13800 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 6, 7, and 8 

[CG Docket No. 10–213; WT Docket No. 96– 

198; CG Docket No. 10–145; FCC 11–37] 

Implementing the Provisions of the 

Communications Act of 1934, as 

Enacted by the Twenty-First Century 

Communications and Video 

Accessibility Act of 2010 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission proposes to adopt rules 

that implement provisions in section 

104 of the Twenty-First Century 

Communications and Video 

Accessibility Act of 2010 (CVAA), the 

most significant piece of accessibility 

legislation since the passage of the 

Americans with Disabilities Act in 1990. 

This proceeding would update and 

amend the Commission’s rules to ensure 

that individuals with disabilities are 

able to fully utilize advanced 

communications services (ACS) and 

equipment and networks used for such 

services. Specifically, we seek comment 

on ways to implement the CVAA’s 

requirements on providers of ACS and 

manufacturers of equipment used for 

ACS to make their services and products 

accessible to people with disabilities. 

The intended effect is to promote rapid 

deployment of and universal access to 

broadband services for all Americans 

across the country, because broadband 

technology can stimulate economic 

growth and provide opportunity for all 

Americans. 

DATES: Submit comments on or before 

April 13, 2011. Submit reply comments 

on or before May 13, 2011. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. A copy of any 

comments on the Paperwork Reduction 

Act information collection requirements 

contained herein should be submitted to 

the Federal Communications 

Commission via e-mail to PRA@fcc.gov. 

You may submit comments, identified 

by FCC 11–37, or by CG Docket No. 10– 

213, WT Docket No. 96–198, CG Docket 

No. 10–145, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: (202) 418–0530 or TTY: (202) 

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

David Hu, Broadband Division, Wireless 

Telecommunications Bureau, FCC at 

(202) 418–7120 or via the Internet to 

David.Hu@fcc.gov, or Rosaline 

Crawford, Disability Rights Office, 

Consumer and Governmental Affairs 

Bureau, FCC at (202) 418–2075 or via 

the Internet to 

Rosaline.Crawford@fcc.gov. For 

additional information concerning the 

Paperwork Reduction Act information 

collection requirements contained in 

this document, contact Judith B. 

Herman at (202) 418–0214, or submit 

your PRA comments via the Internet at 

PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking, FCC 11–37, 

adopted on March 2, 2011, and released 

on March 3, 2011. The full text of this 

document is available for inspection 

and copying during normal business 

hours in the FCC Reference Information 

Center, Room CY–A257, 445 12th Street, 

SW., Washington, DC 20554. The 

complete text may be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc. 

(BCPI), Portals II, 445 12th Street, SW., 

Room CY–B402, Washington, DC 20554, 

(202) 488–5300, facsimile (202) 488– 

5563, or via e-mail at fcc@bcpiweb.com. 

The complete text is also available on 

the Commission’s Web site at http:// 

wireless.fcc.gov/edocs_public/

attachment/FCC-11-37A1doc. This full 

text may also be downloaded at: http:// 

wireless.fcc.gov/releases.html. 

Alternative formats (computer diskette, 

large print, audio cassette, and Braille) 

are available by contacting Brian Millin 

at (202) 418–7426, TTY (202) 418–7365, 

or via e-mail to bmillin@fcc.gov. 

Summary 

I. Introduction and Overview 

1. This Notice of Proposed 

Rulemaking (‘‘NPRM’’) initiates a 

proceeding to update the Commission’s 

rules to ensure that the 54 million 

individuals with disabilities are able to 

fully utilize advanced communications 

services and equipment and networks 

used for such services. Also, this NPRM 

proposes to adopt rules that implement 

provisions in section 104 of the 

‘‘Twenty-First Century Communications 

and Video Accessibility Act of 2010’’ 

(hereinafter referred to as the ‘‘CVAA’’), 

Public Law 111–260, 124 Stat. 2751 

(2010), the most significant piece of 

accessibility legislation since the 

passage of the Americans with 

Disabilities Act in 1990 (‘‘ADA’’). (See 

also Public Law 111–265, 124 Stat. 2795 

(2010) (making technical corrections to 

the CVAA)). 

2. In explaining the need for the 

CVAA, Congress noted that the 

communications marketplace has 

undergone a ‘‘fundamental 

transformation’’ since Congress acted to 

ensure access to telecommunications 

services and equipment by people with 

disabilities as part of the 

Telecommunications Act of 1996. See S. 

Rep. No. 111–386 (2010) and H.R. Rep. 

No. 111–563 (2010). Specifically, 

Congress stated that since it added 

section 255 to the Communications Act 

of 1934, as amended (hereinafter 

referred to as ‘‘the Communications Act’’ 

or ‘‘the Act’’), ‘‘Internet-based and digital 

technologies * * * driven by growth in 

broadband * * * are now pervasive, 

offering innovative and exciting ways to 

communicate and share information.’’ 

Congress found, however, that people 

with disabilities often have not shared 

in the benefits of this rapid 

technological advancement and that 

they face disproportionately higher rates 

of unemployment and poverty than 

those without disabilities. Recent 

surveys confirmed this finding, showing 

a gap of 38 percentage points in the 

rates of employment of working-age 

people with disabilities and those 

without disabilities (21% v. 59%) and a 

gap of 27 percentage points in the rates 

of Internet access (54% v. 81%). 

3. These trends are even more 

troubling when one considers the pace 

at which the communications 

marketplace is changing and how we as 

a society are becoming more dependent 

on such technologies to succeed in the 

workplace and to manage our daily 

lives. Statistics show, for example, that 

more than ever, Americans rely on their 

mobile phones for much more than 

phone service. Increasingly, wireless 

handsets have evolved into multi-media 

devices capable of accessing the 

Internet, sending e-mails or text 

messages, downloading music, and 

viewing streaming video programming 

that can, for example, enable distance 

education and telemedicine. As 

described in the National Broadband 

Plan, one of the Commission’s most 

important policy objectives is the rapid 

deployment of and universal access to 


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broadband services for all Americans 

across the country, because broadband 

technology can stimulate economic 

growth and provide opportunity for all 

Americans. To that end, the 

recommendations in the National 

Broadband Plan were consistent with 

the objectives set forth in the CVAA. 

This law will bring existing 

communication laws protecting people 

with disabilities in line with 21st 

Century technologies by ensuring that 

people with disabilities are not left 

behind and that they will be able to 

share fully in the economic, social, and 

civic benefits of broadband. 

4. This NPRM seeks comment on the 

way in which we should implement the 

requirements of sections 716 and 717, 

which were added by section 104 of 

Title I of the CVAA. The statute requires 

the Commission to adopt rules within 

one year of enactment. section 716 

requires that providers of ‘‘advanced 

communications services’’ (or ‘‘ACS’’) 

and manufacturers of equipment used 

for ACS make their services and 

products accessible to people with 

disabilities, unless it is not achievable to 

do so. The CVAA provides flexibility to 

the industry by allowing covered 

entities to comply with section 716 by 

either building access features into their 

equipment or services or relying on 

third party applications, peripheral 

devices, software, hardware, or 

customer premises equipment (or 

‘‘CPE’’) that is available to individuals 

with disabilities at nominal cost. If such 

compliance is not achievable, covered 

entities must ensure that their 

equipment and services are compatible 

with ‘‘existing peripheral devices or 

specialized customer premises 

equipment’’ commonly used by persons 

with disabilities to achieve access, 

unless it is not achievable to do so. 

Section 717 requires that the 

Commission establish new 

recordkeeping and enforcement 

procedures for manufacturers and 

providers subject to section 255 and 

section 716. Appendix D contains the 

full text of the CVAA as enacted (Pub. 

L. 111–260 and Pub. L. 111–265). 

5. While section 255 of the Act will 

be the starting point for our 

implementation of these sections, our 

proposed approach reflects several 

important differences between section 

255 and section 716. First, section 716 

covers a broader scope of services and 

related equipment than section 255. In 

addition, relative to section 255, section 

716 requires a higher standard of 

achievement for covered entities but 

also allows for greater flexibility in how 

to accomplish these requirements. In the 

NPRM, we propose to adopt a new rule 

part to implement sections 716 and 717 

of the Act and to amend the rules 

implementing section 255 of the Act to 

incorporate any relevant definitional 

changes in section 716 and establish the 

new recordkeeping and enforcement 

procedures set forth in section 717. The 

regulatory oversight we propose in this 

proceeding is not intended to prejudge 

the scope of the Commission’s authority 

in other proceedings that derive from 

different statutory grants of authority. 

6. The NPRM also seeks comment on 

section 718, which is effective three 

years after the date of enactment of the 

CVAA and requires manufacturers and 

service providers to make Internet 

browsers built into mobile phones 

accessible to people who are blind or 

have visual impairments. Specifically, 

the NPRM seeks input on what steps the 

Commission and stakeholders can take 

to ensure that manufacturers and service 

providers can meet their obligations 

when section 718 goes into effect in 

2013. 

II. Background 

7. Section 255 of the Act, which was 

added by the Telecommunications Act 

of 1996, requires manufacturers of 

telecommunications equipment and 

providers of telecommunications 

services to ensure that their equipment 

and services are accessible to and usable 

by people with disabilities, if readily 

achievable. When the accessibility 

requirements of section 255 are not 

readily achievable, manufacturers and 

service providers must ensure 

compatibility with existing peripheral 

devices or specialized CPE commonly 

used by individuals with disabilities, if 

readily achievable. A related provision 

in section 251(a)(2) of the Act prohibits 

a telecommunications carrier from 

installing network features, functions or 

capabilities that do not comply with the 

guidelines and standards established 

pursuant to section 255. 

8. Section 255 directed the United 

States Access Board (‘‘Access Board’’) to 

work with the Commission to establish 

guidelines for the accessibility of 

telecommunications equipment and 

CPE within 18 months of enactment. In 

June 1996, the Access Board convened 

the Telecommunications Access 

Advisory Committee (TAAC), a federal 

advisory committee consisting of 

consumer, industry, and government 

stakeholders, for this purpose. The 

TAAC delivered its final report to the 

Access Board in January 1997, which 

the Access Board then used to develop 

its section 255 guidelines. In September 

1999, the Commission adopted a Report 

and Order adding parts 6 and 7 to its 

rules to implement section 255, in large 

part incorporating the Access Board’s 

guidelines for telecommunications 

equipment and customer premises 

equipment (‘‘CPE’’). In addition to 

drawing heavily on these guidelines for 

its rules implementing section 255 of 

the Act on telecommunications 

equipment and CPE (in part 6 of its 

rules), the Commission utilized the 

general principles contained in these 

guidelines to outline the general 

obligations of telecommunications 

service providers. In part 7 of these 

rules, the Commission also used its 

ancillary jurisdiction to adopt rules 

relating to voicemail and interactive 

voice response providers and equipment 

manufacturers. In 2007, the Commission 

extended its section 255 accessibility 

rules to interconnected Voice-overInternet Protocol (‘‘VoIP’’) service 

providers and equipment 

manufacturers. 

9. The rules adopted to implement 

section 255 require that where readily 

achievable, manufacturers and service 

providers must evaluate the 

accessibility, usability, and 

compatibility features of covered 

services and equipment; incorporate 

such evaluation throughout product 

design, development, and fabrication, as 

early and consistently as possible; and 

identify barriers to accessibility and 

usability as part of the product design 

and development process. The rules 

also provide that where readily 

achievable, manufacturers and service 

providers must ensure that product and 

service information and documentation 

provided to customers is accessible to 

customers with disabilities. In addition, 

under the rules, equipment 

manufacturers must pass through crossmanufacturer, nonproprietary, industrystandard codes, translation protocols, 

formats or other information necessary 

to provide telecommunications in an 

accessible format, where readily 

achievable. The rules also contain an 

informal complaint procedure by which 

manufacturers and service providers 

must attempt to resolve the 

complainant’s concerns and respond to 

the Commission within 30 days. 

10. In 2006, the Access Board 

initiated a review of its accessibility 

guidelines for telecommunications 

equipment and CPE covered under 

section 255 of the Act and its standards 

for electronic and information 

technology covered under section 508 of 

the Rehabilitation Act. Under section 

508, federal agencies must ‘‘develop, 

procure, maintain, and use’’ electronic 

and information technologies that are 

accessible to people with disabilities, 

unless doing so would cause an undue 

burden. The goal of this review was to 


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bring the section 255 and section 508 

guidelines and standards up to date and 

to harmonize them with each other and 

international accessibility standards. 

Again, the Access Board established an 

advisory board of interested 

stakeholders for this purpose, and in 

April 2008, the Telecommunications 

and Electronic and Information 

Technology Advisory Committee 

(‘‘TEITAC’’) issued its final report, 

containing a set of recommended 

updates to these guidelines and 

standards. In March 2010, the Access 

Board released for public comment draft 

information and communication 

technology (‘‘ICT’’) guidelines and 

standards, which were based on these 

stakeholder recommendations. 

11. During the spring of 2010, the 

Consumer and Governmental Affairs 

Bureau (‘‘CGB’’) and the Wireless 

Telecommunications Bureau (‘‘WTB’’) 

(‘‘the Bureaus’’) held two workshops to 

explore the telecommunications access 

needs of people with disabilities, along 

with solutions to address these barriers. 

At the first of these, held on May 13, 

2010, the Commission received 

feedback on expanding disability access 

to wireless telecommunications; at the 

second, held on June 15, 2010, young 

adults who are deaf-blind discussed the 

barriers they experience in accessing 

telecommunications and in obtaining 

information about accessible 

technologies. 

12. Building on those workshops, on 

July 19, 2010, the Bureaus issued a 

public notice in DA 10–1324, in CG 

Docket No. 10–145 expressing the 

concerns ‘‘that people who are blind or 

have other vision disabilities have few 

accessible and affordable wireless 

phone options’’ and ‘‘that many wireless 

technologies may not be compatible 

with Braille displays needed by 

individuals who are deaf-blind.’’ The 

July public notice sought comment on, 

among other things, the barriers faced 

by these populations, the cost and 

feasibility of technical solutions, and 

the actions that the agency should take 

to address the current lack of access. 

The Bureaus received over 200 

submissions in the record from 

consumers, consumer groups, trade 

associations, and individual companies, 

many of whom provided details about 

the lack of access to basic and smart 

phones. While staff continues to 

consider the steps the agency should 

take to address those concerns, we have 

incorporated the record from the July 

public notice into the record of this 

proceeding because the record in CG 

Docket No. 10–145 is particularly 

relevant and may inform our 

understanding of the issues raised here, 

including the difficulties that people 

with disabilities face in finding 

accessible products and getting the 

technical and customer support that 

they need in today’s marketplace. 

13. On October 21, 2010, CGB and 

WTB issued a public notice in DA 10– 

2029, seeking input on key provisions in 

sections 716, 717, and 718 of the 

Communications Act, as amended by 

the CVAA. The Bureaus received 24 

comments and 25 reply comments, 

which have helped to shape the 

development of this NPRM. 

III. Statutory Definitions 

A. Scope of Coverage 

1. Background 

14. Section 716 of the Act covers a 

broad array of manufacturers of 

equipment and providers of services 

that are not covered under section 255. 

As discussed in more detail below, the 

requirements of section 716 apply to the 

manufacturers of equipment used for 

non-interconnected VoIP services, 

electronic messaging services, and 

interoperable video conferencing 

services (all of which are ‘‘advanced 

communications services’’ as defined in 

section 3(1) of the Act) and the 

providers of those services. (Although 

interconnected VoIP service also 

constitutes an ACS, such service is 

subject to section 255 of the Act and 

thus need not comply with the 

requirements of section 716.) We agree 

with AT&T’s statement that ‘‘section 716 

reflects the reality that ACS is delivered 

in a complex Internet ecosystem’’ and 

that ‘‘[a]ccessibility obligations must be 

shared by all entities in that ecosystem 

for consumers to have an accessible 

experience.’’ We discuss the evolution of 

the ‘‘complex Internet ecosystem’’ below 

and seek further comment on how we 

should interpret section 716 

requirements, in light of this evolution 

and the statute’s broader purposes of 

ensuring that ACS and equipment used 

for ACS is accessible to and usable by 

people with disabilities. 

15. Since section 255 was first 

enacted, communication technology has 

changed significantly, both in terms of 

its usage of the Internet and packetswitched networks instead of circuitswitched networks and in its common 

architecture. In many cases, 

communication devices had a single 

function, and were created by a single 

manufacturer and often closely tied to a 

specific communication service or 

network. As the fixed and mobile 

Internet has evolved, mass-market 

communication devices are now often 

general-purpose computers or devices 

such as smart phones incorporating 

aspects of general-purpose computers, 

with an architecture reflecting the 

evolution of computer technology. This 

architecture has been common for 

personal computers since the 1980s, but 

has more recently also made its way 

into mobile devices such as smart 

phones and tablets, and into 

entertainment devices such as game 

consoles and set-top boxes. In all of 

these cases, systems can be divided into 

at least five components that can be 

pictured, roughly, as layers, with the 

hardware at the bottom and the 

application and services at the top: 

• Hardware (commonly referred to as 

the ‘‘device’’): Every advanced 

communications service relies on 

hardware with general-purpose 

computing functionality. It typically 

includes a computing component 

(‘‘CPU’’), several kinds of memory, one 

or more network interfaces (cellular, 

IEEE 802.11 ‘‘WiFi,’’ Ethernet, Bluetooth, 

etc.), built-in peripherals such as 

keyboards and displays, and both 

generic and dedicated-purpose 

interfaces to external peripherals. A 

common example of a generic interface 

is a USB interface, as it can support just 

about any input or output technology, 

from audio to keyboards and cameras. A 

dedicated-purpose interface can only 

support one media type, such as audio. 

• Operating system (‘‘OS’’): The OS 

manages the system resources 

enumerated above and provides 

common functionality, such as network 

protocols, to applications. Almost all 

devices with a CPU have an OS. 

• User interface layer: Most modern 

devices have a separate user interface 

(‘‘UI’’) layer upon which almost all 

applications rely to create their 

graphical user interface. Currently, the 

OS and user interface layer are typically 

provided as a package and are often 

referred to collectively as the OS, but 

this is not always the case. For example, 

at least one common OS allows users to 

replace the user interface layer. In many 

cases, web browsers are considered to 

be part of the UI layer although they 

themselves are also an application. 

• Application (commonly referred to 

as an ‘‘app’’): Software is used to 

implement the actual advanced 

communications functionality. The 

software may be embedded into the 

device and non-removable, installed by 

the system integrator or user, or reside 

in the cloud. 

• Network services: Advanced 

communication applications, such as 

VoIP, rely on network services to 

interconnect users. These networks 

perform many functions, ranging from 

user authentication and authorization to 

call routing and media storage. In many 


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cases, such network services simply 

route the call signaling information and 

do not touch the actual media 

exchanged. In these cases, the service 

itself may not know or care what kind 

of media (audio, video, text) is 

exchanged between communicating end 

systems. In other cases, the network 

services may perform more than 

transport functions and offer video, 

voice, and other data capabilities. 

While the particulars of the above 

components have evolved, the basic 

architecture has remained stable for 

several decades and there are no 

obvious successors under development 

in the research community. Thus, it 

appears reasonably safe to assume that 

this division will continue for the 

immediate future, although we note that 

the components listed above overlap 

with each other. 

16. Because each of the above 

components may be created by a 

different manufacturer and sold 

separately, this division has three major 

consequences. First, a manufacturer or 

provider of one component may have 

limited ability to know which other 

components are being used to deliver an 

advanced communications service. For 

example, a PC- and web-based 

collaboration service can run on most 

personal computers, using an almost 

infinite set of combinations of hardware, 

operating systems and web browsers. 

Second, components of the service can 

change over time. Users can often 

upgrade their hardware, OS, or 

application, without consulting with the 

manufacturer or provider of the other 

components. Third, the accessibility 

features of each component are likely to 

evolve over time. Manufacturers of 

hardware, OS, and user interface layers 

may not know whether the components 

they produce will be used for advanced 

communications services in the future 

and for which ones. 

17. In order to enable individuals 

with disabilities to use an advanced 

communications service, all of the 

components may have to support 

accessibility features and capabilities. 

Conversely, if one component does not 

offer a particular function, it is often 

impossible for another component to 

compensate for that omission. For 

example, only the hardware component 

can support an audio jack or a 

connection to an external Braille device, 

while only the OS and user interface 

layer can enable screen readers. In 

addition, it should be noted that while 

upper layers cannot make up for the 

lack of accessibility features at the lower 

layers, they can impede their use. For 

example, an application could render 

text in such a way that screen readers 

or Braille devices cannot function, e.g., 

to protect content against extraction as 

part of digital rights management 

functionality. While this environment 

complicates the ability to implement 

capabilities that support people with 

disabilities, we also recognize that these 

challenges are inherent in the design of 

any mass market application or 

hardware device. At the same time, we 

recognize that this environment also has 

the potential to provide new solutions 

for people with disabilities which were 

not previously possible. 

18. We seek comment on whether the 

above description accurately reflects the 

basic architecture and components 

involved in the delivery of ACS. Below, 

we seek comment on how we should 

interpret the statute’s directives, in light 

of the architecture and components 

discussed above. 

2. Manufacturers of Equipment Used for 

Advanced Communications Services 

19. Section 716(a) of the Act provides 

that, with respect to equipment 

manufactured after the effective date of 

applicable regulations established by 

the Commission and subject to those 

regulations, the accessibility obligations 

apply to a ‘‘manufacturer of equipment 

used for advanced communications 

services, including end user equipment, 

network equipment, and software * * * 

that such manufacturer offers for sale or 

otherwise distributes in interstate 

commerce.’’ 

20. We first seek comment on the 

meaning of the term ‘‘manufacturer.’’ We 

note that in our rules implementing 

section 255 of the Act we define 

‘‘manufacturer’’ as ‘‘an entity that makes 

or produces a product.’’ In the Section 

255 Report and Order, we found that 

‘‘[t]his definition puts responsibility on 

those who have direct control over the 

products produced, and provides a 

ready point of contact for consumers 

and the Commission in getting answers 

to accessibility questions and resolving 

complaints.’’ We propose to adopt the 

same definition of ‘‘manufacturer’’ in our 

rules implementing section 716 and 

seek comment on this proposal. 

21. We also seek comment on the 

meaning of ‘‘end user equipment,’’ 

‘‘network equipment’’ and ‘‘software,’’ as 

those terms are used in section 716(a). 

We propose to define ‘‘end user 

equipment’’ as including hardware as 

described above; ‘‘software’’ includes the 

OS, the user interface layer, and 

applications, as described above, that 

are installed or embedded in the end 

user equipment by the manufacturer of 

the end user equipment or by the user; 

and ‘‘network equipment’’ includes 

equipment used for network services, as 

described above. We seek comment on 

whether upgrades to the software (OS, 

user interfaces, or applications) by 

manufacturers are encompassed in these 

definitions. We also seek comment on 

whether there are any circumstances in 

which a manufacturer of end user 

equipment would be responsible for the 

accessibility of software that is installed 

or downloaded by the user. In 

particular, we seek comment on 

commenters’ assertions that the 

limitations on liability in section 2(a) of 

the CVAA generally preclude 

manufacturers from being liable for 

third party applications that are 

installed or downloaded by the 

consumer. 

22. In addition, we seek comment on 

the meaning of the phrase ‘‘used for 

advanced communications services,’’ in 

section 716(a), for the purposes of 

determining a manufacturer’s 

obligations under this section. As a 

general matter, must equipment subject 

to section 716(a) be capable of offering 

ACS on a standalone basis or merely 

support ACS in some way? If the former, 

then how should this standard be 

applied, for example, to Internetenabled ACS intended to run on 

separately distributed general 

computing platforms? 

23. We also seek comment on the 

meaning of ‘‘offers for sale or otherwise 

distributes in interstate commerce’’ by 

‘‘such manufacturer.’’ Hardware, as 

described above, commonly meets this 

definition. We seek comment on 

whether other components that are used 

for advanced communications services 

are offered for sale or otherwise 

distributed in interstate commerce by 

the manufacturer when installed or 

embedded by the manufacturer. We 

propose to treat generally the act of a 

manufacturer’s making software 

available for download as a form of 

distribution. We seek comment, 

however, for purposes of the CVAA, on 

what should constitute making software 

available for download. 

24. We propose to hold manufacturers 

of end user equipment responsible for 

the accessibility of their products, 

including the software, such as the OS, 

the user interface layer, and the 

applications that they install. We also 

propose to find manufacturers of 

software used for advanced 

communications services that is offered 

for sale or otherwise distributed in 

interstate commerce by such 

manufacturers and that is downloaded 

or installed by the user as being covered 

by section 716(a). 


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3. Providers of Advanced 

Communications Services 

25. Section 716(b)(1) of the Act 

provides that, with respect to service 

providers, after the effective date of 

applicable regulations established by 

the Commission and subject to those 

regulations, a ‘‘provider of advanced 

communications services shall ensure 

that such services offered by such 

provider in or affecting interstate 

commerce are accessible to and usable 

by individuals with disabilities,’’ unless 

these requirements are ‘‘not achievable.’’ 

26. In the Section 255 Report and 

Order, the Commission found that 

providers of telecommunications 

services include resellers and 

aggregators. The Commission’s decision 

was based on its interpretation of the 

statutory definition of 

‘‘telecommunications carrier’’ as defined 

in section 3(51) of the Act. Specifically, 

the Commission noted that ‘‘[section 

3(51)] states that a ‘telecommunications 

carrier’ means any ‘provider of 

telecommunications services’ with the 

exception of aggregators, thus indicating 

that a ‘provider of telecommunications 

services’ would otherwise include 

aggregators.’’ While the CVAA does not 

provide similar guidance with respect to 

the definition of provider of ACS, we 

believe that the general principle that 

the Commission adopted in the Section 

255 Report and Order—that ‘‘Congress 

intended to use the term ‘‘provider’’ 

broadly * * * to include all entities that 

make telecommunications services 

available’’—has applicability here. 

