Implementing the Provisions of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010, 82354-82402 [2011-31162]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82354-82402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31162]



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Vol. 76

Friday,

No. 251

December 30, 2011

Part II





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; Final Rule

Federal Register / Vol. 76 , No. 251 / Friday, December 30, 2011 / 
Rules and Regulations

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 6, 7, and 14

[CG Docket No. 10-213; WT Docket No. 96-198; CG Docket No. 10-145; FCC 
11-151]


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: Final rule.

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SUMMARY: In this document, the Commission adopts rules that implement 
provisions of section 104 of the Twenty-First Century Communications 
and Video Accessibility Act of 2010 (CVAA), Public Law 111-260, the 
most significant accessibility legislation since the passage of the 
Americans with Disabilities Act (ADA) in 1990. A Proposed Rule relating 
to implementation of section 718 of the Communications Act of 1934, as 
enacted by the CVAA, is published elsewhere in this issue of the 
Federal Register. This proceeding amends the Commission's rules to 
ensure that people with disabilities have access to the incredible and 
innovative communications technologies of the 21st-century. These rules 
are significant and necessary steps towards ensuring that the 54 
million Americans with disabilities are able to fully utilize and 
benefit from advanced communications services (ACS). People with 
disabilities often have not shared in the benefits of this rapid 
technological advancement. The CVAA implements steps in addressing this 
inequity by advancing the accessibility of ACS in a manner that is 
consistent with our objectives of promoting investment and innovation. 
This is consistent with the Commission's commitment to promote rapid 
deployment of and universal access to broadband services for all 
Americans.

DATES: Effective January 30, 2012, except 47 CFR 14.5, 14.20(d), 14.31, 
14.32, and 14.34 through 14.52, which contain information collection 
requirements that have not been approved by the Office of Management 
and Budget (OMB). The Commission will publish a document in the Federal 
Register announcing the effective date of those sections.

FOR FURTHER INFORMATION CONTACT: Rosaline Crawford, Consumer and 
Governmental Affairs Bureau, at (202) 418-2075 or 
rosaline.crawford@fcc.gov; Brian Regan, Wireless Telecommunications 
Bureau, at (202) 418-2849 or brian.regan@fcc.gov; or Janet Sievert, 
Enforcement Bureau, at (202) 418-1362 or janet.sievert@fcc.gov. For 
additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Cathy Williams, Federal Communications Commission, at (202) 418-2918, 
or via email Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 11-151, adopted and released on October 7, 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 email at fcc@bcpiweb.com. The complete text is also 
available on the Commission's Web site at https://hraunfoss.fcc.gov/edocs_public/attachment/FCC-11-151A1doc. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an email to fcc504@fcc.gov or 
call the Consumer and Governmental Affairs Bureau (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Final Paperwork Reduction of 1995 Analysis

    This document contains new and modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection requirements contained in document FCC 11-151 as 
required by the PRA of 1995, Public Law 104-13. In addition, we note 
that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought 
specific comment on how the Commission might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.
    In this proceeding, we adopt new recordkeeping rules that provide 
clear guidance to covered entities on the records they must keep to 
demonstrate compliance with our new rules. We require covered entities 
to keep the three categories of records set forth in section 
717(a)(5)(A) of the CVAA. We also require annual certification by a 
corporate officer that the company is keeping the required records. We 
have assessed the effects of these rules and find that any burden on 
small businesses will be minimal because we have adopted the minimum 
recordkeeping requirements that allow covered entities to keep records 
in any format they wish. This approach takes into account the variances 
in covered entities (e.g., size, experience with the Commission), 
recordkeeping methods, and products and services covered by the CVAA. 
Furthermore, this approach provides the greatest flexibility to small 
businesses and minimizes the impact that the statutorily mandated 
requirements impose on small businesses. Correspondingly, we considered 
and rejected the alternative of imposing a specific format or one-size-
fits-all system for recordkeeping that could potentially impose greater 
burdens on small businesses. Moreover, the certification requirement is 
possibly less burdensome on small businesses than large, as it merely 
requires certification from an officer that the necessary records were 
kept over the previous year; this is presumably a less resource 
intensive certification for smaller entities. Finally, we adopt a 
requirement that consumers must file a ``Request for Dispute 
Assistance'' with the Consumer and Governmental Affairs' Disability 
Rights Office as a prerequisite to filing an informal complaint with 
the Enforcement Bureau. This information request is beneficial because 
it will trigger Commission involvement before a complaint is filed and 
will benefit both consumers and industry by helping to clarify the 
accessibility needs of consumers. It will also encourage settlement 
discussions between the parties in an effort to resolve accessibility 
issues without the expenditure of time and resources in the informal 
complaint process. We also note that we have temporarily exempted small 
entities from the rules we have adopted herein while we consider, in 
the Accessibility FNPRM, whether we should grant a permanent exemption, 
and what criteria should be associated with such an exemption.

Synopsis

I. Executive Summary

    1. In this Report and Order, we conclude that the accessibility 
requirements of section 716 of the Act apply to non-interconnected VoIP 
services, electronic messaging services,

