1. www.dwt.com | www.ssbbartgroup.com FCC Accessible Communications Regulations Legal Update Maria Browne Davis Wright Tremaine Tim Springer SSB BART Group

2. www.dwt.com | www.ssbbartgroup.com Agenda Federal Law Background Policy and Regulatory Updates Waiver Updates Technical Updates Questions & Answers

3. www.dwt.com | www.ssbbartgroup.com Communications Law Background

4. www.dwt.com | www.ssbbartgroup.com Federal Communications Accessibility Laws TV Decoder Circuitry Act, 47 USC 303 (1990) Hearing Aid Compatibility, 47 USC 610 (1983) Carrier Obligation to Provide TRS, 47 USC 225 (1990) Accessible Telecommunications, 47 USC 255 (1996) Closed Captioning of Video Programming, 47 USC 613 (‘96) Accessible ACS, 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)

5. www.dwt.com | www.ssbbartgroup.com 21 st Century Communications Video Accessibility Communications and Video Accessibility Act (CVAA) Title I – Communications –Focused on ensuring accessibility to Internet based services and equipment, including email, text, IP voice and browsers –New record keeping 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 and adding video description obligations

6. www.dwt.com | www.ssbbartgroup.com Corresponding FCC Rule Parts Telecom and VoIP: 47 CFR Parts 6, 7 and 14 ACS: 47 CFR Part 14 Mobile Browsers: 47 CFR Part 14 Hearing Aid Compatibility: 47 CFR 20.19 Relay Services: 47 CFR 64.601 et seq. Closed Captioning, Emergency Video, and Video Description: 47 CFR Part 79

7. www.dwt.com | www.ssbbartgroup.com Sections 255, 616 and 618 Telecommunications, ACS 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 commonly used peripheral devices or specialized CPE Accessibility measured by performance objectives –Safe harbors for compliance with industry standards? (WCAG) Flexibility and uncertainty –What are the limits of usability? Technology outpaces regulation (e.g. TIA-825A)

8. www.dwt.com | www.ssbbartgroup.com 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/https://apps.fcc.gov/rccci-registry/

9. www.dwt.com | www.ssbbartgroup.com Policy and Regulatory Updates

10. www.dwt.com | www.ssbbartgroup.com Recent FCC Developments June classification of BIAS as Telecommunications –ISPs now must comply with Section 255 and FCC Rules Parts 6 (telecom) and 14 (all recordkeeping, complaints) –Must be accessible to and usable by persons with disabilities –FCC notice released Mar. 16 – exempts BIAS from recordkeeping certification this year FCC Caption Quality Standards –In February, FCC amended rules to hold video programmers directly responsible for significant aspects of the provisioning and quality of closed captions, and requires programmers to submit annual certifications to the FCC Video Description Expansion on March 31 Meeting Agenda

11. www.dwt.com | www.ssbbartgroup.com Recent FCC Developments (cont.) In February, FCC Disability Advisory Committee submitted recommendations about: Transitioning TTY to Real Time Text (NPRM); Video description cost benefit analysis for NPRM; Testing compatibility of FCC ACE video platform with 911; Collaboration with other federal agencies (e.g., the U.S. Department of Justice, U.S. Department of Transportation) to address access to captioning and video description in places of public accommodation (such as hotels and airports); and The provision of N-1-1 services through TRS.

12. www.dwt.com | www.ssbbartgroup.com 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)Access Board Current Status - Notice of Proposed Rulemaking (NPRM) Comment period closed May 28, 2015 May have a published regulation in the second half of 2016 –Access Board currently working on addressing comments Procedural Steps –Final regulation and cost analysis goes to OMB –OMB approves rule and cost analysis –Final rule approved by Board Timing Section 508 / 255 Refresh

13. www.dwt.com | www.ssbbartgroup.com Section 508 / 255 Refresh (cont.) Once final rule is published application will trail 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)Access Board FCC goes through its rulemaking process FCC issues final regulations Timing Limitations

14. www.dwt.com | www.ssbbartgroup.com FCC Waiver Updates

15. www.dwt.com | www.ssbbartgroup.com 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)DA 16-113 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

16. www.dwt.com | www.ssbbartgroup.com Video Game Software Extends existing waiver for ACS for "video game software" until January 1, 2017 –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)DA 15-1034 –Third of three classes of a prior waiver –Waiver for other classes expired on October 8, 2015 (Nor did the Entertainment Software Association (ESA) request an extension) 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)DA 15-1034