Accordingly, we propose to find 

providers of ACS to include all entities 

that make ACS available in or affecting 

interstate commerce, including resellers 

and aggregators. We seek comment on 

this proposal. 

27. We also seek comment on 

additional issues relating to the meaning 

of ‘‘providers of advanced 

communications services.’’ We propose 

to find such providers to include 

entities that provide ACS over their own 

networks as well as providers of 

applications or services accessed (i.e., 

downloaded and run) by users over 

other service providers’ networks, as 

long as these providers make advanced 

communications services available in or 

affecting interstate commerce. We also 

seek comment on whether there are any 

circumstances in which a service 

provider would be responsible for the 

accessibility of third party services and 

applications or whether the liability 

provisions in section 2(a) of the CVAA 

would generally preclude such a result. 

We seek comment on these proposed 

approaches and on whether the fact that 

we are required under section 

716(e)(1)(C) to ‘‘determine the 

obligations under this section of 

manufacturers, service providers, and 

providers of applications or services 

accessed over service provider 

networks’’ should have any bearing on 

how we interpret the meaning of 

providers of ACS. Specifically, we seek 

comment on the meaning of ‘‘providers 

of applications or services accessed over 

service provider networks’’ and how this 

term differs from ‘‘providers of advanced 

communications services.’’ Finally, we 

also seek comment on the meaning of 

‘‘in or affecting interstate commerce.’’ 

Are there any circumstances in which 

advanced communications services that 

are downloaded or run by the user 

would not meet this definition? 

4. Advanced Communications Services 

28. Section 3(1) of the Act defines 

‘‘advanced communications services’’ to 

mean (A) Interconnected VoIP service; 

(B) non-interconnected VoIP service; (C) 

electronic messaging service; and (D) 

interoperable video conferencing 

service. That provision sets forth 

definitions for each of these terms. 

a. Interconnected VoIP Service 

29. Section 3(25) of the Act, as added 

by the CVAA, provides that the term 

‘‘interconnected VoIP service’’ has the 

meaning given in § 9.3 of the 

Commission’s rules, as such section 

may be amended. § 9.3 of the 

Commission’s rules, in turn, defines 

interconnected VoIP as a service that (1) 

enables real-time, two-way voice 

communications; (2) requires a 

broadband connection from the user’s 

location; (3) requires Internet protocolcompatible CPE; and (4) permits users 

generally to receive calls that originate 

on the public switched telephone 

network (‘‘PSTN’’) and to terminate calls 

to the PSTN. We propose to continue to 

define interconnected VoIP in 

accordance with § 9.3 of the 

Commission’s rules. We seek comment 

on this proposal. 

30. Section 716(f) of the Act provides 

that ‘‘the requirements of this section 

shall not apply to any equipment or 

services, including interconnected VoIP 

service, that are subject to the 

requirements of section 255 on the day 

before the date of enactment of the 

Twenty-First Century Communications 

and Video Accessibility Act of 2010.’’ In 

the October Public Notice, the Bureaus 

sought comment on how to address the 

accessibility obligations of equipment 

that is used to provide both 

telecommunications and advanced 

communications services and how to 

treat interconnected VoIP. In its 

comments, AT&T states that ‘‘the 

Commission should subject multipurpose devices to section 255 to the 

extent that the device provides a service 

that is already subject to section 255 and 

apply section 716 solely to the extent 

that the device provides ACS that is not 

otherwise subject to section 255.’’ We 

seek comment on AT&T’s interpretation 

and also seek comment on alternative 

interpretations of section 716(f). 

b. Non-interconnected VoIP Service 

31. Section 3(36) of the Act, as added 

by the CVAA, states that the term ‘‘noninterconnected VoIP service’’ means a 

service that ‘‘(i) enables real-time voice 

communications that originate from or 

terminate to the user’s location using 

Internet protocol or any successor 

protocol; and (ii) requires Internet 

protocol compatible customer premises 

equipment’’ and that ‘‘does not include 

any service that is an interconnected 

VoIP service.’’ We propose to define 

‘‘non-interconnected VoIP service’’ in 

our rules in the same way and seek 

comment on this proposal. 

32. We propose to treat any offering 

that meets the criteria of the statutory 

definition set forth above as a ‘‘noninterconnected VoIP service,’’ and note 

that the statutory definition of noninterconnected VoIP does not exclude 

offerings with a purely incidental VoIP 

component. We seek comment on this 

proposal. We also note that, as 

discussed below, the statute allows the 

Commission to waive the requirements 

of section 716 for equipment or services 

‘‘designed primarily for purposes other 

than using advanced communications 

service.’’ In addition, as discussed 

below, section 716(i) provides that the 

requirements of this Section do not 

apply to ‘‘customized equipment or 

services that are not offered directly to 

the public.’’ 

c. Electronic Messaging Service 

33. Section 3(19) of the Act, as added 

by the CVAA, states that the term 

‘‘electronic messaging service’’ means a 

service that provides real-time or near 

real-time non-voice messages in text 

form between individuals over 

communications networks. In 

accordance with this definition, we 

propose to define this term in the 

Commission’s rules as ‘‘a service that 

provides real-time or near real-time nonvoice messages in text form between 

individuals over communications 

networks.’’ Consistent with language of 

the Senate and House Reports, we also 

propose that electronic messaging 

service includes ‘‘more traditional, twoway interactive services such as text 

messaging, instant messaging, and 


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electronic mail, rather than * * * blog 

posts, online publishing, or messages 

posted on social networking websites.’’ 

We seek comment on these proposed 

definitions. For reasons similar to those 

discussed below in the section on 

interoperable video conferencing 

services, we believe that Internet 

protocol relay (‘‘IP Relay’’) services that 

otherwise fit the definition of 

‘‘electronic messaging services’’ are 

services subject to the requirements of 

section 716. 

34. We also seek comment on the 

assertion of several commenters that the 

phrase ‘‘between individuals’’ in the 

above definition precludes the 

application of the accessibility 

requirements to communications in 

which no human is involved, such as 

automatic software updates or other 

device-to-device or machine-to-machine 

communications. In addition, we seek 

comment on TIA’s assertion that 

‘‘services and applications that merely 

provide access to an electronic 

messaging service, such as a broadband 

platform that provides an end user 

access to an HTML-based e-mail service, 

are not covered.’’ 

d. Interoperable Video Conferencing 

Service 

35. Section 3(1) of the Act, as added 

by the CVAA, defines the term 

‘‘advanced communications services’’ to 

include ‘‘interoperable video 

conferencing service,’’ which, in turn, is 

defined in section 3(27) as ‘‘a service 

that provides real-time video 

communications, including audio, to 

enable users to share information of the 

user’s choosing.’’ We note that while 

earlier versions of the legislation did not 

include the word ‘‘interoperable’’ in the 

definition of the term ‘‘advanced 

communications services,’’ the 

definition of ‘‘interoperable video 

conferencing services’’ in the enacted 

legislation is identical to the definition 

of ‘‘video conferencing services’’ found 

in earlier versions. In addition, language 

in the Senate Report regarding 

‘‘interoperable video conferencing 

services’’ is identical to language in the 

House Report regarding ‘‘video 

conferencing services.’’ Both the Senate 

Report and the House Report state, for 

example, that ‘‘[t]he inclusion * * * of 

these services within the scope of the 

requirements of this act is to ensure, in 

part, that individuals with disabilities 

are able to access and control these 

services’’ and that ‘‘such services may, 

by themselves, be accessibility 

solutions.’’ In light of the above 

symmetries between the earlier and later 

versions of this definition, as well as the 

reports prepared by each chamber of 

Congress, we will first seek comment on 

the meaning of ‘‘video conferencing 

service’’ and then on the meaning of 

‘‘interoperable’’ in this context. 

i. Video Conferencing Service 

36. We first seek comment on what 

services meet the statutory definition of 

‘‘providing * * * real-time video 

communications, including audio, to 

enable users to share information of the 

user’s choosing’’ and what end user 

equipment, network equipment, and 

software are used for these services. We 

propose to classify a range of services 

and end user equipment under this 

statutory definition, including, but not 

limited to videophones and software 

applications used for conversation 

between and among users. Such end 

user equipment includes smart phones 

and computers with the capability of 

using interactive video, text and audio 

conferencing applications such as the 

Apple iPhone 4.0, Motorola Droid X and 

computers and videophones such as 

ASUS Skype, Grandstream, Ojo, and 

Polycom. Examples of video 

conferencing software applications 

include, for example, Google Voice & 

Video Chat, ooVoo, AOL Instant 

Message (‘‘AIM’’) Chat, WebEx, and 

Skype. We seek comment on this 

proposal. 

37. We also seek comment on whether 

video relay services (‘‘VRS’’) meet the 

above definition. VRS is a form of TRS 

under section 225 of the Act that 

enables individuals who are deaf or 

hard of hearing and who use American 

Sign Language to communicate over 

distances with voice telephone users 

through a remotely located sign 

language interpreter called a CA. The 

person who is deaf or hard of hearing 

makes a VRS call using video 

equipment (a television or a computer 

with a video camera device) that 

connects such individual with the CA 

over a broadband connection. The CA 

then relays the conversation between 

the parties—in sign language with the 

VRS user (the ‘‘video leg’’), and by voice 

with the telephone user (the ‘‘telephone 

leg’’). Voice telephone users can also 

initiate VRS calls by simply dialing the 

telephone number of the person who 

uses sign language. The call is then 

automatically connected to a CA, who 

then relays the conversation. 

38. Commenters disagree about 

whether the CVAA covers the video 

conferencing service and equipment 

used in the provision of VRS. Sorenson 

cites to the legislative history and 

submits that ‘‘Section 716 was intended 

to cover mass market services and 

equipment (such as personal computers 

and smart phones) that have not been 

designed for use by people with 

disabilities, not services and equipment 

(such as VRS and point-to-point) that 

have been designed specifically to be 

accessible to and usable by persons with 

disabilities.’’ Consumer Groups disagree, 

stating that ‘‘VRS equipment and [video 

conferencing] services * * * should be 

made accessible in accordance with the 

Accessibility Act, if achievable.’’ 

Sorenson also asserts that the phrase 

‘‘including audio’’ in the definition 

suggests the exclusion of VRS ‘‘video 

conferencing service’’ or equipment. 

Consumer Groups reject Sorenson’s 

assertion because widely distributed 

VRS equipment includes audio 

functions that ‘‘benefit users who engage 

in voice carryover (‘VCO’) and hearing 

carryover (‘HCO’).’’ 

39. We agree with Consumer Groups 

and believe that the ‘‘video leg’’ of a VRS 

call meets the statutory definition of 

‘‘provid[ing] * * * real-time video 

communications, including audio, to 

enable users to share information of the 

user’s choosing.’’ Just as a voice 

telephone user uses telecommunications 

services and equipment to communicate 

with the VRS CA (the ‘‘telephone leg’’ of 

a VRS call), we propose to find that a 

VRS consumer uses video conferencing 

services and equipment to communicate 

with the VRS CA (the ‘‘video leg’’ of a 

VRS call). We find nothing in the statute 

or the legislative history to suggest that 

providers of video conferencing services 

and manufacturers of equipment used 

for VRS who otherwise are covered 

under the CVAA should be excluded 

from its requirements simply because 

their services are a kind of TRS 

provided pursuant to section 225 of the 

Act. While VRS equipment and services 

are specifically designed for people who 

are deaf or hard of hearing and use sign 

language, they are not necessarily 

designed for those who have additional 

disabilities as well (e.g., individuals 

who are deaf and have low vision, a 

mobility, or dexterity disability). We do 

not believe this interpretation will in 

any way diminish or change the 

obligations of VRS providers that are 

contained in part 64 of the 

Commission’s rules. We seek further 

comment on this issue and on whether 

such an interpretation would create any 

difficulties or conflicts in our 

implementation of the VRS program. 

40. We note that consumers who are 

deaf or hard of hearing also use video 

equipment distributed by VRS providers 

for point-to-point calls with other users 

of this equipment. We believe that such 

point-to-point calling also meets the 

CVAA’s statutory definition of 

‘‘providing * * * real-time video 

communications, including audio, to 


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enable users to share information of the 

user’s choosing,’’ and seek comment on 

this analysis. 

41. We also seek further comment on 

whether webinars are a covered service. 

TIA states that ‘‘a service that enables 

users to share information necessarily 

implies a two-way service, not a 

broadcast-style webinar video.’’ The IT 

and Telecom RERCs disagree, however, 

asserting that webinar systems should 

be subject to Section 716 because these 

systems are ‘‘not designed to broadcast 

information but rather to provide user 

interaction in the form of chat, voting, 

and hand-raising, etc.’’ 

42. Next, we seek comment on 

Consumer Groups’ assertion that ‘‘the 

scope of the [CVAA] should not be 

limited by the type of communication 

conveyed by the video conferencing 

service (i.e., uni-, bi-, or multidirectional), but by the fact that the 

service is capable of providing real-time 

communications that enable users to 

share information.’’ Consumer Groups 

suggest, for example, that the fact that 

‘‘video conferencing services may be 

used to leave a ‘video mail’ (similar to 

a ‘voice mail’) message,’’ does not 

preclude the service’s coverage under 

the CVAA. Consistent with our seeking 

comment on how to treat multi-purpose 

devices above we seek comment on 

Consumer Groups’ suggestion. We also 

seek comment more generally on 

whether services that otherwise meet 

the definition of ‘‘provid[ing] * * * realtime video communications, including 

audio, to enable users to share 

information of the user’s choosing’’ but 

that also provide non-real-time 

functions (such as video mail) are 

covered under the CVAA. If so, are the 

non-real-time functions or near-realtime functions of such a service (such as 

video mail) subject to the requirements 

of section 716? If such functions are not 

covered, should we, similar to what we 

did in the section 255 context, assert our 

ancillary jurisdiction to cover video 

mail? Specifically, the Commission 

employed its ancillary jurisdiction to 

extend the scope of section 255 to both 

voicemail and interactive menu services 

under part 7 of the Commission’s rules 

because ‘‘the failure to ensure 

accessibility of voicemail and 

interactive menu services, and the 

related equipment that performs these 

functions, would [have] seriously 

undermined the accessibility and 

usability of telecommunications 

services required by sections 255 and 

251(a)(2).’’ Similarly, we seek comment 

on whether the exclusion of video mail 

from our rules governing section 716 

would hinder our ability to ensure the 

accessibility and usability of advanced 

communications services. 

43. TIA also asserts, similar to the 

argument that it made with respect to 

the scope of VoIP services covered 

under the CVAA, that ‘‘products that 

offer a video connection that is 

incidental to the principal purpose and 

nature of the end user offering fall 

outside the definition as well,’’ we 

believe the same analysis that we 

propose to apply to the scope of noninterconnected VoIP should apply here. 

We therefore propose to classify any 

offering that meets the criteria of the 

statutory definition set forth above as a 

‘‘video conferencing service’’ and note 

that the statutory definition does not 

exclude ‘‘products that offer a video 

connection that is incidental to the 

principal purpose and nature of the end 

user offering.’’ Again, we note that this 

issue may be relevant to our waiver 

authority set forth in section 716(h), or 

the exclusion of customized equipment 

or services pursuant to section 716(i). 

We seek comment on this proposed 

classification. 

ii. Interoperable 

44. We seek further comment on the 

meaning of ‘‘interoperable’’ in the term 

‘‘interoperable video conferencing 

service,’’ again noting the symmetries of 

the definition and interpretation of this 

term in the various drafts of the CVAA 

and the legislative history of this law. 

Commenters appear to be divided on the 

significance of this term. ITI asserts that 

the inclusion of the modifier 

‘‘interoperable’’ after earlier versions of 

the legislation did not include the word 

‘‘strongly suggests that Congress 

consciously decided to target only a 

subset of all video conferencing 

services.’’ TIA urges an interpretation of 

the word ‘‘interoperable’’ to mean that a 

video conferencing service must operate 

‘‘inter-platform, inter-network, and 

inter-provider’’ before it is subject to the 

accessibility provisions of the CVAA. 

Similarly, CEA concludes that ‘‘most 

nascent two-way video services and 

applications commercially available in 

the marketplace have not yet reached 

true interoperability and are not covered 

by the statute.’’ However, Consumer 

Groups believe that ‘‘interoperable’’ 

should be interpreted to achieve a broad 

application of the requirements of the 

CVAA. Similarly, the RERC–IT urges 

that the inclusion of the word 

‘‘interoperable’’ suggests a broad 

application of the CVAA so that ‘‘all 

video conferencing services are covered 

and that they should be made 

interoperable.’’ Other commenters 

express concerns about the current lack 

of interoperability of video conferencing 

services, i.e., that consumers are not 

able to make point-to-point calls using 

different video conferencing programs. 

45. We are concerned that limiting 

coverage of this provision to only 

currently available video conferencing 

services that are ‘‘inter-platform, internetwork, and inter-provider’’ may 

undermine the statute’s intent to the 

extent the definition results in little or 

no video conferencing service or 

equipment being ‘‘interoperable.’’ We 

note that ‘‘video conferencing service’’ in 

the legislative history and ‘‘interoperable 

video conferencing service’’ in the 

statute have the exact same definitions. 

46. We seek comment on how to 

define ‘‘interoperable’’ in a manner that 

is faithful to both the statutory language 

and the broader purposes of the CVAA. 

Specifically, we seek comment on how 

the Commission should define 

interoperable video conferencing 

services within the scope of covered 

services to ensure that ‘‘such services 

may, by themselves, be accessibility 

solutions’’ and ‘‘that individuals with 

disabilities are able to access and 

control these services’’ as Congress 

intended. For example, which 

characteristics of video conferencing 

services and equipment, including 

software, should determine 

‘‘interoperability’’? 

47. The Commission requires VRS 

services and equipment to be 

‘‘interoperable’’ for the provision of VRS 

under section 225 of the Act. The 

Commission also requires video 

conferencing services and equipment 

used for point-to-point calls between 

VRS equipment users to be 

‘‘interoperable’’ under the authority of 

ancillary jurisdiction. These 

interoperability requirements pertain 

only to VRS providers and equipment 

used by registered VRS users for VRS 

and point-to-point communications and 

do not require interoperability among 

VRS and other platforms, networks, or 

providers. We seek comment on 

whether how we define interoperability 

in the context of VRS should have any 

bearing on how we define 

‘‘interoperable’’ in the term 

‘‘interoperable video conferencing 

service.’’ 

5. Customized Equipment or Services 

48. Section 716(i) states that the 

provisions of this section ‘‘shall not 

apply to customized equipment or 

services that are not offered directly to 

the public, or to such classes of users as 

to be effectively available directly to the 

public, regardless of the facilities used.’’ 

While the Senate Report did not discuss 

this provision, the House Report 

explains that section 716(i) is a ‘‘narrow 


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exemption’’ that encompasses 

‘‘equipment and services [that] are 

customized to the unique specifications 

requested by an enterprise customer.’’ It 

goes on to state that this provision 

‘‘permit[s] manufacturers and service 

providers to respond to requests from 

businesses that require specialized and 

sometimes innovative equipment to 

provide their services efficiently’’ and is 

‘‘not intended to create an exemption for 

equipment and services designed for 

and used by members of the general 

public.’’ 

49. Several other commenters urge us 

to find that manufacturers and service 

providers are subject to Section 716 

only to the extent that they are offering 

their equipment and services directly to 

the public. In contrast, the RERC–IT 

urges us to ‘‘carefully limit the exception 

for customized equipment and services’’ 

and to cover equipment and services 

that have been customized in ‘‘minor 

ways’’ and ‘‘that are made available to 

the public indirectly through employers, 

schools, or other institutions.’’ The 

RERC–IT also urges that we define 

‘‘public’’ in this context to ‘‘include 

public institutions, such as educational 

institutions and government agencies.’’ 

50. We believe that the guidance 

offered by the House Report evinces 

Congress’s intent that section 716(i) be 

narrow in scope and applicable only to 

customized equipment and services 

offered to business or other enterprise 

customers, rather than to equipment and 

services ‘‘used by members of the 

general public.’’ We seek comment on 

this analysis, as well as on the extent to 

which the equipment and services used 

by private institutions but made 

available to the public, such as 

communications equipment and 

services used by libraries and schools, 

should be covered by the CVAA. More 

specifically, we seek comment on what 

additional guidance by the Commission 

is needed to define equipment and 

services that are ‘‘used by members of 

the general public.’’ Finally, we seek 

comment on the extent to which section 

716 covers products and services that 

are offered to the general public, but 

which have been customized in minor 

ways to meet the needs of private 

entities. 

51. Consistent with Motorola’s 

assertions, we propose to find section 

716’s definition of advanced 

communications services not to extend 

to public safety communications 

networks and devices and find that 

these networks and devices are 

‘‘equipment and services that are not 

offered directly to the public.’’ We agree 

that the Commission’s recent proposal 

not to apply its hearing aid 

compatibility requirements to public 

safety equipment is instructive here. We 

note, however, that employers still have 

obligations under the ADA, and agree 

with CSD that ‘‘to the extent possible, 

public safety systems should be 

designed to accommodate the needs of 

deaf [and] hard-of-hearing employees 

and employees with other disabilities.’’ 

We seek comment on this analysis. 

6. Waivers for Services or Equipment 

Designed for Purposes Other Than 

Using ACS 

52. Section 716(h)(1) of the Act states: 

The Commission shall have the 

authority, on its own motion or in 

response to a petition by a manufacturer 

or provider of [ACS] or any interested 

party, to waive the requirements of 

[section 716] for any feature or function 

of equipment used to provide or access 

[ACS], or for any class of such 

equipment, for any provider of [ACS], or 

for any class of such services that —(A) 

is capable of accessing an [ACS]; and (B) 

is designed for multiple purposes but is 

designed primarily for purposes other 

than using [ACS]. We note that, in 

making waiver decisions, the 

Commission generally considers 

whether special circumstances exist that 

warrant deviation from the general rule, 

and whether the waiver will serve the 

public interest. In the October public 

notice, the Bureaus asked what factors 

would be relevant to determining 

whether a product or service is eligible 

for a waiver and whether there are any 

specific classes of products or services 

that warrant the establishment of a 

categorical or blanket waiver. 

53. Both the Senate and House 

Reports state that section 716(h) 

‘‘provides the Commission with the 

flexibility to waive the accessibility 

requirements for any feature or function 

of a device that is capable of accessing 

advanced communications services but 

is, in the judgment of the Commission, 

designed primarily for purposes other 

than accessing advanced 

communications.’’ Consistent with the 

statutory language and legislative 

history, we propose to focus our inquiry 

on determining whether the offering is 

designed primarily for purposes other 

than using ACS. 

54. In making our waiver assessment, 

we agree with commenters that the 

‘‘core’’ function of an offering is an issue 

relevant to our analysis, we also agree 

with the IT and Telecom RERCs’s 

suggestion that the ‘‘primary feature of a 

multi-feature device or service [may] 

vary from person to person.’’ 

Furthermore, we do not believe the fact 

that a ‘‘core’’ function of a device is to 

play games to be dispositive of the issue 

whether such device is entitled to 

waiver under section 716(h). As the IT 

and Telecom RERCs note, ‘‘[g]aming is 

used for education, rehabilitation, and 

social interaction [and] * * * should 

not be exempted simply because the 

basic feature is a game.’’ We seek 

comment on this analysis. We also seek 

comment on AFB’s contentions that 

‘‘how [a product] is marketed’’ and 

‘‘[how] most people think of the device’’ 

should not be relevant to our analysis; 

rather, ‘‘[t]he issue is whether the 

advanced communications features and 

functions can be operated apart from the 

device’s [primary] functions.’’ 

55. ESA also suggests that why 

consumers access the gaming products 

is an important consideration: 

‘‘Consumers do not play an online game, 

[for example], as a means of accessing 

chat—a consumer in search of a general 

purpose messaging service will find 

simpler, more direct alternatives than 

navigating through the various features 

of a gaming device or online game 

service.’’ We seek comment on this 

assertion and on whether how 

consumers actually use the 

communications component of a multipurpose device or service is relevant to 

our assessment of the primary purpose 

for which a device or service was 

designed. In addition, we seek comment 

on ESA’s proposal that we consider as 

part of our waiver determination 

whether the offering is designed for a 

‘‘specific class of users who are using 

the ACS features in support of another 

task.’’ 

56. We also seek comment on the 

process that we should adopt for 

determining whether to waive the 

requirements of section 716 and 

specifically on the extent to which we 

need to adopt any procedures to ensure 

that such process is efficient and 

effective. Alternatively, we seek 

comment on whether we should handle 

waivers as we have in the normal course 

pursuant to § 1.3 of the Commission’s 

rules. We agree with commenters who 

state that we should ‘‘incorporate 

protections for confidential information’’ 

and propose that parties seeking waivers 

be able to request confidential treatment 

of information pursuant to § 0.459 of the 

Commission’s rules. At the same time, 

we agree with AAPD that, to the extent 

possible, the process should be 

‘‘transparent and public,’’ and propose to 

seek comment on any waiver petition 

that we receive pursuant to section 

716(h). We seek comment on these 

proposals. 

57. We also recognize the need, after 

appropriate consideration, for making 

waiver determinations in an 

‘‘expeditious manner,’’ although we 


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propose not to ‘‘incorporate an 

automatic grant date for waiver 

requests’’ as TIA urges. We note that TIA 

requests that ‘‘if the Commission fails to 

timely act on a good faith waiver 

request, the company in question 

[should] be able to initiate the product 

or service without penalty, and 

incorporate accessibility features in a 

reasonable time frame prospectively.’’ 

Given that such a ‘‘deemed granted’’ 

provision is not contemplated by the 

statute, we do not intend to propose the 

framework outlined by TIA. We seek 

comment on this analysis. 

