In its latest disability access enforcement action, the Federal Communications Commission (“FCC” or the “Commission”) granted a consumer complaint (the “Complaint”) alleging that Verizon’s Premium Visual Voicemail service is inaccessible to persons with disabilities, in violation of Commission rules implementing Section 255 of the Communications Act.
The FCC determined that Verizon failed to show that its Premium Visual Voicemail service is accessible to persons with disabilities, because the company provided no documentary evidence to substantiate its conclusory statements that the service was accessible, despite bearing the burden of proof. This sets the stage for potential fines and other enforcement action against the company. If your company manufactures equipment that supports voicemail functionalities, or provides voicemail services, the time to ensure this equipment and services are accessible to and usable by persons with disabilities is now.
Section 255 of the Communications Act requires telecommunications services, telecommunications equipment, and customer premises equipment to be accessible to and usable by persons 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 or service, including instructions, product/service 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.”
Although Section 255 does not mention voicemail, the FCC extended its coverage to “voicemail” and “interactive menus” through its implementing regulations by invoking its ancillary jurisdiction under the Communications Act. Thus, manufacturers of telecommunications equipment or customer premises equipment must ensure that the equipment is “designed, developed and fabricated so that the voicemail and interactive menu functions are accessible to and usable by individuals with disabilities, if readily achievable.” Similarly, providers of voicemail and interactive menus, including resellers of these features, must make these services accessible to and usable by people with disabilities, if readily achievable.
Verizon’s Premium Visual Voicemail service transcribes into text the first 45 seconds of audio voicemail messages. Although designed as a mainstream service, the company’s Premium Visual Voicemail service is a useful accommodation for consumers with hearing loss.
The Complaint alleges that Verizon’s Premium Visual Voicemail service does not work on some Samsung smartphones, producing an error message when the user tries to access it. This, in turn, creates an access barrier for deaf and hard of hearing consumers who rely on it due to their disability.
The Verizon customer with a hearing disability who filed the Complaint alleges that he contacted Verizon numerous times to resolve the problem, but was not able to do so. Although Verizon eventually replaced his phone with a refurbished version of the same model, that did not resolve the issue. The customer continued to work with Verizon to find a solution, only to be advised that the problem was with the phone, not with the Premium Visual Voicemail service. He then filed a Request for Dispute Assistance (“RDA”) with the FCC’s Consumer and Governmental Affairs Bureau. The consumer and Verizon failed to reach a mutually acceptable resolution during the RDA process, so the consumer filed the Complaint.
Verizon made three arguments in response to the Complaint. First, the company claimed that the customer did not make a prima facie case that the company’s Premium Visual Voicemail service (or any supporting documentation or technical support) was not “accessible” or “usable.” Thus, Verizon’s position was that accessibility design aspects of the service are irrelevant to the Complaint. Second, Verizon maintained that its Premium Visual Voicemail service was accessible, arguing that millions of other customers had no issues with the service and pointing a finger at the customer’s equipment. Finally, Verizon argued that even if the customer established a prima facie case and the service was inaccessible, accessibility was not readily achievable without the customer’s further cooperation, because the problem was limited to his equipment, and because he lost interest in continuing to work with the company to fix the problem.
The FCC rejected all three Verizon arguments and granted the customer’s Complaint. The Commission found that the Complaint satisfied all the elements of an informal complaint under applicable FCC rules. The Commission then cited the following flaws in Verizon’s argument that the service was accessible:
Lastly, the FCC dismissed Verizon’s readily achievable defense, because the company provided no records or other evidence supporting its conclusion that it could not make Premium Visual Voicemail service accessible without the complainant’s continued cooperation.
While the Verizon proceeding does not directly impact any other entities, it does serve as a reminder that FCC accessibility and usability requirements specifically cover voicemail and interactive menu services and related equipment. More importantly, though, it reinforces the fact that the FCC takes alleged accessibility and usability violations seriously. Since last year alone, the Commission has already gone after ViaTalk for failing to make its interconnected Voice over Internet Protocol service usable by people with disabilities, Pluto TV for violating FCC closed captioning regulations, CaptionCall for defrauding the federal TRS Fund, and, now, Verizon.
Contact us to help your company stay off the FCC’s accessibility enforcement radar. For questions about your company’s accessibility and usability obligations, or to schedule a legal accessibility audit, please contact Michal J. Nowicki, Esq., at (703) 714-1311 or email@example.com.