[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Proposed Rules]
[Pages 13799-13849]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5348]
[[Page 13799]]
Vol. 76
Monday,
No. 49
March 14, 2011
Part IV
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; Proposed Rule
Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 /
Proposed Rules
[[Page 13800]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 6, 7, and 8
[CG Docket No. 10-213; WT Docket No. 96-198; CG Docket No. 10-145; FCC
11-37]
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: Proposed rule.
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SUMMARY: In this document, the Commission proposes to adopt rules that
implement provisions in section 104 of the Twenty-First Century
Communications and Video Accessibility Act of 2010 (CVAA), the most
significant piece of accessibility legislation since the passage of the
Americans with Disabilities Act in 1990. This proceeding would update
and amend the Commission's rules to ensure that individuals with
disabilities are able to fully utilize advanced communications services
(ACS) and equipment and networks used for such services. Specifically,
we seek comment on ways to implement the CVAA's requirements on
providers of ACS and manufacturers of equipment used for ACS to make
their services and products accessible to people with disabilities. The
intended effect is to promote rapid deployment of and universal access
to broadband services for all Americans across the country, because
broadband technology can stimulate economic growth and provide
opportunity for all Americans.
DATES: Submit comments on or before April 13, 2011. Submit reply
comments on or before May 13, 2011.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. A copy of any comments on the Paperwork Reduction
Act information collection requirements contained herein should be
submitted to the Federal Communications Commission via e-mail to
PRA@fcc.gov. You may submit comments, identified by FCC 11-37, or by CG
Docket No. 10-213, WT Docket No. 96-198, CG Docket No. 10-145, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: (202)
418-0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: David Hu, Broadband Division, Wireless
Telecommunications Bureau, FCC at (202) 418-7120 or via the Internet to
David.Hu@fcc.gov, or Rosaline Crawford, Disability Rights Office,
Consumer and Governmental Affairs Bureau, FCC at (202) 418-2075 or via
the Internet to Rosaline.Crawford@fcc.gov. For additional information
concerning the Paperwork Reduction Act information collection
requirements contained in this document, contact Judith B. Herman at
(202) 418-0214, or submit your PRA comments via the Internet at
PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 11-37, adopted on March 2, 2011, and
released on March 3, 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 e-mail at
fcc@bcpiweb.com. The complete text is also available on the
Commission's Web site at http://wireless.fcc.gov/edocs_public/attachment/FCC-11-37A1doc. This full text may also be downloaded at:
http://wireless.fcc.gov/releases.html. Alternative formats (computer
diskette, large print, audio cassette, and Braille) are available by
contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via
e-mail to bmillin@fcc.gov.
Summary
I. Introduction and Overview
1. This Notice of Proposed Rulemaking (``NPRM'') initiates a
proceeding to update the Commission's rules to ensure that the 54
million individuals with disabilities are able to fully utilize
advanced communications services and equipment and networks used for
such services. Also, this NPRM proposes to adopt rules that implement
provisions in section 104 of the ``Twenty-First Century Communications
and Video Accessibility Act of 2010'' (hereinafter referred to as the
``CVAA''), Public Law 111-260, 124 Stat. 2751 (2010), the most
significant piece of accessibility legislation since the passage of the
Americans with Disabilities Act in 1990 (``ADA''). (See also Public Law
111-265, 124 Stat. 2795 (2010) (making technical corrections to the
CVAA)).
2. In explaining the need for the CVAA, Congress noted that the
communications marketplace has undergone a ``fundamental
transformation'' since Congress acted to ensure access to
telecommunications services and equipment by people with disabilities
as part of the Telecommunications Act of 1996. See S. Rep. No. 111-386
(2010) and H.R. Rep. No. 111-563 (2010). Specifically, Congress stated
that since it added section 255 to the Communications Act of 1934, as
amended (hereinafter referred to as ``the Communications Act'' or ``the
Act''), ``Internet-based and digital technologies * * * driven by
growth in broadband * * * are now pervasive, offering innovative and
exciting ways to communicate and share information.'' Congress found,
however, that people with disabilities often have not shared in the
benefits of this rapid technological advancement and that they face
disproportionately higher rates of unemployment and poverty than those
without disabilities. Recent surveys confirmed this finding, showing a
gap of 38 percentage points in the rates of employment of working-age
people with disabilities and those without disabilities (21% v. 59%)
and a gap of 27 percentage points in the rates of Internet access (54%
v. 81%).
3. These trends are even more troubling when one considers the pace
at which the communications marketplace is changing and how we as a
society are becoming more dependent on such technologies to succeed in
the workplace and to manage our daily lives. Statistics show, for
example, that more than ever, Americans rely on their mobile phones for
much more than phone service. Increasingly, wireless handsets have
evolved into multi-media devices capable of accessing the Internet,
sending e-mails or text messages, downloading music, and viewing
streaming video programming that can, for example, enable distance
education and telemedicine. As described in the National Broadband
Plan, one of the Commission's most important policy objectives is the
rapid deployment of and universal access to
[[Page 13801]]
broadband services for all Americans across the country, because
broadband technology can stimulate economic growth and provide
opportunity for all Americans. To that end, the recommendations in the
National Broadband Plan were consistent with the objectives set forth
in the CVAA. This law will bring existing communication laws protecting
people with disabilities in line with 21st Century technologies by
ensuring that people with disabilities are not left behind and that
they will be able to share fully in the economic, social, and civic
benefits of broadband.
4. This NPRM seeks comment on the way in which we should implement
the requirements of sections 716 and 717, which were added by section
104 of Title I of the CVAA. The statute requires the Commission to
adopt rules within one year of enactment. section 716 requires that
providers of ``advanced communications services'' (or ``ACS'') and
manufacturers of equipment used for ACS make their services and
products accessible to people with disabilities, unless it is not
achievable to do so. The CVAA provides flexibility to the industry by
allowing covered entities to comply with section 716 by either building
access features into their equipment or services or relying on third
party applications, peripheral devices, software, hardware, or customer
premises equipment (or ``CPE'') that is available to individuals with
disabilities at nominal cost. If such compliance is not achievable,
covered entities must ensure that their equipment and services are
compatible with ``existing peripheral devices or specialized customer
premises equipment'' commonly used by persons with disabilities to
achieve access, unless it is not achievable to do so. Section 717
requires that the Commission establish new recordkeeping and
enforcement procedures for manufacturers and providers subject to
section 255 and section 716. Appendix D contains the full text of the
CVAA as enacted (Pub. L. 111-260 and Pub. L. 111-265).
5. While section 255 of the Act will be the starting point for our
implementation of these sections, our proposed approach reflects
several important differences between section 255 and section 716.
First, section 716 covers a broader scope of services and related
equipment than section 255. In addition, relative to section 255,
section 716 requires a higher standard of achievement for covered
entities but also allows for greater flexibility in how to accomplish
these requirements. In the NPRM, we propose to adopt a new rule part to
implement sections 716 and 717 of the Act and to amend the rules
implementing section 255 of the Act to incorporate any relevant
definitional changes in section 716 and establish the new recordkeeping
and enforcement procedures set forth in section 717. The regulatory
oversight we propose in this proceeding is not intended to prejudge the
scope of the Commission's authority in other proceedings that derive
from different statutory grants of authority.
6. The NPRM also seeks comment on section 718, which is effective
three years after the date of enactment of the CVAA and requires
manufacturers and service providers to make Internet browsers built
into mobile phones accessible to people who are blind or have visual
impairments. Specifically, the NPRM seeks input on what steps the
Commission and stakeholders can take to ensure that manufacturers and
service providers can meet their obligations when section 718 goes into
effect in 2013.
II. Background
7. Section 255 of the Act, which was added by the
Telecommunications Act of 1996, requires manufacturers of
telecommunications equipment and providers of telecommunications
services to ensure that their equipment and services are accessible to
and usable by people with disabilities, if readily achievable. When the
accessibility requirements of section 255 are not readily achievable,
manufacturers and service providers must ensure compatibility with
existing peripheral devices or specialized CPE commonly used by
individuals with disabilities, if readily achievable. A related
provision in section 251(a)(2) of the Act prohibits a
telecommunications carrier from installing network features, functions
or capabilities that do not comply with the guidelines and standards
established pursuant to section 255.
8. Section 255 directed the United States Access Board (``Access
Board'') to work with the Commission to establish guidelines for the
accessibility of telecommunications equipment and CPE within 18 months
of enactment. In June 1996, the Access Board convened the
Telecommunications Access Advisory Committee (TAAC), a federal advisory
committee consisting of consumer, industry, and government
stakeholders, for this purpose. The TAAC delivered its final report to
the Access Board in January 1997, which the Access Board then used to
develop its section 255 guidelines. In September 1999, the Commission
adopted a Report and Order adding parts 6 and 7 to its rules to
implement section 255, in large part incorporating the Access Board's
guidelines for telecommunications equipment and customer premises
equipment (``CPE''). In addition to drawing heavily on these guidelines
for its rules implementing section 255 of the Act on telecommunications
equipment and CPE (in part 6 of its rules), the Commission utilized the
general principles contained in these guidelines to outline the general
obligations of telecommunications service providers. In part 7 of these
rules, the Commission also used its ancillary jurisdiction to adopt
rules relating to voicemail and interactive voice response providers
and equipment manufacturers. In 2007, the Commission extended its
section 255 accessibility rules to interconnected Voice-over-Internet
Protocol (``VoIP'') service providers and equipment manufacturers.
9. The rules adopted to implement section 255 require that where
readily achievable, manufacturers and service providers must evaluate
the accessibility, usability, and compatibility features of covered
services and equipment; incorporate such evaluation throughout product
design, development, and fabrication, as early and consistently as
possible; and identify barriers to accessibility and usability as part
of the product design and development process. The rules also provide
that where readily achievable, manufacturers and service providers must
ensure that product and service information and documentation provided
to customers is accessible to customers with disabilities. In addition,
under the rules, equipment manufacturers must pass through cross-
manufacturer, nonproprietary, industry-standard codes, translation
protocols, formats or other information necessary to provide
telecommunications in an accessible format, where readily achievable.
The rules also contain an informal complaint procedure by which
manufacturers and service providers must attempt to resolve the
complainant's concerns and respond to the Commission within 30 days.
10. In 2006, the Access Board initiated a review of its
accessibility guidelines for telecommunications equipment and CPE
covered under section 255 of the Act and its standards for electronic
and information technology covered under section 508 of the
Rehabilitation Act. Under section 508, federal agencies must ``develop,
procure, maintain, and use'' electronic and information technologies
that are accessible to people with disabilities, unless doing so would
cause an undue burden. The goal of this review was to
[[Page 13802]]
bring the section 255 and section 508 guidelines and standards up to
date and to harmonize them with each other and international
accessibility standards. Again, the Access Board established an
advisory board of interested stakeholders for this purpose, and in
April 2008, the Telecommunications and Electronic and Information
Technology Advisory Committee (``TEITAC'') issued its final report,
containing a set of recommended updates to these guidelines and
standards. In March 2010, the Access Board released for public comment
draft information and communication technology (``ICT'') guidelines and
standards, which were based on these stakeholder recommendations.
11. During the spring of 2010, the Consumer and Governmental
Affairs Bureau (``CGB'') and the Wireless Telecommunications Bureau
(``WTB'') (``the Bureaus'') held two workshops to explore the
telecommunications access needs of people with disabilities, along with
solutions to address these barriers. At the first of these, held on May
13, 2010, the Commission received feedback on expanding disability
access to wireless telecommunications; at the second, held on June 15,
2010, young adults who are deaf-blind discussed the barriers they
experience in accessing telecommunications and in obtaining information
about accessible technologies.
12. Building on those workshops, on July 19, 2010, the Bureaus
issued a public notice in DA 10-1324, in CG Docket No. 10-145
expressing the concerns ``that people who are blind or have other
vision disabilities have few accessible and affordable wireless phone
options'' and ``that many wireless technologies may not be compatible
with Braille displays needed by individuals who are deaf-blind.'' The
July public notice sought comment on, among other things, the barriers
faced by these populations, the cost and feasibility of technical
solutions, and the actions that the agency should take to address the
current lack of access. The Bureaus received over 200 submissions in
the record from consumers, consumer groups, trade associations, and
individual companies, many of whom provided details about the lack of
access to basic and smart phones. While staff continues to consider the
steps the agency should take to address those concerns, we have
incorporated the record from the July public notice into the record of
this proceeding because the record in CG Docket No. 10-145 is
particularly relevant and may inform our understanding of the issues
raised here, including the difficulties that people with disabilities
face in finding accessible products and getting the technical and
customer support that they need in today's marketplace.
13. On October 21, 2010, CGB and WTB issued a public notice in DA
10-2029, seeking input on key provisions in sections 716, 717, and 718
of the Communications Act, as amended by the CVAA. The Bureaus received
24 comments and 25 reply comments, which have helped to shape the
development of this NPRM.
III. Statutory Definitions
A. Scope of Coverage
1. Background
14. Section 716 of the Act covers a broad array of manufacturers of
equipment and providers of services that are not covered under section
255. As discussed in more detail below, the requirements of section 716
apply to the manufacturers of equipment used for non-interconnected
VoIP services, electronic messaging services, and interoperable video
conferencing services (all of which are ``advanced communications
services'' as defined in section 3(1) of the Act) and the providers of
those services. (Although interconnected VoIP service also constitutes
an ACS, such service is subject to section 255 of the Act and thus need
not comply with the requirements of section 716.) We agree with AT&T's
statement that ``section 716 reflects the reality that ACS is delivered
in a complex Internet ecosystem'' and that ``[a]ccessibility
obligations must be shared by all entities in that ecosystem for
consumers to have an accessible experience.'' We discuss the evolution
of the ``complex Internet ecosystem'' below and seek further comment on
how we should interpret section 716 requirements, in light of this
evolution and the statute's broader purposes of ensuring that ACS and
equipment used for ACS is accessible to and usable by people with
disabilities.
15. Since section 255 was first enacted, communication technology
has changed significantly, both in terms of its usage of the Internet
and packet-switched networks instead of circuit-switched networks and
in its common architecture. In many cases, communication devices had a
single function, and were created by a single manufacturer and often
closely tied to a specific communication service or network. As the
fixed and mobile Internet has evolved, mass-market communication
devices are now often general-purpose computers or devices such as
smart phones incorporating aspects of general-purpose computers, with
an architecture reflecting the evolution of computer technology. This
architecture has been common for personal computers since the 1980s,
but has more recently also made its way into mobile devices such as
smart phones and tablets, and into entertainment devices such as game
consoles and set-top boxes. In all of these cases, systems can be
divided into at least five components that can be pictured, roughly, as
layers, with the hardware at the bottom and the application and
services at the top:
Hardware (commonly referred to as the ``device''): Every
advanced communications service relies on hardware with general-purpose
computing functionality. It typically includes a computing component
(``CPU''), several kinds of memory, one or more network interfaces
(cellular, IEEE 802.11 ``WiFi,'' Ethernet, Bluetooth, etc.), built-in
peripherals such as keyboards and displays, and both generic and
dedicated-purpose interfaces to external peripherals. A common example
of a generic interface is a USB interface, as it can support just about
any input or output technology, from audio to keyboards and cameras. A
dedicated-purpose interface can only support one media type, such as
audio.
Operating system (``OS''): The OS manages the system
resources enumerated above and provides common functionality, such as
network protocols, to applications. Almost all devices with a CPU have
an OS.
User interface layer: Most modern devices have a separate
user interface (``UI'') layer upon which almost all applications rely
to create their graphical user interface. Currently, the OS and user
interface layer are typically provided as a package and are often
referred to collectively as the OS, but this is not always the case.
For example, at least one common OS allows users to replace the user
interface layer. In many cases, web browsers are considered to be part
of the UI layer although they themselves are also an application.
Application (commonly referred to as an ``app''): Software
is used to implement the actual advanced communications functionality.
The software may be embedded into the device and non-removable,
installed by the system integrator or user, or reside in the cloud.
Network services: Advanced communication applications,
such as VoIP, rely on network services to interconnect users. These
networks perform many functions, ranging from user authentication and
authorization to call routing and media storage. In many
[[Page 13803]]
cases, such network services simply route the call signaling
information and do not touch the actual media exchanged. In these
cases, the service itself may not know or care what kind of media
(audio, video, text) is exchanged between communicating end systems. In
other cases, the network services may perform more than transport
functions and offer video, voice, and other data capabilities.
While the particulars of the above components have evolved, the
basic architecture has remained stable for several decades and there
are no obvious successors under development in the research community.
Thus, it appears reasonably safe to assume that this division will
continue for the immediate future, although we note that the components
listed above overlap with each other.
16. Because each of the above components may be created by a
different manufacturer and sold separately, this division has three
major consequences. First, a manufacturer or provider of one component
may have limited ability to know which other components are being used
to deliver an advanced communications service. For example, a PC- and
web-based collaboration service can run on most personal computers,
using an almost infinite set of combinations of hardware, operating
systems and web browsers. Second, components of the service can change
over time. Users can often upgrade their hardware, OS, or application,
without consulting with the manufacturer or provider of the other
components. Third, the accessibility features of each component are
likely to evolve over time. Manufacturers of hardware, OS, and user
interface layers may not know whether the components they produce will
be used for advanced communications services in the future and for
which ones.
17. In order to enable individuals with disabilities to use an
advanced communications service, all of the components may have to
support accessibility features and capabilities. Conversely, if one
component does not offer a particular function, it is often impossible
for another component to compensate for that omission. For example,
only the hardware component can support an audio jack or a connection
to an external Braille device, while only the OS and user interface
layer can enable screen readers. In addition, it should be noted that
while upper layers cannot make up for the lack of accessibility
features at the lower layers, they can impede their use. For example,
an application could render text in such a way that screen readers or
Braille devices cannot function, e.g., to protect content against
extraction as part of digital rights management functionality. While
this environment complicates the ability to implement capabilities that
support people with disabilities, we also recognize that these
challenges are inherent in the design of any mass market application or
hardware device. At the same time, we recognize that this environment
also has the potential to provide new solutions for people with
disabilities which were not previously possible.
18. We seek comment on whether the above description accurately
reflects the basic architecture and components involved in the delivery
of ACS. Below, we seek comment on how we should interpret the statute's
directives, in light of the architecture and components discussed
above.
2. Manufacturers of Equipment Used for Advanced Communications Services
19. Section 716(a) of the Act provides that, with respect to
equipment manufactured after the effective date of applicable
regulations established by the Commission and subject to those
regulations, the accessibility obligations apply to a ``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.''
20. We first seek comment on the meaning of the term
``manufacturer.'' We note that in our rules implementing section 255 of
the Act we define ``manufacturer'' as ``an entity that makes or
produces a product.'' In the Section 255 Report and Order, we found
that ``[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 propose to adopt
the same definition of ``manufacturer'' in our rules implementing
section 716 and seek comment on this proposal.
21. We also seek comment on the meaning of ``end user equipment,''
``network equipment'' and ``software,'' as those terms are used in
section 716(a). We propose to define ``end user equipment'' as
including hardware as described above; ``software'' includes the OS,
the user interface layer, and applications, as described above, that
are installed or embedded in the end user equipment by the manufacturer
of the end user equipment or by the user; and ``network equipment''
includes equipment used for network services, as described above. We
seek comment on whether upgrades to the software (OS, user interfaces,
or applications) by manufacturers are encompassed in these definitions.
We also seek comment on whether there are any circumstances in which a
manufacturer of end user equipment would be responsible for the
accessibility of software that is installed or downloaded by the user.
In particular, we seek comment on commenters' assertions that the
limitations on liability in section 2(a) of the CVAA generally preclude
manufacturers from being liable for third party applications that are
installed or downloaded by the consumer.
22. In addition, we seek comment on the meaning of the phrase
``used for advanced communications services,'' in section 716(a), for
the purposes of determining a manufacturer's obligations under this
section. As a general matter, must equipment subject to section 716(a)
be capable of offering ACS on a standalone basis or merely support ACS
in some way? If the former, then how should this standard be applied,
for example, to Internet-enabled ACS intended to run on separately
distributed general computing platforms?
23. We also seek comment on the meaning of ``offers for sale or
otherwise distributes in interstate commerce'' by ``such
manufacturer.'' Hardware, as described above, commonly meets this
definition. We seek comment on whether other components that are used
for advanced communications services are offered for sale or otherwise
distributed in interstate commerce by the manufacturer when installed
or embedded by the manufacturer. We propose to treat generally the act
of a manufacturer's making software available for download as a form of
distribution. We seek comment, however, for purposes of the CVAA, on
what should constitute making software available for download.
24. We propose to hold manufacturers of end user equipment
responsible for the accessibility of their products, including the
software, such as the OS, the user interface layer, and the
applications that they install. We also propose to find manufacturers
of software used for advanced communications services that is offered
for sale or otherwise distributed in interstate commerce by such
manufacturers and that is downloaded or installed by the user as being
covered by section 716(a).
[[Page 13804]]
3. Providers of Advanced Communications Services
25. 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.''
26. In the Section 255 Report and Order, the Commission found that
providers of telecommunications services include resellers and
aggregators. The Commission's decision was based on its interpretation
of the statutory definition of ``telecommunications carrier'' as
defined in section 3(51) of the Act. Specifically, the Commission noted
that ``[section 3(51)] states that a `telecommunications carrier' means
any `provider of telecommunications services' with the exception of
aggregators, thus indicating that a `provider of telecommunications
services' would otherwise include aggregators.'' While the CVAA does
not provide similar guidance with respect to the definition of provider
of ACS, we believe that the general principle that the Commission
adopted in the Section 255 Report and Order--that ``Congress intended
to use the term ``provider'' broadly * * * to include all entities that
make telecommunications services available''--has applicability here.
Accordingly, we propose to find providers of ACS to include all
entities that make ACS available in or affecting interstate commerce,
including resellers and aggregators. We seek comment on this proposal.
27. We also seek comment on additional issues relating to the
meaning of ``providers of advanced communications services.'' We
propose to find such providers to include entities that provide ACS
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, as long as these providers make advanced
communications services available in or affecting interstate commerce.
We also seek comment on whether there are any circumstances in which a
service provider would be responsible for the accessibility of third
party services and applications or whether the liability provisions in
section 2(a) of the CVAA would generally preclude such a result. We
seek comment on these proposed approaches and on whether the fact that
we are required under section 716(e)(1)(C) to ``determine the
obligations under this section of manufacturers, service providers, and
providers of applications or services accessed over service provider
networks'' should have any bearing on how we interpret the meaning of
providers of ACS. Specifically, we seek comment on the meaning of
``providers of applications or services accessed over service provider
networks'' and how this term differs from ``providers of advanced
communications services.'' Finally, we also seek comment on the meaning
of ``in or affecting interstate commerce.'' Are there any circumstances
in which advanced communications services that are downloaded or run by
the user would not meet this definition?
4. Advanced Communications Services
28. 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. That provision sets forth
definitions for each of these terms.
a. Interconnected VoIP Service
29. 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. Sec.
9.3 of the Commission's rules, 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. We propose to continue
to define interconnected VoIP in accordance with Sec. 9.3 of the
Commission's rules. We seek comment on this proposal.
30. Section 716(f) of the Act provides that ``the requirements of
this section shall not apply to any equipment or services, including
interconnected VoIP service, that are subject to the requirements of
section 255 on the day before the date of enactment of the Twenty-First
Century Communications and Video Accessibility Act of 2010.'' In the
October Public Notice, the Bureaus sought comment on how to address the
accessibility obligations of equipment that is used to provide both
telecommunications and advanced communications services and how to
treat interconnected VoIP. In its comments, AT&T states that ``the
Commission should subject multi-purpose devices to section 255 to the
extent that the device provides a service that is already subject to
section 255 and apply section 716 solely to the extent that the device
provides ACS that is not otherwise subject to section 255.'' We seek
comment on AT&T's interpretation and also seek comment on alternative
interpretations of section 716(f).
b. Non-interconnected VoIP Service
31. 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 that ``does not include any service that is an
interconnected VoIP service.'' We propose to define ``non-
interconnected VoIP service'' in our rules in the same way and seek
comment on this proposal.
32. We propose to treat any offering that meets the criteria of the
statutory definition set forth above as a ``non-interconnected VoIP
service,'' and note that the statutory definition of non-interconnected
VoIP does not exclude offerings with a purely incidental VoIP
component. We seek comment on this proposal. We also note that, as
discussed below, the statute allows the Commission to waive the
requirements of section 716 for equipment or services ``designed
primarily for purposes other than using advanced communications
service.'' In addition, as discussed below, section 716(i) provides
that the requirements of this Section do not apply to ``customized
equipment or services that are not offered directly to the public.''
c. Electronic Messaging Service
33. 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. In accordance with this
definition, we propose to define this term in the Commission's rules as
``a service that provides real-time or near real-time non-voice
messages in text form between individuals over communications
networks.'' Consistent with language of the Senate and House Reports,
we also propose that electronic messaging service includes ``more
traditional, two-way interactive services such as text messaging,
instant messaging, and
[[Page 13805]]
electronic mail, rather than * * * blog posts, online publishing, or
messages posted on social networking websites.'' We seek comment on
these proposed definitions. For reasons similar to those discussed
below in the section on interoperable video conferencing services, we
believe that Internet protocol relay (``IP Relay'') services that
otherwise fit the definition of ``electronic messaging services'' are
services subject to the requirements of section 716.