58. In addition, in light of the fact 

that, as the NFB observes, ‘‘[t]echnology 

is ever changing and the ‘primary 

purpose’ of multi-purpose products is 

always evolving,’’ we seek comment on 

AAPD’s assertion that ‘‘there should be 

no permanent waivers.’’ Should waivers 

be temporary, and, if so, what should 

the duration of the waivers be? If we 

decide that waivers should only be 

temporary, should we establish a 

process for renewing waivers, and, if so, 

should the factors we consider for 

renewal vary from the factors we 

consider for the original waiver grant? 

59. We also seek comment on whether 

we should consider waivers for a ‘‘class’’ 

of services or equipment under this 

section and what specific showing is 

needed to justify such waivers. Several 

commenters suggest that we should 

grant blanket waivers in order to 

support innovation and competition. 

For example, Microsoft states that 

‘‘[g]ranting prospective categorical 

waivers is essential to encourage 

manufacturers and service providers to 

build communication features into 

services and equipment devices that do 

not have as their core purpose advanced 

communications * * * [f]ostering this 

innovation will enrich the 

communications choices and solutions 

available to all consumers, including 

those with disabilities.’’ In contrast, 

many consumer commenters suggest 

that blanket waivers are never 

appropriate, given rapid technological 

advancement and the belief that ‘‘much 

accessibility and usability will be 

accomplished through software and 

related changes.’’ 

60. We seek further comment on the 

specific factors that we should consider 

in determining whether a particular 

‘‘class’’ of services or equipment should 

be granted a waiver. How can we 

determine what services or equipment 

are similarly situated enough to be 

designated a ‘‘class’’? Is it possible to 

structure a blanket waiver in such a way 

as to address consumers’ concerns that 

any such waiver could quickly become 

outdated? Are there specific classes of 

services or equipment that we should 

consider waiving in our final rules on 

section 716? If we do decide to grant 

waivers for an entire class of services or 

equipment, should such waivers be 

permanent or temporary? As discussed 

above (for individual waivers), should 

we establish a renewal and/or 

revocation process for categorical 

waivers? 

7. Exemptions for Small Entities 

61. Section 716(h)(2) states that ‘‘the 

Commission may exempt small entities 

from the requirements of this section.’’ 

While the Senate Report did not discuss 

this provision, the House Report notes 

that under this section, the Commission 

may ‘‘waive the accessibility 

requirements for certain small 

businesses and entrepreneurial 

organizations’’ because they ‘‘may not 

have the legal, financial, or technical 

capability to incorporate accessibility 

features.’’ Otherwise, the Report notes, 

the ‘‘application of these requirements 

in this limited case may slow the pace 

of technological innovation.’’ It also 

states that ‘‘the Commission is best 

suited to evaluate and determine which 

entities may qualify for this exemption,’’ 

and that it expects we will consult with 

the Small Business Administration 

(‘‘SBA’’) when defining the small entities 

to be exempted. 

62. NTCA asks the Commission to 

exercise its authority under section 

716(h)(2) to exempt small businesses 

from section 716 and to define ‘‘small 

businesses,’’ as such term is defined in 

the Regulatory Flexibility Act, thereby 

enabling small, rural local exchange 

carriers (‘‘RLECs’’) and their affiliates to 

deploy and offer ACS ‘‘without facing 

outsized or unachievable regulatory 

burdens.’’ Similarly, Blooston Rural 

Carriers request that small RLECs, RLEC 

affiliates, and other similarly situated 

small entities be exempted under 

section 716(h)(2) from both section 716, 

and the related enforcement and 

recordkeeping requirements of section 

717. In the alternative, they request that 

the Commission adopt ‘‘streamlined 

procedures and simplified criteria’’ that 

make ‘‘appropriate waivers reasonably 

available to qualifying entities in a 

timely, predictable, and economically 

reasonable manner.’’ 

63. Consumer Groups, however, urge 

that ‘‘[i]ndividuals with disabilities 

should not be denied accessible 

advanced communications equipment 

and services simply because they 

happen to live in underserved or rural 

areas,’’ and assert that ‘‘RLECs can 

ensure their own compliance with the 

[CVAA] through contracts with larger 

providers and mass market vendors 

* * * who must also comply with the 

[CVAA].’’ ACB opposes small entity 

waivers ‘‘without such entities having 

done due diligence on whether or not 

product accessibility is 

‘achievable’* * * [contending] a caseby-case approach to granting waivers 

would better serve the needs of 

consumers.’’ Moreover, ACB 

recommends that, if the Commission 

grants categorical waivers for small 

entities, any such waivers only be 

granted for a year or less, subject to 

renewal at the Commission’s discretion. 

Similarly, AAPD urges the FCC 

Commission to utilize caution when 

reviewing circumstances that would 

allow small entities an exemption from 

these requirements. AAPD does not 

favor ‘‘permanent exemptions or 

waivers.’’ 

64. In considering the proper scope of 

possible exemptions from the provisions 

of section 716 for small entities, we note 

that other provisions of that section also 

recognize the need to consider the 

circumstances of such entities in 

applying the accessibility requirements. 

As discussed in section III.B.1 infra, 

section 716 provides that service 

providers and manufacturers must meet 

the accessibility requirements of section 

716 ‘‘unless [those requirements] are not 

achievable.’’ Section 716(g) defines 

‘‘achievable’’ as ‘‘with reasonable effort 

or expense,’’ and requires the 

Commission to consider four factors in 

determining whether meeting a 

requirement of section 716 is 

‘‘achievable.’’ Two of those four factors 

necessarily incorporate consideration of 

the size and capabilities of an entity: 

‘‘[t]he technical and economic impact on 

the operation of the manufacturer or 

provider and on the operation of the 

specific equipment or service in 

question, including on the development 

and deployment of new 

communications technologies;’’ and 

‘‘[t]he type of operations of the 

manufacturer or provider.’’ 

65. The discretionary authority to 

exempt one or more groups of small 

entities in section 716(h)(2) 

supplements the protections that are 

built into the section 716(g) 

achievability analysis with an 

additional tool to ensure that our rules 

do not unduly burden such entities. We 

acknowledge that certain small entities 

may lack the legal, financial, or 

technical capability to incorporate the 

accessibility features required by the 

CVAA, and that in certain instances this 

may warrant an exemption from our 

accessibility requirements for certain 

small entities that provide ACS as well 

as some of those small entities that 

manufacture equipment used for ACS. 


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We agree with consumers that any such 

exemptions should be carefully tailored 

to ensure that individuals with 

disabilities are not denied access to 

advanced communications equipment 

and services in rural and other 

underserved areas. 

66. In light of these competing 

concerns, we seek comment on whether 

we should exercise our exemption 

authority, and if so, how we should 

structure the exemption. For example, 

should we base the exemption on the 

number of employees or the annual 

revenues of the entity or a combination 

of the two? Are there other criteria that 

we should consider? We also seek input 

on the impact of any exemption that 

commenters urge us to make. In 

particular, we request information on 

the percentage of manufacturers and 

service providers that would be 

exempted from our section 716 

requirements for any specific criteria 

proposed. We also seek comment on the 

percentage of equipment (including 

software) and services in the ACS 

marketplace that would be exempted 

from the requirements of section 716 if 

we exempted entities based these 

proposed criteria. In addition, we seek 

comment on how use of any 

recommended criteria would affect the 

availability of ACS and equipment used 

for ACS, especially in rural and 

underserved areas. Finally, if we adopt 

criteria to exempt small entities, should 

we consider limiting the time period of 

any exemption that may be granted 

under these criteria? We also propose to 

review periodically any basis that we 

adopt for granting exemptions to small 

entities to ensure that they reflect the 

current state of the industry. 

B. Nature of Statutory Requirements 

1. Achievable Standard 

a. General Approach 

67. Service providers and 

manufacturers must meet the 

accessibility requirements of section 716 

‘‘unless [those requirements] are not 

achievable.’’ Section 716(g) of the Act 

defines the term ‘‘achievable’’ to mean 

‘‘with reasonable effort or expense, as 

determined by the Commission.’’ As 

noted above, section 716 requires a 

higher standard of achievement than 

section 255. Under section 255, covered 

entities must ensure the accessibility of 

their products if it is ‘‘readily 

achievable’’ to do so, which the statute 

defines by cross reference to the ADA to 

mean ‘‘easily accomplishable and able to 

be carried out without much difficulty 

or expense.’’ 

68. Specifically, section 716(g) 

requires the Commission to consider the 

following factors in making 

determinations about what ‘‘constitutes 

reasonable effort or expense’’: (1) The 

nature and cost of the steps needed to 

meet the requirements of this [s]ection 

with respect to the specific equipment 

or service in question; (2) the technical 

and economic impact on the operation 

of the manufacturer or provider and on 

the operation of the specific equipment 

or service in question, including on the 

development and deployment of new 

communications technologies; (3) the 

type of operations of the manufacturer 

or provider; and (4) the extent to which 

the service provider or manufacturer in 

question offers accessible services or 

equipment containing varying degrees 

of functionality and features, and 

offered at differing price points. 

69. We seek comment on each of these 

factors. At the outset, we note that the 

Senate and House Reports state that we 

should ‘‘weigh each factor equally when 

making an achievability determination.’’ 

The House Report also states that in 

implementing section 716, the 

Commission should ‘‘afford 

manufacturers and service providers as 

much flexibility as possible, so long as 

each does everything that is achievable 

in accordance with the achievability 

factors.’’ Consistent with this legislative 

history, we generally agree with AT&T 

that an assessment of what is achievable 

should be ‘‘fact-based, flexible, and 

applied on a case-by-case basis,’’ but 

also agree with NFB that flexibility 

should not be so paramount that 

‘‘accessibility is never achieved.’’ The 

House Report also states that ‘‘the 

Commission [should] interpret the 

accessibility requirements in this 

provision the same way as it did for 

[s]ection 255, such that if the inclusion 

of a feature in a product or service 

results in a fundamental alteration of 

that service that it is per se not 

achievable to include that function.’’ 

Accordingly, we agree with commenters 

who urge us to interpret the 

achievability requirements consistent 

with this directive. We seek comment 

on this analysis. 

70. We also seek comment on whether 

or to what extent we have the discretion 

to weigh other factors not specified in 

the statute in making an achievability 

determination. ITI urges us to do so, and 

specifically asks us to consider ‘‘how the 

lack of economies of scale and scope 

can sometimes hinder the development 

and deployment of accessibility 

solutions.’’ We note that Congress 

specifically set forth in section 716 the 

factors that we must consider in 

determining whether accessibility is 

achievable, and directed us to weigh 

these factors equally. In light of the 

statute and this legislative history, we 

propose to only consider the factors 

enumerated in the statute in making our 

achievability determinations. We would 

note, however, that we propose to 

construe the factors broadly and weigh 

any relevant considerations in 

determining their meaning. We believe, 

for example, that the ‘‘lack of economies 

of scale and scope’’ could be a relevant 

consideration in determining the 

meaning of the second factor, ‘‘the 

technical and economic impact on the 

operation of the manufacturer or 

provider and on the operation of the 

specific equipment or service in 

question, including on the development 

and deployment of new 

communications technologies.’’ We seek 

comment on this analysis. 

b. Specific Factors 

(i) Nature and Cost of Steps Needed 

With Respect to Specific Equipment or 

Service 

71. Section 716(g)(1) of the Act states 

that in determining whether the 

statutory requirements are achievable, 

the Commission must consider ‘‘[t]he 

nature and cost of the steps needed to 

meet the requirements of [716(g)] with 

respect to the specific equipment or 

service in question.’’ The Senate Report 

requires the Commission to consider 

‘‘the nature and cost of the steps needed 

to make the specific equipment or 

service in question accessible’’ and 

states that ‘‘[t]he Committee intends for 

the Commission to consider how such 

steps, if required, would impact the 

specific equipment or service in 

question.’’ The House Report reiterates 

the need for the Commission to focus on 

the ‘‘specific product or service in 

question’’ when conducting this 

analysis. We believe that it is 

appropriate for us to consider whether 

accessibility has been achieved by 

competing products, but agree with T– 

Mobile that, in doing so, we must also 

consider the unique circumstances of 

each covered entity. We seek comments 

on this analysis and also seek comment 

on whether we should define this 

standard with more specificity in order 

to make sure that our standards are fully 

enforceable. We further request input on 

ACB’s suggestion that we consider the 

totality of the steps that a company 

needs to take in our achievability 

analysis, as well as the need to compare 

the cost of making a product accessible 

with the organization’s entire budget. 

(ii) Technical and Economic Impact on 

the Operation 

72. The second factor in determining 

whether compliance with section 716 is 


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‘‘achievable’’ requires the Commission to 

consider the ‘‘technical and economic 

impact of making a product or service 

accessible on the operations of the 

manufacturer or provider, and on the 

operation of the specific equipment or 

service in question, including on the 

development and deployment of new 

communications technologies.’’ We seek 

comment on how we should assess this 

factor and how our analysis should take 

into account the development and 

deployment of new communications 

technologies. 

(iii) Type of Operations 

73. The third factor in determining 

whether compliance with section 716 is 

‘‘achievable’’ requires the Commission to 

consider ‘‘[t]he type of operations of the 

manufacturer or provider.’’ The Senate 

and House Reports state that this factor 

permits ‘‘the Commission to consider 

whether the entity offering the product 

or service has a history of offering 

advanced communications services or 

equipment or whether the entity has just 

begun to do so.’’ We seek comment on 

the extent to which we should consider 

an entity’s status as a new entrant in the 

ACS market in conducting our 

achievability analysis. How should a 

manufacturer or service provider’s 

recent entry into this market affect our 

analysis if such entity has significant 

resources or otherwise appears capable 

of achieving accessibility? What other 

criteria should we use in assessing this 

factor as part of our achievability 

analysis? 

(iv) Extent to Which Offering Has Varied 

Functions, Features, and Prices 

74. The fourth factor in determining 

whether compliance with section 716 is 

‘‘achievable’’ requires the Commission to 

consider ‘‘[t]he extent to which the 

service provider or manufacturer in 

question offers accessible services or 

equipment containing varying degrees 

of functionality and features, and 

offered at differing price points.’’ The 

Senate and House Reports state that ‘‘the 

Commission [should] interpret this 

factor in a similar manner to the way 

that it has implemented its hearing aid 

compatibility rules.’’ The Commission’s 

rules governing hearing aid 

compatibility (‘‘HAC’’) obligations for 

wireless devices require manufacturers 

and service providers to ensure that a 

range of phones comply with the HAC 

standards. Specifically, those rules 

direct such companies to ensure that 

hearing aid users are able to select ‘‘from 

a variety of compliant handset models 

with varying features and prices.’’ 

75. Several industry commenters read 

Congress’s directive to incorporate this 

criteria into the achievability analysis, 

in conjunction with the legislative 

history and Section 716(j), as an outright 

rejection of the finding in the Section 

255 Report and Order to require covered 

entities to consider the accessibility of 

every product. On the other hand, the 

RERC–IT states that ‘‘if every function of 

a particular device can achievably be 

made accessible to every disability, 

every function should be made 

accessible.’’ We question whether any of 

these proposed interpretations 

appropriately take into account the 

more balanced approach contemplated 

by Congress, which gives equal weight 

to each of the four achievability factors 

and applies them on a flexible, case-bycase basis. We do, however, generally 

agree with TIA that this factor should be 

interpreted to ‘‘give individuals with 

disabilities meaningful choices in 

accessible products, and to reward those 

companies who provide such choices.’’ 

While section 716’s flexible approach is 

not amenable to the fixed number or 

percentage approach the Commission 

has employed in the HAC context, 

section 716(g)(4) seems to require that 

where a company has made a good faith 

effort to incorporate accessibility 

features in different products across 

multiple product lines, this should 

count favorably toward a determination 

that the company is in compliance with 

section 716 for the product in question. 

Where companies offer a range of 

accessible products that perform 

different functions at varied price 

points, consumers with disabilities will 

have a range of devices from which to 

make their purchases. In those 

instances, so long as other criteria under 

the achievability analysis are met, a 

company charged with having an 

inaccessible product might not have to 

make that specific product accessible. 

This approach would appropriately 

reward companies that make substantial 

investments in accessible products, 

while allowing flexibility to account for 

marketplace realities. 

76. Accordingly, we seek comment on 

whether covered entities generally 

should not have to consider what is 

achievable with respect to every 

product, if the entity offers consumers 

with the full range of disabilities 

meaningful choices through a range of 

accessible products with varying 

degrees of functionality and features, at 

differing price points. At the same time, 

we also seek comment on whether there 

are some accessibility features that are 

so important or easy to include (like a 

‘‘nib’’ on the 5 key) that they should be 

deployed on every product, unless it is 

not achievable to do so. If so, we seek 

comment on whether we should 

identify in our rules some of these 

specific accessibility features that are 

currently available, to provide clarity on 

what accessibility features should be 

universally deployed, if achievable. We 

further express our general belief that 

section 716(j), does not preclude our 

identifying ‘‘easy’’ accessibility features 

that must be included on every product, 

if achievable. While the Senate Report 

did not address this specific provision, 

our belief is confirmed by the House 

Report, which states that the 

Commission’s approach to section 255 

is consistent with section 716(j). Finally, 

we seek comment on whether we 

should define with more specificity the 

meaning of ‘‘varying degrees of 

functionality and features’’ and 

‘‘differing price points.’’ In particular, 

we seek comment on ACB’s assertion 

that ‘‘[i]t is essential that manufacturers 

and service providers make available a 

range of devices that fit various price 

ranges along with corresponding 

accessible features * * * this may be 

accomplished by dividing devices into 

classes and making certain that each 

class has at least one option that is fully 

accessible.’’ 

2. Industry Flexibility 

77. Sections 716(a)(2) and (b)(2) of the 

Act provide manufacturers and service 

providers, respectively, flexibility on 

how to ensure compliance with the 

accessibility requirements of the CVAA. 

Specifically, a manufacturer or service 

provider may comply with these 

requirements either by building 

accessibility features into the equipment 

or service or ‘‘by relying on third party 

applications, peripheral devices, 

software, hardware, or [CPE] that is 

available to consumers at nominal cost 

and that can be accessed by people with 

disabilities.’’ While the Senate Report 

did not discuss these provisions, the 

House Report makes clear that the 

choice between these two options ‘‘rests 

solely with the provider or 

manufacturer.’’ We believe that the 

statutory language and legislative 

history preclude us from preferring 

built-in accessibility over third party 

accessibility solutions, as some 

consumer commenters urge us to do. We 

acknowledge the integral role that 

universal design has played in ensuring 

that mainstream products and services 

are accessible to people with 

disabilities, and we believe that 

universal design will continue to play 

an important role in providing 

accessibility to people with disabilities. 

We believe, however, that the industry 

flexibility provisions of the CVAA 

reflect the fact that there are new ways 


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to meet the needs of people with 

disabilities that were not envisioned 

when Congress passed section 255, 

which relied primarily on universal 

design principles. With new and 

innovative technologies, in some cases, 

personalized services and products may 

now be able to more efficiently and 

effectively meet individual needs than 

products built to perform in the same 

way for every person. Sometimes called 

‘‘auto-personalization,’’ where available, 

this allows devices to adapt to 

individual needs based on the user’s 

preferences, according to the device’s 

capabilities. In a growing and 

increasingly mobile computing 

environment, for example, consumers 

may be able to set their preferences so 

that the interfaces on a device or the 

content produced by that device 

automatically become accessible for that 

individual’s disability needs. 

78. We do, however, seek comment on 

what actions we should take to ensure 

that third party accessibility solutions 

meet the needs of consumers in a 

manner comparable to solutions that are 

built into the equipment. First, we seek 

comment on the meaning of the 

requirement that the third party 

accessibility solutions ‘‘must be 

available to the consumer at nominal 

cost.’’ Some commenters assert that 

‘‘nominal cost’’ cannot be a static 

definition or constitute a set amount or 

percentage of total cost, but rather 

should be determined on a case-by-case 

basis. In contrast, the RERC–IT, noting 

that people with disabilities are ‘‘poor at 

alarming rates,’’ urges the Commission 

to limit ‘‘nominal cost’’ at to one percent 

(1%) of the total cost of the device or 

service, or the total cost of the device 

plus service, as applicable. AFB notes 

further that ongoing costs to keep third 

party software and hardware up to date 

and in good working order should be 

included, such that the total cost to the 

consumer cannot be more than nominal. 

While Congress did not prescribe a 

percentage or amount, it did intend that 

any fee for third-party software or 

hardware accessibility solutions be 

‘‘small enough so as to generally not be 

a factor in the consumer’s decision to 

acquire a product or service that the 

consumer otherwise desires.’’ We 

propose to adopt this definition of 

‘‘nominal cost’’ and seek comment on 

this proposed definition. We are 

concerned, however, that this 

definition, by itself, might not ensure 

that the cost of accessibility for the 

consumer is truly nominal, and we seek 

comment on whether we need to 

provide further guidance on the issue. 

79. We believe that manufacturers and 

service providers can rely on a range of 

third party solutions, subject to the 

requirements that we discuss further 

below, including the use of third party 

applications, peripheral devices, 

software, hardware, and CPE. We 

propose to adopt the following 

definitions of these potential third party 

accessibility solutions: 

(a) ‘‘Applications’’ means ‘‘computer 

software designed to perform or to help the 

user perform a specific task or specific tasks, 

such as communicating by voice, electronic 

text messaging, or video conferencing’’; 

(b) ‘‘Peripheral devices’’ means ‘‘devices 

employed in connection with equipment 

covered by this [proceeding] to translate, 

enhance, or otherwise transfer advanced 

communications services into a form 

accessible to individuals with disabilities’’; 

(c) ‘‘Software’’ means ‘‘computer programs, 

procedures, rules, and related data and 

documentation that direct the use and 

operation of a computer or a related device 

and instruct it to perform a given task or 

function’’; 

(d) ‘‘Hardware’’ means ‘‘a tangible 

communications device, equipment, or 

physical component of communications 

technology, including peripheral devices, 

such as a smart phone, a laptop computer, a 

desk top computer, a screen, a keyboard, a 

speaker, or an amplifier’’; and 

(e) ‘‘Customer premises equipment’’ means 

‘‘equipment employed on the premises of a 

person (other than a carrier) to originate, 

route, or terminate telecommunications.’’ 

We seek comment on these 

definitions and whether they are 

sufficiently inclusive of third party 

solutions available to manufacturers and 

service providers. 

80. Second, we seek comment on the 

requirement that individuals with 

disabilities must be able to ‘‘access’’ the 

third-party solutions. Specifically, we 

seek comment on ACB’s assertions that 

the third party solutions (i) ‘‘cannot be 

an after-market sale for which the user 

must perform additional steps to 

obtain;’’ (ii) ‘‘must be fully operable by 

a person with a disability without 

having to turn to people without 

disabilities in order to perform setup or 

maintenance;’’ and (iii) ‘‘must be fully 

documented and supported.’’ We believe 

that for covered entities to meet the 

‘‘access’’ requirement of this provision, 

they must ensure that the third party 

solution not be more burdensome to a 

consumer than a built-in solution. In 

that vein, should a service provider or 

manufacturer relying on third party 

solutions be responsible for finding and 

installing the solution, and supporting 

the solution over the life of the product? 

We seek comment on this analysis, on 

what a company must do to achieve 

such parity with built-in solutions, and 

on whether it is necessary to require 

that covered entities bundle the third 

party solutions with its products in 

order to meet the requirements of the 

statute. 

3. Accessible to and Usable by 

81. Under sections 716(a) and (b) of 

the Act, covered service providers and 

equipment manufacturers must make 

their products ‘‘accessible to and usable 

by’’ people with disabilities, unless it is 

not achievable. In this section, we seek 

comment on the extent to which we 

should continue to define ‘‘accessible to 

and usable by’’ as we have for our 

implementation of section 255, which 

requires telecommunications service 

providers and equipment manufacturers 

to make their products ‘‘accessible to 

and usable by’’ people with disabilities, 

if readily achievable. 

82. In the Section 255 Report and 

Order, the Commission adopted a 

definition of ‘‘accessible’’ in § 6.3(a) of 

the Commission’s rules which 

incorporated the functional definition of 

this term from the Access Board 

guidelines and includes various input, 

control, and mechanical functions, 

output, display, and control functions. 

The Section 255 Report and Order also 

adopted a definition of ‘‘usable’’ in § 6.3 

that incorporated the Access Board’s 

definition of this term. Specifically, 

§ 6.3(l) provides that usable ‘‘mean[s] 

that 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.’’ 

83. We seek comment on whether we 

should adopt these definitions for 

purposes of section 716 or whether we 

should take this opportunity to make 

changes to these definitions that would 

apply to both our section 255 of the 

Communications Act and our section 

716 of the CVAA based on the Access 

Board Draft Guidelines that were 

released for public comment in March 

2010. While we note that there is a great 

deal of overlap between section 255’s 

definition of ‘‘accessible’’ and the Access 

Board’s proposed updated functional 

criteria for ICT, there are some 

differences. To the extent that there are 

differences between these definitions 

and criteria, should we work to 

reconcile those differences? For 

example, the rules implementing 

section 255 of the Act address cognitive 

disabilities whereas the draft ICT 

guidelines do not; and the draft ICT 

guidelines address photosensitive 

seizures, whereas the rules 

implementing section 255 of the Act do 

not. In addition, we note that the Access 


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Board Draft Guidelines on ‘‘usability’’ 

are broader and more detailed than the 

rules implementing section 255 of the 

Act. The Access Board Draft Guidelines, 

for example, cover training and alternate 

methods of communication. 

