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FCC Requests Public Comment on Proposed Changes To Disability Access Complaint Procedure

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Written by: C.P. Hoffman

Last week, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) that would create uniform rules for complaints filed with the FCC’s Market Disputes Resolutions Division and Telecommunications Consumers Division. The new rules would cover procedure in a variety of matters, including disability access complaints filed under the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).

Although not required by statute, the FCC has requested public comment on the draft rules. Public comments are due by October 26, 2017, with reply comments due on November 13, 2017.

What the Proposed Rules Change

Some of the more notable changes made in the proposed uniform procedural rules include:

  • Giving defendants 30, rather than 20, days to file an answer to a complaint.
  • Giving complainants 10, rather than three (3), days to file a reply to the defendant’s answer.
  • Formalizing the practice that allows complainants and defendants to submit interrogatories (questions) with their complaint, answer, and reply. Parties will no longer need to request permission to submit interrogatories, but they must still submit a statement of why the information is necessary and not otherwise available. Parties may also still object to proposed interrogatories.
  • Eliminating the requirement that parties submit proposed findings of fact and conclusions of law with their complaint or answer.
  • Requiring parties to certify that pre-filing settlement efforts had occurred at the “executive level,” so as to involve individuals with decision-making authority as early as possible. (Note: the “executive level” rule only applies in disputes between organizations.)
  • Codifying the existing practice of offering voluntary, staff-supervised mediation services.

On the other hand, the proposed rules would not make the Accelerated Docket rules, available in other cases filed with the FCC, applicable in disability access complaints under the CVAA.

The FCC has also specifically requested comment on the question of a “shot clock” requiring the Commission to issue an order within a specified period after the complaint is filed. Currently, a five-month “shot clock” applies to some non-disability access complaints that would be subject to the proposed rules, and the FCC is seeking comment on whether that should apply to other cases as well, whether different agency deadlines should apply in different situations, and what should happen if the Commission failed to meet a deadline.

How Could the Proposed Rules Affect Disability Access Complaints?

The proposed rules changes could affect a disability access complaint in a number of ways.

Let’s take the theoretical case of Jane Doe, who is deaf and uses closed captioning when watching television. Jane wants to watch episodes of a favorite series on a streaming media platform, Str-E-am, but discovers that it does not offer closed captioning, in violation of the CVAA.

Before Jane can file a complaint with the FCC, she must first show that she tried to settle her complaint with Str-E-am, Inc. So, Jane contacts Str-E-am’s help desk, which responds with an apology that closed captioning is not available on the platform and refuses to state if or when it will make closed captioning available. Since Jane is an individual, the “executive level” settlement rules do not apply.

Jane then files a complaint with the FCC, in which she certifies that she attempted to reach a settlement with Str-E-am. Under current rules, Str-E-am has 20 days to respond to Jane’s complaint; under the proposed rules, this period would be increased to 30 days. Current rules require that Jane’s complaint include proposed findings of fact and conclusions of law for the FCC to use in its final decision, but the proposed amendments would eliminate this requirement.

Because most information about Str-E-am’s closed captioning policies is unavailable to the public, Jane wants to submit several interrogatories with her complaint, including what percent of Str-E-am’s content has closed captions and how much it costs to include closed captions on streaming videos. Under current rules, Jane must ask the FCC for permission to submit her interrogatories; under the proposed changes, she would be able to include up to 10 interrogatories by default.

After receiving Jane’s complaint and interrogatories, Str-E-am submits its answer denying that the lack of closed captions is a violation of the CVAA. Under current rules, Jane has three (3) days to submit a reply to Str-E-am’s answer; the proposed amendments would increase this to 10 days. As with Jane’s complaint, Str-E-am would be required under current rules to submit its own draft findings of fact and conclusions of law with its answer, though this requirement would be removed by the proposed amendments.

After filing her reply, Jane asks the FCC’s staff to help mediate her dispute with Str-E-am. Although there is no formal provision for mediation under current rules, FCC staff regularly helps to arrange mediation between the parties; the proposed amendments would codify these informal practices. Unfortunately, mediation ultimately fails to result in an agreement between Jane and Str-E-am.

At this point, Jane must wait for the FCC to rule on her complaint. Under current law, there is no deadline for the FCC’s decision, and no procedure for Jane to seek an accelerated decision. The FCC’s NPRM specifically asks for comments about imposing a deadline for administrative decisions, but not for accelerated docketing in CVAA cases.

After some time, the FCC rules in Jane’s favor, ordering Str-E-am to provide closed captioning for content which previously aired on television. Str-E-am must now retrofit its website to handle closed captions.

How Do I File A Comment?

Comments must be filed with the FCC on or before October 26, 2017, with reply comments due by November 13, 2017. They may be filed electronically at the FCC’s website or submitted to the FCC on paper. Special rules apply to paper submissions, however, so commenters are advised to review them in advance of filing to ensure their comments will be accepted. Note that different rules apply for paper comments mailed to the FCC and those dropped off at the FCC’s headquarters in Washington, DC.

The full NPRM, which includes the proposed rules, a description of how the rules would change current practice, and the procedure for submitting public comments, is available in several formats—including Microsoft Word, Adobe Acrobat, and plain text—on the FCC’s website.

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