34. We also seek comment on the assertion of several commenters
that the phrase ``between individuals'' in the above definition
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. In addition, we seek comment on TIA's assertion that
``services and applications that merely provide access to an electronic
messaging service, such as a broadband platform that provides an end
user access to an HTML-based e-mail service, are not covered.''
d. Interoperable Video Conferencing Service
35. Section 3(1) of the Act, as added by the CVAA, defines the term
``advanced communications services'' to include ``interoperable video
conferencing service,'' which, in turn, is defined in section 3(27) as
``a service that provides real-time video communications, including
audio, to enable users to share information of the user's choosing.''
We note that while earlier versions of the legislation did not include
the word ``interoperable'' in the definition of the term ``advanced
communications services,'' the definition of ``interoperable video
conferencing services'' in the enacted legislation is identical to the
definition of ``video conferencing services'' found in earlier
versions. In addition, language in the Senate Report regarding
``interoperable video conferencing services'' is identical to language
in the House Report regarding ``video conferencing services.'' Both the
Senate Report and the House Report state, for example, that ``[t]he
inclusion * * * of these services within the scope of the requirements
of this act is to ensure, in part, that individuals with disabilities
are able to access and control these services'' and that ``such
services may, by themselves, be accessibility solutions.'' In light of
the above symmetries between the earlier and later versions of this
definition, as well as the reports prepared by each chamber of
Congress, we will first seek comment on the meaning of ``video
conferencing service'' and then on the meaning of ``interoperable'' in
this context.
i. Video Conferencing Service
36. We first seek comment on what services meet the statutory
definition of ``providing * * * real-time video communications,
including audio, to enable users to share information of the user's
choosing'' and what end user equipment, network equipment, and software
are used for these services. We propose to classify a range of services
and end user equipment under this statutory definition, including, but
not limited to videophones and software applications used for
conversation between and among users. Such end user equipment includes
smart phones and computers with the capability of using interactive
video, text and audio conferencing applications such as the Apple
iPhone 4.0, Motorola Droid X and computers and videophones such as ASUS
Skype, Grandstream, Ojo, and Polycom. Examples of video conferencing
software applications include, for example, Google Voice & Video Chat,
ooVoo, AOL Instant Message (``AIM'') Chat, WebEx, and Skype. We seek
comment on this proposal.
37. We also seek comment on whether video relay services (``VRS'')
meet the above definition. VRS is a form of TRS under section 225 of
the Act that enables individuals who are deaf or hard of hearing and
who use American Sign Language to communicate over distances with voice
telephone users through a remotely located sign language interpreter
called a CA. The person who is deaf or hard of hearing makes a VRS call
using video equipment (a television or a computer with a video camera
device) that connects such individual with the CA over a broadband
connection. The CA then relays the conversation between the parties--in
sign language with the VRS user (the ``video leg''), and by voice with
the telephone user (the ``telephone leg''). Voice telephone users can
also initiate VRS calls by simply dialing the telephone number of the
person who uses sign language. The call is then automatically connected
to a CA, who then relays the conversation.
38. Commenters disagree about whether the CVAA covers the video
conferencing service and equipment used in the provision of VRS.
Sorenson cites to the legislative history and submits that ``Section
716 was intended to cover mass market services and equipment (such as
personal computers and smart phones) that have not been designed for
use by people with disabilities, not services and equipment (such as
VRS and point-to-point) that have been designed specifically to be
accessible to and usable by persons with disabilities.'' Consumer
Groups disagree, stating that ``VRS equipment and [video conferencing]
services * * * should be made accessible in accordance with the
Accessibility Act, if achievable.'' Sorenson also asserts that the
phrase ``including audio'' in the definition suggests the exclusion of
VRS ``video conferencing service'' or equipment. Consumer Groups reject
Sorenson's assertion because widely distributed VRS equipment includes
audio functions that ``benefit users who engage in voice carryover
(`VCO') and hearing carryover (`HCO').''
39. We agree with Consumer Groups and believe that the ``video
leg'' of a VRS call meets the statutory definition of ``provid[ing] * *
* real-time video communications, including audio, to enable users to
share information of the user's choosing.'' Just as a voice telephone
user uses telecommunications services and equipment to communicate with
the VRS CA (the ``telephone leg'' of a VRS call), we propose to find
that a VRS consumer uses video conferencing services and equipment to
communicate with the VRS CA (the ``video leg'' of a VRS call). We find
nothing in the statute or the legislative history to suggest that
providers of video conferencing services and manufacturers of equipment
used for VRS who otherwise are covered under the CVAA should be
excluded from its requirements simply because their services are a kind
of TRS provided pursuant to section 225 of the Act. While VRS equipment
and services are specifically designed for people who are deaf or hard
of hearing and use sign language, they are not necessarily designed for
those who have additional disabilities as well (e.g., individuals who
are deaf and have low vision, a mobility, or dexterity disability). We
do not believe this interpretation will in any way diminish or change
the obligations of VRS providers that are contained in part 64 of the
Commission's rules. We seek further comment on this issue and on
whether such an interpretation would create any difficulties or
conflicts in our implementation of the VRS program.
40. We note that consumers who are deaf or hard of hearing also use
video equipment distributed by VRS providers for point-to-point calls
with other users of this equipment. We believe that such point-to-point
calling also meets the CVAA's statutory definition of ``providing * * *
real-time video communications, including audio, to
[[Page 13806]]
enable users to share information of the user's choosing,'' and seek
comment on this analysis.
41. We also seek further comment on whether webinars are a covered
service. TIA states that ``a service that enables users to share
information necessarily implies a two-way service, not a broadcast-
style webinar video.'' The IT and Telecom RERCs disagree, however,
asserting that webinar systems should be subject to Section 716 because
these systems are ``not designed to broadcast information but rather to
provide user interaction in the form of chat, voting, and hand-raising,
etc.''
42. Next, we seek comment on Consumer Groups' assertion that ``the
scope of the [CVAA] should not be limited by the type of communication
conveyed by the video conferencing service (i.e., uni-, bi-, or multi-
directional), but by the fact that the service is capable of providing
real-time communications that enable users to share information.''
Consumer Groups suggest, for example, that the fact that ``video
conferencing services may be used to leave a `video mail' (similar to a
`voice mail') message,'' does not preclude the service's coverage under
the CVAA. Consistent with our seeking comment on how to treat multi-
purpose devices above we seek comment on Consumer Groups' suggestion.
We also seek comment more generally on whether services that otherwise
meet the definition of ``provid[ing] * * * real-time video
communications, including audio, to enable users to share information
of the user's choosing'' but that also provide non-real-time functions
(such as video mail) are covered under the CVAA. If so, are the non-
real-time functions or near-real-time functions of such a service (such
as video mail) subject to the requirements of section 716? If such
functions are not covered, should we, similar to what we did in the
section 255 context, assert our ancillary jurisdiction to cover video
mail? Specifically, the Commission employed its ancillary jurisdiction
to extend the scope of section 255 to both voicemail and interactive
menu services under part 7 of the Commission's rules because ``the
failure to ensure accessibility of voicemail and interactive menu
services, and the related equipment that performs these functions,
would [have] seriously undermined the accessibility and usability of
telecommunications services required by sections 255 and 251(a)(2).''
Similarly, we seek comment on whether the exclusion of video mail from
our rules governing section 716 would hinder our ability to ensure the
accessibility and usability of advanced communications services.
43. TIA also asserts, similar to the argument that it made with
respect to the scope of VoIP services covered under the CVAA, that
``products that offer a video connection that is incidental to the
principal purpose and nature of the end user offering fall outside the
definition as well,'' we believe the same analysis that we propose to
apply to the scope of non-interconnected VoIP should apply here. We
therefore propose to classify any offering that meets the criteria of
the statutory definition set forth above as a ``video conferencing
service'' and note that the statutory definition does not exclude
``products that offer a video connection that is incidental to the
principal purpose and nature of the end user offering.'' Again, we note
that this issue may be relevant to our waiver authority set forth in
section 716(h), or the exclusion of customized equipment or services
pursuant to section 716(i). We seek comment on this proposed
classification.
ii. Interoperable
44. We seek further comment on the meaning of ``interoperable'' in
the term ``interoperable video conferencing service,'' again noting the
symmetries of the definition and interpretation of this term in the
various drafts of the CVAA and the legislative history of this law.
Commenters appear to be divided on the significance of this term. ITI
asserts that the inclusion of the modifier ``interoperable'' after
earlier versions of the legislation did not include the word ``strongly
suggests that Congress consciously decided to target only a subset of
all video conferencing services.'' TIA urges an interpretation of the
word ``interoperable'' to mean that a video conferencing service must
operate ``inter-platform, inter-network, and inter-provider'' before it
is subject to the accessibility provisions of the CVAA. Similarly, CEA
concludes that ``most nascent two-way video services and applications
commercially available in the marketplace have not yet reached true
interoperability and are not covered by the statute.'' However,
Consumer Groups believe that ``interoperable'' should be interpreted to
achieve a broad application of the requirements of the CVAA. Similarly,
the RERC-IT urges that the inclusion of the word ``interoperable''
suggests a broad application of the CVAA so that ``all video
conferencing services are covered and that they should be made
interoperable.'' Other commenters express concerns about the current
lack of interoperability of video conferencing services, i.e., that
consumers are not able to make point-to-point calls using different
video conferencing programs.
45. We are concerned that limiting coverage of this provision to
only currently available video conferencing services that are ``inter-
platform, inter-network, and inter-provider'' may undermine the
statute's intent to the extent the definition results in little or no
video conferencing service or equipment being ``interoperable.'' We
note that ``video conferencing service'' in the legislative history and
``interoperable video conferencing service'' in the statute have the
exact same definitions.
46. We seek comment on how to define ``interoperable'' in a manner
that is faithful to both the statutory language and the broader
purposes of the CVAA. Specifically, we seek comment on how the
Commission should define interoperable video conferencing services
within the scope of covered services to ensure that ``such services
may, by themselves, be accessibility solutions'' and ``that individuals
with disabilities are able to access and control these services'' as
Congress intended. For example, which characteristics of video
conferencing services and equipment, including software, should
determine ``interoperability''?
47. The Commission requires VRS services and equipment to be
``interoperable'' for the provision of VRS under section 225 of the
Act. The Commission also requires video conferencing services and
equipment used for point-to-point calls between VRS equipment users to
be ``interoperable'' under the authority of ancillary jurisdiction.
These interoperability requirements pertain only to VRS providers and
equipment used by registered VRS users for VRS and point-to-point
communications and do not require interoperability among VRS and other
platforms, networks, or providers. We seek comment on whether how we
define interoperability in the context of VRS should have any bearing
on how we define ``interoperable'' in the term ``interoperable video
conferencing service.''
5. Customized Equipment or Services
48. Section 716(i) states that the provisions of this section
``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.'' While the Senate Report did not discuss this
provision, the House Report explains that section 716(i) is a ``narrow
[[Page 13807]]
exemption'' that encompasses ``equipment and services [that] are
customized to the unique specifications requested by an enterprise
customer.'' It goes on to state that this provision ``permit[s]
manufacturers and service providers to respond to requests from
businesses that require specialized and sometimes innovative equipment
to provide their services efficiently'' and is ``not intended to create
an exemption for equipment and services designed for and used by
members of the general public.''
49. Several other commenters urge us to find that manufacturers and
service providers are subject to Section 716 only to the extent that
they are offering their equipment and services directly to the public.
In contrast, the RERC-IT urges us to ``carefully limit the exception
for customized equipment and services'' and to cover equipment and
services that have been customized in ``minor ways'' and ``that are
made available to the public indirectly through employers, schools, or
other institutions.'' The RERC-IT also urges that we define ``public''
in this context to ``include public institutions, such as educational
institutions and government agencies.''
50. We believe that the guidance offered by the House Report
evinces Congress's intent that section 716(i) be narrow in scope and
applicable only to customized equipment and services offered to
business or other enterprise customers, rather than to equipment and
services ``used by members of the general public.'' We seek comment on
this analysis, as well as on the extent to which the equipment and
services used by private institutions but made available to the public,
such as communications equipment and services used by libraries and
schools, should be covered by the CVAA. More specifically, we seek
comment on what additional guidance by the Commission is needed to
define equipment and services that are ``used by members of the general
public.'' Finally, we seek comment on the extent to which section 716
covers products and services that are offered to the general public,
but which have been customized in minor ways to meet the needs of
private entities.
51. Consistent with Motorola's assertions, we propose to find
section 716's definition of advanced communications services not to
extend to public safety communications networks and devices and find
that these networks and devices are ``equipment and services that are
not offered directly to the public.'' We agree that the Commission's
recent proposal not to apply its hearing aid compatibility requirements
to public safety equipment is instructive here. We note, however, that
employers still have obligations under the ADA, and 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.'' We seek comment on this analysis.
6. Waivers for Services or Equipment Designed for Purposes Other Than
Using ACS
52. Section 716(h)(1) of the Act states: The Commission shall have
the authority, on its own motion or in response to a petition by a
manufacturer or provider of [ACS] or any interested party, to waive the
requirements of [section 716] for any feature or function of equipment
used to provide or access [ACS], or for any class of such equipment,
for any provider of [ACS], or for any class of such services that --(A)
is capable of accessing an [ACS]; and (B) is designed for multiple
purposes but is designed primarily for purposes other than using [ACS].
We note that, in making waiver decisions, the Commission generally
considers whether special circumstances exist that warrant deviation
from the general rule, and whether the waiver will serve the public
interest. In the October public notice, the Bureaus asked what factors
would be relevant to determining whether a product or service is
eligible for a waiver and whether there are any specific classes of
products or services that warrant the establishment of a categorical or
blanket waiver.
53. Both the Senate and House Reports state that section 716(h)
``provides the Commission with the flexibility to waive the
accessibility requirements for any feature or function of a device that
is capable of accessing advanced communications services but is, in the
judgment of the Commission, designed primarily for purposes other than
accessing advanced communications.'' Consistent with the statutory
language and legislative history, we propose to focus our inquiry on
determining whether the offering is designed primarily for purposes
other than using ACS.
54. In making our waiver assessment, we agree with commenters that
the ``core'' function of an offering is an issue relevant to our
analysis, we also agree with the IT and Telecom RERCs's suggestion that
the ``primary feature of a multi-feature device or service [may] vary
from person to person.'' Furthermore, we do not believe the fact that a
``core'' function of a device is to play games to be dispositive of the
issue whether such device is entitled to waiver under section 716(h).
As the IT and Telecom RERCs note, ``[g]aming is used for education,
rehabilitation, and social interaction [and] * * * should not be
exempted simply because the basic feature is a game.'' We seek comment
on this analysis. We also seek comment on AFB's contentions that ``how
[a product] is marketed'' and ``[how] most people think of the device''
should not be relevant to our analysis; rather, ``[t]he issue is
whether the advanced communications features and functions can be
operated apart from the device's [primary] functions.''
55. ESA also suggests that why consumers access the gaming products
is an important consideration: ``Consumers do not play an online game,
[for example], as a means of accessing chat--a consumer in search of a
general purpose messaging service will find simpler, more direct
alternatives than navigating through the various features of a gaming
device or online game service.'' We seek comment on this assertion and
on whether how consumers actually use the communications component of a
multi-purpose device or service is relevant to our assessment of the
primary purpose for which a device or service was designed. In
addition, we seek comment on ESA's proposal that we consider as part of
our waiver determination whether the offering is designed for a
``specific class of users who are using the ACS features in support of
another task.''
56. We also seek comment on the process that we should adopt for
determining whether to waive the requirements of section 716 and
specifically on the extent to which we need to adopt any procedures to
ensure that such process is efficient and effective. Alternatively, we
seek comment on whether we should handle waivers as we have in the
normal course pursuant to Sec. 1.3 of the Commission's rules. We agree
with commenters who state that we should ``incorporate protections for
confidential information'' and propose that parties seeking waivers be
able to request confidential treatment of information pursuant to Sec.
0.459 of the Commission's rules. At the same time, we agree with AAPD
that, to the extent possible, the process should be ``transparent and
public,'' and propose to seek comment on any waiver petition that we
receive pursuant to section 716(h). We seek comment on these proposals.
57. We also recognize the need, after appropriate consideration,
for making waiver determinations in an ``expeditious manner,'' although
we
[[Page 13808]]
propose not to ``incorporate an automatic grant date for waiver
requests'' as TIA urges. We note that TIA requests that ``if the
Commission fails to timely act on a good faith waiver request, the
company in question [should] be able to initiate the product or service
without penalty, and incorporate accessibility features in a reasonable
time frame prospectively.'' Given that such a ``deemed granted''
provision is not contemplated by the statute, we do not intend to
propose the framework outlined by TIA. We seek comment on this
analysis.
58. In addition, in light of the fact that, as the NFB observes,
``[t]echnology is ever changing and the `primary purpose' of multi-
purpose products is always evolving,'' we seek comment on AAPD's
assertion that ``there should be no permanent waivers.'' Should waivers
be temporary, and, if so, what should the duration of the waivers be?
If we decide that waivers should only be temporary, should we establish
a process for renewing waivers, and, if so, should the factors we
consider for renewal vary from the factors we consider for the original
waiver grant?
59. We also seek comment on whether we should consider waivers for
a ``class'' of services or equipment under this section and what
specific showing is needed to justify such waivers. Several commenters
suggest that we should grant blanket waivers in order to support
innovation and competition. For example, Microsoft states that
``[g]ranting prospective categorical waivers is essential to encourage
manufacturers and service providers to build communication features
into services and equipment devices that do not have as their core
purpose advanced communications * * * [f]ostering this innovation will
enrich the communications choices and solutions available to all
consumers, including those with disabilities.'' In contrast, many
consumer commenters suggest that blanket waivers are never appropriate,
given rapid technological advancement and the belief that ``much
accessibility and usability will be accomplished through software and
related changes.''
60. We seek further comment on the specific factors that we should
consider in determining whether a particular ``class'' of services or
equipment should be granted a waiver. How can we determine what
services or equipment are similarly situated enough to be designated a
``class''? Is it possible to structure a blanket waiver in such a way
as to address consumers' concerns that any such waiver could quickly
become outdated? Are there specific classes of services or equipment
that we should consider waiving in our final rules on section 716? If
we do decide to grant waivers for an entire class of services or
equipment, should such waivers be permanent or temporary? As discussed
above (for individual waivers), should we establish a renewal and/or
revocation process for categorical waivers?
7. Exemptions for Small Entities
61. Section 716(h)(2) states that ``the Commission may exempt small
entities from the requirements of this section.'' While the Senate
Report did not discuss this provision, the House Report notes that
under this section, the Commission may ``waive the accessibility
requirements for certain small businesses and entrepreneurial
organizations'' because they ``may not have the legal, financial, or
technical capability to incorporate accessibility features.''
Otherwise, the Report notes, the ``application of these requirements in
this limited case may slow the pace of technological innovation.'' It
also states that ``the Commission is best suited to evaluate and
determine which entities may qualify for this exemption,'' and that it
expects we will consult with the Small Business Administration
(``SBA'') when defining the small entities to be exempted.
62. NTCA asks the Commission to exercise its authority under
section 716(h)(2) to exempt small businesses from section 716 and to
define ``small businesses,'' as such term is defined in the Regulatory
Flexibility Act, thereby enabling small, rural local exchange carriers
(``RLECs'') and their affiliates to deploy and offer ACS ``without
facing outsized or unachievable regulatory burdens.'' Similarly,
Blooston Rural Carriers request that small RLECs, RLEC affiliates, and
other similarly situated small entities be exempted under section
716(h)(2) from both section 716, and the related enforcement and
recordkeeping requirements of section 717. In the alternative, they
request that the Commission adopt ``streamlined procedures and
simplified criteria'' that make ``appropriate waivers reasonably
available to qualifying entities in a timely, predictable, and
economically reasonable manner.''
63. Consumer Groups, however, urge that ``[i]ndividuals with
disabilities should not be denied accessible advanced communications
equipment and services simply because they happen to live in
underserved or rural areas,'' and assert that ``RLECs can ensure their
own compliance with the [CVAA] through contracts with larger providers
and mass market vendors * * * who must also comply with the [CVAA].''
ACB opposes small entity waivers ``without such entities having done
due diligence on whether or not product accessibility is `achievable'*
* * [contending] a case-by-case approach to granting waivers would
better serve the needs of consumers.'' Moreover, ACB recommends that,
if the Commission grants categorical waivers for small entities, any
such waivers only be granted for a year or less, subject to renewal at
the Commission's discretion. Similarly, AAPD urges the FCC Commission
to utilize caution when reviewing circumstances that would allow small
entities an exemption from these requirements. AAPD does not favor
``permanent exemptions or waivers.''
64. In considering the proper scope of possible exemptions from the
provisions of section 716 for small entities, we note that other
provisions of that section also recognize the need to consider the
circumstances of such entities in applying the accessibility
requirements. As discussed in section III.B.1 infra, section 716
provides that service providers and manufacturers must meet the
accessibility requirements of section 716 ``unless [those requirements]
are not achievable.'' Section 716(g) defines ``achievable'' as ``with
reasonable effort or expense,'' and requires the Commission to consider
four factors in determining whether meeting a requirement of section
716 is ``achievable.'' Two of those four factors necessarily
incorporate consideration of the size and capabilities of an entity:
``[t]he 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;'' and ``[t]he type of operations of
the manufacturer or provider.''
65. The discretionary authority to exempt one or more groups of
small entities in section 716(h)(2) supplements the protections that
are built into the section 716(g) achievability analysis with an
additional tool to ensure that our rules do not unduly burden such
entities. We acknowledge that certain small entities may lack the
legal, financial, or technical capability to incorporate the
accessibility features required by the CVAA, and that in certain
instances this may warrant an exemption from our accessibility
requirements for certain small entities that provide ACS as well as
some of those small entities that manufacture equipment used for ACS.
[[Page 13809]]
We agree with consumers that any such exemptions should be carefully
tailored to ensure that individuals with disabilities are not denied
access to advanced communications equipment and services in rural and
other underserved areas.
66. In light of these competing concerns, we seek comment on
whether we should exercise our exemption authority, and if so, how we
should structure the exemption. For example, should we base the
exemption on the number of employees or the annual revenues of the
entity or a combination of the two? Are there other criteria that we
should consider? We also seek input on the impact of any exemption that
commenters urge us to make. In particular, we request information on
the percentage of manufacturers and service providers that would be
exempted from our section 716 requirements for any specific criteria
proposed. We also seek comment on the percentage of equipment
(including software) and services in the ACS marketplace that would be
exempted from the requirements of section 716 if we exempted entities
based these proposed criteria. In addition, we seek comment on how use
of any recommended criteria would affect the availability of ACS and
equipment used for ACS, especially in rural and underserved areas.
Finally, if we adopt criteria to exempt small entities, should we
consider limiting the time period of any exemption that may be granted
under these criteria? We also propose to review periodically any basis
that we adopt for granting exemptions to small entities to ensure that
they reflect the current state of the industry.
B. Nature of Statutory Requirements
1. Achievable Standard
a. General Approach
67. Service providers and manufacturers must meet the accessibility
requirements of section 716 ``unless [those requirements] are not
achievable.'' Section 716(g) of the Act defines the term ``achievable''
to mean ``with reasonable effort or expense, as determined by the
Commission.'' As noted above, section 716 requires a higher standard of
achievement than section 255. Under section 255, covered entities must
ensure the accessibility of their products if it is ``readily
achievable'' to do so, which the statute defines by cross reference to
the ADA to mean ``easily accomplishable and able to be carried out
without much difficulty or expense.''
68. Specifically, section 716(g) requires the Commission to
consider the following factors in making determinations about what
``constitutes reasonable effort or expense'': (1) The nature and cost
of the steps needed to meet the requirements of this [s]ection 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.
69. We seek comment on each of these factors. At the outset, we
note that the Senate and House Reports state that we should ``weigh
each factor equally when making an achievability determination.'' The
House Report also states that in implementing section 716, the
Commission should ``afford manufacturers and service providers as much
flexibility as possible, so long as each does everything that is
achievable in accordance with the achievability factors.'' Consistent
with this legislative history, we generally agree with AT&T that an
assessment of what is achievable should be ``fact-based, flexible, and
applied on a case-by-case basis,'' but also agree with NFB that
flexibility should not be so paramount that ``accessibility is never
achieved.'' The House Report also states that ``the Commission [should]
interpret the accessibility requirements in this provision the same way
as it did for [s]ection 255, such that if the inclusion of a feature in
a product or service results in a fundamental alteration of that
service that it is per se not achievable to include that function.''
Accordingly, we agree with commenters who urge us to interpret the
achievability requirements consistent with this directive. We seek
comment on this analysis.
