[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82354-82402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31162]



[[Page 82353]]

Vol. 76

Friday,

No. 251

December 30, 2011

Part II





Federal Communications Commission





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47 CFR Parts 1, 6, 7, et al.





Implementing the Provisions of the Communications Act of 1934, as 
Enacted by the Twenty-First Century Communications and Video 
Accessibility Act of 2010; Final Rule

  Federal Register / Vol. 76 , No. 251 / Friday, December 30, 2011 / 
Rules and Regulations  

[[Page 82354]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 6, 7, and 14

[CG Docket No. 10-213; WT Docket No. 96-198; CG Docket No. 10-145; FCC 
11-151]


Implementing the Provisions of the Communications Act of 1934, as 
Enacted by the Twenty-First Century Communications and Video 
Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts rules that implement 
provisions of section 104 of the Twenty-First Century Communications 
and Video Accessibility Act of 2010 (CVAA), Public Law 111-260, the 
most significant accessibility legislation since the passage of the 
Americans with Disabilities Act (ADA) in 1990. A Proposed Rule relating 
to implementation of section 718 of the Communications Act of 1934, as 
enacted by the CVAA, is published elsewhere in this issue of the 
Federal Register. This proceeding amends the Commission's rules to 
ensure that people with disabilities have access to the incredible and 
innovative communications technologies of the 21st-century. These rules 
are significant and necessary steps towards ensuring that the 54 
million Americans with disabilities are able to fully utilize and 
benefit from advanced communications services (ACS). People with 
disabilities often have not shared in the benefits of this rapid 
technological advancement. The CVAA implements steps in addressing this 
inequity by advancing the accessibility of ACS in a manner that is 
consistent with our objectives of promoting investment and innovation. 
This is consistent with the Commission's commitment to promote rapid 
deployment of and universal access to broadband services for all 
Americans.

DATES: Effective January 30, 2012, except 47 CFR 14.5, 14.20(d), 14.31, 
14.32, and 14.34 through 14.52, which contain information collection 
requirements that have not been approved by the Office of Management 
and Budget (OMB). The Commission will publish a document in the Federal 
Register announcing the effective date of those sections.

FOR FURTHER INFORMATION CONTACT: Rosaline Crawford, Consumer and 
Governmental Affairs Bureau, at (202) 418-2075 or 
[email protected]; Brian Regan, Wireless Telecommunications 
Bureau, at (202) 418-2849 or [email protected]; or Janet Sievert, 
Enforcement Bureau, at (202) 418-1362 or [email protected]. For 
additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Cathy Williams, Federal Communications Commission, at (202) 418-2918, 
or via email [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 11-151, adopted and released on October 7, 2011. The 
full text of this document is available for inspection and copying 
during normal business hours in the FCC Reference Information Center, 
Room CY-A257, 445 12th Street SW., Washington, DC 20554. The complete 
text may be purchased from the Commission's duplicating contractor, 
Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., 
Room CY-B402, Washington, DC 20554, (202) 488-5300, facsimile (202) 
488-5563, or via email at [email protected]. The complete text is also 
available on the Commission's Web site at http://hraunfoss.fcc.gov/edocs_public/attachment/FCC-11-151A1doc. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer and Governmental Affairs Bureau (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Final Paperwork Reduction of 1995 Analysis

    This document contains new and modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection requirements contained in document FCC 11-151 as 
required by the PRA of 1995, Public Law 104-13. In addition, we note 
that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought 
specific comment on how the Commission might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.
    In this proceeding, we adopt new recordkeeping rules that provide 
clear guidance to covered entities on the records they must keep to 
demonstrate compliance with our new rules. We require covered entities 
to keep the three categories of records set forth in section 
717(a)(5)(A) of the CVAA. We also require annual certification by a 
corporate officer that the company is keeping the required records. We 
have assessed the effects of these rules and find that any burden on 
small businesses will be minimal because we have adopted the minimum 
recordkeeping requirements that allow covered entities to keep records 
in any format they wish. This approach takes into account the variances 
in covered entities (e.g., size, experience with the Commission), 
recordkeeping methods, and products and services covered by the CVAA. 
Furthermore, this approach provides the greatest flexibility to small 
businesses and minimizes the impact that the statutorily mandated 
requirements impose on small businesses. Correspondingly, we considered 
and rejected the alternative of imposing a specific format or one-size-
fits-all system for recordkeeping that could potentially impose greater 
burdens on small businesses. Moreover, the certification requirement is 
possibly less burdensome on small businesses than large, as it merely 
requires certification from an officer that the necessary records were 
kept over the previous year; this is presumably a less resource 
intensive certification for smaller entities. Finally, we adopt a 
requirement that consumers must file a ``Request for Dispute 
Assistance'' with the Consumer and Governmental Affairs' Disability 
Rights Office as a prerequisite to filing an informal complaint with 
the Enforcement Bureau. This information request is beneficial because 
it will trigger Commission involvement before a complaint is filed and 
will benefit both consumers and industry by helping to clarify the 
accessibility needs of consumers. It will also encourage settlement 
discussions between the parties in an effort to resolve accessibility 
issues without the expenditure of time and resources in the informal 
complaint process. We also note that we have temporarily exempted small 
entities from the rules we have adopted herein while we consider, in 
the Accessibility FNPRM, whether we should grant a permanent exemption, 
and what criteria should be associated with such an exemption.

Synopsis

I. Executive Summary

    1. In this Report and Order, we conclude that the accessibility 
requirements of section 716 of the Act apply to non-interconnected VoIP 
services, electronic messaging services,

[[Page 82355]]

and interoperable video conferencing services. We implement rules that 
hold entities that make or produce end user equipment, including 
tablets, laptops, and smartphones, responsible for the accessibility of 
the hardware and manufacturer-provided software used for email, SMS 
text messaging, and other ACS. We also hold these entities responsible 
for software upgrades made available by such manufacturers for download 
by users. Additionally, we conclude that, except for third-party 
accessibility solutions, there is no liability for a manufacturer of 
end user equipment for the accessibility of software that is 
independently selected and installed by the user, or that the user 
chooses to use in the cloud. We provide the flexibility to build-in 
accessibility or to use third-party solutions, if solutions are 
available at nominal cost (including set up and maintenance) to the 
consumer. We require covered entities choosing to use third-party 
accessibility solutions to support those solutions for the life of the 
ACS product or service or for a period of up to two years after the 
third-party solution is discontinued, whichever comes first. If the 
third-party solution is discontinued, however, another third-party 
accessibility solution must be made available by the covered entity at 
nominal cost to the consumer. If accessibility is not achievable either 
by building it in or by using third-party accessibility solutions, 
equipment or services must be compatible with existing peripheral 
devices or specialized customer premises equipment commonly used by 
individuals with disabilities to achieve access, unless such 
compatibility is not achievable.
    2. We also conclude that providers of advanced communications 
services include all entities that offer advanced communications 
services in or affecting interstate commerce, including resellers and 
aggregators. Such providers include entities that provide advanced 
communications services over their own networks, as well as providers 
of applications or services accessed (i.e., downloaded and run) by 
users over other service providers' networks. Consistent with our 
approach for manufacturers of equipment, we find that a provider of 
advanced communications services is responsible for the accessibility 
of the underlying components of its service, including software 
applications, to the extent that doing so is achievable. A provider 
will not be responsible for the accessibility of components that it 
does not provide, except when the provider relies on a third-party 
solution to comply with its accessibility obligations.
    3. We adopt rules identifying the four statutory factors that will 
be used to conduct an achievability analysis pursuant to section 716: 
(i) The nature and cost of the steps needed to meet the requirements of 
section 716 of the Act and this part with respect to the specific 
equipment or service in question; (ii) the technical and economic 
impact on the operation of the manufacturer or provider and on the 
operation of the specific equipment or service in question, including 
on the development and deployment of new communications technologies; 
(iii) the type of operations of the manufacturer or provider; and (iv) 
the extent to which the service provider or manufacturer in question 
offers accessible services or equipment containing varying degrees of 
functionality and features, and offered at differing price points. 
Pursuant to the fourth achievability factor, we conclude that covered 
entities do not have to consider what is achievable with respect to 
every product, if such entity offers consumers with the full range of 
disabilities products with varied functions, features, and prices. We 
also conclude that ACS providers have a duty not to install network 
features, functions, or capabilities that impede accessibility or 
usability.
    4. We adopt rules pursuant to section 716(h)(1) to accommodate 
requests to waive the requirements of section 716 for ACS and ACS 
equipment. We conclude that we will grant waivers on a case-by-case 
basis and adopt two factors for determining the primary purpose for 
which equipment or a service is designed. We will consider whether the 
equipment or service is capable of accessing ACS and whether it was 
designed for multiple purposes but primarily for purposes other than 
using ACS. In determining whether the equipment or service is designed 
primarily for purposes other than using ACS, the Commission shall 
consider the following factors: (i) whether the product was designed to 
be used for ACS purposes by the general public; and (ii) whether the 
equipment or services are marketed for the ACS features and functions.
    5. Our new accessibility rules further provide that we may also 
waive, on our own motion or in response to a petition, the requirements 
of section 716 for classes of services and equipment that meet the 
above statutory requirements and waiver criteria. To be deemed a class, 
members of a class must have the same kind of equipment or service and 
same kind of ACS features and functions.
    6. We further conclude that the Commission has the discretion to 
place time limits on waivers. The waiver will generally be good for the 
life of the product or service model or version. However, if 
substantial upgrades are made to the product that may change the nature 
of the product or service, a new waiver request must be filed. Parties 
filing class waiver requests must explain in detail the expected 
lifecycle for the equipment or services that are part of the class. All 
products and services covered by a class waiver that are introduced 
into the market while the waiver is in effect will ordinarily be 
subject to the waiver for the duration of the life of those particular 
products and services. For products and services already under 
development at the time when a class waiver expires, the achievability 
analysis conducted may take into consideration the developmental stage 
of the product and the effort and expense needed to achieve 
accessibility at that point in the developmental stage. To the extent a 
class waiver petitioner seeks a waiver for multiple generations of 
similar equipment and services, we will examine the justification for 
the waiver extending through the lifecycle of each discrete generation.
    7. We adopt a timeline for consideration of waiver requests similar 
to the Commission's timeline for consideration of applications for 
transfers or assignments of licenses or authorizations relating to 
complex mergers. We delegate to the Consumer and Governmental Affairs 
Bureau the authority to act upon all waiver requests, and urge the 
Bureau to act promptly with the goal of completing action on each 
waiver request within 180 days of public notice. In addition, we 
require that all public notices of waiver requests provide a minimum 
30-day comment period. Finally, we note that these public notices will 
be posted and highlighted on a Web page designated for disability-
related information in the Disability Rights Office section of the 
Commission's Web site.
    8. The Commission has already received requests for class waivers 
for gaming equipment, services, and software, and TVs and Digital Video 
Players (``DVPs'') enabled for use with the Internet. While we conclude 
that the record is insufficient to grant waivers for gaming and IP-
enabled TVs and DVPs, parties may re-file requests consistent with the 
new waiver rules.
    9. We construe section 716(i) of the Act to provide a narrow 
exemption from

[[Page 82356]]

the accessibility requirements of section 716. Specifically, we 
conclude that equipment that is customized for the unique needs of a 
particular entity, and that is not offered directly to the public, is 
exempt from section 716. We conclude that this narrow exemption should 
be limited in scope to customized equipment and services offered to 
business and other enterprise customers only. We also conclude that 
equipment manufactured for the unique needs of public safety entities 
falls within this narrow exemption.
    10. We find that the record does not contain sufficient support to 
adopt a permanent exemption for small entities. Nonetheless, we believe 
that relief is necessary for small entities that may lack the legal, 
technical, or financial ability to conduct an achievability analysis or 
comply with the recordkeeping and certification requirements under 
these rules. Therefore, we adopt a temporary exemption for ACS 
providers and ACS equipment manufacturers that qualify as small 
business concerns under the Small Business Administration's rules and 
small business size standards. The temporary exemption will expire on 
the earlier of (1) the effective date of small entity exemption rules 
adopted pursuant to the Further Notice of Proposed Rulemaking released 
simultaneously with this order (``Accessibility FNPRM''), or (2) 
October 8, 2013.
    11. We adopt as general performance objectives the requirements 
that covered equipment and services be accessible, compatible, and 
usable. We defer consideration of more specific performance objectives 
to ensure the accessibility, usability, and compatibility of ACS and 
ACS equipment until the Access Board adopts Final Guidelines and the 
Emergency Access Advisory Committee (EAAC) provides recommendations to 
the Commission relating to the migration to IP-enabled networks. 
Additionally, consistent with the views of the majority of the 
commenters, we refrain from adopting any technical standards as safe 
harbors for covered entities. To facilitate the ability of covered 
entities to implement accessibility features early in product 
development cycles, we gradually phase in compliance requirements for 
accessibility, with full compliance required by October 8, 2013.
    12. We also adopt new recordkeeping rules that provide clear 
guidance to covered entities on the records they must keep to 
demonstrate compliance with our new rules. We require covered entities 
to keep the three categories of records set forth in section 
717(a)(5)(A). We remind covered entities that do not make their 
products or services accessible and claim as a defense that it is not 
achievable for them to do so, that they bear the burden of proof on 
this defense.
    13. In an effort to encourage settlements, we adopt a requirement 
that consumers must file a ``Request for Dispute Assistance'' with the 
Consumer and Governmental Affairs' Disability Rights Office as a 
prerequisite to filing an informal complaint with the Enforcement 
Bureau. We also establish minimum requirements for information that 
must be contained in an informal complaint. While we also adopt formal 
complaint procedures, we decline to require complainants to file 
informal complaints prior to filing formal complaints.

II. Report and Order

1. Advanced Communications Services

a. General
    14. Section 3(1) of the Act defines ``advanced communications 
services'' to mean (A) interconnected VoIP service; (B) non-
interconnected VoIP service; (C) electronic messaging service; and (D) 
interoperable video conferencing service. We will adopt into our rules 
the statutory definition of ``advanced communications services.'' We 
thus agree with commenters that urge us to include all offerings of 
services that meet the statutory definitions as being within the scope 
of our rules. In doing so, we maintain the balance that Congress 
achieved in the CVAA between promoting accessibility through a broadly 
defined scope of covered services and equipment and ensuring industry 
flexibility and innovation through other provisions of the Act, 
including limitations on liability, waivers, and exemptions.
    15. Some commenters asserted that the Commission should exclude 
from the definition of advanced communications services such services 
that are ``incidental'' components of a product. We reject this view. 
Were the Commission to adopt that approach, it would be rendering 
superfluous section 716's waiver provision, which allows the Commission 
to waive its requirements for services or equipment ``designed 
primarily for purposes other than using advanced communications 
service.'' Several parties also ask the Commission to read into the 
statutory definition of advanced communications services the phrase 
``offered to the public.'' They argue that we should exclude from our 
definition advanced communications services those services that are 
provided on an ``incidental'' basis because such services are not 
affirmatively ``offered'' by the provider or equipment. There is 
nothing in the statute or the legislative history that supports this 
narrow reading. Section 3(1) of the Act clearly states that the 
enumerated services are themselves ``advanced communications services'' 
when provided, and does not limit the definition to the particular 
marketing focus of the manufacturers or service providers.
b. Interconnected VoIP Service
    16. Section 3(25) of the Act, as added by the CVAA, provides that 
the term ``interconnected VoIP service'' has the meaning given in Sec.  
9.3 of the Commission's rules, as such section may be amended from time 
to time. Section 9.3, in turn, defines interconnected VoIP as a service 
that (1) enables real-time, two-way voice communications; (2) requires 
a broadband connection from the user's location; (3) requires Internet 
protocol-compatible CPE; and (4) permits users generally to receive 
calls that originate on the public switched telephone network 
(``PSTN'') and to terminate calls to the PSTN. As urged by commenters, 
we adopt the definition of ``interconnected VoIP service'' as having 
the same meaning as in Sec.  9.3 of the Commission's rules, as such 
section may be amended from time to time. Given that this definition 
has broad reaching applicability beyond this proceeding, we find that 
any changes to this definition should be undertaken in a proceeding 
that considers the broader context and effects of any such change.
    17. We confirm that section 716(f) means that section 255, and not 
section 716, applies to telecommunications and interconnected VoIP 
services and equipment offered as of October 7, 2010. Our proposed rule 
read, in part, that ``the requirements of this part shall not apply to 
any equipment or services * * * that were subject to the requirements 
of section 255 of the Act on October 7, 2010.'' We decline to amend our 
proposed rule by substituting the word ``were'' with the word ``are,'' 
as urged by NCTA. The statute makes clear that any equipment or service 
that was subject to section 255 on October 7, 2010, should continue to 
be subject to section 255, regardless of whether that equipment or 
service was offered before or after October 7, 2010. With respect to a 
new service (and equipment used for that service) that was not in 
existence on October 7, 2010, we believe we have the authority to 
classify the service as a service subject to either section 255 or 
section 716 (or

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neither). In addition, Congress anticipated that the definition of 
interconnected VoIP service may change over time. In that event, it is 
possible, for example, that certain non-interconnected VoIP services 
that are currently subject to section 716 may meet a future definition 
of interconnected VoIP services and yet remain subject to section 716.
    18. With respect to multipurpose devices, including devices used 
for both telecommunications and advanced communications services, we 
agree with the vast majority of commenters that argued that section 255 
applies to telecommunications services and to services classified as 
interconnected VoIP as of October 7, 2010, as well as to equipment 
components used for those services, and section 716 applies to non-
interconnected VoIP, electronic messaging, and interoperable video 
conferencing services, as well as equipment components used for those 
services. We reject the suggestion of some commenters that such 
multipurpose devices should be governed exclusively by section 255. 
Nothing in the statute or legislative history indicates that Congress 
sought to exclude from the requirements of section 716 a device used 
for advanced communications merely because it also has 
telecommunications or interconnected VoIP capability. Rather, both the 
House Report and the Senate Report state that smartphones represent a 
technology that Americans rely on daily and, at the same time, a 
technological advance that is often still not accessible to individuals 
with disabilities. If multipurpose devices such as smartphones were 
subject exclusively to section 255, then the advanced communications 
services components of smartphones, which are not subject to section 
255, would not be covered by section 716. That is, there would be no 
requirement to make the advanced communications services components of 
multipurpose devices such as smartphones accessible to people with 
disabilities. Such an approach would, therefore, undermine the very 
purpose of the CVAA.
    19. Due to the large number of multipurpose devices, including 
smartphones, tablets, laptops and desktops, that are on the market, if 
section 716(f) were interpreted to mean that section 716 applies only 
to equipment that is used exclusively for advanced communications 
services, and that section 255 applies only to equipment that is used 
exclusively for telecommunications and interconnected VoIP services, 
almost no devices would be covered by section 716 and only stand-alone 
telephones and VoIP phones would be covered by section 255. That 
reading would undercut Congress's clear aim in enacting the CVAA. Such 
a result is also contrary to how section 255 is currently applied to 
multipurpose equipment and services. Under Commission rules 
implementing section 255, ``multipurpose equipment * * * is covered by 
section 255 only to the extent that it provides a telecommunications 
function'' and not ``to all functions * * * whenever the equipment is 
capable of any telecommunications function.'' Similarly, ``[a]n entity 
that provides both telecommunications and non-telecommunications 
services * * * is subject to section 255 only to the extent that it 
provides a telecommunications service.'' We also disagree with 
commenters that suggest that such multipurpose devices should be 
governed exclusively by section 716. Such an interpretation would 
render section 716(f) meaningless.
    20. We recognize that the application of section 255 and section 
716 to such multipurpose devices means that manufacturers and service 
providers may be subject to two distinct requirements, but as discussed 
above, we believe any other interpretation would be inconsistent with 
Congressional intent. As a practical matter, we note that the nature of 
the service or equipment that is the subject of a complaint--depending 
on the type of communications involved--will determine whether section 
255 or section 716, or both, apply in a given context.
c. Non-interconnected VoIP Service
    21. Section 3(36) of the Act, as added by the CVAA, states that the 
term ``non-interconnected VoIP service'' means a service that ``(i) 
enables real-time voice communications that originate from or terminate 
to the user's location using Internet protocol or any successor 
protocol; and (ii) requires Internet protocol compatible customer 
premises equipment'' and ``does not include any service that is an 
interconnected VoIP service.'' The IT and Telecom RERCs urge us to 
modify the statutory definition of non-interconnected VoIP to read 
``any VoIP that is not interconnected VoIP.'' They are concerned that 
the language in section 3(36) which reads ``does not include any 
service that is an interconnected VoIP service'' could be interpreted 
to mean that if a service ``includes both interconnected and non-
interconnected VoIP, then all the non-interconnected [VoIP] is exempt 
because it is bundled with an interconnected VoIP service.'' In 
response to these concerns, we clarify that a non-interconnected VoIP 
service is not exempt simply because it is bundled or provided along 
with an interconnected VoIP service. Accordingly, we agree with other 
commenters that it is unnecessary and not appropriate to change the 
statutory definition and hereby adopt the definition of ``non-
interconnected VoIP service'' set forth in the Act.
d. Electronic Messaging Service
    22. Section 3(19) of the Act, as added by the CVAA, states that the 
term ``electronic messaging service'' ``means a service that provides 
real-time or near real-time non-voice messages in text form between 
individuals over communications networks.'' We adopt, as proposed, the 
definition of ``electronic messaging service'' contained in the Act. We 
agree with most commenters and find it consistent with the Senate and 
House Reports that electronic messaging service includes ``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 Web sites.'' 
While some common features of social networking sites thus fall outside 
the definition of ``electronic messaging service,'' other features of 
these sites are covered by sections 716 and 717. The Wireless RERC 
asserts that, to the extent a social networking system provides 
electronic messaging services as defined in the Act, those services 
should be subject to sections 716 and 717. While the statute does not 
specifically reference the use of electronic messaging services as part 
of a social networking site, the comments referenced above in the 
Senate and House Reports suggest it was well aware that such aspects of 
social networking sites would fall under the Act. The reports 
specifically exclude ``messages posted on social networking Web 
sites,'' but do not exclude the two-way interactive services offered 
through such Web sites. We therefore conclude that to the extent such 
services are provided through a social networking or related site, they 
are subject to sections 716 and 717 of the Act.
    23. We also find, as proposed in the Accessibility NPRM, that the 
phrase ``between individuals'' precludes the application of the 
accessibility requirements to communications in which no human is 
involved, such as automatic software updates or other device-to-device 
or machine-to-machine communications. Such exchanges between devices 
are also excluded from the definition of electronic messaging

[[Page 82358]]

service when they are not ``messages in text form.'' The definitional 
requirement that electronic messaging service be ``between 
individuals'' also excludes human-to-machine or machine-to-human 
communications.
    24. We conclude that section 2(a) of the CVAA exempts entities, 
such as Internet service providers, from liability for violations of 
section 716 when they are acting only to transmit covered services or 
to provide an information location tool. Thus, service providers that 
merely provide access to an electronic messaging service, such as a 
broadband platform that provides an end user with access to a web-based 
email service, are excluded from the accessibility requirements of 
section 716.
e. Interoperable Video Conferencing Service
    25. An ``interoperable video conferencing service'' is one of the 
enumerated ``advanced communications services'' in the CVAA. Such a 
service is defined by the CVAA as one ``that provides real-time video 
communications, including audio, to enable users to share information 
of the user's choosing.'' Many commenters argue that that the word 
``interoperable'' cannot be read out of the statute, and we agree. 
Congress expressly included the term ``interoperable,'' and therefore 
the Commission must determine its meaning in the context of the 
statute. We find, however, that the record is insufficient to determine 
how exactly to define ``interoperable,'' and thus we seek further 
comment on this issue in the Accessibility FNPRM.
    26. We also find that the inclusion of the word ``interoperable'' 
does not suggest that Congress sought to require interoperability, as 
some commenters have suggested. There simply is no language in the CVAA 
to support commenters' views that interoperability is required or 
should be required, or that that we may require video conferencing 
services to be interoperable because ``interoperability'' is a subset 
of ``accessibility,'' ``usability,'' and ``compatibility'' as required 
by section 716.
    27. We reject CTIA's argument that personal computers, tablets, and 
smartphones should not be considered equipment used for interoperable 
video conferencing service, because these devices are not primarily 
designed for two-way video conferencing, and accessibility should be 
required only for equipment designed primarily or specifically for 
interoperable video conferencing service. Consumers get their advanced 
communications services primarily through multipurpose devices, 
including smartphones, tablets, laptops and desktops. If section 716 
applies only to equipment that is used exclusively for advanced 
communications services, almost no devices would be covered by section 
716, and therefore Congress's aims in enacting the statute would be 
undermined.
    28. With respect to webinars and webcasts, we find that services 
and equipment that provide real-time video communications, including 
audio, between two or more users, are ``video conferencing services'' 
and equipment, even if they can also be used for video broadcasting 
purposes (only from one user). We disagree, however, with the IT and 
Telecom RERCs that providing interactive text messaging, chatting, 
voting, or hand-raising by or between two or more users, along with 
real-time video communications, including audio, only from one user, 
constitutes a ``video conferencing service.'' In this example of a 
system that provides multiple modes of communication simultaneously, 
providing text messaging between two or more users is an electronic 
messaging service. Similarly, telecommunications or VoIP services may 
be provided as part of a webinar or webcast. The provision of 
electronic messaging, VoIP, or other services, alongside real-time 
video communications, including audio, only from one user, does not 
convert the latter into a ``video conferencing service.''
    29. Finally, we agree with commenters that non-real-time or near-
real-time features or functions of a video conferencing service, such 
as video mail, do not meet the definition of ``real-time video 
communications.'' We defer consideration to the Accessibility FNPRM as 
to whether we should exercise our ancillary jurisdiction to require 
that a video mail service be accessible to individuals with 
disabilities when provided along with a video conferencing service. We 
also do not decide at this time whether our ancillary jurisdiction 
extends to require other features or functions provided along with a 
video conferencing service, such as recording and playing back video 
communications on demand, to be accessible.

2. Manufacturers of Equipment Used for Advanced Communications Services

    30. Section 716(a)(1) states the following:

    A manufacturer of equipment used for advanced communications 
services, including end user equipment, network equipment, and 
software, shall ensure that the equipment and software that such 
manufacturer offers for sale or otherwise distributes in interstate 
commerce shall be accessible to and usable by individuals with 
disabilities, unless the requirements of this subsection are not 
achievable.

    31. In the Accessibility NPRM the Commission proposed to find that 
developers of software that is used for advanced communications 
services and that is downloaded or installed by the user rather than by 
a manufacturer are covered by section 716(a). The IT and Telecom RERCs 
support that proposal on the grounds that coverage should not turn on 
how a manufacturer distributes ACS software (pre-installed on a device 
or installed by the user). Microsoft and the VON Coalition, on the 
other hand, argue that section 716(a) must be read as applying only to 
manufacturers of equipment, that ``software'' is not ``equipment,'' and 
that our proposal would impermissibly extend the Commission's authority 
beyond the limits set by Congress in the CVAA.
    32. We find that, while the language of section 716(a)(1) is 
ambiguous, the better interpretation of section 716(a)(1) is that it 
does not impose independent regulatory obligations on providers of 
software that the end user acquires separately from equipment used for 
advanced communications services.
    33. Section 716(a)(1) can be read in at least two ways. Under one 
reading, the italicized phrase ``including end user equipment, network 
equipment, and software'' defines the full range of equipment 
manufacturers covered by the Act. Under this construction, 
manufacturers of end user equipment used for ACS, manufacturers of 
network equipment used for ACS, and manufacturers of software used for 
ACS, would all independently be subject to the accessibility 
obligations of section 716(a)(1), and to the enforcement regime of 
section 717. ``Equipment,'' as used in the phrase ``a manufacturer of 
equipment used for advanced communications services'' would thus refer 
both to physical machines or devices and to software that is acquired 
by the user separately from any machine or device, and software would 
be understood to be a type of equipment. This first reading is the 
interpretation on which we sought comment in the Accessibility NPRM.
    34. Under a second possible reading, the phrase ``manufacturer of 
equipment'' would be given its common meaning as referring to makers of 
physical machines or devices. If such equipment is used for advanced 
communications services, then the equipment manufacturer is responsible 
for making it accessible. Under this

[[Page 82359]]

reading, the phrase ``including end user equipment, network equipment, 
and software'' makes clear that both end user equipment and network 
equipment, as well as the software included by the manufacturer in such 
equipment, must be consistent with the CVAA's accessibility mandate. We 
have modified the definitions of ``end user equipment'' and ``network 
equipment'' that are proposed in the Accessibility NPRM to make clear 
that such equipment may include both hardware and software components. 
Thus, to the extent that equipment used for advanced communications 
services include software components--for example, operating systems or 
email clients--the manufacturer of the equipment is responsible for 
making sure that both ``the equipment and software that such 
manufacturer offers for sale or otherwise distributes in interstate 
commerce'' is accessible.
    35. The text of the CVAA does not compel either of these 
inconsistent readings. The first, more expansive, reading accords more 
easily with the use of commas surrounding and within the phrase ``, 
including end user equipment, network equipment, and software,'' but it 
requires giving the term ``equipment'' a meaning that is far broader 
than its ordinary usage. In addition, if ``equipment'' means 
``software'' as well as hardware, then there was no need for Congress 
to say in the same sentence that ``the equipment and software'' that a 
manufacturer offers must be made accessible. The second, narrower, 
reading gives a more natural meaning to the word ``equipment'' and 
explains why it was necessary for Congress to say that the manufacturer 
of equipment used for ACS must make both ``equipment and software'' 
accessible. The second reading is thus more consistent with the 
interpretive canon that all words in a statute should if possible be 
given meaning and not deemed to be surplusage (as ``software'' would be 
in this phrase under the first reading).
    36. Looking to other provisions of the CVAA, the language of 
section 716(j) is more consistent with the second, narrower 
understanding of section 716(a)(1). Section 716(j) establishes a rule 
of construction to govern our implementation of the Act, stating that 
section 716 shall not be construed to require a manufacturer of 
equipment used for ACS or a provider of ACS ``to make every feature and 
function of every device or service accessible for every disability.'' 
The word ``device'' refers to a physical object and cannot reasonably 
be construed to also refer to separately-acquired software. If, as in 
the broader interpretation of section 716(a)(1), ``manufacturer of 
equipment'' includes manufacturers of separately acquired software, 
then Congress created a rule of construction for section 716 as a whole 
that applies to only some of the equipment that is subject to section 
716(a). The narrower interpretation of section 716(a)(1) produces a 
more logical result, in that section 716(j), as it applies to 
manufacturers of equipment, has the same scope as section 716(a).
    37. Examining the legislative history of the CVAA, we find no 
indication in either the Senate Report or the House Report that 
Congress intended to instruct the Commission to regulate directly 
software developers that are neither manufacturers of equipment nor 
providers of advanced communications services--a class of businesses 
that the Commission historically has not regulated. There is, on the 
other hand, evidence that Congress had makers of physical objects in 
mind when it made ``manufacturers of equipment'' responsible for 
accessibility. For example, the Senate Report states that the Act 
requires manufacturers of equipment used for ACS and providers of ACS 
to ``make any such equipment, which they design, develop, and 
fabricate, accessible to individuals with disabilities, if doing so is 
achievable.'' The Senate Report further says that sections 716(a) and 
716(b) ``require that manufacturers and service providers, 
respectively, make their devices and services accessible to people with 
disabilities.'' Likewise, the House Report states that sections 716(a) 
and 716(b) ``give manufacturers and service providers a choice 
regarding how accessibility will be incorporated into a device or 
service.'' Software is not fabricated, nor are software programs or 
applications referred to as devices. Particularly in light of this 
legislative history, we are doubtful that Congress would have 
significantly expanded the Commission's traditional jurisdiction to 
reach software developers, without any clear statement of such intent.
    38. We disagree with commenters that suggest that the Commission's 
interpretation of CPE in the Section 255 Report and Order compels us to 
find that software developers that are neither manufacturers of ACS 
equipment nor providers of ACS are covered under section 716(a). First, 
in the Section 255 Report and Order, the Commission found that CPE 
``includes software integral to the operation of the telecommunications 
function of the equipment, whether sold separately or not.'' Although 
the statutory definition of CPE did not reference software, the 
Commission found that it should construe CPE similarly to how it 
construed ``telecommunications equipment'' in the Act, which Congress 
explicitly defined to include ``software integral to such equipment 
(including upgrades).'' The Commission did not in the Section 255 
Report and Order reach the issue of whether any entity that was not a 
manufacturer of the end user equipment or provider of 
telecommunications services had separate responsibilities under the 
Act.
    39. Second, in the CVAA, Congress gave no indication that it 
intended the Commission to incorporate, when defining the scope of 
``equipment and software'' for purposes of section 716(a)(1), the 
definitions we have established for the different, but analogous, terms 
(``telecommunications equipment'' and ``customer premises equipment'') 
used in section 255. Here, we interpret the statutory language to 
include all software, including upgrades, that is used for ACS and that 
is a component of the end user equipment, network equipment, or of the 
ACS service--and do not limit software to meaning only software that is 
integral to the network equipment or end user equipment. As we discuss 
further in paragraph 58, infra, if software gives the consumer the 
ability to engage in advanced communications, the provider of that 
software is a covered entity, regardless of whether the software is 
downloaded to the consumer's equipment or accessed in the cloud.
    40. The purpose of sections 716 through 718 of the CVAA--to ensure 
access to advanced communications services for people with 
disabilities--is fully served by the narrower interpretation of section 
716(a) that we describe above because that interpretation focuses our 
regulatory efforts where they will be the most productive.
    41. Advanced communications services are delivered within a complex 
and evolving ecosystem. Communications devices are often general-
purpose computers or devices incorporating aspects of general-purpose 
computers, such as smartphones, tablets, and entertainment devices. In 
the Accessibility NPRM the Commission observed that such systems are 
commonly described as having five components or layers: (1) Hardware 
(commonly referred to as the ``device''); (2) operating system; (3) 
user interface layer; (4) application; and (5) network services. We 
agree with ITI that three additional components in the architecture 
play a role in ensuring the