4. Disability 

84. Section 3(18) of the Act states that 

the term ‘‘disability’’ has the meaning 

given such term under section 3 of the 

ADA. The ADA defines ‘‘disability’’ as 

with respect to an individual: ‘‘(A) A 

physical or mental impairment that 

substantially limits one or more major 

life activities of such individual; (B) a 

record of such an impairment; or (C) 

being regarded as having such an 

impairment * * *.’’ Our current rules 

incorporate this definition of disability, 

and we propose to use that definition in 

our section 716 rules. 

5. Compatibility 

85. Under section 716(c) of the Act, 

whenever accessibility is not achievable 

either by building in access features or 

using third party accessibility solutions 

as set forth in sections 716(a) and (b), a 

manufacturer or service provider must 

‘‘ensure that its equipment or service is 

compatible with existing peripheral 

devices or specialized customer 

premises equipment commonly used by 

individuals with disabilities to achieve 

access,’’ unless that is not achievable. 

Section 255 of the Act contains a similar 

compatibility requirement for 

telecommunications service providers 

and manufacturers if it is readily 

achievable to do so, in cases where 

built-in accessibility is not readily 

achievable. 

86. Our rules implementing section 

255 of the Act define peripheral devices 

to mean ‘‘devices employed in 

connection with equipment covered by 

this part to translate, enhance or 

otherwise transform 

telecommunications into a form 

accessible to individuals with 

disabilities.’’ We stated in the Section 

255 Report and Order that these might 

include ‘‘audio amplifiers, ring signal 

lights, some TTYs, refreshable Braille 

translators, [and] text-to-speech 

synthesizers.’’ Our rules implementing 

section 255 of the Act define specialized 

CPE as customer premises equipment 

that is commonly used by individuals 

with disabilities to achieve access. 

87. For purposes of section 716, we 

propose to define peripheral devices to 

mean ‘‘devices employed in connection 

with equipment, including software, 

covered under this part to translate, 

enhance, or otherwise transform 

advanced communications services into 

a form accessible to individuals with 

disabilities.’’ This definition is based on 

our section 255 definition, with some 

refinements to reflect the statutory 

language in section 716. We also 

propose to define specialized CPE, as 

we do in our rules implementing section 

255 of the Act, as ‘‘customer premises 

equipment which is commonly used by 

individuals with disabilities to achieve 

access.’’ We agree with the vast majority 

of commenters that peripheral devices 

can include mainstream devices and 

software, as long as they can be used to 

‘‘translate, enhance, or otherwise 

transform advanced communications 

services into a form accessible to 

individuals with disabilities’’ and the 

devices and software are ‘‘commonly 

used by individuals with disabilities to 

achieve access.’’ As we found in the 

Section 255 Report and Order, we do 

not believe that it would be feasible for 

the Commission to maintain a list of 

peripheral devices and specialized CPE 

commonly used by individuals with 

disabilities, given how quickly 

technology is evolving. For the same 

reason, we also believe that covered 

entities do not have a duty to maintain 

a list of all peripheral devices and 

specialized CPE used by people with 

disabilities. We do believe, however, 

that covered entities have an ongoing 

duty to consider how to make their 

products compatible with the software 

and hardware components and devices 

that people with disabilities use to 

achieve access and to include this 

information in their records required 

under section 717(a)(5). We seek 

comment on these proposed definitions. 

88. We also seek additional comment 

on what should be required to ensure 

compatibility in the context of advanced 

communications services. Under our 

rules implementing section 255 of the 

Act, we use four criteria for determining 

compatibility: (i) External access to all 

information and control mechanisms; 

(ii) existence of a connection point for 

external audio processing devices; (iii) 

TTY connectability; and (iv) TTY signal 

compatibility. We seek comment on 

whether the four criteria listed above 

remain relevant in the context of 

advanced communications services. For 

example, we understand that a sizeable 

majority of consumers who previously 

relied on TTYs for communication are 

transitioning to more mainstream forms 

of text and video communications. If we 

want to encourage an efficient 

transition, should we phase out the 

third and fourth criteria as compatibility 

components in our section 716 rules? 

Should we phase out the criteria from 

our rules implementing section 255 of 

the Act as well? If so, should we ensure 

that these requirements are phased out 

only after alternative forms of 

communication, such as real-time text, 

are in place? 

89. While the Access Board Draft 

Guidelines address compatibility 

primarily with content providers in 

mind, they may still be helpful in 

defining what ‘‘compatible’’ should 

mean as we update our accessibility 

rules. The Access Board Draft 

Guidelines define compatibility to be 

the ‘‘interaction between assistive 

technology, other applications, content, 

and the platform,’’ as well as the 

preservation of accessibility in alternate 

formats. We seek further comment on 

whether and how we should use the 

Access Board Draft Guidelines to help 

us define compatibility for purposes of 

section 716. 

90. We also seek comment on whether 

we should adopt additional criteria for 

determining compatibility under section 

716 and section 255. The Access Board 

Draft Guidelines note that accessibility 

programming interfaces (‘‘APIs’’) enable 

interoperability with assistive 

technology. Code Factory explains, for 

example, that it is better able to develop 

a screen reader application if 

‘‘manufacturers and operating system 

developers develop an Accessibility 

API, which is essentially a layer 

between the device user interface and 

the screen reader that can be used to 

pull information that must be spoken to 

the user.’’ The Access Board Draft 

Guidelines direct platforms, 

applications, and interactive content to 

comply with World Wide Web 

Consortium’s Web Content Accessibility 

Guidelines (WCAG) 2.0 Level AA 

Success Criteria and Conformance 

Requirements or to comply with specific 

accessibility criteria in Chapter 4 of the 

Access Board Draft Guidelines. Are 

there aspects of the WCAG guidelines or 

Access Board criteria that we should 

incorporate into our definition of 

compatibility? We also seek comment 

on the status of industry development of 

APIs and whether incorporating criteria 

related to APIs into our definition of 

compatibility could promote the 

development of APIs. 

6. Network Features 

91. Under section 716(d) of the Act, 

‘‘[e]ach provider of advanced 

communications services has the duty 

not to install network features, 

functions, or capabilities that impede 

accessibility or usability.’’ In the October 

public notice, the Bureaus sought 

comment on how this provision 

compares to a similar provision in 

section 251(a)(2) of the Act (relating to 

section 255) and whether the 


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requirement has a different meaning in 

the context of advanced 

communications services networks. 

92. We agree with commenters who 

generally believe that this duty not to 

impede accessibility is comparable to 

the duty set forth in section 251(a)(2) of 

the Act. We propose that our rules 

should include the requirements set 

forth in section 716(d), just as our rules 

implementing section 255 of the Act 

reflect the language in section 251(a)(2). 

We also agree with Verizon and AAPD, 

who stress that section 716(d) applies to 

a much broader range of providers, and 

seek comment on how we can best reach 

out to newly covered entities and ensure 

that they are aware of their new 

responsibilities. 

93. We note that both the Senate and 

House Reports state that the obligations 

imposed by section 716(d) ‘‘apply where 

the accessibility or usability of 

advanced communications services 

were incorporated in accordance with 

recognized industry standards.’’ CTIA 

states that until the Commission 

identifies and requires the use of 

industry-recognized standards, it should 

‘‘refrain from enforcing these obligations 

on network providers.’’ We seek 

comment on CTIA’s assertion and on 

what industry standards currently exist 

that can be used to incorporate 

accessibility or usability in advanced 

communications services. We also seek 

comment on what, if any, industry 

standards should be developed to 

incorporate accessibility or usability in 

advanced communications services and 

how these standards should be 

developed. 

94. In addition, we seek comment on 

assertions by the RERC–IT that our rules 

should prohibit ‘‘passive inaction or 

setting of options * * * that impede 

access.’’ We also seek comment on 

AFB’s statement that under this 

provision ‘‘digital rights management or 

network security features or functions 

must * * * be installed so as not to 

impede accessibility.’’ Finally, we seek 

comment on CTIA’s assertion that ‘‘any 

rules seeking to limit the incorporation 

of any network features or functions 

recognize the need for covered entities 

to manage all network traffic, including 

advanced communications services.’’ 

7. Accessibility of Information Content 

95. Section 716(e)(1)(B) of the Act 

states that the Commission’s regulations 

shall ‘‘provide that advanced 

communications services, the 

equipment used for advanced 

communications services, and networks 

used to provide [such services] may not 

impair or impede the accessibility of 

information content when accessibility 

has been incorporated into that content 

for transmission through [such services, 

equipment or networks].’’ In the October 

public notice, the Bureaus sought 

comment on how this provision should 

be implemented and the types and 

nature of information content that 

should be addressed. We note that the 

legislative history of the CVAA makes 

clear that the requirements apply 

‘‘where the accessibility of such content 

has been incorporated in accordance 

with recognized industry standards.’’ 

96. We seek further comment on what 

these standards should be and how they 

should be developed and reflected in 

the Commission’s rules, subject to the 

limitation on mandating technical 

standards in section 716(1)(D). In 

particular, we seek comment on the 

RERC–IT proposal that our regulations 

need to ensure that (i) ‘‘the accessibility 

information (e.g., captions or 

descriptions) are not stripped off when 

information is transitioned from one 

medium to another;’’ (ii) ‘‘parallel and 

associated media channels are not 

disconnected or blocked;’’ and (iii) 

‘‘consumers * * * have the ability to 

combine text, video, and audio 

streaming from different origins.’’ We 

also seek comment on how we can best 

ensure that encryption and other 

security measures do not thwart 

accessibility, while at the same time 

ensuring that we ‘‘promot[e] network 

security, reliability, and survivability in 

broadband networks.’’ 

97. We also note that the Access 

Board Draft Guidelines require content, 

which includes ‘‘information and 

sensory experience communicated to 

the user and encoding that defines the 

structure, presentation, and interactions 

associated with those elements’’ to be 

accessible. The Draft Guidelines provide 

text, images, sounds, videos, controls, 

and animations as examples of content 

and encourage, as a best practice, the 

maximization of compatibility of 

content with existing and future 

technologies, including assistive 

technology. The Draft Guidelines also 

require user interfaces and their 

functions to be accessible. For example, 

under these Draft Guidelines, advanced 

communications services, equipment, 

and networks cannot strip captions that 

make content accessible to people who 

are deaf or hard of hearing from content 

that provides closed captioning. We 

seek comment on whether all or some 

of these Draft Guidelines would be 

appropriate for industry-recognized 

standards or inclusion in the 

Commission’s rules. 

98. Finally, we agree with CEA that, 

consistent with the legislation’s liability 

limitations, that manufacturers and 

service providers are not liable for 

content or embedded accessibility 

content (such as captioning or video 

description) that they do not create or 

control. We seek comment on this 

assessment. 

IV. Implementation Requirements 

A. Obligations 

99. Section 716(e)(1)(C) of the Act 

requires the Commission to ‘‘determine 

the obligations * * * of manufacturers, 

service providers, and providers of 

applications or services accessed over 

service provider networks.’’ Below, we 

seek comment and make proposals 

relating to the obligations of 

manufacturers and service providers 

and ask further questions about the 

obligations of providers of applications 

or services accessed over service 

provider networks. 

1. Manufacturers and Service Providers 

100. With respect to equipment 

manufacturers and service providers of 

ACS, we propose to adopt general 

obligations that mirror the language of 

the statute, similar to the approach 

taken in §§ 6.5 and 7.5 of our rules and 

section 255 of the Communications Act. 

Specifically, we propose that the 

Commission’s rules set forth the 

following ‘‘General Obligations’’: 

Æ With respect to equipment 

manufactured after the effective date of 

the regulations, a manufacturer of 

equipment used for advanced 

communications services, including end 

user equipment, network equipment, 

and software, must ensure that the 

equipment and software that such 

manufacturer offers for sale or otherwise 

distributes in interstate commerce shall 

be accessible to and usable by 

individuals with disabilities, unless 

such requirements are not achievable. 

Æ With respect to services provided 

after the effective date of the 

regulations, a provider of advanced 

communications services must ensure 

that services offered by such provider in 

or affecting interstate commerce are 

accessible to and usable by individuals 

with disabilities, unless such 

requirements are not achievable. 

Æ If accessibility is not achievable 

either by building it in or using third 

party accessibility solutions, then a 

manufacturer or service provider shall 

ensure that its equipment or service is 

compatible with existing peripheral 

devices or specialized customer 

premises equipment commonly used by 

individuals with disabilities to achieve 

access unless such compatibility is not 

achievable. 

Æ Providers of advanced 

communications services shall not 


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install network features, functions, or 

capabilities that impede accessibility or 

usability. 

Æ Advanced communications services 

and the equipment and networks used 

to provide such services may not impair 

or impede the accessibility of 

information content when accessibility 

has been incorporated into that content 

for transmission through such services, 

equipment or networks. 

101. In addition, we propose to adopt 

requirements similar to those in our 

rules implementing section 255 of the 

Act regarding product design, 

development, and evaluation (§§ 6.7 and 

7.7); information pass through (§§ 6.9 

and 7.9); and information, 

documentation and training (§§ 6.11 and 

7.11), modified to reflect the statutory 

requirements of section 716. Consistent 

with the Section 255 Report and Order, 

we find that adoption of the functional 

approach reflected in such requirements 

will provide clear guidance to covered 

entities regarding their obligation to 

ensure accessibility and usability. Some 

key requirements of these proposed 

rules include the following: 

Æ Manufacturers and service 

providers must consider performance 

objectives at the design stage as early 

and as consistently as possible and must 

implement such evaluation to the extent 

that it is achievable. 

Æ Manufacturers and service 

providers must identify barriers to 

accessibility and usability as part of 

such evaluation. 

Æ Equipment used for advanced 

communications services, including end 

user equipment, network equipment, 

and software must pass through crossmanufacturer, nonproprietary, industrystandard codes, translation protocols, 

formats or other information necessary 

to provide advanced communications 

services in an accessible format, if 

achievable. Signal compression 

technologies shall not remove 

information needed for access or shall 

restore it upon decompression. 

Æ Such information and 

documentation includes user guides, 

bills, installation guides for end user 

devices, and product support 

communications, in alternate formats, as 

needed. The requirement to provide 

access to information also includes 

ensuring that individuals with 

disabilities can access, at no extra cost, 

call centers and customer support 

regarding both the product generally 

and the accessibility features of the 

product. 

102. We seek comment on these 

proposed obligations for equipment 

manufacturers and service providers of 

ACS. In particular, we seek comment on 

whether we should adopt additional 

obligations or make modifications to our 

proposals. 

2. Providers of Applications or Services 

Accessed Over Service Provider 

Networks 

103. We also seek comment on what, 

if any, obligations we should impose on 

‘‘providers of applications or services 

accessed over service provider 

networks.’’ Are there any requirements 

that we should impose on these 

providers in order to ensure that the 

statutory mandates of section 716 are 

carried out? We also seek comment on 

the meaning of ‘‘accessed over service 

provider networks.’’ How does this 

apply to applications and services that 

are downloaded and then run as either 

native or web applications on the 

device? How does this apply to 

applications and services accessed 

through cloud computing? 

B. Performance Objectives 

104. Section 716(e)(1)(A) of the Act 

provides that in prescribing regulations 

for this section, the Commission shall 

‘‘include performance objectives to 

ensure the accessibility, usability, and 

compatibility of advanced 

communications services and the 

equipment used for advanced 

communications services by individuals 

with disabilities.’’ In the October public 

notice, the Bureaus sought comment on 

how to interpret this provision, 

including the extent to which these 

objectives should be specific or general. 

The October public notice also sought 

comment on the usefulness of the 

Access Board’s March 2010 draft 

standards and guidelines on section 508 

of the Rehabilitation Act. 

105. We agree with the broad range of 

commenters who stress the importance 

of having performance objectives that 

would clearly define the outcome 

needed to be achieved without 

specifying how these ends should be 

accomplished. More specifically, we 

agree with those commenters who 

suggest that we incorporate into the 

performance objectives the outcomeoriented definitions of ‘‘accessible,’’ 

‘‘compatibility,’’ and ‘‘usable’’ from 

§§ 6.3 and 7.3 of the Commission’s 

rules. We propose to adopt these 

definitions as performance objectives 

subject to any changes that we make to 

these definitions as part of this 

proceeding. We also agree with the IT 

and Telecom RERCs that ‘‘performance 

standards must * * * be testable, 

concrete, and enforceable’’ and seek 

further comment about how we can 

accomplish these objectives. We 

disagree with ITI’s suggestion that 

performance objectives be merely 

‘‘aspirational.’’ 

106. We seek additional comment on 

whether to adopt more specific 

performance objectives, and on the 

procedures and timelines that we 

should use to develop these objectives. 

While as a general matter it may be 

desirable to harmonize the 

Commission’s rules with the Access 

Board Guidelines after the Access Board 

finalizes its Guidelines, we seek 

comment on what parts of the Access 

Board Draft Guidelines may be useful to 

us if we develop specific performance 

objectives in the interim. We also seek 

comment on AT&T’s assertion that ‘‘the 

specific functionalities and standards 

mandated by section 508 [for 

government purchases of technology] 

* * * may not be appropriate in all 

circumstances for industry wide, mass 

market application contemplated by 

section 716.’’ In which instances would 

the Access Board standards not be 

appropriate for mass market 

application? In which areas might they 

be particularly instructive? 

107. We also propose to update our 

performance objectives, as appropriate, 

after the Emergency Access Advisory 

Committee (‘‘EAAC’’), which was 

established pursuant to section 106 of 

the CVAA, provides its 

recommendations to the Commission in 

December 2011. The EAAC, among 

other things, is considering ‘‘what 

actions are necessary as part of the 

migration to a national Internet 

protocol-enabled network to achieve 

reliable, interoperable communication 

transmitted over such network that will 

ensure access to emergency services by 

individuals with disabilities.’’ We 

express our general belief that achieving 

reliable, interoperable communication 

over IP-enabled networks will have 

applicability outside the emergency 

access context and may be relevant to 

developing performance objectives 

under section 716 for advanced 

communications services and 

equipment used for these services. We 

note as well that the Access Board Draft 

Guidelines contain a proposal for real 

time text requirements for hardware and 

software whenever real-time voice is 

supported, further supporting the need 

to move forward with the 

recommendation in our National 

Broadband Plan to consider a standard 

for reliable and interoperable real-time 

text any time that VoIP is available and 

supported. 

108. With respect to interoperable 

video conferencing services, we seek 

input on what performance objectives or 

rules need to be established to ensure 

that, where achievable, interoperable 


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video conferencing services and 

equipment are accessible to and usable 

by, individuals with disabilities, such as 

individuals who are blind, have a visual 

impairment, have limited manual 

dexterity, or who are deaf, hard of 

hearing, or deaf-blind. We also seek 

comment on whether and to what extent 

we have the authority to adopt industrywide performance objectives that would 

set objectives for covered entities 

collectively. We recognize, for example, 

that no single entity working alone, can 

ensure that video conferencing services 

(or other advanced communications 

services) are interoperable. If we were to 

interpret section 716 to require 

interoperability among all video 

conferencing services, what industrywide performance objectives are needed 

to achieve and ensure such 

interoperability so that consumers are 

able to make point-to-point calls using 

different video conferencing services 

and equipment? We also seek comments 

on what performance objectives are 

needed to address concerns expressed 

by consumers about the general inability 

of current video conferencing services to 

connect to VRS in a manner that 

achieves functional equivalency with 

conventional voice telephone services. 

In this regard, Consumer Groups urge 

that mainstream video conferencing 

equipment and services be required to 

‘‘comply with standards, such as 

requisite resolution and frame-rate, to 

support real-time video conferencing 

used for VRS, remote video interpreting, 

and point-to-point communication.’’ We 

note that the Access Board Draft 

Guidelines on section 508 propose that 

products used to transmit video 

conversations provide sufficient quality 

and fluidity for real-time video 

conversation in which at least one party 

is using a visual method of 

communication, such as sign language. 

109. It appears that video 

conferencing equipment now available 

off-the-shelf to the general public does 

not match the capabilities of proprietary 

equipment offered by VRS providers in 

other ways as well. First, although our 

VRS rules require ten-digit numbering 

capability on VRS-provided video 

equipment—to enable the owners of 

such equipment to make point-to-point 

calls to one another—this capability 

does not presently exist in video 

conferencing equipment such as off-theshelf videophones. Consumer Groups 

urge that the North American 

Numbering Plan (‘‘NANP’’) 10-digit 

telephone number system be ‘‘adopted 

and/or adapted by [mainstream] video 

conferencing equipment and service 

providers to make their systems 

interoperable with other systems and 

users, including VRS users.’’ Finally, we 

note, that while not yet universal, 

Consumer Groups envision multipoint 

control unit (MCU) capability in video 

conferencing services when VRS is 

provided so that all parties to the call 

can see the VRS communications 

assistant and each other simultaneously. 

We therefore seek comment on 

performance objectives for mainstream 

interoperable video conferencing 

services and equipment to address 

multiple video conferencing needs by 

people with disabilities, including the 

need for point-to-point calls where at 

least one party is using a visual method 

of communication, such as sign 

language; for functionally equivalent 

VRS; for multi-party conferencing via 

MCUs; for ten-digit numbering (or an 

alternative means of identifying and 

contacting one another); for effective 

emergency access; and for the delivery 

of video remote interpreting services. 

110. We also seek comment on 

whether industry or the Commission 

should establish a working group of 

diverse stakeholders to address the 

interoperability issues relating to video 

conferencing services and equipment. If 

so, should the goals be focused on 

ensuring interoperability among the 

largest service providers and equipment 

manufacturers? How can we ensure that 

new entrants and software application 

developers would be fully represented 

in such a process? We ask commenters 

to set forth in detail the goals of such 

a group, which stakeholders should be 

included, the specific issues that such a 

working group should consider, and a 

timeline for completion of its work. We 

further ask whether such group should 

be part of the Commission’s Consumer 

Advisory Committee, or be a standalone entity. Finally, we seek comment 

on what industry efforts are ongoing to 

address interoperability challenges and 

the degree to which such efforts have 

been effective. 

111. Finally, we note that the 

comments to the October public notice 

contain relatively little discussion of 

‘‘electronic messaging services’’ and 

‘‘non-interconnected VoIP services.’’ We 

seek further comment about the specific 

accessibility concerns relating to these 

services and whether we should adopt 

specific performance objectives to 

address these concerns. We also seek 

comment on whether it would be 

appropriate to establish a working group 

of diverse stakeholders to provide 

recommendations related to such 

performance objectives. 

V. Industry Guidance 

A. Safe Harbors 

112. Section 716(e)(1)(D) of the Act 

provides that the Commission ‘‘shall 

* * * not mandate technical standards, 

except that the Commission may adopt 

technical standards as a safe harbor for 

such compliance if necessary to 

facilitate the manufacturers’ and service 

providers’ compliance’’ with the 

accessibility and compatibility 

requirements in section 716. In the 

October public notice, we sought 

comment on whether we should adopt 

safe harbor technical standards. 

113. The vast majority of commenters 

oppose establishing technical standards 

as safe harbors. CTIA and AT&T assert 

that safe harbors will result in de facto 

standards being imposed that will limit 

the flexibility of covered entities seeking 

to provide accessibility. The IT and 

Telecom RERCs state that the 

Commission’s rules should not include 

safe harbors because ‘‘technology, 

including accessibility technology, will 

develop faster than law can keep up.’’ 

AFB asserts that it is too early in the 

CVAA’s implementation ‘‘to make 

informed judgments * * * about 

whether and which safe harbors should 

be available.’’ While ITI supports safe 

harbors, noting they provide clarity and 

predictability, it warns against using 

safe harbors ‘‘to establish implicit 

mandates [that] * * * lock in particular 

solutions.’’ In light of the concerns 

raised in the record, we agree with AFB 

that it is too early in the implementation 

of the CVAA to make informed 

judgments about whether safe harbor 

technical standards should be 

established. Therefore, we propose not 

to adopt any technical standards as safe 

harbors at this time. We seek comment 

on this proposal. 

B. Prospective Guidelines 

114. Section 716(e)(2) of the Act 

requires the Commission to issue 

prospective guidelines concerning the 

new accessibility requirements. While 

the Senate Report did not discuss this 

provision, the House Report notes that 

such guidance ‘‘makes it easier for 

industry to gauge what is necessary to 

fulfill the requirements’’ by providing 

industry with ‘‘as much certainty as 

possible regarding how the Commission 

will determine compliance with any 

new obligations.’’ 

115. We agree with CTIA that the 

prospective guidelines that we adopt 

must be clear and understandable and 

provide service providers and 

manufacturers as much flexibility as 

possible, so long as achievable 

accessibility requirements are satisfied. 


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We seek comment on a proposal by the 

RERC–IT, endorsed by ACB, that we use 

‘‘an approach to the guidelines similar to 

that used by the World Wide Web 

Consortium’s Web Content Accessibility 

Guidelines (WCAG), which provide 

mandatory performance-based standards 

and non-mandatory technology-specific 

techniques for meeting them.’’ We also 

seek comment on whether any parts of 

the Access Board’s Draft Guidelines on 

section 508 of the Rehabilitation Act 

should be adopted as prospective 

guidelines. In addition, we seek 

comment on the process that should be 

used to develop prospective guidelines 

and to ensure that a diverse and 

broadly-based group of stakeholders 

participate in such an effort. Should the 

Commission, for example, establish a 

consumer-industry advisory group to 

prepare these? 