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and interoperable video conferencing services. We implement rules that 
hold entities that make or produce end user equipment, including 
tablets, laptops, and smartphones, responsible for the accessibility of 
the hardware and manufacturer-provided software used for email, SMS 
text messaging, and other ACS. We also hold these entities responsible 
for software upgrades made available by such manufacturers for download 
by users. Additionally, we conclude that, except for third-party 
accessibility solutions, there is no liability for a manufacturer of 
end user equipment for the accessibility of software that is 
independently selected and installed by the user, or that the user 
chooses to use in the cloud. We provide the flexibility to build-in 
accessibility or to use third-party solutions, if solutions are 
available at nominal cost (including set up and maintenance) to the 
consumer. We require covered entities choosing to use third-party 
accessibility solutions to support those solutions for the life of the 
ACS product or service or for a period of up to two years after the 
third-party solution is discontinued, whichever comes first. If the 
third-party solution is discontinued, however, another third-party 
accessibility solution must be made available by the covered entity at 
nominal cost to the consumer. If accessibility is not achievable either 
by building it in or by using third-party accessibility solutions, 
equipment or services must be compatible with existing peripheral 
devices or specialized customer premises equipment commonly used by 
individuals with disabilities to achieve access, unless such 
compatibility is not achievable.
    2. We also conclude that providers of advanced communications 
services include all entities that offer advanced communications 
services in or affecting interstate commerce, including resellers and 
aggregators. Such providers include entities that provide advanced 
communications services 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. Consistent with our 
approach for manufacturers of equipment, we find that a provider of 
advanced communications services is responsible for the accessibility 
of the underlying components of its service, including software 
applications, to the extent that doing so is achievable. A provider 
will not be responsible for the accessibility of components that it 
does not provide, except when the provider relies on a third-party 
solution to comply with its accessibility obligations.
    3. We adopt rules identifying the four statutory factors that will 
be used to conduct an achievability analysis pursuant to section 716: 
(i) The nature and cost of the steps needed to meet the requirements of 
section 716 of the Act and this part with respect to the specific 
equipment or service in question; (ii) the technical and economic 
impact on the operation of the manufacturer or provider and on the 
operation of the specific equipment or service in question, including 
on the development and deployment of new communications technologies; 
(iii) the type of operations of the manufacturer or provider; and (iv) 
the extent to which the service provider or manufacturer in question 
offers accessible services or equipment containing varying degrees of 
functionality and features, and offered at differing price points. 
Pursuant to the fourth achievability factor, we conclude that covered 
entities do not have to consider what is achievable with respect to 
every product, if such entity offers consumers with the full range of 
disabilities products with varied functions, features, and prices. We 
also conclude that ACS providers have a duty not to install network 
features, functions, or capabilities that impede accessibility or 
usability.
    4. We adopt rules pursuant to section 716(h)(1) to accommodate 
requests to waive the requirements of section 716 for ACS and ACS 
equipment. We conclude that we will grant waivers on a case-by-case 
basis and adopt two factors for determining the primary purpose for 
which equipment or a service is designed. We will consider whether the 
equipment or service is capable of accessing ACS and whether it was 
designed for multiple purposes but primarily for purposes other than 
using ACS. In determining whether the equipment or service is designed 
primarily for purposes other than using ACS, the Commission shall 
consider the following factors: (i) whether the product was designed to 
be used for ACS purposes by the general public; and (ii) whether the 
equipment or services are marketed for the ACS features and functions.
    5. Our new accessibility rules further provide that we may also 
waive, on our own motion or in response to a petition, the requirements 
of section 716 for classes of services and equipment that meet the 
above statutory requirements and waiver criteria. To be deemed a class, 
members of a class must have the same kind of equipment or service and 
same kind of ACS features and functions.
    6. We further conclude that the Commission has the discretion to 
place time limits on waivers. The waiver will generally be good for the 
life of the product or service model or version. However, if 
substantial upgrades are made to the product that may change the nature 
of the product or service, a new waiver request must be filed. Parties 
filing class waiver requests must explain in detail the expected 
lifecycle for the equipment or services that are part of the class. All 
products and services covered by a class waiver that are introduced 
into the market while the waiver is in effect will ordinarily be 
subject to the waiver for the duration of the life of those particular 
products and services. For products and services already under 
development at the time when a class waiver expires, the achievability 
analysis conducted may take into consideration the developmental stage 
of the product and the effort and expense needed to achieve 
accessibility at that point in the developmental stage. To the extent a 
class waiver petitioner seeks a waiver for multiple generations of 
similar equipment and services, we will examine the justification for 
the waiver extending through the lifecycle of each discrete generation.
    7. We adopt a timeline for consideration of waiver requests similar 
to the Commission's timeline for consideration of applications for 
transfers or assignments of licenses or authorizations relating to 
complex mergers. We delegate to the Consumer and Governmental Affairs 
Bureau the authority to act upon all waiver requests, and urge the 
Bureau to act promptly with the goal of completing action on each 
waiver request within 180 days of public notice. In addition, we 
require that all public notices of waiver requests provide a minimum 
30-day comment period. Finally, we note that these public notices will 
be posted and highlighted on a Web page designated for disability-
related information in the Disability Rights Office section of the 
Commission's Web site.
    8. The Commission has already received requests for class waivers 
for gaming equipment, services, and software, and TVs and Digital Video 
Players (``DVPs'') enabled for use with the Internet. While we conclude 
that the record is insufficient to grant waivers for gaming and IP-
enabled TVs and DVPs, parties may re-file requests consistent with the 
new waiver rules.
    9. We construe section 716(i) of the Act to provide a narrow 
exemption from

