the same logic, sites that provide text and voice chat services – a common feature of many enterprise sites – will likely need to ensure that the chat service is accessible and has the appropriate paperwork filed with the FCC. The FCC report and order makes it clear that the service must be accessible. However, it is not entirely clear at this point the exact burden that falls on the site in that scenario. The report and order does provide equivalent examples for social media sites that require those features of the site to be accessible. To that extent, a conservative reading assumes that if such chat features are provided, they will fall under the scope of the CVAA and need to be made accessible. In a similar example, services that provide webinars and webcasts provide multiple modes of simultaneously. Text messages are used to communicate, voice is used to discuss the content and video is used to display content on-screen. All of these product features will fall under the CVAA.
Finally, manufacturers bear a requirement to ensure that software upgrades maintain accessibility and compliance for any installed solutions. If an upgrade occurs and it degrades the level of accessibility of the solution, this would be deemed a violation of the ACS requirements.
The FCC explicitly rejected requests that the scope of advanced communications services not include “incidental” components of a product. Essentially, this means if the product or service provides ACS as part of a secondary feature of the product that the product or service should be exempt. The FCC makes it clear that such components are relevant under the scope of the law and will need to conform to the law’s requirements.
With that said, the FCC retains the ability to waive its requirements for services or equipment “designed primarily for purposes other than using advanced communications service” – per statute. These waivers, however, are expected to be provided on a case-by-case basis as needed and are unlikely to apply to broad categories of products.
Video Products and Services
Television Program Creators – Television program creators have a requirement to develop television program content with captions and ensure those captions are properly maintained when content shown on television is transferred to the web. This includes show such as the Big Bang Theory, Burn Notice, NCIS and other any other television shows available over the Internet.
Content Distributors – Distributors of Internet video programming – like YouTube, Vimeo, Amazon On-Demand, Hulu and similar services – must maintain closed captioning and pass it through properly to video players. It is worth noting that if an organization provides a branded video store it would be considered a distributor of Internet video programming and fall under the requirements of this section.
Video Playback Devices and Software – Devices and software that playback full length video content provided over the Internet have a variety of accessibility requirements including the proper display of captions, video description information and access to emergency information.
Video Recording Devices and Software – Devices and software used for recording full length programs – including DVRs and other video recording devices – must properly store and playback accessibility information.