CVAA ACS Requirements Now in Full Effect — Complaint Process Available!

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Today, October 8, 2013, marks the availability of the complaint process for Advanced Communication Services (ACS) and mobile browser accessibility requirements of the 21st Century Communications and Video Accessibility Act (CVAA). These requirements address ACS such as two-way VOIP communication, text communication (e.g., e-mail, instant message, chat), two-way video conference software, as well as browsers (including mobile browsers). While the ongoing partial Federal government shutdown may mean complaints and disputes won’t be addressed immediately, the consumer complaint process is in effect and ACS products and services and mobile phones must be accessible to people with disabilities unless non-achievable (As of this writing the FCC’s electronic websites are not available to the public and all non-emergency complaint processes are on hold until FCC funding is restored).

Timeline

There is a misconception that manufacturers and service providers of ACS must now take accessibility in mind when creating products from today forward. This is not correct. The FCC report and order 11-151A covering implementation of ACS was released on October 7, 2011, two years ago. Manufacturers and service providers have already been required by the CVAA to take accessibility into account when designing products. This includes consulting with users that have disabilities, creating accessibility feature documentation and keeping records. The effective date for products and service providers to begin these design and record keeping requirements was a year and a half ago — January 30th, 2012. Thus, by today, manufacturers and service providers should have processes in place to ensure their products are accessible, ensure their customer support staff are trained to answer questions from people with disabilities and have accessibility feature documentation available in an accessible format.

The Complaint Process

The FCC’s goal was to create an enforcement process that is accessible, fair and that allows for “timely determinations, while allowing and encouraging parties to resolve matters” (p.100 FCC 11-151A) informally whenever possible. There are two methods of filing a complaint. Consumers can file an informal complaint or a formal complaint. Filing an informal complaint requires the consumer to first seek a Request for Dispute Assistance (Request) with the Consumer and Governmental Affairs Bureau (CGB) Disability Rights Office, rather than with a covered entity, prior to filing an informal complaint with the Commission. There is no time limitation on when a customer can file a complaint — complaints can be filed after the customer obtains the service or a year later. Similarly, complaints need not be filed by people with disabilities — for example, consumer advocacy organizations can file complaints regarding a product or service, and consumers do not need to give manufacturers or service providers warning that they are filing a complaint with the FCC. Additionally, consumers do not need to disclose their disability when filing a complaint.

When the FCC receives a request for dispute assistance, it may initiate an enforcement investigation into an alleged violation of the ACS or mobile browser requirements of CVAA based on the information from the consumer. Manufacturers and Service providers will need to provide evidence to determine if a violation exists. For example, consumers would not be able to determine if product accessibility was achievable. Manufacturers and service providers should have this information and should be prepared to explain why a product or service accessibility was not achievable or explain how a product is accessible.

When a request is created, the Disability Rights Office will forward a copy of the Request from the consumer to the manufacturer or service provider in a timely manner. Once the covered entity receives the Request, the Disability Rights Office will then work with the consumer and the manufacturer/service provider to reach a settlement of the dispute. The FCC will use the addressed specified by the manufacturer/service provider when the organization filed with the FCC — if the organization never filed with the FCC, public contact information may be used, thus delaying the amount of time the organization has to respond. If after 30 days, “a settlement has not been reached, the consumer may then file an informal complaint with the Commission.” (p 102. FCC 11-151A) Consumers may choose to continue with the dispute process for longer and continue to use the Disability Rights Office.

Consumer Requests

Consumers should be prepared to explain the way in which a product or service is inaccessible — inaccessibility alone does not establish a violation of CVAA. Specifically, a violation only exists if the covered product or service is inaccessible and accessibility was achievable.

Requests for dispute assistance should contain:

  1. Name, address, e-mail address and telephone number of the consumer
  2. The manufacturer or service provider against whom the complaint will be made
  3. An explanation of why the consumer believes the manufacturer or provider is in violation the FCC’s implementing rules for ACS and mobile browsers. This should include details regarding the service or equipment, the relief requested and any documentation that supports the complainant’s contention.
  4. The approximate date or dates on which the consumer either purchased, acquired or used (or attempted to purchase, acquire or use) the equipment or service in question
  5. The consumer’s preferred format or method of response to the complaint by the Commission and defendant (e.g., letter, facsimile transmission, telephone (voice/TRS/TTY), e-mail or some other method that will best accommodate the consumer’s disability)
  6. Any other information that may be helpful to CGB and the defendant to understand the nature of the complaint.

Consumers may contact the FCC’s Disability Rights Office (DRO) by:

  1. Sending an e-mail to dro@fcc.gov
  2. Calling 202-418-2517 (voice) or 202-418-2922 (TTY)
  3. Visiting the Disability Rights Office’s website: http://transition.fcc.gov/cgb/dro

The DRO can assist with questions regarding where to find contact information for manufacturers and service providers, how to file an informal complaint and what the complaint should contain.

Informal Complaints

Informal complaints can be filed via mail, overnight delivery, e-mail or the FCC’s electronic complaint process. Manufacturers and service providers will be given a chance to provide information on how their products or services are accessible or why accessibility was not achievable. These organizations will have 20 days to respond to specific questions. The FCC also requires defendants include in their answers a declaration by an authorized officer of the organization of the truth and accuracy of the defense. Organizations can consider creating a summary statement that includes non-proprietary information and then providing supporting documentation that under non-disclosure. Organizations should be mindful of the benefits and risks of disclosing certain information and seek legal counsel on the matter.

Formal Complaints

Formal complaints can also be filed and do not require filing a Request for Dispute Assistance or an informal complaint. Prior to filing a formal complaint, consumers and manufacturers/service providers must agree to have “in good faith, discussed or attempted to discuss the possibility of settlement.” (p. 164 FCC 11-151A)

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