VI. Section 717 Recordkeeping and 

Enforcement 

A. Overview 

116. Section 717(a) of the Act requires 

the Commission to establish new 

recordkeeping and enforcement 

procedures for ‘‘manufacturers and 

providers subject to [sections 255, 716, 

and 718.]’’ In the October public notice, 

the Bureaus sought comment on these 

requirements, including the types of 

records that should be maintained and 

the possible enforcement procedures 

that should be imposed. We will discuss 

the recordkeeping and enforcement 

requirements in further detail below, 

including a proposal to amend the 

existing rules implementing section 255 

of the Act and to add a new rule subpart 

to implement the requirements of 

section 717. For purposes of our 

discussion below, we propose to apply 

the section 717 requirements to 

manufacturers of equipment used for 

telecommunications services, 

interconnected VoIP, voicemail and 

interactive menu services subject to 

section 255 of the Act; manufacturers of 

equipment used for ACS subject to 

section 716; and manufacturers of 

telephones used with public mobile 

services which include an Internet 

browser, subject to section 718. We also 

propose to apply the section 717 

requirements to providers of 

telecommunications services, 

interconnected VoIP services, voicemail 

or interactive menu services subject to 

section 255 of the Act; providers of ACS 

subject to section 716; and providers of 

mobile services who arrange for the 

inclusion of a browser in telephones, 

subject to section 718. Finally, we 

reiterate our proposal to subject 

providers of applications and services 

that can be used for ACS and that can 

be accessed (i.e., downloaded or run) by 

users over other service provider 

networks to the requirements of section 

716 and thus by extension cover them 

under section 717. We seek comment on 

these proposals. 

B. Recordkeeping 

117. Beginning one year after the 

effective date of regulations 

promulgated pursuant to section 716(e), 

each manufacturer and provider subject 

to sections 255, 716, and 718 must 

maintain, in the ordinary course of 

business and for a reasonable period, 

records of the efforts taken by such 

manufacturer or provider to implement 

sections 255, 716, and 718, including: 

(1) Information about the manufacturer’s 

or provider’s efforts to consult with 

individuals with disabilities; (2) 

descriptions of the accessibility features 

of its products and services; and (3) 

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. Section 717 also 

requires an officer of a manufacturer or 

provider to submit to the Commission 

an annual certification that records are 

being kept in accordance with this 

provision. Section 717 also states that 

‘‘[a]fter the filing of a formal or informal 

complaint against a manufacturer or 

provider, the Commission may request, 

and shall keep confidential, a copy of 

the records maintained by such 

manufacturer or provider pursuant to 

[this section] that are directly relevant to 

the equipment or service that is the 

subject of such complaint.’’ We seek 

comment on how to implement these 

statutory requirements and solicit 

specific input below. 

118. Some commenter urge the 

Commission to refrain from making the 

recordkeeping requirements overly 

burdensome, unnecessarily expensive, 

or repetitive of the information required 

by existing reports. Motorola notes that 

it and some covered entities already 

publicly provide some of the 

information required by Section 717, 

including information regarding 

accessibility features, consultations with 

individuals with disabilities, and 

compatibility with third party 

peripherals submitted in existing 

Commission reports, such as those 

required for compliance with our HAC 

rules. CEA also states that ‘‘outreach to 

individuals with disabilities either 

directly or indirectly through standards 

development organizations’’ should be 

sufficient to demonstrate a company’s 

compliance with Section 717’s 

requirement to document efforts to 

consult with individuals with 

disabilities. Additionally, CEA points 

out that some of the required 

information may be reflected in 

information provided to the 

clearinghouse that will be established 

under the CVAA. 

119. We note, however, that section 

717 requires the Commission to 

establish uniform recordkeeping and 

enforcement procedures for entities 

subject to sections 255, 716, and 718. 

While some of these records that section 

717 requires to be kept and, potentially, 

produced may be available publicly, in 

other reports or submissions made to 

the Commission or Bureau, or in 

information submitted to a 

clearinghouse, most of the information 

required by this section is not required 

in existing Commission reports and it is 

not clear to what extent this will be 

available in public information. 

120. While we agree that we should 

avoid imposing excessive burdens or 

requiring the same information multiple 

times, we also seek to ensure that 

specific and relevant records required 

by the statute are appropriately 

maintained by manufacturers and 

providers. In light of the range of 

potential complaints that may be filed 

against covered entities under the 

CVAA and section 255, we seek 

comment on how the Commission 

should effectively implement section 

717’s recordkeeping requirements 

without imposing excessive burden or 

expense on covered entities or requiring 

multiple submissions of the same 

records to the Commission. 

121. Section 717 appears to give the 

Commission the discretion to expand 

the recordkeeping requirements beyond 

the three categories specifically set forth 

in subsection (a)(5)(A) to ‘‘records of the 

efforts taken by such manufacturer or 

provider to implement’’ these Sections. 

We seek comment on whether the 

Commission should require covered 

entities to maintain and, potentially, 

produce records to demonstrate their 

compliance with the provisions of 

section 255 and similarly structured 

requirements in section 716. We also 

seek comment on what constitutes a 

‘‘reasonable time period’’ during which 

covered entities will be required to 

maintain these records. Should we 

require covered entities to create and 

maintain records showing their 

compliance with the general obligation 

requirements as well as the 

requirements of product design, 

development, and evaluation, 

information pass through, and 

information, documentation, and 

training? For example, should we 


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require covered entities to create and 

maintain records demonstrating the 

process they have used to assess 

whether it is achievable to make 

particular products and services 

accessible and usable by persons with 

disabilities? What kinds of records 

would be sufficient to demonstrate such 

compliance? We also seek comment on 

whether the Commission should require 

these or any other types of records to 

demonstrate covered entities’ 

compliance with section 255. 

122. Many comments on the 

recordkeeping requirement request that 

the Commission adopt a flexible 

approach to section 717’s recordkeeping 

requirement that recognizes the 

differences in size and scope of covered 

entities and their communications 

services or manufacturing operations, 

instead of requiring a specific form of 

documentation. Verizon recommends 

that the Alliance for 

Telecommunications Industry Solutions 

(ATIS) or a similar organization develop 

a standard recordkeeping form that 

could be used to satisfy this 

requirement. While ATIS, on behalf of 

AISP.4–HAC, expresses a preference for 

flexible recordkeeping requirements, 

ATIS also supports Verizon’s suggestion 

that industry and consumers should 

work together to develop a mutually 

agreeable form in the event the 

Commission decides to adopt a 

standardized approach. CTIA 

specifically requests that the 

Commission allow records to be kept 

electronically. TIA suggests that the 

Commission should ‘‘provide some nonexclusive guidance concerning the type 

of information that would be responsive 

to the statutory recordkeeping criteria’’ 

without precluding flexibility in the 

form in which those records may be 

kept. We seek comment on these 

recommendations. 

123. We recognize that section 717 

applies to a broad range of entities that 

have widely ranging business models 

and modes of operation. Therefore, 

consistent with some commenters’ 

suggestions, we propose that we should 

not mandate any one form in which 

records must be kept in order to comply 

with section 717. We also propose that 

if a record (that the Commission 

requires be produced after receipt of a 

complaint) is not readily available, the 

covered entity must provide it no later 

than the date of its response to the 

complaint. We seek comment on these 

proposals and on whether there is any 

reason for the Commission to mandate 

a standard form of recordkeeping to 

comply with section 717(a)(5) or to 

require covered entities to submit 

publicly available records or those the 

Commission already has in another 

report or submission. While we cannot 

predict what the nature of consumers’ 

complaints will be or provide specific 

guidance as to what information will be 

responsive to those complaints, we 

propose, as discussed more fully below, 

to require each response to a filed 

complaint to sufficiently describe how 

each record submitted is relevant to the 

complaint and the alleged violation, and 

how the provided record establishes the 

covered entity’s compliance with the 

Act. Finally, given that the statute 

provides that recordkeeping 

requirements do not take effect until one 

year after the effective date of 

regulations promulgated pursuant to 

section 716(e), we seek comment 

regarding whether, and if so, in what 

fashion, the Commission should address 

this transition period, particularly for 

the purposes of enforcement. 

C. Enforcement 

1. Background 

124. Section 717 requires the 

Commission to adopt rules that facilitate 

the filing of formal and informal 

complaints that allege a violation of 

section 255, 716, or 718 and to establish 

procedures for enforcement actions by 

the Commission with respect to such 

violations, within one year of enactment 

of the law. In this section, we seek 

comment on specific procedures to 

implement these requirements and 

propose rules to consolidate the existing 

enforcement provisions for section 255 

with the newly proposed enforcement 

rules for alleged violations of sections 

716 and 718. 

a. Enforcement of Section 255 

125. In the rules adopted in the 

Section 255 Report and Order, the 

Commission provided form and content 

requirements for informal and formal 

complaints alleging a violation of 

section 255, as well as review and 

disposition procedures. In particular, 

the Commission established specific 

elements to be included in any informal 

complaint alleging a violation of section 

255 of the Act as well as the form and 

content for answers to such complaints. 

These rules provide that if the 

Commission determines that an 

informal complaint has been satisfied 

based on the defendant’s answer, or 

from other communications with the 

parties, the Commission may, at its 

discretion, consider the informal 

complaint closed, without providing a 

response to the complainant or 

defendant. Additionally, the 

Commission may close the informal 

complaint if it determines that no 

further action is necessary based on the 

complaint and answer, and will then 

duly inform the complainant and the 

defendant of the reasons stated above. If, 

however, the Commission, based on the 

pleadings, determines that a material 

and substantial question remains as to a 

defendant’s compliance with the section 

255 requirements and the Commission’s 

implementing rules, the Commission 

may conduct further investigation or 

proceedings as necessary to determine 

whether the defendant has violated any 

legal requirements, as well as whether 

any remedial actions and/or sanctions 

are warranted. If the Commission 

determines that a defendant has failed 

to comply with section 255 and its 

implementing rules, the Commission 

can order such remedial action or 

sanctions as are authorized by the Act 

and the rules as it deems appropriate. 

Aside from its complaint procedures, 

the Commission may, on its own 

motion, conduct inquiries and initiate 

proceedings as necessary to enforce the 

relevant requirements. 

b. Section 717 Enforcement 

Requirements 

126. As discussed above, section 717 

requires the Commission within one 

year after the date of enactment of the 

CVAA to establish regulations that 

facilitate the filing of formal and 

informal complaints that allege a 

violation of section 255, 716, or 718, 

and to establish procedures for 

enforcement actions. 

127. Specifically, the CVAA requires 

the Commission to establish separate 

and identifiable electronic, telephonic, 

and physical receptacles for the receipt 

of complaints filed under section 255, 

716 or 718 as well as establish a process 

for filing and receiving formal or 

informal complaints. Further, the CVAA 

requires the Commission to investigate 

the allegations in an informal complaint 

and, within 180 days after the date on 

which such complaint was filed with 

the Commission, issue an order 

concluding the investigation and 

provide an explanation for its 

conclusion, unless such complaint is 

resolved before such time. If the 

Commission determines that a violation 

has occurred, the Commission may, in 

the order or in a subsequent order, 

direct the manufacturer or service 

provider to bring the service, or in the 

case of a manufacturer, the next 

generation of the equipment or device, 

into compliance with requirements of 

those sections within a reasonable time 

established by the Commission in its 

order. If a determination is made that a 

violation has not occurred, the 

Commission must provide the basis for 


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such determination. The statute also 

provides that before the Commission 

makes a determination, the party that is 

the subject of the complaint shall have 

a reasonable opportunity to respond to 

such complaint, and may include in its 

response any factors that are relevant to 

such determination. Before issuing a 

final order, the Commission is required 

to provide the responding party a 

reasonable opportunity to comment on 

any proposed remedial action. 

2. General Requirements 

128. Pre-Filing Notice. We seek 

comment on whether the Commission 

should require potential complainants 

to first notify the defendant 

manufacturer or provider that it intends 

to file a complaint based on an alleged 

violation of one or more provisions of 

section 255, 716, or 718. We note that 

some parties have suggested that such a 

pre-filing notice can potentially foster 

greater communication among parties. 

While we agree that such a requirement 

could lead to a more efficient resolution 

in advance of a complaint in some 

instances, we are also concerned that in 

other cases, such a requirement could 

prove burdensome to consumers and 

delay resolution of complaints. In the 

Section 255 Report and Order, 

consistent with an Access Board 

recommendation, we encouraged 

consumers to express their concerns 

informally to the manufacturer or 

service provider before filing a 

complaint with the Commission. We 

declined, however, to adopt a rule 

requiring consumers to contact 

manufacturers and service providers 

before they could file a complaint with 

the Commission, finding that our 

informal complaint process is ‘‘geared 

toward cooperative efforts.’’ We seek 

comment on whether such an approach 

is sufficient or whether a specific 

requirement is necessary. To the extent 

that commenters advocate that we 

require that consumers notify 

manufacturers or providers before they 

file a complaint, we seek comment on 

specific safeguards that we should adopt 

to ensure that this requirement does not 

prove onerous to the consumers. 

129. Receipt and Filing of Complaints. 

We seek comment on how the 

Commission should establish separate 

and identifiable electronic, telephonic, 

and physical receptacles for the receipt 

of complaints, both formal and informal. 

We note that the Commission’s 

Disability Rights Office has already 

established a new phone number (202– 

418–2517(V); (202–418–2922 (TTY) and 

e-mail address (dro@fcc.gov) for this 

purpose. We also note that currently, 

informal complaints alleging a violation 

of section 255 may be transmitted to the 

Commission via any reasonable means, 

e.g., letter, facsimile transmission, 

telephone (voice/TRS/TTY), Internet email, audio-cassette recording, and 

Braille. We propose to retain these 

vehicles as means for transmission and 

receipt of informal complaints by the 

Commission under sections 255, 716 

and 718 and ask commenters to 

consider whether additional methods 

are necessary to meet this statutory 

requirement. Similarly, as discussed 

more fully below, we seek comment on 

the extent to which we should retain or 

revise our current requirements under 

section 255 governing formal 

complaints that are filed for alleged 

violations by manufacturers and 

providers under sections 255, as well as 

sections 716 and 718, in the future. At 

present, these procedures are consistent 

with §§ 1.720–1.736 of the 

Commission’s rules. If we make changes 

to facilitate the filing of informal 

complaints, but continue to apply our 

procedures for formal complaints 

largely in their current form to the new 

ACS sections (as well as maintain these 

procedures for section 255), will this be 

enough to fulfill Congress’s intent to 

facilitate the filing of complaints under 

these sections? We note that since our 

rules implementing section 255 of the 

Act went into effect in 1999, the 

Commission has received only three 

formal complaints alleging violations of 

that section. 

130. Standing to File. We received 

comments requesting that the 

Commission establish ‘‘reasonable’’ 

standing requirements. We note that the 

CVAA allows ‘‘any person alleging a 

violation’’ of the CVAA or the 

implementing rules to file a formal or 

informal complaint under section 255, 

716, or 718. Given that there is no 

standing requirement under these 

sections, and there is no standing 

requirement under either section 208 of 

the Act and our existing complaint 

rules, we decline to propose a standing 

requirement and believe the minimum 

content requirements we propose infra 

in sections VI.C.3 and VI.C.4 will 

effectively deter frivolous complaint 

filings. 

131. Sua sponte actions by the 

Commission. As noted above, the 

Commission’s implementing rules for 

section 255 explicitly state that the 

agency may, on its own motion, conduct 

inquiries and proceedings as necessary 

to enforce the requirements of its 

implementing rules and that section of 

the Act. We intend for the Commission 

and its staff to continue to investigate 

and take action on our own motion 

when compliance issues or problems 

involving sections 255, 716 and 718 

come to our attention through an 

accessibility-related complaint or 

otherwise. Rather than establishing 

specific guidelines for initiating 

investigations and other enforcement 

actions on the Commission’s own 

motion, we propose to continue to 

follow existing protocols, and use 

procedures that in the opinion of the 

Commission best serve the purposes of 

Commission- and staff-initiated 

inquiries and proceedings. We seek 

comment on this approach. 

132. Remedies and Sanctions. We 

seek comment on what remedies and 

other sanctions the Commission should 

consider for violations found to have 

occurred under section 255, 716 or 718. 

As a preliminary matter, as noted above, 

we observe that section 717(a)(3)(B) 

specifically authorizes the Commission 

to impose as a remedy for any violation 

an order directing a manufacturer to 

bring the next generation of its 

equipment or device, and a service 

provider to bring its service, into 

compliance within a reasonable period 

of time. We also observe that section 

718(c) envisions that we will continue 

to use our existing enforcement 

authority under section 503 of the Act, 

but specifically adds that (subject to 

section 503(b)(5)) manufacturers and 

service providers subject to the 

requirements of sections 255, 716, and 

718 are liable for forfeitures of up to 

$100,000 per violation or each day of a 

continuing violation, with the 

maximum amount for a continuing 

violation set at $1 million. We intend to 

use these statutorily directed remedies 

and sanctions as well as other remedies 

and sanctions authorized in the Act. We 

propose a change to section 1.80 of the 

Commission’s rules to reflect the 

modifications of section 718(c) to the 

Act. 

133. We seek comment on whether 

there are additional remedies that the 

Commission should consider when a 

violation is determined to have 

occurred. The Senate and House Reports 

make clear that we should not consider 

remedies that require retrofitting of 

equipment, and accordingly, we agree 

with CEA that we should not employ 

those remedies for violations of these 

provisions. We also note that AFB 

suggests that when a complaint is filed 

and a given product is not accessible, 

but the company nevertheless offers an 

array of accessible options, ‘‘the 

Commission should require the 

company to demonstrate that it can offer 

the complainant at least one other of its 

products that satisfies the [CVAA’s] 

requirements and that would provide 

the complainant at least the same 


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features and level of functionality as the 

product that is the subject of the 

complaint’’ and at a comparable cost to 

the inaccessible product. While we 

agree that this may be a potential 

defense, we clarify that the issue of 

whether a subject entity satisfies its 

accessibility obligations is a fact-specific 

determination that will be decided in 

the context of a complaint proceeding 

based on the record. More specifically, 

we believe our determination about 

what is achievable must take into 

account all four factors enumerated 

under section 716(g), not just the fourth 

factor that considers ‘‘the extent to 

which the service provider or 

manufacturer in question offers 

accessible services or equipment 

containing varying degrees of 

functionality and features, and offered 

at differing price points.’’ 

3. Informal Complaints 

134. As described above, within one 

year after the date of enactment of the 

CVAA, the Commission is required to 

establish regulations that facilitate the 

filing of an informal complaint that 

alleges a violation of section 255, 716 or 

718, as well as establish procedures for 

enforcement actions by the Commission 

for any violations. 

135. We note that commenters suggest 

that any enforcement procedures should 

provide clarity regarding culpability, 

given that a product or service may 

potentially involve several different 

entities such as a device manufacturer, 

a broadband provider, or an application 

developer. We acknowledge that it may 

be difficult for a consumer to determine 

where the responsibility of one covered 

entity ends and another begins. We seek 

comment on what additional procedures 

the Commission might adopt to clarify 

which entity is ‘‘culpable’’ for 

noncompliance and further ask to what 

extent the Commission should be 

available to assist consumers in 

determining which entities are 

appropriately targeted by specific 

complaints? We also seek comment on 

what additional elements should be 

included in complaints that are filed 

under these sections, beyond what is 

proposed below. 

136. We propose the following 

minimum requirements that 

complainants should include in their 

informal complaints, which are 

consistent with section 255 

requirements as well as existing 

enforcement rules that have been 

adopted in other contexts. Specifically, 

we propose to include the following in 

any informal complaint: (1) The name, 

address, e-mail address and telephone 

number of the complainant, and the 

manufacturer or service provider 

defendant against whom the complaint 

is made; (2) a complete statement of 

facts explaining why the complainant 

contends that the defendant 

manufacturer or provider is in violation 

of section 255, 716 or 718, including 

details regarding the service or 

equipment and the relief requested, and 

all documentation that supports the 

complainant’s contention; (3) the date or 

dates on which the complainant or 

person on whose behalf the complaint is 

being filed either purchased, acquired, 

or used (or attempted to purchase, 

acquire, or use) the equipment or 

service about which the complaint is 

being made; (4) the complainant’s 

preferred format or method of response 

to the complaint by the Commission and 

defendant (e.g., letter, facsimile 

transmission, telephone (voice/TRS/ 

TTY), Internet e-mail, audio-cassette 

recording, Braille; or some other method 

that will best accommodate the 

complainant’s disability); and (5) any 

other information that is required by the 

Commission’s accessibility complaint 

form. We seek comment on this 

proposal and request parties to consider 

what additional or modified 

requirements are necessary. Complaints 

that do not satisfy the pleading 

requirements will be dismissed without 

prejudice to refile. (The CVAA 

requirement for the Commission to issue 

an order concluding an investigation 

that is triggered by informal complaint, 

within 180 days of the filing complaint, 

will be tied to the Commission’s receipt 

of complaint that satisfies its pleading 

requirements.) 

137. We also recognize that the 

CVAA’s recordkeeping requirements 

will allow the Commission to obtain 

records of the efforts taken by 

manufacturers or providers to 

implement sections 255, 716, and 718 

and the Commission may use these 

records as necessary to determine 

whether a covered entity has complied 

with its legal obligations. Additionally, 

consistent with our rules implementing 

section 255 of the Act, we propose to 

maintain our current rule that the 

Commission will promptly forward any 

informal complaint meeting the 

appropriate filing requirements to each 

defendant named or determined to be 

implicated by the complaint. Also, 

consistent with our approach taken in 

our rules implementing section 255 of 

the Act, we propose to require 

manufacturers and service providers to 

establish points of contact for 

complaints and inquiries under section 

255, 716 or 718. We continue to believe 

that this requirement will facilitate the 

ability of consumers to contact 

manufacturers and service providers 

directly about accessibility issues or 

concerns and ensure prompt and 

effective service of complaints on 

defendant manufacturers and service 

providers by Commission staff. We seek 

comment on this proposal. 

138. As discussed above, the CVAA 

provides a party that is the subject of a 

complaint a reasonable opportunity to 

respond to such a complaint. Consistent 

with this requirement, we propose that 

answers to informal complaints must: 

(1) Be filed with the Commission and 

served on the complainant within 

twenty days of service of the complaint, 

unless the Commission or its staff 

specifies another time period; (2) 

respond specifically to each material 

allegation in the complaint; (3) set forth 

the steps taken by the manufacturer or 

service provider to make the product or 

service accessible and usable; (4) set 

forth the procedures and processes used 

by the manufacturer or service provider 

to evaluate whether it was achievable to 

make the product or service accessible 

and usable; (5) set forth the names, 

titles, and responsibilities of each 

decisionmaker in the evaluation 

process; (6) set forth the manufacturer’s 

basis for determining that it was not 

achievable to make the product or 

service accessible and usable; (7) 

provide all documents supporting the 

manufacturer’s or service provider’s 

conclusion that it was not achievable to 

make the product or service accessible 

and usable; (8) include a certification by 

an officer of the manufacturer or service 

provider that it was not achievable to 

make the product or service accessible 

and usable; (9) set forth any claimed 

defenses; (10) set forth any remedial 

actions already taken or proposed 

alternative relief without any prejudice 

to any denials or defenses raised; (11) 

provide any other information or 

materials specified by the Commission 

as relevant to its consideration of the 

complaint; and (12) be prepared or 

formatted in the manner requested by 

the Commission and the complainant, 

unless otherwise permitted by the 

Commission for good cause shown. We 

seek comment on this proposal. We 

further propose that within ten (10) days 

after service of an answer, unless 

otherwise directed by the Commission, 

the complainant may file and serve a 

reply, which shall be responsive to 

matters contained in the answer and 

shall not contain new matters. We seek 

comment on this proposal as well. 

Given the statutory requirement for the 

Commission to issue an order 

concluding an investigation of an 


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13820 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

informal complaint within 180 days of 

the filing of the complaint, are there 

other pleading requirements we should 

impose, and, if so, what should these 

be? 

139. As noted above, the CVAA 

requires the Commission to issue an 

order that finds whether a violation has 

occurred within the time limits required 

by the Act, and to provide an 

explanation for its conclusion. Also, as 

we have noted, the statute provides that 

if the Commission determines that a 

violation has occurred, the Commission 

may direct the manufacturer or service 

provider to bring the service, or in the 

case of a manufacturer, the next 

generation of the equipment or device, 

into compliance with requirements of 

those sections within a reasonable time 

established by the Commission in its 

order. In addition, as also previously 

mentioned, before issuing a final order, 

the Commission is required to provide 

the responding party a reasonable 

opportunity to comment on any 

proposed remedial action. We would 

further note that the CVAA authorizes 

the Commission to direct manufacturers 

and service providers of ACS to bring 

their equipment and services into 

compliance either in the order 

concluding an investigation based on an 

informal complaint or ‘‘in a subsequent 

order.’’ Recognizing the importance of 

the rapid implementation of remedies to 

achieving the CVAA’s broader goals, 

however, we will endeavor to issue a 

determination regarding remedies 

within 180 days after an informal 

complaint is filed, or shortly thereafter 

in a subsequent order, whenever 

feasible. (The Commission must, 

however, conclude the investigation and 

include a determination whether any 

violation occurred within 180 days.) We 

seek comment on this approach. 

140. We recognize that the 

Commission must exercise any remedial 

authority selectively and carefully, 

based on legislative history, particularly 

for consumer and wireless devices, 

clarifying that ‘‘the Commission shall 

provide [service providers and 

manufacturers] a reasonable time to 

bring the service or equipment at issue 

into compliance * * * [and should not] 

require retrofitting of such equipment 

that is already in the market.’’ We seek 

comment on what we should consider a 

reasonable time in which to bring 

inaccessible devices or services into 

compliance and how best to impose 

compliance in this context consistent 

with our proposals for remedies and 

sanctions discussed above. We also seek 

input on what constitutes ‘‘reasonable 

opportunity’’ to comment on any 

proposed remedial action. 

