FCC Accessible Communications Regulations Legal Update

CSUN 2017 Assistive Technology Conference Agenda Introductions Level Access Tim Springer, CEO, SSB BART Group Maria Browne, Davis Wright Tremaine Context Discussion Q&A Wi-Fi: CSUN / 2017csun 2:20 PM @ Hillcrest AB, 3rd Floor, Seaport Tower FCC Efforts to Promote Disability Access to Communication Technologies Karen Peltz Strauss CSUN 2017 Assistive Technology Conference

Formerly Known As SSB BART Group Who is Level Access? Formerly Known As SSB BART Group New Corporate Identity – Name and Branding New Website – Coming Spring 2017!! No Change in our Innovative Technology or Excellent Service CSUN 2017 Assistive Technology Conference

Who is Davis Wright Tremaine? Seattle based law firm with offices in NY, DC, SF, LA, Portland, Anchorage, and Shanghai DC based national communications regulatory law practice Advocating before the FCC for 50+ years Helping clients shape FCC accessibility rules and advising clients on FCC accessibility rule compliance for nearly 30 years CSUN 2017 Assistive Technology Conference

Communications Law Background

Federal Communications Accessibility Laws TV Decoder Circuitry Act, 47 USC 303 (1990) Hearing Aid Compatibility, 47 USC 610 (1982, 1988) Carrier Obligation to Provide TRS, 47 USC 225 (1990) (ADA) Accessible Telecommunications, 47 USC 255 (1996) Closed Captioning of Video Programming, 47 USC 613 (‘96) Accessible Advanced Communications, 47 USC 617 (2010) Accessibility Recordkeeping, 47 USC 618 (2010) Accessible Mobile Browsers, 47 USC 619 (2010) Relay Services for Deaf Blind, 47 USC 620 (2010) Video Description, 47 USC 613(f) (2010) CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference The CVAA 21st Century Communications Video Accessibility Communications and Video Accessibility Act (CVAA) Title I – Communications Focus is ensuring accessibility to Internet based services and equipment, including email, text, IP voice and browsers New record keeping and certification obligations Emergency Access Advisory Committee Title II – Video Programming Focused on ensuring video delivery systems are accessible by amending captioning requirements to cover IP delivered programming, adding video description obligations and requiring audible user interfaces, program guides and menus CSUN 2017 Assistive Technology Conference

Corresponding FCC Rule Parts Telecom and VoIP: 47 CFR Parts 6, 7 and 14 Advanced Communications Services: 47 CFR Part 14 Mobile Browsers: 47 CFR Part 14 Hearing Aid Compatibility: 47 CFR 20.19 Telecom Relay Services: 47 CFR 64.601 et seq. Closed Captioning, Emergency Video, and Video Description: 47 CFR Part 79 CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Sections 255, 616 and 618 Telecommunications (incl. Internet Access), Advanced Communications Services and Mobile Browsers must be accessible to and usable by persons with disabilities if (readily) achievable Built in, using third party solution, or compatible with commonly used peripheral devices or specialized CPE Accessibility measured by performance objectives Safe harbor for compliance with industry standards Flexibility and uncertainty What are the limits of usability? Technology outpaces regulation (e.g. TIA-825A) CSUN 2017 Assistive Technology Conference

FCC Recordkeeping and Certification Covered telecommunications and ACS manufacturers and service providers must keep contemporaneous records of efforts to make products accessible and usable Efforts to consult with individuals with disabilities Descriptions of accessibility features of products/services Information about compatibility with common accessibility tools Officer must certify to compliance, subject to penalty of perjury, annually by APRIL 1 FCC Online Registry at https://apps.fcc.gov/rccci-registry/ CSUN 2017 Assistive Technology Conference

Policy and Regulatory Updates

Recent FCC Developments Real Time Text (RTT) Order Released December 15, 2016 Permits wireless service providers/handset manufacturers to support RTT in lieu of TTY technology; Ensures RTT users will be able to call 911 for emergency services and 711 for relay services; Defines RTT to be interoperable across networks/devices and backward compatible with TTYs;  and Establishes a phased rollout of RTT for wireless networks from December 31, 2017 to June 2021. Further Notice of Proposed Rulemaking, proposes: A timeline to sunset its requirement for RTT to be backward compatible with TTY; Integration of RTT into TRS, and RTT features for people with cognitive disabilities and people who are deaf-blind. Comments were due Feb. 22, 2017, reply comments due March 24, 2017 T-Mobile Petition for Clarification/Reconsideration Re shifting burden of conversion of RTT to TTY from ESINet to carriers CSUN 2017 Assistive Technology Conference