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the accessibility requirements of section 716. Specifically, we 
conclude that equipment that is customized for the unique needs of a 
particular entity, and that is not offered directly to the public, is 
exempt from section 716. We conclude that this narrow exemption should 
be limited in scope to customized equipment and services offered to 
business and other enterprise customers only. We also conclude that 
equipment manufactured for the unique needs of public safety entities 
falls within this narrow exemption.
    10. We find that the record does not contain sufficient support to 
adopt a permanent exemption for small entities. Nonetheless, we believe 
that relief is necessary for small entities that may lack the legal, 
technical, or financial ability to conduct an achievability analysis or 
comply with the recordkeeping and certification requirements under 
these rules. Therefore, we adopt a temporary exemption for ACS 
providers and ACS equipment manufacturers that qualify as small 
business concerns under the Small Business Administration's rules and 
small business size standards. The temporary exemption will expire on 
the earlier of (1) the effective date of small entity exemption rules 
adopted pursuant to the Further Notice of Proposed Rulemaking released 
simultaneously with this order (``Accessibility FNPRM''), or (2) 
October 8, 2013.
    11. We adopt as general performance objectives the requirements 
that covered equipment and services be accessible, compatible, and 
usable. We defer consideration of more specific performance objectives 
to ensure the accessibility, usability, and compatibility of ACS and 
ACS equipment until the Access Board adopts Final Guidelines and the 
Emergency Access Advisory Committee (EAAC) provides recommendations to 
the Commission relating to the migration to IP-enabled networks. 
Additionally, consistent with the views of the majority of the 
commenters, we refrain from adopting any technical standards as safe 
harbors for covered entities. To facilitate the ability of covered 
entities to implement accessibility features early in product 
development cycles, we gradually phase in compliance requirements for 
accessibility, with full compliance required by October 8, 2013.
    12. We also adopt new recordkeeping rules that provide clear 
guidance to covered entities on the records they must keep to 
demonstrate compliance with our new rules. We require covered entities 
to keep the three categories of records set forth in section 
717(a)(5)(A). We remind covered entities that do not make their 
products or services accessible and claim as a defense that it is not 
achievable for them to do so, that they bear the burden of proof on 
this defense.
    13. In an effort to encourage settlements, we adopt a requirement 
that consumers must file a ``Request for Dispute Assistance'' with the 
Consumer and Governmental Affairs' Disability Rights Office as a 
prerequisite to filing an informal complaint with the Enforcement 
Bureau. We also establish minimum requirements for information that 
must be contained in an informal complaint. While we also adopt formal 
complaint procedures, we decline to require complainants to file 
informal complaints prior to filing formal complaints.

II. Report and Order

1. Advanced Communications Services

a. General
    14. 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. We will adopt into our rules 
the statutory definition of ``advanced communications services.'' We 
thus agree with commenters that urge us to include all offerings of 
services that meet the statutory definitions as being within the scope 
of our rules. In doing so, we maintain the balance that Congress 
achieved in the CVAA between promoting accessibility through a broadly 
defined scope of covered services and equipment and ensuring industry 
flexibility and innovation through other provisions of the Act, 
including limitations on liability, waivers, and exemptions.
    15. Some commenters asserted that the Commission should exclude 
from the definition of advanced communications services such services 
that are ``incidental'' components of a product. We reject this view. 
Were the Commission to adopt that approach, it would be rendering 
superfluous section 716's waiver provision, which allows the Commission 
to waive its requirements for services or equipment ``designed 
primarily for purposes other than using advanced communications 
service.'' Several parties also ask the Commission to read into the 
statutory definition of advanced communications services the phrase 
``offered to the public.'' They argue that we should exclude from our 
definition advanced communications services those services that are 
provided on an ``incidental'' basis because such services are not 
affirmatively ``offered'' by the provider or equipment. There is 
nothing in the statute or the legislative history that supports this 
narrow reading. Section 3(1) of the Act clearly states that the 
enumerated services are themselves ``advanced communications services'' 
when provided, and does not limit the definition to the particular 
marketing focus of the manufacturers or service providers.
b. Interconnected VoIP Service
    16. 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 from time 
to time. Section 9.3, 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. As urged by commenters, 
we adopt the definition of ``interconnected VoIP service'' as having 
the same meaning as in Sec.  9.3 of the Commission's rules, as such 
section may be amended from time to time. Given that this definition 
has broad reaching applicability beyond this proceeding, we find that 
any changes to this definition should be undertaken in a proceeding 
that considers the broader context and effects of any such change.
    17. We confirm that section 716(f) means that section 255, and not 
section 716, applies to telecommunications and interconnected VoIP 
services and equipment offered as of October 7, 2010. Our proposed rule 
read, in part, that ``the requirements of this part shall not apply to 
any equipment or services * * * that were subject to the requirements 
of section 255 of the Act on October 7, 2010.'' We decline to amend our 
proposed rule by substituting the word ``were'' with the word ``are,'' 
as urged by NCTA. The statute makes clear that any equipment or service 
that was subject to section 255 on October 7, 2010, should continue to 
be subject to section 255, regardless of whether that equipment or 
service was offered before or after October 7, 2010. With respect to a 
new service (and equipment used for that service) that was not in 
existence on October 7, 2010, we believe we have the authority to 
classify the service as a service subject to either section 255 or 
section 716 (or