70. We also seek comment on whether or to what extent we have the
discretion to weigh other factors not specified in the statute in
making an achievability determination. ITI urges us to do so, and
specifically asks us to consider ``how the lack of economies of scale
and scope can sometimes hinder the development and deployment of
accessibility solutions.'' We note that Congress specifically set forth
in section 716 the factors that we must consider in determining whether
accessibility is achievable, and directed us to weigh these factors
equally. In light of the statute and this legislative history, we
propose to only consider the factors enumerated in the statute in
making our achievability determinations. We would note, however, that
we propose to construe the factors broadly and weigh any relevant
considerations in determining their meaning. We believe, for example,
that the ``lack of economies of scale and scope'' could be a relevant
consideration in determining the meaning of the second factor, ``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 seek comment on this analysis.
b. Specific Factors
(i) Nature and Cost of Steps Needed With Respect to Specific Equipment
or Service
71. Section 716(g)(1) of the Act states that in determining whether
the statutory requirements are achievable, the Commission must consider
``[t]he nature and cost of the steps needed to meet the requirements of
[716(g)] with respect to the specific equipment or service in
question.'' The Senate Report requires the Commission to consider ``the
nature and cost of the steps needed to make the specific equipment or
service in question accessible'' and states that ``[t]he Committee
intends for the Commission to consider how such steps, if required,
would impact the specific equipment or service in question.'' The House
Report reiterates the need for the Commission to focus on the
``specific product or service in question'' when conducting this
analysis. We believe that it is appropriate for us to consider whether
accessibility has been achieved by competing products, but agree with
T-Mobile that, in doing so, we must also consider the unique
circumstances of each covered entity. We seek comments on this analysis
and also seek comment on whether we should define this standard with
more specificity in order to make sure that our standards are fully
enforceable. We further request input on ACB's suggestion that we
consider the totality of the steps that a company needs to take in our
achievability analysis, as well as the need to compare the cost of
making a product accessible with the organization's entire budget.
(ii) Technical and Economic Impact on the Operation
72. The second factor in determining whether compliance with
section 716 is
[[Page 13810]]
``achievable'' requires the Commission to consider the ``technical and
economic impact of making a product or service accessible on the
operations 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 seek comment on
how we should assess this factor and how our analysis should take into
account the development and deployment of new communications
technologies.
(iii) Type of Operations
73. 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.'' The Senate and House
Reports state that this factor permits ``the Commission to consider
whether the entity offering the product or service has a history of
offering advanced communications services or equipment or whether the
entity has just begun to do so.'' We seek comment on the extent to
which we should consider an entity's status as a new entrant in the ACS
market in conducting our achievability analysis. How should a
manufacturer or service provider's recent entry into this market affect
our analysis if such entity has significant resources or otherwise
appears capable of achieving accessibility? What other criteria should
we use in assessing this factor as part of our achievability analysis?
(iv) Extent to Which Offering Has Varied Functions, Features, and
Prices
74. 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.'' The Senate and House Reports state that ``the Commission
[should] interpret this factor in a similar manner to the way that it
has implemented its hearing aid compatibility rules.'' The Commission's
rules governing hearing aid compatibility (``HAC'') obligations for
wireless devices require manufacturers and service providers to ensure
that a range of phones comply with the HAC standards. Specifically,
those rules direct such companies to ensure that hearing aid users are
able to select ``from a variety of compliant handset models with
varying features and prices.''
75. Several industry commenters read Congress's directive to
incorporate this criteria into the achievability analysis, in
conjunction with the legislative history and Section 716(j), as an
outright rejection of the finding in the Section 255 Report and Order
to require covered entities to consider the accessibility of every
product. On the other hand, the RERC-IT states that ``if every function
of a particular device can achievably be made accessible to every
disability, every function should be made accessible.'' We question
whether any of these proposed interpretations appropriately take into
account the more balanced approach contemplated by Congress, which
gives equal weight to each of the four achievability factors and
applies them on a flexible, case-by-case basis. We do, however,
generally agree with TIA that this factor should be interpreted to
``give individuals with disabilities meaningful choices in accessible
products, and to reward those companies who provide such choices.''
While section 716's flexible approach is not amenable to the fixed
number or percentage approach the Commission has employed in the HAC
context, section 716(g)(4) seems to require that where a company has
made a good faith effort to incorporate accessibility features in
different products across multiple product lines, this should count
favorably toward a determination that the company is in compliance with
section 716 for the product in question. Where companies offer a range
of accessible products that perform different functions at varied price
points, consumers with disabilities will have a range of devices from
which to make their purchases. In those instances, so long as other
criteria under the achievability analysis are met, a company charged
with having an inaccessible product might not have to make that
specific product accessible. This approach would appropriately reward
companies that make substantial investments in accessible products,
while allowing flexibility to account for marketplace realities.
76. Accordingly, we seek comment on whether covered entities
generally should not have to 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. At the same time, we also seek comment on whether there are
some accessibility features that are so important or easy to include
(like a ``nib'' on the 5 key) that they should be deployed on every
product, unless it is not achievable to do so. If so, we seek comment
on whether we should identify in our rules some of these specific
accessibility features that are currently available, to provide clarity
on what accessibility features should be universally deployed, if
achievable. We further express our general belief that section 716(j),
does not preclude our identifying ``easy'' accessibility features that
must be included on every product, if achievable. While the Senate
Report did not address this specific provision, our belief is confirmed
by the House Report, which states that the Commission's approach to
section 255 is consistent with section 716(j). Finally, we seek comment
on whether we should define with more specificity the meaning of
``varying degrees of functionality and features'' and ``differing price
points.'' In particular, we seek comment on ACB's assertion that ``[i]t
is essential that manufacturers and service providers make available a
range of devices that fit various price ranges along with corresponding
accessible features * * * this may be accomplished by dividing devices
into classes and making certain that each class has at least one option
that is fully accessible.''
2. Industry Flexibility
77. Sections 716(a)(2) and (b)(2) of the Act provide manufacturers
and service providers, respectively, flexibility on how to ensure
compliance with the accessibility requirements of the CVAA.
Specifically, a manufacturer or service provider may comply with these
requirements either by building accessibility features into the
equipment or service or ``by relying on third party applications,
peripheral devices, software, hardware, or [CPE] that is available to
consumers at nominal cost and that can be accessed by people with
disabilities.'' While the Senate Report did not discuss these
provisions, the House Report makes clear that the choice between these
two options ``rests solely with the provider or manufacturer.'' We
believe that the statutory language and legislative history preclude us
from preferring built-in accessibility over third party accessibility
solutions, as some consumer commenters urge us to do. We acknowledge
the integral role that universal design has played in ensuring that
mainstream products and services are accessible to people with
disabilities, and we believe that universal design will continue to
play an important role in providing accessibility to people with
disabilities. We believe, however, that the industry flexibility
provisions of the CVAA reflect the fact that there are new ways
[[Page 13811]]
to meet the needs of people with disabilities that were not envisioned
when Congress passed section 255, which relied primarily on universal
design principles. With new and innovative technologies, in some cases,
personalized services and products may now be able to more efficiently
and effectively meet individual needs than products built to perform in
the same way for every person. Sometimes called ``auto-
personalization,'' where available, this allows devices to adapt to
individual needs based on the user's preferences, according to the
device's capabilities. In a growing and increasingly mobile computing
environment, for example, consumers may be able to set their
preferences so that the interfaces on a device or the content produced
by that device automatically become accessible for that individual's
disability needs.
78. We do, however, seek comment on what actions we should take to
ensure that third party accessibility solutions meet the needs of
consumers in a manner comparable to solutions that are built into the
equipment. First, we seek comment on the meaning of the requirement
that the third party accessibility solutions ``must be available to the
consumer at nominal cost.'' Some commenters assert that ``nominal
cost'' cannot be a static definition or constitute a set amount or
percentage of total cost, but rather should be determined on a case-by-
case basis. In contrast, the RERC-IT, noting that people with
disabilities are ``poor at alarming rates,'' urges the Commission to
limit ``nominal cost'' at to one percent (1%) of the total cost of the
device or service, or the total cost of the device plus service, as
applicable. AFB notes further that ongoing costs to keep third party
software and hardware up to date and in good working order should be
included, such that the total cost to the consumer cannot be more than
nominal. While Congress did not prescribe a percentage or amount, it
did intend that any fee for third-party software or hardware
accessibility solutions be ``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.'' We propose to adopt this definition
of ``nominal cost'' and seek comment on this proposed definition. We
are concerned, however, that this definition, by itself, might not
ensure that the cost of accessibility for the consumer is truly
nominal, and we seek comment on whether we need to provide further
guidance on the issue.
79. We believe that manufacturers and service providers can rely on
a range of third party solutions, subject to the requirements that we
discuss further below, including the use of third party applications,
peripheral devices, software, hardware, and CPE. We propose to adopt
the following definitions of these potential third party accessibility
solutions:
(a) ``Applications'' means ``computer 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'';
(b) ``Peripheral devices'' means ``devices employed in
connection with equipment covered by this [proceeding] to translate,
enhance, or otherwise transfer advanced communications services into
a form accessible to individuals with disabilities'';
(c) ``Software'' means ``computer programs, procedures, rules,
and related data and documentation that direct the use and operation
of a computer or a related device and instruct it to perform a given
task or function'';
(d) ``Hardware'' means ``a tangible communications device,
equipment, or physical component of communications technology,
including peripheral devices, such as a smart phone, a laptop
computer, a desk top computer, a screen, a keyboard, a speaker, or
an amplifier''; and
(e) ``Customer premises equipment'' means ``equipment employed
on the premises of a person (other than a carrier) to originate,
route, or terminate telecommunications.''
We seek comment on these definitions and whether they are
sufficiently inclusive of third party solutions available to
manufacturers and service providers.
80. Second, we seek comment on the requirement that individuals
with disabilities must be able to ``access'' the third-party solutions.
Specifically, we seek comment on ACB's assertions that the third party
solutions (i) ``cannot be an after-market sale for which the user must
perform additional steps to obtain;'' (ii) ``must be fully operable by
a person with a disability without having to turn to people without
disabilities in order to perform setup or maintenance;'' and (iii)
``must be fully documented and supported.'' We believe that for covered
entities to meet the ``access'' requirement of this provision, they
must ensure that the third party solution not be more burdensome to a
consumer than a built-in solution. In that vein, should a service
provider or manufacturer relying on third party solutions be
responsible for finding and installing the solution, and supporting the
solution over the life of the product? We seek comment on this
analysis, on what a company must do to achieve such parity with built-
in solutions, and on whether it is necessary to require that covered
entities bundle the third party solutions with its products in order to
meet the requirements of the statute.
3. Accessible to and Usable by
81. Under sections 716(a) and (b) of the Act, covered service
providers and equipment manufacturers must make their products
``accessible to and usable by'' people with disabilities, unless it is
not achievable. In this section, we seek comment on the extent to which
we should continue to define ``accessible to and usable by'' as we have
for our implementation of section 255, which requires
telecommunications service providers and equipment manufacturers to
make their products ``accessible to and usable by'' people with
disabilities, if readily achievable.
82. In the Section 255 Report and Order, the Commission adopted a
definition of ``accessible'' in Sec. 6.3(a) of the Commission's rules
which incorporated the functional definition of this term from the
Access Board guidelines and includes various input, control, and
mechanical functions, output, display, and control functions. The
Section 255 Report and Order also adopted a definition of ``usable'' in
Sec. 6.3 that incorporated the Access Board's definition of this term.
Specifically, Sec. 6.3(l) provides that usable ``mean[s] 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.''
83. We seek comment on whether we should adopt these definitions
for purposes of section 716 or whether we should take this opportunity
to make changes to these definitions that would apply to both our
section 255 of the Communications Act and our section 716 of the CVAA
based on the Access Board Draft Guidelines that were released for
public comment in March 2010. While we note that there is a great deal
of overlap between section 255's definition of ``accessible'' and the
Access Board's proposed updated functional criteria for ICT, there are
some differences. To the extent that there are differences between
these definitions and criteria, should we work to reconcile those
differences? For example, the rules implementing section 255 of the Act
address cognitive disabilities whereas the draft ICT guidelines do not;
and the draft ICT guidelines address photosensitive seizures, whereas
the rules implementing section 255 of the Act do not. In addition, we
note that the Access
[[Page 13812]]
Board Draft Guidelines on ``usability'' are broader and more detailed
than the rules implementing section 255 of the Act. The Access Board
Draft Guidelines, for example, cover training and alternate methods of
communication.
4. Disability
84. 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 * * *.''
Our current rules incorporate this definition of disability, and we
propose to use that definition in our section 716 rules.
5. Compatibility
85. Under section 716(c) of the Act, whenever accessibility is not
achievable either by building in access features or using third party
accessibility solutions as set forth in sections 716(a) and (b), a
manufacturer or service provider must ``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 that is not achievable.
Section 255 of the Act contains a similar compatibility requirement for
telecommunications service providers and manufacturers if it is readily
achievable to do so, in cases where built-in accessibility is not
readily achievable.
86. Our rules implementing section 255 of the Act define peripheral
devices to mean ``devices employed in connection with equipment covered
by this part to translate, enhance or otherwise transform
telecommunications into a form accessible to individuals with
disabilities.'' We stated in the Section 255 Report and Order that
these might include ``audio amplifiers, ring signal lights, some TTYs,
refreshable Braille translators, [and] text-to-speech synthesizers.''
Our rules implementing section 255 of the Act define specialized CPE as
customer premises equipment that is commonly used by individuals with
disabilities to achieve access.
87. For purposes of section 716, we propose to define peripheral
devices to mean ``devices employed in connection with equipment,
including software, covered under this part to translate, enhance, or
otherwise transform advanced communications services into a form
accessible to individuals with disabilities.'' This definition is based
on our section 255 definition, with some refinements to reflect the
statutory language in section 716. We also propose to define
specialized CPE, as we do in our rules implementing section 255 of the
Act, as ``customer premises equipment which is commonly used by
individuals with disabilities to achieve access.'' 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.'' As we found in the Section 255 Report
and Order, we do not believe that it would be feasible for the
Commission to maintain a list of peripheral devices and specialized CPE
commonly used by individuals with disabilities, given how quickly
technology is evolving. For the same reason, we also believe that
covered entities do not have a duty to maintain a list of all
peripheral devices and specialized CPE used by people with
disabilities. We do believe, however, 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). We seek comment on
these proposed definitions.
88. We also seek additional comment on what should be required to
ensure compatibility in the context of advanced communications
services. Under our rules implementing section 255 of the Act, we use
four criteria 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. We seek comment on whether the four
criteria listed above remain relevant in the context of advanced
communications services. For example, we understand that a sizeable
majority of consumers who previously relied on TTYs for communication
are transitioning to more mainstream forms of text and video
communications. If we want to encourage an efficient transition, should
we phase out the third and fourth criteria as compatibility components
in our section 716 rules? Should we phase out the criteria from our
rules implementing section 255 of the Act as well? If so, should we
ensure that these requirements are phased out only after alternative
forms of communication, such as real-time text, are in place?
89. While the Access Board Draft Guidelines address compatibility
primarily with content providers in mind, they may still be helpful in
defining what ``compatible'' should mean as we update our accessibility
rules. The Access Board Draft Guidelines define compatibility to be the
``interaction between assistive technology, other applications,
content, and the platform,'' as well as the preservation of
accessibility in alternate formats. We seek further comment on whether
and how we should use the Access Board Draft Guidelines to help us
define compatibility for purposes of section 716.
90. We also seek comment on whether we should adopt additional
criteria for determining compatibility under section 716 and section
255. The Access Board Draft Guidelines note that accessibility
programming interfaces (``APIs'') enable interoperability with
assistive technology. Code Factory explains, for example, that it is
better able to develop a screen reader application if ``manufacturers
and operating system developers develop an Accessibility API, which is
essentially a layer between the device user interface and the screen
reader that can be used to pull information that must be spoken to the
user.'' The Access Board Draft Guidelines direct platforms,
applications, and interactive content to comply with World Wide Web
Consortium's Web Content Accessibility Guidelines (WCAG) 2.0 Level AA
Success Criteria and Conformance Requirements or to comply with
specific accessibility criteria in Chapter 4 of the Access Board Draft
Guidelines. Are there aspects of the WCAG guidelines or Access Board
criteria that we should incorporate into our definition of
compatibility? We also seek comment on the status of industry
development of APIs and whether incorporating criteria related to APIs
into our definition of compatibility could promote the development of
APIs.
6. Network Features
91. Under 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.'' In
the October public notice, the Bureaus sought comment on how this
provision compares to a similar provision in section 251(a)(2) of the
Act (relating to section 255) and whether the
[[Page 13813]]
requirement has a different meaning in the context of advanced
communications services networks.
92. We agree with commenters who generally believe that this duty
not to impede accessibility is comparable to the duty set forth in
section 251(a)(2) of the Act. We propose that our rules should include
the requirements set forth in section 716(d), just as our rules
implementing section 255 of the Act reflect the language in section
251(a)(2). We also agree with Verizon and AAPD, who stress that section
716(d) applies to a much broader range of providers, and seek comment
on how we can best reach out to newly covered entities and ensure that
they are aware of their new responsibilities.
93. We note that both the Senate and House Reports state that the
obligations imposed by section 716(d) ``apply where the accessibility
or usability of advanced communications services were incorporated in
accordance with recognized industry standards.'' CTIA states that until
the Commission identifies and requires the use of industry-recognized
standards, it should ``refrain from enforcing these obligations on
network providers.'' We seek comment on CTIA's assertion and on what
industry standards currently exist that can be used to incorporate
accessibility or usability in advanced communications services. We also
seek comment on what, if any, industry standards should be developed to
incorporate accessibility or usability in advanced communications
services and how these standards should be developed.
94. In addition, we seek comment on assertions by the RERC-IT that
our rules should prohibit ``passive inaction or setting of options * *
* that impede access.'' We also seek comment on AFB's statement that
under this provision ``digital rights management or network security
features or functions must * * * be installed so as not to impede
accessibility.'' Finally, we seek comment on CTIA's assertion that
``any rules seeking to limit the incorporation of any network features
or functions recognize the need for covered entities to manage all
network traffic, including advanced communications services.''
7. Accessibility of Information Content
95. Section 716(e)(1)(B) of the Act states that the Commission's
regulations shall ``provide that advanced communications services, the
equipment used for advanced communications services, 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].'' In the October public notice, the Bureaus sought comment
on how this provision should be implemented and the types and nature of
information content that should be addressed. We note that the
legislative history of the CVAA makes clear that the requirements apply
``where the accessibility of such content has been incorporated in
accordance with recognized industry standards.''
96. We seek further comment on what these standards should be and
how they should be developed and reflected in the Commission's rules,
subject to the limitation on mandating technical standards in section
716(1)(D). In particular, we seek comment on the RERC-IT proposal that
our regulations need to ensure that (i) ``the accessibility information
(e.g., captions or descriptions) are not stripped off when information
is transitioned from one medium to another;'' (ii) ``parallel and
associated media channels are not disconnected or blocked;'' and (iii)
``consumers * * * have the ability to combine text, video, and audio
streaming from different origins.'' We also seek comment on how we can
best ensure that encryption and other security measures do not thwart
accessibility, while at the same time ensuring that we ``promot[e]
network security, reliability, and survivability in broadband
networks.''
97. We also note that the Access Board Draft Guidelines require
content, which includes ``information and sensory experience
communicated to the user and encoding that defines the structure,
presentation, and interactions associated with those elements'' to be
accessible. The Draft Guidelines provide text, images, sounds, videos,
controls, and animations as examples of content and encourage, as a
best practice, the maximization of compatibility of content with
existing and future technologies, including assistive technology. The
Draft Guidelines also require user interfaces and their functions to be
accessible. For example, under these Draft Guidelines, advanced
communications services, equipment, and networks cannot strip captions
that make content accessible to people who are deaf or hard of hearing
from content that provides closed captioning. We seek comment on
whether all or some of these Draft Guidelines would be appropriate for
industry-recognized standards or inclusion in the Commission's rules.
98. Finally, we agree with CEA that, consistent with the
legislation's liability limitations, that 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. We seek comment on this assessment.
IV. Implementation Requirements
A. Obligations
99. 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 seek comment and make proposals relating
to the obligations of manufacturers and service providers and ask
further questions about the obligations of providers of applications or
services accessed over service provider networks.
1. Manufacturers and Service Providers
100. With respect to equipment manufacturers and service providers
of ACS, we propose to adopt general obligations that mirror the
language of the statute, similar to the approach taken in Sec. Sec.
6.5 and 7.5 of our rules and section 255 of the Communications Act.
Specifically, we propose that the Commission's rules set forth the
following ``General Obligations'':
[cir] 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.
[cir] 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.
[cir] If accessibility is not achievable either by building it in
or using third party accessibility solutions, 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.
[cir] Providers of advanced communications services shall not
[[Page 13814]]
install network features, functions, or capabilities that impede
accessibility or usability.
[cir] 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.
101. In addition, we propose to adopt requirements similar to those
in our rules implementing section 255 of the Act regarding product
design, development, and evaluation (Sec. Sec. 6.7 and 7.7);
information pass through (Sec. Sec. 6.9 and 7.9); and information,
documentation and training (Sec. Sec. 6.11 and 7.11), modified to
reflect the statutory requirements of section 716. Consistent with the
Section 255 Report and Order, we find that adoption of the functional
approach reflected in such requirements will provide clear guidance to
covered entities regarding their obligation to ensure accessibility and
usability. Some key requirements of these proposed rules include the
following:
[cir] 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.
[cir] Manufacturers and service providers must identify barriers to
accessibility and usability as part of such evaluation.
[cir] 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.
[cir] 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.
102. We seek comment on these proposed obligations for equipment
manufacturers and service providers of ACS. In particular, we seek
comment on whether we should adopt additional obligations or make
modifications to our proposals.
2. Providers of Applications or Services Accessed Over Service Provider
Networks
103. We also seek comment on what, if any, obligations we should
impose on ``providers of applications or services accessed over service
provider networks.'' Are there any requirements that we should impose
on these providers in order to ensure that the statutory mandates of
section 716 are carried out? We also seek comment on the meaning of
``accessed over service provider networks.'' How does this apply to
applications and services that are downloaded and then run as either
native or web applications on the device? How does this apply to
applications and services accessed through cloud computing?
B. Performance Objectives
104. Section 716(e)(1)(A) of the Act provides that in prescribing
regulations for this section, the Commission shall ``include
performance objectives to ensure the accessibility, usability, and
compatibility of advanced communications services and the equipment
used for advanced communications services by individuals with
disabilities.'' In the October public notice, the Bureaus sought
comment on how to interpret this provision, including the extent to
which these objectives should be specific or general. The October
public notice also sought comment on the usefulness of the Access
Board's March 2010 draft standards and guidelines on section 508 of the
Rehabilitation Act.
105. We agree with the broad range of commenters who stress the
importance of having performance objectives that would clearly define
the outcome needed to be achieved without specifying how these ends
should be accomplished. More specifically, we agree with those
commenters who suggest that we incorporate into the performance
objectives the outcome-oriented definitions of ``accessible,''
``compatibility,'' and ``usable'' from Sec. Sec. 6.3 and 7.3 of the
Commission's rules. We propose to adopt these definitions as
performance objectives subject to any changes that we make to these
definitions as part of this proceeding. We also agree with the IT and
Telecom RERCs that ``performance standards must * * * be testable,
concrete, and enforceable'' and seek further comment about how we can
accomplish these objectives. We disagree with ITI's suggestion that
performance objectives be merely ``aspirational.''
106. We seek additional comment on whether to adopt more specific
performance objectives, and on the procedures and timelines that we
should use to develop these objectives. While as a general matter it
may be desirable to harmonize the Commission's rules with the Access
Board Guidelines after the Access Board finalizes its Guidelines, we
seek comment on what parts of the Access Board Draft Guidelines may be
useful to us if we develop specific performance objectives in the
interim. We also seek comment on AT&T's assertion that ``the specific
functionalities and standards mandated by section 508 [for government
purchases of technology] * * * may not be appropriate in all
circumstances for industry wide, mass market application contemplated
by section 716.'' In which instances would the Access Board standards
not be appropriate for mass market application? In which areas might
they be particularly instructive?
107. We also propose to update our performance objectives, as
appropriate, after the Emergency Access Advisory Committee (``EAAC''),
which was established pursuant to section 106 of the CVAA, provides its
recommendations to the Commission in December 2011. The EAAC, among
other things, is considering ``what actions are necessary as part of
the migration to a national Internet protocol-enabled network to
achieve reliable, interoperable communication transmitted over such
network that will ensure access to emergency services by individuals
with disabilities.'' We express our general belief that achieving
reliable, interoperable communication over IP-enabled networks will
have applicability outside the emergency access context and may be
relevant to developing performance objectives under section 716 for
advanced communications services and equipment used for these services.
We note as well that the Access Board Draft Guidelines contain a
proposal for real time text requirements for hardware and software
whenever real-time voice is supported, further supporting the need to
move forward with the recommendation in our National Broadband Plan to
consider a standard for reliable and interoperable real-time text any
time that VoIP is available and supported.