4. Formal Complaints 

141. Applicability of sections 1.720– 

1.736. In addition to allowing aggrieved 

parties an opportunity to file informal 

complaints, section 717 states that such 

parties may use our more formal 

adjudicative procedures to pursue 

accessibility claims against 

manufacturers or service providers 

under sections 255, 716 and 718. This 

section further directs the Commission 

to establish regulations that facilitate the 

filing of such formal claims. To date, 

section 255 claims have been subject to 

the procedures laid out in §§ 1.720– 

1.736 of the Commission’s rules. Under 

these rules, both complainants and 

defendants are required to (1) certify in 

their respective complaints and answers 

that they attempted in good faith to 

settle the dispute before the complaint 

was filed with the Commission; and (2) 

submit detailed, factual and legal 

support, accompanied by affidavits and 

documentation, for their respective 

positions in the initial complaint and 

answer. The rules also place strict limits 

on the availability of discovery and 

subsequent pleading opportunities to 

present and defend against claims of 

misconduct. Additionally, the rules 

include additional procedural and 

pleading requirements designed to 

expedite resolution of any formal 

complaint. We propose to require 

aggrieved parties to follow our existing 

formal complaint procedures, as 

modified in our proposed rules. These 

modifications include deleting 

references to provisions that are not 

relevant to consumer-filed complaints 

in the accessibility context (e.g., 

provisions relating to complaints filed 

under section 271 of the Act), as well as 

to ‘‘rocket docket’’ procedures. Because 

the CVAA requires the Commission to 

address informal complaints within 180 

days of filing, and because our 

accelerated docket procedures were 

designed to adjudicate disputes between 

carriers that satisfy certain criteria, we 

are inclined not to extend these 

procedures to formal complaints in the 

accessibility context. We seek comment 

on whether we should consider 

additional modifications to these rules 

in order to facilitate the filing of such 

formal complaints. 

142. Additionally, we propose not to 

require parties to obtain Commission 

approval in order to file a formal 

complaint; we also propose not to 

require parties to invoke our informal 

complaint processes as a prerequisite to 

filing a formal complaint. No such 

requirements exist in the statute or our 

formal complaint rules and we find no 

basis in the existing record to conclude 

that such requirements are needed for 

complaints filed under section 255, 716 

or 718. We seek comment on this 

proposal and ask parties to describe 

whether there are any circumstances 

that warrant such requirements. 

VII. Section 718 Internet Browsers 

Built Into Telephones Used With Public 

Mobile Services 

143. We seek further comment on the 

upcoming obligations imposed by 

section 718 which generally provides 

that ‘‘[i]f a manufacturer of a telephone 

used with public mobile services * * * 

includes an Internet browser in such 

telephone, or if a provider of mobile 

service arranges for the inclusion of a 

browser in telephones to sell to 

customers, the manufacturer or provider 

shall ensure that the functions of the 

included browser (including the ability 

to launch the browser) are accessible to 

and usable by individuals who are blind 

or have a visual impairment, unless 

doing so is not achievable.’’ 

144. While section 718’s requirements 

will not take effect for three years, we 

agree with ACB that the accessibility of 

mobile Web access technologies is 

critical and seek comment on the best 

way(s) to implement section 718, so as 

to afford affected manufacturers and 

service providers an opportunity to 

provide input at the outset, as well as 

to make the necessary arrangements to 

achieve compliance by the time the 

provisions go into effect. We would 

particularly welcome input on how the 

Commission can best inform and assist 

covered entities on the means by which 

they can meet their obligation to 

provide access to Internet browsers in 

mobile phones. Specifically, we seek 

comment on Verizon’s proposal that we 

‘‘encourage industry forums and 

working groups to develop accessibility 

standards for mobile browsers’’ because 

a ‘‘cooperative effort’’ will be needed to 

ensure compliance. To what extent 

should the Commission help to facilitate 

this discussion, for example through an 

advisory committee or a working group 

that is part of the Commission’s 

Consumer Advisory Committee? We 

also seek comment on Code Factory’s 

recommendation that manufacturers 

and operating system developers 

develop an accessibility API to foster 

the incorporation of screen readers into 

mobile platforms across different 

phones which would render the Web 

browser and other mobile phone 

functions accessible to individuals who 

are blind or visually impaired. 


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VIII. Procedural Matters 

Comment Period and Procedures 

145. Pursuant to §§ 1.415 and 1.419 of 

the Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing system 

(ECFS), (2) the Federal Government’s 

eRulemaking Portal, or (3) by filing 

paper copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Comments shall be 

sent as an electronic file via the Internet 

to http://www.fcc.gov/e-file/ecfs.html. In 

completing the transmittal screen, 

commenters should include their full 

name, Postal Service mailing address, 

and the applicable docket number. 

Parties may also submit an electronic 

comment by Internet e-mail. To get 

filing instructions for e-mail comments, 

commenters should send an e-mail to 

ecfs@fcc.gov, and include the following 

words in the body of the message, ‘‘get 

form.’’ A sample form and directions 

will be sent in response. 

• Paper filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. Filings 

can be sent by hand or messenger 

delivery, by commercial overnight 

courier, or by first-class or overnight 

U.S. Postal Service mail (although we 

continue to experience delays in 

receiving U.S. Postal Service mail). All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. The Commission’s 

contractor will receive hand-delivered 

or messenger-delivered paper filings for 

the Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 pm All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. Commercial 

overnight mail (other than U.S. Postal 

Service Express Mail and Priority Mail) 

must be sent to 9300 East Hampton 

Drive, Capitol Heights, MD 20743. U.S. 

Postal Service first-class, Express, and 

Priority mail must be addressed to 445 

12th Street, SW., Washington, DC 

20554. 

• People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

• Availability of Documents: The 

public may view the documents filed in 

this proceeding during regular business 

hours in the FCC Reference Information 

Center, Federal Communications 

Commission, 445 12th Street, SW., 

Room CY–A257, Washington, DC 20554, 

and on the Commission’s Internet Home 

Page: http://www.fcc.gov. Copies of 

comments and reply comments are also 

available through the Commission’s 

duplicating contractor: Best Copy and 

Printing, Inc., 445 12th Street, SW., 

Room CY–B402, Washington, DC 20554, 

1–800–378–3160. 

Initial Regulatory Flexibility Analysis 

146. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(‘‘RFA’’), the Commission has prepared 

this present Initial Regulatory 

Flexibility Analysis (‘‘IRFA’’) of the 

possible significant economic impact on 

a substantial number of small entities 

that might result from adoption of the 

rules proposed in the Notice of 

Proposed Rulemaking (‘‘NPRM’’). 

Written public comments are requested 

on this IRFA. Comments must be 

identified as responses to the IRFA and 

must be filed by the applicable 

deadlines for initial comments, or reply 

comments, as specified in the NPRM. 

The Commission will send a copy of the 

NPRM, including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (‘‘SBA’’). In 

addition, the NPRM and this IRFA (or 

summaries thereof) will be published in 

the Federal Register. 

A. Need for, and Objectives of, the 

Proposed Rules 

147. The purpose of these proposed 

rules is to implement Congress’ mandate 

that people with disabilities have access 

to advanced communications services 

and equipment. Specifically, these rules 

are proposed to implement sections 716 

and 717 of the Communications Act of 

1934, as amended, which were added by 

the ‘‘Twenty-First Century 

Communications and Video 

Accessibility Act of 2010’’ (‘‘CVAA’’). 

Given the fundamental role that 

advanced communications services 

have come to play in today’s world, the 

Commission believes that the CVAA 

represents the most significant 

governmental action for people with 

disabilities since the passage of the 

Americans with Disabilities Act of 1990 

(‘‘ADA’’). The inability to access 

communications equipment and 

services can be life-threatening in 

emergency situations, can severely limit 

educational and employment 

opportunities, and can otherwise 

interfere with full participation in 

business, family, social, and other 

activities. Many of these proposals build 

on our rules implementing section 255 

of the Communications Act, which was 

added by the Telecommunications Act 

of 1996 and provides for the 

accessibility of telecommunications 

services and equipment. 

148. The NPRM makes proposals to 

implement the requirements of section 

716, which requires that providers of 

advanced communications services and 

manufacturers of equipment used for 

such services make their products 

accessible to people with disabilities, 

unless it is not achievable to do so. It 

also proposes rules relating to section 

717, which requires the Commission to 

establish new recordkeeping and 

enforcement procedures for 

manufacturers and providers subject to 

section 716 and section 255. 

149. The Commission proposes that 

manufacturers and service providers 

comply with the requirements of section 

716 either by building accessibility 

features into their equipment or service 

or by relying on third party applications 

or other accessibility solutions. The 

Commission also proposes that if it is 

not achievable for manufacturers and 

service providers to make their products 

accessible to people with disabilities, 

then they must make their products 

compatible with specialized devices 

commonly used by people with 

disabilities. 

150. Furthermore, the Commission 

proposes that manufacturers and service 

providers consider performance 

objectives at the design stage as early 

and consistently as possible and 

implement such evaluation to the extent 

that it is achievable. The Commission 

proposes to incorporate into its 


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performance objectives the outcomeoriented definitions of ‘‘accessible,’’ 

‘‘compatibility,’’ and ‘‘usable’’ contained 

in its rules regarding the accessibility of 

telecommunications services and 

equipment. It seeks comment on 

whether it should adopt more specific 

performance objectives and the 

procedures and timelines that it should 

use to develop these objectives. 

151. The Commission also proposes to 

issue prospective guidelines concerning 

the new accessibility requirements. In 

addition, the Commission seeks 

comment on its proposal not to adopt 

any technical standards as safe harbors 

at this time. 

152. The Commission proposes that 

the accessibility requirements generally 

should apply to a wide range of 

manufacturers and service providers, 

including applications developers and 

providers of applications or services 

downloaded and run by users over 

service providers’ networks. It proposes, 

however, to consider exemptions for 

small entities and, if one or more such 

exemptions is adopted, further proposes 

to consider various criteria in setting 

standards for such exemptions. The 

Commission also proposes to consider 

waivers, both individual and blanket, 

for offerings which are designed for 

multiple purposes but are designed 

primarily for purposes other than using 

advanced communications services. 

153. The Commission proposes to 

define ‘‘achievable’’ to mean ‘‘with 

reasonable effort and expense.’’ In 

making determination about what is 

achievable under section 716, the 

Commission proposes to consider the 

following four factors and give them 

equal weight: 

• ‘‘The nature and cost of the steps 

needed to meet the requirements of this 

section with respect to the specific 

equipment or service in question;’’ 

• ‘‘The technical and economic 

impact on the operation of the 

manufacturer or provider and on the 

operation of the specific equipment or 

service in question * * *; ’’ 

• ‘‘The type of operations of the 

manufacturer or provider;’’ and 

• ‘‘The extent to which the service 

provider or manufacturer in question 

offers accessible services or equipment 

containing varying degrees of 

functionality and features, and offered 

at differing price points.’’ 

154. The Commission proposes 

procedures to facilitate the filing of 

complaints and proposes a 180-day 

deadline to issue an order resolving 

informal complaints concerning the 

accessibility of products. In addition, 

the Commission proposes that 

manufacturers and providers subject to 

section 716 and section 255 maintain 

records of the (1) efforts to consult with 

people with disabilities; (2) accessibility 

features of their products; and (3) 

compatibility of their products with 

specialized devices. 

155. Moreover, in light of the range of 

potential complaints that may be filed 

against covered entities (including small 

entities) under the CVAA and section 

255, the NPRM seeks comment on how 

we should effectively implement section 

717’s recordkeeping requirements 

without imposing excessive burden or 

expense on covered entities or requiring 

multiple submissions of the same 

records to the Commission. The NPRM 

seeks input on what constitutes a 

‘‘reasonable time period’’ during which 

covered entities will be required to 

maintain these records. 

156. The NPRM also recognizes the 

variety of business models and 

operations of entities covered under its 

proposed rules and, therefore, proposes 

that the Commission not mandate any 

one form in which records must be kept 

in order to comply with section 717. 

The NPRM, however, seeks comment on 

whether there is any reason for the 

Commission to mandate a standard form 

of recordkeeping to comply with section 

717(a)(5) or to require covered entities 

to submit publicly available records or 

to re-submit records that the 

Commission already has received 

through a separate submission. Finally, 

given that the statute provides that these 

mandatory recordkeeping requirements 

do not take effect until one year after the 

effective date of regulations 

promulgated by the Commission 

pursuant to section 716(e), the NPRM 

seeks input regarding whether, and if so, 

in what fashion, the Commission should 

address this transition period, 

particularly for the purposes of 

enforcement. 

B. Legal Basis 

157. The legal basis for any action that 

may be taken pursuant to the NPRM is 

contained in sections 1–4, 255, 303(r), 

403, 503, 716, 717, 718 of the 

Communications Act of 1934, as 

Amended, 47 U.S.C. 151–154, 255, 

303(r), 403, 503, 617, 618, 619. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules May Apply 

158. The RFA directs agencies to 

provide a description of, and where 

feasible, an estimate of the number of 

small entities that face possible 

significant economic impact by the 

adoption of proposed rules. The RFA 

generally defines the term ‘‘small entity’’ 

as having the same meaning as the terms 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small governmental jurisdiction.’’ 

In addition, the term ‘‘small business’’ 

has the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act. A ‘‘small business 

concern’’ is one that: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the SBA. 

159. To assist the Commission in 

analyzing the total number of small 

entities potentially affected by the rules 

proposed in the NPRM, we ask 

commenters to estimate the number of 

small entities that may be affected by 

those rules. To assist in assessing the 

nature and number of small entities that 

face possible significant economic 

impact by adoption of our proposed 

rules, we seek comment on the industry 

categories below and our estimates of 

the entities in each category that can, 

under relevant SBA standards or 

standards previously approved by the 

SBA for small businesses, be classified 

as small. Where a commenter proposes 

an exemption from the requirements of 

section 716, we also seek estimates from 

that commenter on the number of small 

entities in each category that would be 

exempted from compliance with section 

716 under the proposed exemption, the 

percentage of market share for the 

service or product that would be 

exempted, and the economic impact, if 

any, on those entities that are not 

covered by the proposed exemption. 

While the NPRM and this IRFA seek 

comment on whether and how the 

Commission should exempt small 

entities from the requirements of section 

716 for the purposes of building a 

record on that issue, we will assume, for 

the narrow purpose of including a 

thorough regulatory impact analysis in 

this IRFA, that no such exemptions will 

be provided. 

160. We divide the remainder of this 

section into three parts. In the first two, 

we identify those equipment 

manufacturers and those service 

providers that will be subject to our 

proposed rules and the industry 

categories within which they are 

classified. Within each category where 

possible, we estimate the total number 

of establishments or firms and the 

number of small entities (or the 

percentage) among them that face 

possible significant economic impact 

under the rules proposed in the NPRM. 

Where possible, we provide Census data 

on the number of ‘‘firms’’ in a given 

industrial category but, where that data 

is not available, we provide data on the 

number of ‘‘establishments.’’ The 

number of ‘‘establishments’’ is a less 


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helpful indicator of the number of 

businesses in a given category than the 

number of ‘‘firms,’’ because the latter 

term takes into account the concept of 

common ownership or control. Each 

single physical location counts as an 

‘‘establishment,’’ even though several 

‘‘establishments’’ may be owned or 

controlled by one ‘‘firm.’’ Thus, the data 

given in a category for ‘‘establishments’’ 

may reflect an inflated number of 

businesses in that category, including an 

inflated number of small businesses. In 

the third part, we identify additional 

industry categories in which small 

entities face possible significant 

economic impact by the adoption of 

those proposed rules. In the third part, 

as in the first two parts, we estimate, 

where possible, the number of 

establishments or firms and the number 

of small entities (or the percentages) that 

would face such possible impact by 

adoption of our proposed rules. 

161. Small Businesses. Nationwide, 

there are a total of approximately 29.6 

million small businesses, according to 

the SBA. 

1. Equipment Manufacturers 

a. Manufacturers of Equipment To 

Provide VoIP 

162. Entities manufacturing 

equipment used to provide 

interconnected Voice Over Internet 

Protocol (‘‘VoIP’’), non-interconnected 

VoIP, or both are generally found in one 

of two Census Bureau categories, 

‘‘Electronic Computer Manufacturing’’ or 

‘‘Telephone Apparatus Manufacturing.’’ 

While we recognize, as noted in the 

NPRM, that the manufacturers of 

equipment used to provide 

interconnected VoIP will continue to be 

regulated under section 255 rather than 

under section 716, we include here an 

analysis of the possible significant 

economic impact of our proposed rules 

on manufacturers of equipment used to 

provide both interconnected and noninterconnected VoIP because it was not 

possible to separate available data on 

these two manufacturing categories for 

VoIP equipment. In light of this 

situation, our estimates below are in all 

likelihood overstating the number of 

small entities that manufacture 

equipment used to provide 

interconnected VoIP and which are 

subject to our proposed section 716 

rules. However, in the absence of more 

accurate data, we present these figures 

to provide as thorough an analysis of the 

impact on small entities as we can at 

this time, with the understanding that 

we will modify our analysis as more 

accurate data becomes available in this 

proceeding. 

163. Electronic Computer 

Manufacturing. The Census Bureau 

defines this category to include ‘‘* * * 

establishments primarily engaged in 

manufacturing and/or assembling 

electronic computers, such as 

mainframes, personal computers, 

workstations, laptops, and computer 

servers. Computers can be analog, 

digital, or hybrid * * * The 

manufacture of computers includes the 

assembly or integration of processors, 

coprocessors, memory, storage, and 

input/output devices into a userprogrammable final product.’’ 

164. In this category, the SBA has 

deemed an electronic computer 

manufacturing business to be small if it 

has fewer than 1,000 employees. For 

this category of manufacturers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 421 such establishments that 

operated that year. Of those 421 

establishments, 384 (approximately 

91%) had fewer than 100 employees 

and only 37 had 100 employees or more, 

thus, while we cannot provide a more 

precise estimate, it is clear that a great 

majority of these establishments would 

be deemed small under the applicable 

SBA size standard. Accordingly, the 

majority of establishments in this 

category can be considered small under 

that standard. On this basis, we estimate 

that approximately 91% or more of the 

manufacturers of equipment used to 

provide VoIP in this category are small 

and, thus, face possible significant 

economic impact from adoption of the 

rules proposed in the NPRM. 

165. Telephone Apparatus 

Manufacturing. The Census Bureau 

defines this category to comprise ‘‘* * * 

establishments primarily engaged in 

manufacturing wire telephone and data 

communications equipment. These 

products may be standalone or boardlevel components of a larger system. 

Examples of products made by these 

establishments are central office 

switching equipment, cordless 

telephones (except cellular), PBX 

equipment, telephones, telephone 

answering machines, LAN modems, 

multi-user modems, and other data 

communications equipment, such as 

bridges, routers, and gateways.’’ 

166. In this category, the SBA has 

deemed a telephone apparatus 

manufacturing business to be small if it 

has fewer than 1,000 employees. For 

this category of manufacturers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 398 such establishments that 

operated that year. Of those 398 

establishments, 393 (approximately 

99%) had fewer than 1,000 employees 

and, thus, would be deemed small 

under the applicable SBA size standard. 

Accordingly, the majority of 

establishments in this category can be 

considered small under that standard. 

On this basis, the Commission 

continues to estimate that 

approximately 99% or more of the 

manufacturers of equipment used to 

provide VoIP in this category are small 

and, thus, face possible significant 

economic impact from adoption of the 

rules proposed in the NPRM. 

b. Manufacturers of Equipment To 

Provide Electronic Messaging 

167. Entities that manufacture 

equipment (other than software) used to 

provide electronic messaging services 

are generally found in one of three 

Census Bureau categories: ‘‘Radio and 

Television Broadcasting and Wireless 

Communications Equipment 

Manufacturing,’’ ‘‘Electronic Computer 

Manufacturing,’’ or ‘‘Telephone 

Apparatus Manufacturing.’’ 

168. Radio and Television 

Broadcasting and Wireless 

Communications Equipment 

Manufacturing. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in manufacturing 

radio and television broadcast and 

wireless communications equipment. 

Examples of products made by these 

establishments are: ‘‘transmitting and 

receiving antennas, cable television 

equipment, GPS equipment, pagers, 

cellular phones, mobile 

communications equipment, and radio 

and television studio and broadcasting 

equipment.’’ 

169. In this category, the SBA has 

deemed a business manufacturing radio 

and television broadcasting equipment, 

wireless communications equipment, or 

both, to be small if it has fewer than 750 

employees. For this category of 

manufacturers, Census data for 2007, 

which supersede similar data from the 

2002 Census, show that there were 398 

such establishments that operated that 

year. Of those 398 establishments, 393 

(approximately 99%) had fewer than 

1,000 employees and 912 

(approximately 97%) had fewer than 

500 employees. Between these two 

figures, the Commission estimates that 

about 915 establishments 

(approximately 97%) had fewer than 

750 employees and, thus, would be 

considered small under the applicable 

SBA size standard. Accordingly, the 

majority of establishments in this 

category can be considered small under 

that standard. On this basis, 

Commission estimates that 

approximately 97% or more of the 


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manufacturers of equipment used to 

provide electronic messaging services in 

this category are small and, thus, face 

possible significant economic impact 

from adoption of the rules proposed in 

the NPRM. 

170. Electronic Computer 

Manufacturing. The Census Bureau 

defines this category, as noted above, to 

include ‘‘* * * establishments primarily 

engaged in manufacturing and/or 

assembling electronic computers, such 

as mainframes, personal computers, 

workstations, laptops, and computer 

servers. Computers can be analog, 

digital, or hybrid * * * The 

manufacture of computers includes the 

assembly or integration of processors, 

coprocessors, memory, storage, and 

input/output devices into a userprogrammable final product.’’ 

171. In this category, as noted above, 

the SBA has deemed an electronic 

computer manufacturing business to be 

small if it has fewer than 1,000 

employees. For this category of 

manufacturers, Census data for 2007, 

which supersede similar data from the 

2002 Census, show that there were 421 

such establishments that operated that 

year. Of those 421 establishments, 384 

(approximately 91%) had fewer than 

100 employees and 37 had 100 

employees or more, thus, while we 

cannot provide a more precise estimate, 

it is clear that a great majority of these 

establishments would be deemed small 

under the applicable SBA size standard. 

Accordingly, the majority of 

establishments in this category can be 

considered small under that standard. 

On this basis, we estimate that 

approximately 91% or more of the 

manufacturers of equipment used to 

provide electronic messaging services in 

this category are small and, thus, face 

possible significant economic impact 

from adoption of the rules proposed in 

the NPRM. 

172. Telephone Apparatus 

Manufacturing. The Census Bureau, as 

noted above, defines this category to 

comprise ‘‘* * * establishments 

primarily engaged in manufacturing 

wire telephone and data 

communications equipment. These 

products may be standalone or boardlevel components of a larger system. 

Examples of products made by these 

establishments are central office 

switching equipment, cordless 

telephones (except cellular), PBX 

equipment, telephones, telephone 

answering machines, LAN modems, 

multi-user modems, and other data 

communications equipment, such as 

bridges, routers, and gateways.’’ 

173. In this category, as noted above, 

the SBA has deemed a telephone 

apparatus manufacturing business to be 

small if it has fewer than 1,000 

employees. For this category of 

manufacturers, Census data for 2007, 

which supersede similar data from the 

2002 Census, show that there were 398 

such establishments that operated that 

year. Of those 398 establishments, 393 

(approximately 99%) had fewer than 

1,000 employees and, thus, would be 

deemed small under the applicable SBA 

size standard. Accordingly, the majority 

of establishments in this category can be 

considered small under that standard. 

On this basis, the Commission estimates 

that approximately 99% or more of the 

manufacturers of equipment used to 

provide electronic messaging services in 

this category are small and, thus, face 

possible significant economic impact 

from adoption of the rules proposed in 

the NPRM. 

c. Manufacturers of Equipment To 

Provide Interoperable Video 

Conferencing Services 

174. Entities that manufacture 

equipment used to provide 

interoperable and other video 

conferencing services are generally 

found in the Census Bureau category: 

‘‘Other Communications Equipment 

Manufacturing.’’ The Census Bureau 

defines this category to include: ‘‘* * * 

establishments primarily engaged in 

manufacturing communications 

equipment (except telephone apparatus, 

and radio and television broadcast, and 

wireless communications equipment).’’ 

175. Other Communications 

Equipment Manufacturing. In this 

category, the SBA has deemed a 

business manufacturing other 

communications equipment to be small 

if it has fewer than 750 employees. For 

this category of manufacturers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 452 such establishments that 

operated that year. Of those 452 

establishments, all 452 (100%) had 

fewer than 1,000 employees and 448 of 

those 452 (approximately 99%) had 

fewer than 500 employees. Between 

these two figures, the Commission 

estimates that about 450 establishments 

(approximately 99.6%) had fewer than 

750 employees and, thus, would be 

considered small under the applicable 

SBA size standard. Accordingly, the 

majority of establishments in this 

category can be considered small under 

that standard. On this basis, 

Commission estimates that 

approximately 99.6% or more of the 

manufacturers of equipment used to 

provide interoperable and other video 

conferencing services are small and, 

thus, face possible significant economic 

impact from adoption of the rules 

proposed in the NPRM. 

d. Manufacturers of Software 

176. Entities that publish software 

used to provide interconnected VoIP, 

non-interconnected VoIP, electronic 

messaging services, or interoperable 

video conferencing services are found in 

the Census Bureau category ‘‘Software 

Publishers.’’ 

177. Software Publishers. The Census 

Bureau defines this category to include 

‘‘* * * establishments primarily 

engaged in computer software 

publishing or publishing and 

reproduction. Establishments in this 

industry carry out operations necessary 

for producing and distributing computer 

software, such as designing, providing 

documentation, assisting in installation, 

and providing support services to 

software purchasers. These 

establishments may design, develop, 

and publish, or publish only.’’ 