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neither). In addition, Congress anticipated that the definition of 
interconnected VoIP service may change over time. In that event, it is 
possible, for example, that certain non-interconnected VoIP services 
that are currently subject to section 716 may meet a future definition 
of interconnected VoIP services and yet remain subject to section 716.
    18. With respect to multipurpose devices, including devices used 
for both telecommunications and advanced communications services, we 
agree with the vast majority of commenters that argued that section 255 
applies to telecommunications services and to services classified as 
interconnected VoIP as of October 7, 2010, as well as to equipment 
components used for those services, and section 716 applies to non-
interconnected VoIP, electronic messaging, and interoperable video 
conferencing services, as well as equipment components used for those 
services. We reject the suggestion of some commenters that such 
multipurpose devices should be governed exclusively by section 255. 
Nothing in the statute or legislative history indicates that Congress 
sought to exclude from the requirements of section 716 a device used 
for advanced communications merely because it also has 
telecommunications or interconnected VoIP capability. Rather, both the 
House Report and the Senate Report state that smartphones represent a 
technology that Americans rely on daily and, at the same time, a 
technological advance that is often still not accessible to individuals 
with disabilities. If multipurpose devices such as smartphones were 
subject exclusively to section 255, then the advanced communications 
services components of smartphones, which are not subject to section 
255, would not be covered by section 716. That is, there would be no 
requirement to make the advanced communications services components of 
multipurpose devices such as smartphones accessible to people with 
disabilities. Such an approach would, therefore, undermine the very 
purpose of the CVAA.
    19. Due to the large number of multipurpose devices, including 
smartphones, tablets, laptops and desktops, that are on the market, if 
section 716(f) were interpreted to mean that section 716 applies only 
to equipment that is used exclusively for advanced communications 
services, and that section 255 applies only to equipment that is used 
exclusively for telecommunications and interconnected VoIP services, 
almost no devices would be covered by section 716 and only stand-alone 
telephones and VoIP phones would be covered by section 255. That 
reading would undercut Congress's clear aim in enacting the CVAA. Such 
a result is also contrary to how section 255 is currently applied to 
multipurpose equipment and services. Under Commission rules 
implementing section 255, ``multipurpose equipment * * * is covered by 
section 255 only to the extent that it provides a telecommunications 
function'' and not ``to all functions * * * whenever the equipment is 
capable of any telecommunications function.'' Similarly, ``[a]n entity 
that provides both telecommunications and non-telecommunications 
services * * * is subject to section 255 only to the extent that it 
provides a telecommunications service.'' We also disagree with 
commenters that suggest that such multipurpose devices should be 
governed exclusively by section 716. Such an interpretation would 
render section 716(f) meaningless.
    20. We recognize that the application of section 255 and section 
716 to such multipurpose devices means that manufacturers and service 
providers may be subject to two distinct requirements, but as discussed 
above, we believe any other interpretation would be inconsistent with 
Congressional intent. As a practical matter, we note that the nature of 
the service or equipment that is the subject of a complaint--depending 
on the type of communications involved--will determine whether section 
255 or section 716, or both, apply in a given context.
c. Non-interconnected VoIP Service
    21. 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 ``does not include any service that is an 
interconnected VoIP service.'' The IT and Telecom RERCs urge us to 
modify the statutory definition of non-interconnected VoIP to read 
``any VoIP that is not interconnected VoIP.'' They are concerned that 
the language in section 3(36) which reads ``does not include any 
service that is an interconnected VoIP service'' could be interpreted 
to mean that if a service ``includes both interconnected and non-
interconnected VoIP, then all the non-interconnected [VoIP] is exempt 
because it is bundled with an interconnected VoIP service.'' In 
response to these concerns, we clarify that a non-interconnected VoIP 
service is not exempt simply because it is bundled or provided along 
with an interconnected VoIP service. Accordingly, we agree with other 
commenters that it is unnecessary and not appropriate to change the 
statutory definition and hereby adopt the definition of ``non-
interconnected VoIP service'' set forth in the Act.
d. Electronic Messaging Service
    22. 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.'' We adopt, as proposed, the 
definition of ``electronic messaging service'' contained in the Act. We 
agree with most commenters and find it consistent with the Senate and 
House Reports that electronic messaging service includes ``more 
traditional, two-way interactive services such as text messaging, 
instant messaging, and electronic mail, rather than * * * blog posts, 
online publishing, or messages posted on social networking Web sites.'' 
While some common features of social networking sites thus fall outside 
the definition of ``electronic messaging service,'' other features of 
these sites are covered by sections 716 and 717. The Wireless RERC 
asserts that, to the extent a social networking system provides 
electronic messaging services as defined in the Act, those services 
should be subject to sections 716 and 717. While the statute does not 
specifically reference the use of electronic messaging services as part 
of a social networking site, the comments referenced above in the 
Senate and House Reports suggest it was well aware that such aspects of 
social networking sites would fall under the Act. The reports 
specifically exclude ``messages posted on social networking Web 
sites,'' but do not exclude the two-way interactive services offered 
through such Web sites. We therefore conclude that to the extent such 
services are provided through a social networking or related site, they 
are subject to sections 716 and 717 of the Act.
    23. We also find, as proposed in the Accessibility NPRM, that the 
phrase ``between individuals'' 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. Such exchanges between devices 
are also excluded from the definition of electronic messaging

[[Page 82358]]

service when they are not ``messages in text form.'' The definitional 
requirement that electronic messaging service be ``between 
individuals'' also excludes human-to-machine or machine-to-human 
communications.
    24. We conclude that section 2(a) of the CVAA exempts entities, 
such as Internet service providers, from liability for violations of 
section 716 when they are acting only to transmit covered services or 
to provide an information location tool. Thus, service providers that 
merely provide access to an electronic messaging service, such as a 
broadband platform that provides an end user with access to a web-based 
email service, are excluded from the accessibility requirements of 
section 716.
e. Interoperable Video Conferencing Service
    25. An ``interoperable video conferencing service'' is one of the 
enumerated ``advanced communications services'' in the CVAA. Such a 
service is defined by the CVAA as one ``that provides real-time video 
communications, including audio, to enable users to share information 
of the user's choosing.'' Many commenters argue that that the word 
``interoperable'' cannot be read out of the statute, and we agree. 
Congress expressly included the term ``interoperable,'' and therefore 
the Commission must determine its meaning in the context of the 
statute. We find, however, that the record is insufficient to determine 
how exactly to define ``interoperable,'' and thus we seek further 
comment on this issue in the Accessibility FNPRM.
    26. We also find that the inclusion of the word ``interoperable'' 
does not suggest that Congress sought to require interoperability, as 
some commenters have suggested. There simply is no language in the CVAA 
to support commenters' views that interoperability is required or 
should be required, or that that we may require video conferencing 
services to be interoperable because ``interoperability'' is a subset 
of ``accessibility,'' ``usability,'' and ``compatibility'' as required 
by section 716.
    27. We reject CTIA's argument that personal computers, tablets, and 
smartphones should not be considered equipment used for interoperable 
video conferencing service, because these devices are not primarily 
designed for two-way video conferencing, and accessibility should be 
required only for equipment designed primarily or specifically for 
interoperable video conferencing service. Consumers get their advanced 
communications services primarily through multipurpose devices, 
including smartphones, tablets, laptops and desktops. If section 716 
applies only to equipment that is used exclusively for advanced 
communications services, almost no devices would be covered by section 
716, and therefore Congress's aims in enacting the statute would be 
undermined.
    28. With respect to webinars and webcasts, we find that services 
and equipment that provide real-time video communications, including 
audio, between two or more users, are ``video conferencing services'' 
and equipment, even if they can also be used for video broadcasting 
purposes (only from one user). We disagree, however, with the IT and 
Telecom RERCs that providing interactive text messaging, chatting, 
voting, or hand-raising by or between two or more users, along with 
real-time video communications, including audio, only from one user, 
constitutes a ``video conferencing service.'' In this example of a 
system that provides multiple modes of communication simultaneously, 
providing text messaging between two or more users is an electronic 
messaging service. Similarly, telecommunications or VoIP services may 
be provided as part of a webinar or webcast. The provision of 
electronic messaging, VoIP, or other services, alongside real-time 
video communications, including audio, only from one user, does not 
convert the latter into a ``video conferencing service.''
    29. Finally, we agree with commenters that non-real-time or near-
real-time features or functions of a video conferencing service, such 
as video mail, do not meet the definition of ``real-time video 
communications.'' We defer consideration to the Accessibility FNPRM as 
to whether we should exercise our ancillary jurisdiction to require 
that a video mail service be accessible to individuals with 
disabilities when provided along with a video conferencing service. We 
also do not decide at this time whether our ancillary jurisdiction 
extends to require other features or functions provided along with a 
video conferencing service, such as recording and playing back video 
communications on demand, to be accessible.

