Implementing the Provisions of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010, 13800-13849 [2011-5348]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Proposed Rules]
[Pages 13800-13849]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5348]



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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

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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: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: https://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 https://wireless.fcc.gov/edocs_public/attachment/FCC-11-37A1doc. This full text may also be downloaded at: 
https://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

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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

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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