[[Page 82360]]

accessibility of ACS: (1) Assistive technology (``AT'') utilized by the 
end user; (2) the accessibility application programming interface 
(``API''); and (3) the web browser.
    42. For individuals with disabilities to use an advanced 
communications service, all of these components may have to support 
accessibility features and capabilities. It is clear, however, that 
Congress did not give us the task of directly regulating the 
manufacturers, developers, and providers all of these components. 
Rather, Congress chose to focus our regulatory and enforcement efforts 
on the equipment manufacturers and the ACS providers.
    43. We believe that end user equipment manufacturers, in 
collaboration with the developers of the software components of the 
equipment and related service providers, are best equipped to be 
ultimately responsible for ensuring that all of the components that the 
end user equipment manufacturer provides are accessible to and usable 
by individuals with disabilities. Manufacturers are responsible for the 
software components of their equipment whether they pre-install the 
software, provide the software to the consumer on a physical medium 
such as a CD, or require the consumer to download the software. The 
manufacturer is the one that purchases those components and is 
therefore in a position to require that each of those components 
supports accessibility. Similarly, as we discuss further below, the 
provider of an advanced communications service is the entity in the 
best position to make sure that the components (hardware, software on 
end user devices, components that reside on the web) it provides and 
that make up its service all support accessibility.
    44. We believe these conclusions will foster industry collaboration 
between manufacturers of end user equipment, software manufacturers, 
and service providers and agree with TWC that this collaboration must 
be a central tenet in the efforts to implement the CVAA. For example, 
as Microsoft states, ``a laptop manufacturer that builds ACS into its 
device will need to consult with the developer of the operating system 
to develop this functionality, and in that way the operating system 
provider will be deeply involved in solving these problems and 
promoting innovations in accessibility, such as making an accessibility 
API available to the manufacturer.'' The consumer, who is not a party 
to any arrangements or agreements, contractual or otherwise, between an 
end user equipment manufacturer and a software developer, will not be 
put in the position of having to divine which entity is ultimately 
responsible for the accessibility of end user equipment used for 
advanced communications services.
    45. We recognize that consumers are able to change many of the 
software components of the equipment they use for advanced 
communications services, including, for some kinds of equipment, the 
operating systems, email clients, and other installed software used for 
ACS. We believe that, as a practical matter, operating systems and 
other software that are incorporated by manufacturers into their 
equipment will also be accessible when made separately available 
because it will not be efficient or economical for developers of 
software used to provide ACS to make accessible versions of their 
products for equipment manufacturers that pre-install the software and 
non-accessible freestanding versions of the same products. Therefore, 
we believe that we do not need to adopt an expansive interpretation of 
the scope of section 716(a) to ensure that consumers receive the 
benefits intended by Congress.
    46. Section 717(b)(1) of the Act requires us to report to Congress 
every two years, beginning in 2012. We are required, among other 
things, to report on the extent to which accessibility barriers still 
exist with respect to new communications technologies. We intend to pay 
particular attention in these reports to the question of whether 
entities that are not directly subject to our regulations, including 
software developers, are causing such barriers to persist.
    47. Finally, the narrower interpretation of the scope of section 
716(a) that we adopt herein makes this statutory program more cost-
effective than would the more expansive interpretation. Covered 
entities are subject not only to the substantive requirement that they 
make their products accessible, if achievable, but also to an 
enforcement mechanism that includes recordkeeping and certification 
requirements. This type of enforcement program imposes costs on both 
industry and the government. Congress made a determination, which we 
endorse and enforce, that these costs are well justified to realize the 
accessibility benefits that the CVAA will bring about. But the costs of 
extending design, recordkeeping, and certification requirements to 
software developers would be justified only if they were outweighed by 
substantial additional accessibility benefits.
    48. As explained above, it appears that the benefits of 
accessibility, as envisioned by Congress and supporters of the CVAA, 
can be largely (and perhaps entirely) realized under the narrower, less 
costly interpretation of section 716(a)(1). Furthermore, the biennial 
review requirement of section 717(b)(1) ensures that, if our prediction 
proves incorrect, the Commission will have an occasion to examine 
whether application of the CVAA's requirements directly to developers 
of consumer-installed software is warranted, and make any necessary 
adjustments to our rules to achieve accessibility in accordance with 
the intent of the CVAA. This biennial review process gives us 
additional confidence that applying the statute more narrowly and 
cautiously in our initial rules is the most appropriate policy at this 
time.
    49. With respect to the definition of ``manufacturer,'' consistent 
with the Commission's approach in the Section 255 Report and Order and 
in the Accessibility NPRM, we define ``manufacturer'' as ``an entity 
that makes or produces a product.'' As the Commission noted in the 
Section 255 Report and Order, ``[t]his definition puts responsibility 
on those who have direct control over the products produced, and 
provides a ready point of contact for consumers and the Commission in 
getting answers to accessibility questions and resolving complaints.'' 
We believe this definition encompasses entities that are ``extensively 
involved in the manufacturing process--for example, by providing 
product specifications.'' We also believe this definition includes 
entities that contract with other entities to make or produce a 
product; a manufacturer need not own a production facility or handle 
raw materials to be a manufacturer.
    50. TechAmerica argues that section 716(a) should apply only to 
equipment with a ``primary purpose'' of offering ACS. We reject this 
interpretation. As discussed above, consumers commonly access advanced 
communications services through general purpose devices. The CVAA 
covers equipment ``used for ACS,'' and we interpret this to include 
general purpose hardware with included software that provides users 
with access to advanced communications services.
    51. Commenters also expressed concerns about the impact of software 
upgrades on accessibility. The IT and Telecom RERCs state that 
``[u]pgrades can be used to increase accessibility * * * or they can 
take accessibility away, as has, unfortunately occurred on numerous 
occasions.'' Wireless RERC urges that ``[e]nd-users who buy an 
accessible device expect manufacturer-provided updates and upgrades to 
continue to be accessible.'' We agree

[[Page 82361]]

that the purposes of the CVAA would be undermined if it permitted 
equipment or services that are originally required to be accessible to 
become inaccessible due to software upgrades. In accordance with our 
interpretation of section 716(a)(1) above, just as a manufacturer of a 
device is responsible for the accessibility of included software, that 
manufacturer is also responsible for ensuring that the software 
developer maintains accessibility if and when it provides upgrades. 
However, we agree with CTIA that a manufacturer cannot be responsible 
for software upgrades ``that it does not control and that it has no 
knowledge the user may select and download.''
    52. Indeed, we recognize more generally, as ITI urges, that 
manufacturers of equipment are not responsible for the components over 
which they have no control. Thus, manufacturers are not responsible for 
software that is independently selected and installed by users, or for 
software that users choose to access in the cloud. Furthermore, we 
generally agree with commenters that a manufacturer is not responsible 
for optional software offered as a convenience to subscribers at the 
time of purchase and that carriers are not liable for third-party 
applications that customers download onto mobile devices--even if 
software is available on a carrier's Web site or application store.
    53. A manufacturer, however, has a responsibility to consider how 
the components in the architecture work together when it is making a 
determination about what accessibility is achievable for its product. 
If, for example, a manufacturer decides to rely on a third-party 
software accessibility solution, even though a built-in solution is 
achievable, it cannot later claim that it is not responsible for the 
accessibility of the third-party solution. A manufacturer of end-user 
equipment is also responsible for the accessibility of software offered 
to subscribers if the manufacturer requires or incentivizes a purchaser 
to use a particular third-party application to access all the features 
of or obtain all the benefits of a device or service, or markets its 
device in conjunction with a third-party add-on.
    54. Because we did not receive a full record on the unique 
challenges associated with implementing section 718, we will solicit 
further input in the Accessibility FNPRM on how we should proceed. In 
particular, we seek comment on the unique technical challenges 
associated with developing non-visual accessibility solutions for web 
browsers in a mobile phone and the steps that we can take to ensure 
that covered entities will be able to comply with these requirements on 
October 8, 2013, the date on which section 718 becomes effective. 
Section 718 requires a mobile phone manufacturer that includes a 
browser, or a mobile phone service provider that arranges for a browser 
to be included on a mobile phone, to ensure that the browser functions 
are accessible to and usable by individuals who are blind or have a 
visual impairment, unless doing so is not achievable. In the 
Accessibility FNPRM, we also seek to develop a record on whether 
Internet browsers should be considered software generally subject to 
the requirements of section 716. Specifically, we seek to clarify the 
relationship between sections 716 and 718 and solicit comment on the 
appropriate regulatory approach for Internet browsers that are not 
built into mobile phones.

3. Providers of Advanced Communications Services

    55. Section 716(b)(1) of the Act provides that, with respect to 
service providers, after the effective date of applicable regulations 
established by the Commission and subject to those regulations, a 
``provider of advanced communications services shall ensure that such 
services offered by such provider in or affecting interstate commerce 
are accessible to and usable by individuals with disabilities,'' unless 
these requirements are ``not achievable.''
    56. Consistent with the proposal in the Accessibility NPRM, we 
agree with commenters that state that we should interpret the term 
``providers'' broadly and include all entities that make available 
advanced communications in whatever manner. Such providers include, for 
example, those that make web-based email services available to 
consumers; those that provide non-interconnected VoIP services through 
applications that consumers download to their devices; and those that 
provide texting services over a cellular network.
    57. As is the case with manufacturers, providers of ACS are 
responsible for ensuring the accessibility of the underlying components 
of the service, to the extent that doing so is achievable. For example, 
a provider of a web-based email service could meet its obligations by 
ensuring its services are coded to web accessibility standards (such as 
the Web Content Accessibility Guidelines (WCAG)), if achievable. For 
services downloaded onto the OS of a desktop or mobile device, service 
providers could meet their obligations by ensuring, if achievable, that 
their services are coded so they can work with the Accessibility API 
for the OS of the device. Accessibility APIs are specialized interfaces 
developed by platform owners, which software applications use to 
communicate accessibility information about user interfaces to 
assistive technologies. Those that provide texting services over a 
cellular network, for example, must ensure that there is nothing in the 
network that would thwart the accessibility of the service, if 
achievable.
    58. COAT raises the concern that some software used for ACS may be 
neither a component of the end user equipment nor a component of a 
service and thus would not be covered under the statute. Specifically, 
COAT argues that H.323 video and audio communication is peer-to-peer 
and does not require a service provider at all. Similarly, it argues 
that it is possible to have large-scale examples of peer-to-peer 
systems without service providers and that models used in the non-ACS 
context could be expanded to be used for ACS. We believe that COAT 
construes the meaning of ``provider of advanced communications 
services'' too narrowly. If software gives the consumer the ability to 
send and receive email, 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. On 
the other hand, provision of client software such as Microsoft Outlook 
is not provision of ACS. While consumers use such client software to 
manage their ACS, the client software standing alone does not provide 
ACS. The provider of that software would be a covered entity, and the 
service, including any provided through a small-scale or large-scale 
peer-to-peer system, would be subject to the requirements of the 
statute. We also disagree with COAT's suggestion that ACS used with an 
online directory would not be covered. While online directories are 
excluded from coverage under the limited liability provisions in 
section 2(a)(2) of the CVAA, the ACS used with such directories are 
covered. This is true regardless of whether the software is downloaded 
to the consumer's equipment or accessed in the cloud.
    59. We disagree with Verizon's assertion that the requirement in 
section 716(e)(1)(C) that the Commission shall ``determine the 
obligations under this section of manufacturers, service providers, and 
providers of applications or services accessed over service provider 
networks'' compels the conclusion that developers of applications have 
their own independent accessibility obligations. We note that the 
regulations that the

[[Page 82362]]

Commission must promulgate pursuant to section 716(e) relate to the 
substantive requirements of the Act found in sections 716(a)-(d) 
encompassing accessibility (sections 716(a) and 716(b)); compatibility 
(section 716(c)); and network features, functions, and capabilities 
(section 716(d)). Each of these obligations applies to manufacturers of 
ACS equipment and/or providers of ACS. There are no independent 
substantive requirements in these sections that apply to ``providers of 
applications or services accessed over service provider networks.'' We 
believe the most logical interpretation of this phrase is the one 
proposed in the NPRM: that providers of advanced communications 
services include entities that provide advanced communications services 
over their own networks as well as providers of applications or 
services accessed (i.e., downloaded and run) by users over other 
service providers' networks. We adopt this interpretation, which we 
believe comports with our analysis above that providers of ACS are 
responsible for ensuring the accessibility of the underlying components 
of the service, including the software applications, to the extent that 
doing so is achievable.
    60. We find, however, that a provider of advanced communications 
services is not responsible for the accessibility of third-party 
applications and services that are not components of its service and 
that the limitations on liability in section 2(a) of the CVAA generally 
preclude such service provider liability. This approach is consistent 
with commenters that argue that service providers and manufacturers 
should be responsible only for those services and applications that 
they provide to consumers. They explain that they have no control over 
third party applications that consumers add on their own and that such 
third party applications have the potential to significantly alter the 
functionality of devices. Notwithstanding that conclusion and 
consistent with section 2(b) of the CVAA, we also agree with commenters 
that the limitation on liability under section 2(a) does not apply in 
situations where a provider of advanced communications services relies 
on a third-party application or service to comply with the 
accessibility requirements of section 716.
    61. We also confirm that providers of advanced communications 
services may include resellers and aggregators, which is consistent 
with the approach the Commission adopted in the Section 255 Report and 
Order. Several commenters support that conclusion. We disagree with 
Verizon's suggestion that, to the extent that a carrier is strictly 
reselling an advanced communications service as is (without 
alteration), the sole control of the features and functions rests with 
the underlying service provider, not the reseller, and the reseller 
should not have independent compliance obligations. To the extent that 
the underlying service provider makes those services accessible to and 
usable by individuals with disabilities in accordance with the CVAA 
mandates, those services should remain accessible and usable when 
resold as is (without alteration). Resellers offer services to 
consumers who may or may not be aware of the identity of the underlying 
service provider. It is both logical and in keeping with the purposes 
of the CVAA for consumers to be able to complain against the provider 
from whom they obtain a service, should that service be inaccessible. 
While a reseller may not control the features of the underlying 
service, it does have control over its decision to resell that service. 
Its obligation, like that of any other ACS provider, is to ensure that 
the services it provides are accessible, unless that is not achievable.
    62. Because the networks used for advanced communications services 
are interstate in nature, and the utilization of equipment, 
applications and services on those networks are also interstate in 
nature, we conclude that the phrase ``in or affecting interstate 
commerce'' should be interpreted broadly. Nonetheless, the IT and 
Telecom RERCs suggest that an entity that has its own network 
``completely off the grid, that it creates and maintains, and that does 
not at any time connect to another grid'' would not be covered. We 
agree that advanced communication services that are available only on a 
private communications network that is not connected to the Internet, 
the public switched telephone network (``PSTN''), or any other 
communications network generally available to the public may not be 
covered when such services are not ``offered in or affecting interstate 
commerce.'' An example of a private communications network is a company 
internal communications network. Nonetheless, where such providers of 
advanced communications services are not covered by section 716, they 
may have accessibility obligations under other disability related 
statutes, such as section 504 of the Rehabilitation Act of 1973 or the 
Americans with Disabilities Act of 1990.

4. General Obligations

    63. Section 716(e)(1)(C) of the Act requires the Commission to 
``determine the obligations * * * of manufacturers, service providers, 
and providers of applications or services accessed over service 
provider networks.'' Below, we discuss the obligations of manufacturers 
and service providers, including the obligations of providers of 
applications or services accessed over service provider networks.
a. Manufacturers and Service Providers
    64. As set forth below, we adopt into our rules the general 
obligations contained in sections 716(a)-(e). As the Commission did in 
the Section 255 Report and Order, we find that a functional approach 
will provide clear guidance to covered entities regarding what they 
must do to ensure accessibility and usability. Consistent with AFB's 
comments, we modify our rules as proposed to make clear that any third 
party accessibility solution that a covered entity uses to meet its 
accessibility obligations must be ``available to the consumer at 
nominal cost and that individuals with disabilities can access.''
     With respect to equipment manufactured after the effective 
date of the regulations, a manufacturer of equipment used for advanced 
communications services, including end user equipment, network 
equipment, and software, must ensure that the equipment and software 
that such manufacturer offers for sale or otherwise distributes in 
interstate commerce shall be accessible to and usable by individuals 
with disabilities, unless such requirements are not achievable.
     With respect to services provided after the effective date 
of the regulations, a provider of advanced communications services must 
ensure that services offered by such provider in or affecting 
interstate commerce are accessible to and usable by individuals with 
disabilities, unless such requirements are not achievable.
     If accessibility is not achievable either by building it 
into a device or service or by using third-party accessibility 
solutions available to the consumer at nominal cost and that 
individuals with disabilities can access, then a manufacturer or 
service provider shall ensure that its equipment or service is 
compatible with existing peripheral devices or specialized customer 
premises equipment commonly used by individuals with disabilities to 
achieve access, unless such compatibility is not achievable.
     Providers of advanced communications services shall not 
install network features, functions, or capabilities that impede 
accessibility or usability.

[[Page 82363]]

     Advanced communications services and the equipment and 
networks used to provide such services may not impair or impede the 
accessibility of information content when accessibility has been 
incorporated into that content for transmission through such services, 
equipment, or networks.
    65. We further adopt in our rules the following key requirements, 
supported by the IT and Telecom RERCs, with some non-substantive 
modifications to clarify the rules proposed in the Accessibility NPRM. 
These requirements are similar to Sec. Sec.  6.7-6.11 of our section 
255 rules but are modified to reflect the statutory requirements of 
section 716:
     Manufacturers and service providers must consider 
performance objectives at the design stage as early and as consistently 
as possible and must implement such evaluation to the extent that it is 
achievable.
     Manufacturers and service providers must identify barriers 
to accessibility and usability as part of such evaluation.
     Equipment used for advanced communications services must 
pass through cross-manufacturer, nonproprietary, industry-standard 
codes, translation protocols, formats, or other information necessary 
to provide advanced communications services in an accessible format, if 
achievable. Signal compression technologies shall not remove 
information needed for access or shall restore it upon decompression.
     Manufacturers and service providers must ensure access by 
individuals with disabilities to information and documentation it 
provides to its customers, if achievable. Such information and 
documentation includes user guides, bills, installation guides for end 
user devices, and product support communications, in alternate formats, 
as needed. The requirement to provide access to information also 
includes ensuring that individuals with disabilities can access, at no 
extra cost, call centers and customer support regarding both the 
product generally and the accessibility features of the product.
    The IT and Telecom RERCs urge that all information provided with or 
for a product be available online in accessible form. Although we will 
not require manufacturers and service providers to build Web sites, to 
the extent that they provide customer support online, such Web sites 
must be accessible, if achievable.
b. Providers of Applications or Services Accessed Over Service Provider 
Networks
    66. Section 716(e)(1)(C) requires the Commission to ``determine the 
obligations under * * * section [716] of manufacturers, service 
providers, and providers of applications or services accessed over 
service provider networks.'' As noted previously, to the extent they 
provide advanced communications services, ``providers of applications 
or services accessed over service provider networks'' are ``providers 
of advanced communications services'' and have the same obligations 
when those services are accessed over the service provider's own 
network or over the network of another service provider. No party 
suggested that any additional obligations apply to this subset of 
providers of ACS, and we do not adopt any herein.
c. Network Features
    67. According to section 716(d) of the Act, ``[e]ach provider of 
advanced communications services has the duty not to install network 
features, functions, or capabilities that impede accessibility or 
usability.'' As proposed in the Accessibility NPRM, we adopt rules that 
include the requirements set forth in section 716(d), just as our 
section 255 rules reflect the language in section 251(a)(2). Commenters 
generally agree that the duty not to impede accessibility is comparable 
to the duty set forth in section 251(a)(2) of the Act.
    68. As stated above, this obligation applies when the accessibility 
or usability of ACS is incorporated in accordance with recognized 
industry standards. We agree with industry and consumer commenters that 
suggest that stakeholder working groups should be involved in 
developing new accessibility standards. As explained in the next 
section, we believe that there are several potential mechanisms to 
develop these standards. Accordingly, we recommend that stakeholders 
either use existing working groups or establish new ones to develop 
standards that will ensure accessibility as the industry applies 
network management practices, takes digital rights management measures, 
and engages in other passive or active activities that may impede 
accessibility. We do not agree, however, that we should wait to require 
compliance with our rules governing network features until an industry 
working group ``formulates and offers such standards for the 
industry.'' We agree with ACB that ``existing standards and expertise 
will ensure that manufacturers have sufficient functional approaches'' 
on which to base accessibility and that ``[f]urther experience and 
products will improve this process.'' We believe this approach provides 
certainty through the use of recognized industry standards while at the 
same time recognizing the importance of not unnecessarily delaying the 
development of accessibility solutions.
d. Accessibility of Information Content
    69. As proposed in the Accessibility NPRM, we adopt a rule 
providing that ``advanced communications services and the equipment and 
networks used with these services may not impair or impede the 
accessibility of information content when accessibility has been 
incorporated into that content for transmission through such services, 
equipment or networks.'' This rule incorporates the text of section 
716(e)(1)(B) and is also consistent with the Commission's approach in 
the Section 255 Report and Order. We believe that this rule is broad 
enough to disapprove of accessibility information being ``stripped off 
when information is transitioned from one medium to another'' and thus 
find it unnecessary to add this specific language in the rule itself, 
as originally suggested by the IT and Telecom RERCs.
    70. The legislative history of the CVAA makes clear that the 
requirement not to impair or impede the accessibility of information 
content applies ``where the accessibility of such content has been 
incorporated in accordance with recognized industry standards.'' We 
agree with the IT and Telecom RERCs that sources of industry standards 
include: (1) International standards from an international standards 
body; (2) standards created by other commonly recognized standards 
groups that are widely used by industry; (3) de-facto standards created 
by one company, a group of companies, or industry consortia that are 
widely used in the industry. We believe that these examples illustrate 
the wide range of recognized industry standards available that can 
provide guidance to industry without being overly broad or requiring 
covered entities to engineer for proprietary networks. We therefore 
decline to adopt CEA's proposal that ``recognized industry standards 
are only those developed in consensus-based, industry-led, open 
processes that comply with American Standards Institute (``ANSI'') 
Essential Requirements.''
    71. At this time, we are unable to incorporate any aspects of the 
Access Board criteria or the WCAG into our

[[Page 82364]]

rules relating to accessibility of information content. The WCAG are 
technical specifications developed by industry, disability, and 
government stakeholders for those who develop web content, web 
authoring tools, and web accessibility evaluation tools. As such, we 
believe it may be appropriate to consider the WCAG an ``industry 
recognized standard'' for purposes of applying our rule (i.e., the 
requirements of our rule would apply where the accessibility of the 
content has been incorporated consistent with WCAG specifications), 
rather than incorporating aspects of the WCAG into our rules. Because 
the Access Board's process for developing guidelines is still not 
complete, we believe that it would be premature and inefficient to 
adopt them at this juncture. We acknowledge, however, that the IT and 
Telecom RERCs support the WCAG developed by the W3C and argue that 
``these web standards in the proposed Access Board revisions to 
[sections] 508 and 255 * * * should definitely be incorporated in the 
rules.'' Because technology is changing so quickly, we encourage 
stakeholders to use existing or form new working groups to develop 
voluntary industry-wide standards, including on issues such as 
encryption and other security measures. We will monitor industry 
progress on these issues and evaluate the Access Board guidelines when 
they are finalized to determine whether any amendments to our rule 
might be appropriate.
    72. Finally, we agree with CEA and the IT and Telecom RERCs that, 
consistent with the CVAA's liability limitations, manufacturers and 
service providers are not liable for content or embedded accessibility 
content (such as captioning or video description) that they do not 
create or control.

5. Phased in Implementation

    73. The responsibilities of manufacturers and service providers 
begin on the effective date of this Report and Order and are both 
prospective and continuing. First, the regulations we set forth herein 
will be effective 30 days after publication in the Federal Register, 
except for those rules related to recordkeeping and certification. 
Next, the rules governing recordkeeping and certification will become 
effective after OMB approval, but, as discussed above, no earlier than 
one year after the effective date of our regulations implementing 
section 716.
    74. As several commenters recommend, we are phasing in the 
requirements created by the CVAA for covered entities. Beginning on the 
effective date of these regulations, we expect covered entities to take 
accessibility into consideration during the design or redesign process 
for new equipment and services. Covered entities' recordkeeping 
obligations become effective one year from the effective date of the 
rules adopted herein. By October 8, 2013, covered entities must be in 
compliance with all of the rules adopted herein. We find that phasing 
in these obligations is appropriate due to the need for covered 
entities to implement accessibility features early in product 
development cycles, the complexity of these regulations, and our 
regulations' effects on previously unregulated entities. As CEA and ITI 
have stated, we have utilized phase-in periods previously in similarly 
complex rulemakings. Below, we discuss details of the phase-in process.
    75. Beginning on the effective date of these regulations, we expect 
covered entities to take accessibility into consideration as early as 
possible during the design or redesign process for new and existing 
equipment and services and to begin taking steps to ``ensure that 
[equipment and services] shall be accessible to and usable by 
individuals with disabilities, unless * * * not achievable [as 
determined by the four achievability factors.]'' As part of this 
evaluation, manufacturers and service providers must identify barriers 
to accessibility and usability.
    76. Beginning one year after the effective date of these 
regulations, covered entities recordkeeping obligations will become 
effective. We note that certain information collection requirements 
related to recordkeeping adopted herein are subject to the Paperwork 
Reduction Act and will be submitted to the OMB for review. Those 
requirements will become effective after OMB approval but no earlier 
than one year after the effective date of rules promulgated pursuant to 
section 716(e). After OMB approval is obtained, the Consumer and 
Governmental Affairs Bureau will issue a public notice instructing 
covered entities when and how to file their annual certification that 
records are being maintained in accordance with the statute and the 
rules adopted herein. As we further explain below, we require covered 
entities to keep and maintain records in the ordinary course of 
business that demonstrate that the advanced communications products and 
services they sell or otherwise distribute are accessible to and usable 
by individuals with disabilities or demonstrate that it was not 
achievable for them to make their products or services accessible.
    77. Beginning on October 8, 2013, products or services offered in 
interstate commerce must be accessible, unless not achievable, as 
defined by our rules. Several commenters have called for at least a 
two-year phase-in period for these regulations. By October 8, 2013, we 
expect that manufacturers and service providers will be incorporating 
accessibility features deep within many of their most complex 
offerings, instead of patching together ad-hoc solutions shortly before 
enforcement begins. Some commenters are concerned that a long phase-in 
period will leave individuals with disabilities waiting for access to 
new technologies. Although AAPD is correct that many covered entities 
have been aware of the existence of this rulemaking, the specific rules 
were not in place until now. The Commission is also cognizant of the 
fact that our new implementing regulations will touch entities not 
traditionally regulated by this Commission. A phase-in date of October 
8, 2013 will give all covered entities the time to incorporate their 
new obligations into their development processes. We believe two years 
to be consistent with complex consumer electronics development cycles. 
A two-year phase-in period is also consistent with the Commission's 
approach in other complex rulemakings.
    78. Also, beginning October 8, 2013, the requirements we discuss 
elsewhere regarding peripheral device compatibility and pass-through of 
industry standard codes and protocols come into effect. The obligation 
not to impair or impede accessibility or the transmission of 
accessibility information content through the installation of network, 
features, functions, or capabilities as clarified above in Network 
Features, and Accessibility of Information Content, also begins October 
8, 2013. We also expect covered entities to provide information and 
documentation about their products and services in accessible formats, 
as explained earlier, beginning October 8, 2013.
    79. In addition, on October 8, 2013, consumers may begin filing 
complaints. Prior to that date, the Commission will issue a public 
notice describing how consumers may file a request for dispute 
assistance with the CGB Disability Rights Office and informal 
complaints with the Enforcement Bureau. Formal complaints must be filed 
in accordance with the rules adopted in this Report and Order. While 
the CVAA complaint process will not be available to consumers until 
2013, we remind industry that it has a current obligation to ensure 
that telecommunications services and equipment are accessible to

[[Page 82365]]

and usable by individuals with disabilities. Consumers may file 
complaints at any time under our existing informal complaint procedures 
alleging violations of the accessibility requirements for 
telecommunications manufacturers and service providers under section 
255 of the Communications Act. Furthermore, separate from the complaint 
process, the Disability Rights Office in CGB will be available to 
assist consumers, manufacturers, service providers and others in 
resolving concerns about the accessibility and usability of advanced 
communications services and equipment as of the effective date of our 
rules (i.e., October 8, 2013).
    80. Since ACS manufacturers and service providers must take 
accessibility into account early in the ACS product development cycle 
beginning on the effective date of our rules, we anticipate that many 
ACS products and services with relatively short development cycles will 
reach the market with accessibility features well before October 8, 
2013.
B. Nature of Statutory Requirements

1. Achievable Standard

a. Definitions
(i) Accessible to and Usable by
    81. Given that commenters generally agree that the Commission's 
definitions of ``accessible'' and ``usable'' in Sec. Sec.  6.3(a) and 
6.3(l), respectively, are ``well established,'' we will continue to 
define ``accessible to and usable by'' as the Commission did with 
regard to implementation of section 255. We agree with the Wireless 
RERC that this approach will ``reduce both the potential for 
misunderstanding as well as the regulatory cost of compliance'' and 
promote ``the objective of consistency.'' We also plan to draw from the 
Access Board's guidelines once they finalize them.
    82. While we note that there is a great deal of overlap between 
section 255's definition of ``accessible'' and the criteria outlined in 
the Access Board Draft Guidelines, at this time, we are unable to 
incorporate the Access Board's draft definitions of ``accessible'' or 
``usable'' into both our section 255 rules and our section 716 rules 
because the Access Board's process for developing guidelines is not 
complete. Once the Access Board Draft Guidelines are complete, the 
Commission may revisit its definitions of ``accessible'' and ``usable'' 
and harmonize them with the Access Board's final definitions, to the 
extent there are differences.
(ii) Disability
    83. Section 3(18) of the Act states that the term ``disability'' 
has the meaning given such term under section 3 of the ADA. The ADA 
defines ``disability'' as with respect to an individual: ``(A) a 
physical or mental impairment that substantially limits one or more 
major life activities of such individual; (B) a record of such an 
impairment; or (C) being regarded as having such an impairment * * * '' 
Having received only one comment on this issue and finding that our 
current rules incorporate the definition of ``disability'' from section 
3 of the ADA, we adopt this definition, as proposed, in our section 716 
rules as well. To provide additional guidance to manufacturers and 
service providers, as the Commission did in the Section 255 Report and 
Order, we note that the statutory reference to ``individuals with 
disabilities'' includes people with hearing, vision, movement, 
manipulative, speech, and cognitive disabilities. The definition of 
``disability,'' however, is not limited to these specific groups. 
Determinations of whether an individual has a disability are decided on 
a case-by-case basis.
b. General Approach
    84. As provided in the CVAA and its legislative history, we adopt 
the Commission's proposal in the Accessibility NPRM to limit our 
consideration of achievability to the four factors specified in section 
716 and to weigh each factor equally when considering whether 
accessibility is not achievable. We agree with AFB that the CVAA 
requires covered entities to make their products accessible unless it 
is ``not achievable'' to do so and that the section 716 standard is 
different from the section 255 ``readily achievable'' standard. ACB 
suggests adding seven more factors to the achievability analysis. These 
proposed factors, which address the commitment of the manufacturer or 
service provider to achieving accessibility, include (1) engagement of 
upper level executives; (2) the budgeting process for accessibility as 
compared to the overall budget; (3) consideration of accessibility 
early in the planning process; (4) covered entity devotion of personnel 
during planning stages to achieving accessibility; (5) inclusion of 
people with disabilities in testing; (6) devotion of resources to the 
needs of people with disabilities; and (7) record of delivering 
accessible products and services. While we do not adopt these as 
additional achievability factors, we do believe they are useful 
guidance that will help covered entities meet their obligations under 
the statute.
    85. We will be applying the four achievability factors in the 
complaint process in those cases in which a covered entity asserts that 
it was ``not achievable'' to make its equipment or service accessible. 
Thus, as proposed by AT&T and supported by many of the commenters, we 
will be taking a flexible, case-by-case approach to the determination 
of achievability. We reject the suggestion by Words+ and Compusult that 
the Commission should evaluate products and services on a category-by-
category basis. Words+ and Compusult are concerned that the Commission 
will not be able to evaluate the many products that are introduced each 
year. This will not be necessary, since the Commission will be 
evaluating only those products that are the subject of a complaint. The 
approach suggested by Words+ and Compusult would not be consistent with 
the four factors mandated by Congress. We also share the concerns 
expressed by NFB and supported by the Consumer Groups that flexibility 
should not be so paramount that accessibility is never achieved.
    86. We note that nothing in the statute limits the consideration of 
the achievability of accessibility to the design and development stage. 
While we believe in many instances, accessibility is more likely to be 
achievable if covered entities consider accessibility issues early in 
the development cycle, there may be other ``natural opportunities'' for 
consideration of accessibility. Natural opportunities to assess or 
reassess the achievability of accessibility features may include, for 
example, the redesign of a product model or service, new versions of 
software, upgrades to existing features or functionalities, significant 
rebundling or unbundling of product and service packages, or any other 
significant modification that may require redesign. If, however, a 
covered entity is required by the Commission to make the next 
generation of a product or service accessible as a result of an 
enforcement proceeding, an achievability analysis may not be used for 
the purpose of determining that such accessibility is not achievable. 
We agree with Consumer Groups that new versions of software or services 
or new models of equipment must be made accessible unless not 
achievable and ``that this burden is not discharged merely by having 
shown that accessibility is not achievable for a previous version or 
model.''
    87. We expect that accessibility will be considered throughout the 
design and development process and that