Recent FCC Developments (cont.) Closed Captioning Closed Captioning Responsibility Order issued Feb. 2016 Amends FCC Rule 79.1 Adds (m) – Programmer Certification Effective Sept. 2016 except provisions subject to OMB approval New: programmer certification to FCC due July 1, 2017 Certify that network provides captions in compliance with FCC rules and satisfies caption quality standards or follows FCC Best Practices (79.1(m)) Pending OMB approval Alliance for Community Media PEG Waiver Petition Waive closed captioning registration and certification requirements for entities that provide video programming exclusively to public, educational, and governmental access channels (PEG channels) NCTA seeks clarification does not extend to individual programmers CSUN 2017 Assistive Technology Conference

Video Programming User Interfaces FCC Developments Video Programming User Interfaces As of December 20, 2016: Navigation Devices: Manufacturers and all but smallest MVPDs must ensure on screen text menus and guides are audibly accessible Video programming digital apparatus: built-in functions, on screen text menus, built-in visual indicators used to access functions must be audibly accessible Honda Motor Co. Waiver request For rear entertainment systems CSUN 2017 Assistive Technology Conference

Recent FCC Developments (cont.) Video Description April 1, 2016 Notice of Proposed Rulemaking (NPRM) proposing to:    Increase the amount of described programming on each included network carried by a covered broadcast station or multichannel video programming distributor, from 50 hours per calendar quarter to 87.5 (a 75% increase); Increase number of networks required to provide video description from four broadcast and five non-broadcast networks to five broadcast and ten non-broadcast networks; Create a “no-backsliding” rule, so a network would remain subject to the rules even if it is no longer one of the top five or top ten ranking networks; and Require video programming distributors to provide proper customer support contacts in order to improve consumer access to video description.  The NPRM also seeks comment on other matters, such as a potential requirement for described video-on-demand programming, a dedicated audio stream for video description, and a change of terminology from “video described” to “audio described.”  CSUN 2017 Assistive Technology Conference

Recent FCC Developments (cont.) Telecom/ACS June 2015 classification of BIAS as Telecommunications ISPs now must comply with Section 255 and FCC Rules Parts 6 (telecom); Part 14 Recordkeeping requirements still on hold Must be accessible to and usable by persons with disabilities FCC reports having resolved 43 informal complaints without elevating to formal complaint status; in recent staff conversations, seeming to be taking a more flexible approach to compliance CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Section 508 / 255 Refresh Section 508 and Section 255 Refreshes occurring in parallel Goal “ensure consistency in accessibility across the spectrum of communication and electronic and information technologies and products” (Access Board) Final rule published on January 18th, 2017, Effective March 21st, 2017 Still in 60-day congressional review period Technical recommendation from Access Board goes to FCC “The FCC is responsible for enforcing Section 255 and issuing implementing regulations; it is not bound to adopt the Access Board’s guidelines as its own or to use them as minimum requirements.” (Access Board) Compliance required FCC goes through its rulemaking process FCC issues final regulations Note: Section 508 is Section 508 of the Rehabilitation Act Section 255 is Section 255 of the Communications Act. CSUN 2017 Assistive Technology Conference