178. In this category, the SBA has 

deemed a publisher of software (or 

manufacturer of software under the 

CVAA) to be small if it has $25 million 

or less in average annual receipts. For 

this category of manufacturers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 5,313 such firms that 

operated that year. Of those 5,313 firms, 

4,956 (approximately 93%) had $25 

million or less in average annual 

receipts and, thus, would be deemed 

small under the applicable SBA size 

standard. Accordingly, the majority of 

establishments in this category can be 

considered small under that standard. 

On this basis, Commission estimates 

that approximately 93% or more of the 

manufacturers of software used to 

provide interconnected VoIP, noninterconnected VoIP, electronic 

messaging services, and interoperable 

video conferencing services in this 

category are small and, thus, face 

possible significant economic impact 

from adoption of the rules proposed in 

the NPRM. 

2. Service Providers 

a. Providers of VoIP 

179. Entities that provide 

interconnected or non-interconnected 

VoIP or both are generally found in one 

of two Census Bureau categories, ‘‘Wired 

Telecommunications Carriers’’ or ‘‘All 

Other Telecommunications.’’ 

180. Wired Telecommunications 

Carriers. The Census Bureau defines 

this category as follows: ‘‘This industry 

comprises establishments primarily 

engaged in operating and/or providing 

access to transmission facilities and 


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infrastructure that they own and/or 

lease for the transmission of voice, data, 

text, sound, and video using wired 

telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services; wired 

(cable) audio and video programming 

distribution; and wired broadband 

Internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.’’ 

181. In this category, the SBA has 

deemed a wired telecommunications 

carrier to be small if it has fewer than 

1,500 employees. For this category of 

carriers, Census data for 2007, which 

supersede similar data from the 2002 

Census, shows 3,188 firms in this 

category. Of these 3,188 firms, only 44 

(approximately 1%) had 1,000 or more 

employees. While we could not find 

precise Census data on the number of 

firms in the group with fewer than 1,500 

employees, it is clear that at least the 

3,188 firms with fewer than 1,000 

employees would be in that group. 

Thus, at least 3,144 of these 3,188 firms 

(approximately 99%) had fewer than 

1,500 employees. Accordingly, the 

Commission estimates that at least 3,144 

(approximately 99%) had fewer than 

1,500 employees and thus, would be 

considered small under the applicable 

SBA size standard. On this basis, the 

Commission estimates that 

approximately 99% or more of the 

providers of interconnected VoIP, noninterconnected VoIP, or both in this 

category are small and, thus, face 

possible significant economic impact 

from adoption of the rules proposed in 

the NPRM. Our estimates of the number 

of providers on non-interconnected 

VoIP (and the number of small entities 

within that group) are in all likelihood 

overstated because we could not draw 

in the data a distinction between such 

providers and those who provide 

interconnected VoIP. However, in the 

absence of more accurate data, we 

present these figures to provide as 

thorough an analysis of the impact on 

small entities as we can at this time, 

with the understanding that we will 

modify our analysis as more accurate 

data becomes available in this 

proceeding. 

182. All Other Telecommunications. 

Under the 2007 U.S. Census definition 

of firms included in the category ‘‘All 

Other Telecommunications (NAICS 

Code 517919)’’ comprises 

‘‘establishments primarily engaged in 

providing specialized 

telecommunications services, such as 

satellite tracking, communications 

telemetry, and radar station operation. 

This industry also includes 

establishments primarily engaged in 

providing satellite terminal stations and 

associated facilities connected with one 

or more terrestrial systems and capable 

of transmitting telecommunications to, 

and receiving telecommunications from, 

satellite systems. Establishments 

providing Internet services or voice over 

Internet protocol (VoIP) services via 

client-supplied telecommunications 

connections are also included in this 

industry.’’ 

183. In this category, the SBA has 

deemed a provider of ‘‘all other 

telecommunications’’ services to be 

small if it has $25 million or less in 

average annual receipts. For this 

category of service providers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 2,383 such firms that 

operated that year. Of those 2,383 firms, 

2,346 (approximately 98%) had $25 

million or less in average annual 

receipts and, thus, would be deemed 

small under the applicable SBA size 

standard. Accordingly, the majority of 

establishments in this category can be 

considered small under that standard. 

On this basis, Commission estimates 

that approximately 98% or more of the 

providers of interconnected VoIP, noninterconnected VoIP, or both in this 

category are small and, thus, face 

possible significant economic impact 

from adoption of the rules proposed in 

the NPRM. As stated above, our 

estimates of the number of providers of 

non-interconnected VoIP (and the 

number of small entities within that 

group) are in all likelihood overstated 

because we could not draw in the data 

a distinction between such providers 

and those who provide interconnected 

VoIP. However, in the absence of more 

accurate data, we present these figures 

to provide as thorough an analysis of the 

impact on small entities as we can at 

this time, with the understanding that 

we will modify our analysis as more 

accurate data becomes available in this 

proceeding. 

b. Providers of Electronic Messaging 

Services 

184. Entities that provide electronic 

messaging services are generally found 

in one of the following Census Bureau 

categories, ‘‘Wireless 

Telecommunications Carriers (except 

Satellites),’’ ‘‘Wired 

Telecommunications,’’ or ‘‘Internet 

Publishing and Broadcasting and Web 

Search Portals.’’ 

185. Wireless Telecommunications 

Carriers (except Satellites). The Census 

Bureau defines this category to include 

‘‘* * * establishments engaged in 

operating and maintaining switching 

and transmission facilities to provide 

communications via the airwaves. 

Establishments in this industry have 

spectrum licenses and provide services 

using that spectrum, such as cellular 

phone services, paging services, 

wireless Internet access, and wireless 

video services.’’ 

186. In this category, the SBA has 

deemed a wireless telecommunications 

carrier to be small if it has fewer than 

1,500 employees. For this category of 

carriers, Census data for 2007, which 

supersede similar data from the 2002 

Census, shows 1,383 firms in this 

category. Of these 1,383 firms, only 15 

(approximately 1%) had 1,000 or more 

employees. While there is no precise 

Census data on the number of firms in 

the group with fewer than 1,500 

employees, it is clear that at least the 

1,368 firms with fewer than 1,000 

employees would be found in that 

group. Thus, at least 1,368 of these 

1,383 firms (approximately 99%) had 

fewer than 1,500 employees. 

Accordingly, the Commission estimates 

that at least 1,368 (approximately 99%) 

had fewer than 1,500 employees and, 

thus, would be considered small under 

the applicable SBA size standard. On 

this basis, Commission estimates that 

approximately 99% or more of the 

providers of electronic messaging 

services in this category are small and, 

thus, face possible significant economic 

impact from adoption of the rules 

proposed in the NPRM. 

187. Wired Telecommunications 

Carriers. For the 2007 U.S. Census 

definition of firms included in the 

category, ‘‘Wired Telecommunications 

Carriers (NAICS Code 517110),’’ see 

paragraph 35 above. 

188. In this category, the SBA has 

deemed a wired telecommunications 

carrier to be small if it has fewer than 

1,500 employees. For this category of 

carriers, Census data for 2007, which 

supersede similar data from the 2002 

Census, shows 3,188 firms in this 

category. Of these 3,188 firms, only 44 

(approximately 1%) had 1,000 or more 

employees. While we could not find 

precise Census data on the number of 

firms in the group with fewer than 1,500 

employees, it is clear that at least the 

3,188 firms with fewer than 1,000 

employees would be in that group. 

Thus, at least 3,144 of these 3,188 firms 

(approximately 99%) had fewer than 

1,500 employees. Accordingly, the 


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Commission estimates that of these 

3,188 at least 3,144 (approximately 

99%) had fewer than 1,500 employees 

and, thus, would be considered small 

under the applicable SBA size standard. 

On this basis, the Commission estimates 

that approximately 99% or more of the 

providers of electronic messaging 

services in this category are small and, 

thus, face possible significant economic 

impact from adoption of the rules 

proposed in the NPRM. 

189. Internet Publishing and 

Broadcasting and Web Search Portals. 

The Census Bureau defines this category 

to include ‘‘* * * establishments 

primarily engaged in 1) publishing and/ 

or broadcasting content on the Internet 

exclusively or 2) operating Web sites 

that use a search engine to generate and 

maintain extensive databases of Internet 

addresses and content in an easily 

searchable format (and known as Web 

search portals). The publishing and 

broadcasting establishments in this 

industry do not provide traditional 

(non-Internet) versions of the content 

that they publish or broadcast. They 

provide textual, audio, and/or video 

content of general or specific interest on 

the Internet exclusively. Establishments 

known as Web search portals often 

provide additional Internet services, 

such as e-mail, connections to other 

Web sites, auctions, news, and other 

limited content, and serve as a home 

base for Internet users.’’ 

190. In this category, the SBA has 

deemed an Internet publisher or Internet 

broadcaster or the provider of a Web 

search portal on the Internet to be small 

if it has fewer than 500 employees. For 

this category of manufacturers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 2,705 such firms that 

operated that year. Of those 2,705 firms, 

2,682 (approximately 99%) had fewer 

than 500 employees and, thus, would be 

deemed small under the applicable SBA 

size standard. Accordingly, the majority 

of establishments in this category can be 

considered small under that standard. 

On this basis, Commission estimates 

that approximately 99% or more of the 

providers of electronic messaging 

services in this category are small and, 

thus, face possible significant economic 

impact from adoption of the rules 

proposed in the NPRM. 

c. Providers of Interoperable Video 

Conferencing Services 

191. Entities that provide 

interoperable video conferencing 

services are found in the Census Bureau 

Category ‘‘All Other 

Telecommunications.’’ 

192. All Other Telecommunications. 

For the 2007 U.S. Census definition of 

firms included in the category ‘‘All 

Other Telecommunications (NAICS 

Code 517919),’’ see paragraph 37 above. 

193. In this category, the SBA has 

deemed a provider of ‘‘all other 

telecommunications’’ services to be 

small if it has $25 million or less in 

average annual receipts. For this 

category of service providers, Census 

data for 2007, which supersede similar 

data from the 2002 Census, show that 

there were 2,383 such firms that 

operated that year. Of those 2,383 firms, 

2,346 (approximately 98%) had $25 

million or less in average annual 

receipts and, thus, would be deemed 

small under the applicable SBA size 

standard. Accordingly, the majority of 

establishments in this category can be 

considered small under that standard. 

On this basis, Commission estimates 

that approximately 98% or more of the 

providers of interoperable video 

conferencing services are small and, 

thus, face possible significant economic 

impact from adoption of the rules 

proposed in the NPRM. 

3. Additional Industry Categories 

a. Certain Wireless Carriers and Service 

Providers 

194. Cellular Licensees. The SBA has 

developed a small business size 

standard for small businesses in the 

category ‘‘Wireless Telecommunications 

Carriers (except satellite).’’ Under that 

SBA category, a business is small if it 

has 1,500 or fewer employees. The 

census category of ‘‘Cellular and Other 

Wireless Telecommunications’’ is no 

longer used and has been superseded by 

the larger category ‘‘Wireless 

Telecommunications Carriers (except 

satellite).’’ The Census Bureau defines 

this larger category to include ‘‘* * * 

establishments engaged in operating and 

maintaining switching and transmission 

facilities to provide communications via 

the airwaves. Establishments in this 

industry have spectrum licenses and 

provide services using that spectrum, 

such as cellular phone services, paging 

services, wireless Internet access, and 

wireless video services.’’ 

195. In this category, the SBA has 

deemed a wireless telecommunications 

carrier to be small if it has fewer than 

1,500 employees. For this category of 

carriers, Census data for 2007, which 

supersede similar data from the 2002 

Census, shows 1,383 firms in this 

category. Of these 1,383 firms, only 15 

(approximately 1%) had 1,000 or more 

employees. While there is no precise 

Census data on the number of firms in 

the group with fewer than 1,500 

employees, it is clear that at least the 

1,368 firms with fewer than 1,000 

employees would be found in that 

group. Thus, at least 1,368 of these 

1,383 firms (approximately 99%) had 

fewer than 1,500 employees. 

Accordingly, the Commission estimates 

that at least 1,368 (approximately 99%) 

had fewer than 1,500 employees and, 

thus, would be considered small under 

the applicable SBA size standard. On 

this basis, Commission estimates that 

approximately 99% or more of the 

providers of electronic messaging 

services in this category are small and, 

thus, face possible significant economic 

impact from adoption of the rules 

proposed in the NPRM. 

196. Specialized Mobile Radio. The 

Commission awards ‘‘small entity’’ 

bidding credits in auctions for 

Specialized Mobile Radio (SMR) 

geographic area licenses in the 800 MHz 

and 900 MHz bands to firms that had 

revenues of no more than $15 million in 

each of the three previous calendar 

years. The Commission awards ‘‘very 

small entity’’ bidding credits to firms 

that had revenues of no more than $3 

million in each of the three previous 

calendar years. The SBA has approved 

these small business size standards for 

the 900 MHz Service. The Commission 

has held auctions for geographic area 

licenses in the 800 MHz and 900 MHz 

bands. The 900 MHz SMR auction began 

on December 5, 1995, and closed on 

April 15, 1996. Sixty bidders claiming 

that they qualified as small businesses 

under the $15 million size standard won 

263 geographic area licenses in the 900 

MHz SMR band. The 800 MHz SMR 

auction for the upper 200 channels 

began on October 28, 1997, and was 

completed on December 8, 1997. Ten 

bidders claiming that they qualified as 

small businesses under the $15 million 

size standard won 38 geographic area 

licenses for the upper 200 channels in 

the 800 MHz SMR band. A second 

auction for the 800 MHz band was held 

on January 10, 2002 and closed on 

January 17, 2002 and included 23 

licenses. One bidder claiming small 

business status won five licenses. 

197. The auction of the 1,053 800 

MHz SMR geographic area licenses for 

the General Category channels began on 

August 16, 2000, and was completed on 

September 1, 2000. Eleven bidders that 

won 108 geographic area licenses for the 

General Category channels in the 800 

MHz SMR band qualified as small 

businesses under the $15 million size 

standard. In an auction completed on 

December 5, 2000, a total of 2,800 

Economic Area licenses in the lower 80 

channels of the 800 MHz SMR service 

were sold. Of the 22 winning bidders, 


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19 claimed ‘‘small business’’ status and 

won 129 licenses. Thus, combining all 

three auctions, 40 winning bidders for 

geographic licenses in the 800 MHz 

SMR band claimed status as small 

business. 

198. In addition, there are numerous 

incumbent site-by-site SMR licensees 

and licensees with extended 

implementation authorizations in the 

800 and 900 MHz bands. The 

Commission does not know how many 

firms provide 800 MHz or 900 MHz 

geographic area SMR services pursuant 

to extended implementation 

authorizations, nor how many of these 

providers have annual revenues of no 

more than $15 million. One firm has 

over $15 million in revenues. In 

addition, we do not know how many of 

these firms have 1,500 or fewer 

employees. The Commission assumes, 

for purposes of this analysis, that all of 

the remaining existing extended 

implementation authorizations are held 

by small entities. 

199. Advanced Wireless Services. In 

2008, the Commission conducted the 

auction of Advanced Wireless Services 

(‘‘AWS’’) licenses. This auction, which 

was designated as Auction 78, offered 

35 licenses in the AWS 1710–1755 MHz 

and 2110–2155 MHz bands (‘‘AWS–1’’). 

The AWS–1 licenses were licenses for 

which there were no winning bids in 

Auction 66. That same year, the 

Commission completed Auction 78. A 

bidder with attributed average annual 

gross revenues that exceeded $15 

million and did not exceed $40 million 

for the preceding three years (‘‘small 

business’’) received a 15 percent 

discount on its winning bid. A bidder 

with attributed average annual gross 

revenues that did not exceed $15 

million for the preceding three years 

(‘‘very small business’’) received a 25 

percent discount on its winning bid. A 

bidder that had a combined total assets 

of less than $500 million and combined 

gross revenues of less than $125 million 

in each of the last two years qualified 

for entrepreneur status. Four winning 

bidders that identified themselves as 

very small businesses won 17 licenses. 

Three of the winning bidders that 

identified themselves as small business 

won five licenses. Additionally, one 

other winning bidder that qualified for 

entrepreneur status won 2 licenses. 

200. 700 MHz Band Commercial 

Licensees. There is 80 megahertz of nonGuard Band spectrum in the 700 MHz 

Band that is designated for commercial 

use: 698–757, 758–763, 776–787, and 

788–793 MHz Bands. With one 

exception, the Commission adopted 

criteria for defining two groups of small 

businesses for purposes of determining 

their eligibility for bidding credits at 

auction. These two categories are: 

(1) ‘‘Small business,’’ which is defined as 

an entity with attributed average annual 

gross revenues that exceed $15 million 

and do not exceed $40 million for the 

preceding three years; and (2) ‘‘very 

small business,’’ which is defined as an 

entity with attributed average annual 

gross revenues that do not exceed $15 

million for the preceding three years. In 

Block C of the Lower 700 MHz Band 

(710–716 MHz and 740–746 MHz), 

which was licensed on the basis of 734 

Cellular Market Areas, the Commission 

adopted a third criterion for 

determining eligibility for bidding 

credits: An ‘‘entrepreneur,’’ which is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years. The SBA has approved 

these small size standards. 

201. An auction of 740 licenses for 

Blocks C (710–716 MHz and 740–746 

MHz) and D (716–722 MHz) of the 

Lower 700 MHz Band commenced on 

August 27, 2002, and closed on 

September 18, 2002. Of the 740 licenses 

available for auction, 484 licenses were 

sold to 102 winning bidders. Seventytwo of the winning bidders claimed 

small business, very small business, or 

entrepreneur status and won a total of 

329 licenses. A second auction 

commenced on May 28, 2003, and 

closed on June 13, 2003, and included 

256 licenses: Five EAG licenses and 251 

CMA licenses. Seventeen winning 

bidders claimed small or very small 

business status and won 60 licenses, 

and nine winning bidders claimed 

entrepreneur status and won 154 

licenses. 

202. The remaining 62 megahertz of 

commercial spectrum was auctioned on 

January 24 through March 18, 2008. As 

explained above, bidding credits for all 

of these licenses were available to 

‘‘small businesses’’ and ‘‘very small 

businesses.’’ Auction 73 concluded with 

1,090 provisionally winning bids 

covering 1,091 licenses and totaling 

$19,592,420,000. The provisionally 

winning bids for the A, B, C, and E 

Block licenses exceeded the aggregate 

reserve prices for those blocks. The 

provisionally winning bid for the D 

Block license, however, did not meet 

the applicable reserve price and thus 

did not become a winning bid. 

Approximately 55 small businesses had 

winning bids. Currently, the 10 

remaining megahertz associated with 

the D block have not yet been assigned. 

203. Offshore Radiotelephone Service. 

This service operates on several UHF 

television broadcast channels that are 

not used for television broadcasting in 

the coastal areas of states bordering the 

Gulf of Mexico. There are presently 

approximately 55 licensees in this 

service. The Commission is unable to 

estimate at this time the number of 

licensees that would qualify as small 

under the SBA’s small business size 

standard for the category of Wireless 

Telecommunications Carriers (except 

Satellite). Under that SBA small 

business size standard, a business is 

small if it has 1,500 or fewer employees. 

Census data for 2007, which supersede 

data from the 2002 Census, show that 

there were 1,383 firms that operated that 

year. Of those 1,383, 1,368 had fewer 

than 100 employees, and 15 firms had 

more than 100 employees. Thus under 

this category and the associated small 

business size standard, the majority of 

firms can be considered small. 

204. Government Transfer Bands. The 

Commission adopted small business 

size standards for the unpaired 1390– 

1392 MHz, 1670–1675 MHz, and the 

paired 1392–1395 MHz and 1432–1435 

MHz bands. Specifically, with respect to 

these bands, the Commission defined an 

entity with average annual gross 

revenues for the three preceding years 

not exceeding $40 million as a ‘‘small 

business,’’ and an entity with average 

annual gross revenues for the three 

preceding years not exceeding $15 

million as a ‘‘very small business.’’ SBA 

has approved these small business size 

standards for the aforementioned bands. 

Correspondingly, the Commission 

adopted a bidding credit of 15 percent 

for ‘‘small businesses’’ and a bidding 

credit of 25 percent for ‘‘very small 

businesses.’’ This bidding credit 

structure was found to have been 

consistent with the Commission’s 

schedule of bidding credits, which may 

be found at § 1.2110(f)(2) of the 

Commission’s rules. The Commission 

found that these two definitions will 

provide a variety of businesses seeking 

to provide a variety of services with 

opportunities to participate in the 

auction of licenses for this spectrum and 

will afford such licensees, who may 

have varying capital costs, substantial 

flexibility for the provision of services. 

The Commission noted that it had long 

recognized that bidding preferences for 

qualifying bidders provide such bidders 

with an opportunity to compete 

successfully against large, well-financed 

entities. The Commission also noted 

that it had found that the use of tiered 

or graduated small business definitions 

is useful in furthering its mandate under 

section 309(j) of the Act to promote 

opportunities for and disseminate 

licenses to a wide variety of applicants. 


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An auction for one license in the 1670– 

1674 MHz band commenced on April 

30, 2003 and closed the same day. One 

license was awarded. The winning 

bidder was not a small entity. 

b. Certain Equipment Manufacturers 

and Stores 

205. Part 15 Handset Manufacturers. 

Manufacturers of unlicensed wireless 

handsets may also become subject to 

requirements in this proceeding for their 

handsets used to provide VoIP 

applications. The Commission has not 

developed a definition of small entities 

applicable to unlicensed 

communications handset 

manufacturers. Therefore, we will 

utilize the SBA definition applicable to 

Radio and Television Broadcasting and 

Wireless Communications Equipment 

Manufacturing. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in manufacturing 

radio and television broadcast and 

wireless communications equipment. 

Examples of products made by these 

establishments are: Transmitting and 

receiving antennas, cable television 

equipment, GPS equipment, pagers, 

cellular phones, mobile 

communications equipment, and radio 

and television studio and broadcasting 

equipment.’’ The SBA has developed a 

small business size standard for Radio 

and Television Broadcasting and 

Wireless Communications Equipment 

Manufacturing, which is: All such firms 

having 750 or fewer employees. 

According to Census Bureau data for 

2002, there were a total of 1,041 

establishments in this category that 

operated for the entire year. Of this 

total, 1,010 had employment of under 

500, and an additional 13 had 

employment of 500 to 999. Thus, under 

this size standard, the majority of firms 

can be considered small. 

206. Radio and Television 

Broadcasting and Wireless 

Communications Equipment 

Manufacturing. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in manufacturing 

radio and television broadcast and 

wireless communications equipment. 

Examples of products made by these 

establishments are: Transmitting and 

receiving antennas, cable television 

equipment, GPS equipment, pagers, 

cellular phones, mobile 

communications equipment, and radio 

and television studio and broadcasting 

equipment.’’ The SBA has developed a 

small business size standard for firms in 

this category, which is: all such firms 

having 750 or fewer employees. 

According to Census Bureau data for 

2007, there were a total of 919 firms in 

this category that operated for the entire 

year. Of this total, 777 had less than 100 

employees, and an additional 148 had 

over 100 employees. Thus, while we can 

provide a more precise estimate, under 

this size standard, the large majority of 

these firms can be considered small. 

207. Radio, Television, and Other 

Electronics Stores. The Census Bureau 

defines this economic census category 

as follows: ‘‘This U.S. industry 

comprises: (1) Establishments known as 

consumer electronics stores primarily 

engaged in retailing a general line of 

new consumer-type electronic products; 

(2) establishments specializing in 

retailing a single line of consumer-type 

electronic products (except computers); 

or (3) establishments primarily engaged 

in retailing these new electronic 

products in combination with repair 

services.’’ The SBA has developed a 

small business size standard for Radio, 

Television, and Other Electronics 

Stores, which is: All such firms having 

$9 million or less in annual receipts. 

According to Census Bureau data for 

2007, there were 18,291 firms in this 

category that operated for the entire 

year. Of this total, 17,369 firms had 

annual sales of under $5 million, and 

533 firms had sales of $5 million or 

more but less than $10 million. Thus, 

the majority of firms in this category can 

be considered small. 

c. Wireline Carriers and Service 

Providers 

208. Incumbent Local Exchange 

Carriers (Incumbent LECs). Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent local 

exchange services. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. Census Bureau data 

for 2007, which now supersede data 

from the 2002 Census, show that there 

were 3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had employment of 

1000 or more. According to Commission 

data, 1,307 carriers reported that they 

were incumbent local exchange service 

providers. Of these 1,307 carriers, an 

estimated 1,006 have 1,500 or fewer 

employees and 301 have more than 

1,500 employees. Consequently, the 

Commission estimates that most 

providers of local exchange service are 

small entities that may be affected by 

the rules proposed in the NPRM. Thus 

under this category, the majority of 

these incumbent local exchange service 

providers can be considered small. 

209. Competitive Local Exchange 

Carriers (Competitive LECs), 

Competitive Access Providers (CAPs), 

Shared-Tenant Service Providers, and 

Other Local Service Providers. Neither 

the Commission nor the SBA has 

developed a small business size 

standard specifically for these service 

providers. The appropriate size standard 

under SBA rules is for the category 

Wired Telecommunications Carriers. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. Census Bureau data for 

2007, which now supersede data from 

the 2002 Census, show that there were 

3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these Competitive LECs, 

CAPs, Shared-Tenant Service Providers, 

and Other Local Service Providers can 

be considered small entities. According 

to Commission data, 1,442 carriers 

reported that they were engaged in the 

provision of either competitive local 

exchange services or competitive access 

provider services. Of these 1,442 

carriers, an estimated 1,256 have 1,500 

or fewer employees and 186 have more 

than 1,500 employees. In addition, 17 

carriers have reported that they are 

Shared-Tenant Service Providers, and 

all 17 are estimated to have 1,500 or 

fewer employees. In addition, 72 

carriers have reported that they are 

Other Local Service Providers. Of the 

72, seventy have 1,500 or fewer 

employees and two have more than 

1,500 employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

Shared-Tenant Service Providers, and 

Other Local Service Providers are small 

entities that may be affected by rules 

adopted pursuant to the NPRM. 

