Annual CVAA Accessibility Recordkeeping Compliance Certifications due April 1: Is Your Company Ready to Comply?

On March 4, 2021, the Federal Communications Commission (“FCC” or “Commission”) released a public notice reminding equipment manufacturers and service providers subject to the 21st Century Communications and Video Accessibility Act (“CVAA”) of their obligation to (1) maintain documentation of their efforts to make covered products and services accessible to users with disabilities and (2) file with the FCC their required annual recordkeeping compliance certification by April 1, 2021. As discussed below, these obligations apply specifically to entities covered by Section 255 (providers of telecommunications service and manufacturers of telecommunications equipment or customer premises equipment), 716 (advanced communications services and accompanying equipment), and/or 718 (built-in mobile web browsers) of the Communications Act of 1934 (the “Communications Act”), as amended by the CVAA and other laws.

Covered Products and Services

Section 255 of the Communications Act requires providers of telecommunications service and manufacturers of telecommunications equipment or customer premises equipment to ensure that such services and equipment are accessible to and usable by individuals with disabilities, if “readily achievable.” “Accessible” means individuals with varying abilities must be able to locate, identify, and operate the input, control, and mechanical functions of a product or service, and be able to access the output or display of all information necessary to operate and use the product or service. “Usable” means individuals with disabilities have access to the full functionality and documentation for the product, including instructions, product information (including accessible feature information), documentation, and technical support functionally equivalent to that provided to individuals without disabilities. “Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” When these requirements are not readily achievable, covered entities must ensure that their services and equipment are compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable. The implementing FCC regulations further clarify that these requirements extend to interconnected voice over Internet protocol (“VoIP”) service providers and equipment manufacturers.

Section 716 of the Communications Act imposes similar accessibility requirements on advanced communications services (“ACS”) and associated equipment. ACS are divided into four categories: (1) interconnected VoIP service, (2) non-interconnected VoIP service, (3) electronic messaging service and (4) interoperable video conferencing service. Finally, Section 718 requires mobile phone service providers and manufacturers to make Internet browsers built into mobile phones accessible to and usable by people who are blind or visually impaired, unless doing so is not achievable. This requirement may be satisfied with or without the use of third-party applications, peripheral devices, software, hardware, or customer premises equipment that is available to consumers at nominal cost and that individuals with disabilities can access.

Recordkeeping Requirements and Related Compliance Certification Obligations

Section 717 of the Communications Act requires each manufacturer and provider covered by Section 255, 716, or 718 to “maintain, in the ordinary course of business … records of the efforts taken by such manufacturer or provider to make and maintain covered products and services accessible to, and usable by, people with disabilities. These records must include:

  • information about the manufacturer’s or provider’s efforts to consult with individuals with disabilities;
  • descriptions of the accessibility features of its products and services; and
  • Information about the compatibility of such products and services with peripheral devices or specialized customer premise equipment commonly used by individuals with disabilities to achieve access.

Under implementing FCC rules, manufacturers and providers must maintain these records for at least two years “from the date a product ceases to be manufactured or a service ceases to be offered.”

By April 1, 2021, all entities subject to Section 255, 716, or 718 of the Communications Act must certify that accessibility records have been kept throughout 2020 in accordance with the above requirements. The certificate must state that the manufacturer or service provider, as applicable, has established operating procedures that are adequate to ensure compliance with the recordkeeping rules and that it is keeping records accordingly. The certificate must be supported with an affidavit or declaration under penalty of perjury, signed and dated by the authorized officer of the company with personal knowledge of the representations provided in the company’s certification, verifying the truth and accuracy of the information therein. Finally, the certificate must identify the name(s) and contact information of the company employee(s) authorized to resolve complaints, as well as the agent designated for service of informal and formal complaints alleging violations of Sections 255, 716, and 718 of the Communications Act or the FCC’s accessibility rules. These contact details must be updated within 30 days of any material changes.

Filing Recordkeeping Compliance Certificates

Annual accessibility recordkeeping compliance certifications and required contact information must be filed with the FCC on-line through the Commission’s Recordkeeping Compliance Certification and Contact Information Registry. Detailed filing instructions, along with answers to frequently asked questions, can be found in the Commission’s 2016 accessibility recordkeeping compliance certification public notice. Failure to maintain adequate accessibility records, properly certify compliance with the recordkeeping requirements, or to file updates to material changes to required contact information may lead to fines and/or other sanctions.

Our affiliated arm, The Commpliance Group, has extensive experience preparing CVAA certifications and stands by ready to file your company’s 2021 accessibility recordkeeping certification to make the process as painless as possible. If you have any questions about your recordkeeping and related certification obligations, or about any issues relating to making your products or services accessible to customers with disabilities, please contact Michal J. Nowicki, Esq., at (703) 714-1311 or mjn@commlawgroup.com. Having been blind from birth, Mr. Nowicki has over five years of experience with the CVAA and a strong passion for accessibility. Along with the Chief of the FCC Disability Rights Office and the Vice President of Corporate Design at Poly, Inc. — the maker of various telecommunications devices — he recently hosted a webinar educating businesses on tapping into a market of 60 million Americans with disabilities through accessibility. He has also worked closely with Comcast, DirecTV, and other companies on making their offerings more accessible to everyone.

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