2. Manufacturers of Equipment Used for Advanced Communications Services

    30. Section 716(a)(1) states the following:

    A manufacturer of equipment used for advanced communications 
services, including end user equipment, network equipment, and 
software, shall ensure that the equipment and software that such 
manufacturer offers for sale or otherwise distributes in interstate 
commerce shall be accessible to and usable by individuals with 
disabilities, unless the requirements of this subsection are not 
achievable.

    31. In the Accessibility NPRM the Commission proposed to find that 
developers of software that is used for advanced communications 
services and that is downloaded or installed by the user rather than by 
a manufacturer are covered by section 716(a). The IT and Telecom RERCs 
support that proposal on the grounds that coverage should not turn on 
how a manufacturer distributes ACS software (pre-installed on a device 
or installed by the user). Microsoft and the VON Coalition, on the 
other hand, argue that section 716(a) must be read as applying only to 
manufacturers of equipment, that ``software'' is not ``equipment,'' and 
that our proposal would impermissibly extend the Commission's authority 
beyond the limits set by Congress in the CVAA.
    32. We find that, while the language of section 716(a)(1) is 
ambiguous, the better interpretation of section 716(a)(1) is that it 
does not impose independent regulatory obligations on providers of 
software that the end user acquires separately from equipment used for 
advanced communications services.
    33. Section 716(a)(1) can be read in at least two ways. Under one 
reading, the italicized phrase ``including end user equipment, network 
equipment, and software'' defines the full range of equipment 
manufacturers covered by the Act. Under this construction, 
manufacturers of end user equipment used for ACS, manufacturers of 
network equipment used for ACS, and manufacturers of software used for 
ACS, would all independently be subject to the accessibility 
obligations of section 716(a)(1), and to the enforcement regime of 
section 717. ``Equipment,'' as used in the phrase ``a manufacturer of 
equipment used for advanced communications services'' would thus refer 
both to physical machines or devices and to software that is acquired 
by the user separately from any machine or device, and software would 
be understood to be a type of equipment. This first reading is the 
interpretation on which we sought comment in the Accessibility NPRM.
    34. Under a second possible reading, the phrase ``manufacturer of 
equipment'' would be given its common meaning as referring to makers of 
physical machines or devices. If such equipment is used for advanced 
communications services, then the equipment manufacturer is responsible 
for making it accessible. Under this

[[Page 82359]]