[[Page 82366]]

during this time ``technological advances or market changes'' may 
``reduce the effort and/or expense needed to achieve accessibility.'' 
We reject CTIA's argument that requiring manufacturers and service 
providers to reassess the accessibility of products and services at key 
development stages would result in companies refraining from issuing 
new versions of their products. Beyond this conclusory statement, 
nothing in the record supports this contention. We note that no party 
has asserted that the identical requirement in the section 255 context 
hampered innovation and competition, and there appears to be no reason 
to believe that it will have such an impact here.
    88. Consistent with both the Section 255 Report and Order and the 
legislative history of the CVAA, section 716 does not require 
manufacturers of equipment to recall or retrofit equipment already in 
their inventories or in the field. In addition, consistent with our 
section 255 implementation, cosmetic changes to a product or service 
may not trigger a manufacturer or service providers' reassessment.
c. Specific Factors
(i) Nature and Cost of Steps Needed With Respect to Specific Equipment 
or Service
    89. Consistent with the House Report, we find that if the inclusion 
of an accessibility feature in a product or service results in a 
fundamental alteration of that product or service, then it is per se 
not achievable to include that accessibility function. We find that the 
most appropriate definition of ``fundamental alteration'' can be found 
in the Section 255 Report and Order, where the Commission defined it to 
mean ``reduce substantially the functionality of the product, to render 
some features inoperable, to impede substantially or deter use of the 
product by individuals without the specific disability the feature is 
designed to address, or to alter substantially and materially the 
shape, size or weight of the product.'' We caution, however, that in 
many cases, features such as voice output can be added in ways that do 
not fundamentally alter the product, even if earlier versions of the 
product did not have that capability. Since all accessibility 
enhancements in one sense require an alteration to the design of a 
product or service, not all changes to a product or service will be 
considered fundamental alterations. Rather, the alteration to the 
product or service must be fundamental for the accessibility feature to 
be considered per se not achievable. As we explained in the Section 255 
Report and Order, ``the `fundamental alteration' doctrine is a high 
standard and * * * the burden of proof rests with the party claiming 
the defense.''
    90. We disagree with those commenters that argue that we should not 
consider whether accessibility has been achieved by competing products 
in determining whether accessibility is achievable under this 
achievability factor. Rather, if an accessibility feature has been 
implemented for competing products or services, we find that such 
implementation may serve as evidence that implementation of the 
accessibility feature is achievable. To ignore such evidence would 
deprive the Commission of a key element of determining whether 
achievability is possible. We note, however, that a covered entity may 
rebut such evidence by demonstrating that the circumstances of the 
product or service offered by that particular entity renders the 
feature not achievable. We will consider all relevant evidence when 
considering the nature and cost of the steps necessary to achieve 
accessibility for the particular device or service for the particular 
covered entity.
    91. We also reject CEA's assertion that this factor requires us to 
consider ``the entire cost of implementing the required accessibility 
functionality relative to the production cost of the product.'' Under 
the first factor, the Commission is required to consider the cost of 
the steps needed to meet the requirements of this section with respect 
to the specific equipment or service in question. The first factor, 
however, does not provide that the costs should be compared to the 
production cost of the product; indeed, the factor does not provide for 
a comparison of the costs at all. As explained further below, this 
inquiry more directly fits under the second factor, which examines 
directly the economic impact of the cost of the accessibility features.
(ii) Technical and Economic Impact on the Operation
    92. The second factor in determining whether compliance with 
section 716 is ``achievable'' requires the Commission to consider the 
``technical and economic impact on the operation of the manufacturer or 
provider and on the operation of the specific equipment or service in 
question, including on the development and deployment of new 
communications technologies.'' We find that to determine the ``economic 
impact of making a product or service accessible on the operation of 
the manufacturer or provider,'' it will be necessary to consider both 
the costs of making a product or service accessible and an entity's 
total gross revenues.
    Consistent with the Section 255 Report and Order, we will consider 
the total gross revenues of the entire enterprise and will not limit 
our consideration to the gross revenues of the particular subsidiary 
providing the product or service. CEA argues that the Commission should 
not be able to consider an entity's entire budget in evaluating the 
cost of accessibility because Congress dropped from the final version 
of the statute a fifth achievability factor which specifically 
considered ``the financial resources of the manufacturer or provider.'' 
We disagree. CEA does not suggest a reason why Congress eliminated this 
language and does not address the possibility that Congress may have 
found the factor to be redundant in light of the fact that under the 
second factor we consider the ``economic impact on the operation of the 
manufacturer or provider.''
    93. We agree with TIA that some new entrants may not initially have 
the resources to incorporate particular accessibility features into 
their products immediately. All covered entities should examine the 
technical and economic impact on their operations of achieving 
accessibility, as stated in the language of section 716(g)(2). The need 
to provide an accessibility feature, however, can have a greater impact 
on a smaller entity than a larger one. In other words, the provision of 
a particular feature may have negligible impact on a large company but 
may not be achievable with reasonable effort or expense for a small 
business. For example, a small start up manufacturer may not have the 
resources to evaluate all the design considerations that must be 
considered to make a potential product accessible, even though a larger 
manufacturer might have the resources to do so as a matter of course. A 
smaller service provider looking for accessible customer premises 
equipment to provide to its customers may find that the models with 
accessibility features are available only to larger service providers, 
or if they are available to the smaller provider, the acquisition price 
is considerably higher than the price for a larger carrier, thereby 
rendering such devices cost prohibitive for the smaller provider. 
Similarly, while a larger service provider may perform as a matter of 
course a network upgrade that would include the addition of 
accessibility features, it may not be achievable with reasonable effort 
or expense for a smaller service provider to perform a similar network 
upgrade, either because the upgrade is not yet

[[Page 82367]]

available to the smaller provider or it is cost-prohibitive to the 
company at that time.
    94. Some commenters argue that the Commission should consider the 
cost of implementing accessibility relative to the production cost of 
the product. CEA suggests that if the cost of accessibility 
significantly raises the cost of a particular device, it may result in 
overpricing the device for consumers, which could result in fewer 
devices being purchased. Similarly, TechAmerica argues that if the cost 
of an accessibility feature exceeds the cost of having the product in 
the marketplace, then that accessibility feature is per se not 
achievable. We decline to adopt this per se approach. The Commission 
does recognize, however, that if the nature and cost of the steps 
needed for accessibility would have a substantial negative technical or 
economic impact on the ability to produce a product or service, that 
fact may be taken into consideration when conducting the overall 
achievability analysis. To completely ignore this fact altogether could 
discourage manufacturers and service providers from introducing new and 
innovative products that, for some reason, would require extremely 
costly accessibility features relative to the cost of the product. 
Congress's balanced approach in the statute, including its desire to 
refrain from hampering innovation and investment in technology, require 
us to consider the cost of accessibility relative to the cost of 
producing a product in certain situations.
    95. In its comments, ITI proposes that manufacturers and service 
providers should be given the flexibility to make necessary adjustments 
during the testing stage prior to fully incorporating accessibility 
technology. According to ITI, to do otherwise would result in one set 
of accessibility features for the beta version of a product, and then a 
second, different set of accessibility features for the final version. 
The VON Coalition argues that manufacturers of devices used for ACS and 
providers of ACS should not be subject to the CVAA with respect to 
products they are testing. We find that, if a covered entity is testing 
accessibility features along with the other functions of the product or 
service, to the extent the beta testing reveals that the accessibility 
features need modification to work properly, then under such 
circumstances, accessibility would not be fully achievable at the beta 
stage but would be considered achievable once the modifications are 
implemented for the final product design. We will not take enforcement 
action against a manufacturer or service provider in regard to the 
accessibility of products and services that are being beta tested. We 
will, however, carefully examine any claim that a product or service is 
in beta. If it appears that a covered entity is keeping a product or 
service in beta testing status and/or making it available to the 
general public for extended periods of time as a means of avoiding 
accessibility obligations, we will enforce section 716 with respect to 
that product or service.
(iii) Type of Operations
    96. The third factor in determining whether compliance with section 
716 is ``achievable'' requires the Commission to consider ``[t]he type 
of operations of the manufacturer or provider.'' Consistent with the 
legislative history, we will take into consideration whether a covered 
entity has experience in the advanced communications services market or 
related markets when conducting an achievability analysis. We disagree 
with Words+ and Compusult's argument that this factor will necessarily 
provide a competitive advantage to a new entrant. All companies that do 
not qualify for the small business exemption, whether new entrants or 
incumbents, must engage in an achievability analysis. All companies are 
required to provide accessibility unless it cannot be done ``with 
reasonable effort or expense.'' Given the multitude of factors that 
affect a company's prospects in the marketplace, we do not see much of 
a competitive advantage arising from the ability of a new entrant to 
assert this third factor as a defense to a complaint.
    97. The degree to which this factor affects a finding of 
achievability will depend upon a number of considerations. We agree 
with CEA that the Commission should give little weight to whether a new 
entrant has experience in other unrelated markets. In this regard, we 
consider the various telecommunications and information technology 
markets to be related. We agree with T-Mobile that because each service 
provider has different technical, financial, and personnel resources, 
with different business models and distinct technology configurations 
and platforms, this factor requires that we look at each company 
individually when we consider the impact on the operation of the 
covered entity of providing the accessibility feature.
    98. In addition, as suggested by the IT and Telecom RERCs and ACB, 
when applying this factor, we will take into consideration the size of 
the company. We agree that a small start-up company, which may need 
time to develop its financial resources and learn the field and its 
requirements, should be treated differently than a larger company with 
the resources available to more rapidly achieve accessibility features. 
While we reject TIA's suggestion that the size of the company should 
not matter when applying this factor, we agree with TIA that a 
company's size alone is not a proxy for determining whether 
accessibility can be achieved. Consistent with the legislative history, 
we find that the existence of substantial financial resources does not, 
by itself, trigger a finding of achievability.
(iv) Extent to Which Accessible Services or Equipment Are Offered With 
Varying Functionality, Features, and Prices
    99. The fourth factor in determining whether compliance with 
section 716 is ``achievable'' requires the Commission to consider 
``[t]he extent to which the service provider or manufacturer in 
question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.'' To satisfy the fourth achievability standard, a covered 
entity is required by the CVAA to offer people with each type of 
disability (this includes people with multiple disabilities) 
accessibility features within a line of products that includes the full 
range of functionality within the product line as well as a full range 
of prices within the product line, if achievable. We interpret the 
plain language of the statute and legislative history to mean that 
covered entities generally need not consider what is achievable with 
respect to every product, if the entity offers consumers with the full 
range of disabilities meaningful choices through a range of accessible 
products with varying degrees of functionality and features, at 
differing price points. Although a range of accessible products with 
varying degrees of functionality and features, at differing price 
points must be offered across a product line for people with the full 
range of disabilities if achievable, in the context of a complaint 
proceeding, only the facts of the complaint will be considered. In 
other words, a complaint proceeding will not consider the accessibility 
of a product for types of disabilities that are not the subject of the 
complaint.
    100. Furthermore, to satisfy this factor, offering the full range 
of accessible products with varying degrees of functionality and 
features at different price points must be done effectively. We 
acknowledge the concern expressed by the IT and Telecom RERCs in their 
comments that company-chosen sets of devices to be

[[Page 82368]]

made accessible may not provide good representation of the range of 
products offered by the company, and as a result, accessible versions 
may not always appear in stores, may not always be available as part of 
bundles, may be more expensive and difficult to obtain than the 
comparable non-accessible products, may not always represent the full 
range of features and prices available to everyone else, may not always 
be supported by employers and their information technology departments, 
and may not always be available in certain parts of the country.
    101. Because section 716(g)(4) specifically calls for ``varying 
degrees of functionality and features, and offered at differing price 
points,'' we emphasize that accessibility features must be made 
available within a line of products that includes the full range of 
functionality and prices for that line of products. In other words, if 
a line of products includes low-end products, it is just as important 
that low-end products and services be accessible as high-end products 
and services if achievable.
    102. We decline to mandate ACB's proposal that, for the purpose of 
making available a range of devices that fit various price ranges along 
with corresponding accessible features, the devices may be divided into 
classes, making certain that each class has at least one option that is 
fully accessible. We agree with CEA that mandating such a proposal 
would be unworkable for some manufacturers and service providers, given 
that technology and consumer preferences are constantly evolving.
    103. We also share the concern expressed by Words+ and Compusult 
that the fourth achievability factor not be interpreted in a way that 
would result in people with disabilities needing to purchase multiple 
devices to obtain all the disability features that they require. We 
find that a reasonable interpretation of sections 716(g)(4) and 716(j) 
calls for the bundling of features within a single device to serve a 
particular type of disability, if achievable. For example, if a series 
of features, such as a screen reader and a voice interactive menu, were 
required to be bundled into the same device to render the device 
accessible to people who are blind, then a common sense interpretation 
of the statute would require that these features be bundled together if 
achievable under the four factors.
    104. We find that ITI misunderstands sections 716(g)(4) and 716(j) 
when it asserts that covered entities are compliant ``so long as some 
reasonable subset of features and services are accessible,'' because 
such an approach could result in lack of accessibility over the full 
range of functionality and prices. After carefully considering section 
716(j), we find a more reasonable interpretation to be that there may 
be some devices with accessibility features for people with one type of 
disability, different devices with accessibility features for people 
with other types of disabilities, and yet other devices that are not 
accessible because accessibility is not achievable for those particular 
devices or because the entity offers a full range of accessible 
products with varying degrees of functionality and features, at 
differing price points to discharge its responsibility under section 
716. In other words, section 716(j) provides a rule of reason when 
interpreting section 716(g).
    105. We decline at this time to designate a list of accessibility 
features that are easy to achieve. Not only would such a list become 
outdated very quickly, but it is impossible to assume that any given 
accessibility feature would be easy to achieve for every device or 
service. Nevertheless, we strongly encourage, but do not require, all 
covered entities to offer accessibility features that are easy to 
achieve with every product. By way of example, AFB suggests that 
audible output of menu functions and on-screen text is easy to achieve. 
Although the record is insufficient to determine whether AFB's 
assertion is accurate, if a covered entity finds during the course of 
its achievability analysis that audible output of menu functions and 
on-screen text is easy to achieve in all of its products, we would 
encourage the covered entity to install audible output of menu 
functions and on-screen text in those products. Voluntary universal 
deployment of accessibility features that are easy to achieve as 
products evolve will further enable the maximum number of people with 
disabilities to enjoy access to products that people without 
disabilities take for granted.
2. Industry Flexibility
    106. Sections 716(a)(2) and (b)(2) of the Act provide manufacturers 
and service providers flexibility on how to ensure compliance with the 
accessibility requirements of the CVAA. As urged by several commenters, 
we confirm that section 716 allows covered entities the flexibility to 
provide accessibility through either built-in solutions or third-party 
solutions, so long as the third-party solutions are available at 
nominal cost to consumers. As suggested by TIA, we find that 
manufacturers and service providers should be able to rely on a wide 
range of third-party accessibility solutions and whether such solutions 
meet the accessibility requirements should be decided on a case-by-case 
basis. Moreover, by putting the decision in the hands of the 
manufacturers and service providers--those who are in the best position 
to determine the most economical manner of compliance--we ensure that 
the aims of the statute will be met in the most cost-effective manner. 
At the same time, we encourage such manufacturers and service providers 
who wish to use third party accessibility solutions, to consult with 
people with disabilities about their accessibility needs because these 
individuals will be best equipped to provide guidance on which third-
party accessibility solutions will be able to meet those needs. 
Consultation with the disability community will best achieve effective 
and economical accessibility solutions.
    107. The Commission acknowledged in the Accessibility NPRM that 
``universal design,'' which is ``a concept or philosophy for designing 
and delivering products and services that are usable by people with the 
widest possible range of functional capabilities, which include 
products and services that are directly accessible (without requiring 
assistive technologies), and products and services that are 
interoperable with assistive technologies,'' will continue to play an 
important role in providing accessibility for people with disabilities. 
At the same time, the Commission acknowledged that, while section 255 
had relied primarily on universal design principles, the industry 
flexibility provisions of the CVAA reflect that there are new ways to 
meet the needs of people with disabilities that were not envisioned 
when Congress passed section 255. We agree with Consumer Groups that 
new and innovative technologies may now be able to more efficiently and 
effectively meet individual needs by personalizing services and 
products, than services and products built to perform in the same way 
for every person. Accordingly, as supported by several commenters, we 
affirm that the Commission should afford manufacturers and service 
providers as much flexibility to achieve compliance as possible, so 
long as each does everything that is achievable in accordance with the 
achievability factors.
    108. As supported by several commenters, we adopt the Commission's 
proposal in the Accessibility NPRM that ``any fee for third-party 
software or hardware accessibility solutions be `small enough

[[Page 82369]]

so as to generally not be a factor in the consumer's decision to 
acquire a product or service that the consumer otherwise desires.' '' 
We will apply this definition in accordance with the proposal submitted 
by AFB that in considering whether the cost to the consumer is nominal, 
we must look at the initial purchase price, including installation, 
plus the ongoing costs to the consumer to keep the third-party solution 
up to date and in good working order, and that the total cost to the 
consumer must be nominal as perceived by the consumer. We believe that 
this approach, which emphasizes the definition of nominal cost as 
perceived by the consumer, addresses the IT and Telecom RERCs' concerns 
that our proposed definition of nominal cost provides insufficient 
guidance and does not take into account that many people with 
disabilities are poor and already face greater costs for nearly every 
aspect of their lives. In other words, the definition of nominal cost 
as perceived by the consumer will take into account the financial 
circumstances generally faced by people with disabilities.
    109. As suggested by several commenters, we will not adopt a fixed 
percentage definition for nominal cost. We are mindful of T-Mobile's 
concern that we should not interpret the term nominal cost so narrowly 
as to negate the opportunity for third-party accessibility solutions. 
As supported by several commenters, we will therefore determine whether 
the cost of a third-party solution is nominal on a case-by-case basis, 
taking into consideration the nature of the service or product, 
including its total lifetime cost.
    110. Several commenters also express concerns about the 
Commission's proposal in the Accessibility NPRM that a third-party 
solution not be more burdensome to a consumer than a built-in solution 
would be, arguing that this test would not be workable because it would 
result in no third-party solutions. In response to these concerns, we 
clarify how we intend to interpret those requirements to ensure their 
workability. Because adaptive communications solutions are often not 
available with mainstream products and finding these solutions often 
has been difficult for people with disabilities in the past, we agree 
with those commenters that assert that a manufacturer or service 
provider that chooses to use a third-party accessibility solution has 
the responsibility to identify, notify consumers of, find, and arrange 
to install and support the third-party technology along with the 
covered entity's product to facilitate consumer access to third-party 
solutions. Although we will not adopt the testing requirements proposed 
by the IT and Telecom RERCs because we believe that the other 
requirements we adopt herein with respect to third-party solutions will 
ensure accessibility of ACS products and services to consumers with 
disabilities, we nevertheless encourage covered entities to test third-
party accessibility solutions with people with disabilities to ensure 
that such third-party solutions work as intended. We find that the 
covered entity must support the third-party solution for the life of 
the ACS product or service or for a period of up to two years after the 
third-party solution is discontinued, whichever comes first, provided 
that another third-party accessibility solution is made available by 
the covered entity at nominal cost to the consumer. In other words, to 
ensure accessibility of products and services covered by the CVAA, if 
another third-party solution is not made available by the covered 
entity at nominal cost to the consumer, then the covered entity may not 
discontinue support for the original third-party solution. We believe 
that the requirement to provide support for a replacement third-party 
accessibility solution addresses the concern expressed by the IT and 
Telecom RERCs.
    111. We agree with those commenters that suggest that we should not 
impose a requirement to bundle third-party solutions with ACS products 
and services, because a bundling requirement would provide industry 
with less flexibility than Congress intended. Therefore, third-party 
solutions can be made available after-market, rather than at the point 
of purchase, provided that such third-party solutions are made 
available around the same time as when the product or service is 
purchased. This will ensure that the consumer has access to the product 
near the time of purchase, allow for additional implementation steps 
that may be needed, and promote innovation by reducing the likelihood 
of being locked into the accessibility solutions available at the time 
the product was offered for sale.
    112. As explained in the preceding paragraphs, the total cost to 
the consumer of the third-party solution, including set-up and 
maintenance, must be nominal. We expect the set-up and maintenance for 
a third-party accessibility solution to be no more difficult than the 
set-up and maintenance for other applications used by consumers. If the 
third-party solution by its nature requires technical assistance with 
set-up or maintenance, we find that the covered entity must either 
provide those functions, including personnel with specialized skills if 
needed, or arrange for a third party to provide them.
    113. We reject Verizon's argument that manufacturers and service 
providers should not be required to provide support for the third-party 
solutions, because such a requirement would effectively require a 
contractual relationship, including intricate knowledge of the third 
party's proprietary solution, where none may exist. Verizon's theory 
would conflict with the plain meaning of sections 716(a)(2) and (b)(2), 
which afford manufacturers and service providers the option to rely on 
third-party solutions to ensure that their products and services are 
accessible if achievable. If the covered entities elect to offer third-
party solutions to achieve accessibility but do not support such third-
party solutions, they would be undermining the availability of such 
solutions.
3. Compatibility
    114. We adopt the definition of ``peripheral devices'' proposed in 
the Accessibility NPRM. We agree with the vast majority of commenters 
that peripheral devices can include mainstream devices and software, as 
long as they can be used to ``translate, enhance, or otherwise 
transform advanced communications services into a form accessible to 
individuals with disabilities'' and the devices and software are 
``commonly used by individuals with disabilities to achieve access.'' 
We did not receive comments on the IT and Telecom RERCs proposal to 
expand our definition of peripheral devices and decline to adopt their 
proposal at this time. However, we seek further comment in the 
Accessibility FNPRM on its proposal.
    115. We also adopt the same definition of specialized CPE as is 
used in our section 255 rules and proposed in the Accessibility NPRM. 
The Commission has traditionally interpreted CPE broadly to include 
wireless devices such as cellular telephone handsets, and we retain the 
flexibility to construe the scope of specialized CPE consistent with 
Commission precedent. Therefore, changing the regulatory definition of 
CPE, as the IT and Telecom RERCs suggest, to explicitly include mobile 
devices carried by the user is unnecessary. We also note that a mobile 
device could meet the definition of a peripheral device to the extent 
that it is used to ``translate, enhance, or otherwise transform 
advanced communications services into a form accessible to people with 
disabilities.''

[[Page 82370]]

    116. Consistent with the Commission's decision in the Section 255 
Report and Order, we will require manufacturers and service providers 
to exercise due diligence to identify the types of peripheral devices 
and specialized CPE ``commonly used'' by people with disabilities with 
which their products and services should be made compatible. We also 
find that when determining whether a particular device is commonly used 
by individuals with disabilities, a manufacturer or provider should 
look at the use of that device among persons with a particular 
disability. In addition, we agree with AFB that for compatibility to be 
achieved, a third party add-on must be an available solution that the 
consumer can access to make the underlying product or service 
accessible. Compliance is not satisfied because a device's software 
architecture might someday allow a third party to write an 
accessibility application. We agree with ITI, however, that ``a 
manufacturer or service provider need not make its equipment or service 
compatible with every peripheral device or piece of customer equipment 
used to achieve access.'' Covered entities are also not required to 
test compatibility with every assistive technology device in the 
market.
    117. Consistent with the Section 255 Report and Order, we decline 
to maintain a list of peripheral devices and specialized CPE commonly 
used by individuals with disabilities or to define how covered entities 
should test devices which are ``commonly used'' by people with 
disabilities, given how quickly technology is evolving. For the same 
reason, we agree with the IT and Telecom RERCs that covered entities do 
not have a duty to maintain a list of all peripheral devices and 
specialized CPE used by people with disabilities. At this time, we also 
decline to limit the definition of ``existing'' peripheral devices and 
specialized customer premises equipment to those that are currently 
sold, as ITI proposes. As discussed above, we believe that ``existing'' 
peripheral devices and specialized customer premises equipment include 
those which continue to be ``commonly used'' by people with 
disabilities. For example, a particular screen reader may no longer be 
manufactured, but could still be ``commonly used.'' We do note, 
however, that peripheral devices and specialized customer premises 
equipment that are no longer sold will eventually cease being 
``commonly used.'' We also believe that covered entities have an 
ongoing duty to consider how to make their products compatible with the 
software and hardware components and devices that people with 
disabilities use to achieve access and to include this information in 
their records required under section 717(a)(5).
    118. In declining to limit the definition of ``existing'' 
peripheral devices and specialized customer premises equipment to those 
that are currently sold, we recognize that we may be imposing an 
additional burden on industry resources. We are open to any idea that 
could facilitate transition without consumers having to bear the costs. 
In reaching this decision, we acknowledge this additional burden 
against the benefits of maintaining access for consumers with 
disabilities to ``commonly used'' peripheral devices and specialized 
customer premises equipment. We believe that ensuring that people with 
disabilities continue to have access to ``commonly used'' technologies 
that facilitate their ongoing participation in economic and civic 
activities outweighs the burden on industry and furthers the statute's 
overriding objective ``[t]o increase the access of persons with 
disabilities to modern communications.''
    119. Finding that the four criteria used in our section 255 rules 
for determining compatibility remain relevant in the context of 
advanced communications services, we adopt the following factors for 
determining compatibility: (i) External access to all information and 
control mechanisms; (ii) existence of a connection point for external 
audio processing devices; (iii) TTY connectability; and (iv) TTY signal 
compatibility. The Commission declines, at this time, to eliminate or 
modify (iii) and (iv) of this criteria. The Commission agrees with 
Consumer Groups that at this time, ``[a] forced phase-out of TTY would 
impose considerable hardship on a large segment of the population the 
CVAA is intended to protect.'' Therefore, we shall maintain the 
existing rules for TTY compatibility until alternative forms of 
communication, such as real-time text, are in place. Until a real time 
text standard is adopted, we believe that it would be premature to 
modify the third and fourth criteria as the IT and Telecom RERCs 
suggest. The provision of real-time text as communications 
technologies, including those used for 9-1-1 emergency services by 
people with disabilities, transition from the PSTN to an IP-based 
environment is being examined by the EAAC.
    120. At this time, the Commission will not incorporate criteria 
related to APIs or software development kits (SDKs) into our definition 
of compatibility. We do agree with commenters, however, that APIs ``can 
facilitate both accessibility (via third-party solutions) as well as 
compatibility'' and ``reduce the work needed by both mainstream and 
assistive technology (AT) developers.'' We encourage stakeholders to 
use existing working groups--or form new ones--to develop and 
distribute voluntary industry-wide standards, since this approach will 
offer the industry flexibility in advancing the goals of compatibility 
articulated in sections 716 and 255.
    121. Several commenters generally support the Access Board's 
proposed definition of ``compatibility'' and the VON Coalition suggests 
that the Commission should defer to the Access Board's determination of 
``compatibility'' under section 508, thereby creating consistency 
between the CVAA and section 508. Because the Access Board has not yet 
completed its guidelines process, we will not adopt the Access Board's 
proposed definition of ``compatibility'' at this time but may revisit 
this decision after the Access Board completes its guidelines process.
C. Waivers and Exemptions
1. Customized Equipment or Services
    122. Section 716(i) states that the accessibility requirements of 
section 716 ``shall not apply to customized equipment or services that 
are not offered directly to the public, or to such classes of users as 
to be effectively available directly to the public, regardless of the 
facilities used.'' We hereby find that section 716(i) sets forth a 
narrow exemption that should be limited in scope to customized 
equipment and services offered to business and other enterprise 
customers only. Our decision is consistent with the legislative history 
of the CVAA, which demonstrates that Congress intended for section 
716(i) to be a narrow exemption limited to specialized and innovative 
equipment or services built to the unique specifications of businesses:
    The Committee recognizes that some equipment and services are 
customized to the unique specifications requested by an enterprise 
customer. The Committee believes this narrow exemption will 
encourage technological innovation by permitting manufacturers and 
service providers to respond to requests from businesses that 
require specialized and sometimes innovative equipment to provide 
their services efficiently. This provision is not intended to create 
an exemption for equipment and services designed for and used by 
members of the general public.


[[Page 82371]]


    123. We also conclude that section 716's accessibility requirements 
do not extend to public safety communications networks and devices, 
because such networks and devices are ``equipment and services that are 
not offered directly to the public.'' As Motorola points out, this 
conclusion is consistent with the Commission's recent proposal not to 
apply its hearing aid compatibility requirements to public safety 
equipment. In that proceeding, the Commission proposed to find that 
insofar as public safety communications networks have different 
technical, operational, and economic demands than consumer networks, 
the burdens of compliance would outweigh the public benefits. For the 
same reasons, we find that section 716 should not be imposed on public 
safety equipment.
    124. We disagree with commenters such as Consumer Groups, and 
Words+ and Compusult who posit that public safety networks and devices 
should not be exempt from section 716 because their employees should be 
covered like the general population. These commenters argue that 
exempting public safety networks will create barriers to employment for 
people with disabilities employed in the public safety sector. We note, 
however, that employers, including public safety employers, are subject 
to accessibility obligations imposed under the ADA. Because employees 
of public safety institutions are protected by the ADA, and because the 
equipment we exempt is customized for the unique needs of the public 
safety community, we conclude that imposing the accessibility 
requirements of section 716 on such equipment would create an 
unnecessary burden on the development of public safety equipment 
without any concomitant benefit for employees with disabilities. 
Nonetheless, we agree with CSD that ``to the extent possible, public 
safety systems should be designed to accommodate the needs of deaf 
[and] hard-of-hearing employees and employees with other 
disabilities.''
    125. We agree with CEA that products customized by a manufacturer 
for an enterprise that are not offered directly to the general public 
are exempt, even if such products are ``used by members of the general 
public.'' We also agree with the IT and Telecom RERCs that if a 
customized product built to an enterprise customer's unique 
specifications is later made directly available to the public, it then 
becomes subject to the CVAA. Although the legislative history specifies 
that the exemption set forth in section 716(i) encompasses equipment/
services customized to the ``unique specifications requested by an 
enterprise customer,'' we find that where a customized product is 
subsequently offered directly to the public by the originating 
manufacturer or service provider, that product is then not serving the 
unique needs of an enterprise customer and thus should not be exempt 
from the accessibility requirements of section 716.
    126. We disagree with commenters such as Consumer Groups, the IT 
and Telecom RERCs, and Words+ and Compusult who advocate that we expand 
the definition of ``public'' as used in section 716(i), to include 
government agencies, educational organizations, and public 
institutions. While Congress clearly meant to draw a distinction 
between equipment or a service that has been ``customized to the unique 
specifications requested by an enterprise customer'' from ``equipment 
and services designed for and used by members of the general public'' 
in enacting the exemption in section 716(i), there is no support for 
the proposition that the use of the term ``public'' in the foregoing 
phrase was meant to extend to public institutions. Furthermore, there 
are many instances where public institutions, acting as enterprise 
customers, order customized equipment, such as library cataloging 
systems, whereby such systems would never be designed for, sold to, and 
used directly by members of the general public. Under Consumer Groups' 
approach, a public institution could never be considered an enterprise 
customer, even when procuring specialized equipment that would not be 
offered to the public or even other enterprise customers. There is 
nothing in the statute demonstrating that Congress intended to treat 
public institutions differently from other enterprise customers who are 
in need of customized or specialized equipment. Therefore, we decline 
to expand the definition of the word ``public'' as used in section 
716(i) to public institutions. Equipment, such as general purpose 
computers, that are used by libraries and schools without 
customization, and are offered to the general public--i.e., library 
visitors and students, would not fall within the exemption and must 
meet the accessibility requirements of section 716.
    127. We further conclude that customizations to communications 
devices that are merely cosmetic or do not significantly change the 
functionalities of the device or service should not be exempt from 
section 716. We agree with Words+ and Compusult that the section 716(i) 
exemption should be narrowly construed, and further agree with Consumer 
Groups that manufacturers and service providers should not be able to 
avoid the requirements of the CVAA through customizations that are 
``merely cosmetic'' or have ``insignificant change to functionality'' 
of the product/service. We note that the majority of commenters support 
the conclusion that this exemption should not extend to equipment or 
services that have been customized in ``minor ways'' or ``that are made 
available to the public.''
    128. Beyond the narrow exemption that we carve out for public 
safety communications, we refrain from identifying any other particular 
class of service or product as falling within the section 716(i) 
exemption. We disagree with NetCoalition that the exemption should 
apply to ACS manufacturers or service providers who offer their 
products to a ``discrete industry segment'' and only a ``relatively 
small number of individuals.'' The exemption is not based on the 
characteristics of the manufacturer or the provider, but rather, on 
whether the particular equipment or service in question is unique and 
narrowly tailored to the specific needs of a business or enterprise.
    129. The customized equipment exemption will be self-executing. 
That is, manufacturers and providers need not formally seek an 
exemption from the Commission, but will be able to raise section 716(i) 
as a defense in an enforcement proceeding.
2. Waivers for Services or Equipment Designed Primarily for Purposes 
Other Than Using ACS
    130. Section 716(h)(1) of the Act grants the Commission the 
authority to waive the requirements of section 716. We adopt the 
Commission's proposal to focus our waiver inquiry on whether a 
multipurpose equipment or service has a feature or function that is 
capable of accessing ACS but is nonetheless designed primarily for 
purposes other than using ACS. This approach is founded in the 
statutory language. We disagree with the IT and Telecom RERCs' 
assertion that our waiver analysis should focus on whether the features 
or functions are designed primarily for purposes other than using ACS. 
The statute specifically anticipates waivers for multipurpose equipment 
and services or classes of such equipment and services with ACS 
features or functions. As the House and Senate Reports explain, ``a 
device designed for a purpose unrelated to accessing advanced 
communications might also provide, on an incidental basis, access to 
such services. In this case, the Commission may find that to