108. With respect to interoperable video conferencing services, we
seek input on what performance objectives or rules need to be
established to ensure that, where achievable, interoperable
[[Page 13815]]
video conferencing services and equipment are accessible to and usable
by, individuals with disabilities, such as individuals who are blind,
have a visual impairment, have limited manual dexterity, or who are
deaf, hard of hearing, or deaf-blind. We also seek comment on whether
and to what extent we have the authority to adopt industry-wide
performance objectives that would set objectives for covered entities
collectively. We recognize, for example, that no single entity working
alone, can ensure that video conferencing services (or other advanced
communications services) are interoperable. If we were to interpret
section 716 to require interoperability among all video conferencing
services, what industry-wide performance objectives are needed to
achieve and ensure such interoperability so that consumers are able to
make point-to-point calls using different video conferencing services
and equipment? We also seek comments on what performance objectives are
needed to address concerns expressed by consumers about the general
inability of current video conferencing services to connect to VRS in a
manner that achieves functional equivalency with conventional voice
telephone services. In this regard, Consumer Groups urge that
mainstream video conferencing equipment and services be required to
``comply with standards, such as requisite resolution and frame-rate,
to support real-time video conferencing used for VRS, remote video
interpreting, and point-to-point communication.'' We note that the
Access Board Draft Guidelines on section 508 propose that products used
to transmit video conversations provide sufficient quality and fluidity
for real-time video conversation in which at least one party is using a
visual method of communication, such as sign language.
109. It appears that video conferencing equipment now available
off-the-shelf to the general public does not match the capabilities of
proprietary equipment offered by VRS providers in other ways as well.
First, although our VRS rules require ten-digit numbering capability on
VRS-provided video equipment--to enable the owners of such equipment to
make point-to-point calls to one another--this capability does not
presently exist in video conferencing equipment such as off-the-shelf
videophones. Consumer Groups urge that the North American Numbering
Plan (``NANP'') 10-digit telephone number system be ``adopted and/or
adapted by [mainstream] video conferencing equipment and service
providers to make their systems interoperable with other systems and
users, including VRS users.'' Finally, we note, that while not yet
universal, Consumer Groups envision multipoint control unit (MCU)
capability in video conferencing services when VRS is provided so that
all parties to the call can see the VRS communications assistant and
each other simultaneously. We therefore seek comment on performance
objectives for mainstream interoperable video conferencing services and
equipment to address multiple video conferencing needs by people with
disabilities, including the need for point-to-point calls where at
least one party is using a visual method of communication, such as sign
language; for functionally equivalent VRS; for multi-party conferencing
via MCUs; for ten-digit numbering (or an alternative means of
identifying and contacting one another); for effective emergency
access; and for the delivery of video remote interpreting services.
110. We also seek comment on whether industry or the Commission
should establish a working group of diverse stakeholders to address the
interoperability issues relating to video conferencing services and
equipment. If so, should the goals be focused on ensuring
interoperability among the largest service providers and equipment
manufacturers? How can we ensure that new entrants and software
application developers would be fully represented in such a process? We
ask commenters to set forth in detail the goals of such a group, which
stakeholders should be included, the specific issues that such a
working group should consider, and a timeline for completion of its
work. We further ask whether such group should be part of the
Commission's Consumer Advisory Committee, or be a stand-alone entity.
Finally, we seek comment on what industry efforts are ongoing to
address interoperability challenges and the degree to which such
efforts have been effective.
111. Finally, we note that the comments to the October public
notice contain relatively little discussion of ``electronic messaging
services'' and ``non-interconnected VoIP services.'' We seek further
comment about the specific accessibility concerns relating to these
services and whether we should adopt specific performance objectives to
address these concerns. We also seek comment on whether it would be
appropriate to establish a working group of diverse stakeholders to
provide recommendations related to such performance objectives.
V. Industry Guidance
A. Safe Harbors
112. Section 716(e)(1)(D) of the Act provides that the Commission
``shall * * * not mandate technical standards, except that the
Commission may adopt technical standards as a safe harbor for such
compliance if necessary to facilitate the manufacturers' and service
providers' compliance'' with the accessibility and compatibility
requirements in section 716. In the October public notice, we sought
comment on whether we should adopt safe harbor technical standards.
113. The vast majority of commenters oppose establishing technical
standards as safe harbors. CTIA and AT&T assert that safe harbors will
result in de facto standards being imposed that will limit the
flexibility of covered entities seeking to provide accessibility. The
IT and Telecom RERCs state that the Commission's rules should not
include safe harbors because ``technology, including accessibility
technology, will develop faster than law can keep up.'' AFB asserts
that it is too early in the CVAA's implementation ``to make informed
judgments * * * about whether and which safe harbors should be
available.'' While ITI supports safe harbors, noting they provide
clarity and predictability, it warns against using safe harbors ``to
establish implicit mandates [that] * * * lock in particular
solutions.'' In light of the concerns raised in the record, we agree
with AFB that it is too early in the implementation of the CVAA to make
informed judgments about whether safe harbor technical standards should
be established. Therefore, we propose not to adopt any technical
standards as safe harbors at this time. We seek comment on this
proposal.
B. Prospective Guidelines
114. Section 716(e)(2) of the Act requires the Commission to issue
prospective guidelines concerning the new accessibility requirements.
While the Senate Report did not discuss this provision, the House
Report notes that such guidance ``makes it easier for industry to gauge
what is necessary to fulfill the requirements'' by providing industry
with ``as much certainty as possible regarding how the Commission will
determine compliance with any new obligations.''
115. We agree with CTIA that the prospective guidelines that we
adopt must be clear and understandable and provide service providers
and manufacturers as much flexibility as possible, so long as
achievable accessibility requirements are satisfied.
[[Page 13816]]
We seek comment on a proposal by the RERC-IT, endorsed by ACB, that we
use ``an approach to the guidelines similar to that used by the World
Wide Web Consortium's Web Content Accessibility Guidelines (WCAG),
which provide mandatory performance-based standards and non-mandatory
technology-specific techniques for meeting them.'' We also seek comment
on whether any parts of the Access Board's Draft Guidelines on section
508 of the Rehabilitation Act should be adopted as prospective
guidelines. In addition, we seek comment on the process that should be
used to develop prospective guidelines and to ensure that a diverse and
broadly-based group of stakeholders participate in such an effort.
Should the Commission, for example, establish a consumer-industry
advisory group to prepare these?
VI. Section 717 Recordkeeping and Enforcement
A. Overview
116. Section 717(a) of the Act requires the Commission to establish
new recordkeeping and enforcement procedures for ``manufacturers and
providers subject to [sections 255, 716, and 718.]'' In the October
public notice, the Bureaus sought comment on these requirements,
including the types of records that should be maintained and the
possible enforcement procedures that should be imposed. We will discuss
the recordkeeping and enforcement requirements in further detail below,
including a proposal to amend the existing rules implementing section
255 of the Act and to add a new rule subpart to implement the
requirements of section 717. For purposes of our discussion below, we
propose to apply the section 717 requirements to manufacturers of
equipment used for telecommunications services, interconnected VoIP,
voicemail and interactive menu services subject to section 255 of the
Act; manufacturers of equipment used for ACS subject to section 716;
and manufacturers of telephones used with public mobile services which
include an Internet browser, subject to section 718. We also propose to
apply the section 717 requirements to providers of telecommunications
services, interconnected VoIP services, voicemail or interactive menu
services subject to section 255 of the Act; providers of ACS subject to
section 716; and providers of mobile services who arrange for the
inclusion of a browser in telephones, subject to section 718. Finally,
we reiterate our proposal to subject providers of applications and
services that can be used for ACS and that can be accessed (i.e.,
downloaded or run) by users over other service provider networks to the
requirements of section 716 and thus by extension cover them under
section 717. We seek comment on these proposals.
B. Recordkeeping
117. Beginning one year after the effective date of regulations
promulgated pursuant to section 716(e), each manufacturer and provider
subject to sections 255, 716, and 718 must maintain, in the ordinary
course of business and for a reasonable period, records of the efforts
taken by such manufacturer or provider to implement sections 255, 716,
and 718, including: (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. Section 717 also requires an officer of a manufacturer or
provider to submit to the Commission an annual certification that
records are being kept in accordance with this provision. Section 717
also states that ``[a]fter the filing of a formal or informal complaint
against a manufacturer or provider, the Commission may request, and
shall keep confidential, a copy of the records maintained by such
manufacturer or provider pursuant to [this section] that are directly
relevant to the equipment or service that is the subject of such
complaint.'' We seek comment on how to implement these statutory
requirements and solicit specific input below.
118. Some commenter urge the Commission to refrain from making the
recordkeeping requirements overly burdensome, unnecessarily expensive,
or repetitive of the information required by existing reports. Motorola
notes that it and some covered entities already publicly provide some
of the information required by Section 717, including information
regarding accessibility features, consultations with individuals with
disabilities, and compatibility with third party peripherals submitted
in existing Commission reports, such as those required for compliance
with our HAC rules. CEA also states that ``outreach to individuals with
disabilities either directly or indirectly through standards
development organizations'' should be sufficient to demonstrate a
company's compliance with Section 717's requirement to document efforts
to consult with individuals with disabilities. Additionally, CEA points
out that some of the required information may be reflected in
information provided to the clearinghouse that will be established
under the CVAA.
119. We note, however, that section 717 requires the Commission to
establish uniform recordkeeping and enforcement procedures for entities
subject to sections 255, 716, and 718. While some of these records that
section 717 requires to be kept and, potentially, produced may be
available publicly, in other reports or submissions made to the
Commission or Bureau, or in information submitted to a clearinghouse,
most of the information required by this section is not required in
existing Commission reports and it is not clear to what extent this
will be available in public information.
120. While we agree that we should avoid imposing excessive burdens
or requiring the same information multiple times, we also seek to
ensure that specific and relevant records required by the statute are
appropriately maintained by manufacturers and providers. In light of
the range of potential complaints that may be filed against covered
entities under the CVAA and section 255, we seek comment on how the
Commission should effectively implement section 717's recordkeeping
requirements without imposing excessive burden or expense on covered
entities or requiring multiple submissions of the same records to the
Commission.
121. Section 717 appears to give the Commission the discretion to
expand the recordkeeping requirements beyond the three categories
specifically set forth in subsection (a)(5)(A) to ``records of the
efforts taken by such manufacturer or provider to implement'' these
Sections. We seek comment on whether the Commission should require
covered entities to maintain and, potentially, produce records to
demonstrate their compliance with the provisions of section 255 and
similarly structured requirements in section 716. We also seek comment
on what constitutes a ``reasonable time period'' during which covered
entities will be required to maintain these records. Should we require
covered entities to create and maintain records showing their
compliance with the general obligation requirements as well as the
requirements of product design, development, and evaluation,
information pass through, and information, documentation, and training?
For example, should we
[[Page 13817]]
require covered entities to create and maintain records demonstrating
the process they have used to assess whether it is achievable to make
particular products and services accessible and usable by persons with
disabilities? What kinds of records would be sufficient to demonstrate
such compliance? We also seek comment on whether the Commission should
require these or any other types of records to demonstrate covered
entities' compliance with section 255.
122. Many comments on the recordkeeping requirement request that
the Commission adopt a flexible approach to section 717's recordkeeping
requirement that recognizes the differences in size and scope of
covered entities and their communications services or manufacturing
operations, instead of requiring a specific form of documentation.
Verizon recommends that the Alliance for Telecommunications Industry
Solutions (ATIS) or a similar organization develop a standard
recordkeeping form that could be used to satisfy this requirement.
While ATIS, on behalf of AISP.4-HAC, expresses a preference for
flexible recordkeeping requirements, ATIS also supports Verizon's
suggestion that industry and consumers should work together to develop
a mutually agreeable form in the event the Commission decides to adopt
a standardized approach. CTIA specifically requests that the Commission
allow records to be kept electronically. TIA suggests that the
Commission should ``provide some non-exclusive guidance concerning the
type of information that would be responsive to the statutory
recordkeeping criteria'' without precluding flexibility in the form in
which those records may be kept. We seek comment on these
recommendations.
123. We recognize that section 717 applies to a broad range of
entities that have widely ranging business models and modes of
operation. Therefore, consistent with some commenters' suggestions, we
propose that we should not mandate any one form in which records must
be kept in order to comply with section 717. We also propose that if a
record (that the Commission requires be produced after receipt of a
complaint) is not readily available, the covered entity must provide it
no later than the date of its response to the complaint. We seek
comment on these proposals and on whether there is any reason for the
Commission to mandate a standard form of recordkeeping to comply with
section 717(a)(5) or to require covered entities to submit publicly
available records or those the Commission already has in another report
or submission. While we cannot predict what the nature of consumers'
complaints will be or provide specific guidance as to what information
will be responsive to those complaints, we propose, as discussed more
fully below, to require each response to a filed complaint to
sufficiently describe how each record submitted is relevant to the
complaint and the alleged violation, and how the provided record
establishes the covered entity's compliance with the Act. Finally,
given that the statute provides that recordkeeping requirements do not
take effect until one year after the effective date of regulations
promulgated pursuant to section 716(e), we seek comment regarding
whether, and if so, in what fashion, the Commission should address this
transition period, particularly for the purposes of enforcement.
C. Enforcement
1. Background
124. Section 717 requires the Commission to adopt rules that
facilitate the filing of formal and informal complaints that allege a
violation of 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 this section, we seek
comment on specific procedures to implement these requirements and
propose rules to consolidate the existing enforcement provisions for
section 255 with the newly proposed enforcement rules for alleged
violations of sections 716 and 718.
a. Enforcement of Section 255
125. In the rules adopted in the Section 255 Report and Order, the
Commission provided form and content requirements for informal and
formal complaints alleging a violation of section 255, as well as
review and disposition procedures. In particular, the Commission
established specific elements to be included in any informal complaint
alleging a violation of section 255 of the Act as well as the form and
content for answers to such complaints. These rules provide that if the
Commission determines that an informal complaint has been satisfied
based on the defendant's answer, or from other communications with the
parties, the Commission may, at its discretion, consider the informal
complaint closed, without providing a response to the complainant or
defendant. Additionally, the Commission may close the informal
complaint if it determines that no further action is necessary based on
the complaint and answer, and will then duly inform the complainant and
the defendant of the reasons stated above. If, however, the Commission,
based on the pleadings, determines that a material and substantial
question remains as to a defendant's compliance with the section 255
requirements and the Commission's implementing rules, the Commission
may conduct further investigation or proceedings as necessary to
determine whether the defendant has violated any legal requirements, as
well as whether any remedial actions and/or sanctions are warranted. If
the Commission determines that a defendant has failed to comply with
section 255 and its implementing rules, the Commission can order such
remedial action or sanctions as are authorized by the Act and the rules
as it deems appropriate. Aside from its complaint procedures, the
Commission may, on its own motion, conduct inquiries and initiate
proceedings as necessary to enforce the relevant requirements.
b. Section 717 Enforcement Requirements
126. As discussed above, section 717 requires the Commission within
one year after the date of enactment of the CVAA to establish
regulations that facilitate the filing of formal and informal
complaints that allege a violation of section 255, 716, or 718, and to
establish procedures for enforcement actions.
127. Specifically, the CVAA requires the Commission to establish
separate and identifiable electronic, telephonic, and physical
receptacles for the receipt of complaints filed under section 255, 716
or 718 as well as establish a process for filing and receiving formal
or informal complaints. Further, the CVAA requires the Commission to
investigate the allegations in an informal complaint and, within 180
days after the date on which such complaint was filed with the
Commission, issue an order concluding the investigation and provide an
explanation for its conclusion, unless such complaint is resolved
before such time. If the Commission determines that a violation has
occurred, the Commission may, in the order or in a subsequent order,
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 requirements of those sections within a
reasonable time established by the Commission in its order. If a
determination is made that a violation has not occurred, the Commission
must provide the basis for
[[Page 13818]]
such determination. The statute also provides that before the
Commission makes a determination, the party that is the subject of the
complaint shall have a reasonable opportunity to respond to such
complaint, and may include in its response any factors that are
relevant to such determination. Before issuing a final order, the
Commission is required to provide the responding party a reasonable
opportunity to comment on any proposed remedial action.
2. General Requirements
128. Pre-Filing Notice. We seek comment on whether the Commission
should require potential complainants to first notify the defendant
manufacturer or provider that it intends to file a complaint based on
an alleged violation of one or more provisions of section 255, 716, or
718. We note that some parties have suggested that such a pre-filing
notice can potentially foster greater communication among parties.
While we agree that such a requirement could lead to a more efficient
resolution in advance of a complaint in some instances, we are also
concerned that in other cases, such a requirement could prove
burdensome to consumers and delay resolution of complaints. In the
Section 255 Report and Order, consistent with an Access Board
recommendation, we encouraged consumers to express their concerns
informally to the manufacturer or service provider before filing a
complaint with the Commission. We declined, however, to adopt a rule
requiring consumers to contact manufacturers and service providers
before they could file a complaint with the Commission, finding that
our informal complaint process is ``geared toward cooperative
efforts.'' We seek comment on whether such an approach is sufficient or
whether a specific requirement is necessary. To the extent that
commenters advocate that we require that consumers notify manufacturers
or providers before they file a complaint, we seek comment on specific
safeguards that we should adopt to ensure that this requirement does
not prove onerous to the consumers.
129. Receipt and Filing of Complaints. We seek comment on how the
Commission should establish separate and identifiable electronic,
telephonic, and physical receptacles for the receipt of complaints,
both formal and informal. We note that the Commission's Disability
Rights Office has already established a new phone number (202-418-
2517(V); (202-418-2922 (TTY) and e-mail address (dro@fcc.gov) for this
purpose. We also note that currently, informal complaints alleging a
violation of section 255 may be transmitted to the Commission via any
reasonable means, e.g., letter, facsimile transmission, telephone
(voice/TRS/TTY), Internet e-mail, audio-cassette recording, and
Braille. We propose to retain these vehicles as means for transmission
and receipt of informal complaints by the Commission under sections
255, 716 and 718 and ask commenters to consider whether additional
methods are necessary to meet this statutory requirement. Similarly, as
discussed more fully below, we seek comment on the extent to which we
should retain or revise our current requirements under section 255
governing formal complaints that are filed for alleged violations by
manufacturers and providers under sections 255, as well as sections 716
and 718, in the future. At present, these procedures are consistent
with Sec. Sec. 1.720-1.736 of the Commission's rules. If we make
changes to facilitate the filing of informal complaints, but continue
to apply our procedures for formal complaints largely in their current
form to the new ACS sections (as well as maintain these procedures for
section 255), will this be enough to fulfill Congress's intent to
facilitate the filing of complaints under these sections? We note that
since our rules implementing section 255 of the Act went into effect in
1999, the Commission has received only three formal complaints alleging
violations of that section.
130. Standing to File. We received comments requesting that the
Commission establish ``reasonable'' standing requirements. We note that
the CVAA allows ``any person alleging a violation'' of the CVAA or the
implementing rules to file a formal or informal complaint under section
255, 716, or 718. Given that there is no standing requirement under
these sections, and there is no standing requirement under either
section 208 of the Act and our existing complaint rules, we decline to
propose a standing requirement and believe the minimum content
requirements we propose infra in sections VI.C.3 and VI.C.4 will
effectively deter frivolous complaint filings.
131. Sua sponte actions by the Commission. As noted above, the
Commission's implementing rules for section 255 explicitly state that
the agency may, on its own motion, conduct inquiries and proceedings as
necessary to enforce the requirements of its implementing rules and
that section of the Act. We intend for the Commission and its staff to
continue to investigate and take action on our own motion when
compliance issues or problems involving sections 255, 716 and 718 come
to our attention through an accessibility-related complaint or
otherwise. Rather than establishing specific guidelines for initiating
investigations and other enforcement actions on the Commission's own
motion, we propose to continue to follow existing protocols, and use
procedures that in the opinion of the Commission best serve the
purposes of Commission- and staff-initiated inquiries and proceedings.
We seek comment on this approach.
132. Remedies and Sanctions. We seek comment on what remedies and
other sanctions the Commission should consider for violations found to
have occurred under section 255, 716 or 718. As a preliminary matter,
as noted above, we observe that section 717(a)(3)(B) specifically
authorizes the Commission to impose as a remedy for any violation an
order directing a manufacturer to bring the next generation of its
equipment or device, and a service provider to bring its service, into
compliance within a reasonable period of time. We also observe that
section 718(c) envisions that we will continue to use our existing
enforcement authority under section 503 of the Act, but specifically
adds that (subject to section 503(b)(5)) manufacturers and service
providers subject to the requirements of sections 255, 716, and 718 are
liable for forfeitures of up to $100,000 per violation or each day of a
continuing violation, with the maximum amount for a continuing
violation set at $1 million. We intend to use these statutorily
directed remedies and sanctions as well as other remedies and sanctions
authorized in the Act. We propose a change to section 1.80 of the
Commission's rules to reflect the modifications of section 718(c) to
the Act.
133. We seek comment on whether there are additional remedies that
the Commission should consider when a violation is determined to have
occurred. The Senate and House Reports make clear that we should not
consider remedies that require retrofitting of equipment, and
accordingly, we agree with CEA that we should not employ those remedies
for violations of these provisions. We also note that AFB suggests that
when a complaint is filed and a given product is not accessible, but
the company nevertheless offers an array of accessible options, ``the
Commission should require the company to demonstrate that it can offer
the complainant at least one other of its products that satisfies the
[CVAA's] requirements and that would provide the complainant at least
the same
[[Page 13819]]
features and level of functionality as the product that is the subject
of the complaint'' and at a comparable cost to the inaccessible
product. While we agree that this may be a potential defense, we
clarify that the issue of whether a subject entity satisfies its
accessibility obligations is a fact-specific determination that will be
decided in the context of a complaint proceeding based on the record.
More specifically, we believe our determination about what is
achievable must take into account all four factors enumerated under
section 716(g), not just the fourth factor that considers ``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.''
3. Informal Complaints
134. As described above, within one year after the date of
enactment of the CVAA, the Commission is required to establish
regulations that facilitate the filing of an informal complaint that
alleges a violation of section 255, 716 or 718, as well as establish
procedures for enforcement actions by the Commission for any
violations.
135. We note that commenters suggest that any enforcement
procedures should provide clarity regarding culpability, given that a
product or service may potentially involve several different entities
such as a device manufacturer, a broadband provider, or an application
developer. We acknowledge that it may be difficult for a consumer to
determine where the responsibility of one covered entity ends and
another begins. We seek comment on what additional procedures the
Commission might adopt to clarify which entity is ``culpable'' for
noncompliance and further ask to what extent the Commission should be
available to assist consumers in determining which entities are
appropriately targeted by specific complaints? We also seek comment on
what additional elements should be included in complaints that are
filed under these sections, beyond what is proposed below.
136. We propose the following minimum requirements that
complainants should include in their informal complaints, which are
consistent with section 255 requirements as well as existing
enforcement rules that have been adopted in other contexts.
Specifically, we propose to include the following in any informal
complaint: (1) The name, address, e-mail 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) 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), Internet e-mail, audio-cassette recording, Braille; or some other
method that will best accommodate the complainant's disability); and
(5) any other information that is required by the Commission's
accessibility complaint form. We seek comment on this proposal and
request parties to consider what additional or modified requirements
are necessary. Complaints that do not satisfy the pleading requirements
will be dismissed without prejudice to refile. (The CVAA requirement
for the Commission to issue an order concluding an investigation that
is triggered by informal complaint, within 180 days of the filing
complaint, will be tied to the Commission's receipt of complaint that
satisfies its pleading requirements.)
137. We also recognize that the CVAA's recordkeeping requirements
will allow the Commission to obtain records of the efforts taken by
manufacturers or providers to implement sections 255, 716, and 718 and
the Commission may use these records as necessary to determine whether
a covered entity has complied with its legal obligations. Additionally,
consistent with our rules implementing section 255 of the Act, we
propose to maintain our current rule that the Commission will promptly
forward any informal complaint meeting the appropriate filing
requirements to each defendant named or determined to be implicated by
the complaint. Also, consistent with our approach taken in our rules
implementing section 255 of the Act, we propose to require
manufacturers and service providers to establish points of contact for
complaints and inquiries under section 255, 716 or 718. We continue to
believe that this requirement will facilitate the ability of consumers
to contact manufacturers and service providers directly about
accessibility issues or concerns and ensure prompt and effective
service of complaints on defendant manufacturers and service providers
by Commission staff. We seek comment on this proposal.
138. As discussed above, the CVAA provides a party that is the
subject of a complaint a reasonable opportunity to respond to such a
complaint. Consistent with this requirement, we propose that answers to
informal complaints must: (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 names, titles, and
responsibilities of each decisionmaker in the evaluation process; (6)
set forth the manufacturer's basis for determining that it was not
achievable to make the product or service accessible and usable; (7)
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; (8) include a certification by an
officer of the manufacturer or service provider that it was not
achievable to make the product or service accessible and usable; (9)
set forth any claimed defenses; (10) set forth any remedial actions
already taken or proposed alternative relief without any prejudice to
any denials or defenses raised; (11) provide any other information or
materials specified by the Commission as relevant to its consideration
of the complaint; and (12) 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 seek comment on
this proposal. We further propose that within ten (10) days after
service of an answer, unless otherwise directed by the Commission, the
complainant may file and serve a reply, which shall be responsive to
matters contained in the answer and shall not contain new matters. We
seek comment on this proposal as well. Given the statutory requirement
for the Commission to issue an order concluding an investigation of an
[[Page 13820]]
informal complaint within 180 days of the filing of the complaint, are
there other pleading requirements we should impose, and, if so, what
should these be?