reading, the phrase ``including end user equipment, network equipment, 
and software'' makes clear that both end user equipment and network 
equipment, as well as the software included by the manufacturer in such 
equipment, must be consistent with the CVAA's accessibility mandate. We 
have modified the definitions of ``end user equipment'' and ``network 
equipment'' that are proposed in the Accessibility NPRM to make clear 
that such equipment may include both hardware and software components. 
Thus, to the extent that equipment used for advanced communications 
services include software components--for example, operating systems or 
email clients--the manufacturer of the equipment is responsible for 
making sure that both ``the equipment and software that such 
manufacturer offers for sale or otherwise distributes in interstate 
commerce'' is accessible.
    35. The text of the CVAA does not compel either of these 
inconsistent readings. The first, more expansive, reading accords more 
easily with the use of commas surrounding and within the phrase ``, 
including end user equipment, network equipment, and software,'' but it 
requires giving the term ``equipment'' a meaning that is far broader 
than its ordinary usage. In addition, if ``equipment'' means 
``software'' as well as hardware, then there was no need for Congress 
to say in the same sentence that ``the equipment and software'' that a 
manufacturer offers must be made accessible. The second, narrower, 
reading gives a more natural meaning to the word ``equipment'' and 
explains why it was necessary for Congress to say that the manufacturer 
of equipment used for ACS must make both ``equipment and software'' 
accessible. The second reading is thus more consistent with the 
interpretive canon that all words in a statute should if possible be 
given meaning and not deemed to be surplusage (as ``software'' would be 
in this phrase under the first reading).
    36. Looking to other provisions of the CVAA, the language of 
section 716(j) is more consistent with the second, narrower 
understanding of section 716(a)(1). Section 716(j) establishes a rule 
of construction to govern our implementation of the Act, stating that 
section 716 shall not be construed to require a manufacturer of 
equipment used for ACS or a provider of ACS ``to make every feature and 
function of every device or service accessible for every disability.'' 
The word ``device'' refers to a physical object and cannot reasonably 
be construed to also refer to separately-acquired software. If, as in 
the broader interpretation of section 716(a)(1), ``manufacturer of 
equipment'' includes manufacturers of separately acquired software, 
then Congress created a rule of construction for section 716 as a whole 
that applies to only some of the equipment that is subject to section 
716(a). The narrower interpretation of section 716(a)(1) produces a 
more logical result, in that section 716(j), as it applies to 
manufacturers of equipment, has the same scope as section 716(a).
    37. Examining the legislative history of the CVAA, we find no 
indication in either the Senate Report or the House Report that 
Congress intended to instruct the Commission to regulate directly 
software developers that are neither manufacturers of equipment nor 
providers of advanced communications services--a class of businesses 
that the Commission historically has not regulated. There is, on the 
other hand, evidence that Congress had makers of physical objects in 
mind when it made ``manufacturers of equipment'' responsible for 
accessibility. For example, the Senate Report states that the Act 
requires manufacturers of equipment used for ACS and providers of ACS 
to ``make any such equipment, which they design, develop, and 
fabricate, accessible to individuals with disabilities, if doing so is 
achievable.'' The Senate Report further says that sections 716(a) and 
716(b) ``require that manufacturers and service providers, 
respectively, make their devices and services accessible to people with 
disabilities.'' Likewise, the House Report states that sections 716(a) 
and 716(b) ``give manufacturers and service providers a choice 
regarding how accessibility will be incorporated into a device or 
service.'' Software is not fabricated, nor are software programs or 
applications referred to as devices. Particularly in light of this 
legislative history, we are doubtful that Congress would have 
significantly expanded the Commission's traditional jurisdiction to 
reach software developers, without any clear statement of such intent.
    38. We disagree with commenters that suggest that the Commission's 
interpretation of CPE in the Section 255 Report and Order compels us to 
find that software developers that are neither manufacturers of ACS 
equipment nor providers of ACS are covered under section 716(a). First, 
in the Section 255 Report and Order, the Commission found that CPE 
``includes software integral to the operation of the telecommunications 
function of the equipment, whether sold separately or not.'' Although 
the statutory definition of CPE did not reference software, the 
Commission found that it should construe CPE similarly to how it 
construed ``telecommunications equipment'' in the Act, which Congress 
explicitly defined to include ``software integral to such equipment 
(including upgrades).'' The Commission did not in the Section 255 
Report and Order reach the issue of whether any entity that was not a 
manufacturer of the end user equipment or provider of 
telecommunications services had separate responsibilities under the 
Act.
    39. Second, in the CVAA, Congress gave no indication that it 
intended the Commission to incorporate, when defining the scope of 
``equipment and software'' for purposes of section 716(a)(1), the 
definitions we have established for the different, but analogous, terms 
(``telecommunications equipment'' and ``customer premises equipment'') 
used in section 255. Here, we interpret the statutory language to 
include all software, including upgrades, that is used for ACS and that 
is a component of the end user equipment, network equipment, or of the 
ACS service--and do not limit software to meaning only software that is 
integral to the network equipment or end user equipment. As we discuss 
further in paragraph 58, infra, if software gives the consumer the 
ability to engage in advanced communications, the provider of that 
software is a covered entity, regardless of whether the software is 
downloaded to the consumer's equipment or accessed in the cloud.
    40. The purpose of sections 716 through 718 of the CVAA--to ensure 
access to advanced communications services for people with 
disabilities--is fully served by the narrower interpretation of section 
716(a) that we describe above because that interpretation focuses our 
regulatory efforts where they will be the most productive.
    41. Advanced communications services are delivered within a complex 
and evolving ecosystem. Communications devices are often general-
purpose computers or devices incorporating aspects of general-purpose 
computers, such as smartphones, tablets, and entertainment devices. In 
the Accessibility NPRM the Commission observed that such systems are 
commonly described as having five components or layers: (1) Hardware 
(commonly referred to as the ``device''); (2) operating system; (3) 
user interface layer; (4) application; and (5) network services. We 
agree with ITI that three additional components in the architecture 
play a role in ensuring the

[[Page 82360]]

