Real-time video conferencing services face rapidly approaching compliance deadline

Interoperable Video Conferencing Service Report and Order

The CVAA, enacted in 2010, requires various forms of digital communications services and the equipment used for these services to be accessible to individuals with disabilities. These services, referred to as “Advanced Communications Services,” include: interconnected and non-interconnected Voice over Internet Protocol (VoIP), electronic messaging, certain inmate communications services, and “interoperable video conferencing services” (IVCS).

The CVAA defines IVCS as “a service that provides real-time video communications, including audio, to enable users to share information of the user’s choosing.” However, what it means to be “interoperable” has long been an open question. The FCC has left this term undefined since it began implementing its CVAA compliance rules over a decade ago, and, as a result, video conferencing services have not been subject to the CVAA.

Since then, and particularly spurred by the COVID-19 pandemic, the public has increasingly relied on video communications services. In response, last year the FCC released a Report and Order upholding the original statutory definition of IVCS without any additional interpretation or modification. As a result, all services and equipment that provide video communications, including audio, must now comply with the CVAA. The Commission clarified that video conferencing services would be subject to the CVAA’s rules regardless of:

• The setting or type of user – The rules apply equally to professional meetings and casual video chats among friends;

• The number of users – The FCC does not distinguish between one-on-one conversations or large group conferencing, as long as the service is providing real-time video and audio communications; and

• Connection type or operating system – The FCC concluded that the rules’ application does not depend on how users connect to the IVCS, whether the connection is public or private, or the type of operating system or device used to access the service.

Achieving Compliance

The FCC’s performance objectives for services subject to the CVAA are codified in the FCC’s rules. These include, among other things:

• Requiring the functions of the product or service to be locatable, identifiable, and operable to individuals with disabilities; and

• Access to the product or service’s functionality and documentation, including technical support.

These rules generally consist of broad principles and objectives rather than specific mechanisms for achieving compliance, and the FCC has encouraged companies to look to existing industry-wide standards, most notably the Web Content Accessibility Guidelines (WCAG), and the U.S. Access Board’s Section 508 Standards and Section 255 Guidelines. However, the FCC has not directly tied compliance with its CVAA rules to any specific industry standard, and several aspects of CVAA compliance exceed the requirements of the most current version of WCAG (2.2) and the Access Board’s guidance, such as the FCC’s recordkeeping and certification rules.

Enforcement

The FCC’s Enforcement Bureau is authorized to investigate allegations of noncompliance and has various tools at its disposal to enforce its rules. Among other things, the Enforcement Bureau may: (1) demand that an ACS provider comply with the CVAA; (2) issue substantial monetary penalties; and/or (3) impose burdensome compliance plans through a settlement agreement.

Notice of Proposed Rulemaking

The FCC also issued a Notice of Proposed Rulemaking (NPRM) proposing new performance objectives for IVCS, including speech-to-text and text-to-speech capabilities and enabling the use of sign language interpreting.

The NPRM also proposed amendments to the FCC’s telecommunications relay services (TRS) rules to facilitate the integration of TRS with video conferencing. TRS enables telephone-based communications between voice telephone users and individuals who are deaf, hard of hearing, deafblind, or have speech disabilities. The NPRM addressed and sought comment on several TRS varieties (including IP Relay, IP Captioned Telephone Service, and certain non-Internet-based services), but focused primarily on Video Relay Services (VRS), which provide video-based communication between sign-language users and voice telephone users.

The comment period for these proposals closed in October 2023, though the proceeding is ongoing.

Next steps

Affected entities must ensure that they comply with the updated CVAA requirements by September 3.

Further, the digital accessibility space is constantly evolving, and we advise companies to stay alert as the FCC and other federal and state agencies continue to update their accessibility regulations at a rapid pace. The Hogan Lovells Communications, Internet, and Media practice group monitors developments in this space and assists companies with the full array of regulatory matters. We are happy to answer questions about digital accessibility compliance and what it means for your company.

Authored by Mark Brennan, Katy Milner, and Warren Kessler.

Karalyn Joseph, summer associate in our Washington, D.C. office, contributed to this article.