139. As noted above, the CVAA requires the Commission to issue an
order that finds whether a violation has occurred within the time
limits required by the Act, and to provide an explanation for its
conclusion. Also, as we have noted, the statute provides that if the
Commission determines that a violation has occurred, the Commission may
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 requirements of those sections within a
reasonable time established by the Commission in its order. In
addition, as also previously mentioned, before issuing a final order,
the Commission is required to provide the responding party a reasonable
opportunity to comment on any proposed remedial action. We would
further note that the CVAA authorizes the Commission to direct
manufacturers and service providers of ACS to bring their equipment and
services into compliance either in the order concluding an
investigation based on an informal complaint or ``in a subsequent
order.'' Recognizing the importance of the rapid implementation of
remedies to achieving the CVAA's broader goals, however, we will
endeavor to issue a determination regarding remedies within 180 days
after an informal complaint is filed, or shortly thereafter in a
subsequent order, whenever feasible. (The Commission must, however,
conclude the investigation and include a determination whether any
violation occurred within 180 days.) We seek comment on this approach.
140. We recognize that the Commission must exercise any remedial
authority selectively and carefully, based on legislative history,
particularly for consumer and wireless devices, clarifying that ``the
Commission shall provide [service providers and manufacturers] a
reasonable time to bring the service or equipment at issue into
compliance * * * [and should not] require retrofitting of such
equipment that is already in the market.'' We seek comment on what we
should consider a reasonable time in which to bring inaccessible
devices or services into compliance and how best to impose compliance
in this context consistent with our proposals for remedies and
sanctions discussed above. We also seek input on what constitutes
``reasonable opportunity'' to comment on any proposed remedial action.
4. Formal Complaints
141. Applicability of sections 1.720-1.736. In addition to allowing
aggrieved parties an opportunity to file informal complaints, section
717 states that such parties may use our more formal adjudicative
procedures to pursue accessibility claims against manufacturers or
service providers under sections 255, 716 and 718. This section further
directs the Commission to establish regulations that facilitate the
filing of such formal claims. To date, section 255 claims have been
subject to the procedures laid out in Sec. Sec. 1.720-1.736 of the
Commission's rules. Under these rules, both complainants and defendants
are required 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. Additionally, the rules include additional procedural
and pleading requirements designed to expedite resolution of any formal
complaint. We propose to require aggrieved parties to follow our
existing formal complaint procedures, as modified in our proposed
rules. These modifications include deleting references to provisions
that are not relevant to consumer-filed complaints in the accessibility
context (e.g., provisions relating to complaints filed under section
271 of the Act), as well as to ``rocket docket'' procedures. Because
the CVAA requires the Commission to address informal complaints within
180 days of filing, and because our accelerated docket procedures were
designed to adjudicate disputes between carriers that satisfy certain
criteria, we are inclined not to extend these procedures to formal
complaints in the accessibility context. We seek comment on whether we
should consider additional modifications to these rules in order to
facilitate the filing of such formal complaints.
142. Additionally, we propose not to require parties to obtain
Commission approval in order to file a formal complaint; we also
propose not to require parties to invoke our informal complaint
processes as a prerequisite to filing a formal complaint. No such
requirements exist in the statute or our formal complaint rules and we
find no basis in the existing record to conclude that such requirements
are needed for complaints filed under section 255, 716 or 718. We seek
comment on this proposal and ask parties to describe whether there are
any circumstances that warrant such requirements.
VII. Section 718 Internet Browsers Built Into Telephones Used With
Public Mobile Services
143. We seek further comment on the upcoming obligations imposed by
section 718 which generally provides that ``[i]f a manufacturer of a
telephone used with public mobile services * * * includes an Internet
browser in such telephone, or if a provider of mobile service arranges
for the inclusion of a browser in telephones to sell to customers, the
manufacturer or provider shall ensure that the functions of the
included browser (including the ability to launch the browser) are
accessible to and usable by individuals who are blind or have a visual
impairment, unless doing so is not achievable.''
144. While section 718's requirements will not take effect for
three years, we agree with ACB that the accessibility of mobile Web
access technologies is critical and seek comment on the best way(s) to
implement section 718, so as to afford affected manufacturers and
service providers an opportunity to provide input at the outset, as
well as to make the necessary arrangements to achieve compliance by the
time the provisions go into effect. We would particularly welcome input
on how the Commission can best inform and assist covered entities on
the means by which they can meet their obligation to provide access to
Internet browsers in mobile phones. Specifically, we seek comment on
Verizon's proposal that we ``encourage industry forums and working
groups to develop accessibility standards for mobile browsers'' because
a ``cooperative effort'' will be needed to ensure compliance. To what
extent should the Commission help to facilitate this discussion, for
example through an advisory committee or a working group that is part
of the Commission's Consumer Advisory Committee? We also seek comment
on Code Factory's recommendation that manufacturers and operating
system developers develop an accessibility API to foster the
incorporation of screen readers into mobile platforms across different
phones which would render the Web browser and other mobile phone
functions accessible to individuals who are blind or visually impaired.
[[Page 13821]]
VIII. Procedural Matters
Comment Period and Procedures
145. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments may be filed using: (1) The Commission's
Electronic Comment Filing system (ECFS), (2) the Federal Government's
eRulemaking Portal, or (3) by filing paper copies. See Electronic
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Comments shall be sent
as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. In completing the transmittal screen, commenters should
include their full name, Postal Service mailing address, and the
applicable docket number. Parties may also submit an electronic comment
by Internet e-mail. To get filing instructions for e-mail comments,
commenters should send an e-mail to ecfs@fcc.gov, and include the
following words in the body of the message, ``get form.'' A sample form
and directions will be sent in response.
Paper filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission. The Commission's contractor will receive
hand-delivered or messenger-delivered paper filings for the
Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. The filing hours at this location are 8 a.m. to 7
pm All hand deliveries must be held together with rubber bands or
fasteners. Any envelopes must be disposed of before entering the
building. Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class,
Express, and Priority mail must be addressed to 445 12th Street, SW.,
Washington, DC 20554.
People with Disabilities: To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an e-mail to fcc504@fcc.gov or
call the Consumer & Governmental Affairs Bureau at 202-418-0530
(voice), 202-418-0432 (tty).
Availability of Documents: The public may view the
documents filed in this proceeding during regular business hours in the
FCC Reference Information Center, Federal Communications Commission,
445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the
Commission's Internet Home Page: http://www.fcc.gov. Copies of comments
and reply comments are also available through the Commission's
duplicating contractor: Best Copy and Printing, Inc., 445 12th Street,
SW., Room CY-B402, Washington, DC 20554, 1-800-378-3160.
Initial Regulatory Flexibility Analysis
146. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA''), the Commission has prepared this present Initial
Regulatory Flexibility Analysis (``IRFA'') of the possible significant
economic impact on a substantial number of small entities that might
result from adoption of the rules proposed in the Notice of Proposed
Rulemaking (``NPRM''). Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the applicable deadlines for initial comments, or reply
comments, as specified in the NPRM. The Commission will send a copy of
the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration (``SBA''). In addition, the NPRM and this
IRFA (or summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
147. The purpose of these proposed rules is to implement Congress'
mandate that people with disabilities have access to advanced
communications services and equipment. Specifically, these rules are
proposed to 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''). Given
the fundamental role that advanced communications services have come to
play in today's world, the Commission believes that the CVAA represents
the most significant governmental action for people with disabilities
since the passage of the Americans with Disabilities Act of 1990
(``ADA''). The inability to access communications equipment and
services can be life-threatening in emergency situations, can severely
limit educational and employment opportunities, and can otherwise
interfere with full participation in business, family, social, and
other activities. Many of these proposals build on our rules
implementing section 255 of the Communications Act, which was added by
the Telecommunications Act of 1996 and provides for the accessibility
of telecommunications services and equipment.
148. The NPRM makes proposals to implement the requirements of
section 716, which requires that providers of advanced communications
services and manufacturers of equipment used for such services make
their products accessible to people with disabilities, unless it is not
achievable to do so. It also proposes rules relating to section 717,
which requires the Commission to establish new recordkeeping and
enforcement procedures for manufacturers and providers subject to
section 716 and section 255.
149. The Commission proposes that manufacturers and service
providers 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.
The Commission also proposes that if it is not achievable for
manufacturers and service providers to make their products accessible
to people with disabilities, then they must make their products
compatible with specialized devices commonly used by people with
disabilities.
150. Furthermore, the Commission proposes that manufacturers and
service providers 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 Commission proposes to
incorporate into its
[[Page 13822]]
performance objectives the outcome-oriented definitions of
``accessible,'' ``compatibility,'' and ``usable'' contained in its
rules regarding the accessibility of telecommunications services and
equipment. It seeks comment on whether it should adopt more specific
performance objectives and the procedures and timelines that it should
use to develop these objectives.
151. The Commission also proposes to issue prospective guidelines
concerning the new accessibility requirements. In addition, the
Commission seeks comment on its proposal not to adopt any technical
standards as safe harbors at this time.
152. The Commission proposes that the accessibility requirements
generally should apply to a wide range of manufacturers and service
providers, including applications developers and providers of
applications or services downloaded and run by users over service
providers' networks. It proposes, however, to consider exemptions for
small entities and, if one or more such exemptions is adopted, further
proposes to consider various criteria in setting standards for such
exemptions. The Commission also proposes to consider waivers, both
individual and blanket, for offerings which are designed for multiple
purposes but are designed primarily for purposes other than using
advanced communications services.
153. The Commission proposes to define ``achievable'' to mean
``with reasonable effort and expense.'' In making determination about
what is achievable under section 716, the Commission proposes to
consider the following four factors and give them equal weight:
``The nature and cost of the steps needed to meet the
requirements of this section 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 * * *; ''
``The type of operations of the manufacturer or
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.''
154. The Commission proposes procedures to facilitate the filing of
complaints and proposes a 180-day deadline to issue an order resolving
informal complaints concerning the accessibility of products. In
addition, the Commission proposes that manufacturers and providers
subject to section 716 and section 255 maintain records of the (1)
efforts to consult with people with disabilities; (2) accessibility
features of their products; and (3) compatibility of their products
with specialized devices.
155. Moreover, in light of the range of potential complaints that
may be filed against covered entities (including small entities) under
the CVAA and section 255, the NPRM seeks comment on how we should
effectively implement section 717's recordkeeping requirements without
imposing excessive burden or expense on covered entities or requiring
multiple submissions of the same records to the Commission. The NPRM
seeks input on what constitutes a ``reasonable time period'' during
which covered entities will be required to maintain these records.
156. The NPRM also recognizes the variety of business models and
operations of entities covered under its proposed rules and, therefore,
proposes that the Commission not mandate any one form in which records
must be kept in order to comply with section 717. The NPRM, however,
seeks comment on whether there is any reason for the Commission to
mandate a standard form of recordkeeping to comply with section
717(a)(5) or to require covered entities to submit publicly available
records or to re-submit records that the Commission already has
received through a separate submission. Finally, given that the statute
provides that these mandatory recordkeeping requirements do not take
effect until one year after the effective date of regulations
promulgated by the Commission pursuant to section 716(e), the NPRM
seeks input regarding whether, and if so, in what fashion, the
Commission should address this transition period, particularly for the
purposes of enforcement.
B. Legal Basis
157. The legal basis for any action that may be taken pursuant to
the NPRM is contained in sections 1-4, 255, 303(r), 403, 503, 716, 717,
718 of the Communications Act of 1934, as Amended, 47 U.S.C. 151-154,
255, 303(r), 403, 503, 617, 618, 619.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules May Apply
158. The RFA directs agencies to provide a description of, and
where feasible, an estimate of the number of small entities that face
possible 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.
159. To assist the Commission in analyzing the total number of
small entities potentially affected by the rules proposed in the NPRM,
we ask commenters to estimate the number of small entities that may be
affected by those rules. To assist in assessing the nature and number
of small entities that face possible significant economic impact by
adoption of our proposed rules, we seek comment on the industry
categories below and our estimates of the entities in each category
that can, under relevant SBA standards or standards previously approved
by the SBA for small businesses, be classified as small. Where a
commenter proposes an exemption from the requirements of section 716,
we also seek estimates from that commenter on the number of small
entities in each category that would be exempted from compliance with
section 716 under the proposed exemption, the percentage of market
share for the service or product that would be exempted, and the
economic impact, if any, on those entities that are not covered by the
proposed exemption. While the NPRM and this IRFA seek comment on
whether and how the Commission should exempt small entities from the
requirements of section 716 for the purposes of building a record on
that issue, we will assume, for the narrow purpose of including a
thorough regulatory impact analysis in this IRFA, that no such
exemptions will be provided.
160. We divide the remainder of this section into three parts. In
the first two, we identify those equipment manufacturers and those
service providers that will be subject to our proposed rules and the
industry categories within which they are classified. Within each
category where possible, we estimate the total number of establishments
or firms and the number of small entities (or the percentage) among
them that face possible significant economic impact under the rules
proposed in the NPRM. Where possible, we provide Census data on the
number of ``firms'' in a given industrial category but, where that data
is not available, we provide data on the number of ``establishments.''
The number of ``establishments'' is a less
[[Page 13823]]
helpful indicator of the number of businesses in a given category than
the number of ``firms,'' because the latter term takes into account the
concept of common ownership or control. Each single physical location
counts as an ``establishment,'' even though several ``establishments''
may be owned or controlled by one ``firm.'' Thus, the data given in a
category for ``establishments'' may reflect an inflated number of
businesses in that category, including an inflated number of small
businesses. In the third part, we identify additional industry
categories in which small entities face possible significant economic
impact by the adoption of those proposed rules. In the third part, as
in the first two parts, we estimate, where possible, the number of
establishments or firms and the number of small entities (or the
percentages) that would face such possible impact by adoption of our
proposed rules.
161. Small Businesses. Nationwide, there are a total of
approximately 29.6 million small businesses, according to the SBA.
1. Equipment Manufacturers
a. Manufacturers of Equipment To Provide VoIP
162. Entities manufacturing equipment used to provide
interconnected Voice Over Internet Protocol (``VoIP''), non-
interconnected VoIP, or both are generally found in one of two Census
Bureau categories, ``Electronic Computer Manufacturing'' or ``Telephone
Apparatus Manufacturing.'' While we recognize, as noted in the NPRM,
that the manufacturers of equipment used to provide interconnected VoIP
will continue to be regulated under section 255 rather than under
section 716, we include here an analysis of the possible significant
economic impact of our proposed rules on manufacturers of equipment
used to provide both interconnected and non-interconnected VoIP because
it was not possible to separate available data on these two
manufacturing categories for VoIP equipment. In light of this
situation, our estimates below are in all likelihood overstating the
number of small entities that manufacture equipment used to provide
interconnected VoIP and which are subject to our proposed section 716
rules. However, in the absence of more accurate data, we present these
figures to provide as thorough an analysis of the impact on small
entities as we can at this time, with the understanding that we will
modify our analysis as more accurate data becomes available in this
proceeding.
163. Electronic Computer Manufacturing. The Census Bureau defines
this category to include ``* * * establishments primarily engaged in
manufacturing and/or assembling electronic computers, such as
mainframes, personal computers, workstations, laptops, and computer
servers. Computers can be analog, digital, or hybrid * * * The
manufacture of computers includes the assembly or integration of
processors, coprocessors, memory, storage, and input/output devices
into a user-programmable final product.''
164. In this category, the SBA has deemed an electronic computer
manufacturing business to be small if it has fewer than 1,000
employees. For this category of manufacturers, Census data for 2007,
which supersede similar data from the 2002 Census, show that there were
421 such establishments that operated that year. Of those 421
establishments, 384 (approximately 91%) had fewer than 100 employees
and only 37 had 100 employees or more, thus, while we cannot provide a
more precise estimate, it is clear that a great majority of these
establishments would be deemed small under the applicable SBA size
standard. Accordingly, the majority of establishments in this category
can be considered small under that standard. On this basis, we estimate
that approximately 91% or more of the manufacturers of equipment used
to provide VoIP in this category are small and, thus, face possible
significant economic impact from adoption of the rules proposed in the
NPRM.
165. Telephone Apparatus Manufacturing. The Census Bureau defines
this category to comprise ``* * * establishments primarily engaged in
manufacturing wire telephone and data communications equipment. These
products may be standalone or board-level components of a larger
system. Examples of products made by these establishments are central
office switching equipment, cordless telephones (except cellular), PBX
equipment, telephones, telephone answering machines, LAN modems, multi-
user modems, and other data communications equipment, such as bridges,
routers, and gateways.''
166. In this category, the SBA has deemed a telephone apparatus
manufacturing business to be small if it has fewer than 1,000
employees. For this category of manufacturers, Census data for 2007,
which supersede similar data from the 2002 Census, show that there were
398 such establishments that operated that year. Of those 398
establishments, 393 (approximately 99%) had fewer than 1,000 employees
and, thus, would be deemed small under the applicable SBA size
standard. Accordingly, the majority of establishments in this category
can be considered small under that standard. On this basis, the
Commission continues to estimate that approximately 99% or more of the
manufacturers of equipment used to provide VoIP in this category are
small and, thus, face possible significant economic impact from
adoption of the rules proposed in the NPRM.
b. Manufacturers of Equipment To Provide Electronic Messaging
167. Entities that manufacture equipment (other than software) used
to provide electronic messaging services are generally found in one of
three Census Bureau categories: ``Radio and Television Broadcasting and
Wireless Communications Equipment Manufacturing,'' ``Electronic
Computer Manufacturing,'' or ``Telephone Apparatus Manufacturing.''
168. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: ``transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.''
169. In this category, the SBA has deemed a business manufacturing
radio and television broadcasting equipment, wireless communications
equipment, or both, to be small if it has fewer than 750 employees. For
this category of manufacturers, Census data for 2007, which supersede
similar data from the 2002 Census, show that there were 398 such
establishments that operated that year. Of those 398 establishments,
393 (approximately 99%) had fewer than 1,000 employees and 912
(approximately 97%) had fewer than 500 employees. Between these two
figures, the Commission estimates that about 915 establishments
(approximately 97%) had fewer than 750 employees and, thus, would be
considered small under the applicable SBA size standard. Accordingly,
the majority of establishments in this category can be considered small
under that standard. On this basis, Commission estimates that
approximately 97% or more of the
[[Page 13824]]
manufacturers of equipment used to provide electronic messaging
services in this category are small and, thus, face possible
significant economic impact from adoption of the rules proposed in the
NPRM.
170. Electronic Computer Manufacturing. The Census Bureau defines
this category, as noted above, to include ``* * * establishments
primarily engaged in manufacturing and/or assembling electronic
computers, such as mainframes, personal computers, workstations,
laptops, and computer servers. Computers can be analog, digital, or
hybrid * * * The manufacture of computers includes the assembly or
integration of processors, coprocessors, memory, storage, and input/
output devices into a user-programmable final product.''
171. In this category, as noted above, the SBA has deemed an
electronic computer manufacturing business to be small if it has fewer
than 1,000 employees. For this category of manufacturers, Census data
for 2007, which supersede similar data from the 2002 Census, show that
there were 421 such establishments that operated that year. Of those
421 establishments, 384 (approximately 91%) had fewer than 100
employees and 37 had 100 employees or more, thus, while we cannot
provide a more precise estimate, it is clear that a great majority of
these establishments would be deemed small under the applicable SBA
size standard. Accordingly, the majority of establishments in this
category can be considered small under that standard. On this basis, we
estimate that approximately 91% or more of the manufacturers of
equipment used to provide electronic messaging services in this
category are small and, thus, face possible significant economic impact
from adoption of the rules proposed in the NPRM.
172. Telephone Apparatus Manufacturing. The Census Bureau, as noted
above, defines this category to comprise ``* * * establishments
primarily engaged in manufacturing wire telephone and data
communications equipment. These products may be standalone or board-
level components of a larger system. Examples of products made by these
establishments are central office switching equipment, cordless
telephones (except cellular), PBX equipment, telephones, telephone
answering machines, LAN modems, multi-user modems, and other data
communications equipment, such as bridges, routers, and gateways.''
173. In this category, as noted above, the SBA has deemed a
telephone apparatus manufacturing business to be small if it has fewer
than 1,000 employees. For this category of manufacturers, Census data
for 2007, which supersede similar data from the 2002 Census, show that
there were 398 such establishments that operated that year. Of those
398 establishments, 393 (approximately 99%) had fewer than 1,000
employees and, thus, would be deemed small under the applicable SBA
size standard. Accordingly, the majority of establishments in this
category can be considered small under that standard. On this basis,
the Commission estimates that approximately 99% or more of the
manufacturers of equipment used to provide electronic messaging
services in this category are small and, thus, face possible
significant economic impact from adoption of the rules proposed in the
NPRM.
c. Manufacturers of Equipment To Provide Interoperable Video
Conferencing Services
174. Entities that manufacture equipment used to provide
interoperable and other video conferencing services are generally found
in the Census Bureau category: ``Other Communications Equipment
Manufacturing.'' The Census Bureau defines this category to include:
``* * * establishments primarily engaged in manufacturing
communications equipment (except telephone apparatus, and radio and
television broadcast, and wireless communications equipment).''
175. Other Communications Equipment Manufacturing. In this
category, the SBA has deemed a business manufacturing other
communications equipment to be small if it has fewer than 750
employees. For this category of manufacturers, Census data for 2007,
which supersede similar data from the 2002 Census, show that there were
452 such establishments that operated that year. Of those 452
establishments, all 452 (100%) had fewer than 1,000 employees and 448
of those 452 (approximately 99%) had fewer than 500 employees. Between
these two figures, the Commission estimates that about 450
establishments (approximately 99.6%) had fewer than 750 employees and,
thus, would be considered small under the applicable SBA size standard.
Accordingly, the majority of establishments in this category can be
considered small under that standard. On this basis, Commission
estimates that approximately 99.6% or more of the manufacturers of
equipment used to provide interoperable and other video conferencing
services are small and, thus, face possible significant economic impact
from adoption of the rules proposed in the NPRM.
d. Manufacturers of Software
176. Entities that publish software used to provide interconnected
VoIP, non-interconnected VoIP, electronic messaging services, or
interoperable video conferencing services are found in the Census
Bureau category ``Software Publishers.''
177. Software Publishers. The Census Bureau defines this category
to include ``* * * establishments primarily engaged in computer
software publishing or publishing and reproduction. Establishments in
this industry carry out operations necessary for producing and
distributing computer software, such as designing, providing
documentation, assisting in installation, and providing support
services to software purchasers. These establishments may design,
develop, and publish, or publish only.''
178. In this category, the SBA has deemed a publisher of software
(or manufacturer of software under the CVAA) to be small if it has $25
million or less in average annual receipts. For this category of
manufacturers, Census data for 2007, which supersede similar data from
the 2002 Census, show that there were 5,313 such firms that operated
that year. Of those 5,313 firms, 4,956 (approximately 93%) had $25
million or less in average annual receipts and, thus, would be deemed
small under the applicable SBA size standard. Accordingly, the majority
of establishments in this category can be considered small under that
standard. On this basis, Commission estimates that approximately 93% or
more of the manufacturers of software used to provide interconnected
VoIP, non-interconnected VoIP, electronic messaging services, and
interoperable video conferencing services in this category are small
and, thus, face possible significant economic impact from adoption of
the rules proposed in the NPRM.
2. Service Providers
a. Providers of VoIP
179. Entities that provide interconnected or non-interconnected
VoIP or both are generally found in one of two Census Bureau
categories, ``Wired Telecommunications Carriers'' or ``All Other
Telecommunications.''
180. Wired Telecommunications Carriers. The Census Bureau defines
this category as follows: ``This industry comprises establishments
primarily engaged in operating and/or providing access to transmission
facilities and
[[Page 13825]]
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services; wired (cable) audio and video programming
distribution; and wired broadband Internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.''
181. In this category, the SBA has deemed a wired
telecommunications carrier to be small if it has fewer than 1,500
employees. For this category of carriers, Census data for 2007, which
supersede similar data from the 2002 Census, shows 3,188 firms in this
category. Of these 3,188 firms, only 44 (approximately 1%) had 1,000 or
more employees. While we could not find precise Census data on the
number of firms in the group with fewer than 1,500 employees, it is
clear that at least the 3,188 firms with fewer than 1,000 employees
would be in that group. Thus, at least 3,144 of these 3,188 firms
(approximately 99%) had fewer than 1,500 employees. Accordingly, the
Commission estimates that at least 3,144 (approximately 99%) had fewer
than 1,500 employees and thus, would be considered small under the
applicable SBA size standard. On this basis, the Commission estimates
that approximately 99% or more of the providers of interconnected VoIP,
non-interconnected VoIP, or both in this category are small and, thus,
face possible significant economic impact from adoption of the rules
proposed in the NPRM. Our estimates of the number of providers on non-
interconnected VoIP (and the number of small entities within that
group) are in all likelihood overstated because we could not draw in
the data a distinction between such providers and those who provide
interconnected VoIP. However, in the absence of more accurate data, we
present these figures to provide as thorough an analysis of the impact
on small entities as we can at this time, with the understanding that
we will modify our analysis as more accurate data becomes available in
this proceeding.