accessibility of ACS: (1) Assistive technology (``AT'') utilized by the 
end user; (2) the accessibility application programming interface 
(``API''); and (3) the web browser.
    42. For individuals with disabilities to use an advanced 
communications service, all of these components may have to support 
accessibility features and capabilities. It is clear, however, that 
Congress did not give us the task of directly regulating the 
manufacturers, developers, and providers all of these components. 
Rather, Congress chose to focus our regulatory and enforcement efforts 
on the equipment manufacturers and the ACS providers.
    43. We believe that end user equipment manufacturers, in 
collaboration with the developers of the software components of the 
equipment and related service providers, are best equipped to be 
ultimately responsible for ensuring that all of the components that the 
end user equipment manufacturer provides are accessible to and usable 
by individuals with disabilities. Manufacturers are responsible for the 
software components of their equipment whether they pre-install the 
software, provide the software to the consumer on a physical medium 
such as a CD, or require the consumer to download the software. The 
manufacturer is the one that purchases those components and is 
therefore in a position to require that each of those components 
supports accessibility. Similarly, as we discuss further below, the 
provider of an advanced communications service is the entity in the 
best position to make sure that the components (hardware, software on 
end user devices, components that reside on the web) it provides and 
that make up its service all support accessibility.
    44. We believe these conclusions will foster industry collaboration 
between manufacturers of end user equipment, software manufacturers, 
and service providers and agree with TWC that this collaboration must 
be a central tenet in the efforts to implement the CVAA. For example, 
as Microsoft states, ``a laptop manufacturer that builds ACS into its 
device will need to consult with the developer of the operating system 
to develop this functionality, and in that way the operating system 
provider will be deeply involved in solving these problems and 
promoting innovations in accessibility, such as making an accessibility 
API available to the manufacturer.'' The consumer, who is not a party 
to any arrangements or agreements, contractual or otherwise, between an 
end user equipment manufacturer and a software developer, will not be 
put in the position of having to divine which entity is ultimately 
responsible for the accessibility of end user equipment used for 
advanced communications services.
    45. We recognize that consumers are able to change many of the 
software components of the equipment they use for advanced 
communications services, including, for some kinds of equipment, the 
operating systems, email clients, and other installed software used for 
ACS. We believe that, as a practical matter, operating systems and 
other software that are incorporated by manufacturers into their 
equipment will also be accessible when made separately available 
because it will not be efficient or economical for developers of 
software used to provide ACS to make accessible versions of their 
products for equipment manufacturers that pre-install the software and 
non-accessible freestanding versions of the same products. Therefore, 
we believe that we do not need to adopt an expansive interpretation of 
the scope of section 716(a) to ensure that consumers receive the 
benefits intended by Congress.
    46. Section 717(b)(1) of the Act requires us to report to Congress 
every two years, beginning in 2012. We are required, among other 
things, to report on the extent to which accessibility barriers still 
exist with respect to new communications technologies. We intend to pay 
particular attention in these reports to the question of whether 
entities that are not directly subject to our regulations, including 
software developers, are causing such barriers to persist.
    47. Finally, the narrower interpretation of the scope of section 
716(a) that we adopt herein makes this statutory program more cost-
effective than would the more expansive interpretation. Covered 
entities are subject not only to the substantive requirement that they 
make their products accessible, if achievable, but also to an 
enforcement mechanism that includes recordkeeping and certification 
requirements. This type of enforcement program imposes costs on both 
industry and the government. Congress made a determination, which we 
endorse and enforce, that these costs are well justified to realize the 
accessibility benefits that the CVAA will bring about. But the costs of 
extending design, recordkeeping, and certification requirements to 
software developers would be justified only if they were outweighed by 
substantial additional accessibility benefits.
    48. As explained above, it appears that the benefits of 
accessibility, as envisioned by Congress and supporters of the CVAA, 
can be largely (and perhaps entirely) realized under the narrower, less 
costly interpretation of section 716(a)(1). Furthermore, the biennial 
review requirement of section 717(b)(1) ensures that, if our prediction 
proves incorrect, the Commission will have an occasion to examine 
whether application of the CVAA's requirements directly to developers 
of consumer-installed software is warranted, and make any necessary 
adjustments to our rules to achieve accessibility in accordance with 
the intent of the CVAA. This biennial review process gives us 
additional confidence that applying the statute more narrowly and 
cautiously in our initial rules is the most appropriate policy at this 
time.
    49. With respect to the definition of ``manufacturer,'' consistent 
with the Commission's approach in the Section 255 Report and Order and 
in the Accessibility NPRM, we define ``manufacturer'' as ``an entity 
that makes or produces a product.'' As the Commission noted in the 
Section 255 Report and Order, ``[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 believe this definition encompasses entities that are ``extensively 
involved in the manufacturing process--for example, by providing 
product specifications.'' We also believe this definition includes 
entities that contract with other entities to make or produce a 
product; a manufacturer need not own a production facility or handle 
raw materials to be a manufacturer.
    50. TechAmerica argues that section 716(a) should apply only to 
equipment with a ``primary purpose'' of offering ACS. We reject this 
interpretation. As discussed above, consumers commonly access advanced 
communications services through general purpose devices. The CVAA 
covers equipment ``used for ACS,'' and we interpret this to include 
general purpose hardware with included software that provides users 
with access to advanced communications services.
    51. Commenters also expressed concerns about the impact of software 
upgrades on accessibility. The IT and Telecom RERCs state that 
``[u]pgrades can be used to increase accessibility * * * or they can 
take accessibility away, as has, unfortunately occurred on numerous 
occasions.'' Wireless RERC urges that ``[e]nd-users who buy an 
accessible device expect manufacturer-provided updates and upgrades to 
continue to be accessible.'' We agree

[[Page 82361]]

that the purposes of the CVAA would be undermined if it permitted 
equipment or services that are originally required to be accessible to 
become inaccessible due to software upgrades. In accordance with our 
interpretation of section 716(a)(1) above, just as a manufacturer of a 
device is responsible for the accessibility of included software, that 
manufacturer is also responsible for ensuring that the software 
developer maintains accessibility if and when it provides upgrades. 
However, we agree with CTIA that a manufacturer cannot be responsible 
for software upgrades ``that it does not control and that it has no 
knowledge the user may select and download.''
    52. Indeed, we recognize more generally, as ITI urges, that 
manufacturers of equipment are not responsible for the components over 
which they have no control. Thus, manufacturers are not responsible for 
software that is independently selected and installed by users, or for 
software that users choose to access in the cloud. Furthermore, we 
generally agree with commenters that a manufacturer is not responsible 
for optional software offered as a convenience to subscribers at the 
time of purchase and that carriers are not liable for third-party 
applications that customers download onto mobile devices--even if 
software is available on a carrier's Web site or application store.
    53. A manufacturer, however, has a responsibility to consider how 
the components in the architecture work together when it is making a 
determination about what accessibility is achievable for its product. 
If, for example, a manufacturer decides to rely on a third-party 
software accessibility solution, even though a built-in solution is 
achievable, it cannot later claim that it is not responsible for the 
accessibility of the third-party solution. A manufacturer of end-user 
equipment is also responsible for the accessibility of software offered 
to subscribers if the manufacturer requires or incentivizes a purchaser 
to use a particular third-party application to access all the features 
of or obtain all the benefits of a device or service, or markets its 
device in conjunction with a third-party add-on.
    54. Because we did not receive a full record on the unique 
challenges associated with implementing section 718, we will solicit 
further input in the Accessibility FNPRM on how we should proceed. In 
particular, we seek comment on the unique technical challenges 
associated with developing non-visual accessibility solutions for web 
browsers in a mobile phone and the steps that we can take to ensure 
that covered entities will be able to comply with these requirements on 
October 8, 2013, the date on which section 718 becomes effective. 
Section 718 requires a mobile phone manufacturer that includes a 
browser, or a mobile phone service provider that arranges for a browser 
to be included on a mobile phone, to ensure that the browser functions 
are accessible to and usable by individuals who are blind or have a 
visual impairment, unless doing so is not achievable. In the 
Accessibility FNPRM, we also seek to develop a record on whether 
Internet browsers should be considered software generally subject to 
the requirements of section 716. Specifically, we seek to clarify the 
relationship between sections 716 and 718 and solicit comment on the 
appropriate regulatory approach for Internet browsers that are not 
built into mobile phones.