[[Page 82372]]

promote technological innovation the accessibility requirements need 
not apply.''
    131. We will exercise the authority granted under section 716(h)(1) 
to waive the requirements of section 716 (a waiver of the obligations 
of section 716 also consequently relieves the waived entity from the 
recordkeeping and annual certification obligations of section 717) 
through a case-by-case, fact-based analysis on our own motion, or upon 
petition of a manufacturer of ACS equipment, a provider of ACS, or any 
interested party. AT&T and CEA generally support this approach. As we 
discuss in more detail below, the rule we adopt provides specific 
guidance on the two factors that we will use to determine whether 
equipment or service is designed primarily for purposes other than 
using ACS.
    132. We will examine whether the equipment or service was designed 
to be used for advanced communications service purposes by the general 
public. We agree that the language of the statute requires an 
examination of the purpose or purposes for which the manufacturer or 
service provider designed the product or service and that consumer use 
patterns may not always accurately reflect design. Therefore, this is 
not an examination of post-design uses that consumers may find for a 
product; but rather, an analysis of the facts available to the 
manufacturer or provider and their intent during the design phase. We 
may, for example, consider the manufacturer or provider's market 
research, the usage trends of similar equipment or services, and other 
information to determine whether a manufacturer or provider designed 
the equipment or service primarily for purposes other than ACS.
    133. We note that equipment and services may have multiple primary, 
or co-primary purposes, and in such cases a waiver may be unwarranted. 
Convergence results in multipurpose equipment and services that may be 
equally designed for multiple purposes, none of which are the exclusive 
primary use or design purpose. For instance, many smartphones appear to 
be designed for several purposes, including voice communications, text 
messaging, and email, as well as web browsing, two-way video chat, 
digital photography, digital video recording, high-definition video 
output, access to applications, and mobile hotspot connectivity. The 
CVAA would have little meaning if we were to consider waiving section 
716 with respect to the email and text messaging features of a 
smartphone on the grounds that the phone was designed in part for voice 
communications.
    134. We will also examine whether the equipment or service is 
marketed for the ACS features or functions. We agree with many 
commenters who suggest that how equipment or a service is marketed is 
relevant to determining the primary purpose for which it is designed. 
We will examine how and to what extent the ACS functionality or feature 
is advertised, announced, or marketed and whether the ACS functionality 
or feature is suggested to consumers as a reason for purchasing, 
installing, downloading, or accessing the equipment or service. We 
believe the best way to address the IT and Telecom RERCs' concern that 
a covered entity's assessment of how a product is marketed may be 
``subjective and potentially self-serving'' is to examine this factor 
on a case-by-case basis and to solicit public comment on waiver 
requests, as discussed below.
    135. Several commenters suggest additional factors that we should 
consider when examining the primary purpose for which equipment or 
service is designed. While some of these factors may be valuable in 
some cases, we decline to incorporate these factors directly into our 
rules. However, these factors may help a petitioner illustrate the 
purpose for which its equipment or service is primarily designed. For 
instance ESA suggests we examine ``[w]hether the ACS functionality 
intends to enhance another feature or purpose.'' Microsoft similarly 
suggests we examine ``[w]hether the offering is designed for a 
`specific class of users who are using the ACS features in support of 
another task' or as the primary task.'' Whether the ACS functionality 
is designed to be operable outside of other functions, or rather aides 
other functions, may support a determination that the equipment or 
service was or was not designed primarily for purposes other than ACS. 
Similarly, an examination of the impact of the removal of the ACS 
feature or function on a primary purpose for which the equipment or 
service is claimed to be designed may be relevant to a demonstration of 
the primary purpose for which the equipment or service is designed. 
Further, ESA suggests we examine ``[w]hether there are similar 
offerings that already have been deemed eligible for a * * * waiver.'' 
An examination of waivers for similar products or services, while not 
dispositive for a similar product or service, may be relevant to 
whether a waiver should be granted for a subsequent similar product or 
service. These and other factors may be relevant for a waiver 
petitioner, as determined on a case-by-case basis.
    136. Conversely, we believe there is little value in examining 
other suggested factors on the record. We do not believe that the 
``processing power or bandwidth used to deliver ACS vis-[agrave]-vis 
other features'' is relevant. No evidence provided supports the notion 
that there is a direct relationship between the primary purpose for 
which equipment or service is designed and the processing power or 
bandwidth allocated to that purpose. For example, text messaging on a 
wireless handset likely consumes less bandwidth than voice telephony, 
but both could be co-primary purposes of a wireless handset. Further, 
we do not believe that an examination of whether equipment or service 
``provides a meaningful substitute for more traditional communications 
devices'' adds significantly to the waiver analysis. The waiver 
analysis requires an examination of whether the equipment or service is 
designed primarily for purposes other than using ACS. The inquiry 
therefore is about the design of the multipurpose service or equipment, 
not the nature of the ACS component.
    137. In addition to the above factors we build into our rules and 
others that petitioners may demonstrate, we intend to utilize our 
general waiver standard, which requires good cause to waive the rules, 
and a showing that particular facts make compliance inconsistent with 
the public interest. CEA agrees with this approach. The CVAA grants the 
Commission authority to waive the requirements of section 716 in its 
discretion, and we intend to exercise that discretion consistent with 
the general waiver requirements under our rules.
    138. We decline to adopt the waiver analysis proffered by AFB and 
supported by ACB. AFB urges us to use the four achievability factors to 
examine waiver petitions. We find that the achievability factors are 
inappropriate to consider in the context of a waiver. A waiver relieves 
an entity of the obligations under section 716, including the 
obligation to conduct an achievability analysis. It would be counter to 
the purpose of a waiver to condition its grant on an entity's ability 
to meet the obligations for which it seeks a waiver. As discussed 
above, our waiver analysis will examine the primary purpose or purposes 
for which the equipment or service is designed, consistent with the 
statutory language.
    139. The factors we establish here will promote regulatory 
certainty and predictability for providers of ACS, manufacturers of ACS 
equipment, and

[[Page 82373]]

consumers. We intend for these factors to provide clear and objective 
guidance to those who may seek a waiver and those potentially affected 
by a waiver. Providers of ACS and ACS equipment manufacturers have the 
flexibility to seek waivers for services and equipment they believe 
meet the waiver requirements. While a provider or manufacturer will 
expend some level of resources to seek a waiver, the provider or 
manufacturer subsequently will have certainty regarding its obligations 
under the Act whether or not a waiver is granted. A manufacturer or 
provider that receives a waiver will avoid the cost of compliance. A 
manufacturer or provider that is not granted a waiver can determine its 
obligations under the Act following an achievability analysis. The 
opportunity cost to seek a waiver is low since the alternative is 
compliance with the Act. If a waiver is warranted, the provider or 
manufacturer can then efficiently allocate resources to other uses.
    140. We encourage equipment manufacturers and service providers to 
petition for waivers during the design phase of the product lifecycle, 
but we decline to adopt the proposal proffered by AFB to require 
petitioners to seek a waiver prior to product introduction. The design 
phase is the ideal time to seek a waiver, but we will not foreclose the 
ability of a manufacturer or provider to seek a waiver after product 
introduction. AFB correctly observes: ``If inaccessible equipment or 
services are first deployed in the marketplace, and the subsequently-
filed waiver petition is not granted, the company would remain at 
tremendous risk of being found in violation of the CVAA's access 
requirements and exposed to potential penalties.'' This reality should 
encourage equipment and service providers to seek waivers during the 
design phase without necessitating a mandate.
    141. The Commission will entertain waivers for equipment and 
services individually or as a class. With respect to any waiver, the 
Commission may decide to limit the time of its coverage, with or 
without a provision for renewal. Individual waiver requests must be 
specific to an individual product or service offering. This does not 
preclude combining multiple specific products with common attributes in 
the same waiver request. New or different products, including 
substantial upgrades that change the nature of the product or service, 
require new waivers. For example, a petitioner that manufactures many 
similar types of products--similar products of varying design, or 
similarly designed products with different product numbers--the 
petitioner must seek a waiver for each discrete product individually. 
This is analogous to rules implementing section 255, which require 
entities to consider ``whether it is readily achievable to install any 
accessibility features in a specific product whenever a natural 
opportunity to review the design of a service or product arises.'' 
Individual waiver petitioners must explain the anticipated lifecycle 
for the product or service for which the petitioner seeks a waiver. 
Individual waivers will ordinarily be granted for the life of the 
product or service. However, the Commission retains the authority to 
limit the waiver for a shorter duration if the record suggests the 
waiver should be so limited.
    142. We will exercise our authority to grant class waivers in 
instances in which classes are carefully defined and when doing so 
would promote greater predictability and certainty for all 
stakeholders. For the purpose of these rules, a class waiver is one 
that applies to more than one piece of equipment or more than one 
service where the equipment or services share common defining 
characteristics. For the Commission to grant a class waiver, we will 
examine whether petitioners have defined with specificity the class of 
common equipment or services with common advanced communications 
features and functions for which they seek a waiver, including whether 
petitioners have demonstrated the similarity of the equipment or 
service in the class and the similarity of the ACS features or 
functions. We distinguish class waivers from categorical waivers. 
Several commenters urge us to adopt rules that waive the requirements 
of section 716 for whole categories of equipment or services. We 
decline to adopt waivers for broad categories of equipment or services 
because we believe that the facts specific to each product or product 
type within a category may differ such that the ACS feature or function 
may be a primary purpose for which equipment or service within the 
category is primarily designed. We will utilize a fact-specific, case-
by-case determination of all waiver requests.
    143. In addition, we will examine whether petitioners have 
explained in detail the expected lifecycle for the equipment or 
services that are part of the class. Thus, the definition of the class 
should include the product lifecycle. All products and services covered 
by a class waiver that are introduced into the market while the waiver 
is in effect will ordinarily be subject to the waiver for the duration 
of the life of those particular products and services. As with 
ordinarily granting individual waiver requests for the life of the 
product or service, the Commission retains the authority to limit a 
class waiver for a shorter duration if the record suggests the waiver 
should be so limited. For products and services already under 
development at the time when a class waiver expires, the achievability 
analysis conducted at that time may take into consideration the 
developmental stage of the product and the effort and expense needed to 
achieve accessibility at that point in the developmental stage.
    144. To the extent a class waiver petitioner seeks a waiver for 
multiple generations of similar equipment and services, we will examine 
the justification for the waiver extending through the lifecycle of 
each discrete generation. For example, if a petitioner seeks a waiver 
for a class of devices with an ACS feature and a two-year product 
lifecycle, and the petitioner wishes to cover multiple generations of 
the product, we will examine the explanation for why each generation 
should be included in the class. If granted, the definition of the 
class will then include the multiple generations of the covered 
products or services in the class.
    145. While many commenters agree that we should consider class 
waivers, we note that others are concerned that class waivers might 
lead to a ``class of inaccessible products and services'' well beyond 
the time that a waiver should be applicable. We believe this concern is 
addressed through our fact-specific, case-by-case analysis of waiver 
petitions and the specific duration for which we will grant each class 
waiver.
    146. Several commenters urge us to adopt a time period within which 
the Commission must automatically grant waiver petitions if it has not 
taken action on them. We decline to do so. As the Commission noted in 
the Accessibility NPRM, in contrast to other statutory schemes, the 
CVAA does not specifically contemplate a ``deemed granted'' process. 
Nonetheless, we recognize the importance of expeditious consideration 
of waiver petitions to avoid delaying the development and release of 
products and services. We hereby delegate to the Consumer and 
Governmental Affairs Bureau (``Bureau'') the authority to decide all 
waiver requests filed pursuant to section 716(h)(1) and direct the 
Bureau to take all steps necessary to do so efficiently and 
effectively. Recognizing the need to provide certainty to all 
stakeholders with respect to waivers, we urge the Bureau to act 
promptly to place waiver

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requests on public notice and to give waiver requests full 
consideration and resolve them without delay. The Commission also 
hereby adopts, similar to its timeline for consideration of 
applications for transfers or assignments of licenses or authorizations 
relating to complex mergers, a timeline for consideration of 
applications for waiver of the rules we adopt herein. This timeline 
represents the Commission's goal to complete action on such waiver 
applications within 180 days of public notice. This 180-day timeline 
for action is especially important in this context, given the need to 
provide certainty to both the innovators investing risk capital to 
develop new products and services, as well as to the stakeholders with 
an interest in this area. Therefore, it is the Commission's policy to 
decide all such waiver applications as expeditiously as possible, and 
the Commission will endeavor to meet its 180-day goal in all cases. 
Finally, although delay is unlikely, we note that delay beyond the 180-
day period in a particular case would not be indicative of how the 
Commission would resolve an application for waiver.
    147. We emphasize that a critical part of this process is to ensure 
a sufficient opportunity for public input on all waiver requests. 
Accordingly, our rules provide that all waiver requests must be put on 
public notice, with a minimum of a 30-day period for comments and 
oppositions. In addition, public notices seeking comment on waiver 
requests will be posted on a Web page designated for disability-related 
waivers and exemptions in the Disability Rights Office section of the 
Commission's Web site, where the public can also access the 
accessibility clearinghouse and other accessibility-related 
information. We will also include in our biennial report to Congress 
that is required under section 717(b)(1) a discussion of the status and 
disposition of all waiver requests.
    148. We recognize that confidentiality may be important for waiver 
petitioners. Petitioners may seek confidential treatment of information 
pursuant to Sec.  0.459 of the Commission's rules. Several commenters 
agree with this approach. Third parties may request inspection of 
confidential information under Sec.  0.461 of the Commission's rules. 
We anticipate that confidentiality may be less important for class 
waiver petitions due to the generic nature of the request; a class 
waiver petition can cover many devices, applications, or services 
across many covered entities and will therefore not likely include 
specific confidential design or strategic information of any covered 
entity.
    149. ESA urges the Commission to exclude from final rules the class 
``video game offerings,'' which it defines to include video game 
consoles, operating systems, and games. CEA seeks a waiver for 
``[t]elevision sets that are enabled for use with the Internet,'' and 
``[d]igital video players that are enabled for use with the Internet.'' 
We decline to adopt or grant these requests at this time. Instead, we 
believe that petitioners will benefit from the opportunity to re-file 
these waiver requests consistent with the requirements of this Report 
and Order. Because of the phase-in period for implementation of these 
rules, petitioners will have flexibility to seek a waiver subsequent to 
this Report and Order without incurring unreasonable compliance 
expense. We encourage petitioners to seek a waiver for their respective 
classes of equipment and services consistent with the rules we adopt 
herein. For example, a petition for a waiver of equipment and services 
may need to seek a waiver for each as individual classes, although they 
may file for them in the same petition. We will specify in our biennial 
Report to Congress any waiver requests granted during the previous two 
years.
3. Exemptions for Small Entities--Temporary Exemption of Section 716 
Requirements
    150. Section 716(h)(2) states that ``[t]he Commission may exempt 
small entities from the requirements of this section.'' We do not have 
before us a sufficient record upon which to grant a permanent exemption 
for small entities. The record also lacks sufficient information on the 
criteria to be used to determine which small entities to exempt. We 
therefore seek comment on such an exemption in the Accessibility FNPRM. 
To avoid the possibility of unreasonably burdening ``small and 
entrepreneurial innovators and the significant value that they add to 
the economy,'' we exercise our authority under the Act to temporarily 
exempt from the obligations of section 716, and by effect section 717, 
all manufacturers of ACS equipment and all providers of ACS that 
qualify as small business concerns under the SBA's rules and size 
standards, pending development of a record to determine whether small 
entities should be permanently exempted and, if so, what criteria 
should be used to define small entities. We find that good cause exists 
for this temporary exemption.
    151. Despite the lack of a meaningful substantive record on which 
to adopt a permanent exemption, without a temporary exemption we run 
the risk of imposing an unreasonable burden upon small entities and 
negatively impacting the value they add to the economy. At the same 
time, the absence of meaningful comments on any exemption criteria 
prohibits us from conclusively determining their impact on consumers 
and businesses. This temporary exemption will enable us to provide 
relief to those entities that may possibly lack legal, financial, or 
technical capability to comply with the Act until we further develop 
the record to determine whether small entities should be subject to a 
permanent exemption and, if so, the criteria to be used for defining 
which small entities should be subject to such permanent exemption.
    152. We temporarily exempt entities that manufacture ACS equipment 
or provide ACS that, along with any affiliates, meet the criteria for a 
small business concern for their primary industry under SBA's rules and 
size standards. A small business concern, as defined by the SBA, is an 
``entity organized for profit, with a place of business located in the 
United States, and which operates primarily within the United States or 
which makes a significant contribution to the U.S. economy through 
payment of taxes or use of American products, materials or labor.'' 
Entities are affiliated under the SBA's rules when an entity has the 
power to control another entity, or a third party has the power to 
control both entities, as determined by factors including ``ownership, 
management, previous relationships with or ties to another concern, and 
contractual relationships.'' A concern's primary industry is determined 
by the ``distribution of receipts, employees and costs of doing 
business among the different industries in which business operations 
occurred for the most recently completed fiscal year,'' and other 
factors including ``distribution of patents, contract awards, and 
assets.''
    153. The SBA has established maximum size standards used to 
determine whether a business concern qualifies as a small business 
concern in its primary industry. The SBA has generally adopted size 
standards based on the maximum number of employees or maximum annual 
receipts of a business concern. The SBA categorizes industries for its 
size standards using the North American Industry Classification System 
(``NAICS''), a ``system for classifying establishments by type of 
economic activity.''
    154. This temporary exemption is self-executing. Entities must 
determine whether they qualify for the exemption based upon their 
ability to meet the SBA's rules and the size standard for the

[[Page 82375]]

relevant NAICS industry category for the industry in which they are 
primarily engaged. Entities that manufacture ACS equipment or provide 
ACS may raise this temporary exemption as a defense in an enforcement 
proceeding. Entities claiming the exemption must be able to demonstrate 
that they met the exemption criteria during the estimated start of the 
design phase of the lifecycle of the product or service that is the 
subject of the complaint. If an entity no longer meets the exemption 
criteria, it must comply with section 716 and section 717 for all 
subsequent products or services or substantial upgrades of products or 
services that are in the development phase of the product or service 
lifecycle, or any earlier stages of development, at the time they no 
longer meet the criteria.
    155. The temporary exemption will begin on the effective date of 
the rules adopted in this Report and Order. The temporary exemption 
will expire on the earlier of (1) the effective date of small entity 
exemption rules adopted pursuant to the Accessibility FNPRM; or (2) 
October 8, 2013.
D. Additional Industry Requirements and Guidance
1. Performance Objectives
    156. As proposed in the Accessibility NPRM, we adopt as general 
performance objectives the requirements that covered equipment and 
services be accessible, compatible and usable. We incorporate into 
these general performance objectives the outcome-oriented definitions 
of accessible, compatibility and usable, contained in Sec. Sec.  6.3 
and 7.3 of the Commission's rules. Most commenters in the record 
support this approach. The IT and Telecom RERCs, however, disagree and 
propose that we reframe our Part 6 requirements as goals and testable 
performance criteria. Because the IT and Telecom RERCs filed their 
proposal in their Reply Comments, we seek comment in the accompanying 
Accessibility FNPRM on the IT and Telecom RERCs' general approach and 
on specific testable performance criteria.
    157. We do not adopt specific performance objectives at this time. 
As we discuss in greater detail in the Accessibility FNPRM, we will 
defer consideration of specific performance criteria until the Access 
Board adopts Final Guidelines. As proposed in the Accessibility NPRM, 
we will wait until after the EAAC provides its recommendations on 
issues relating to the migration to IP-enabled networks, including the 
adoption of a real-time text standard, to the Commission in December 
2011 to update our performance objectives, as appropriate.
2. Safe Harbors
    158. We decline, at this time, to adopt any technical standards as 
safe harbors. The majority of commenters either oppose the Commission 
adopting technical standards as safe harbors or only support the 
adoption of safe harbors subject to important limitations and 
qualifications. CEA, for example, argues that safe harbors should only 
be used in limited circumstances and warns that the Commission should 
not lock in outdated technologies or impose implicit mandates. The IT 
and Telecom RERCs assert that APIs should be encouraged, but should not 
be a safe harbor. ITI, however, argues that we should adopt safe 
harbors as a ``reliable and sustainable method to achieve 
interoperability between'' all of the components necessary to make ACS 
accessible. AFB and Words+ and Compusult argue that it is still too 
early in the implementation of the CVAA to make informed judgments 
about whether safe harbor technical standards should be established. We 
do not have enough of a record at this time to evaluate ITI's proposal 
or to decline to adopt a safe harbor, and seek further comment on this 
issue in the Accessibility FNPRM.
3. Prospective Guidelines
    159. Section 716(e)(2) of the Act requires the Commission to issue 
prospective guidelines concerning the new accessibility requirements. 
We generally agree with CEA that because the Access Board's draft 
guidelines ``may still change significantly,'' we should allow the 
Access Board to complete its review and issue Final Guidelines before 
we adopt prospective guidelines in accordance with section 716(e)(2) of 
the Act. We agree with the IT and Telecom RERCs that the Commission 
does not need to create a separate advisory group to generate 
prospective guidelines. We believe that the Access Board will take into 
account the ``needs of specific disability groups, such as those with 
moderate to severe mobility and speech disorders.'' Accordingly, we 
will conduct further rulemaking to develop the required prospective 
guidelines after the Access Board issues its Final Guidelines.
E. Section 717 Recordkeeping and Enforcement
1. Recordkeeping
    160. In this Report and Order, we adopt rules to implement 
Congress's directive that manufacturers and service providers maintain 
``records of the efforts taken by such manufacturer or provider to 
implement sections 255, 716, and 718.'' Specifically, we require 
covered entities to keep the three sets of records specified in the 
statute. However, we remind covered entities that do not make their 
products or services accessible and claim as a defense that it is not 
achievable for them to do so, that they bear the burden of proof on 
this defense. As a result, while we do not require manufacturers and 
service providers that intend to make such a claim to create and 
maintain any particular records relating to that claim, they must be 
prepared to carry their burden of proof. Conclusory and unsupported 
claims are insufficient and will cause the Commission to rule in favor 
of complainants that establish a prima facie case that a product or 
service is inaccessible and against manufacturers or service providers 
that assert, without proper support, that it was not achievable for 
them to make their product or service accessible.
    161. In this regard, manufacturers and service providers claiming 
as a defense that it is not achievable must be prepared to produce 
sufficient records demonstrating:
     The nature and cost of the steps needed to make equipment 
and services accessible in the design, development, testing, and 
deployment process to make a piece of equipment or software in the case 
of a manufacturer, or service in the case of a service provider, usable 
by individuals with disabilities. Expert affidavits, attesting that 
accessibility for a product or service was not achievable, created 
after a complaint is filed or the Commission launches its own 
investigation would not satisfy this burden. Samuelson-Glushko TLPC 
argues that ``[u]ser testing requirements are vital to ensure usable 
and viable technology access to citizens with disabilities.'' While we 
will not impose specific user testing requirements, we support the 
practice of user testing and agree with Samuelson-Glushko that user 
testing benefits individuals with a wide range of disabilities. While 
we do not define here what cost records a covered entity should keep, 
in reviewing a defense of not achievable, we will expect such entities 
to produce records that will assist the Commission in identifying the 
incremental costs associated with designing, developing, testing, and 
deploying a particular piece of equipment or service with accessibility 
functionality versus the same equipment or service without 
accessibility functionality. Additionally, with respect to services, 
covered entities should be prepared to produce records that identify 
the average and marginal

[[Page 82376]]

costs over the expected life of such service. Records that front load 
costs to demonstrate that accessibility was not achievable will be 
given little weight.
     The technical and economic impact on the operation of the 
manufacturer or provider and on the operation of the specific equipment 
or service in question, including on the development and deployment of 
new communications technologies;
     The type of operations of the manufacturer or service 
provider; and,
     The extent to which the service provider or manufacturer 
in question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.
    162. Likewise, equipment manufacturers and service providers that 
elect to satisfy the accessibility requirements using third-party 
applications, peripheral devices, software, hardware, or customer 
premises equipment must be prepared to produce relevant documentation.
    163. We will not mandate any one form for keeping records (i.e., we 
adopt a flexible approach to recordkeeping). While we establish uniform 
recordkeeping and enforcement procedures for entities subject to 
sections 255, 716, and 718, we believe that covered entities should not 
be required to maintain records in a specific format. Allowing covered 
entities the flexibility to implement individual recordkeeping 
procedures takes into account the variances in covered entities (e.g., 
size, experience with the Commission), recordkeeping methods, and 
products and services covered by the provisions. While we are not 
requiring that records and documents be kept in any specific format, we 
exercise our authority and discretion under sections 403, 4(i), 4(j), 
208 and other provisions of the Act and Commission and court precedent 
to require production of records and documents in an informal and 
formal complaint process or in connection with investigations we 
initiate on our own motion in any form that is conducive to the 
dispatch of our obligation under the Act, including electronic form and 
formatted for specific documents review software products such as 
Summation, as well as paper copies. In addition, we require that all 
records filed with the Commission be in the English language. Where 
records are in a language other than English, we require the records to 
be filed in the native language format accompanied by a certified 
English translation. We adopt our proposal in the Accessibility NPRM 
that if a record that a covered entity must produce ``is not readily 
available, the covered entity must provide it no later than the date of 
its response to the complaint.''
    164. While we are not requiring entities to adopt a standard 
approach to recordkeeping, we fully expect that entities will establish 
and sustain effective internal procedures for creating and maintaining 
records that demonstrate compliance efforts and allow for prompt 
response to complaints and inquiries. As noted in the Section 255 
Report and Order, if we determine that covered entities are not 
maintaining sufficient records to respond to Commission or consumer 
inquiries, we will revisit this decision.
    165. The statute requires manufacturers and service providers to 
preserve records for a ``reasonable time period.'' Pursuant to this 
requirement, we adopt a rule that requires a covered entity to retain 
records for a period of two years from the date the covered entity 
ceases to offer or in anyway distribute (through a third party or 
reseller) the product or service to the public. In determining what 
constitutes a reasonable time period, we believe that records should at 
a minimum be retained during the time period that manufacturers and 
providers are offering the applicable products and services to the 
public. We also believe that a reasonable time period should be linked 
to the life cycle of the product or service and that covered entities 
should retain records for a reasonable period after they cease to offer 
a product or service (or otherwise distribute a product or service 
through a reseller or other third party). In this regard, based on our 
experience with other enforcement issues, we note that purchasers of 
products or services might not file a complaint for up to a year after 
they have purchased such products or services and that the statute 
places no limitation preventing consumers from doing this. In addition, 
some consumers might purchase a product or service from another party 
one year after the covered entity has ceased making and offering the 
covered product or service. These ``resale'' consumers in turn might 
take up to an additional year to file an accessibility complaint. At 
the same time, as discussed further in our Enforcement section below, 
the Commission may initiate an enforcement investigation into an 
alleged violation of section 255, 716, or 718 based on information that 
a consumer, at any time, brings to the Commission's attention. These 
documents would thus be relevant to a Commission-initiated 
investigation. For these reasons, we find that covered entities must 
retain records for two years after they cease offering (or in any way 
distributing) a covered product or service to the public.
    166. This will enable consumers to file complaints and the 
Commission to initiate its own investigations to ensure that, even if 
the product or service at issue in the complaint is not compliant, the 
next generation or iteration of the product or service is compliant. 
Because covered entities must comply with sections 255, 716, and 718, 
we find that this two-year document retention rule imposes a minimal 
burden on covered entities because it ensures that they have the 
necessary documentation to prove that they have satisfied their legal 
obligations in response to any complaint filed. Covered entities are 
reminded, however, that, even upon the expiration of the mandatory two-
year document retention rule, it is incumbent on them to prove 
accessibility or that accessibility was not achievable in the event 
that a complaint is received. Thus, covered entities should use 
discretion in setting their record retention policies applicable to the 
post-two-year mandatory record retention period.
    167. The statute requires that an officer of a manufacturer or 
service provider annually submit to the Commission a certification that 
records required to be maintained are being kept in accordance with the 
statute. We adopt a rule requiring manufacturers and service providers 
to have an authorized officer sign and file with the Commission the 
annual certification required pursuant to section 717(a)(5)(B) and our 
rules. If the manufacturer or service provider is an individual, the 
individual must sign. In the case of a partnership, one of the partners 
must sign on behalf of the partnership and by a member with authority 
to sign in cases where the manufacturer or service provider is, for 
example, an unincorporated association or other legal entity that does 
not have an officer or partner, or its equivalent. The certification 
must state that the manufacturer or service provider, as applicable, is 
keeping the records required in compliance with section 717(a)(5)(A) 
and Sec.  14.31 of our new rules and be supported with an affidavit or 
declaration under penalty of perjury, signed and dated by the 
authorized officer of the company with personal knowledge of the 
representations provided in the company's certification, verifying the 
truth and accuracy of the information therein. All such declarations 
must comply with Sec.  1.16 of our rules and be substantially in the 
form set forth therein. We also require the certification to identify 
the name and contact details of the person or

[[Page 82377]]

persons within the company that are authorized to resolve complaints 
alleging violations of our accessibility rules and sections 255, 716, 
and 718 of the Act, and the name and contact details of the person in 
the company for purposes of serving complaints under part 14, subpart D 
of our new rules. The contact details required for purposes of 
complaints and service must be the U.S. agent for service for the 
covered entity. This information will be posted on the FCC's Web site. 
Finally, the annual certification must be filed with the Commission on 
or before April 1st each year for records pertaining to the previous 
calendar year. CGB will issue a public notice to provide filing 
instructions prior to the first annual certification, which may be 
required on or before April 1, 2013. For the first certification 
filing, manufacturers and service providers must certify that, since 
the effective date of the rules, records have been kept in accordance 
with the Commission's rules. CGB will establish a system for online 
filing of annual certifications. When this system is available, CGB 
will release a public notice announcing this fact and providing 
instructions on its use. CGB will also update the Disability Rights 
Office section of the Commission's Web site to describe how annual 
certifications may be filed.
    168. Section 717(a)(5)(C) requires the Commission to keep 
confidential only those records that are: (1) Filed by a covered entity 
at the request of the Commission in response to a complaint; (2) 
created or maintained by the covered entity pursuant to the rules we 
adopt herein; and (3) directly relevant to the equipment or service 
that is the subject of the complaint. Section 717(a)(5)(C) does not 
require all records that the Commission may request a covered entity 
file in response to a complaint be kept confidential--only those 
records that the covered entity is required to keep pursuant to our 
rules adopted herein and are directly relevant to the equipment or 
service at issue. Section 717(a)(5)(C) also does not protect any 
additional materials such as supporting data or other information that 
proves the covered entity's case, nor does it protect records that 
covered entities are required to keep when responding to a Commission 
investigation initiated on our own motion.
    169. While we recognize the limited scope of the confidentiality 
protection of section 717(a)(5)(C), we also recognize that some of the 
documents falling outside that protection may also qualify for 
confidentiality under our rules. For those documents submitted in 
response to a complaint or an investigation, covered entities should 
follow our existing rules and procedures for protecting confidentiality 
of records. Accordingly, when a covered entity responds to a complaint 
alleging a violation of section 255, 716, or 718 or responds to a 
Commission inquiry, the covered entity may request confidential 
treatment of the documentation, information, and records that it files 
with the Commission under Sec.  0.459 of our rules. When covered 
entities file records that fall within the limited scope of section 
717(a)(5)(C), they may assert the statutory exemption from disclosure 
under Sec.  0.457(c) of the Commission's rules. In all other cases, 
covered entities must comply with Sec.  0.459 when seeking protection 
of their records. We remind covered entities that our rules require 
such entities to file a redacted copy of their response to a complaint 
or investigation. We do not believe it serves the public interest of 
the parties in a complaint process for the Commission to try to 
determine in the first instance what documents and records the filing 
party wishes be kept confidential. The party filing documents with the 
Commission is best suited to make that initial determination. We note 
that our informal complaint rules require the responding covered entity 
to serve a non-confidential summary of its complaint answer to the 
complainant.
    170. Finally, as discussed earlier in this Report and Order, 
products or services offered in interstate commerce shall be 
accessible, unless not achievable, beginning on October 8, 2013. 
Pursuant to the statute, one year after the effective date of these 
regulations, covered entities' recordkeeping obligations become 
effective.
2. Enforcement
a. Overview
    171. Section 717 of the Act requires the Commission to adopt rules 
that facilitate the filing of formal and informal complaints alleging 
non-compliance with section 255, 716, or 718 and to establish 
procedures for enforcement actions by the Commission with respect to 
such violations, within one year of enactment of the law. In crafting 
rules to implement the CVAA's enforcement requirements, our goal is to 
create an enforcement process that is accessible and fair and that 
allows for timely determinations, while allowing and encouraging 
parties to resolve matters informally to the extent possible.
b. General Requirements
    172. Several commenters suggest that a type of pre-filing notice to 
potential defendants may facilitate the speedy settlement of consumer 
disputes, which, they say, would save consumers and industry time and 
money and preserve Commission resources that would otherwise be 
expended in the informal complaint process. These commenters urge the 
Commission to require potential complainants to notify covered entities 
of their intent to file an informal complaint generally 30 days before 
they intend to file such a complaint. Others, however, have reported 
that consumers would experience frustration if required to pre-notify a 
covered entity directly. We recognize the potential benefits of 
allowing companies an opportunity to respond directly to the concerns 
of consumers before a complaint is filed. At the same time, we are 
cognizant of the difficulties that consumers may have in achieving 
resolution of their issues on their own. For example, consumers may not 
always be able to figure out, in multi-component products that use 
communications services, which entity is responsible for failing to 
provide access. Therefore, to facilitate settlements, as well as to 
assist consumers with bringing their concerns to the companies against 
which they might have a complaint, we adopt a compromise pre-filing 
requirement that is designed to reap the benefits of informal dispute 
resolution efforts, but that does not impose an unreasonable burden on 
consumers by requiring them to approach companies on their own.
    173. We will require consumers to file a ``Request for Dispute 
Assistance'' (``Request'') with CGB, rather than with a covered entity, 
prior to filing an informal complaint with the Commission. A Request 
for Dispute Assistance may be sent to CGB in the same manner as an 
informal complaint, as discussed below, but filers should use the email 
address [email protected] if sending their complaint by email. Parties with 
questions regarding these requests should call CGB at (202) 418-2517 
(voice), (202) 418-2922 (TTY), or visit the Commission's Disability 
Rights Office web site at http://transition.fcc.gov/cgb/dro. CGB will 
establish a system for online filing of requests for dispute 
assistance. When this system is available, CGB will release a public 
notice announcing this fact and providing instructions on its use. CGB 
will also update the Disability Rights Office section of the 
Commission's Web site to describe how requests for dispute assistance 
may be filed. This requirement to file a Request