182. All Other Telecommunications. Under the 2007 U.S. Census
definition of firms included in the category ``All Other
Telecommunications (NAICS Code 517919)'' comprises ``establishments
primarily engaged in providing specialized telecommunications services,
such as satellite tracking, communications telemetry, and radar station
operation. This industry also includes establishments primarily engaged
in providing satellite terminal stations and associated facilities
connected with one or more terrestrial systems and capable of
transmitting telecommunications to, and receiving telecommunications
from, satellite systems. Establishments providing Internet services or
voice over Internet protocol (VoIP) services via client-supplied
telecommunications connections are also included in this industry.''
183. In this category, the SBA has deemed a provider of ``all other
telecommunications'' services to be small if it has $25 million or less
in average annual receipts. For this category of service providers,
Census data for 2007, which supersede similar data from the 2002
Census, show that there were 2,383 such firms that operated that year.
Of those 2,383 firms, 2,346 (approximately 98%) had $25 million or less
in average annual receipts and, thus, would be deemed small under the
applicable SBA size standard. Accordingly, the majority of
establishments in this category can be considered small under that
standard. On this basis, Commission estimates that approximately 98% or
more of the providers of interconnected VoIP, non-interconnected VoIP,
or both in this category are small and, thus, face possible significant
economic impact from adoption of the rules proposed in the NPRM. As
stated above, our estimates of the number of providers of non-
interconnected VoIP (and the number of small entities within that
group) are in all likelihood overstated because we could not draw in
the data a distinction between such providers and those who provide
interconnected VoIP. However, in the absence of more accurate data, we
present these figures to provide as thorough an analysis of the impact
on small entities as we can at this time, with the understanding that
we will modify our analysis as more accurate data becomes available in
this proceeding.
b. Providers of Electronic Messaging Services
184. Entities that provide electronic messaging services are
generally found in one of the following Census Bureau categories,
``Wireless Telecommunications Carriers (except Satellites),'' ``Wired
Telecommunications,'' or ``Internet Publishing and Broadcasting and Web
Search Portals.''
185. Wireless Telecommunications Carriers (except Satellites). The
Census Bureau defines this category to include ``* * * establishments
engaged in operating and maintaining switching and transmission
facilities to provide communications via the airwaves. Establishments
in this industry have spectrum licenses and provide services using that
spectrum, such as cellular phone services, paging services, wireless
Internet access, and wireless video services.''
186. In this category, the SBA has deemed a wireless
telecommunications carrier to be small if it has fewer than 1,500
employees. For this category of carriers, Census data for 2007, which
supersede similar data from the 2002 Census, shows 1,383 firms in this
category. Of these 1,383 firms, only 15 (approximately 1%) had 1,000 or
more employees. While there is no precise Census data on the number of
firms in the group with fewer than 1,500 employees, it is clear that at
least the 1,368 firms with fewer than 1,000 employees would be found in
that group. Thus, at least 1,368 of these 1,383 firms (approximately
99%) had fewer than 1,500 employees. Accordingly, the Commission
estimates that at least 1,368 (approximately 99%) had fewer than 1,500
employees and, thus, would be considered small under the applicable SBA
size standard. On this basis, Commission estimates that approximately
99% or more of the providers of electronic messaging services in this
category are small and, thus, face possible significant economic impact
from adoption of the rules proposed in the NPRM.
187. Wired Telecommunications Carriers. For the 2007 U.S. Census
definition of firms included in the category, ``Wired
Telecommunications Carriers (NAICS Code 517110),'' see paragraph 35
above.
188. In this category, the SBA has deemed a wired
telecommunications carrier to be small if it has fewer than 1,500
employees. For this category of carriers, Census data for 2007, which
supersede similar data from the 2002 Census, shows 3,188 firms in this
category. Of these 3,188 firms, only 44 (approximately 1%) had 1,000 or
more employees. While we could not find precise Census data on the
number of firms in the group with fewer than 1,500 employees, it is
clear that at least the 3,188 firms with fewer than 1,000 employees
would be in that group. Thus, at least 3,144 of these 3,188 firms
(approximately 99%) had fewer than 1,500 employees. Accordingly, the
[[Page 13826]]
Commission estimates that of these 3,188 at least 3,144 (approximately
99%) had fewer than 1,500 employees and, thus, would be considered
small under the applicable SBA size standard. On this basis, the
Commission estimates that approximately 99% or more of the providers of
electronic messaging services in this category are small and, thus,
face possible significant economic impact from adoption of the rules
proposed in the NPRM.
189. Internet Publishing and Broadcasting and Web Search Portals.
The Census Bureau defines this category to include ``* * *
establishments primarily engaged in 1) publishing and/or broadcasting
content on the Internet exclusively or 2) operating Web sites that use
a search engine to generate and maintain extensive databases of
Internet addresses and content in an easily searchable format (and
known as Web search portals). The publishing and broadcasting
establishments in this industry do not provide traditional (non-
Internet) versions of the content that they publish or broadcast. They
provide textual, audio, and/or video content of general or specific
interest on the Internet exclusively. Establishments known as Web
search portals often provide additional Internet services, such as e-
mail, connections to other Web sites, auctions, news, and other limited
content, and serve as a home base for Internet users.''
190. In this category, the SBA has deemed an Internet publisher or
Internet broadcaster or the provider of a Web search portal on the
Internet to be small if it has fewer than 500 employees. For this
category of manufacturers, Census data for 2007, which supersede
similar data from the 2002 Census, show that there were 2,705 such
firms that operated that year. Of those 2,705 firms, 2,682
(approximately 99%) had fewer than 500 employees and, thus, would be
deemed small under the applicable SBA size standard. Accordingly, the
majority of establishments in this category can be considered small
under that standard. On this basis, Commission estimates that
approximately 99% or more of the providers of electronic messaging
services in this category are small and, thus, face possible
significant economic impact from adoption of the rules proposed in the
NPRM.
c. Providers of Interoperable Video Conferencing Services
191. Entities that provide interoperable video conferencing
services are found in the Census Bureau Category ``All Other
Telecommunications.''
192. All Other Telecommunications. For the 2007 U.S. Census
definition of firms included in the category ``All Other
Telecommunications (NAICS Code 517919),'' see paragraph 37 above.
193. In this category, the SBA has deemed a provider of ``all other
telecommunications'' services to be small if it has $25 million or less
in average annual receipts. For this category of service providers,
Census data for 2007, which supersede similar data from the 2002
Census, show that there were 2,383 such firms that operated that year.
Of those 2,383 firms, 2,346 (approximately 98%) had $25 million or less
in average annual receipts and, thus, would be deemed small under the
applicable SBA size standard. Accordingly, the majority of
establishments in this category can be considered small under that
standard. On this basis, Commission estimates that approximately 98% or
more of the providers of interoperable video conferencing services are
small and, thus, face possible significant economic impact from
adoption of the rules proposed in the NPRM.
3. Additional Industry Categories
a. Certain Wireless Carriers and Service Providers
194. Cellular Licensees. The SBA has developed a small business
size standard for small businesses in the category ``Wireless
Telecommunications Carriers (except satellite).'' Under that SBA
category, a business is small if it has 1,500 or fewer employees. The
census category of ``Cellular and Other Wireless Telecommunications''
is no longer used and has been superseded by the larger category
``Wireless Telecommunications Carriers (except satellite).'' The Census
Bureau defines this larger category to include ``* * * establishments
engaged in operating and maintaining switching and transmission
facilities to provide communications via the airwaves. Establishments
in this industry have spectrum licenses and provide services using that
spectrum, such as cellular phone services, paging services, wireless
Internet access, and wireless video services.''
195. In this category, the SBA has deemed a wireless
telecommunications carrier to be small if it has fewer than 1,500
employees. For this category of carriers, Census data for 2007, which
supersede similar data from the 2002 Census, shows 1,383 firms in this
category. Of these 1,383 firms, only 15 (approximately 1%) had 1,000 or
more employees. While there is no precise Census data on the number of
firms in the group with fewer than 1,500 employees, it is clear that at
least the 1,368 firms with fewer than 1,000 employees would be found in
that group. Thus, at least 1,368 of these 1,383 firms (approximately
99%) had fewer than 1,500 employees. Accordingly, the Commission
estimates that at least 1,368 (approximately 99%) had fewer than 1,500
employees and, thus, would be considered small under the applicable SBA
size standard. On this basis, Commission estimates that approximately
99% or more of the providers of electronic messaging services in this
category are small and, thus, face possible significant economic impact
from adoption of the rules proposed in the NPRM.
196. Specialized Mobile Radio. The Commission awards ``small
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR)
geographic area licenses in the 800 MHz and 900 MHz bands to firms that
had revenues of no more than $15 million in each of the three previous
calendar years. The Commission awards ``very small entity'' bidding
credits to firms that had revenues of no more than $3 million in each
of the three previous calendar years. The SBA has approved these small
business size standards for the 900 MHz Service. The Commission has
held auctions for geographic area licenses in the 800 MHz and 900 MHz
bands. The 900 MHz SMR auction began on December 5, 1995, and closed on
April 15, 1996. Sixty bidders claiming that they qualified as small
businesses under the $15 million size standard won 263 geographic area
licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper
200 channels began on October 28, 1997, and was completed on December
8, 1997. Ten bidders claiming that they qualified as small businesses
under the $15 million size standard won 38 geographic area licenses for
the upper 200 channels in the 800 MHz SMR band. A second auction for
the 800 MHz band was held on January 10, 2002 and closed on January 17,
2002 and included 23 licenses. One bidder claiming small business
status won five licenses.
197. The auction of the 1,053 800 MHz SMR geographic area licenses
for the General Category channels began on August 16, 2000, and was
completed on September 1, 2000. Eleven bidders that won 108 geographic
area licenses for the General Category channels in the 800 MHz SMR band
qualified as small businesses under the $15 million size standard. In
an auction completed on December 5, 2000, a total of 2,800 Economic
Area licenses in the lower 80 channels of the 800 MHz SMR service were
sold. Of the 22 winning bidders,
[[Page 13827]]
19 claimed ``small business'' status and won 129 licenses. Thus,
combining all three auctions, 40 winning bidders for geographic
licenses in the 800 MHz SMR band claimed status as small business.
198. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended implementation authorizations in
the 800 and 900 MHz bands. The Commission does not know how many firms
provide 800 MHz or 900 MHz geographic area SMR services pursuant to
extended implementation authorizations, nor how many of these providers
have annual revenues of no more than $15 million. One firm has over $15
million in revenues. In addition, we do not know how many of these
firms have 1,500 or fewer employees. The Commission assumes, for
purposes of this analysis, that all of the remaining existing extended
implementation authorizations are held by small entities.
199. Advanced Wireless Services. In 2008, the Commission conducted
the auction of Advanced Wireless Services (``AWS'') licenses. This
auction, which was designated as Auction 78, offered 35 licenses in the
AWS 1710-1755 MHz and 2110-2155 MHz bands (``AWS-1''). The AWS-1
licenses were licenses for which there were no winning bids in Auction
66. That same year, the Commission completed Auction 78. A bidder with
attributed average annual gross revenues that exceeded $15 million and
did not exceed $40 million for the preceding three years (``small
business'') received a 15 percent discount on its winning bid. A bidder
with attributed average annual gross revenues that did not exceed $15
million for the preceding three years (``very small business'')
received a 25 percent discount on its winning bid. A bidder that had a
combined total assets of less than $500 million and combined gross
revenues of less than $125 million in each of the last two years
qualified for entrepreneur status. Four winning bidders that identified
themselves as very small businesses won 17 licenses. Three of the
winning bidders that identified themselves as small business won five
licenses. Additionally, one other winning bidder that qualified for
entrepreneur status won 2 licenses.
200. 700 MHz Band Commercial Licensees. There is 80 megahertz of
non-Guard Band spectrum in the 700 MHz Band that is designated for
commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With
one exception, the Commission adopted criteria for defining two groups
of small businesses for purposes of determining their eligibility for
bidding credits at auction. These two categories are: (1) ``Small
business,'' which is defined as an entity with attributed average
annual gross revenues that exceed $15 million and do not exceed $40
million for the preceding three years; and (2) ``very small business,''
which is defined as an entity with attributed average annual gross
revenues that do not exceed $15 million for the preceding three years.
In Block C of the Lower 700 MHz Band (710-716 MHz and 740-746 MHz),
which was licensed on the basis of 734 Cellular Market Areas, the
Commission adopted a third criterion for determining eligibility for
bidding credits: An ``entrepreneur,'' which is defined as an entity
that, together with its affiliates and controlling principals, has
average gross revenues that are not more than $3 million for the
preceding three years. The SBA has approved these small size standards.
201. An auction of 740 licenses for Blocks C (710-716 MHz and 740-
746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on
August 27, 2002, and closed on September 18, 2002. Of the 740 licenses
available for auction, 484 licenses were sold to 102 winning bidders.
Seventy-two of the winning bidders claimed small business, very small
business, or entrepreneur status and won a total of 329 licenses. A
second auction commenced on May 28, 2003, and closed on June 13, 2003,
and included 256 licenses: Five EAG licenses and 251 CMA licenses.
Seventeen winning bidders claimed small or very small business status
and won 60 licenses, and nine winning bidders claimed entrepreneur
status and won 154 licenses.
202. The remaining 62 megahertz of commercial spectrum was
auctioned on January 24 through March 18, 2008. As explained above,
bidding credits for all of these licenses were available to ``small
businesses'' and ``very small businesses.'' Auction 73 concluded with
1,090 provisionally winning bids covering 1,091 licenses and totaling
$19,592,420,000. The provisionally winning bids for the A, B, C, and E
Block licenses exceeded the aggregate reserve prices for those blocks.
The provisionally winning bid for the D Block license, however, did not
meet the applicable reserve price and thus did not become a winning
bid. Approximately 55 small businesses had winning bids. Currently, the
10 remaining megahertz associated with the D block have not yet been
assigned.
203. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico. There are presently approximately 55 licensees in this
service. The Commission is unable to estimate at this time the number
of licensees that would qualify as small under the SBA's small business
size standard for the category of Wireless Telecommunications Carriers
(except Satellite). Under that SBA small business size standard, a
business is small if it has 1,500 or fewer employees. Census data for
2007, which supersede data from the 2002 Census, show that there were
1,383 firms that operated that year. Of those 1,383, 1,368 had fewer
than 100 employees, and 15 firms had more than 100 employees. Thus
under this category and the associated small business size standard,
the majority of firms can be considered small.
204. Government Transfer Bands. The Commission adopted small
business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz,
and the paired 1392-1395 MHz and 1432-1435 MHz bands. Specifically,
with respect to these bands, the Commission defined an entity with
average annual gross revenues for the three preceding years not
exceeding $40 million as a ``small business,'' and an entity with
average annual gross revenues for the three preceding years not
exceeding $15 million as a ``very small business.'' SBA has approved
these small business size standards for the aforementioned bands.
Correspondingly, the Commission adopted a bidding credit of 15 percent
for ``small businesses'' and a bidding credit of 25 percent for ``very
small businesses.'' This bidding credit structure was found to have
been consistent with the Commission's schedule of bidding credits,
which may be found at Sec. 1.2110(f)(2) of the Commission's rules. The
Commission found that these two definitions will provide a variety of
businesses seeking to provide a variety of services with opportunities
to participate in the auction of licenses for this spectrum and will
afford such licensees, who may have varying capital costs, substantial
flexibility for the provision of services. The Commission noted that it
had long recognized that bidding preferences for qualifying bidders
provide such bidders with an opportunity to compete successfully
against large, well-financed entities. The Commission also noted that
it had found that the use of tiered or graduated small business
definitions is useful in furthering its mandate under section 309(j) of
the Act to promote opportunities for and disseminate licenses to a wide
variety of applicants.
[[Page 13828]]
An auction for one license in the 1670-1674 MHz band commenced on April
30, 2003 and closed the same day. One license was awarded. The winning
bidder was not a small entity.
b. Certain Equipment Manufacturers and Stores
205. Part 15 Handset Manufacturers. Manufacturers of unlicensed
wireless handsets may also become subject to requirements in this
proceeding for their handsets used to provide VoIP applications. The
Commission has not developed a definition of small entities applicable
to unlicensed communications handset manufacturers. Therefore, we will
utilize the SBA definition applicable to Radio and Television
Broadcasting and Wireless Communications Equipment Manufacturing. The
Census Bureau defines this category as follows: ``This industry
comprises establishments primarily engaged in manufacturing radio and
television broadcast and wireless communications equipment. Examples of
products made by these establishments are: Transmitting and receiving
antennas, cable television equipment, GPS equipment, pagers, cellular
phones, mobile communications equipment, and radio and television
studio and broadcasting equipment.'' The SBA has developed a small
business size standard for Radio and Television Broadcasting and
Wireless Communications Equipment Manufacturing, which is: All such
firms having 750 or fewer employees. According to Census Bureau data
for 2002, there were a total of 1,041 establishments in this category
that operated for the entire year. Of this total, 1,010 had employment
of under 500, and an additional 13 had employment of 500 to 999. Thus,
under this size standard, the majority of firms can be considered
small.
206. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for firms in this category, which is: all such firms having
750 or fewer employees. According to Census Bureau data for 2007, there
were a total of 919 firms in this category that operated for the entire
year. Of this total, 777 had less than 100 employees, and an additional
148 had over 100 employees. Thus, while we can provide a more precise
estimate, under this size standard, the large majority of these firms
can be considered small.
207. Radio, Television, and Other Electronics Stores. The Census
Bureau defines this economic census category as follows: ``This U.S.
industry comprises: (1) Establishments known as consumer electronics
stores primarily engaged in retailing a general line of new consumer-
type electronic products; (2) establishments specializing in retailing
a single line of consumer-type electronic products (except computers);
or (3) establishments primarily engaged in retailing these new
electronic products in combination with repair services.'' The SBA has
developed a small business size standard for Radio, Television, and
Other Electronics Stores, which is: All such firms having $9 million or
less in annual receipts. According to Census Bureau data for 2007,
there were 18,291 firms in this category that operated for the entire
year. Of this total, 17,369 firms had annual sales of under $5 million,
and 533 firms had sales of $5 million or more but less than $10
million. Thus, the majority of firms in this category can be considered
small.
c. Wireline Carriers and Service Providers
208. Incumbent Local Exchange Carriers (Incumbent LECs). Neither
the Commission nor the SBA has developed a small business size standard
specifically for incumbent local exchange services. The appropriate
size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. Census Bureau data for
2007, which now supersede data from the 2002 Census, show that there
were 3,188 firms in this category that operated for the entire year. Of
this total, 3,144 had employment of 999 or fewer, and 44 firms had
employment of 1000 or more. According to Commission data, 1,307
carriers reported that they were incumbent local exchange service
providers. Of these 1,307 carriers, an estimated 1,006 have 1,500 or
fewer employees and 301 have more than 1,500 employees. Consequently,
the Commission estimates that most providers of local exchange service
are small entities that may be affected by the rules proposed in the
NPRM. Thus under this category, the majority of these incumbent local
exchange service providers can be considered small.
209. Competitive Local Exchange Carriers (Competitive LECs),
Competitive Access Providers (CAPs), Shared-Tenant Service Providers,
and Other Local Service Providers. Neither the Commission nor the SBA
has developed a small business size standard specifically for these
service providers. The appropriate size standard under SBA rules is for
the category Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census Bureau data for 2007, which now supersede data from the 2002
Census, show that there were 3,188 firms in this category that operated
for the entire year. Of this total, 3,144 had employment of 999 or
fewer, and 44 firms had had employment of 1,000 employees or more. Thus
under this category and the associated small business size standard,
the majority of these Competitive LECs, CAPs, Shared-Tenant Service
Providers, and Other Local Service Providers can be considered small
entities. According to Commission data, 1,442 carriers reported that
they were engaged in the provision of either competitive local exchange
services or competitive access provider services. Of these 1,442
carriers, an estimated 1,256 have 1,500 or fewer employees and 186 have
more than 1,500 employees. In addition, 17 carriers have reported that
they are Shared-Tenant Service Providers, and all 17 are estimated to
have 1,500 or fewer employees. In addition, 72 carriers have reported
that they are Other Local Service Providers. Of the 72, seventy have
1,500 or fewer employees and two have more than 1,500 employees.
Consequently, the Commission estimates that most providers of
competitive local exchange service, competitive access providers,
Shared-Tenant Service Providers, and Other Local Service Providers are
small entities that may be affected by rules adopted pursuant to the
NPRM.
210. Interexchange Carriers. Neither the Commission nor the SBA has
developed a small business size standard specifically for providers of
interexchange services. The appropriate size standard under SBA rules
is for the category Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census Bureau data for 2007, which now supersede data from the 2002
Census, show that there were 3,188 firms in this category that operated
for the entire year. Of this total, 3,144 had employment of 999 or
fewer, and 44 firms had had
[[Page 13829]]
employment of 1,000 employees or more. Thus under this category and the
associated small business size standard, the majority of these
Interexchange carriers can be considered small entities. According to
Commission data, 359 companies reported that their primary
telecommunications service activity was the provision of interexchange
services. Of these 359 companies, an estimated 317 have 1,500 or fewer
employees and 42 have more than 1,500 employees. Consequently, the
Commission estimates that the majority of interexchange service
providers are small entities that may be affected by rules adopted
pursuant to the NPRM.
211. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. Census Bureau data for 2007, which now supersede data from
the 2002 Census, show that there were 3,188 firms in this category that
operated for the entire year. Of this total, 3,144 had employment of
999 or fewer, and 44 firms had had employment of 1,000 employees or
more. Thus under this category and the associated small business size
standard, the majority of these Interexchange carriers can be
considered small entities. According to Commission data, 33 carriers
have reported that they are engaged in the provision of operator
services. Of these, an estimated 31 have 1,500 or fewer employees and 2
have more than 1,500 employees. Consequently, the Commission estimates
that the majority of OSPs are small entities that may be affected by
our proposed rules.
212. Local Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2007 show that 1,523 firms provided resale
services during that year. Of that number, 1,522 operated with fewer
than 1000 employees and one operated with more than 1,000. Thus under
this category and the associated small business size standard, the
majority of these local resellers can be considered small entities.
According to Commission data, 213 carriers have reported that they are
engaged in the provision of local resale services. Of these, an
estimated 211 have 1,500 or fewer employees and two have more than
1,500 employees. Consequently, the Commission estimates that the
majority of local resellers are small entities that may be affected by
rules adopted pursuant to the Notice.
213. Toll Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2007 show that 1,523 firms provided resale
services during that year. Of that number, 1,522 operated with fewer
than 1000 employees and one operated with more than 1,000. Thus under
this category and the associated small business size standard, the
majority of these resellers can be considered small entities. According
to Commission data, 881 carriers have reported that they are engaged in
the provision of toll resale services. Of these, an estimated 857 have
1,500 or fewer employees and 24 have more than 1,500 employees.
Consequently, the Commission estimates that the majority of toll
resellers are small entities that may be affected by our proposed
rules.
214. Payphone Service Providers (PSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
payphone services providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. Census Bureau data for 2007, which now supersede data from
the 2002 Census, show that there were 3,188 firms in this category that
operated for the entire year. Of this total, 3,144 had employment of
999 or fewer, and 44 firms had had employment of 1,000 employees or
more. Thus under this category and the associated small business size
standard, the majority of these PSPs can be considered small entities.
According to Commission data, 657 carriers have reported that they are
engaged in the provision of payphone services. Of these, an estimated
653 have 1,500 or fewer employees and four have more than 1,500
employees. Consequently, the Commission estimates that the majority of
payphone service providers are small entities that may be affected by
our action.
215. Prepaid Calling Card Providers. Neither the Commission nor the
SBA has developed a small business size standard specifically for
prepaid calling card providers. The appropriate size standard under SBA
rules is for the category Telecommunications Resellers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census data for 2007 show that 1,523 firms provided resale services
during that year. Of that number, 1,522 operated with fewer than 1000
employees and one operated with more than 1,000. Thus under this
category and the associated small business size standard, the majority
of these prepaid calling card providers can be considered small
entities. According to Commission data, 193 carriers have reported that
they are engaged in the provision of prepaid calling cards. Of these,
all 193 have 1,500 or fewer employees and none have more than 1,500
employees. Consequently, the Commission estimates that the majority of
prepaid calling card providers are small entities that may be affected
by rules adopted pursuant to the NPRM.