3. Providers of Advanced Communications Services

    55. 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.''
    56. Consistent with the proposal in the Accessibility NPRM, we 
agree with commenters that state that we should interpret the term 
``providers'' broadly and include all entities that make available 
advanced communications in whatever manner. Such providers include, for 
example, those that make web-based email services available to 
consumers; those that provide non-interconnected VoIP services through 
applications that consumers download to their devices; and those that 
provide texting services over a cellular network.
    57. As is the case with manufacturers, providers of ACS are 
responsible for ensuring the accessibility of the underlying components 
of the service, to the extent that doing so is achievable. For example, 
a provider of a web-based email service could meet its obligations by 
ensuring its services are coded to web accessibility standards (such as 
the Web Content Accessibility Guidelines (WCAG)), if achievable. For 
services downloaded onto the OS of a desktop or mobile device, service 
providers could meet their obligations by ensuring, if achievable, that 
their services are coded so they can work with the Accessibility API 
for the OS of the device. Accessibility APIs are specialized interfaces 
developed by platform owners, which software applications use to 
communicate accessibility information about user interfaces to 
assistive technologies. Those that provide texting services over a 
cellular network, for example, must ensure that there is nothing in the 
network that would thwart the accessibility of the service, if 
achievable.
    58. COAT raises the concern that some software used for ACS may be 
neither a component of the end user equipment nor a component of a 
service and thus would not be covered under the statute. Specifically, 
COAT argues that H.323 video and audio communication is peer-to-peer 
and does not require a service provider at all. Similarly, it argues 
that it is possible to have large-scale examples of peer-to-peer 
systems without service providers and that models used in the non-ACS 
context could be expanded to be used for ACS. We believe that COAT 
construes the meaning of ``provider of advanced communications 
services'' too narrowly. If software gives the consumer the ability to 
send and receive email, send and receive text messages, make non-
interconnected VoIP calls, or otherwise engage in advanced 
communications, then provision of that software is provision of ACS. On 
the other hand, provision of client software such as Microsoft Outlook 
is not provision of ACS. While consumers use such client software to 
manage their ACS, the client software standing alone does not provide 
ACS. The provider of that software would be a covered entity, and the 
service, including any provided through a small-scale or large-scale 
peer-to-peer system, would be subject to the requirements of the 
statute. We also disagree with COAT's suggestion that ACS used with an 
online directory would not be covered. While online directories are 
excluded from coverage under the limited liability provisions in 
section 2(a)(2) of the CVAA, the ACS used with such directories are 
covered. This is true regardless of whether the software is downloaded 
to the consumer's equipment or accessed in the cloud.
    59. We disagree with Verizon's assertion that the requirement in 
section 716(e)(1)(C) that the Commission shall ``determine the 
obligations under this section of manufacturers, service providers, and 
providers of applications or services accessed over service provider 
networks'' compels the conclusion that developers of applications have 
their own independent accessibility obligations. We note that the 
regulations that the

[[Page 82362]]

Commission must promulgate pursuant to section 716(e) relate to the 
substantive requirements of the Act found in sections 716(a)-(d) 
encompassing accessibility (sections 716(a) and 716(b)); compatibility 
(section 716(c)); and network features, functions, and capabilities 
(section 716(d)). Each of these obligations applies to manufacturers of 
ACS equipment and/or providers of ACS. There are no independent 
substantive requirements in these sections that apply to ``providers of 
applications or services accessed over service provider networks.'' We 
believe the most logical interpretation of this phrase is the one 
proposed in the NPRM: that providers of advanced communications 
services include entities that provide advanced communications services 
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. We adopt this interpretation, which we 
believe comports with our analysis above that providers of ACS are 
responsible for ensuring the accessibility of the underlying components 
of the service, including the software applications, to the extent that 
doing so is achievable.
    60. We find, however, that a provider of advanced communications 
services is not responsible for the accessibility of third-party 
applications and services that are not components of its service and 
that the limitations on liability in section 2(a) of the CVAA generally 
preclude such service provider liability. This approach is consistent 
with commenters that argue that service providers and manufacturers 
should be responsible only for those services and applications that 
they provide to consumers. They explain that they have no control over 
third party applications that consumers add on their own and that such 
third party applications have the potential to significantly alter the 
functionality of devices. Notwithstanding that conclusion and 
consistent with section 2(b) of the CVAA, we also agree with commenters 
that the limitation on liability under section 2(a) does not apply in 
situations where a provider of advanced communications services relies 
on a third-party application or service to comply with the 
accessibility requirements of section 716.
    61. We also confirm that providers of advanced communications 
services may include resellers and aggregators, which is consistent 
with the approach the Commission adopted in the Section 255 Report and 
Order. Several commenters support that conclusion. We disagree with 
Verizon's suggestion that, to the extent that a carrier is strictly 
reselling an advanced communications service as is (without 
alteration), the sole control of the features and functions rests with 
the underlying service provider, not the reseller, and the reseller 
should not have independent compliance obligations. To the extent that 
the underlying service provider makes those services accessible to and 
usable by individuals with disabilities in accordance with the CVAA 
mandates, those services should remain accessible and usable when 
resold as is (without alteration). Resellers offer services to 
consumers who may or may not be aware of the identity of the underlying 
service provider. It is both logical and in keeping with the purposes 
of the CVAA for consumers to be able to complain against the provider 
from whom they obtain a service, should that service be inaccessible. 
While a reseller may not control the features of the underlying 
service, it does have control over its decision to resell that service. 
Its obligation, like that of any other ACS provider, is to ensure that 
the services it provides are accessible, unless that is not achievable.
    62. Because the networks used for advanced communications services 
are interstate in nature, and the utilization of equipment, 
applications and services on those net