17. www.dwt.com | www.ssbbartgroup.com TTY Waivers 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) –TIA-825A also known as Baudot doesn’t work for IP

18. www.dwt.com | www.ssbbartgroup.com Technical Updates

19. www.dwt.com | www.ssbbartgroup.com General Themes Moves to a focus on technical standards from a focus on functional standards Use of consensus based technical standards when possible (WCAG 2.0, PDF/UA) –Normalize to WCAG 2.0 as base standard for web, electronic content and software –Harmonizes US with other international standards and regulations Technical standards organized around functional use profile v. product type Functional performance criteria relevant in limited situations Requires Real Time Text (RTT) “wherever a telecommunications product provides real-time, two-way voice communication” Electronic content “integral to the use of ICT” must be accessible

20. www.dwt.com | www.ssbbartgroup.com Standards Structure Overall –Application and Scoping requirements (Chapters 1 & 2) Different between 508 and 255 –Functional performance criteria (Chapter 3) and Technical requirements (Chapters 4, 5 & 6) Technical requirements organized around types of technology versus product types Shared between 508 and 255 Requirements of all relevant technology apply –For example, a mobile phone contains hardware, software and content all in one product –Overlap of product requirements a point of much confusion in the current standards

21. www.dwt.com | www.ssbbartgroup.com Functional Performance Requirements Functional performance requirements only apply in situations where: –A technology standard/guideline does not exist to address the situation –As an equivalent manner to meet the standards when a technique standard cannot be met Theoretically a 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 things much easier to validate Remaining functional performance criteria tweaked for clarity No cognitive requirement

22. www.dwt.com | www.ssbbartgroup.com 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

23. www.dwt.com | www.ssbbartgroup.com 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.” Web = WCAG 2.0 AA –“Level A and Level AA Success Criteria and all Conformance Requirements” Native Applications –WCAG 2.0 AA as applied to the application –Respect platform accessibility settings Non-disruption Support for user settings of color, contrast, font type, font size, and focus cursor

24. www.dwt.com | www.ssbbartgroup.com Content and Documentation Chapter Six All content “integral to the use of ICT” covered Content is very broadly defined –“Electronic information and data, as well as the encoding that defines its structure, presentation, and interactions.” –Examples – Support documentation, onboarding sites, invoices, support sites, e-mails. Content must conform to WCAG 2.0 A & AA requirements Product Documentation –Provide alternative formats for individuals that are blind or low vision on request (at no additional charge) –Provide overview of accessibility features –Provide alternatives for blind and low vision users on request

25. www.dwt.com | www.ssbbartgroup.com Support Services Examples - Help desks, call centers, training services, and automated self-service technical support Required to provide information on accessibility and compatibility features –Recommendation to provide training to CSR reps on accessibility areas Support the communication needs of people with disabilities –Direct or indirect support models are both okay

26. www.dwt.com | www.ssbbartgroup.com Questions?

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

28. www.dwt.com | www.ssbbartgroup.com About SSB BART Group Unmatched Experience Focus on Accessibility Solutions That Manage Risk Real-World Strategy Organizational Strength and Continuity Dynamic, Forward-Thinking Intelligence Fourteen hundred organizations (1445) Fifteen hundred individual accessibility best practices (1595) Twenty-two core technology platforms (22) Fifty-five thousand audits (55,930) One hundred fifty million accessibility violations (152,351,725) Three hundred sixty-six thousand human validated accessibility violations (366,096)

29. www.dwt.com | www.ssbbartgroup.com Applying WCAG What does conformance mean Conform to the A and AA success criteria Conform to the WCAG Conformance RequirementsWCAG Conformance Requirements –Allows alternative versions of content can be used to meet the standards –Define an objective way to determine whether techniques meet the WCAG success criteria –Require systems be usable by assistive technology in a given environment to conform

30. www.dwt.com | www.ssbbartgroup.com Harmonization and Standards Focus on voluntary international consensus standards for core technical requirements –Idea – Bigger accessibility market = better, more accessible solutions –Idea – One global accessibility standard Harmonize with other web and electronic content standards (Australia, New Zealand, Canada, Japan, Germany, France) Harmonize with international standards such as the European Union’s EN 301-549 standard for public procurement of ICT EN 301-549 Ten referenced standards Only really need to care about the Web Content Accessibility Guidelines (WCAG) 2.0 –A and AA success criteria –Conformance requirements PDF/UA-1 can be used for PDF docs