FCC Waiver Updates

CSUN 2017 Assistive Technology Conference eReaders Waiver for eReaders extended indefinitely from February 1, 2016 on Commission will review status every three years “We conclude that this narrow class of e-readers, while capable of accessing ACS, continues to be designed primarily for reading text-based digital works, not for ACS” (DA 16-113 ¶1) What’s the narrow class? Designed primarily for the purpose of reading text-based digital works Marketed to consumers as a reading device Promotional material about the device does not tout the capability to access ACS No LCD screen, no camera Not offered or shipped with built-in ACS applications The device manufacturer does not develop ACS applications for the device May be offered or shipped to consumers with a browser and social media applications https://apps.fcc.gov/edocs_public/attachmatch/DA-16-113A1.pdf Class notes Designed primarily for the purpose of reading text-based digital works, such as books and periodicals Has no LCD screen, but rather utilizes a screen that is designed to optimize reading. Has no camera Is not offered or shipped to consumers with built-in ACS client applications and the device manufacturer does not develop ACS applications for its respective device …but may be offered or shipped to consumers with a browser and social media applications Marketed to consumers as a reading device Promotional material about the device does not tout the capability to access ACS CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Video Game Software FCC again extends the existing waiver for ACS for “video game software” until December 31, 2017, subject to ESA submitting a progress report to the Bureau on June 30, 2017 on the industry’s progress towards achieving accessible ACS in video game software. Video game software defined as “playable games on any hardware or online platform, including game applications that are built into operating system software” (DA 15-1034 ¶16) Key issues Marketing for video game software not focused on ACS Platform support for ACS only now being developed Effective enablement requires platform and software support We remain mindful of the competing public interests at stake – i.e., the ability of consumers with disabilities to use ACS to both communicate with others in the video game environment to compete effectively and to engage in communication that is unrelated to game play, versus the gaming industry’s interest in releasing innovative games and allowing video games that have ACS to compete with other video game products. (DA 15-1034 ¶18) https://apps.fcc.gov/edocs_public/attachmatch/DA-15-1034A1_Rcd.pdf The key issue that differentiates this from the eReaders is “whether the ACS functionality or feature is suggested to consumers as a reason for purchasing, installing, downloading, or accessing the equipment or service?” For the eReaders this is a pretty clear “No”. For Video Game Software the situation is far more complicated and subtle. Thus a short term extension. Other classes now covered: Class I – game consoles, both home and handheld, and their peripherals and integrated online networks Class II – game distribution and online game play services that distribute game software or enable online game play across a network, regardless of the device from which it is accessed “We remain mindful of the competing public interests at stake – i.e., the ability of consumers with disabilities to use ACS to both communicate with others in the video game environment to compete effectively and to engage in communication that is unrelated to game play, versus the gaming industry’s interest in releasing innovative games and allowing video games that have ACS to compete with other video game products.” (DA 15-1034 ¶18) The quote is a good one from the rulemaking as it highlights the balance the FCC is seeking in this area. CSUN 2017 Assistive Technology Conference

Waivers for Compliance with TTY Technology: TTY Waivers Waivers for Compliance with TTY Technology: 31 Small Rural Iowa Wireless Carriers Issued January 2017, expires June 30, 2020, earliest RTT implementation date set for Petitioners, who are non-Tier I service providers Must notify consumers that IP-based wireless services will not support TTY technology for calls to 911, of alternative text based accessible solution using iWireless website, and file TTY progress reports with FCC AT&T/Verizon TTY-RTT Transition Waiver Orders Expires December 31, 2017, or upon the effective date of rules providing for alternative IP-based wireless accessibility solutions, whichever is earlier Requires subscriber conspicuous/ubiquitous notice that IP wireless does not support 911 and bi-annual status updates to FCC on progress of RTT transition Supported by Emergency Access Advisory Committee Report on TTY Transition (2013) CSUN 2017 Assistive Technology Conference

Questions?

Thank You Follow Us Contact Us @DWTLaw @SSBBARTGroup Maria Browne Partner, Davis Wright Tremaine MariaBrowne@dwt.com Tim Springer CEO, SSB BART Group tim.springer@ssbbartgroup.com @DWTLaw @SSBBARTGroup davis-wright-tremaine-llp SSB-BART-Group dwtlaw SSBBARTGroup http://www.medialawmonitor.com/ http://www.broadbandlawadvisor.com/ http://www.ssbbartgroup.com/blog/

