The Federal Communications Commission (FCC or Commission) has long-required regulated telecommunications service providers (as well as VoIP providers) and equipment manufacturers to make their services and devices accessible to individuals with disabilities. These entities also must annually certify to the FCC their compliance with the disabilities access requirements. These compliance measures have become fairly routine for most regulated entities. As of 2016, however, broadband Internet access service (BIAS) providers are now among those that must comply with disabilities access requirements, and the FCC has taken affirmative steps to remind these entities of their obligations under the Communications Act and Commission rules.
The FCC regulates disabilities access pursuant to sections 255, 716 and 718 of the Communications Act (as amended by the Twenty-First Century Communications and Video Accessibility Act (CVAA)). Specifically, section 255 requires regulated entities (including “Title II” carriers) to ensure that their services and equipment are “accessible to and usable by individuals with disabilities, if readily achievable.” Section 716 extends these requirements to advanced communications services (e.g., electronic messaging and video conferencing) and section 718 imposes similar obligations with respect to mobile services. To demonstrate compliance with these requirements, service providers and equipment manufacturers must keep records of their efforts to deploy accessible services and devices, and must submit an annual certification about their recordkeeping practices.
The certification must state that the service provider or manufacturer has established operating procedures to ensure compliance with the recordkeeping requirements and that records are being kept accordingly. An authorized officer with personal knowledge of the representations in the certification, must submit an affidavit or declaration, executed under penalty of perjury, verifying the truth and accuracy of the certification. The certification also must include contact information for the person(s) responsible for resolving consumer complaints and the agent designated for service of formal and informal complaints. The certification must be submitted by April 1, 2016 utilizing the FCC’s online filing system, which can be found at https://apps.fcc.gov/rccci-registry/login!input.action.
In light of the Commission’s decision in the March 2015 Open Internet order to reclassify BIAS as a Title II telecommunications service, providers of these services are now subject to the section 255 accessibility requirements. In a recent Public Notice, the Commission clarified that BIAS providers are not yet required to submit a certification of compliance with recordkeeping rules because the obligation continues to undergo Paperwork Reduction Act analysis by the Office of Management and Budget. The Commission was careful to note, however, that some BIAS providers may be “independently subject to these requirements by virtue of offering advanced communications services” (e.g., bundling email with broadband service). We expect that by next year, the recordkeeping and certification obligations will apply to all BIAS providers.
In the meantime, if you are unsure about whether the reporting requirement applies to your company, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. Our attorneys are experienced in the submission of the accessibility recordkeeping certification requirement and are available to assist you with this process.