On January 28, 2014, the Federal Communications Commission (“FCC” or “Commission”) issued an Order granting an August 2013 request filed by the Coalition of E-Reader Manufacturers (“Coalition”) seeking a waiver of the Commission’s disabilities access rules as applied to e-readers. As previously reported on this blog, on October 22, 2013, the Commission granted a temporary waiver for the class of e-readers in order to give the FCC time to further evaluate the Coalition’s petition.
With this latest ruling, electronic text-based readers that are capable of accessing advanced communications services (“ACS”) like electronic messaging and that meet the distinct, narrow definition are exempt from making their products accessible to individuals with disabilities until January 28, 2015. This new class waiver joins a limited set of waivers that the Commission has granted for IPTVs (and IP-DVPs), cable set top boxes, and certain game consoles, game distribution and online game play services, and game software.
Under Sections 716 and 717 of the Communications and Video Accessibility Act (“CVAA”), the FCC may waive the accessibility requirements for any feature or function of a multipurpose device or service that is designed primarily for purposes other than accessing ACS. In the Order, the Commission found that the Coalition defined the class of e-readers with sufficient specificity and with enough common characteristics to be granted a one-year waiver for the class of “basic e-readers” (as distinguished from more enhanced devices). The Commission defined this class to include “any mobile electronic device that is capable of accessing ACS, designed primarily for the purpose of reading text-based digital works, such as books and periodicals,” and that meet the following requirements:
- The device has no LCD screen, but rather utilizes a screen that is designed to optimize reading.
- The device has no camera.
- The device is not offered or shipped to consumers with built-in ACS client applications and the device manufacturer does not develop ACS applications for its respective device, but the device may be offered or shipped to consumers with a browser and social media applications.
- The device is marketed to consumers as a reading device and promotional material about the device does not tout the capability to access ACS.
The FCC further found that basic e-readers are used primarily for the purpose of reading – rather than accessing ACS like electronic messaging through web browsers – and as such are eligible for a waiver. Moreover, while the Commission found that the public interests at stake rendered the decision “a close call,” it ultimately determined that the presence of web browsers, social media, and Internet access on basic e-readers were insufficient to weigh against granting the waiver. Critically, the Commission found that basic e-readers are marketed primarily for reading, rather than ACS.
In the end, however, the FCC’s ruling was a narrow one, rejecting the Coalition’s request for an indefinite waiver. In so ruling, the Commission reasoned that technological developments in e-readers may render ACS a primary or co-primary use in the near future, and that a one-year waiver was more appropriate given the short product lifecycles for each generation of e-reader.