Appendix A Technical Updates

CSUN 2017 Assistive Technology Conference General Themes Moves focus to technical standards from functional standards Product based approach based on ICT function Functional performance criteria limited to specific situations Safe harbor with conforming technical implementation? Broad use of consensus based technical standards Normalized to WCAG 2.0 as base standard for web, electronic content and software Harmonizes US with other international standards notably EN 301 549 Requires Real Time Text (RTT) “wherever a telecommunications product provides real-time, two-way voice communication” Supporting electronic documentation must be WCAG 2.0 conformant Supporting services must “accommodate the communication needs of individuals with disabilities.” “C202 Functional Performance Criteria - C202.1 General.  - Where the requirements in Chapters 4 and 5 do not address one or more features of ICT, the features not addressed shall conform to the Functional Performance Criteria specified in Chapter 3.” Functional performance criteria only relevant where not covered by technical requirements TRS to real-time text is a key change over here CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Standards Structure 36 CFR 1194.2 – Guidelines for Section 255 of the Communications Act. Reference Appendix B and C Appendix B to Part 1194 255 Chapter 1: Application and Administration C101 General C102 Referenced Standards C103 Definitions 255 Chapter 2: Scoping Requirements C201 Application C202 Functional Performance Criteria C203 Electronic Content C204 Hardware C205 Software C206 Support Documentation and Services CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Standards Structure Appendix C Chapter 3: Functional Performance Criteria  301 General 302 Functional Performance Criteria Chapter 4: Hardware 401 General 402 Closed Functionality 403 Biometrics 404 Preservation of Information Provided for Accessibility 405 Privacy 406 Standard Connections 407 Operable Parts 408 Display Screens 409 Status Indicators 410 Color Coding 411 Audible Signals 412 ICT with Two-Way Communication 413 Closed Caption Processing Technologies 414 Audio Description Processing Technologies 415 User Controls for Captions and Audio Descriptions Chapter 5: Software 501 General 502 Interoperability with Assistive Technology 503 Applications 504 Authoring Tools Chapter 6: Support Documentation and Services  601 General 602 Support Documentation 603 Support Services Chapter 7: Referenced Standards 701 General 702 Incorporation by Reference Shared between Section 508 standards and Section 255 guidelines. Concept is you pick the relevant requirements for the portion of the product you are assessing. So if it’s a smartphone there are aspects related to hardware, aspects related to hardware and aspects related to supporting documentation and services. CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Requirements Technical Defined in Chapters 4 - 7 of Appendix C Primary method of determining compliance Theoretical safe harbor for products that are technically compliant but not usable by people with disabilities Practically unlikely to be the case In practice should make conformance easier to validate Functional Performance Defined in Chapters 3 of Appendix C Only applies in situations where: A technical requirement does not exist to address the situation When testing equivalent facilitation claims Remaining functional performance criteria tweaked for clarity Added a cognitive functional performance requirement Section 255 mobile phones won't be required to have TTS output Sec 255 guidelines that mobile apps integral to use & has a UI that it must conform to requirements 255 TTY comparability is still required w/ support for emergency call #a11y CSUN 2017 Assistive Technology Conference

Hardware Requirements Chapter Four “A tangible device, equipment, or physical component of ICT, such as telephones, computers, multifunction copy machines, and keyboards” Requirements Speech output Volume control Displayed text Biometrics Pass-through of accessibility information Flashing limitation Standard Connections Operable Parts Display Screens Transactional Outputs Two-Way Voice Communication Closed Caption Processing Technologies Audio Description Processing Technology User Controls for Captions and Audio Description This is the biggest technical standard as it is broadly proprietary to the 508 / 255 Refresh versus being based on a consensus standard. As such it has a lot of detailed requirements. CSUN 2017 Assistive Technology Conference

Software Requirements Chapter Five “Programs, procedures, rules, and related data and documentation that direct the use and operation of ICT and instruct it to perform a given task or function. Software includes, but is not limited to, applications, non-Web software, and platform software.” Web = WCAG 2.0 AA “Level A and Level AA Success Criteria and all Conformance Requirements” Native WCAG 2.0 AA as applied to native applications and platforms Respect platform accessibility settings Non-disruption Support for user settings of color, contrast, font type, font size, and focus cursor CSUN 2017 Assistive Technology Conference

Support Documentation Chapter Six Content “integral to the use of telecommunications or customer premises equipment” covered Must provide a list of accessibility and compatibility features If content is provided in electronic format must conform to WCAG 2.0 A & AA requirements If content is provided in non-electronic formats must be provided on request “We anticipate that most manufacturers and agencies will provide accessible softcopy to those that need it” CSUN 2017 Assistive Technology Conference

CSUN 2017 Assistive Technology Conference Support Services Examples - Help desks, call centers, training services, and automated self- service technical support Required to provide information on accessibility and compatibility features Support the communication needs of people with disabilities Direct or indirect support models are okay Unclear if this requires support services to be directly accessible CSUN 2017 Assistive Technology Conference