[[Page 82378]]

is a prerequisite to the filing of informal complaints only. It is not 
a prerequisite to the filing of a formal complaint, as the complainant 
and the respondent to a formal complaint proceeding are both required 
to certify in their pleadings that, prior to the filing of the formal 
complaint, both parties, ``in good faith, discussed or attempted to 
discuss the possibility of settlement.''
    174. This Request should contain: (1) The name, address, email 
address, and telephone number of the consumer and the manufacturer or 
service provider against whom the complaint will be made; (2) an 
explanation of why the consumer believes the manufacturer or provider 
is in violation of section 255, 716, or 718 of the Commission's 
implementing rules, including details regarding the service or 
equipment and the relief requested and any documentation that supports 
the complainant's contention; (3) the approximate date or dates on 
which the consumer either purchased, acquired, or used (or attempted to 
purchase, acquire, or use) the equipment or service in question; (4) 
the consumer's preferred format or method of response to the complaint 
by the Commission and defendant (e.g., letter, facsimile transmission, 
telephone (voice/TRS/TTY), email, or some other method that will best 
accommodate the consumer's disability); and (5) any other information 
that may be helpful to CGB and the defendant to understand the nature 
of the complaint.
    175. CGB will forward a copy of the request to the named 
manufacturer or service provider in a timely manner. As discussed in 
the Recordkeeping section above, we require covered entities to include 
their contact information in their annual certifications filed with the 
Commission. If a covered entity has not filed a certification that 
includes its contact information (failure to file a certification is a 
violation of the Commission's rules), CGB shall forward the request to 
the covered entity based on publicly available information, and the 
covered entity may not argue that it did not have a sufficient 
opportunity to settle a potential complaint during the dispute 
assistance process. If, in the course of the CGB dispute assistance 
process, CGB or the parties learn that the Requester has identified the 
wrong entity or there is more than one covered entity that should be 
included in the settlement process, then CGB will assist the parties in 
ascertaining and locating the correct covered entity or entities for 
the dispute at issue. In this case, the 30-day period will be extended 
for a reasonable time period, so that the correct covered entities have 
notice and an opportunity to remedy any failure to make a product or 
service achievable or to settle the dispute in another manner.
    176. Once the covered entity receives the Request, CGB will then 
assist the consumer and the covered entity in reaching a settlement of 
the dispute with the covered entity. After 30 days, if a settlement has 
not been reached, the consumer may then file an informal complaint with 
the Commission. However, if the consumer wishes to continue using CGB 
as a settlement resource beyond the 30-day period, the consumer and the 
covered entity may mutually agree to extend the CGB dispute assistance 
process for an additional 30 days and in 30-day increments thereafter. 
Once a consumer files an informal complaint with the Enforcement 
Bureau, as discussed below, the Commission will deem the CGB dispute 
assistance process concluded.
    177. In the course of assisting parties to resolve a section 716 
dispute, CGB may discover that the named manufacturer or service 
provider is exempt from section 716 obligations under a waiver or the 
temporary small business exemption. In such cases, CGB will inform the 
consumer why the named covered entity has no responsibility to make its 
service or product accessible, and the dispute assistance process will 
terminate.
    178. We believe that this dispute assistance process provides an 
appropriate amount of time to facilitate settlements and provide 
assistance to consumers to rapidly and efficiently resolve 
accessibility issues with covered entities. We also believe that this 
approach will lessen the hesitation of some consumers to approach 
companies about their concerns or complaints by themselves. Commission 
involvement before a complaint is filed will benefit both consumers and 
industry by helping to clarify the accessibility needs of consumers for 
the manufacturers or service providers against which they may be 
contemplating a complaint, encouraging settlement discussions between 
the parties, and resolving accessibility issues without the expenditure 
of time and resources in the informal complaint process.
    179. No parties opposed the Commission's proposal not to adopt a 
standing requirement or its proposal to continue taking sua sponte 
enforcement actions. The language of the statute supports no standing 
requirement, stating that ``[a]ny person alleging a violation * * * may 
file a formal or informal complaint with the Commission.'' We believe 
that any person should be able to identify noncompliance by covered 
entities and anticipate that informal or formal complaints will be 
filed by a wide range of complainants, including those with and without 
disabilities and by individuals and consumer groups. As noted in the 
Accessibility NPRM, there is no standing requirement under sections 
255, 716, and 718 or under section 208 of the Act and our existing 
rules. Therefore, we find no reason to establish a standing requirement 
and adopt the Accessibility NPRM's proposal on standing to file. We 
also find no reason to modify existing procedures for initiating, on 
our own motion, Commission and staff investigations, inquiries, and 
proceedings for violations of our rules and the Act. Irrespective of 
whether a consumer has sought dispute assistance or filed a complaint 
on a particular issue, we intend to continue using all our 
investigatory and enforcement tools whenever necessary to ensure 
compliance with the Act and our rules.
c. Informal Complaints
    180. In crafting rules to govern informal accessibility complaints, 
we have first examined the requirements of the CVAA, especially our 
obligation to undertake an investigation to determine whether a 
manufacturer or service provider has violated core accessibility 
requirements. While the investigation is pending, the CVAA also 
encourages private settlement of informal complaints, which may 
terminate the investigation. When a complaint is not resolved 
independently between the parties, however, the Commission must issue 
an order to set forth and fully explain the determination as to whether 
a violation has occurred. Further, if the Commission finds that a 
violation has occurred, a defendant manufacturer or service provider 
may be directed to institute broad remedial measures that have 
implications and effects far beyond an individual complainant's 
particular situation, as in an order by the Commission to make 
accessible the service or the next generation of equipment. Finally, 
the CVAA requires that the Commission hold as confidential certain 
materials generated by manufacturers and service providers who may be 
defendants in informal complaint cases. In addition to these statutory 
imperatives, we have also carefully considered the comments filed in 
this proceeding as well as our existing rules that apply to a variety 
of informal complaints.
    181. Taking these factors into account, together with the 
complexity of issues and highly technical nature of the potential 
disputes that we are likely to

[[Page 82379]]

encounter in resolving complaints, the rules we adopt here attempt to 
balance the interests of both industry and consumers. In this regard, 
we seek, as much as possible, to minimize the costs and burdens imposed 
on these parties while both encouraging the non-adversarial resolution 
of disputes and ensuring that the Commission is able to obtain the 
information necessary to resolve a complaint in a timely fashion. We 
discuss these priorities more fully below and set forth both our 
pleading requirements and the factors that we believe are crucial to 
our resolution of informal accessibility complaints.
    182. We find the public interest would be served by adopting the 
minimum requirements identified by the Commission in the Accessibility 
NPRM for informal complaints. Specifically, the rules we adopt will 
require informal complaints to contain, at a minimum: (1) The name, 
address, email address, and telephone number of the complainant, and 
the manufacturer or service provider defendant against whom the 
complaint is made; (2) a complete statement of facts explaining why the 
complainant contends that the defendant manufacturer or provider is in 
violation of section 255, 716, or 718, including details regarding the 
service or equipment and the relief requested and all documentation 
that supports the complainant's contention; (3) the date or dates on 
which the complainant or person on whose behalf the complaint is being 
filed either purchased, acquired, or used (or attempted to purchase, 
acquire, or use) the equipment or service about which the complaint is 
being made; (4) a certification that the complainant submitted to the 
Commission a Request for Dispute Assistance no less than 30 days before 
the complaint is filed and the date that the Request was filed; (5) the 
complainant's preferred format or method of response to the complaint 
by the Commission and defendant (e.g., letter, facsimile transmission, 
telephone (voice/TRS/TTY), email, audio-cassette recording, Braille, or 
some other method that will best accommodate the complainant's 
disability, if any); and (6) any other information that is required by 
the Commission's accessibility complaint form.
    183. The minimum requirements we adopt for informal complaints are 
aligned with our existing informal complaint rules and the existing 
rules governing section 255 complaints and take into account our 
statutory obligations under the CVAA. They will allow us to identify 
the parties to be served, the specific issues forming the subject 
matter of the complaint, and the statutory provisions of the alleged 
violation, as well as to collect information to investigate the 
allegations and make a timely accessibility achievability 
determination. Further, we believe that these requirements create a 
simple mechanism for parties to bring legitimate accessibility 
complaints before the Commission while deterring potential complainants 
from filing frivolous, incomplete, or inaccurate complaints. 
Accordingly, we decline to relax or expand the threshold requirements 
for informal accessibility complaints as advocated by some commenters.
    184. As the Commission noted in the Accessibility NPRM, complaints 
that do not satisfy the pleading requirements will be dismissed without 
prejudice to re-file. We disagree with AFB that the Commission should 
work with a complainant to correct any errors before dismissing a 
defective complaint. Under the statute and the rules we adopt herein, 
the complainant in an informal complaint process is a party to the 
proceeding. The informal complaint proceeding is triggered by the 
filing of the informal complaint. Once the proceeding is initiated, the 
Commission's role is one of impartial adjudicator--not of an advocate 
for either the complainant or the manufacturer or service provider that 
is the subject of the complaint. While we will dismiss defective 
complaints once filed, we agree with commenters that consumers may need 
some assistance before filing their complaints. One commenter suggests 
that it may be difficult for consumers to obtain addresses for 
potential defendants as required by our rules. All manufacturers and 
service providers subject to sections 255, 716, and 718 are required to 
file with the Commission, and regularly update their business address 
and other contact information. Consumers, therefore, should have a 
simple means of obtaining this required information. Finally, the 
Commission may modify content requirements when necessary to 
accommodate a complainant whose disability may prevent him from 
providing information required under our rules. Toward that end, 
consumers may contact the Commission's Disability Rights Office by 
sending an email to [email protected]; calling (202) 418-2517 (voice) or 
(202) 418-2922 (TTY), or visiting its Web site at http://transition.fcc.gov/cgb/dro with any questions regarding where to find 
contact information for manufacturers and service providers, how to 
file an informal complaint, and what the complaint should contain.
    185. By making the Commission's Disability Rights Office available 
to consumers with questions, and by carefully crafting the dispute 
assistance process, we believe that we have minimized any potential 
minimal burdens that an informal complaint's content requirements may 
impose on consumers. After a consumer has undertaken the dispute 
assistance process, CGB and the parties should have identified the 
correct manufacturer or service provider that the consumer will name in 
the informal complaint. Indeed, by the conclusion of the dispute 
assistance process, a consumer should have obtained all the information 
necessary to satisfy the minimal requirements of an informal complaint.
    186. We decline to adopt a requirement suggested by some commenters 
that consumers be either encouraged or compelled to disclose the nature 
of their disability in an informal complaint. Nothing in the statute or 
the rules we adopt herein limits the filing of informal complaints to 
persons with disabilities or would prevent an advocacy organization, a 
person without disabilities, or other legal entity from filing a 
complaint. Thus, not every informal accessibility complaint will 
necessarily be filed by an individual with a disability. Further, 
imposing or even suggesting such a disclosure could have privacy 
implications and discourage some persons from filing otherwise 
legitimate complaints. To the extent that a particular disability is 
relevant to the alleged inaccessibility of a product or service, the 
complainant is free to choose whether to disclose his or her disability 
in the statement of facts explaining why the complainant believes the 
manufacturer or service provider is in violation of section 255, 716, 
or 718.
    187. We also decline to permit consumers to assert anonymity when 
filing informal accessibility complaints. One commenter suggests that 
such a procedure should be made available to complainants who may be 
concerned about retaliation. Anonymity would preclude the complainant 
from playing an active role in the adjudicatory process and prevent 
informal contacts and negotiated settlement between parties to resolve 
an informal complaint filed with the Commission--a possibility clearly 
favored by the CVAA. We recognize, however, that some consumers who 
wish to remain anonymous may have valuable information that could 
prompt the Commission to investigate, on its own motion, a particular 
entity's compliance

[[Page 82380]]

with section 255, 716, or 718. We wish to encourage those consumers who 
do not want to file a complaint with the Commission, for fear of 
retaliation or other reasons, to provide the Commission with 
information about non-compliance with section 255, 716, or 718. To do 
so, consumers may anonymously apprise the Commission of possible 
unlawful conduct by manufacturers or service providers with respect to 
accessibility and compliance with section 255, 716, or 718. The 
Commission will issue a public notice that will provide a Commission 
email address and voice and TTY number for the receipt of information 
from members of the public relating to possible section 255, 716, and 
718 statutory and rule violations. Consumers may provide such 
information anonymously. The Commission may use this information to 
launch its own investigation on its own motion. This process should 
satisfy the IT and Telecom RERCs' concern that some consumer may wish 
to provide information but remain anonymous. This may trigger an 
investigation by the Commission on its own initiative, but supplying 
such information is not tantamount to filing an informal complaint 
subject to the procedures we adopt herein.
    188. We also decline to establish deadlines for filing an informal 
accessibility complaint as requested by one party. Specifically, CTIA 
contends that complaints should be limited to a specified filing window 
that is tied to either the initial purchase of the equipment or service 
or the first instance of perceived inaccessibility. As a preliminary 
matter, the statute does not impose a ``filing window'' or ``statute of 
limitations'' on the filing of complaints, and we see no reason to 
adopt such a limit at this time. Further, we have no information beyond 
conjecture to suggest that consumers would be likely to use the 
informal complaint process to bring stale accessibility issues before 
the Commission. The timeliness with which a complaint is brought may, 
however, have a bearing on its outcome. Complaints that are brought 
against products or services that are no longer being offered to the 
public, for example, may be less likely to bring about results that 
would be beneficial to complainants.
    189. Finally, we do not believe that it is necessary to apply more 
stringent content requirements to informal complaints. We find 
unpersuasive the contention that complainants should be required to 
provide some evidentiary showing of a violation beyond the narrative 
required by new Sec.  14.34(b) of our new rules. In fact, the primary 
evidence necessary to assess whether a violation has occurred resides 
with manufacturers and service providers, not with consumers who use 
their products and services. While a consumer should be prepared to 
fully explain the manner in which a product or service is inaccessible, 
inaccessibility alone does not establish a violation. Specifically, a 
violation exists only if the covered product or service is inaccessible 
and accessibility was, in fact, achievable. To require that a complaint 
include evidentiary documentation or analysis demonstrating a violation 
has occurred would place the complainant in the untenable position of 
being expected to conduct a complex achievability analysis without the 
benefit of the data necessary for such an analysis simply in order to 
initiate the informal complaint process. It is the covered entity that 
will have the information necessary to conduct such an analysis, not 
the complainant.
    190. While no parties specifically commented on how the Commission 
should establish separate and identifiable electronic, telephonic, and 
physical receptacles for the receipt of informal complaints, the 
Commission has established a process that allows consumers flexibility 
in the manner in which they choose to file an informal complaint. CGB 
will establish a system for online filing of informal complaints. When 
this system is available, CGB will release a public notice announcing 
this fact and providing instructions on its use. CGB will also update 
the Disability Rights Office section of the Commission's Web site to 
describe how requests for dispute assistance may be filed. Formal 
complaints must be filed in accordance with Sec. Sec.  14.38-14.52 of 
our new rules. Informal complaints alleging a violation of section 255, 
716, or 718 may be transmitted to the Commission via any reasonable 
means, including by the Commission's online informal complaint filing 
system, U.S. Mail, overnight delivery, or email. The Commission will 
issue a public notice announcing the establishment of an Enforcement 
Bureau email address that will accept informal complaints alleging 
violations of section 255, 716 or 718 or the Commission's rules. We 
encourage parties to use the Commission's online filing system, because 
of its ease of use. Informal complaints filed using a method other than 
the Commission's online system (the Commission will issue a public 
notice as soon as its online system is established for filing informal 
complaints alleging violations of the rules adopted in this Report and 
Order) should include a cover letter that references section 255, 716, 
or 718 and should be addressed to the Enforcement Bureau. Any party 
with a question about information that should be included in a 
complaint alleging a violation of section 255, 716, or 718 should 
contact the Commission's Disability Rights Office via email at 
[email protected] or by calling (202) 418-2517 (voice), (202) 418-2922 (TTY).
    191. Once we receive a complaint, we will forward those complaints 
meeting the filing requirements, discussed above, to the manufacturer 
or service provider named in the complaint. To facilitate service of 
the complaints on the manufacturer or service provider named in the 
complaint, we adopt the Commission's proposal to require such entities 
to disclose points of contact for complaints and inquiries under 
section 255, 716, or 718 in annual certifications. As discussed in 
greater detail in General Requirements, supra, failure to file a 
certification is a violation of our rules. We expect that the parties 
or the Commission will discover that a covered entity has not filed 
contact information during the dispute assistance process, that the 
violation will be remedied during that process, and that the 
complainant will have the contact information prior to filing a 
complaint.
    192. We believe that requiring such points of contact will 
facilitate consumers' ability to communicate directly with 
manufacturers and service providers about accessibility issues or 
concerns and ensure prompt and effective service of complaints on 
defendant manufacturers and service providers by the Commission. The 
contact information must, at a minimum, include the name of the person 
or office whose principal function will be to ensure the manufacturer 
or service provider's prompt receipt and handling of accessibility 
concerns, telephone number (voice and TTY), fax number, and both 
mailing and email addresses. Covered entities must file their contact 
information with the Commission in accordance with our rules governing 
the filing of annual certifications. CGB will establish a system for 
online filing of contact information. When this system is available, 
CGB will release a public notice announcing this fact and providing 
instructions on its use. CGB will also update the Disability Rights 
Office section of the Commission's Web site to describe how contact 
information may be filed. We intend to make this information available 
on the Commission's Web site and also

[[Page 82381]]

encourage, but do not require, covered entities to clearly and 
prominently identify the designated points of contact for accessibility 
matters in, among other places, their company Web sites, directories, 
manuals, brochures, and other promotional materials. Providing such 
information on a company's Web site may assist consumers in contacting 
the companies directly and allow them to resolve their accessibility 
issues, eliminating any need to seek Commission assistance or file a 
complaint. Because the contact information is a crucial component of 
the informal complaint process (i.e., service of the complaint on 
defendants which, in turn, provides defendants with notice and 
opportunity to respond), we require that the contact information be 
kept current. It is critical that the Commission have correct 
information for service. If the complaint is not served to the correct 
address, it could delay or prevent the applicable manufacturer or 
service provider from timely responding. Failure to timely respond to a 
complaint or order of the Commission could subject a party to sanction 
or other penalties. In this regard, whenever the information is no 
longer correct in any material respect, manufacturers and service 
providers shall file and update the information within 30 days of any 
change to the information on file with the Commission. Further, failure 
to file contact information or to keep such information current will be 
a violation of our rules warranting an upward adjustment of the 
applicable base forfeiture under section 1.80 of our rules for 
``[e]gregious misconduct'' and ``[s]ubstantial harm.'' Likewise, the 
violation will be a ``continuous violation'' until cured.
    193. The CVAA provides that the party that is the subject of the 
complaint be given a reasonable opportunity to respond to the 
allegations in the complaint before the Commission makes its 
determination regarding whether a violation occurred. It also allows 
the party to include in its answer any relevant information (e.g., 
factors demonstrating that the equipment or advanced communications 
services, as applicable, are accessible to and usable by individuals 
with disabilities or that accessibility is not achievable under the 
standards set out in the CVAA and rules adopted herein). These 
provisions not only protect the due process rights of defendant 
manufacturers and service providers in informal complaint cases but 
also enable the Commission to compile a complete record to resolve a 
complaint and conduct the required investigation as to whether a 
violation of section 255, 716, or 718 has occurred.
    194. To implement these provisions of the CVAA, we adopt the 
Commission's proposal in the Accessibility NPRM with one modification 
and require answers to informal complaints to: (1) Be filed with the 
Commission and served on the complainant within twenty days of service 
of the complaint, unless the Commission or its staff specifies another 
time period; (2) respond specifically to each material allegation in 
the complaint; (3) set forth the steps taken by the manufacturer or 
service provider to make the product or service accessible and usable; 
(4) set forth the procedures and processes used by the manufacturer or 
service provider to evaluate whether it was achievable to make the 
product or service accessible and usable; (5) set forth the 
manufacturer's or service provider's basis for determining that it was 
not achievable to make the product or service accessible and usable; 
(6) provide all documents supporting the manufacturer's or service 
provider's conclusion that it was not achievable to make the product or 
service accessible and usable; (7) include a declaration by an officer 
of the manufacturer or service provider attesting to the truth of the 
facts asserted in the answer; (8) set forth any claimed defenses; (9) 
set forth any remedial actions already taken or proposed alternative 
relief without any prejudice to any denials or defenses raised; (10) 
provide any other information or materials specified by the Commission 
as relevant to its consideration of the complaint; and (11) be prepared 
or formatted in the manner requested by the Commission and the 
complainant, unless otherwise permitted by the Commission for good 
cause shown. We also adopt the Commission's proposal to allow the 
complainant ten days, unless otherwise directed by the Commission, to 
file and serve a reply that is responsive to the matters contained in 
the answer without the addition of new matters. We do not anticipate 
accepting additional filings.
    195. Defendants must file complete answers, including supporting 
records and documentation, with the Commission within the 20-day time 
period specified by the Commission. While we agree with those 
commenters that argue that a narrative answer or product design summary 
would be useful, we disagree that such a response, by itself, is 
sufficient to allow the Commission to fully investigate and make an 
accessibility or achievability determination as required by the Act. An 
answer must comply with all of the requirements listed in the paragraph 
above and include, where necessary, a discussion of how supporting 
documents, including confidential documents, support defenses asserted 
in the answer. We note that, because the CVAA requires that we keep 
certain of a defendant's documents confidential, we will not require a 
defendant to serve the complainant a confidential answer that 
incorporates, and argues the relevance of, confidential documents. 
Instead, we will require a defendant to file a non-confidential summary 
of its answer with the Commission and serve a copy on the complainant. 
The non-confidential summary must contain the essential elements of the 
answer, including any asserted defenses to the complaint, whether the 
defendant concedes that the product or service at issue was not 
accessible, and if so, the basis for its determination that 
accessibility was not achievable, and other material elements of its 
answer. The non-confidential summary should provide sufficient 
information to allow the complainant to file a reply, if he or she so 
chooses. Complainants may also request a copy of the public redacted 
version of a defendant's answer, as well as seek to obtain records 
filed by the defendant through a Freedom of Information Act (``FOIA'') 
filing. The Commission may also use the summary to give context to help 
guide its review of the detailed records filed by the defendant in its 
answer.
    196. We are also adopting the Commission's proposal in the 
Accessibility NPRM to require that defendants include in their answers 
a declaration by an authorized officer of the manufacturer or service 
provider of the truth and accuracy of the defense. Such a declaration 
is not ``irrelevant'' to whether a manufacturer or service provider has 
properly concluded that accessibility was not achievable, as it 
establishes the good faith of the analysis and holds the company 
accountable for a conclusion that ultimately resulted in an 
inaccessible product or service. Consistent with requirements for 
declarations in other contexts, we specify that a declaration here must 
be made under penalty of perjury, signed and dated by the certifying 
officer.
    197. We are not requiring answers to include the names, titles, and 
responsibilities of each decisionmaker involved in the process by which 
a manufacturer or service provider determined that accessibility of a 
particular offering was not achievable. We agree that such a 
requirement may be unduly burdensome, given the complexity of the 
product and service development process. We will, however, reserve our 
right under the Act to

[[Page 82382]]

request such information on a case-by-case basis if we determine during 
the course of an investigation initiated in response to a complaint or 
our own motion that such information may help uncover facts to support 
our determination and finding of compliance or non-compliance with the 
Act.
    198. We decline to adopt CTIA's proposal to incorporate the CVAA's 
limitation on liability, safe harbor, prospective guidelines, and rule 
of construction provisions into our rules as affirmative defenses. CTIA 
proposes that we adopt a bifurcated approach to our informal complaint 
process in which the Commission would determine whether certain 
affirmative defenses were applicable before requiring the defendant to 
respond to the complaint in full. We believe that the approach we adopt 
here is more likely to maximize the efficient resolution of informal 
complaints than the approach that CTIA recommends. Our rules will 
afford a defendant ample opportunity to assert all defenses that the 
defendant deems germane to its case and assures that the Commission has 
a complete record to render its decision based on that record within 
the statutory 180-day timeframe. Because the Commission will be 
considering all applicable defenses as part of this process, we believe 
that singling out certain defenses to incorporate into our rules is 
unwarranted.
    199. We also disagree with those commenters that express concern 
that the Accessibility NPRM did not appear to contemplate that some 
defendants may claim that their products or services are, in fact, 
accessible under section 255, 716, or 718. As noted above, the rules we 
adopt afford defendants ample opportunity to assert such a claim as an 
affirmative defense to a charge of non-compliance with our rules and to 
provide supporting documentation and evidence demonstrating that a 
particular product or service is accessible and usable either with or 
without third party applications, peripheral devices, software, 
hardware, or customer premises equipment. We recognize that different 
information and documentation will be required in an answer depending 
on the defense or defenses that are asserted. We expect defendants will 
file all necessary documents and information called for to respond to 
the complaint and any questions asked by the Commission when serving 
the complaint or in a letter of inquiry during the course of the 
investigation. Again, covered entities have the burden of proving that 
they have satisfied their legal obligations that a product or service 
is accessible and usable, or if it is not, that it was not achievable.
    200. We also disagree with those commenters that contend that the 
answer requirements, particularly those related to achievability, are 
``broad and onerous and may subject covered entities to undue 
burdens.''
    201. According to these parties, defendants will be compelled to 
produce, within an unreasonably short timeframe, voluminous documents 
that may be of marginal value to complainants or the Commission in 
making determinations regarding accessibility and achievability of a 
particular product or service or in ensuring that an individual 
complainant obtains an accessible service or device as promptly as 
possible. We address these concerns below.
    202. We disagree with commenters that the 20-day filing deadline 
for answers is too short and that we should liberally grant extensions 
of time within which to file. We believe that the 20-day filing window 
is reasonable given the 180-day mandatory schedule for resolving 
informal complaints. Furthermore, the dispute assistance process, 
described in General Requirements, supra, requires that consumers and 
manufacturers or service providers explore the possibilities for non-
adversarial resolution of accessibility disputes before a consumer may 
file a complaint. Defendants will, therefore, have ample notice as to 
the issues in dispute even before an informal complaint is filed. In 
addition, all parties subject to sections 255, 716, and 718 should 
already have created documents for their defense due to our 
recordkeeping rules. As discussed above, this Report and Order places 
manufacturers and service providers on notice that they bear the burden 
of showing that they are in compliance with sections 255, 716, and 718 
and our implementing rules by demonstrating that their products and 
services are accessible as required by the statutes and our rules or 
that they satisfy the defense that accessibility was not readily 
achievable under section 255 or achievable under the four factors 
specified in section 716. They should, therefore, routinely maintain 
any materials that they deem necessary to support their accessibility 
achievability conclusions and have them available to rebut a claim of 
non-compliance in an informal complaint or pursuant to an inquiry 
initiated by the Commission on its own motion.
    203. Further, we do not believe additional time to file an answer 
or provide responsive material is warranted for all complaints based on 
the possibility that the documentation supporting a covered entity's 
claim may have been created in a language other than English. Our 
recordkeeping rules will require English translations of any records 
that are subject to our recordkeeping requirements to be produced in 
response to an informal complaint or a Commission inquiry. Parties may 
seek extensions of time to supplement their answers with translations 
of documents not subject to the mandatory recordkeeping requirements. 
We caution, however, that such requests will not be automatically 
granted, but will require a showing of good cause.
    204. Only a covered entity will have control over documents that 
are necessary for us to comply with the Act's directive that we (1) 
``investigate the allegations in an informal complaint'' and (2) 
``issue an order concluding the investigation'' that ``shall include a 
determination whether any violation [of section 255, 716, or 718 has] 
occurred.'' We disagree with CEA that this statute grants us authority 
to sua sponte close a complaint proceeding without issuing a final 
determination whether a violation occurs. However, where the complaint 
on its face shows that the subject matter of the complaint has been 
resolved, we may dismiss the complaint as defective for failure to 
satisfy the pleading requirements as discussed above. In addition, 
where the allegations in an informal complaint allege a violation 
related to a particular piece of equipment or service that was the 
subject of a prior order in an informal or formal complaint proceeding, 
then the Commission may issue an order determining that the allegations 
of the instant complaint have already been resolved based on the 
findings and conclusions of the prior order and such other documents 
and information that bear on the issues presented in the complaint. We 
reject commenters' concerns that the documentation requirements focus 
too strongly on broad compliance investigations rather than on ensuring 
that an individual complainant is simply able to obtain an accessible 
product or service. Section 717(a)(1)(B)(i) specifically empowers us to 
go beyond the situation of the individual complainant and order that a 
service, or the next generation of equipment, be made accessible. Thus, 
our investigations with respect to informal complaints are directed to 
violations of the Act and our rules--not narrowly constrained to an 
individual complainant obtaining an accessible

[[Page 82383]]

product or service, as commenters suggest. The dispute assistance 
process, on the other hand, is designed to assist consumers, 
manufacturers, or service providers in solving individual issues before 
a complaint is filed. Covered entities will have ample opportunity, 
therefore, to address the accessibility needs of potential 
complainants.
    205. Finally, we reject the suggestion that if a defendant chooses 
to provide a possible replacement product to the complainant, the 
Commission should automatically stay the answer period while the 
complainant evaluates the new product. First, we expect that in 
virtually all cases, any replacement products will have been provided 
and evaluated during the pre-complaint dispute assistance process. 
Moreover, while suspending pleading deadlines may relieve the parties 
from preparing answers or replies that would be unnecessary if the 
manufacturer or service provider is able to satisfy the complainant's 
accessibility concerns, it would also substantially delay compilation 
of a complete record and thereby impede our ability to resolve the 
complaint within the mandatory 180-day timeframe, should private 
settlement efforts fail. Accordingly, we decline to adopt any procedure 
by which pleading deadlines would be automatically or otherwise stayed. 
We emphasize, nonetheless, that the parties are free to jointly request 
dismissal of a complaint without prejudice for the purpose of pursuing 
an informal resolution of an accessibility complaint. In such cases, if 
informal efforts were unsuccessful in providing the complainant with an 
accessible product or service, the complainant could refile the 
informal complaint at any time and would not be required to use the 
dispute assistance process again for that particular complaint.
d. Formal Complaints
    206. We require both complainants and defendants to: (1) Certify in 
their respective complaints and answers that they attempted in good 
faith to settle the dispute before the complaint was filed with the 
Commission; and (2) submit detailed factual and legal support, 
accompanied by affidavits and documentation, for their respective 
positions in the initial complaint and answer. The rules also place 
strict limits on the availability of discovery and subsequent pleading 
opportunities to present and defend against claims of misconduct.
    207. We decline to adopt a rule requiring an informal complaint to 
be filed prior to the filing of a formal complaint. As with the 
informal complaint process, we do not want to place any unnecessary 
barriers in the way of those who choose to use the formal complaint 
process. In this regard, we agree with commenters that to require a 
party to file an informal complaint as a prerequisite for filing a 
formal complaint would create an unnecessary obstacle to complainants. 
Such a prerequisite is not required in any other Commission complaint 
process and is inconsistent with the CVAA. For these reasons, we 
decline to require that an informal complaint be filed prior to the 
filing of a formal complaint.
    208. We disagree with commenters that argue that the formal 
complaint rules will impose a burden on consumers. Our rules follow the 
CVAA in providing complainants with two options for filing complaints 
alleging accessibility violations. We believe the formal complaint 
process we adopt herein is no more burdensome than necessary given the 
complexities inherent in litigation generally and is in line with our 
other formal complaint processes. Like the Commission's other formal 
complaint processes, the accessibility formal complaint rules allow 
parties an opportunity to establish their case through the filing of 
briefs, answers, replies, and supporting documentation; and allow 
access to useful information through discovery.
    209. If a complainant feels that the formal complaint process is 
too burdensome or complex, the rules we adopt provide the option to 
file an informal complaint that is less complex, less costly, and is 
intended to be pursued without representation by counsel. For example, 
there is no filing fee associated with filing an informal complaint and 
the filing can be done by the average consumer. In contrast, there is a 
filing fee associated with the formal complaint process and, in 
general, parties are represented by counsel. While complainants may see 
advantages and disadvantages with either of the processes depending on 
the specifics of their circumstances, both options provide viable means 
for seeking redress for what a complainant believes is a violation of 
our rules. Moreover, we believe that potential complainants are in the 
best position to determine which complaint process and associated 
remedies (formal or informal) serve their particular needs.
    210. We adopt the Commission's proposal in the Accessibility NPRM 
to no longer place formal accessibility complaints on the Accelerated 
Docket. Twelve years before the CVAA was enacted, in the Section 255 
Report and Order, the Commission found that the Accelerated Docket 
rules were appropriate for handling expedited consideration of consumer 
section 255 formal complaints. In the CVAA, Congress mandated expedited 
consideration of informal complaints by requiring a Commission Order 
within 180 days after the date on which a complaint is filed. As 
discussed in Informal Complaints, supra, we have carefully designed an 
informal complaint process that will place a minimal burden on 
complainants, enable both parties to present their cases fully, and 
require a Commission order within 180 days. We believe that this 
consumer-friendly, informal complaint process addresses our concerns 
that consumer complaints be resolved in a timely manner and provides an 
adequate substitute for formal Accelerated Docket complaints. In 
addition, given the ``accelerated'' or 180-day resolution timeframe for 
informal complaints, we believe that retaining an ``Accelerated 
Docket'' for formal complaints is no longer necessary and, in fact, may 
impose an unnecessary restriction on the formal complaint process 
where, as discussed above, the process involves, among other things, 
filing of briefs, responses, replies, and discovery. Therefore we 
decline to adopt the Accelerated Docket rules for section 255, 716, and 
718 formal complaints.
e. Remedies and Sanctions
    211. We intend to adjudicate each informal and formal complaint on 
its merits and will employ the full range of sanctions and remedies 
available to us under the Act in enforcing section 255, 716, or 718. 
Thus, we agree with commenters that the Commission should craft 
targeted remedies on a case-by-case basis, depending on the record of 
the Commission's own investigation or a complaint proceeding. For this 
same reason, while we agree with consumer groups that the Commission 
should act quickly and that time periods should be as short as 
practicable to ensure that consumers obtain accessible equipment or 
services in a timely manner, without the particular facts of a product 
or service in front of us, we cannot at this time decide what a 
``reasonable time'' for compliance should be. Nevertheless, as the 
Commission gains more familiarity with services, equipment, and devices 
through its own investigations and resolution of complaints, our 
enforcement orders will begin to establish precedent of consistent 
injunctive relief, periods of compliance, and other sanctions 
authorized by the Act.