216. 800 and 800-Like Service Subscribers. Neither the Commission
nor the SBA has developed a small business size standard specifically
for 800 and 800-like service (``toll free'') subscribers. The
appropriate size standard under SBA rules is for the category
Telecommunications Resellers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. Census data for 2007 show
that 1,523 firms provided resale services during that year. Of that
number, 1,522 operated with fewer than 1000 employees and one operated
with more than 1,000. Thus under this category and the associated small
business size standard, the majority of resellers in this
classification can be considered small entities. To focus specifically
on the number of subscribers than on those firms which make
subscription service available, the most reliable source of information
regarding the number of these service subscribers appears to be data
the Commission collects on the 800, 888, 877, and 866 numbers in use.
According to our data for September 2009, the number of 800 numbers
assigned was 7,860,000; the number of 888 numbers assigned was
5,888,687; the number of 877 numbers assigned was 4,721,866; and the
number of 866 numbers assigned was 7,867,736. The Commission does not
have data specifying the number of these subscribers that are not
independently owned and operated or have more than 1,500 employees, and
thus are unable at this time to estimate with greater precision the
number of toll free subscribers that would qualify as small businesses
under the SBA size standard. Consequently, the Commission estimates
that there are 7,860,000 or fewer small entity 800 subscribers;
[[Page 13830]]
5,888,687 or fewer small entity 888 subscribers; 4,721,866 or fewer
small entity 877 subscribers; and 7,867,736 or fewer small entity 866
subscribers.
d. Wireless Carriers and Service Providers
217. Below, for those services where licenses are subject to
auctions, the Commission notes that, as a general matter, the number of
winning bidders that qualify as small businesses at the close of a
given auction does not necessarily represent the number of small
businesses currently in service. Also, the Commission does not
generally track subsequent business size unless, in the context of
assignments or transfers, unjust enrichment issues are implicated.
218. Wireless Telecommunications Carriers (except Satellite). Since
2007, the Census Bureau has placed wireless firms within this new,
broad, economic census category. Prior to that time, such firms were
within the now-superseded categories of ``Paging'' and ``Cellular and
Other Wireless Telecommunications.'' Under the present and prior
categories, the SBA has deemed a wireless business to be small if it
has 1,500 or fewer employees. For the category of Wireless
Telecommunications Carriers (except Satellite), Census data for 2007,
which supersede data from the 2002 Census, show that there were 1,383
firms that operated that year. Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this
category and the associated small business size standard, the majority
of firms can be considered small. Similarly, according to Commission
data, 413 carriers reported that they were engaged in the provision of
wireless telephony, including cellular service, Personal Communications
Service (PCS), and Specialized Mobile Radio (SMR) Telephony services.
Of these, an estimated 261 have 1,500 or fewer employees and 152 have
more than 1,500 employees. Consequently, the Commission estimates that
approximately half or more of these firms can be considered small.
Thus, using available data, we estimate that the majority of wireless
firms can be considered small.
219. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission defined ``small business'' for the wireless
communications services (WCS) auction as an entity with average gross
revenues of $40 million for each of the three preceding years, and a
``very small business'' as an entity with average gross revenues of $15
million for each of the three preceding years. The SBA has approved
these definitions. The Commission auctioned geographic area licenses in
the WCS service. In the auction, which commenced on April 15, 1997 and
closed on April 25, 1997, seven bidders won 31 licenses that qualified
as very small business entities, and one bidder won one license that
qualified as a small business entity.
220. Common Carrier Paging. The SBA considers paging to be a
wireless telecommunications service and classifies it under the
industry classification Wireless Telecommunications Carriers (except
satellite). Under that classification, the applicable size standard is
that a business is small if it has 1,500 or fewer employees. For the
general category of Wireless Telecommunications Carriers (except
Satellite), Census data for 2007, which supersede data from the 2002
Census, show that there were 1,383 firms that operated that year. Of
those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more
than 100 employees. Thus under this category and the associated small
business size standard, the majority of firms can be considered small.
The 2007 census also contains data for the specific category of
``Paging'' ``that is classified under the seven-number NAICS code
5172101. According to Commission data, 291 carriers have reported that
they are engaged in Paging or Messaging Service. Of these, an estimated
289 have 1,500 or fewer employees, and 2 have more than 1,500
employees. Consequently, the Commission estimates that the majority of
paging providers are small entities that may be affected by our action.
In addition, in the 220 MHz Third Report and Order, the Commission
developed a small business size standard for ``small businesses'' and
``very small businesses'' for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments. A ``small business'' is an entity that, together with its
affiliates and controlling principals, has average gross revenues not
exceeding $15 million for the preceding three years. Additionally, a
``very small business'' is an entity that, together with its affiliates
and controlling principals, has average gross revenues that are not
more than $3 million for the preceding three years. The SBA has
approved these small business size standards. An auction of
Metropolitan Economic Area licenses commenced on February 24, 2000, and
closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold.
Fifty-seven companies claiming small business status won.
221. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. As noted, the SBA has developed a small business
size standard for Wireless Telecommunications Carriers (except
Satellite). Under the SBA small business size standard, a business is
small if it has 1,500 or fewer employees. Census data for 2007, which
supersede data from the 2002 Census, show that there were 1,383 firms
that operated that year. Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this
category and the associated small business size standard, the majority
of firms can be considered small. According to Trends in Telephone
Service data, 434 carriers reported that they were engaged in wireless
telephony. Of these, an estimated 222 have 1,500 or fewer employees and
212 have more than 1,500 employees. Therefore, approximately half of
these entities can be considered small. Similarly, according to
Commission data, 413 carriers reported that they were engaged in the
provision of wireless telephony, including cellular service, Personal
Communications Service (PCS), and Specialized Mobile Radio (SMR)
Telephony services. Of these, an estimated 261 have 1,500 or fewer
employees and 152 have more than 1,500 employees. Consequently, the
Commission estimates that approximately half or more of these firms can
be considered small. Thus, using available data, we estimate that the
majority of wireless firms can be considered small.
222. Broadband Personal Communications Service. The broadband
personal communications services (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission initially defined a ``small
business'' for C- and F-Block licenses as an entity that has average
gross revenues of $40 million or less in the three previous calendar
years. For F-Block licenses, an additional small business size standard
for ``very small business'' was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years. These small
business size standards, in the context of broadband PCS auctions, have
been approved by the SBA. No small businesses within the SBA-approved
[[Page 13831]]
small business size standards bid successfully for licenses in Blocks A
and B. There were 90 winning bidders that claimed small business status
in the first two C-Block auctions. A total of 93 bidders that claimed
small business status won approximately 40 percent of the 1,479
licenses in the first auction for the D, E, and F Blocks. On April 15,
1999, the Commission completed the reauction of 347 C-, D-, E-, and F-
Block licenses in Auction No. 22. Of the 57 winning bidders in that
auction, 48 claimed small business status and won 277 licenses.
223. On January 26, 2001, the Commission completed the auction of
422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35
winning bidders in that auction, 29 claimed small business status.
Subsequent events concerning Auction 35, including judicial and agency
determinations, resulted in a total of 163 C and F Block licenses being
available for grant. On February 15, 2005, the Commission completed an
auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of
the 24 winning bidders in that auction, 16 claimed small business
status and won 156 licenses. On May 21, 2007, the Commission completed
an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71.
Of the 12 winning bidders in that auction, five claimed small business
status and won 18 licenses. On August 20, 2008, the Commission
completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS
licenses in Auction No. 78. Of the eight winning bidders for Broadband
PCS licenses in that auction, six claimed small business status and won
14 licenses.
224. Narrowband Personal Communications Services. To date, two
auctions of narrowband personal communications services (PCS) licenses
have been conducted. For purposes of the two auctions that have already
been held, ``small businesses'' were entities with average gross
revenues for the prior three calendar years of $40 million or less.
Through these auctions, the Commission has awarded a total of 41
licenses, out of which 11 were obtained by small businesses. To ensure
meaningful participation of small business entities in future auctions,
the Commission has adopted a two-tiered small business size standard in
the Narrowband PCS Second Report and Order. A ``small business'' is an
entity that, together with affiliates and controlling interests, has
average gross revenues for the three preceding years of not more than
$40 million. A ``very small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $15 million. The SBA has
approved these small business size standards.
225. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not developed a
small business size standard for small entities specifically applicable
to such incumbent 220 MHz Phase I licensees. To estimate the number of
such licensees that are small businesses, the Commission applies the
small business size standard under the SBA rules applicable. The SBA
has deemed a wireless business to be small if it has 1,500 or fewer
employees. For this service, the SBA uses the category of Wireless
Telecommunications Carriers (except Satellite). Census data for 2007,
which supersede data from the 2002 Census, show that there were 1,383
firms that operated that year. Of those 1,383, 1,368 had fewer than 100
employees, and 15 firms had more than 100 employees. Thus under this
category and the associated small business size standard, the majority
of firms can be considered small.
226. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
a new service, and is subject to spectrum auctions. In the 220 MHz
Third Report and Order, the Commission adopted a small business size
standard for ``small'' and ``very small'' businesses for purposes of
determining their eligibility for special provisions such as bidding
credits and installment payments. This small business size standard
indicates that a ``small business'' is an entity that, together with
its affiliates and controlling principals, has average gross revenues
not exceeding $15 million for the preceding three years. A ``very small
business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues that do not exceed
$3 million for the preceding three years. The SBA has approved these
small business size standards. Auctions of Phase II licenses commenced
on September 15, 1998, and closed on October 22, 1998. In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: Three nationwide licenses, 30 Regional Economic Area
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908
licenses auctioned, 693 were sold. Thirty-nine small businesses won
licenses in the first 220 MHz auction. The second auction included 225
licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies
claiming small business status won 158 licenses.
227. 800 MHz and 900 MHz Specialized Mobile Radio Licenses. The
Commission awards small business bidding credits in auctions for
Specialized Mobile Radio (``SMR'') geographic area licenses in the 800
MHz and 900 MHz bands to entities that had revenues of no more than $15
million in each of the three previous calendar years. The Commission
awards very small business bidding credits to entities that had
revenues of no more than $3 million in each of the three previous
calendar years. The SBA has approved these small business size
standards for the 800 MHz and 900 MHz SMR Services. The Commission has
held auctions for geographic area licenses in the 800 MHz and 900 MHz
bands. The 900 MHz SMR auction was completed in 1996. Sixty bidders
claiming that they qualified as small businesses under the $15 million
size standard won 263 geographic area licenses in the 900 MHz SMR band.
The 800 MHz SMR auction for the upper 200 channels was conducted in
1997. Ten bidders claiming that they qualified as small businesses
under the $15 million size standard won 38 geographic area licenses for
the upper 200 channels in the 800 MHz SMR band. A second auction for
the 800 MHz band was conducted in 2002 and included 23 BEA licenses.
One bidder claiming small business status won five licenses.
228. The auction of the 1,053 800 MHz SMR geographic area licenses
for the General Category channels was conducted in 2000. Eleven bidders
won 108 geographic area licenses for the General Category channels in
the 800 MHz SMR band qualified as small businesses under the $15
million size standard. In an auction completed in 2000, a total of
2,800 Economic Area licenses in the lower 80 channels of the 800 MHz
SMR service were awarded. Of the 22 winning bidders, 19 claimed small
business status and won 129 licenses. Thus, combining all three
auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR
band claimed status as small business.
229. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended implementation authorizations in
the 800 and 900 MHz bands. We do not know how many firms provide 800
MHz or 900 MHz geographic area SMR
[[Page 13832]]
pursuant to extended implementation authorizations, nor how many of
these providers have annual revenues of no more than $15 million. One
firm has over $15 million in revenues. In addition, we do not know how
many of these firms have 1,500 or fewer employees. We assume, for
purposes of this analysis, that all of the remaining existing extended
implementation authorizations are held by small entities, as that small
business size standard is approved by the SBA.
230. 700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard
Band Order, the Commission adopted size standards for ``small
businesses'' and ``very small businesses'' for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments. A small business in this service is an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $40 million for the preceding
three years. Additionally, a very small business is an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $15 million for the preceding
three years. SBA approval of these definitions is not required. An
auction of 52 Major Economic Area licenses commenced on September 6,
2000, and closed on September 21, 2000. Of the 104 licenses auctioned,
96 licenses were sold to nine bidders. Five of these bidders were small
businesses that won a total of 26 licenses. A second auction of 700 MHz
Guard Band licenses commenced on February 13, 2001, and closed on
February 21, 2001. All eight of the licenses auctioned were sold to
three bidders. One of these bidders was a small business that won a
total of two licenses.
231. Air-Ground Radiotelephone Service. The Commission has
previously used the SBA's small business size standard applicable to
Wireless Telecommunications Carriers (except Satellite), i.e., an
entity employing no more than 1,500 persons. There are approximately
100 licensees in the Air-Ground Radiotelephone Service, and under that
definition, the Commission estimates that almost all of them qualify as
small entities under the SBA definition. For purposes of assigning Air-
Ground Radiotelephone Service licenses through competitive bidding, the
Commission has defined ``small business'' as an entity that, together
with controlling interests and affiliates, has average annual gross
revenues for the preceding three years not exceeding $40 million. A
``very small business'' is defined as an entity that, together with
controlling interests and affiliates, has average annual gross revenues
for the preceding three years not exceeding $15 million. These
definitions were approved by the SBA. In May 2006, the Commission
completed an auction of nationwide commercial Air-Ground Radiotelephone
Service licenses in the 800 MHz band (Auction No. 65). On June 2, 2006,
the auction closed with two winning bidders winning two Air-Ground
Radiotelephone Services licenses. Neither of the winning bidders
claimed small business status.
232. Rural Radiotelephone Service. The Commission has not adopted a
size standard for small businesses specific to the Rural Radiotelephone
Service. A significant subset of the Rural Radiotelephone Service is
the Basic Exchange Telephone Radio System (BETRS). For purposes of its
analysis of the Rural Radiotelephone Service, the Commission uses the
SBA small business size standard for the category Wireless
Telecommunications Carriers (except satellite), which is 1,500 or fewer
employees. Census data for 2007, which supersede data from the 2002
Census, show that there were 1,383 firms that operated that year. Of
those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more
than 100 employees. Thus under this category and the associated small
business size standard, the majority of firms in the Rural
Radiotelephone Service can be considered small.
233. Aviation and Marine Radio Services. Small businesses in the
aviation and marine radio services use a very high frequency (VHF)
marine or aircraft radio and, as appropriate, an emergency position-
indicating radio beacon (and/or radar) or an emergency locator
transmitter. The Commission has not developed a small business size
standard specifically applicable to these small businesses. For
purposes of this analysis, the Commission uses the SBA small business
size standard for the category Wireless Telecommunications Carriers
(except satellite), which is 1,500 or fewer employees. Census data for
2007, which supersede data from the 2002 Census, show that there were
1,383 firms that operated that year. Of those 1,383, 1,368 had fewer
than 100 employees, and 15 firms had more than 100 employees. Thus
under this category and the associated small business size standard,
the majority of firms can be considered small.
234. Fixed Microwave Services. Microwave services include common
carrier, private-operational fixed, and broadcast auxiliary radio
services. They also include the Local Multipoint Distribution Service
(LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz
Service, where licensees can choose between common carrier and non-
common carrier status. The Commission has not yet defined a small
business with respect to microwave services. For purposes of this IRFA,
the Commission will use the SBA's definition applicable to Wireless
Telecommunications Carriers (except satellite)--i.e., an entity with no
more than 1,500 persons is considered small. For the category of
Wireless Telecommunications Carriers (except satellite), Census data
for 2007, which supersede data from the 2002 Census, show that there
were 1,383 firms that operated that year. Of those 1,383, 1,368 had
fewer than 100 employees, and 15 firms had more than 100 employees.
Thus under this category and the associated small business size
standard, the majority of firms can be considered small. The Commission
notes that the number of firms does not necessarily track the number of
licensees. The Commission estimates that virtually all of the Fixed
Microwave licensees (excluding broadcast auxiliary licensees) would
qualify as small entities under the SBA definition.
235. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico. There are presently approximately 55 licensees in this
service. The Commission is unable to estimate at this time the number
of licensees that would qualify as small under the SBA's small business
size standard for the category of Wireless Telecommunications Carriers
(except satellite). Under that SBA small business size standard, a
business is small if it has 1,500 or fewer employees. Census data for
2007, which supersede data from the 2002 Census, show that there were
1,383 firms that operated that year. Of those 1,383, 1,368 had fewer
than 100 employees, and 15 firms had more than 100 employees. Thus
under this category and the associated small business size standard,
the majority of firms can be considered small.
236. 39 GHz Service. The Commission created a special small
business size standard for 39 GHz licenses--an entity that has average
gross revenues of $40 million or less in the three previous calendar
years. An additional size standard for ``very small business'' is: An
entity that, together with affiliates, has average gross revenues of
not more than $15 million for the preceding three calendar years. The
SBA has approved these small business size standards. The
[[Page 13833]]
auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed
on May 8, 2000. The 18 bidders who claimed small business status won
849 licenses. Consequently, the Commission estimates that 18 or fewer
39 GHz licensees are small entities that may be affected by our action.
237. Wireless Cable Systems. Broadband Radio Service and
Educational Broadband Service. Broadband Radio Service systems,
previously referred to as Multipoint Distribution Service (MDS) and
Multichannel Multipoint Distribution Service (MMDS) systems, and
``wireless cable,'' transmit video programming to subscribers and
provide two-way high speed data operations using the microwave
frequencies of the Broadband Radio Service (BRS) and Educational
Broadband Service (EBS) (previously referred to as the Instructional
Television Fixed Service (ITFS)). In connection with the 1996 BRS
auction, the Commission established a small business size standard as
an entity that had annual average gross revenues of no more than $40
million in the previous three calendar years. The BRS auctions resulted
in 67 successful bidders obtaining licensing opportunities for 493
Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the
definition of a small business. BRS also includes licensees of stations
authorized prior to the auction. At this time, we estimate that of the
61 small business BRS auction winners, 48 remain small business
licensees. In addition to the 48 small businesses that hold BTA
authorizations, there are approximately 392 incumbent BRS licensees
that are considered small entities. After adding the number of small
business auction licensees to the number of incumbent licensees not
already counted, we find that there are currently approximately 440 BRS
licensees that are defined as small businesses under either the SBA or
the Commission's rules. In 2009, the Commission conducted Auction 86,
the sale of 78 licenses in the BRS areas. The Commission offered three
levels of bidding credits: (i) A bidder with attributed average annual
gross revenues that exceed $15 million and do not exceed $40 million
for the preceding three years (small business) will receive a 15
percent discount on its winning bid; (ii) a bidder with attributed
average annual gross revenues that exceed $3 million and do not exceed
$15 million for the preceding three years (very small business) will
receive a 25 percent discount on its winning bid; and (iii) a bidder
with attributed average annual gross revenues that do not exceed $3
million for the preceding three years (entrepreneur) will receive a 35
percent discount on its winning bid. Auction 86 concluded in 2009 with
the sale of 61 licenses. Of the ten winning bidders, two bidders that
claimed small business status won 4 licenses; one bidder that claimed
very small business status won three licenses; and two bidders that
claimed entrepreneur status won six licenses.
238. In addition, the SBA's Cable Television Distribution Services
small business size standard is applicable to EBS. There are presently
2,032 EBS licensees. All but 100 of these licenses are held by
educational institutions. Educational institutions are included in this
analysis as small entities. Thus, we estimate that at least 1,932
licensees are small businesses. Since 2007, Cable Television
Distribution Services have been defined within the broad economic
census category of Wired Telecommunications Carriers; that category is
defined as follows: ``This industry comprises establishments primarily
engaged in operating and/or providing access to transmission facilities
and infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single technology
or a combination of technologies.'' For these services, the Commission
uses the SBA small business size standard for the category ``Wireless
Telecommunications Carriers (except satellite),'' which is 1,500 or
fewer employees. To gauge small business prevalence for these cable
services we must, however, use the most current census data. Census
data for 2007, which supersede data from the 2002 Census, show that
there were 1,383 firms that operated that year. Of those 1,383, 1,368
had fewer than 100 employees, and 15 firms had more than 100 employees.
Thus under this category and the associated small business size
standard, the majority of firms can be considered small. The Commission
notes that the Census' use the classifications ``firms'' does not track
the number of ``licenses''.
239. In the 1998 and 1999 LMDS auctions, the Commission defined a
small business as an entity that has annual average gross revenues of
less than $40 million in the previous three calendar years. Moreover,
the Commission added an additional classification for a ``very small
business,'' which was defined as an entity that had annual average
gross revenues of less than $15 million in the previous three calendar
years. These definitions of ``small business'' and ``very small
business'' in the context of the LMDS auctions have been approved by
the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of
the 104 auction winners, 93 claimed status as small or very small
businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based
on this information, the Commission believes that the number of small
LMDS licenses will include the 93 winning bidders in the first auction
and the 40 winning bidders in the re-auction, for a total of 133 small
entity LMDS providers as defined by the SBA and the Commission's
auction rules.
240. 218-219 MHz Service. The first auction of 218-219 MHz spectrum
resulted in 170 entities winning licenses for 594 Metropolitan
Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by
entities qualifying as a small business. For that auction, the small
business size standard was an entity that, together with its
affiliates, has no more than a $6 million net worth and, after federal
income taxes (excluding any carry over losses), has no more than $2
million in annual profits each year for the previous two years. In the
218-219 MHz Report and Order and Memorandum Opinion and Order, the
Commission established a small business size standard for a ``small
business'' as an entity that, together with its affiliates and persons
or entities that hold interests in such an entity and their affiliates,
has average annual gross revenues not to exceed $15 million for the
preceding three years. A ``very small business'' is defined as an
entity that, together with its affiliates and persons or entities that
hold interests in such an entity and its affiliates, has average annual
gross revenues not to exceed $3 million for the preceding three years.
These size standards will be used in future auctions of 218-219 MHz
spectrum.
241. 24 GHz--Incumbent Licensees. This analysis may affect
incumbent licensees who were relocated to the 24 GHz band from the 18
GHz band, and applicants who wish to provide services in the 24 GHz
band. For this service, the Commission uses the SBA small business size
standard for the category ``Wireless Telecommunications Carriers
(except satellite),'' which is 1,500 or fewer employees. To gauge small
business prevalence for these cable services we must, however, use the
most current census data. Census data for 2007, which supersede data
from the 2002 Census, show that there were 1,383 firms that operated
that year. Of those 1,383, 1,368 had fewer than 100 employees, and 15
firms had more than 100 employees. Thus under this
[[Page 13834]]
category and the associated small business size standard, the majority
of firms can be considered small. The Commission notes that the Census'
use of the classifications ``firms'' does not track the number of
``licenses''. The Commission believes that there are only two licensees
in the 24 GHz band that were relocated from the 18 GHz band, Teligent
and TRW, Inc. It is our understanding that Teligent and its related
companies have less than 1,500 employees, though this may change in the
future. TRW is not a small entity. Thus, only one incumbent licensee in
the 24 GHz band is a small business entity.
242. 24 GHz--Future Licensees. With respect to new applicants in
the 24 GHz band, the small business size standard for ``small
business'' is an entity that, together with controlling interests and
affiliates, has average annual gross revenues for the three preceding
years not in excess of $15 million. ``Very small business'' in the 24
GHz band is an entity that, together with controlling interests and
affiliates, has average gross revenues not exceeding $3 million for the
preceding three years. The SBA has approved these small business size
standards. These size standards will apply to the future auction, if
held.
243. Satellite Telecommunications Providers. Two economic census
categories address the satellite industry. The first category has a
small business size standard of $15 million or less in average annual
receipts, under SBA rules. The second has a size standard of $25
million or less in annual receipts.
244. The category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications
signals via a system of satellites or reselling satellite
telecommunications.'' Census Bureau data for 2007 show that 512
Satellite Telecommunications firms that operated for that entire year.
Of this total, 464 firms had annual receipts of under $10 million, and
18 firms had receipts of $10 million to $24,999,999. Consequently, the
Commission estimates that the majority of Satellite Telecommunications
firms are small entities that might be affected by our action.
245. The second category, i.e. ``All Other Telecommunications''
comprises ``establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing Internet services or voice over Internet
protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.'' For this category,
Census Bureau data for 2007 show that there were a total of 2,383 firms
that operated for the entire year. Of this total, 2,347 firms had
annual receipts of under $25 million and 12 firms had annual receipts
of $25 million to $49, 999,999. Consequently, the Commission estimates
that the majority of All Other Telecommunications firms are small
entities that might be affected by our action.
e. Cable and OVS Operators
246. Because section 706 requires us to monitor the deployment of
broadband regardless of technology or transmission media employed, the
Commission anticipates that some broadband service providers may not
provide telephone service. Accordingly, the Commission describes below
other types of firms that may provide broadband services, including
cable companies, MDS providers, and utilities, among others.
247. Cable and Other Program Distributors. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' The SBA has developed a small business size standard
for this category, which is: all such firms having 1,500 or fewer
employees. Census data for 2007, which supersede data from the 2002
Census, show that there were 1,383 firms that operated that year. Of
those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more
than 100 employees. Thus under this category and the associated small
business size standard, the majority of such firms can be considered
small.