[[Page 82384]]

    212. We disagree with AT&T's contention that the Accessibility 
NPRM's proposed formal complaint rules exceed the authority granted the 
Commission under the CVAA. We further disagree with AT&T's specific 
argument that the Commission does not have authority to adopt proposed 
rule Sec.  8.25, which provides that ``a complaint against a common 
carrier may seek damages.'' As discussed above, we designed the formal 
complaint rules to address potential violations of section 255, 716, or 
718. In the Section 255 Report and Order, the Commission decided that a 
complainant could obtain damages for a section 255 violation from a 
common carrier under section 207. We agree, however, with AT&T that 
CVAA services that constitute information services and are not offered 
on a common carrier basis would not be subject to the damages provision 
of section 207.
    213. Neither the CVAA nor the Act addresses permitting prevailing 
parties to recover attorney's fees and costs in formal or informal 
complaint proceedings. The Commission cannot award attorney's fees or 
costs in a section 208 formal complaint proceeding or in any other 
proceeding absent express statutory authority. We hope that a majority 
of consumer issues can be resolved through the dispute assistance 
process and thereby alleviate the need for consumers to file a 
complaint at all. We also note that consumers need not incur any 
attorney's fees by providing the Commission with information that 
allows the Commission to, on its own motion, launch its own independent 
investigation, including but not limited to a Letter of Inquiry, into 
potential violations by a covered entity. Any party that would like to 
provide the Commission with information indicating that a covered 
entity's product or service is not in compliance with the Commission's 
rules may do so, without filing a complaint, by emailing or telephoning 
the Enforcement Bureau.

III. Procedural Matters

Final Regulatory Flexibility Analysis

    214. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), an Initial Regulatory Flexibility Analysis 
(``IRFA'') was included in the Accessibility NPRM in CG Docket No. 10-
213, WT Docket No. 96-198, and CG Docket No. 10-145. The Commission 
sought written public comment on the proposals in these dockets, 
including comment on the IRFA. This Final Regulatory Flexibility 
Analysis (``FRFA'') conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

    215. The Report and Order implements Congress' mandate that people 
with disabilities have access to advanced communications services 
(``ACS'') and ACS equipment. Specifically, these rules implement 
sections 716 and 717 of the Communications Act of 1934, as amended, 
which were added by the ``Twenty-First Century Communications and Video 
Accessibility Act of 2010'' (``CVAA'').
    216. The Report and Order implements the requirements of section 
716 of the Act, which requires providers of ACS and manufacturers of 
equipment used for ACS to make their products accessible to people with 
disabilities, unless accessibility is not achievable. The Commission 
also adopts rules to implement section 717 of the Act, which requires 
the Commission to establish new recordkeeping and enforcement 
procedures for manufacturers and providers subject to sections 255, 716 
and 718.
    217. The Report and Order applies to ACS, which includes 
interconnected VoIP, non-interconnected VoIP, electronic messaging 
service, and interoperable video conferencing service. The Report and 
Orders requires manufacturers and service providers subject to section 
716 to comply with the requirements of section 716 either by building 
accessibility features into their equipment or service or by relying on 
third party applications or other accessibility solutions. If 
accessibility is not achievable by building in accessibility or relying 
on third party applications or other accessibility solutions, 
manufacturers and service providers must make their products compatible 
with existing peripheral devices or specialized customer premises 
equipment commonly used by individuals with disabilities to achieve 
access, unless that is not achievable.
    218. The Report and Order holds entities that make or produce end 
user equipment, including tablets, laptops, and smartphones, 
responsible for the accessibility of the hardware and manufacturer-
installed software used for email, SMS text messaging, and other ACS. 
The Report and Order also holds these entities responsible for software 
upgrades made available by such manufacturers for download by users. 
Additionally, the Report and Order concludes that, except for third 
party accessibility solutions, there is no liability for a manufacturer 
of end user equipment for the accessibility of software that is 
installed or downloaded by a user or made available for use in the 
cloud.
    219. The Report and Order requires manufacturers and service 
providers to consider performance objectives at the design stage as 
early and consistently as possible and implement such evaluation to the 
extent that it is achievable. The Report and Order incorporates into 
the performance objectives the outcome-oriented definitions of 
``accessible,'' ``compatibility,'' and ``usable'' contained in the 
rules regarding the accessibility of telecommunications services and 
equipment. The Report and Order adopts the four statutory factors to 
determine achievability. The Report and Order further expands on the 
fourth achievability factor--the extent to which an offering has varied 
functions, features, and prices--by allowing entities to not consider 
what is achievable with respect to every product, if such entity offers 
consumers with the full range of disabilities varied functions, 
features, and prices.
    220. The Report and Order also establishes processes for providers 
of ACS and ACS equipment manufacturers to seek waivers of the section 
716 obligations, both individual and class, for offerings which are 
designed for multiple purposes but are designed primarily for purposes 
other than using ACS. The Report and Order clarifies what constitutes 
``customized equipment or services'' for purposes of an exclusion of 
the section 716 requirements. Pointing to an insufficient record upon 
which to grant a permanent exemption for small entities, the Report and 
Order also temporarily exempts all manufacturers of ACS equipment and 
all providers of ACS from the obligations of section 716 if they 
qualify as small business concerns under the Small Business 
Administration's (``SBA'') rules and size standards for the industry in 
which they are primarily engaged.
    221. Specifically, the Report and Order adopted for this temporary 
exemption the SBA's maximum size standards that are used to determine 
whether a business concern qualifies as a small business concern in its 
primary industry. These size standards are based on the maximum number 
of employees or maximum annual receipts of a business concern. The SBA 
categorizes industries for its size standards using the North American 
Industry Classification System (``NAICS''), a ``system for classifying 
establishments by type of economic activity.'' The Report and Order 
identified some NAICS codes for possible primary

[[Page 82385]]

industry classifications of ACS equipment manufacturers and ACS 
providers and the relevant SBA size standards associated with the 
codes. This is not a comprehensive list of the primary industries and 
associated SBA size standards of every possible manufacturer of ACS 
equipment or provider of ACS. This list is merely representative of 
some primary industries in which entities that manufacture ACS 
equipment or provide ACS may be primarily engaged. It is ultimately up 
to an entity seeking the temporary exemption to make a determination 
regarding their primary industry, and justify such determination in any 
enforcement proceeding.

------------------------------------------------------------------------
                                        NAICS
        NAICS classification             code       SBA size standard
------------------------------------------------------------------------
                                Services
------------------------------------------------------------------------
Wired Telecommunications Carriers...     517110  1,500 or fewer
                                                  employees.
Wireless Telecommunications Carriers     517210  1,500 or fewer
 (except satellites).                             employees.
Telecommunications Resellers........     517911  1,500 or fewer
                                                  employees.
All Other Telecommunications........     517919  $25 million or less in
                                                  annual receipts.
Software Publishers.................     511210  $25 million or less in
                                                  annual receipts.
Internet Publishing and Broadcasting     519130  500 or fewer employees.
 and Web Search Portals.
Data Processing, Hosting, and            518210  $25 million or less in
 Related Services.                                annual receipts.
------------------------------------------------------------------------
                                Equipment
------------------------------------------------------------------------
Radio and Television Broadcasting        334220  750 or fewer employees.
 and Wireless Communications
 Equipment Manufacturing.
Electronic Computer Manufacturing...     334111  1,000 or fewer
                                                  employees.
Telephone Apparatus Manufacturing...     334210  1,000 or fewer
                                                  employees.
Other Communications Equipment           334290  750 or fewer employees.
 Manufacturing.
Software Publishers.................     511210  $25 million or less in
                                                  annual receipts.
Internet Publishing and Broadcasting     519130  500 or fewer employees.
 and Web Search Portals.
------------------------------------------------------------------------

    222. As stated above, the Report and Order indicated that this 
temporary exemption is self-executing. Under this approach, covered 
entities must determine whether they qualify for the exemption based 
upon their ability to meet the SBA's rules and the size standard for 
the relevant NAICS industry category for the industry in which they are 
primarily engaged. Entities that manufacture ACS equipment or provide 
ACS may raise this temporary exemption as a defense in an enforcement 
proceeding. Entities claiming the exemption must be able to demonstrate 
that they met the exemption criteria during the estimated start of the 
design phase of the lifecycle of the product or service that is the 
subject of the complaint.
    223. The Report and Order indicated that such an exemption was 
necessary to avoid the possibility of unreasonably burdening ``small 
and entrepreneurial innovators and the significant value that they add 
to the economy. The Report and Order states that the temporary 
exemption enables us to provide relief to those entities that may 
possibly lack legal, financial, or technical capability to comply with 
the Act until we further develop the record to determine whether small 
entities should be subject to a permanent exemption and, if so, the 
criteria to be used for defining which small entities should be subject 
to such permanent exemption. The temporary exemption will begin on the 
effective date of the rules adopted in the Report and Order and will 
expire the earlier of the effective date of small entity exemption 
rules adopted pursuant to the Further Notice of Proposed Rulemaking 
(``Accessibility FNPRM'') or October 8, 2013.
    224. The Report and Order reminds covered entities that, while the 
Commission does not require them to create and maintain any particular 
records to claim a defense that it is not achievable for them to make 
their products or services accessible, they bear the burden of proof on 
this defense.

B. Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA and Summary of the Assessment of the Agency of 
Such Issues

    225. In response to the Accessibility NPRM, one commenter addressed 
the proposed rules and policies implicated in the IRFA. NTCA requests 
that the Commission adopt an exemption for small entities from the 
obligations of section 716 and the Commission's rules implementing 
section 716 for small telecommunications carriers as defined by the 
SBA. Alternatively, NTCA requests a waiver process for small entities 
to seek and qualify for a waiver. NTCA argues that small 
telecommunications companies ``lack the size and resources to influence 
the design or features of equipment . * * * [and] the purchasing power 
to enable them to buy equipment in bulk for a reduced price, or to 
compel sufficient production to ensure that compliant equipment 
`trickles down' to smaller purchasers within a specific timeframe.''
    226. As explained in the Report and Order, we lack a sufficient 
record upon which to base a permanent exemption for small entities. 
However, we believe that some relief is necessary for entities that may 
be unreasonably burdened by conducting an achievability analysis and 
complying with the recordkeeping and certification requirements as 
necessary under the Act and in accordance with the Report and Order. 
Therefore, we exercise our discretion under the Act to temporarily 
exempt from the obligations of section 716 providers of ACS and 
manufacturers of ACS equipment that qualify as small business concerns 
under the applicable SBA rules and size standards, and seek further 
comment on whether to exercise our authority to grant a permanent small 
entity exemption in the Accessibility FNPRM, and if so, what criteria 
we should apply for defining which small entities should be subject to 
such permanent exemption. As such, the Report and Order extends 
temporary relief to all small business concerns that would otherwise 
have to comply with the Act.

C. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    227. The RFA directs agencies to provide a description of, and 
where feasible, an estimate of the number of small entities that face 
possible

[[Page 82386]]

significant economic impact by the adoption of proposed rules. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one that (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.
    228. The following entities have been identified as entities in 
which a majority of businesses in each category are estimated to be 
small. NAICS codes are provided where applicable.
     24 GHz--Incumbent Licensees (517210)
     24 GHz--Future Licensees (517210)
     39 GHz Service (517210)
     218-219 MHz Service (517210)
     220 MHz Radio Service--Phase I Licensees (517210)
     220 MHz Radio Service--Phase II Licensees (517210)
     700 MHz Band Licenses (Upper) (517210)
     700 MHz Band Licenses (Lower) (517210)
     700 MHz Guard Band Licenses (517210)
     800 and 800-Like Service Subscribers (517911)
     800 MHz and 900 MHz Specialized Mobile Radio Licenses 
(517210)
     Air-Ground Radiotelephone Service (517210)
     All Other Information Services (519190)
     All Other Telecommunications (including provide 
interoperable video conferencing services) (517919)
     Aviation and Marine Radio Services (517210)
     AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-
1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands 
(AWS-2); 2155-2175 MHz band (AWS-3)) (517210)
     Broadband Personal Communications Service (517210)
     Cable and Other Program Distributors (517110)
     Cable Companies and Systems
     Cable System Operators
     Cellular Licensees (517210)
     Certain Equipment Manufacturers and Stores
     Common Carrier Paging (517210)
     Competitive Local Exchange Carriers (Competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers (517110)
     Data Processing, Hosting, and Related Services (518210)
     Electronic Computer Manufacturing (334111)
     Fixed Microwave Services (517210)
     Government Transfer Bands (517210)
     Incumbent Local Exchange Carriers (Incumbent LECs) 
(517110)
     Interexchange Carriers (517110)
     Internet Publishing and Broadcasting and Web Search 
Portals (519130)
     Internet Service Providers, Web Portals and Other 
Information Services (519130)
     Local Resellers (517911)
     Narrowband Personal Communications Services (517210)
     Offshore Radiotelephone Service (517210)
     Open Video Services (517110)
     Operator Service Providers (OSPs) (517110)
     Other Communications Equipment Manufacturing 
(Manufacturers of Equipment Used to Provide Interoperable Video 
Conferencing Services) (334290)
     Part 15 Handset Manufacturers (334220)
     Payphone Service Providers (PSPs) (517110)
     Prepaid Calling Card Providers (517110)
     Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing (334220)
     Radio, Television, and Other Electronics Stores (443112)
     Rural Radiotelephone Service (517210)
     Satellite Telecommunications Providers (517410)
     Specialized Mobile Radio (517210)
     Telephone Apparatus Manufacturing (334210)
     Toll Resellers (517911)
     Wired Telecommunications Carriers (including providers of 
interconnected or non-interconnected VoIP) (517110)
     Wireless Cable Systems (Broadband Radio Service and 
Educational Broadband Service) (517210)
     Wireless Communications Services (517210)
     Wireless Telecommunications Carriers (except Satellite) 
(517210)
     Wireless Telephony (517210)

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    229. We summarize below the recordkeeping and certification 
obligations of the Report and Order. Additional information on each of 
these requirements can be found in the Report and Order. Again, the 
Report and Order temporarily exempts all providers of ACS and 
manufacturers of ACS equipment that qualify as small business concerns 
under the SBA's rules and size standards for the industry in which they 
are primarily engaged.
    230. Recordkeeping. The Report and Order requires, beginning one 
year after the effective date of the Report and Order, that each 
manufacturer of equipment used to provide ACS and each provider of such 
services subject to sections 255, 716, and 718 not otherwise exempt 
under the Report and Order, maintain certain records. These records 
document the efforts taken by a manufacturer or service provider to 
implement sections 255, 716, and 718. The Report and Order adopts the 
recordkeeping requirements of the CVAA, which specifically include: (1) 
Information about the manufacturer's or provider's efforts to consult 
with individuals with disabilities; (2) descriptions of the 
accessibility features of its products and services; and (3) 
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. Additionally, 
while manufacturers and providers are not required to keep records of 
their consideration of the four achievability factors, they must be 
prepared to carry their burden of proof, which requires greater than 
conclusory or unsupported claims. Similarly, entities that rely on 
third party solutions to achieve accessibility must be prepared to 
produce relevant documentation.
    231. These recordkeeping requirements are necessary to facilitate 
enforcement of the rules adopted in the Report and Order. The Report 
and Order builds flexibility into the recordkeeping obligations by 
allowing covered entities to keep records in any format, recognizing 
the unique recordkeeping methods of individual entities. Because 
complaints regarding accessibility of a product or service may not 
occur for years after the release of the product or service, the Report 
and Order requires covered entities to keep records for two years from 
the date the product ceases to be manufactured or a service is offered 
to the public.
    232. Annual Certification Obligations. The CVAA and the Report and 
Order require an officer of providers of ACS and ACS equipment to 
submit to the Commission an annual certificate that records are kept in 
accordance with the above recordkeeping requirements, unless such 
manufacturer or provider is exempt from compliance with section 716 
under applicable rules. The

[[Page 82387]]

certification must be supported with an affidavit or declaration under 
penalty of perjury, signed and dated by an authorized officer of the 
entity with personal knowledge of the representations provided in the 
company's certification, verifying the truth and accuracy of the 
information. The certification must be filed with the Consumer and 
Governmental Affairs Bureau on or before April 1 each year for records 
pertaining to the previous calendar year.
    233. Costs of Compliance. There is an upward limit on the cost of 
compliance for covered entities. Under the CVAA and Report and Order 
accessibility is required unless it is not achievable. Under two of the 
four achievability factors from the Act and adopted in the Report and 
Order, covered entities may demonstrate that accessibility is not 
achievable based on the nature and cost of steps needed or the 
technical and economic impact on the entity's operation. Entities that 
are not otherwise exempt or excluded under the Report and Order must 
nonetheless be able to demonstrate that they conducted an achievability 
analysis, which necessarily requires the retention of some records.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    234. The RFA requires an agency to describe any significant 
alternatives it considered in developing its approach, which may 
include the following four alternatives, among others: ``(1) the 
establishment of differing compliance or certification requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and certification requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.''
    235. For rules adopted that impose some burden on small entities, 
the Commission considered alternatives where possible, as directed by 
the RFA. Most significantly, the Commission considered and adopted a 
temporary exemption for all small entities that qualify as small 
business concerns under the SBA's rules and size standards. All 
entities may avoid compliance if accessibility is not achievable, may 
seek a waiver for products or services that are not designed primarily 
for ACS, and may keep records in any format.
    236. The rules require covered entities to ensure that products and 
services are accessible, unless not achievable. This is a statutory 
requirement, therefore no alternatives were considered. However, this 
requirement has built-in flexibility. All entities may demonstrate that 
accessibility is unachievable either through building accessibility 
features into the product or service or by utilizing third party 
solutions. Achievability is determined through a four factor analysis 
that examines: The nature and cost of the steps needed to meet the 
requirements of section 716(g) with respect to the specific equipment 
or service in question; the technical and economic impact on the 
operation of the manufacturer or provider and on the operation of the 
specific equipment or service in question, including on the development 
and deployment of new communications technologies; the type of 
operations of the manufacturer or provider; the extent to which the 
service provider or manufacturer in question offers accessible services 
or equipment containing varying degrees of functionality and features, 
and offered at differing price points.
    237. We note that two of the four factors look at factors that are 
particularly relevant to small entities: the nature and cost of the 
steps needed to meet the section 716 requirements and the technical and 
economic impact on the entity's operations. Therefore, as explained 
further below, this achievability analysis provides a statutorily based 
means of minimizing the economic impact of the CVAA's requirements on 
small entities. Further, when accessibility is not achievable, covered 
entities must ensure that their products and services are compatible, 
unless not achievable. This again is a statutory requirement with 
built-in flexibility through the achievability analysis.
    238. The rules require covered entities to consider performance 
objectives at the design stage as early and consistently as possible. 
This requirement is necessary to ensure that accessibility is 
considered at the point where it is logically best to incorporate 
accessibility. The CVAA and the Report and Order are naturally 
performance-driven. The CVAA and Report and Order avoid mandating 
particular designs and instead focus on an entity's compliance with the 
accessibility requirements through whatever means the entity finds 
necessary to make its product or service accessible, unless not 
achievable. This provides flexibility by allowing all entities, 
including small entities, to meet their obligations through the best 
means for a given entity instead of the Commission explicitly mandating 
a rigid requirement.
    239. With respect to recordkeeping and certification requirements, 
these requirements are necessary in order to demonstrate compliance 
with the requirements of the Report and Order and CVAA and to 
facilitate an effective and efficient complaint process. As described 
above, we adopt flexible requirements that allow covered entities to 
keep records in any format they wish. In the Report and Order, we found 
that this approach took into account the variances in covered entities 
(e.g., size, experience with the Commission), recordkeeping methods, 
and products and services covered by the CVAA. Moreover, we found that 
it also provided the greatest flexibility to small businesses and 
minimized the impact that the statutorily mandated requirements impose 
on small businesses. Correspondingly, we considered and rejected the 
alternative of imposing a specific format or one-size-fits-all system 
for recordkeeping that could potentially impose greater burdens on 
small businesses. Furthermore, the certification requirement is 
possibly less burdensome on small businesses than large, as it merely 
requires certification from an officer that the necessary records were 
kept over the previous year; this is presumably a less resource 
intensive certification for smaller entities.
    240. While ensuring accessibility and keeping records may impose 
some burdens, as discussed, the Report and Order includes significant 
flexibility for small entities. First, the achievability factors in the 
CVAA may mitigate adverse impacts and reduce burdens on small entities. 
Under the achievability factors as discussed above, an otherwise 
covered entity can demonstrate that accessibility is unachievable and 
therefore avoid compliance. The first and second factors are 
particularly relevant to small entities and the special circumstances 
they face. The first factor considers the nature and cost of the steps 
needed to meet the requirements with respect to the specific equipment 
or service in question, and the second considers the technical and 
economic impact on the operation of the manufacturer or provider and on 
the operation of the specific equipment or service in question. If 
achievability is overly expensive or has some significant negative 
technical or economic impact on a covered entity, the entity can show 
that accessibility was not achievable as a defense to a complaint.

[[Page 82388]]

    241. The Report and Order also includes significant relief for 
small and other entities including a temporary exemption from the 
obligations of section 716 and section 717 for qualifying small 
entities, waiver criteria under which all covered entities may seek a 
waiver of the obligations of section 716, and an exemption for 
customized equipment. Under the Report and Order, customized equipment 
offered to businesses and other enterprise customers is expressly 
exempt. Additionally, all providers and manufacturers, or classes of 
providers and manufacturers, are able to seek a waiver for equipment or 
services that are capable of accessing ACS. These two provisions allow 
any entity, including small entities, to avoid the burden of compliance 
with the accessibility and recordkeeping requirements if they meet the 
requirements for either provision.
    242. Further, while we could have opted to not exercise our 
discretionary authority to exempt small entities, we found that even in 
the absence of meaningful comments regarding whether to grant a 
permanent small entity exemption, there was good cause to provide 
temporary relief and avoid imposing an unreasonable burden upon small 
entities and negatively impacting the value they add to the economy. In 
the Report and Order, we therefore decided some exemption is necessary 
to provide relief to those entities for which even conducting an 
achievability analysis would consume an unreasonable amount of 
resources. Finding good cause for granting such relief, the Report and 
Order temporarily exempts ACS providers and ACS equipment manufacturers 
that qualify as small business concerns under the SBA's rules and size 
standards.
    243. Specifically, the Report and Order temporarily exempts 
entities that manufacture ACS equipment or provide ACS that, along with 
any affiliates, meet the criteria for a small business concern for 
their primary industry under SBA's rules and size standards. A small 
business concern, as defined by the SBA, is an ``entity organized for 
profit, with a place of business located in the United States, and 
which operates primarily within the United States or which makes a 
significant contribution to the U.S. economy through payment of taxes 
or use of American products, materials or labor.'' The Report and Order 
stated that if an entity no longer meets the exemption criteria, it 
must comply with section 716 and section 717 for all subsequent 
products or services or substantial upgrades of products or services 
that are in the development phase of the product or service lifecycle, 
or any earlier stages of development, at the time they no longer meet 
the criteria. The temporary exemption will begin on the effective date 
of the rules adopted in the Report and Order and will expire the 
earlier of the effective date of small entity exemption rules adopted 
pursuant to the Accessibility FNPRM or October 8, 2013.

F. Federal Rules That May Duplicate, Overlap, or Conflict With Proposed 
Rules

    Section 255(e) of the Act, as amended, directs the United States 
Access Board (``Access Board'') to develop equipment accessibility 
guidelines ``in conjunction with'' the Commission, and periodically to 
review and update those guidelines. We view the Access Board's current 
guidelines as well as its draft guidelines as starting points for our 
interpretation and implementation of sections 716 and 717 of the Act, 
as well as section 255, but because they do not currently cover ACS or 
equipment used to provide or access ACS, we must necessarily adapt 
these guidelines in our comprehensive implementation scheme. As such, 
our rules do not overlap, duplicate, or conflict with either Access 
Board Final Rules, or (if later adopted) the Access Board Draft 
Guidelines. Where obligations under section 255 and section 716 
overlap, for instance for accessibility requirements for interconnected 
VoIP, we clarify in the Report and Order which rules govern the 
entities' obligations.

Ordering Clauses

    244. Accordingly, it is ordered that pursuant to sections 1-4, 255, 
303(r), 403, 503, 716, 717, and 718 of the Communications Act of 1934, 
as amended, 47 U.S.C. 151-154, 255, 303(r), 403, 503, 617, 618, and 
619, this Report and Order is hereby adopted.
    245. It is further ordered that parts 1, 6 and 7 of the 
Commission's rules, 47 CFR parts 1, 6, and 7, are amended, and new part 
14 of the Commission's rules, 47 CFR part 14 is added effective January 
30, 2012.
    246. It is further ordered that the Commission's Consumer 
Information Bureau, Reference Information Center, shall send a copy of 
the Report and Order, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.
    247. It is further ordered that the Commission shall send a copy of 
this Report and Order to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Individuals with disabilities, Radio, Reporting and 
recordkeeping requirements, Satellites, Telecommunications.

47 CFR Parts 6 and 7

    Communications equipment, Individuals with disabilities, 
Telecommunications.

47 CFR Part 14

    Advanced communications services equipment, Manufacturers of 
equipment used for advanced communications services, Providers of 
advanced communications services, Individuals with disabilities, 
Recordkeeping and enforcement requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 1, 6 and 7 and adds new 
part 14 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154, 160, 201, 
225, 303, 617 and 618.

0
2. Amend Sec.  1.80 by redesignating paragraphs (b)(3), (b)(4), (b)(5), 
and (b)(6) as paragraphs (b)(4), (b)(5), (b)(6), and (b)(7) and by 
adding new paragraph (b)(3) and revising newly redesignated paragraph 
(b)(5) to read as follows:


Sec.  1.80  Forfeiture Proceedings.

* * * * *
    (b) * * *
    (3) If the violator is a manufacturer or service provider subject 
to the requirements of section 255, 716 or 718 of the Communications 
Act, and is determined by the Commission to have violated any such 
requirement, the manufacturer or service provider shall be liable to 
the United States for a forfeiture penalty of not more than $100,000 
for each violation or each day of a continuing violation, except that 
the amount assessed for any continuing violation shall not exceed a 
total of $1,000,000 for any single act or failure to act.
* * * * *
    (5) In any case not covered in paragraphs (b)(1) through (b)(4) of 
this section, the amount of any forfeiture penalty determined under 
this section

[[Page 82389]]

shall not exceed $16,000 for each violation or each day of a continuing 
violation, except that the amount assessed for any continuing violation 
shall not exceed a total of $112,500 for any single act or failure to 
act described in paragraph (a) of this section.
* * * * *

PART 6--ACCESS TO TELECOMMUNICATIONS SERVICE, TELECOMMUNICATIONS 
EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT BY PERSONS WITH 
DISABILITIES

0
3. The authority citation for part 6 continues to read as follows:

    Authority:  47 U.S.C. 151-154, 251, 255, 303(r), 617, 618.

0
4. Revise Sec.  6.15 to read as follows:


Sec.  6.15  Generally.

    (a) All manufacturers of telecommunications equipment or customer 
premises equipment and all providers of telecommunications services, as 
defined under this subpart are subject to the enforcement provisions 
specified in the Act and the Commission's rules.
    (b) For purposes of Sec. Sec.  6.15 through 6.23, the term 
``manufacturers'' shall denote manufacturers of telecommunications 
equipment or customer premises equipment and the term ``providers'' 
shall denote providers of telecommunications services.

0
5. Revise Sec.  6.16 to read as follows:


Sec.  6.16  Informal or formal complaints.

    Sections 6.17 through 6.23 of this subpart shall sunset on October 
8, 2013. On October 8, 2013, any person may file either a formal or 
informal complaint against a manufacturer or provider alleging 
violations of section 255 or this part subject to the enforcement 
requirements set forth in Sec. Sec.  14.30 through 14.52 of this 
chapter.

PART 7--ACCESS TO VOICEMAIL AND INTERACTIVE MENU SERVICES AND 
EQUIPMENT BY PEOPLE WITH DISABILITIES

0
6. The authority citation for part 7 continues to read as follows:

    Authority:  47 U.S.C. 151, 154(i), 154(j), 208, 255, 617, 618.

0
7. Section 7.15 is amended by revising paragraph (b) to read as 
follows:


Sec.  7.15  Generally.

* * * * *
    (b) All manufacturers of telecommunications equipment or customer 
premises equipment and all providers of voicemail and interactive menu 
services, as defined under this subpart, are subject to the enforcement 
provisions specified in the Act and the Commission's rules.
* * * * *

0
8. Revise Sec.  7.16 to read as follows:


Sec.  7.16  Informal or formal complaints.

    Sections 7.17 through 7.23 of this subpart shall sunset on October 
8, 2013. On October 8, 2013, any person may file either a formal or 
informal complaint against a manufacturer or provider alleging 
violations of section 255 or this part subject to the enforcement 
requirements set forth in Sec. Sec.  14.30 through 14.52 of this 
chapter.

0
9. Add part 14 to read as follows:

PART 14--ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT 
BY PEOPLE WITH DISABILITIES

Subpart A--Scope
Sec.
14.1 Applicability.
14.2 Limitations.
14.3 Exemption for Customized Equipment or Services.
14.4 Exemption for Small Entities.
14.5 Waivers--Multi-purpose Services and Equipment.
Subpart B--Definitions
14.10 Definitions.
Subpart C--Implementation Requirements--What Must Covered Entities Do?
14.20 Obligations.
14.21 Performance Objectives.
Subpart D--Recordkeeping, Consumer Dispute Assistance, and Enforcement
14.30 Generally.
14.31 Recordkeeping.
14.32 Consumer Dispute Assistance.
14.33 Informal or formal complaints.
14.34 Informal complaints; form, filing, content, and consumer 
assistance.
14.35 Procedure; designation of agents for service.
14.36 Answers and Replies to informal complaints.
14.37 Review and disposition of informal complaints.
14.38 Formal Complaints; General pleading requirements.
14.39 Format and content of formal complaints.
14.40 Damages.
14.41 Joinder of complainants and causes of action.
14.42 Answers.
14.43 Cross-complaints and counterclaims.
14.44 Replies.
14.45 Motions.
14.46 Formal complaints not stating a cause of action; defective 
pleadings.
14.47 Discovery.
14.48 Confidentiality of information produced or exchanged by the 
parties.
14.49 Other required written submissions.
14.50 Status conference.
14.51 Specifications as to pleadings, briefs, and other documents; 
subscription.
14.52 Copies; service; separate filings against multiple defendants.

    Authority:  47 U.S.C. 151-154, 255, 303, 403, 503, 617, 618 
unless otherwise noted.

Subpart A--Scope


Sec.  14.1  Applicability.

    Except as provided in Sec. Sec.  14.2, 14.3, 14.4 and 14.5 of this 
chapter, the rules in this part apply to:
    (a) Any manufacturer of equipment used for advanced communications 
services, including end user equipment, network equipment, and 
software, that such manufacturer offers for sale or otherwise 
distributes in interstate commerce;
    (b) Any provider of advanced communications services that such 
provider offers in or affecting interstate commerce.


Sec.  14.2  Limitations.

    (a) Except as provided in paragraph (b) of this section no person 
shall be liable for a violation of the requirements of the rules in 
this part with respect to advanced communications services or equipment 
used to provide or access advanced communications services to the 
extent such person--
    (1) Transmits, routes, or stores in intermediate or transient 
storage the communications made available through the provision of 
advanced communications services by a third party; or
    (2) Provides an information location tool, such as a directory, 
index, reference, pointer, menu, guide, user interface, or hypertext 
link, through which an end user obtains access to such advanced 
communications services or equipment used to provide or access advanced 
communications services.
    (b) The limitation on liability under paragraph (a) of this section 
shall not apply to any person who relies on third party applications, 
services, software, hardware, or equipment to comply with the 
requirements of the rules in this part with respect to advanced 
communications services or equipment used to provide or access advanced 
communications services.
    (c) The requirements of this part shall not apply to any equipment 
or services, including interconnected VoIP service, that were subject 
to the requirements of Section 255 of the Act on October 7, 2010, which 
remain subject to Section 255 of the Act, as amended, and subject to 
the rules in parts 6 and 7 of this chapter, as amended.

[[Page 82390]]

Sec.  14.3  Exemption for Customized Equipment or Services.

    (a) The rules in this part shall not apply to customized equipment 
or services that are not offered directly to the public, or to such 
classes of users as to be effectively available directly to the public, 
regardless of the facilities used.
    (b) A provider of advanced communications services or manufacturer 
of equipment used for advanced communications services may claim the 
exemption in paragraph (a) of this section as a defense in an 
enforcement proceeding pursuant to subpart D of this part, but is not 
otherwise required to seek such an affirmative determination from the 
Commission.


Sec.  14.4  Exemption for Small Entities.

    (a) A provider of advanced communications services or a 
manufacturer of equipment used for advanced communications services to 
which this part applies is exempt from the obligations of this part if 
such provider or manufacturer, at the start of the design of a product 
or service:
    (1) Qualifies as a business concern under 13 CFR 121.105; and
    (2) Together with its affiliates, as determined by 13 CFR 121.103, 
meets the relevant small business size standard established in 13 CFR 
121.201 for the primary industry in which it is engaged as determined 
by 13 CFR 121.107.
    (b) A provider or manufacturer may claim this exemption as a 
defense in an enforcement proceeding pursuant to subpart D of this 
part, but is not otherwise required to seek such an affirmative 
determination from the Commission.
    (c) This exemption will expire no later than October 8, 2013.


Sec.  14.5  Waivers--Multipurpose Services and Equipment.

    (a) Waiver. (1) On its own motion or in response to a petition by a 
provider of advanced communications services, a manufacturer of 
equipment used for advanced communications services, or by any 
interested party, the Commission may waive the requirements of this 
part for any feature or function of equipment used to provide or access 
advanced communications services, or for any class of such equipment, 
for any provider of advanced communications services, or for any class 
of such services, that--
    (i) Is capable of accessing an advanced communications service; and
    (ii) Is designed for multiple purposes, but is designed primarily 
for purposes other than using advanced communications services.
    (2) For any waiver petition under this section, the Commission will 
examine on a case-by-case basis--
    (i) Whether the equipment or service is designed to be used for 
advanced communications purposes by the general public; and
    (ii) Whether and how the advanced communications functions or 
features are advertised, announced, or marketed.
    (b) Class Waiver. For any petition for a waiver of more than one 
advanced communications service or one piece of equipment used for 
advanced communications services where the service or equipment share 
common defining characteristics, in addition to the requirements of 
Sec. Sec.  14.5(a)(1) and (2), the Commission will examine the 
similarity of the service or equipment subject to the petition and the 
similarity of the advanced communications features or functions of such 
services or equipment.
    (c) Duration. (1) A petition for a waiver of an individual advanced 
communications service or equipment used for advanced communications 
services may be granted for the life of the service or equipment as 
supported by evidence on the record, or for such time as the Commission 
determines based on evidence on the record.
    (2) A petition for a class waiver may be granted for a time to be 
determined by the Commission based on evidence on the record, including 
the lifecycle of the equipment or service in the class. Any class 
waiver granted under this section will waive the obligations of this 
part for all advanced communications services and equipment used for 
advanced communications services subject to a class waiver and made 
available to the public prior to the expiration of such waiver.
    (d) Public notice. All petitions for waiver filed pursuant to this 
section shall be put on public notice, with a minimum of a 30-day 
period for comments and oppositions.

Subpart B--Definitions


Sec.  14.10  Definitions.

    (a) The term accessible shall have the meaning provided in Sec.  
14.21(b).
    (b) The term achievable shall mean with reasonable effort or 
expense, as determined by the Commission. In making such a 
determination, the Commission shall consider:
    (1) The nature and cost of the steps needed to meet the 
requirements of section 716 of the Act and this part with respect to 
the specific equipment or service in question;
    (2) The technical and economic impact on the operation of the 
manufacturer or provider and on the operation of the specific equipment 
or service in question, including on the development and deployment of 
new communications technologies;
    (3) The type of operations of the manufacturer or provider; and
    (4) The extent to which the service provider or manufacturer in 
question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.
    (c) The term advanced communications services shall mean:
    (1) Interconnected VoIP service, as that term is defined in this 
section;
    (2) Non-interconnected VoIP service, as that term is defined in 
this section;
    (3) Electronic messaging service, as that term is defined in this 
section; and
    (4) Interoperable video conferencing service, as that term is 
defined in this section.
    (d) The term application shall mean software designed to perform or 
to help the user perform a specific task or specific tasks, such as 
communicating by voice, electronic text messaging, or video 
conferencing.
    (e) The term compatible shall have the meaning provided in Sec.  
14.21(d).
    (f) The term customer premises equipment shall mean equipment 
employed on the premises of a person (other than a carrier) to 
originate, route, or terminate telecommunications.
    (g) The term customized equipment or services shall mean equipment 
and services that are produced or provided to meet unique 
specifications requested by a business or enterprise customer and not 
otherwise available to the general public, including public safety 
networks and devices.
    (h) The term disability shall mean a physical or mental impairment 
that substantially limits one or more of the major life activities of 
an individual; a record of such an impairment; or being regarded as 
having such an impairment.
    (i) The term electronic messaging service means a service that 
provides real-time or near real-time non-voice messages in text form 
between individuals over communications networks.
    (j) The term end user equipment shall mean equipment designed for 
consumer use. Such equipment may include both hardware and software 
components.
    (k) The term hardware shall mean a tangible communications device, 
equipment, or physical component of communications technology, 
including peripheral devices, such as a smart phone, a laptop computer, 
a desktop computer, a screen, a keyboard, a speaker, or an amplifier.

[[Page 82391]]

    (l) The term interconnected VoIP service shall have the same 
meaning as in Sec.  9.3 of this chapter, as such section may be amended 
from time to time.
    (m) An interoperable video conferencing service means a service 
that provides real-time video communications, including audio, to 
enable users to share information of the user's choosing.
    (n) The term manufacturer shall mean an entity that makes or 
produces a product, including equipment used for advanced 
communications services, including end user equipment, network 
equipment, and software.
    (o) The term network equipment shall mean equipment facilitating 
the use of a network, including, routers, network interface cards, 
networking cables, modems, and other related hardware. Such equipment 
may include both hardware and software components.
    (p) The term nominal cost in regard to accessibility and usability 
solutions shall mean small enough so as to generally not be a factor in 
the consumer's decision to acquire a product or service that the 
consumer otherwise desires.
    (q) A non-interconnected VoIP service is a service that:
    (1) Enables real-time voice communications that originate from or 
terminate to the user's location using Internet protocol or any 
successor protocol; and
    (2) Requires Internet protocol compatible customer premises 
equipment; and
    (3) Does not include any service that is an interconnected VoIP 
service.
    (r) The term peripheral devices shall mean devices employed in 
connection with equipment, including software, covered by this part to 
translate, enhance, or otherwise transform advanced communications 
services into a form accessible to individuals with disabilities.
    (s) The term service provider shall mean a provider of advanced 
communications services that are offered in or affecting interstate 
commerce, including a provider of applications and services that can be 
used for advanced communications services and that can be accessed 
(i.e., downloaded or run) by users over any service provider network.
    (t) The term software shall mean programs, procedures, rules, and 
related data and documentation that direct the use and operation of a 
computer or related device and instruct it to perform a given task or 
function.
    (u) The term specialized customer premises equipment shall mean 
customer premise equipment which is commonly used by individuals with 
disabilities to achieve access.
    (v) The term usable shall have the meaning provided in Sec.  
14.21(c).

Subpart C--Implementation Requirements--What Must Covered Entities 
Do?


Sec.  14.20  Obligations.

    (a) General Obligations. (1) With respect to equipment manufactured 
after the effective date of this part, a manufacturer of equipment used 
for advanced communications services, including end user equipment, 
network equipment, and software, must ensure that the equipment and 
software that such manufacturer offers for sale or otherwise 
distributes in interstate commerce shall be accessible to and usable by 
individuals with disabilities, unless the requirements of this 
subsection are not achievable.
    (2) With respect to services provided after the effective date of 
this part, a provider of advanced communications services must ensure 
that services offered by such provider in or affecting interstate 
commerce are accessible to and usable by individuals with disabilities, 
unless the requirements of this paragraph are not achievable.
    (3) If accessibility is not achievable either by building it in or 
by using third party accessibility solutions available to the consumer 
at nominal cost and that individuals with disabilities can access, then 
a manufacturer or service provider shall ensure that its equipment or 
service is compatible with existing peripheral devices or specialized 
customer premises equipment, unless the requirements of this subsection 
are not achievable.
    (4) Providers of advanced communications services shall not install 
network features, functions, or capabilities that impede accessibility 
or usability.
    (5) Providers of advanced communications services, manufacturers of 
equipment used with these services, and providers of networks used with 
these services may not impair or impede the accessibility of 
information content when accessibility has been incorporated into that 
content for transmission through such services, equipment or networks.
    (b) Product design, development, and evaluation. (1) Manufacturers 
and service providers must consider performance objectives set forth in 
Sec.  14.21 at the design stage as early as possible and must implement 
such performance objectives, to the extent that they are achievable.
    (2) Manufacturers and service providers must identify barriers to 
accessibility and usability as part of such evaluation.
    (c) Information Pass Through. Equipment used for advanced 
communications services, including end user equipment, network 
equipment, and software must pass through cross-manufacturer, 
nonproprietary, industry-standard codes, translation protocols, formats 
or other information necessary to provide advanced communications 
services in an accessible format, if achievable. Signal compression 
technologies shall not remove information needed for access or shall 
restore it upon decompression.
    (d) Information, documentation, and training. Manufacturers and 
service providers must ensure that the information and documentation 
that they provide to customers is accessible, if achievable. Such 
information and documentation includes, but is not limited to, user 
guides, bills, installation guides for end user devices, and product 
support communications. The requirement to ensure the information is 
accessible also includes ensuring that individuals with disabilities 
can access, at no extra cost, call centers and customer support 
regarding both the product generally and the accessibility features of 
the product.


Sec.  14.21  Performance Objectives.

    (a) Generally. Manufacturers and service providers shall ensure 
that equipment and services covered by this part are accessible, 
usable, and compatible as those terms are defined in paragraphs (b) 
through (d) of this section.
    (b) Accessible. The term accessible shall mean that:
    (1) Input, control, and mechanical functions shall be locatable, 
identifiable, and operable in accordance with each of the following, 
assessed independently:
    (i) Operable without vision. Provide at least one mode that does 
not require user vision.
    (ii) Operable with low vision and limited or no hearing. Provide at 
least one mode that permits operation by users with visual acuity 
between 20/70 and 20/200, without relying on audio output.
    (iii) Operable with little or no color perception. Provide at least 
one mode that does not require user color perception.
    (iv) Operable without hearing. Provide at least one mode that does 
not require user auditory perception.
    (v) Operable with limited manual dexterity. Provide at least one 
mode that

[[Page 82392]]

does not require user fine motor control or simultaneous actions.
    (vi) Operable with limited reach and strength. Provide at least one 
mode that is operable with user limited reach and strength.
    (vii) Operable with a Prosthetic Device. Controls shall be operable 
without requiring body contact or close body proximity.
    (viii) Operable without time-dependent controls. Provide at least 
one mode that does not require a response time or allows response time 
to be by-passed or adjusted by the user over a wide range.
    (ix) Operable without speech. Provide at least one mode that does 
not require user speech.
    (x) Operable with limited cognitive skills. Provide at least one 
mode that minimizes the cognitive, memory, language, and learning 
skills required of the user.
    (2) All information necessary to operate and use the product, 
including but not limited to, text, static or dynamic images, icons, 
labels, sounds, or incidental operating cues, [shall] comply with each 
of the following, assessed independently:
    (i) Availability of visual information. Provide visual information 
through at least one mode in auditory form.
    (ii) Availability of visual information for low vision users. 
Provide visual information through at least one mode to users with 
visual acuity between 20/70 and 20/200 without relying on audio.
    (iii) Access to moving text. Provide moving text in at least one 
static presentation mode at the option of the user.
    (iv) Availability of auditory information. Provide auditory 
information through at least one mode in visual form and, where 
appropriate, in tactile form.
    (v) Availability of auditory information for people who are hard of 
hearing. Provide audio or acoustic information, including any auditory 
feedback tones that are important for the use of the product, through 
at least one mode in enhanced auditory fashion (i.e., increased 
amplification, increased signal-to-noise ratio, or combination).
    (vi) Prevention of visually-induced seizures. Visual displays and 
indicators shall minimize visual flicker that might induce seizures in 
people with photosensitive epilepsy.
    (vii) Availability of audio cutoff. Where a product delivers audio 
output through an external speaker, provide an industry standard 
connector for headphones or personal listening devices (e.g., phone-
like handset or earcup) which cuts off the speaker(s) when used.
    (viii) Non-interference with hearing technologies. Reduce 
interference to hearing technologies (including hearing aids, cochlear 
implants, and assistive listening devices) to the lowest possible level 
that allows a user to utilize the product.
    (ix) Hearing aid coupling. Where a product delivers output by an 
audio transducer which is normally held up to the ear, provide a means 
for effective wireless coupling to hearing aids.
    (c) Usable. The term usable shall mean that individuals with 
disabilities have access to the full functionality and documentation 
for the product, including instructions, product information (including 
accessible feature information), documentation and technical support 
functionally equivalent to that provided to individuals without 
disabilities.
    (d) Compatible. The term compatible shall mean compatible with 
peripheral devices and specialized customer premises equipment, and in 
compliance with the following provisions, as applicable:
    (1) External electronic access to all information and control 
mechanisms. Information needed for the operation of products (including 
output, alerts, icons, on-line help, and documentation) shall be 
available in a standard electronic text format on a cross-industry 
standard port and all input to and control of a product shall allow for 
real time operation by electronic text input into a cross-industry 
standard external port and in cross-industry standard format. The 
cross-industry standard port shall not require manipulation of a 
connector by the user.
    (2) Connection point for external audio processing devices. 
Products providing auditory output shall provide the auditory signal at 
a standard signal level through an industry standard connector.
    (3) TTY connectability. Products that provide a function allowing 
voice communication and which do not themselves provide a TTY 
functionality shall provide a standard non-acoustic connection point 
for TTYs. It shall also be possible for the user to easily turn any 
microphone on and off to allow the user to intermix speech with TTY 
use.
    (4) TTY signal compatibility. Products, including those providing 
voice communication functionality, shall support use of all cross-
manufacturer non-proprietary standard signals used by TTYs.

Subpart D--Recordkeeping, Consumer Dispute Assistance, and 
Enforcement


Sec.  14.30  Generally.

    (a) The rules in this subpart regarding recordkeeping and 
enforcement are applicable to all manufacturers and service providers 
that are subject to the requirements of sections 255, 716, and 718 of 
the Act and parts 6, 7 and 14 of this chapter.
    (b) The requirements set forth in Sec.  14.31 of this subpart shall 
be effective January 30, 2013.
    (c) The requirements set forth in Sec. Sec.  14.32 through 14.37 of 
this subpart shall be effective on October 8, 2013.


Sec.  14.31  Recordkeeping.

    (a) Each manufacturer and service provider subject to section 255, 
716, or 718 of the Act, must create and maintain, in the ordinary 
course of business and for a two year period from the date a product 
ceases to be manufactured or a service ceases to be offered, records of 
the efforts taken by such manufacturer or provider to implement 
sections 255, 716, and 718 with regard to this product or service, as 
applicable, including:
    (1) Information about the manufacturer's or service provider's 
efforts to consult with individuals with disabilities;
    (2) Descriptions of the accessibility features of its products and 
services; and
    (3) Information about the compatibility of its products and 
services with peripheral devices or specialized customer premise 
equipment commonly used by individuals with disabilities to achieve 
access.
    (b) An officer of each manufacturer and service provider subject to 
section 255, 716, or 718 of the Act, must sign and file an annual 
compliance certificate with the Commission.
    (1) The certificate must state that the manufacturer or service 
provider, as applicable, has established operating procedures that are 
adequate to ensure compliance with the recordkeeping rules in this 
subpart and that records are being kept in accordance with this section 
and be supported with an affidavit or declaration under penalty of 
perjury, signed and dated by the authorized officer of the company with 
personal knowledge of the representations provided in the company's 
certification, verifying the truth and accuracy of the information 
therein.
    (2) The certificate shall identify the name and contact details of 
the person or persons within the company that are

[[Page 82393]]

authorized to resolve complaints alleging violations of our 
accessibility rules and sections 255, 716, and 718 of the Act, and the 
agent designated for service pursuant to Sec.  14.35(b) of this subpart 
and provide contact information for this agent. Contact information 
shall include, for the manufacturer or the service provider, a name or 
department designation, business address, telephone number, and, if 
available TTY number, facsimile number, and email address.
    (3) The annual certification must be filed with the Commission on 
April 1, 2013 and annually thereafter for records pertaining to the 
previous calendar year. The certificate must be updated when necessary 
to keep the contact information current.
    (c) Upon the service of a complaint, formal or informal, on a 
manufacturer or service provider under this subpart, a manufacturer or 
service provider must produce to the Commission, upon request, records 
covered by this section and may assert a statutory request for 
confidentiality for these records under 47 U.S.C. 618(a)(5)(C) and 
Sec.  0.457(c) of this chapter. All other information submitted to the 
Commission pursuant to this subpart or pursuant to any other request by 
the Commission may be submitted pursuant to a request for 
confidentiality in accordance with Sec.  0.459 of this chapter.


Sec.  14.32  Consumer Dispute Assistance.

    (a) A consumer or any other party may transmit a Request for 
Dispute Assistance to the Consumer and Governmental Affairs Bureau by 
any reasonable means, including by the Commission's online informal 
complaint filing system, U.S. Mail, overnight delivery, or email to 
[email protected]. Any Requests filed using a method other than the 
Commission's online system should include a cover letter that 
references section 255, 716, or 718 or the rules of parts 6, 7, or 14 
of this chapter and should be addressed to the Consumer and 
Governmental Affairs Bureau. Any party with a question about 
information that should be included in a Request for Dispute Assistance 
should email the Commission's Disability Rights Office at [email protected] 
or call (202) 418-2517 (voice), (202) 418-2922 (TTY).
    (b) A Request for Dispute Assistance shall include:
    (1) The name, address, email address, and telephone number of the 
party making the Request (Requester);
    (2) The name of the manufacturer or service provider that the 
requester believes is in violation of section 255, 716, or 718 or the 
rules in this part, and the name, address, and telephone number of the 
manufacturer or service provider, if known;
    (3) An explanation of why the requester believes the manufacturer 
or service provider is in violation of section 255, 716, or 718 or the 
rules in this part, including details regarding the service or 
equipment and the relief requested, and all documentation that supports 
the requester's contention;
    (4) The date or dates on which the requester either purchased, 
acquired, or used (or attempted to purchase, acquire, or use) the 
equipment or service in question;
    (5) The Requester's preferred format or method of response to its 
Request for Dispute Assistance by CGB or the manufacturer or service 
provider (e.g., letter, facsimile transmission, telephone (voice/TRS/
TTY), email, audio-cassette recording, Braille, or some other method 
that will best accommodate the Requester's disability, if any);
    (6) Any other information that may be helpful to CGB and the 
manufacturer or service provider to understand the nature of the 
dispute;
    (7) Description of any contacts with the manufacturer or service 
provider to resolve the dispute, including, but not limited to, dates 
or approximate dates, any offers to settle, etc.; and
    (8) What the Requester is seeking to resolve the dispute.
    (c) CGB shall forward the Request for Dispute Assistance to the 
manufacturer or service provider named in the Request. CGB shall serve 
the manufacturer or service provider using the contact details of the 
certification to be filed pursuant to Sec.  14.31(b). Service using 
contact details provided pursuant to Sec.  14.31(b) is deemed served. 
Failure by a manufacturer or service provider to file or keep the 
contact information current will not be a defense of lack of service.
    (d) CGB will assist the Requester and the manufacturer or service 
provider in reaching a settlement of the dispute.
    (e) Thirty days after the Request for Dispute Assistance was filed, 
if a settlement has not been reached between the Requester and the 
manufacturer or service provider, the Requester may file an informal 
complaint with the Commission;
    (f) When a Requester files an informal complaint with the 
Enforcement Bureau, as provided in Sec.  14.34, the Commission will 
deem the CGB dispute assistance process closed and the requester and 
manufacturer or service provider shall be barred from further use of 
the Commission's dispute assistance process so long as a complaint is 
pending.


Sec.  14.33  Informal or formal complaints.

    Complaints against manufacturers or service providers, as defined 
under this subpart, for alleged violations of this subpart may be 
either informal or formal.


Sec.  14.34  Informal complaints; form, filing, content, and consumer 
assistance.

    (a) An informal complaint alleging a violation of section 255, 716 
or 718 of the Act or parts 6, 7, or 14 of this chapter may be 
transmitted to the Enforcement Bureau by any reasonable means, 
including the Commission's online informal complaint filing system, 
U.S. Mail, overnight delivery, or email. Any Requests filed using a 
method other than the Commission's online system should include a cover 
letter that references section 255, 716, or 718 or the rules of parts 
6, 7, or 14 of this chapter and should be addressed to the Enforcement 
Bureau.
    (b) An informal complaint shall include:
    (1) The name, address, email address, and telephone number of the 
complainant;
    (2) The name, address, and telephone number of the manufacturer or 
service provider defendant against whom the complaint is made;
    (3) The date or dates on which the complainant or person(s) on 
whose behalf the complaint is being filed either purchased, acquired, 
or used or attempted to purchase, acquire, or use the equipment or 
service about which the complaint is being made;
    (4) A complete statement of fact explaining why the complainant 
contends that the defendant manufacturer or provider is in violation of 
section 255, 716 or 718 of the Act or the Commission's rules, including 
details regarding the service or equipment and the relief requested, 
and all documentation that supports the complainant's contention;
    (5) A certification that the complainant submitted to the 
Commission a Request for Dispute Assistance, pursuant to Sec.  14.32, 
no less than 30 days before the complaint is filed;
    (6) The complainant's preferred format or method of response to the 
complaint by the Commission and defendant (e.g., letter, facsimile 
transmissions, telephone (voice/TRS/TTY), email, audio-cassette 
recording, Braille, or some other method that will best accommodate the 
complainant's disability, if any); and
    (7) Any other information that is required by the Commission's 
accessibility complaint form.

[[Page 82394]]

    (c) Any party with a question about information that should be 
included in an Informal Complaint should email the Commission's 
Disability Rights Office at [email protected] or call (202) 418-2517 (voice), 
(202) 418-2922 (TTY).


Sec.  14.35  Procedure; designation of agents for service.

    (a) The Commission shall forward any informal complaint meeting the 
requirements of Sec.  14.34 of this subpart to each manufacturer and 
service provider named in or determined by the staff to be implicated 
by the complaint.
    (b) To ensure prompt and effective service of informal and formal 
complaints filed under this subpart, every manufacturer and service 
provider subject to the requirements of section 255, 716, or 718 of the 
Act and parts 6, 7, or 14 of this chapter shall designate an agent, and 
may designate additional agents if it so chooses, upon whom service may 
be made of all notices, inquiries, orders, decisions, and other 
pronouncements of the Commission in any matter before the Commission. 
The agent shall be designated in the manufacturer or service provider's 
annual certification pursuant to Sec.  14.31.


Sec.  14.36  Answers and replies to informal complaints.

    (a) After a complainant makes a prima facie case by asserting that 
a product or service is not accessible, the manufacturer or service 
provider to whom the informal complaint is directed bears the burden of 
proving that the product or service is accessible or, if not 
accessible, that accessibility is not achievable under this part or 
readily achievable under parts 6 and 7. To carry its burden of proof, a 
manufacturer or service provider must produce documents demonstrating 
its due diligence in exploring accessibility and achievability, as 
required by parts 6, 7, or 14 of this chapter throughout the design, 
development, testing, and deployment stages of a product or service. 
Conclusory and unsupported claims are insufficient to carry this burden 
of proof.
    (b) Any manufacturer or service provider to whom an informal 
complaint is served by the Commission under this subpart shall file and 
serve an answer responsive to the complaint and any inquires set forth 
by the Commission.
    (1) The answer shall:
    (i) Be filed with the Commission within twenty days of service of 
the complaint, unless the Commission or its staff specifies another 
time period;
    (ii) Respond specifically to each material allegation in the 
complaint and assert any defenses that the manufacturer or service 
provider claim;
    (iii) Include a declaration by an officer of the manufacturer or 
service provider attesting to the truth of the facts asserted in the 
answer;
    (iv) Set forth any remedial actions already taken or proposed 
alternative relief without any prejudice to any denials or defenses 
raised;
    (v) Provide any other information or materials specified by the 
Commission as relevant to its consideration of the complaint; and
    (vi) Be prepared or formatted, including in electronic readable 
format compatible with the Commission's Summation or other software in 
the manner requested by the Commission and the complainant, unless 
otherwise permitted by the Commission for good cause shown.
    (2) If the manufacturer's or service provider's answer includes the 
defense that it was not achievable for the manufacturer or service 
provider to make its product or service accessible, the manufacturer or 
service provider shall carry the burden of proof on the defense and the 
answer shall:
    (i) Set forth the steps taken by the manufacturer or service 
provider to make the product or service accessible and usable;
    (ii) Set forth the procedures and processes used by the 
manufacturer or service provider to evaluate whether it was achievable 
to make the product or service accessible and usable in cases where the 
manufacturer or service provider alleges it was not achievable to do 
so;
    (iii) Set forth the manufacturer's basis for determining that it 
was not achievable to make the product or service accessible and usable 
in cases where the manufacturer or service provider so alleges; and
    (iv) Provide all documents supporting the manufacturer's or service 
provider's conclusion that it was not achievable to make the product or 
service accessible and usable in cases where the manufacturer or 
service provider so alleges.
    (c) Any manufacturer or service provider to whom an informal 
complaint is served by the Commission under this subpart shall serve 
the complainant and the Commission with a non-confidential summary of 
the answer filed with the Commission within twenty days of service of 
the complaint. The non-confidential summary must contain the essential 
elements of the answer, including, but not limited to, any asserted 
defenses to the complaint, must address the material elements of its 
answer, and include sufficient information to allow the complainant to 
file a reply, if the complainant chooses to do so.
    (d) The complainant may file and serve a reply. The reply shall:
    (1) Be served on the Commission and the manufacturer or service 
provider that is subject of the complaint within ten days after service 
of answer, unless otherwise directed by the Commission;
    (2) Be responsive to matters contained in the answer and shall not 
contain new matters.


Sec.  14.37  Review and disposition of informal complaints.

    (a) The Commission will investigate the allegations in any informal 
complaint filed that satisfies the requirements of Sec.  14.34(b) of 
this subpart, and, within 180 days after the date on which such 
complaint was filed with the Commission, issue an order finding whether 
the manufacturer or service provider that is the subject of the 
complaint violated section 255, 716, or 718 of the Act, or the 
Commission's implementing rules, and provide a basis therefore, unless 
such complaint is resolved before that time.
    (b) If the Commission determines in an order issued pursuant to 
paragraph (a) of this section that the manufacturer or service provider 
violated section 255, 716, or 718 of the Act, or the Commission's 
implementing rules, the Commission may, in such order, or in a 
subsequent order:
    (1) Direct the manufacturer or service provider to bring the 
service, or in the case of a manufacturer, the next generation of the 
equipment or device, into compliance with the requirements of section 
255, 716, or 718 of the Act, and the Commission's rules, within a 
reasonable period of time; and
    (2) Take such other enforcement action as the Commission is 
authorized and as it deems appropriate.
    (c) Any manufacturer or service provider that is the subject of an 
order issued pursuant to paragraph (b)(1) of this section shall have a 
reasonable opportunity, as established by the Commission, to comment on 
the Commission's proposed remedial action before the Commission issues 
a final order with respect to that action.


Sec.  14.38  Formal Complaints; General pleading requirements.

    Formal complaint proceedings are generally resolved on a written 
record consisting of a complaint, answer, and joint statement of 
stipulated facts, disputed facts and key legal issues, along with all 
associated affidavits, exhibits and other attachments. Commission 
proceedings may also

[[Page 82395]]

require or permit other written submissions such as briefs, written 
interrogatories, and other supplementary documents or pleadings.
    (a) Pleadings must be clear, concise, and explicit. All matters 
concerning a claim, defense or requested remedy, including damages, 
should be pleaded fully and with specificity.
    (b) Pleadings must contain facts which, if true, are sufficient to 
constitute a violation of the Act or Commission order or regulation, or 
a defense to such alleged violation.
    (c) Facts must be supported by relevant documentation or affidavit.
    (d) Legal arguments must be supported by appropriate judicial, 
Commission, or statutory authority.
    (e) Opposing authorities must be distinguished.
    (f) Copies must be provided of all non-Commission authorities 
relied upon which are not routinely available in national reporting 
systems, such as unpublished decisions or slip opinions of courts or 
administrative agencies.
    (g) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending complaint proceeding. Information submitted, as well as 
relevant legal authorities, must be current and updated as necessary 
and in a timely manner at any time before a decision is rendered on the 
merits of the complaint.
    (h) All statements purporting to summarize or explain Commission 
orders or policies must cite, in standard legal form, the Commission 
ruling upon which such statements are based.
    (i) Pleadings shall identify the name, address, telephone number, 
and facsimile transmission number for either the filing party's 
attorney or, where a party is not represented by an attorney, the 
filing party.


Sec.  14.39  Format and content of formal complaints.

    (a) Subject to paragraph (d) of this section governing supplemental 
complaints filed pursuant to Sec.  14.39 of this subpart, a formal 
complaint shall contain:
    (1) The name of each complainant and defendant;
    (2) The occupation, address and telephone number of each 
complainant and, to the extent known, each defendant;
    (3) The name, address, and telephone number of complainant's 
attorney, if represented by counsel;
    (4) Citation to the section of the Communications Act and/or order 
and/or regulation of the Commission alleged to have been violated;
    (5) A complete statement of facts which, if proven true, would 
constitute such a violation. All material facts must be supported, 
pursuant to the requirements of Sec.  14.38(c) of this subpart and 
paragraph (a)(11) of this section, by relevant affidavits and 
documentation, including copies of relevant written agreements, offers, 
counter-offers, denials, or other related correspondence. The statement 
of facts shall include a detailed explanation of the manner and time 
period in which a defendant has allegedly violated the Act, Commission 
order, or Commission rule in question, including a full identification 
or description of the communications, transmissions, services, or other 
carrier conduct complained of and the nature of any injury allegedly 
sustained by the complainant. Assertions based on information and 
belief are expressly prohibited unless made in good faith and 
accompanied by an affidavit explaining the basis for the plaintiff's 
belief and why the complainant could not reasonably ascertain the facts 
from the defendant or any other source;
    (6) Proposed findings of fact, conclusions of law, and legal 
analysis relevant to the claims and arguments set forth in the 
complaint;
    (7) The relief sought, including recovery of damages and the amount 
of damages claimed, if known;
    (8) Certification that the complainant has, in good faith, 
discussed or attempted to discuss the possibility of settlement with 
each defendant prior to the filing of the formal complaint. Such 
certification shall include a statement that, prior to the filing of 
the complaint, the complainant mailed a certified letter outlining the 
allegations that form the basis of the complaint it anticipated filing 
with the Commission to the defendant carrier or one of the defendant's 
registered agents for service of process that invited a response within 
a reasonable period of time and a brief summary of all additional steps 
taken to resolve the dispute prior to the filing of the formal 
complaint. If no additional steps were taken, such certificate shall 
state the reason(s) why the complainant believed such steps would be 
fruitless;
    (9) Whether a separate action has been filed with the Commission, 
any court, or other government agency that is based on the same claim 
or same set of facts, in whole or in part, or whether the complaint 
seeks prospective relief identical to the relief proposed or at issue 
in a notice-and-comment proceeding that is concurrently before the 
Commission;
    (10) An information designation containing:
    (i) The name, address, and position of each individual believed to 
have firsthand knowledge of the facts alleged with particularity in the 
complaint, along with a description of the facts within any such 
individual's knowledge;
    (ii) A description of all documents, data compilations and tangible 
things in the complainant's possession, custody, or control, that are 
relevant to the facts alleged with particularity in the complaint. Such 
description shall include for each document:
    (A) The date it was prepared, mailed, transmitted, or otherwise 
disseminated;
    (B) The author, preparer, or other source;
    (C) The recipient(s) or intended recipient(s);
    (D) Its physical location; and
    (E) A description of its relevance to the matters contained in the 
complaint; and
    (iii) A complete description of the manner in which the complainant 
identified all persons with information and designated all documents, 
data compilations and tangible things as being relevant to the dispute, 
including, but not limited to, identifying the individual(s) that 
conducted the information search and the criteria used to identify such 
persons, documents, data compilations, tangible things, and 
information;
    (11) Copies of all affidavits, documents, data compilations and 
tangible things in the complainant's possession, custody, or control, 
upon which the complainant relies or intends to rely to support the 
facts alleged and legal arguments made in the complaint;
    (12) A completed Formal Complaint Intake Form;
    (13) A declaration, under penalty of perjury, by the complainant or 
complainant's counsel describing the amount, method, and the 
complainant's 10-digit FCC Registration Number, if any;
    (14) A certificate of service; and
    (15) A FCC Registration Number is required under part 1, subpart W. 
Submission of a complaint without the FCC Registration Number as 
required by part 1, subpart W will result in dismissal of the 
complaint.
    (b) The following format may be used in cases to which it is 
applicable, with such modifications as the circumstances may render 
necessary:

    Before the Federal Communications Commission, Washington, DC 
20554

In the matter of

Complainant,

v.

Defendant.