248. Cable Companies and Systems. The Commission has also developed
its own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving 400,000 or fewer subscribers, nationwide. Industry data
indicate that, of 1,076 cable operators nationwide, all but eleven are
small under this size standard. In addition, under the Commission's
rules, a ``small system'' is a cable system serving 15,000 or fewer
subscribers. Industry data indicate that, of 7,208 systems nationwide,
6,139 systems have under 10,000 subscribers, and an additional 379
systems have 10,000-19,999 subscribers. Thus, under this second size
standard, most cable systems are small.
249. Cable System Operators. The Communications Act of 1934, as
amended, also contains a size standard for small cable system
operators, which is ``a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has determined that an operator serving
fewer than 677,000 subscribers shall be deemed a small operator, if its
annual revenues, when combined with the total annual revenues of all
its affiliates, do not exceed $250 million in the aggregate. Industry
data indicate that, of 1,076 cable operators nationwide, all but ten
are small under this size standard. We note that the Commission neither
requests nor collects information on whether cable system operators are
affiliated with entities whose gross annual revenues exceed $250
million, and therefore we are unable to estimate more accurately the
number of cable system operators that would qualify as small under this
size standard.
250. Open Video Services. Open Video Service (OVS) systems provide
subscription services. The open video system (``OVS'') framework was
established in 1996, and is one of four statutorily recognized options
for the provision of video programming services by local exchange
carriers. The OVS framework provides opportunities for the distribution
of video programming other than through cable systems. Because OVS
operators provide subscription services, OVS falls within the SBA small
business size standard covering cable services, which is ``Wired
Telecommunications Carriers.'' The SBA has developed a small business
size standard for this category, which is: all such firms having 1,500
or fewer employees. To gauge small business prevalence for the OVS
service, the Commission relies on data currently available from the
U.S. Census for the
[[Page 13835]]
year 2007. According to that source, there were 3,188 firms that in
2007 were Wired Telecommunications Carriers. Of these, 3,144 operated
with less than 1,000 employees, and 44 operated with more than 1,000
employees. However, as to the latter 44 there is no data available that
shows how many operated with more than 1,500 employees. Based on this
data, the majority of these firms can be considered small. In addition,
we note that the Commission has certified some OVS operators, with some
now providing service. Broadband service providers (``BSPs'') are
currently the only significant holders of OVS certifications or local
OVS franchises. The Commission does not have financial or employment
information regarding the entities authorized to provide OVS, some of
which may not yet be operational. Thus, at least some of the OVS
operators may qualify as small entities. The Commission further notes
that it has certified approximately 45 OVS operators to serve 75 areas,
and some of these are currently providing service. Affiliates of
Residential Communications Network, Inc. (RCN) received approval to
operate OVS systems in New York City, Boston, Washington, DC, and other
areas. RCN has sufficient revenues to assure that they do not qualify
as a small business entity. Little financial information is available
for the other entities that are authorized to provide OVS and are not
yet operational. Given that some entities authorized to provide OVS
service have not yet begun to generate revenues, the Commission
concludes that up to 44 OVS operators (those remaining) might qualify
as small businesses that may be affected by the rules and policies
adopted herein.
f. Internet Service Providers, Web Portals and Other Information
Services
251. Internet Service Providers, Web Portals and Other Information
Services. In 2007, the SBA recognized two new small business, economic
census categories. They are (1) Internet Publishing and Broadcasting
and Web Search Portals, and (2) All Other Information Services.
252. Internet Service Providers. The 2007 Economic Census places
these firms, whose services might include voice over Internet protocol
(VoIP), in either of two categories, depending on whether the service
is provided over the provider's own telecommunications facilities
(e.g., cable and DSL ISPs), or over client-supplied telecommunications
connections (e.g., dial-up ISPs). The former are within the category of
Wired Telecommunications Carriers, which has an SBA small business size
standard of 1,500 or fewer employees. These are also labeled
``broadband.'' The latter are within the category of All Other
Telecommunications, which has a size standard of annual receipts of $25
million or less. These are labeled non-broadband.
253. The most current Economic Census data for all such firms are
2007 data, which are detailed specifically for ISPs within the
categories above. For the first category, the data show that 396 firms
operated for the entire year, of which 159 had nine or fewer employees.
For the second category, the data show that 1,682 firms operated for
the entire year. Of those, 1,675 had annual receipts below $25 million
per year, and an additional two had receipts of between $25 million and
$ 49,999,999. Consequently, we estimate that the majority of ISP firms
are small entities.
254. Internet Publishing and Broadcasting and Web Search Portals.
This industry comprises establishments primarily engaged in (1)
publishing and/or broadcasting content on the Internet exclusively or
(2) operating Web sites that use a search engine to generate and
maintain extensive databases of Internet addresses and content in an
easily searchable format (and known as Web search portals). The
publishing and broadcasting establishments in this industry do not
provide traditional (non-Internet) versions of the content that they
publish or broadcast. They provide textual, audio, and/or video content
of general or specific interest on the Internet exclusively.
Establishments known as Web search portals often provide additional
Internet services, such as e-mail, connections to other web sites,
auctions, news, and other limited content, and serve as a home base for
Internet users. The SBA has developed a small business size standard
for this category; that size standard is fewer than 500 employees.
Thus, a firm in this category with less than 500 employees is
considered a small business. According to Census Bureau data for 2007,
there were 2,705 firms that provided one or more of these services for
that entire year. Of these, 2,682 operated with less than 500 employees
and 13 operated with 500 to 999 employees. Consequently, we estimate
the majority of these firms are small entities that may be affected by
our proposed actions.
255. Data Processing, Hosting, and Related Services. This industry
comprises establishments primarily engaged in providing infrastructure
for hosting or data processing services. These establishments may
provide specialized hosting activities, such as web hosting, streaming
services or application hosting; provide application service
provisioning; or may provide general time-share mainframe facilities to
clients. Data processing establishments provide complete processing and
specialized reports from data supplied by clients or provide automated
data processing and data entry services. The SBA has developed a small
business size standard for this category; that size standard is $25
million or less in average annual receipts. According to Census Bureau
data for 2007, there were 8,060 firms in this category that operated
for the entire year. Of these, 6,726 had annual receipts of under $25
million, and 155 had receipts between $25 million and $49,999,999
million. Consequently, we estimate that the majority of these firms are
small entities that may be affected by our proposed actions.
256. All Other Information Services. ``This industry comprises
establishments primarily engaged in providing other information
services (except new syndicates and libraries and archives).'' Our
action pertains to interconnected VoIP services, which could be
provided by entities that provide other services such as e-mail, online
gaming, web browsing, video conferencing, instant messaging, and other,
similar IP-enabled services. The SBA has developed a small business
size standard for this category; that size standard is $7.0 million or
less in average annual receipts. According to Census Bureau data for
2007, there were 367 firms in this category that operated for the
entire year. Of these, 334 had annual receipts of under $5 million, and
an additional 11 firms had receipts of between $5 million and
$9,999,999. Consequently, we estimate that the majority of these firms
are small entities that may be affected by our action.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
257. We summarize below the requirements in the NPRM and proposed
rules regarding compliance with sections 716 and 717, including
recordkeeping and reporting obligations. Additional information on each
of these requirements can be found in the NPRM.
258. Recordkeeping. The NPRM proposes, beginning one year after the
effective date of regulations promulgated by the Commission pursuant to
section 716(e), to require that each manufacturer of equipment
(including software) used to provide ACS and each provider of such
services
[[Page 13836]]
subject to sections 255, 716, and 718, not exempted under rules
proposed in that NPRM, maintain, in the ordinary course of business and
for a reasonable period, certain records. These records are to document
the efforts taken by such manufacturer or service provider to implement
sections 255, 716, and 718, including: (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.
259. Reporting Obligations. The CVAA and the Commission's proposed
rules require that an officer of each manufacturer of equipment
(including software) used to provide ACS and an officer of each
provider of such services submit to the Commission an annual
certificate that records are being kept in accordance with the above
recordkeeping requirements, unless such manufacturer or provider has
been exempted from compliance with section 716 under applicable rules.
260. Costs of Compliance. Because of the diverse manufacturers of
equipment used to provide ACS and diverse providers of ACS that may be
subject to section 716, the possible exemption of certain small
entities from compliance with that section, the multiple general and
entity-specific factors used in determining, whether for a given
manufacturer (or service provider) accessibility for a particular item
of ACS equipment (or a particular service) is achievable, and the
various provisions of section 716 and the proposed rules on when and to
what extent accessibility must be incorporated into a given item of ACS
equipment or service, it is difficult to estimate the costs of
compliance for those small entities that may not be covered by an
exemption or waiver, should the Commission choose to adopt any such
exemptions or waivers. Accordingly, the NPRM seeks comment on the costs
of compliance with these proposed rules.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
261. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its approach, which
may include the following four alternatives (among others): ``(1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting 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.''
262. In addition to the factors in the RFA identified above, the
achievability factors in the CVAA also serve to mitigate adverse
impacts and reduce burdens on small entities. In the NPRM, the
Commission proposes to make determinations about what is achievable by
giving four factors equal weight. Two of these factors take into
account the resources available to covered entities and may have a
direct impact on small entities and the obligations they face under the
CVAA: the second factor, 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, and the third factor, the
type of operations of the manufacturer or provider. In addition,
consideration of the first factor (the nature and cost of the steps
needed to meet the requirements with respect to the specific equipment
or service in question) and the fourth factor (the extent to which the
service provider or manufacturer in question offers accessibility
services or equipment containing varying degrees of functionality and
features, and offered at different price points) would benefit all
entities subject to section 716, including small entities.
263. The Commission proposes not to consider additional factors and
only to consider the factors enumerated in the statute, in light of
legislative history directing the Commission to weigh the factors
equally. While adoption of this proposal would prevent the Commission
from considering additional factors that may benefit small entities, it
would also require that the Commission consider only the factors listed
above, which clearly serve to reduce the burden on small entities. The
Commission does, however, seek comment on whether it might have the
discretion to weigh other factors not specified in the statute. In
addition, the Commission proposes to construe the factors broadly and
to weigh any relevant considerations in determining their meaning.
264. The Commission also proposes to consider exemptions from
section 716 for small entities and, if one or more such exemptions were
adopted, further proposes to consider various criteria in setting
standards for such exemptions. The Commission could have proposed not
to exercise its discretionary authority to exempt small entities or
could have proposed one or more specific size standards for any such
exemptions but determined that it was necessary to build a more
complete factual record on what factors it should consider in making
this determination. Specifically, before making a specific proposal,
the Commission seeks to understand the impact any such proposal would
have on small entities, the marketplace of ACS services and equipment,
and on people with disabilities.
265. In addition, the Commission proposes consideration of specific
performance objectives and seeks comment on alternative ways to develop
procedures and timelines to develop these objectives. Such alternatives
could be structured to reduce the burdens on small entities of
compliance with section 716.
266. The Commission also proposes not to adopt technical standards
as safe harbors at this time. It determined that it needed to develop a
more complete record on this issue before taking action.
267. Finally, the Commission does not propose separate
recordkeeping and reporting obligations for small entities. The
Commission, however, has proposed that it will not mandate any one form
in which records must be kept, to take into account that covered
entities have a variety of business models and modes of operation.
F. Federal Rules That May Duplicate, Overlap, or Conflict With Proposed
Rules
268. Section 255(e) of the Communications Act, as amended, 47
U.S.C. 255(e), 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 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 Communications Act, as amended, 47 U.S.C. 617, 618,
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,
it is our tentative view that our proposed rules do not overlap,
duplicate, or conflict with either Access Board Final Rules, or (if
later adopted) the Access Board Draft Guidelines.
[[Page 13837]]
Paperwork Reduction Act of 1995
269. Initial Paperwork Reduction Analysis. The Notice of Proposed
Rulemaking contains proposed new or modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due 60 days after the date of publication in the Federal Register.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.'' We note that we
have described impacts that might affect small businesses, which
includes most businesses with fewer than 25 employees, in the IRFA.
IX. Ordering Clauses
270. Accordingly, it is ordered that pursuant to sections 1-4, 255,
303(r), 403, 503, 716, and 717 of the Communications Act of 1934, as
amended, 47 U.S.C. 151-154, 255, 303(r), 403, 503, 617, 618, this
Notice of Proposed Rulemaking in CG Docket No. 10-145, WT Docket No.
96-198, and CG Docket No. 10-213 is adopted.
271. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
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 8
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.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 parts 1, 6, 7, and 8 as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 reads as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154, 160, 201,
225, 303, 617 and 618.
2. Amend Sec. 1.80 by redesignating paragraphs (b)(3), (4) and (5)
as paragraphs (b)(4), (5) and (6) and by adding new paragraph (b)(3)
and revising newly redesignated paragraph (b)(4) 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.
(4) In any case not covered in paragraphs (b)(1), (2), or (3) of
this section, the amount of any forfeiture penalty determined under
this section 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
3. The authority citation for part 6 reads as follows:
Authority: 47 U.S.C. 151-154, 251, 255, 303(r), 617, 618.
Subpart D--[Removed]
4. Remove Subpart D, consisting of Sec. Sec. 6.15 through 6.23.
PART 7--ACCESS TO VOICEMAIL AND INTERACTIVE MENU SERVICES AND
EQUIPMENT BY PEOPLE WITH DISABILITIES
5. The authority citation for part 7 reads as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 208, 255, 617, 618.
Subpart D--[Removed]
6. Remove Subpart D, consisting of Sec. Sec. 7.17 through 7.23.
7. Add part 8 to read as follows:
PART 8--ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT BY
PEOPLE WITH DISABILITIES
Subpart A--Scope
Sec.
8.1 Applicability.
8.2 Exclusions.
8.3 Waivers.
Subpart B--Definitions
8.4 Definitions.
Subpart C--Implementation Requirements--What Must Covered Entities Do?
8.5 Obligations
8.6 Performance objectives.
8.7 through 8.15 [Reserved]
Subpart D--Recordkeeping and Enforcement
8.16 Generally.
8.17 Recordkeeping.
8.18 Informal or formal complaints.
8.19 Informal complaints; form and content.
8.20 Procedure; designation of agents for service.
8.21 Answers and replies to informal complaints.
8.22 Review and disposition of informal complaints.
8.23 General pleading requirements.
8.24 Format and content of formal complaints.
8.25 Damages.
[[Page 13838]]
8.26 Joinder of complainants and causes of action.
8.27 Answers.
8.28 Cross-complaints and counterclaims.
8.29 Replies.
8.30 Motions.
8.31 Formal complaints not stating a cause of action; defective
pleadings.
8.32 Discovery.
8.33 Confidentiality of information produced or exchanged by the
parties.
8.34 Other required written submissions.
8.35 Status conference.
8.36 Specifications as to pleadings, briefs, and other documents;
subscription.
8.37 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. 8.1 Applicability.
Subject to the exclusions described in this part, the rules in this
part apply to:
(a) Any provider of advanced communications services, as that term
is defined in this part, offering such services in or affecting
interstate commerce;
(b) Any manufacturer of equipment used for advanced communications
services, including but not limited to end user equipment, network
equipment, and software, that such manufacturer offers for sale or
otherwise distributes in interstate commerce.
Sec. 8.2 Exclusions.
(a) Subject to the exception in paragraph (c) of this section, no
person shall be subject to the requirements of the rules in this part
with respect to advanced communications services or the equipment used
to provide or access such services to the extent such person transmits,
routes, or stores in intermediate or transient storage the
communications made available through the provision of advanced
communications services by a third party.
(b) Subject to the exception in paragraph (c) of this section, no
person shall be subject to the requirements of the rules in this part
with respect to advanced communications services or the equipment used
to provide or access such services to the extent such person 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 video programming, online content,
applications, services, advanced communications services, or equipment
used to provide or access advanced communications services.
(c) The exclusions in paragraphs (a) and (b) 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 this part with respect to the provision of advanced
communications services or the manufacture of equipment used to provide
such services.
(d) 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.
(e) None of the rules in this part shall apply to customized
equipment or services that are not offered directly to the public
regardless of the facilities used. Also, none of the rules in this part
shall apply to customized equipment or services that are not offered to
such classes of users as to be effectively available to the public
regardless of the facilities used. However, this paragraph shall not be
construed to create an exemption for equipment or for services designed
for and used by members of the general public.
Sec. 8.3 Waivers.
Multi-purpose Services and Equipment:
(a) Manufacturer. On its own motion or in response to a petition by
a manufacturer of equipment used to provide or access advanced
communications service or by any interested party, the Commission may
waive the requirements of this part for a feature or function of
equipment used to provide or access advanced communications services,
or for any class of such equipment that:
(1) Is capable of accessing advanced communications services and;
(2) Is designed for multiple purposes, but is designed primarily
for purposes other than providing or accessing advanced communications
services.
(b) Service Provider. On its own motion or in response to a
petition by a provider of advanced communications services or by any
interested party, the Commission may waive the requirements of this
part for a feature or function of equipment used to provide or access
advanced communications services, or for any class of such equipment
that:
(1) Is capable of accessing advanced communications services and;
(2) Is designed for multiple purposes, but is designed primarily
for purposes other than providing or accessing advanced communications
services.
Subpart B--Definitions
Sec. 8.4 Definitions.
(a) The term accessible shall have the meaning provided in Sec.
8.6(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, such that if
accessibility to and usability by individuals with disabilities can be
achieved only by a fundamental alteration to the specific equipment or
service in question, then such accessibility and usability is not
achievable;
(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 and 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.
8.6(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 customized to unique specifications requested by
a consumer and not otherwise available to the general public, including
public safety networks and devices, but shall not apply to equipment
distributed to and
[[Page 13839]]
services used by public or private sector employees, including public
safety employees.
(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, including equipment designed for use by individuals with
disabilities.
(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 desk top computer, a screen, a keyboard, a speaker, or an amplifier.
(l) The term interconnected VoIP service shall have the same
meaning as in Sec. 9.3 of this chapter.
(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 computer network, including routers, network interface
cards, networking cables, modems, and other related hardware.
(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 (CPE); and
(3) Is not 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 proprietary technology shall mean hardware, software,
and services such as devices, Internet service, and software
applications, that are unique and legally owned, or for which a
copyright or license is held, by an entity that does not offer such
technology free or on an open source basis.
(t) 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 a service provider's network.
(u) The term software shall mean computer 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.
(v) The term specialized customer premises equipment shall mean
customer premise equipment which is commonly used by individuals with
disabilities to achieve access.
(w) The term usable shall have the meaning provided in Sec.
8.6(c).
Subpart C--Implementation Requirements--What Must Covered Entities
Do?
Sec. 8.5 Obligations.
(a) General Obligations. (1) 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
(2) 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.
(3) If accessibility is not achievable either by building it in or
by using third party accessibility solutions, then a manufacturer or
service provider shall ensure that its equipment or service is
compatible with existing peripheral devices or specialized customer
premises equipment.
(4) Providers of advanced communications services shall not install
network features, functions, or capabilities that impede accessibility
or usability.
(5) 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.
(b) Product design, development, and evaluation. (1) Manufacturers
and service providers must consider performance objectives set forth in
Sec. 8.7 at the design stage as early and as consistently as possible
and must implement such evaluation to the extent that it is 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 access to information and documentation
they provide to 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.
Sec. 8.6 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
[[Page 13840]]
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 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.
Sec. Sec. 8.7-8.15 [Reserved]
Subpart D--Recordkeeping and Enforcement
Sec. 8.16 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.
(b) The requirements set forth in Sec. 8.17 of this subpart shall
be effective [DATE ONE YEAR AFTER THE EFFECTIVE DATE OF THE FINAL
RULE].
Sec. 8.17 Recordkeeping.
(a) Each manufacturer and service provider subject to sections 255,
716, or 718 of the Act, must maintain, in the ordinary course of
business and for a reasonable period, records of the efforts taken by
such manufacturer or provider to implement sections 255, 716, and 718,
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. The
[[Page 13841]]
officer must state in the certificate that he or she has personal
knowledge that the manufacturer or service provider has established
operating procedures that are adequate to ensure compliance with the
rules in this subpart and that records are being kept in accordance
with this section. The certificate shall identify the agent designated
for service pursuant to Sec. 8.20(b) of this subpart and provide
contact information for this agent.
(c) Upon the service of a complaint, formal or informal, on a
manufacturer or service provider under this section, a copy of the
records maintained by the manufacturer or service provider that are
directly relevant to the equipment or service that is the subject of
the complaint shall be provided to the Commission in accordance with
Sec. 8.21(a) of this subpart. Requests for confidential treatment of
documents or information submitted under this section may be filed in
accordance with Sec. 0.459 of this chapter.
(d) In response to a filed formal or informal complaint, a
manufacturer or service provider may, instead of providing a duplicate
document, record or other information directly related to the equipment
or service that is the subject of the complaint, direct the Commission
to documents or records already in the Commission's possession by
providing sufficient specificity for Commission staff to locate the
relevant record or document or portion thereof, including (title of
proceeding or report, date, page/para. s, etc.).
Sec. 8.18 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. 8.19 Informal complaints; form and content.
(a) An informal complaint alleging a violation of sections 255, 716
or 718 of the Act or this chapter may be transmitted to the Commission
via any reasonable means, e.g., letter, facsimile transmission,
telephone (202-418-2517 (voice); 202-418-2922 (TTY)), Internet-e-mail
(dro@fcc.gov), audio-cassette recording, and Braille.
(b) An informal complaint shall include:
(1) The name, address, e-mail address, and telephone number of the
complainant;
(2) The name and address of the manufacturer or service provider
defendant against whom the complaint is made;
(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 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 this chapter, including details
regarding the service or equipment and the relief requested, and all
documentation that supports the complainant's contention;
(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), Internet e-mail, 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.
Sec. 8.20 Procedure; designation of agents for service.
(a) The Commission shall promptly forward any informal complaint
meeting the requirements of Sec. 8.19 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 this subpart, 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. Such designation
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 Internet e-mail address.
Sec. 8.21 Answers and replies to informal complaints.
(a) Any manufacturer or service provider to whom an informal
complaint is directed by the Commission under this subpart shall file
and serve an answer. The answer shall:
(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 names, titles, and responsibilities of each
decision maker in the evaluation process;
(6) Set forth the manufacturer's basis for determining that it was
not achievable to make the product or service accessible and usable;
(7) 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;
(8) Include a certification by an officer of the manufacturer or
service provider that it was not achievable to make the product or
service accessible and usable;
(9) Set forth any claimed defenses;
(10) Set forth any remedial actions already taken or proposed
alternative relief without any prejudice to any denials or defenses
raised;
(11) Provide any other information or materials specified by the
Commission as relevant to its consideration of the complaint; and
(12) Must be prepared or formatted in the manner requested by the
Commission and the complainant, unless otherwise permitted by the
Commission for good cause shown.
(b) The complainant may file and serve a reply. The reply shall:
(1) Be served on the Commission and the complainant 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. 8.22 Review and disposition of informal complaints.
(a) The Commission will investigate the allegations in any informal
complaint filed that satisfies the requirements of Sec. 8.18(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 therefor, unless
such complaint is resolved before that time.
(b) If the Commission determines in an order issued pursuant to
paragraph
[[Page 13842]]
(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 sections
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. 8.23 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 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. 8.24 Format and content of formal complaints.
(a) Subject to paragraph (e) of this section governing supplemental
complaints filed pursuant to Sec. 8.25 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. 8.30(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
[[Page 13843]]
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.
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. 8.25 shall
conform to the requirements set out in this section and Sec. 8.23 of
this subpart, except that the requirements in Sec. Sec. 8.23(b),
8.24(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.
8.25 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. 8.23(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. 8.25 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. 8.25 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. 8.24(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
[[Page 13844]]
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
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. 8.26 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. 8.27 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. 8.25 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
[[Page 13845]]
(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 of this section.
Such waiver may be granted for good cause shown.
Sec. 8.28 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. 8.23 through 8.37 of this
subpart. For purposes of this subpart, the term ``cross-complaint''
shall include counterclaims.
Sec. 8.29 Replies.
(a) Within three days after service of an answer containing
affirmative defenses presented in accordance with the requirements of
Sec. 8.27(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. 8.30 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. 8.23(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. 8.36(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. 8.36(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
[[Page 13846]]
authority furnished in a pending complaint proceeding as required under
Sec. 8.23(g) of this subpart.
Sec. 8.31 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. 8.32 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 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. 8.35(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. 8.35(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. 8.30 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. 8.33 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
[[Page 13847]]
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. 8.34 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.
(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. 8.24(a)(10)(i), (a)(10)(ii), 8.27(f)(1), (f)(2),
and 8.29(d)(1), (d)(2) of this subpart. Any other supporting
documentation or affidavits that is 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. 8.33 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. 8.35(a) of this subpart.
Sec. 8.35 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
[[Page 13848]]
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.
8.36(d) of this subpart; or
(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. 8.36 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. 8.37 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
[[Page 13849]]
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. 8.25 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 section rather than paragraph (d) of
this section numerals.
[FR Doc. 2011-5348 Filed 3-11-11; 8:45 am]
BILLING CODE 6712-01-P