[[Page 82396]]


File No. (To be inserted by the Enforcement Bureau)

Complaint

To: The Commission.
The complainant (here insert full name of each complainant and, if a 
corporation, the corporate title of such complainant) shows that:
(1) (Here state post office address, and telephone number of each 
complainant).
(2) (Here insert the name, and, to the extent known, address and 
telephone number of defendants).
(3) (Here insert fully and clearly the specific act or thing 
complained of, together with such facts as are necessary to give a 
full understanding of the matter, including relevant legal and 
documentary support).
Wherefore, complainant asks (here state specifically the relief 
desired).
(Date)
(Name of each complainant)
(Name, address, and telephone number of attorney, if any)

    (c) The complainant may petition the staff, pursuant to Sec.  1.3 
of this chapter, for a waiver of any of the requirements of this 
section. Such waiver may be granted for good cause shown.
    (d) Supplemental complaints.
    (1) Supplemental complaints filed pursuant to Sec.  14.39 shall 
conform to the requirements set out in this section and Sec.  14.38 of 
this subpart, except that the requirements in Sec. Sec.  14.38(b), 
14.39 (a)(4), (a)(5), (a)(8), (a)(9), (a)(12), and (a)(13) of this 
subpart shall not apply to such supplemental complaints;
    (2) In addition, supplemental complaints filed pursuant to Sec.  
14.39 of this subpart shall contain a complete statement of facts 
which, if proven true, would support complainant's calculation of 
damages for each category of damages for which recovery is sought. All 
material facts must be supported, pursuant to the requirements of Sec.  
14.38(c) of this subpart and paragraph (a)(11) of this section, by 
relevant affidavits and other documentation. The statement of facts 
shall include a detailed explanation of the matters relied upon, 
including a full identification or description of the communications, 
transmissions, services, or other matters relevant to the calculation 
of damages and the nature of any injury allegedly sustained by the 
complainant. Assertions based on information and belief are expressly 
prohibited unless made in good faith and accompanied by an affidavit 
explaining the basis for the complainant's belief and why the 
complainant could not reasonably ascertain the facts from the defendant 
or any other source;
    (3) Supplemental complaints filed pursuant to Sec.  14.39 of this 
subpart shall contain a certification that the complainant has, in good 
faith, discussed or attempted to discuss the possibility of settlement 
with respect to damages for which recovery is sought with each 
defendant prior to the filing of the supplemental complaint. Such 
certification shall include a statement that, no later than 30 days 
after the release of the liability order, the complainant mailed a 
certified letter to the primary individual who represented the 
defendant carrier during the initial complaint proceeding outlining the 
allegations that form the basis of the supplemental complaint it 
anticipates filing with the Commission and inviting a response from the 
carrier within a reasonable period of time. The certification shall 
also contain a brief summary of all additional steps taken to resolve 
the dispute prior to the filing of the supplemental complaint. If no 
additional steps were taken, such certification shall state the 
reason(s) why the complainant believed such steps would be fruitless.


Sec.  14.40  Damages.

    (a) A complaint against a common carrier may seek damages. If a 
complainant wishes to recover damages, the complaint must contain a 
clear and unequivocal request for damages.
    (b) If a complainant wishes a determination of damages to be made 
in the same proceeding as the determinations of liability and 
prospective relief, the complaint must contain the allegations and 
information required by paragraph (h) of this section.
    (c) Notwithstanding paragraph (b) of this section, in any 
proceeding to which no statutory deadline applies, if the Commission 
decides that a determination of damages would best be made in a 
proceeding that is separate from and subsequent to the proceeding in 
which the determinations of liability and prospective relief are made, 
the Commission may at any time order that the initial proceeding will 
determine only liability and prospective relief, and that a separate, 
subsequent proceeding initiated in accordance with paragraph (e) of 
this section will determine damages.
    (d) If a complainant wishes a determination of damages to be made 
in a proceeding that is separate from and subsequent to the proceeding 
in which the determinations of liability and prospective relief are 
made, the complainant must:
    (1) Comply with paragraph (a) of this section, and
    (2) State clearly and unequivocally that the complainant wishes a 
determination of damages to be made in a proceeding that is separate 
from and subsequent to the proceeding in which the determinations of 
liability and prospective relief will be made.
    (e) If a complainant proceeds pursuant to paragraph (d) of this 
section, or if the Commission invokes its authority under paragraph (c) 
of this section, the complainant may initiate a separate proceeding to 
obtain a determination of damages by filing a supplemental complaint 
that complies with Sec.  14.39(d) of this subpart and paragraph (h) of 
this section within sixty days after public notice (as defined in Sec.  
1.4(b) of this chapter) of a decision that contains a finding of 
liability on the merits of the original complaint.
    (f) If a complainant files a supplemental complaint for damages in 
accordance with paragraph (e) of this section, the supplemental 
complaint shall be deemed, for statutory limitations purposes, to 
relate back to the date of the original complaint.
    (g) Where a complainant chooses to seek the recovery of damages 
upon a supplemental complaint in accordance with the requirements of 
paragraph (e) of this section, the Commission will resolve the 
separate, preceding liability complaint within any applicable complaint 
resolution deadlines contained in the Act.
    (h) In all cases in which recovery of damages is sought, it shall 
be the responsibility of the complainant to include, within either the 
complaint or supplemental complaint for damages filed in accordance 
with paragraph (e) of this section, either:
    (1) A computation of each and every category of damages for which 
recovery is sought, along with an identification of all relevant 
documents and materials or such other evidence to be used by the 
complainant to determine the amount of such damages; or
    (2) An explanation of:
    (i) The information not in the possession of the complaining party 
that is necessary to develop a detailed computation of damages;
    (ii) Why such information is unavailable to the complaining party;
    (iii) The factual basis the complainant has for believing that such 
evidence of damages exists;
    (iv) A detailed outline of the methodology that would be used to 
create a computation of damages with such evidence.
    (i) Where a complainant files a supplemental complaint for damages 
in accordance with paragraph (e) of this section, the following 
procedures may apply:
    (1) Issues concerning the amount, if any, of damages may be either

[[Page 82397]]

designated by the Enforcement Bureau for hearing before, or, if the 
parties agree, submitted for mediation to, a Commission Administrative 
Law Judge. Such Administrative Law Judge shall be chosen in the 
following manner:
    (i) By agreement of the parties and the Chief Administrative Law 
Judge; or
    (ii) In the absence of such agreement, the Chief Administrative Law 
Judge shall designate the Administrative Law Judge.
    (2) The Commission may, in its discretion, order the defendant 
either to post a bond for, or deposit into an interest bearing escrow 
account, a sum equal to the amount of damages which the Commission 
finds, upon preliminary investigation, is likely to be ordered after 
the issue of damages is fully litigated, or some lesser sum which may 
be appropriate, provided the Commission finds that the grant of this 
relief is favored on balance upon consideration of the following 
factors:
    (i) The complainant's potential irreparable injury in the absence 
of such deposit;
    (ii) The extent to which damages can be accurately calculated;
    (iii) The balance of the hardships between the complainant and the 
defendant; and
    (iv) Whether public interest considerations favor the posting of 
the bond or ordering of the deposit.
    (3) The Commission may, in its discretion, suspend ongoing damages 
proceedings for fourteen days, to provide the parties with a time 
within which to pursue settlement negotiations and/or alternative 
dispute resolution procedures.
    (4) The Commission may, in its discretion, end adjudication of 
damages with a determination of the sufficiency of a damages 
computation method or formula. No such method or formula shall contain 
a provision to offset any claim of the defendant against the 
complainant. The parties shall negotiate in good faith to reach an 
agreement on the exact amount of damages pursuant to the Commission-
mandated method or formula. Within thirty days of the release date of 
the damages order, parties shall submit jointly to the Commission 
either:
    (i) A statement detailing the parties' agreement as to the amount 
of damages;
    (ii) A statement that the parties are continuing to negotiate in 
good faith and a request that the parties be given an extension of time 
to continue negotiations; or
    (iii) A statement detailing the bases for the continuing dispute 
and the reasons why no agreement can be reached.
    (j) Except where otherwise indicated, the rules governing initial 
formal complaint proceedings govern supplemental formal complaint 
proceedings, as well.


Sec.  14.41  Joinder of complainants and causes of action.

    (a) Two or more complainants may join in one complaint if their 
respective causes of action are against the same defendant and concern 
substantially the same facts and alleged violation of the 
Communications Act.
    (b) Two or more grounds of complaint involving the same principle, 
subject, or statement of facts may be included in one complaint, but 
should be separately stated and numbered.


Sec.  14.42  Answers.

    (a) Any defendant upon whom copy of a formal complaint is served 
shall answer such complaint in the manner prescribed under this section 
within twenty days of service of the formal complaint by the 
complainant, unless otherwise directed by the Commission.
    (b) The answer shall advise the complainant and the Commission 
fully and completely of the nature of any defense, and shall respond 
specifically to all material allegations of the complaint. Every effort 
shall be made to narrow the issues in the answer. The defendant shall 
state concisely its defense to each claim asserted, admit or deny the 
averments on which the complainant relies, and state in detail the 
basis for admitting or denying such averment. General denials are 
prohibited. Denials based on information and belief are expressly 
prohibited unless made in good faith and accompanied by an affidavit 
explaining the basis for the defendant's belief and why the defendant 
could not reasonably ascertain the facts from the complainant or any 
other source. If the defendant is without knowledge or information 
sufficient to form a belief as to the truth of an averment, the 
defendant shall so state and this has the effect of a denial. When a 
defendant intends in good faith to deny only part of an averment, the 
defendant shall specify so much of it as is true and shall deny only 
the remainder. The defendant may deny the allegations of the complaint 
as specific denials of either designated averments or paragraphs.
    (c) The answer shall contain proposed findings of fact, conclusions 
of law, and legal analysis relevant to the claims and arguments set 
forth in the answer.
    (d) Averments in a complaint or supplemental complaint filed 
pursuant to Sec. Sec.  14.38 and 14.39 of this subpart are deemed to be 
admitted when not denied in the answer.
    (e) Affirmative defenses to allegations contained in the complaint 
shall be specifically captioned as such and presented separately from 
any denials made in accordance with paragraph (c) of this section.
    (f) The answer shall include an information designation containing:
    (1) The name, address, and position of each individual believed to 
have firsthand knowledge of the facts alleged with particularity in the 
answer, along with a description of the facts within any such 
individual's knowledge;
    (2) A description of all documents, data compilations and tangible 
things in the defendant's possession, custody, or control, that are 
relevant to the facts alleged with particularity in the answer. Such 
description shall include for each document:
    (i) The date it was prepared, mailed, transmitted, or otherwise 
disseminated;
    (ii) The author, preparer, or other source;
    (iii) The recipient(s) or intended recipient(s);
    (iv) Its physical location; and
    (v) A description of its relevance to the matters in dispute.
    (3) A complete description of the manner in which the defendant 
identified all persons with information and designated all documents, 
data compilations and tangible things as being relevant to the dispute, 
including, but not limited to, identifying the individual(s) that 
conducted the information search and the criteria used to identify such 
persons, documents, data compilations, tangible things, and 
information.
    (g) The answer shall attach copies of all affidavits, documents, 
data compilations and tangible things in the defendant's possession, 
custody, or control, upon which the defendant relies or intends to rely 
to support the facts alleged and legal arguments made in the answer.
    (h) The answer shall contain certification that the defendant has, 
in good faith, discussed or attempted to discuss, the possibility of 
settlement with the complainant prior to the filing of the formal 
complaint. Such certification shall include a brief summary of all 
steps taken to resolve the dispute prior to the filing of the formal 
complaint. If no such steps were taken, such certificate shall state 
the reason(s) why the defendant believed such steps would be fruitless;
    (i) The defendant may petition the staff, pursuant to Sec.  1.3 of 
this chapter, for a waiver of any of the requirements

[[Page 82398]]

of this section. Such waiver may be granted for good cause shown.


Sec.  14.43  Cross-complaints and counterclaims.

    Cross-complaints seeking any relief within the jurisdiction of the 
Commission against any party (complainant or defendant) to that 
proceeding are expressly prohibited. Any claim that might otherwise 
meet the requirements of a cross-complaint may be filed as a separate 
complaint in accordance with Sec. Sec.  14.38 through 14.40 of this 
subpart. For purposes of this subpart, the term ``cross-complaint'' 
shall include counterclaims.


Sec.  14.44  Replies.

    (a) Within three days after service of an answer containing 
affirmative defenses presented in accordance with the requirements of 
Sec.  14.42(e) of this subpart, a complainant may file and serve a 
reply containing statements of relevant, material facts and legal 
arguments that shall be responsive to only those specific factual 
allegations and legal arguments made by the defendant in support of its 
affirmative defenses. Replies which contain other allegations or 
arguments will not be accepted or considered by the Commission.
    (b) Failure to reply to an affirmative defense shall be deemed an 
admission of such affirmative defense and of any facts supporting such 
affirmative defense that are not specifically contradicted in the 
complaint.
    (c) The reply shall contain proposed findings of fact, conclusions 
of law, and legal analysis relevant to the claims and arguments set 
forth in the reply.
    (d) The reply shall include an information designation containing:
    (1) The name, address and position of each individual believed to 
have firsthand knowledge about the facts alleged with particularity in 
the reply, along with a description of the facts within any such 
individual's knowledge.
    (2) A description of all documents, data compilations and tangible 
things in the complainant's possession, custody, or control that are 
relevant to the facts alleged with particularity in the reply. Such 
description shall include for each document:
    (i) The date prepared, mailed, transmitted, or otherwise 
disseminated;
    (ii) The author, preparer, or other source;
    (iii) The recipient(s) or intended recipient(s);
    (iv) Its physical location; and
    (v) A description of its relevance to the matters in dispute.
    (3) A complete description of the manner in which the complainant 
identified all persons with information and designated all documents, 
data compilations and tangible things as being relevant to the dispute, 
including, but not limited to, identifying the individual(s) that 
conducted the information search and the criteria used to identify such 
persons, documents, data compilations, tangible things, and 
information;
    (e) The reply shall attach copies of all affidavits, documents, 
data compilations and tangible things in the complainant's possession, 
custody, or control upon which the complainant relies or intends to 
rely to support the facts alleged and legal arguments made in the 
reply.
    (f) The complainant may petition the staff, pursuant to Sec.  1.3 
of this chapter, for a waiver of any of the requirements of this 
section. Such waiver may be granted for good cause shown.


Sec.  14.45  Motions.

    (a) A request to the Commission for an order shall be by written 
motion, stating with particularity the grounds and authority therefor, 
and setting forth the relief or order sought.
    (b) All dispositive motions shall contain proposed findings of fact 
and conclusions of law, with supporting legal analysis, relevant to the 
contents of the pleading. Motions to compel discovery must contain a 
certification by the moving party that a good faith attempt to resolve 
the dispute was made prior to filing the motion. All facts relied upon 
in motions must be supported by documentation or affidavits pursuant to 
the requirements of Sec.  14.38(c) of this subpart, except for those 
facts of which official notice may be taken.
    (c) The moving party shall provide a proposed order for adoption, 
which appropriately incorporates the basis therefor, including proposed 
findings of fact and conclusions of law relevant to the pleading. The 
proposed order shall be clearly marked as a ``Proposed Order.'' The 
proposed order shall be submitted both as a hard copy and on computer 
disk in accordance with the requirements of Sec.  14.51(d) of this 
subpart. Where appropriate, the proposed order format should conform to 
that of a reported FCC order.
    (d) Oppositions to any motion shall be accompanied by a proposed 
order for adoption, which appropriately incorporates the basis 
therefor, including proposed findings of fact and conclusions of law 
relevant to the pleading. The proposed order shall be clearly captioned 
as a ``Proposed Order.'' The proposed order shall be submitted both as 
a hard copy and on computer disk in accordance with the requirements of 
Sec.  14.51(d) of this subpart. Where appropriate, the proposed order 
format should conform to that of a reported FCC order.
    (e) Oppositions to motions may be filed and served within five 
business days after the motion is filed and served and not after. 
Oppositions shall be limited to the specific issues and allegations 
contained in such motion; when a motion is incorporated in an answer to 
a complaint, the opposition to such motion shall not address any issues 
presented in the answer that are not also specifically raised in the 
motion. Failure to oppose any motion may constitute grounds for 
granting of the motion.
    (f) No reply may be filed to an opposition to a motion.
    (g) Motions seeking an order that the allegations in the complaint 
be made more definite and certain are prohibited.
    (h) Amendments or supplements to complaints to add new claims or 
requests for relief are prohibited. Parties are responsible, however, 
for the continuing accuracy and completeness of all information and 
supporting authority furnished in a pending complaint proceeding as 
required under Sec.  14.38(g) of this subpart.


Sec.  14.46  Formal complaints not stating a cause of action; defective 
pleadings.

    (a) Any document purporting to be a formal complaint which does not 
state a cause of action under the Communications Act or a Commission 
rule or order will be dismissed. In such case, any amendment or 
supplement to such document will be considered a new filing which must 
be made within the statutory periods of limitations of actions 
contained in section 415 of the Communications Act.
    (b) Any other pleading filed in a formal complaint proceeding not 
in conformity with the requirements of the applicable rules in this 
part may be deemed defective. In such case the Commission may strike 
the pleading or request that specified defects be corrected and that 
proper pleadings be filed with the Commission and served on all parties 
within a prescribed time as a condition to being made a part of the 
record in the proceeding.


Sec.  14.47  Discovery.

    (a) A complainant may file with the Commission and serve on a 
defendant, concurrently with its complaint, a request for up to ten 
written interrogatories. A defendant may file with the Commission and 
serve on a complainant, during the period starting

[[Page 82399]]

with the service of the complaint and ending with the service of its 
answer, a request for up to ten written interrogatories. A complainant 
may file with the Commission and serve on a defendant, within three 
calendar days of service of the defendant's answer, a request for up to 
five written interrogatories. Subparts of any interrogatory will be 
counted as separate interrogatories for purposes of compliance with 
this limit. Requests for interrogatories filed and served pursuant to 
this procedure may be used to seek discovery of any non-privileged 
matter that is relevant to the material facts in dispute in the pending 
proceeding, provided, however, that requests for interrogatories filed 
and served by a complainant after service of the defendant's answer 
shall be limited in scope to specific factual allegations made by the 
defendant in support of its affirmative defenses. This procedure may 
not be employed for the purpose of delay, harassment or obtaining 
information that is beyond the scope of permissible inquiry related to 
the material facts in dispute in the pending proceeding.
    (b) Requests for interrogatories filed and served pursuant to 
paragraph (a) of this section shall contain a listing of the 
interrogatories requested and an explanation of why the information 
sought in each interrogatory is both necessary to the resolution of the 
dispute and not available from any other source.
    (c) A responding party shall file with the Commission and serve on 
the propounding party any opposition and objections to the requests for 
interrogatories as follows:
    (1) By the defendant, within ten calendar days of service of the 
requests for interrogatories served simultaneously with the complaint 
and within five calendar days of the requests for interrogatories 
served following service of the answer;
    (2) By the complainant, within five calendar days of service of the 
requests for interrogatories; and
    (3) In no event less than three calendar days prior to the initial 
status conference as provided for in Sec.  14.50(a) of this subpart.
    (d) Commission staff will consider the requests for 
interrogatories, properly filed and served pursuant to paragraph (a) of 
this section, along with any objections or oppositions thereto, 
properly filed and served pursuant to paragraph (b) of this section, at 
the initial status conference, as provided for in Sec.  14.50(a)(5) of 
this subpart, and at that time determine the interrogatories, if any, 
to which parties shall respond, and set the schedule of such response.
    (e) The interrogatories ordered to be answered pursuant to 
paragraph (d) of this section are to be answered separately and fully 
in writing under oath or affirmation by the party served, or if such 
party is a public or private corporation or partnership or association, 
by any officer or agent who shall furnish such information as is 
available to the party. The answers shall be signed by the person 
making them. The answers shall be filed with the Commission and served 
on the propounding party.
    (f) A propounding party asserting that a responding party has 
provided an inadequate or insufficient response to a Commission-ordered 
discovery request may file a motion to compel within ten days of the 
service of such response, or as otherwise directed by Commission staff, 
pursuant to the requirements of Sec.  14.45 of this subpart.
    (g) The Commission may, in its discretion, require parties to 
provide documents to the Commission in a scanned or other electronic 
format that provides:
    (1) Indexing by useful identifying information about the documents; 
and
    (2) Technology that allows staff to annotate the index so as to 
make the format an efficient means of reviewing the documents.
    (h) The Commission may allow additional discovery, including, but 
not limited to, document production, depositions and/or additional 
interrogatories. In its discretion, the Commission may modify the 
scope, means and scheduling of discovery in light of the needs of a 
particular case and the requirements of applicable statutory deadlines.


Sec.  14.48  Confidentiality of information produced or exchanged by 
the parties.

    (a) Any materials generated in the course of a formal complaint 
proceeding may be designated as proprietary by that party if the party 
believes in good faith that the materials fall within an exemption to 
disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C. 
552(b)(1) through (9). Any party asserting confidentiality for such 
materials shall so indicate by clearly marking each page, or portion 
thereof, for which a proprietary designation is claimed. If a 
proprietary designation is challenged, the party claiming 
confidentiality shall have the burden of demonstrating, by a 
preponderance of the evidence, that the material designated as 
proprietary falls under the standards for nondisclosure enunciated in 
the FOIA.
    (b) Materials marked as proprietary may be disclosed solely to the 
following persons, only for use in prosecuting or defending a party to 
the complaint action, and only to the extent necessary to assist in the 
prosecution or defense of the case:
    (1) Counsel of record representing the parties in the complaint 
action and any support personnel employed by such attorneys;
    (2) Officers or employees of the opposing party who are named by 
the opposing party as being directly involved in the prosecution or 
defense of the case;
    (3) Consultants or expert witnesses retained by the parties;
    (4) The Commission and its staff; and
    (5) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (c) These individuals shall not disclose information designated as 
proprietary to any person who is not authorized under this section to 
receive such information, and shall not use the information in any 
activity or function other than the prosecution or defense in the case 
before the Commission. Each individual who is provided access to the 
information shall sign a notarized statement affirmatively stating that 
the individual has personally reviewed the Commission's rules and 
understands the limitations they impose on the signing party.
    (d) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraph (b) of this 
section. Each party shall maintain a log recording the number of copies 
made of all proprietary material and the persons to whom the copies 
have been provided.
    (e) Upon termination of a formal complaint proceeding, including 
all appeals and petitions, all originals and reproductions of any 
proprietary materials, along with the log recording persons who 
received copies of such materials, shall be provided to the producing 
party. In addition, upon final termination of the complaint proceeding, 
any notes or other work product derived in whole or in part from the 
proprietary materials of an opposing or third party shall be destroyed.


Sec.  14.49  Other required written submissions.

    (a) The Commission may, in its discretion, or upon a party's motion 
showing good cause, require the parties to file briefs summarizing the 
facts and issues presented in the pleadings and other record evidence.

[[Page 82400]]

    (b) Unless otherwise directed by the Commission, all briefs shall 
include all legal and factual claims and defenses previously set forth 
in the complaint, answer, or any other pleading submitted in the 
proceeding. Claims and defenses previously made but not reflected in 
the briefs will be deemed abandoned. The Commission may, in its 
discretion, limit the scope of any briefs to certain subjects or 
issues. A party shall attach to its brief copies of all documents, data 
compilations, tangible things, and affidavits upon which such party 
relies or intends to rely to support the facts alleged and legal 
arguments made in its brief and such brief shall contain a full 
explanation of how each attachment is relevant to the issues and 
matters in dispute. All such attachments to a brief shall be documents, 
data compilations or tangible things, or affidavits made by persons, 
that were identified by any party in its information designations filed 
pursuant to Sec. Sec.  14.39(a)(10)(i), (a)(10)(ii), 14.27(f)(1), 
(f)(2), and 14.44(d)(1), (d)(2) of this subpart. Any other supporting 
documentation or affidavits that are attached to a brief must be 
accompanied by a full explanation of the relevance of such materials 
and why such materials were not identified in the information 
designations. These briefs shall contain the proposed findings of fact 
and conclusions of law which the filing party is urging the Commission 
to adopt, with specific citation to the record, and supporting relevant 
authority and analysis.
    (c) In cases in which discovery is not conducted, absent an order 
by the Commission that briefs be filed, parties may not submit briefs. 
If the Commission does authorize the filing of briefs in cases in which 
discovery is not conducted, briefs shall be filed concurrently by both 
the complainant and defendant at such time as designated by the 
Commission staff and in accordance with the provisions of this section.
    (d) In cases in which discovery is conducted, briefs shall be filed 
concurrently by both the complainant and defendant at such time 
designated by the Commission staff.
    (e) Briefs containing information which is claimed by an opposing 
or third party to be proprietary under Sec.  14.48 of this subpart 
shall be submitted to the Commission in confidence pursuant to the 
requirements of Sec.  0.459 of this chapter and clearly marked ``Not 
for Public Inspection.'' An edited version removing all proprietary 
data shall also be filed with the Commission for inclusion in the 
public file. Edited versions shall be filed within five days from the 
date the unedited brief is submitted, and served on opposing parties.
    (f) Initial briefs shall be no longer than twenty-five pages. Reply 
briefs shall be no longer than ten pages. Either on its own motion or 
upon proper motion by a party, the Commission staff may establish other 
page limits for briefs.
    (g) The Commission may require the parties to submit any additional 
information it deems appropriate for a full, fair, and expeditious 
resolution of the proceeding, including affidavits and exhibits.
    (h) The parties shall submit a joint statement of stipulated facts, 
disputed facts, and key legal issues no later than two business days 
prior to the initial status conference, scheduled in accordance with 
the provisions of Sec.  14.50(a) of this subpart.


Sec.  14.50  Status conference.

    (a) In any complaint proceeding, the Commission may, in its 
discretion, direct the attorneys and/or the parties to appear before it 
for a status conference. Unless otherwise ordered by the Commission, an 
initial status conference shall take place, at the time and place 
designated by the Commission staff, ten business days after the date 
the answer is due to be filed. A status conference may include 
discussion of:
    (1) Simplification or narrowing of the issues;
    (2) The necessity for or desirability of additional pleadings or 
evidentiary submissions;
    (3) Obtaining admissions of fact or stipulations between the 
parties as to any or all of the matters in controversy;
    (4) Settlement of all or some of the matters in controversy by 
agreement of the parties;
    (5) Whether discovery is necessary and, if so, the scope, type and 
schedule for such discovery;
    (6) The schedule for the remainder of the case and the dates for 
any further status conferences; and
    (7) Such other matters that may aid in the disposition of the 
complaint.
    (b)(1) Parties shall meet and confer prior to the initial status 
conference to discuss:
    (i) Settlement prospects;
    (ii) Discovery;
    (iii) Issues in dispute;
    (iv) Schedules for pleadings;
    (v) Joint statement of stipulated facts, disputed facts, and key 
legal issues; and
    (2) Parties shall submit a joint statement of all proposals agreed 
to and disputes remaining as a result of such meeting to Commission 
staff at least two business days prior to the scheduled initial status 
conference.
    (c) In addition to the initial status conference referenced in 
paragraph (a) of this section, any party may also request that a 
conference be held at any time after the complaint has been filed.
    (d) During a status conference, the Commission staff may issue oral 
rulings pertaining to a variety of interlocutory matters relevant to 
the conduct of a formal complaint proceeding including, inter alia, 
procedural matters, discovery, and the submission of briefs or other 
evidentiary materials.
    (e) Parties may make, upon written notice to the Commission and all 
attending parties at least three business days prior to the status 
conference, an audio recording of the Commission staff's summary of its 
oral rulings. Alternatively, upon agreement among all attending parties 
and written notice to the Commission at least three business days prior 
to the status conference, the parties may make an audio recording of, 
or use a stenographer to transcribe, the oral presentations and 
exchanges between and among the participating parties, insofar as such 
communications are ``on-the-record'' as determined by the Commission 
staff, as well as the Commission staff's summary of its oral rulings. A 
complete transcript of any audio recording or stenographic 
transcription shall be filed with the Commission as part of the record, 
pursuant to the provisions of paragraph (f)(2) of this section. The 
parties shall make all necessary arrangements for the use of a 
stenographer and the cost of transcription, absent agreement to the 
contrary, will be shared equally by all parties that agree to make the 
record of the status conference.
    (f) The parties in attendance, unless otherwise directed, shall 
either:
    (1) Submit a joint proposed order memorializing the oral rulings 
made during the conference to the Commission by 5:30 p.m., Eastern 
Time, on the business day following the date of the status conference, 
or as otherwise directed by Commission staff. In the event the parties 
in attendance cannot reach agreement as to the rulings that were made, 
the joint proposed order shall include the rulings on which the parties 
agree, and each party's alternative proposed rulings for those rulings 
on which they cannot agree. Commission staff will review and make 
revisions, if necessary, prior to signing and filing the submission as 
part of the record. The proposed order shall be submitted both as hard 
copy and on computer disk in accordance with the requirements of Sec.  
14.51(d) of this subpart; or

[[Page 82401]]

    (2) Pursuant to the requirements of paragraph (e) of this section, 
submit to the Commission by 5:30 p.m., Eastern Time, on the third 
business day following the status conference or as otherwise directed 
by Commission staff either:
    (i) A transcript of the audio recording of the Commission staff's 
summary of its oral rulings;
    (ii) A transcript of the audio recording of the oral presentations 
and exchanges between and among the participating parties, insofar as 
such communications are ``on-the-record'' as determined by the 
Commission staff, and the Commission staff's summary of its oral 
rulings; or
    (iii) A stenographic transcript of the oral presentations and 
exchanges between and among the participating parties, insofar as such 
communications are ``on-the-record'' as determined by the Commission 
staff, and the Commission staff's summary of its oral rulings.
    (g) Status conferences will be scheduled by the Commission staff at 
such time and place as it may designate to be conducted in person or by 
telephone conference call.
    (h) The failure of any attorney or party, following reasonable 
notice, to appear at a scheduled conference will be deemed a waiver by 
that party and will not preclude the Commission staff from conferring 
with those parties and/or counsel present.


Sec.  14.51  Specifications as to pleadings, briefs, and other 
documents; subscription.

    (a) All papers filed in any formal complaint proceeding must be 
drawn in conformity with the requirements of Sec. Sec.  1.49 and 1.50 
of this chapter.
    (b) All averments of claims or defenses in complaints and answers 
shall be made in numbered paragraphs. The contents of each paragraph 
shall be limited as far as practicable to a statement of a single set 
of circumstances. Each claim founded on a separate transaction or 
occurrence and each affirmative defense shall be separately stated to 
facilitate the clear presentation of the matters set forth.
    (c) The original of all pleadings and other submissions filed by 
any party shall be signed by the party, or by the party's attorney. The 
signing party shall include in the document his or her address, 
telephone number, facsimile number and the date on which the document 
was signed. Copies should be conformed to the original. Unless 
specifically required by rule or statute, pleadings need not be 
verified. The signature of an attorney or party shall be a certificate 
that the attorney or party has read the pleading, motion, or other 
paper; that to the best of his or her knowledge, information, and 
belief formed after reasonable inquiry, it is well grounded in fact and 
is warranted by existing law or a good faith argument for the 
extension, modification, or reversal of existing law; and that it is 
not interposed solely for purposes of delay or for any other improper 
purpose.
    (d) All proposed orders shall be submitted both as hard copies and 
on computer disk formatted to be compatible with the Commission's 
computer system and using the Commission's current word processing 
software. Each disk should be submitted in ``read only'' mode. Each 
disk should be clearly labeled with the party's name, proceeding, type 
of pleading, and date of submission. Each disk should be accompanied by 
a cover letter. Parties who have submitted copies of tariffs or reports 
with their hard copies need not include such tariffs or reports on the 
disk. Upon showing of good cause, the Commission may waive the 
requirements of this paragraph.


Sec.  14.52  Copies; service; separate filings against multiple 
defendants.

    (a) Complaints may generally be brought against only one named 
defendant; such actions may not be brought against multiple defendants 
unless the defendants are commonly owned or controlled, are alleged to 
have acted in concert, are alleged to be jointly liable to complainant, 
or the complaint concerns common questions of law or fact. Complaints 
may, however, be consolidated by the Commission for disposition.
    (b) The complainant shall file an original copy of the complaint 
and, on the same day:
    (1) File three copies of the complaint with the Office of the 
Commission Secretary;
    (2) Serve two copies on the Enforcement Bureau; and
    (3) If a complaint is addressed against multiple defendants, file 
three copies of the complaint with the Office of the Commission 
Secretary for each additional defendant.
    (c) Generally, a separate file is set up for each defendant. An 
original plus two copies shall be filed of all pleadings and documents, 
other than the complaint, for each file number assigned.
    (d) The complainant shall serve the complaint by hand delivery on 
either the named defendant or one of the named defendant's registered 
agents for service of process on the same date that the complaint is 
filed with the Commission in accordance with the requirements of 
paragraph (b) of this section.
    (e) Upon receipt of the complaint by the Commission, the Commission 
shall promptly send, by facsimile transmission to each defendant named 
in the complaint, notice of the filing of the complaint. The Commission 
shall send, by regular U.S. mail delivery, to each defendant named in 
the complaint, a copy of the complaint. The Commission shall 
additionally send, by regular U.S. mail to all parties, a schedule 
detailing the date the answer will be due and the date, time and 
location of the initial status conference.
    (f) All subsequent pleadings and briefs filed in any formal 
complaint proceeding, as well as all letters, documents or other 
written submissions, shall be served by the filing party on the 
attorney of record for each party to the proceeding, or, where a party 
is not represented by an attorney, each party to the proceeding either 
by hand delivery, overnight delivery, or by facsimile transmission 
followed by regular U.S. mail delivery, together with a proof of such 
service in accordance with the requirements of Sec.  1.47(g) of this 
chapter. Service is deemed effective as follows:
    (1) Service by hand delivery that is delivered to the office of the 
recipient by 5:30 p.m., local time of the recipient, on a business day 
will be deemed served that day. Service by hand delivery that is 
delivered to the office of the recipient after 5:30 p.m., local time of 
the recipient, on a business day will be deemed served on the following 
business day;
    (2) Service by overnight delivery will be deemed served the 
business day following the day it is accepted for overnight delivery by 
a reputable overnight delivery service such as, or comparable to, the 
US Postal Service Express Mail, United Parcel Service or Federal 
Express; or
    (3) Service by facsimile transmission that is fully transmitted to 
the office of the recipient by 5:30 p.m., local time of the recipient, 
on a business day will be deemed served that day. Service by facsimile 
transmission that is fully transmitted to the office of the recipient 
after 5:30 p.m., local time of the recipient, on a business day will be 
deemed served on the following business day.
    (g) Supplemental complaint proceedings. Supplemental complaints 
filed pursuant to Sec.  14.39 of this subpart shall conform to the 
requirements set out in this section, except that the complainant need 
not submit a filing fee, and the complainant may effect service 
pursuant to paragraph (f) of this

[[Page 82402]]

section rather than paragraph (d) of this section.

[FR Doc. 2011-31162 Filed 12-29-11; 8:45 am]
BILLING CODE 6712-01-P