210. Interexchange Carriers. Neither 

the Commission nor the SBA has 

developed a small business size 

standard specifically for providers of 

interexchange services. The appropriate 

size standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. Census Bureau data 

for 2007, which now supersede data 

from the 2002 Census, show that there 

were 3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 


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employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these Interexchange 

carriers can be considered small 

entities. According to Commission data, 

359 companies reported that their 

primary telecommunications service 

activity was the provision of 

interexchange services. Of these 359 

companies, an estimated 317 have 1,500 

or fewer employees and 42 have more 

than 1,500 employees. Consequently, 

the Commission estimates that the 

majority of interexchange service 

providers are small entities that may be 

affected by rules adopted pursuant to 

the NPRM. 

211. Operator Service Providers 

(OSPs). Neither the Commission nor the 

SBA has developed a small business 

size standard specifically for operator 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. Census Bureau data 

for 2007, which now supersede data 

from the 2002 Census, show that there 

were 3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these Interexchange 

carriers can be considered small 

entities. According to Commission data, 

33 carriers have reported that they are 

engaged in the provision of operator 

services. Of these, an estimated 31 have 

1,500 or fewer employees and 2 have 

more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of OSPs are 

small entities that may be affected by 

our proposed rules. 

212. Local Resellers. The SBA has 

developed a small business size 

standard for the category of 

Telecommunications Resellers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

Census data for 2007 show that 1,523 

firms provided resale services during 

that year. Of that number, 1,522 

operated with fewer than 1000 

employees and one operated with more 

than 1,000. Thus under this category 

and the associated small business size 

standard, the majority of these local 

resellers can be considered small 

entities. According to Commission data, 

213 carriers have reported that they are 

engaged in the provision of local resale 

services. Of these, an estimated 211 

have 1,500 or fewer employees and two 

have more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of local 

resellers are small entities that may be 

affected by rules adopted pursuant to 

the Notice. 

213. Toll Resellers. The SBA has 

developed a small business size 

standard for the category of 

Telecommunications Resellers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

Census data for 2007 show that 1,523 

firms provided resale services during 

that year. Of that number, 1,522 

operated with fewer than 1000 

employees and one operated with more 

than 1,000. Thus under this category 

and the associated small business size 

standard, the majority of these resellers 

can be considered small entities. 

According to Commission data, 881 

carriers have reported that they are 

engaged in the provision of toll resale 

services. Of these, an estimated 857 

have 1,500 or fewer employees and 24 

have more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of toll 

resellers are small entities that may be 

affected by our proposed rules. 

214. Payphone Service Providers 

(PSPs). Neither the Commission nor the 

SBA has developed a small business 

size standard specifically for payphone 

services providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. Census Bureau data 

for 2007, which now supersede data 

from the 2002 Census, show that there 

were 3,188 firms in this category that 

operated for the entire year. Of this 

total, 3,144 had employment of 999 or 

fewer, and 44 firms had had 

employment of 1,000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the majority of these PSPs can be 

considered small entities. According to 

Commission data, 657 carriers have 

reported that they are engaged in the 

provision of payphone services. Of 

these, an estimated 653 have 1,500 or 

fewer employees and four have more 

than 1,500 employees. Consequently, 

the Commission estimates that the 

majority of payphone service providers 

are small entities that may be affected 

by our action. 

215. Prepaid Calling Card Providers. 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for prepaid calling 

card providers. The appropriate size 

standard under SBA rules is for the 

category Telecommunications Resellers. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. Census data for 2007 show 

that 1,523 firms provided resale services 

during that year. Of that number, 1,522 

operated with fewer than 1000 

employees and one operated with more 

than 1,000. Thus under this category 

and the associated small business size 

standard, the majority of these prepaid 

calling card providers can be considered 

small entities. According to Commission 

data, 193 carriers have reported that 

they are engaged in the provision of 

prepaid calling cards. Of these, all 193 

have 1,500 or fewer employees and 

none have more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of prepaid 

calling card providers are small entities 

that may be affected by rules adopted 

pursuant to the NPRM. 

216. 800 and 800-Like Service 

Subscribers. Neither the Commission 

nor the SBA has developed a small 

business size standard specifically for 

800 and 800-like service (‘‘toll free’’) 

subscribers. The appropriate size 

standard under SBA rules is for the 

category Telecommunications Resellers. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. Census data for 2007 show 

that 1,523 firms provided resale services 

during that year. Of that number, 1,522 

operated with fewer than 1000 

employees and one operated with more 

than 1,000. Thus under this category 

and the associated small business size 

standard, the majority of resellers in this 

classification can be considered small 

entities. To focus specifically on the 

number of subscribers than on those 

firms which make subscription service 

available, the most reliable source of 

information regarding the number of 

these service subscribers appears to be 

data the Commission collects on the 

800, 888, 877, and 866 numbers in use. 

According to our data for September 

2009, the number of 800 numbers 

assigned was 7,860,000; the number of 

888 numbers assigned was 5,888,687; 

the number of 877 numbers assigned 

was 4,721,866; and the number of 866 

numbers assigned was 7,867,736. The 

Commission does not have data 

specifying the number of these 

subscribers that are not independently 

owned and operated or have more than 

1,500 employees, and thus are unable at 

this time to estimate with greater 

precision the number of toll free 

subscribers that would qualify as small 

businesses under the SBA size standard. 

Consequently, the Commission 

estimates that there are 7,860,000 or 

fewer small entity 800 subscribers; 


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5,888,687 or fewer small entity 888 

subscribers; 4,721,866 or fewer small 

entity 877 subscribers; and 7,867,736 or 

fewer small entity 866 subscribers. 

d. Wireless Carriers and Service 

Providers 

217. Below, for those services where 

licenses are subject to auctions, the 

Commission notes that, as a general 

matter, the number of winning bidders 

that qualify as small businesses at the 

close of a given auction does not 

necessarily represent the number of 

small businesses currently in service. 

Also, the Commission does not 

generally track subsequent business size 

unless, in the context of assignments or 

transfers, unjust enrichment issues are 

implicated. 

218. Wireless Telecommunications 

Carriers (except Satellite). Since 2007, 

the Census Bureau has placed wireless 

firms within this new, broad, economic 

census category. Prior to that time, such 

firms were within the now-superseded 

categories of ‘‘Paging’’ and ‘‘Cellular and 

Other Wireless Telecommunications.’’ 

Under the present and prior categories, 

the SBA has deemed a wireless business 

to be small if it has 1,500 or fewer 

employees. For the category of Wireless 

Telecommunications Carriers (except 

Satellite), Census data for 2007, which 

supersede data from the 2002 Census, 

show that there were 1,383 firms that 

operated that year. Of those 1,383, 1,368 

had fewer than 100 employees, and 15 

firms had more than 100 employees. 

Thus under this category and the 

associated small business size standard, 

the majority of firms can be considered 

small. Similarly, according to 

Commission data, 413 carriers reported 

that they were engaged in the provision 

of wireless telephony, including cellular 

service, Personal Communications 

Service (PCS), and Specialized Mobile 

Radio (SMR) Telephony services. Of 

these, an estimated 261 have 1,500 or 

fewer employees and 152 have more 

than 1,500 employees. Consequently, 

the Commission estimates that 

approximately half or more of these 

firms can be considered small. Thus, 

using available data, we estimate that 

the majority of wireless firms can be 

considered small. 

219. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses. The 

Commission defined ‘‘small business’’ 

for the wireless communications 

services (WCS) auction as an entity with 

average gross revenues of $40 million 

for each of the three preceding years, 

and a ‘‘very small business’’ as an entity 

with average gross revenues of $15 

million for each of the three preceding 

years. The SBA has approved these 

definitions. The Commission auctioned 

geographic area licenses in the WCS 

service. In the auction, which 

commenced on April 15, 1997 and 

closed on April 25, 1997, seven bidders 

won 31 licenses that qualified as very 

small business entities, and one bidder 

won one license that qualified as a small 

business entity. 

220. Common Carrier Paging. The 

SBA considers paging to be a wireless 

telecommunications service and 

classifies it under the industry 

classification Wireless 

Telecommunications Carriers (except 

satellite). Under that classification, the 

applicable size standard is that a 

business is small if it has 1,500 or fewer 

employees. For the general category of 

Wireless Telecommunications Carriers 

(except Satellite), Census data for 2007, 

which supersede data from the 2002 

Census, show that there were 1,383 

firms that operated that year. Of those 

1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms can be considered small. The 2007 

census also contains data for the 

specific category of ‘‘Paging’’ ‘‘that is 

classified under the seven-number 

NAICS code 5172101. According to 

Commission data, 291 carriers have 

reported that they are engaged in Paging 

or Messaging Service. Of these, an 

estimated 289 have 1,500 or fewer 

employees, and 2 have more than 1,500 

employees. Consequently, the 

Commission estimates that the majority 

of paging providers are small entities 

that may be affected by our action. In 

addition, in the 220 MHz Third Report 

and Order, the Commission developed a 

small business size standard for ‘‘small 

businesses’’ and ‘‘very small businesses’’ 

for purposes of determining their 

eligibility for special provisions such as 

bidding credits and installment 

payments. A ‘‘small business’’ is an 

entity that, together with its affiliates 

and controlling principals, has average 

gross revenues not exceeding $15 

million for the preceding three years. 

Additionally, a ‘‘very small business’’ is 

an entity that, together with its affiliates 

and controlling principals, has average 

gross revenues that are not more than $3 

million for the preceding three years. 

The SBA has approved these small 

business size standards. An auction of 

Metropolitan Economic Area licenses 

commenced on February 24, 2000, and 

closed on March 2, 2000. Of the 985 

licenses auctioned, 440 were sold. Fiftyseven companies claiming small 

business status won. 

221. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services, and 

specialized mobile radio telephony 

carriers. As noted, the SBA has 

developed a small business size 

standard for Wireless 

Telecommunications Carriers (except 

Satellite). Under the SBA small business 

size standard, a business is small if it 

has 1,500 or fewer employees. Census 

data for 2007, which supersede data 

from the 2002 Census, show that there 

were 1,383 firms that operated that year. 

Of those 1,383, 1,368 had fewer than 

100 employees, and 15 firms had more 

than 100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms can be considered small. 

According to Trends in Telephone 

Service data, 434 carriers reported that 

they were engaged in wireless 

telephony. Of these, an estimated 222 

have 1,500 or fewer employees and 212 

have more than 1,500 employees. 

Therefore, approximately half of these 

entities can be considered small. 

Similarly, according to Commission 

data, 413 carriers reported that they 

were engaged in the provision of 

wireless telephony, including cellular 

service, Personal Communications 

Service (PCS), and Specialized Mobile 

Radio (SMR) Telephony services. Of 

these, an estimated 261 have 1,500 or 

fewer employees and 152 have more 

than 1,500 employees. Consequently, 

the Commission estimates that 

approximately half or more of these 

firms can be considered small. Thus, 

using available data, we estimate that 

the majority of wireless firms can be 

considered small. 

222. Broadband Personal 

Communications Service. The 

broadband personal communications 

services (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission initially defined a ‘‘small 

business’’ for C- and F-Block licenses as 

an entity that has average gross revenues 

of $40 million or less in the three 

previous calendar years. For F-Block 

licenses, an additional small business 

size standard for ‘‘very small business’’ 

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years. These small business 

size standards, in the context of 

broadband PCS auctions, have been 

approved by the SBA. No small 

businesses within the SBA-approved 


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small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that claimed small business status in the 

first two C-Block auctions. A total of 93 

bidders that claimed small business 

status won approximately 40 percent of 

the 1,479 licenses in the first auction for 

the D, E, and F Blocks. On April 15, 

1999, the Commission completed the 

reauction of 347 C-, D-, E-, and F-Block 

licenses in Auction No. 22. Of the 57 

winning bidders in that auction, 48 

claimed small business status and won 

277 licenses. 

223. On January 26, 2001, the 

Commission completed the auction of 

422 C and F Block Broadband PCS 

licenses in Auction No. 35. Of the 35 

winning bidders in that auction, 29 

claimed small business status. 

Subsequent events concerning Auction 

35, including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. On February 15, 2005, the 

Commission completed an auction of 

242 C-, D-, E-, and F-Block licenses in 

Auction No. 58. Of the 24 winning 

bidders in that auction, 16 claimed 

small business status and won 156 

licenses. On May 21, 2007, the 

Commission completed an auction of 33 

licenses in the A, C, and F Blocks in 

Auction No. 71. Of the 12 winning 

bidders in that auction, five claimed 

small business status and won 18 

licenses. On August 20, 2008, the 

Commission completed the auction of 

20 C-, D-, E-, and F-Block Broadband 

PCS licenses in Auction No. 78. Of the 

eight winning bidders for Broadband 

PCS licenses in that auction, six claimed 

small business status and won 14 

licenses. 

224. Narrowband Personal 

Communications Services. To date, two 

auctions of narrowband personal 

communications services (PCS) licenses 

have been conducted. For purposes of 

the two auctions that have already been 

held, ‘‘small businesses’’ were entities 

with average gross revenues for the prior 

three calendar years of $40 million or 

less. Through these auctions, the 

Commission has awarded a total of 41 

licenses, out of which 11 were obtained 

by small businesses. To ensure 

meaningful participation of small 

business entities in future auctions, the 

Commission has adopted a two-tiered 

small business size standard in the 

Narrowband PCS Second Report and 

Order. A ‘‘small business’’ is an entity 

that, together with affiliates and 

controlling interests, has average gross 

revenues for the three preceding years of 

not more than $40 million. A ‘‘very 

small business’’ is an entity that, 

together with affiliates and controlling 

interests, has average gross revenues for 

the three preceding years of not more 

than $15 million. The SBA has 

approved these small business size 

standards. 

225. 220 MHz Radio Service—Phase I 

Licensees. The 220 MHz service has 

both Phase I and Phase II licenses. Phase 

I licensing was conducted by lotteries in 

1992 and 1993. There are approximately 

1,515 such non-nationwide licensees 

and four nationwide licensees currently 

authorized to operate in the 220 MHz 

band. The Commission has not 

developed a small business size 

standard for small entities specifically 

applicable to such incumbent 220 MHz 

Phase I licensees. To estimate the 

number of such licensees that are small 

businesses, the Commission applies the 

small business size standard under the 

SBA rules applicable. The SBA has 

deemed a wireless business to be small 

if it has 1,500 or fewer employees. For 

this service, the SBA uses the category 

of Wireless Telecommunications 

Carriers (except Satellite). Census data 

for 2007, which supersede data from the 

2002 Census, show that there were 

1,383 firms that operated that year. Of 

those 1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms can be considered small. 

226. 220 MHz Radio Service—Phase II 

Licensees. The 220 MHz service has 

both Phase I and Phase II licenses. The 

Phase II 220 MHz service is a new 

service, and is subject to spectrum 

auctions. In the 220 MHz Third Report 

and Order, the Commission adopted a 

small business size standard for ‘‘small’’ 

and ‘‘very small’’ businesses for 

purposes of determining their eligibility 

for special provisions such as bidding 

credits and installment payments. This 

small business size standard indicates 

that a ‘‘small business’’ is an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues not exceeding $15 million for 

the preceding three years. A ‘‘very small 

business’’ is an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that do not 

exceed $3 million for the preceding 

three years. The SBA has approved 

these small business size standards. 

Auctions of Phase II licenses 

commenced on September 15, 1998, and 

closed on October 22, 1998. In the first 

auction, 908 licenses were auctioned in 

three different-sized geographic areas: 

Three nationwide licenses, 30 Regional 

Economic Area Group (EAG) Licenses, 

and 875 Economic Area (EA) Licenses. 

Of the 908 licenses auctioned, 693 were 

sold. Thirty-nine small businesses won 

licenses in the first 220 MHz auction. 

The second auction included 225 

licenses: 216 EA licenses and 9 EAG 

licenses. Fourteen companies claiming 

small business status won 158 licenses. 

227. 800 MHz and 900 MHz 

Specialized Mobile Radio Licenses. The 

Commission awards small business 

bidding credits in auctions for 

Specialized Mobile Radio (‘‘SMR’’) 

geographic area licenses in the 800 MHz 

and 900 MHz bands to entities that had 

revenues of no more than $15 million in 

each of the three previous calendar 

years. The Commission awards very 

small business bidding credits to 

entities that had revenues of no more 

than $3 million in each of the three 

previous calendar years. The SBA has 

approved these small business size 

standards for the 800 MHz and 900 MHz 

SMR Services. The Commission has 

held auctions for geographic area 

licenses in the 800 MHz and 900 MHz 

bands. The 900 MHz SMR auction was 

completed in 1996. Sixty bidders 

claiming that they qualified as small 

businesses under the $15 million size 

standard won 263 geographic area 

licenses in the 900 MHz SMR band. The 

800 MHz SMR auction for the upper 200 

channels was conducted in 1997. Ten 

bidders claiming that they qualified as 

small businesses under the $15 million 

size standard won 38 geographic area 

licenses for the upper 200 channels in 

the 800 MHz SMR band. A second 

auction for the 800 MHz band was 

conducted in 2002 and included 23 BEA 

licenses. One bidder claiming small 

business status won five licenses. 

228. The auction of the 1,053 800 

MHz SMR geographic area licenses for 

the General Category channels was 

conducted in 2000. Eleven bidders won 

108 geographic area licenses for the 

General Category channels in the 800 

MHz SMR band qualified as small 

businesses under the $15 million size 

standard. In an auction completed in 

2000, a total of 2,800 Economic Area 

licenses in the lower 80 channels of the 

800 MHz SMR service were awarded. Of 

the 22 winning bidders, 19 claimed 

small business status and won 129 

licenses. Thus, combining all three 

auctions, 40 winning bidders for 

geographic licenses in the 800 MHz 

SMR band claimed status as small 

business. 

229. In addition, there are numerous 

incumbent site-by-site SMR licensees 

and licensees with extended 

implementation authorizations in the 

800 and 900 MHz bands. We do not 

know how many firms provide 800 MHz 

or 900 MHz geographic area SMR 


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pursuant to extended implementation 

authorizations, nor how many of these 

providers have annual revenues of no 

more than $15 million. One firm has 

over $15 million in revenues. In 

addition, we do not know how many of 

these firms have 1,500 or fewer 

employees. We assume, for purposes of 

this analysis, that all of the remaining 

existing extended implementation 

authorizations are held by small 

entities, as that small business size 

standard is approved by the SBA. 

230. 700 MHz Guard Band Licensees. 

In 2000, in the 700 MHz Guard Band 

Order, the Commission adopted size 

standards for ‘‘small businesses’’ and 

‘‘very small businesses’’ for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. A small business 

in this service is an entity that, together 

with its affiliates and controlling 

principals, has average gross revenues 

not exceeding $40 million for the 

preceding three years. Additionally, a 

very small business is an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues that are not more than $15 

million for the preceding three years. 

SBA approval of these definitions is not 

required. An auction of 52 Major 

Economic Area licenses commenced on 

September 6, 2000, and closed on 

September 21, 2000. Of the 104 licenses 

auctioned, 96 licenses were sold to nine 

bidders. Five of these bidders were 

small businesses that won a total of 26 

licenses. A second auction of 700 MHz 

Guard Band licenses commenced on 

February 13, 2001, and closed on 

February 21, 2001. All eight of the 

licenses auctioned were sold to three 

bidders. One of these bidders was a 

small business that won a total of two 

licenses. 

231. Air-Ground Radiotelephone 

Service. The Commission has previously 

used the SBA’s small business size 

standard applicable to Wireless 

Telecommunications Carriers (except 

Satellite), i.e., an entity employing no 

more than 1,500 persons. There are 

approximately 100 licensees in the AirGround Radiotelephone Service, and 

under that definition, the Commission 

estimates that almost all of them qualify 

as small entities under the SBA 

definition. For purposes of assigning 

Air-Ground Radiotelephone Service 

licenses through competitive bidding, 

the Commission has defined ‘‘small 

business’’ as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not exceeding $40 

million. A ‘‘very small business’’ is 

defined as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not exceeding $15 

million. These definitions were 

approved by the SBA. In May 2006, the 

Commission completed an auction of 

nationwide commercial Air-Ground 

Radiotelephone Service licenses in the 

800 MHz band (Auction No. 65). On 

June 2, 2006, the auction closed with 

two winning bidders winning two AirGround Radiotelephone Services 

licenses. Neither of the winning bidders 

claimed small business status. 

232. Rural Radiotelephone Service. 

The Commission has not adopted a size 

standard for small businesses specific to 

the Rural Radiotelephone Service. A 

significant subset of the Rural 

Radiotelephone Service is the Basic 

Exchange Telephone Radio System 

(BETRS). For purposes of its analysis of 

the Rural Radiotelephone Service, the 

Commission uses the SBA small 

business size standard for the category 

Wireless Telecommunications Carriers 

(except satellite), which is 1,500 or 

fewer employees. Census data for 2007, 

which supersede data from the 2002 

Census, show that there were 1,383 

firms that operated that year. Of those 

1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms in the Rural Radiotelephone 

Service can be considered small. 

233. Aviation and Marine Radio 

Services. Small businesses in the 

aviation and marine radio services use 

a very high frequency (VHF) marine or 

aircraft radio and, as appropriate, an 

emergency position-indicating radio 

beacon (and/or radar) or an emergency 

locator transmitter. The Commission has 

not developed a small business size 

standard specifically applicable to these 

small businesses. For purposes of this 

analysis, the Commission uses the SBA 

small business size standard for the 

category Wireless Telecommunications 

Carriers (except satellite), which is 

1,500 or fewer employees. Census data 

for 2007, which supersede data from the 

2002 Census, show that there were 

1,383 firms that operated that year. Of 

those 1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms can be considered small. 

234. Fixed Microwave Services. 

Microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. They 

also include the Local Multipoint 

Distribution Service (LMDS), the Digital 

Electronic Message Service (DEMS), and 

the 24 GHz Service, where licensees can 

choose between common carrier and 

non-common carrier status. The 

Commission has not yet defined a small 

business with respect to microwave 

services. For purposes of this IRFA, the 

Commission will use the SBA’s 

definition applicable to Wireless 

Telecommunications Carriers (except 

satellite)—i.e., an entity with no more 

than 1,500 persons is considered small. 

For the category of Wireless 

Telecommunications Carriers (except 

satellite), Census data for 2007, which 

supersede data from the 2002 Census, 

show that there were 1,383 firms that 

operated that year. Of those 1,383, 1,368 

had fewer than 100 employees, and 15 

firms had more than 100 employees. 

Thus under this category and the 

associated small business size standard, 

the majority of firms can be considered 

small. The Commission notes that the 

number of firms does not necessarily 

track the number of licensees. The 

Commission estimates that virtually all 

of the Fixed Microwave licensees 

(excluding broadcast auxiliary 

licensees) would qualify as small 

entities under the SBA definition. 

235. Offshore Radiotelephone Service. 

This service operates on several UHF 

television broadcast channels that are 

not used for television broadcasting in 

the coastal areas of states bordering the 

Gulf of Mexico. There are presently 

approximately 55 licensees in this 

service. The Commission is unable to 

estimate at this time the number of 

licensees that would qualify as small 

under the SBA’s small business size 

standard for the category of Wireless 

Telecommunications Carriers (except 

satellite). Under that SBA small 

business size standard, a business is 

small if it has 1,500 or fewer employees. 

Census data for 2007, which supersede 

data from the 2002 Census, show that 

there were 1,383 firms that operated that 

year. Of those 1,383, 1,368 had fewer 

than 100 employees, and 15 firms had 

more than 100 employees. Thus under 

this category and the associated small 

business size standard, the majority of 

firms can be considered small. 

236. 39 GHz Service. The Commission 

created a special small business size 

standard for 39 GHz licenses—an entity 

that has average gross revenues of $40 

million or less in the three previous 

calendar years. An additional size 

standard for ‘‘very small business’’ is: An 

entity that, together with affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years. The SBA has approved 

these small business size standards. The 


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auction of the 2,173 39 GHz licenses 

began on April 12, 2000 and closed on 

May 8, 2000. The 18 bidders who 

claimed small business status won 849 

licenses. Consequently, the Commission 

estimates that 18 or fewer 39 GHz 

licensees are small entities that may be 

affected by our action. 

237. Wireless Cable Systems. 

Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and ‘‘wireless 

cable,’’ transmit video programming to 

subscribers and provide two-way high 

speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)). In connection with the 1996 

BRS auction, the Commission 

established a small business size 

standard as an entity that had annual 

average gross revenues of no more than 

$40 million in the previous three 

calendar years. The BRS auctions 

resulted in 67 successful bidders 

obtaining licensing opportunities for 

493 Basic Trading Areas (BTAs). Of the 

67 auction winners, 61 met the 

definition of a small business. BRS also 

includes licensees of stations authorized 

prior to the auction. At this time, we 

estimate that of the 61 small business 

BRS auction winners, 48 remain small 

business licensees. In addition to the 48 

small businesses that hold BTA 

authorizations, there are approximately 

392 incumbent BRS licensees that are 

considered small entities. After adding 

the number of small business auction 

licensees to the number of incumbent 

licensees not already counted, we find 

that there are currently approximately 

440 BRS licensees that are defined as 

small businesses under either the SBA 

or the Commission’s rules. In 2009, the 

Commission conducted Auction 86, the 

sale of 78 licenses in the BRS areas. The 

Commission offered three levels of 

bidding credits: (i) A bidder with 

attributed average annual gross revenues 

that exceed $15 million and do not 

exceed $40 million for the preceding 

three years (small business) will receive 

a 15 percent discount on its winning 

bid; (ii) a bidder with attributed average 

annual gross revenues that exceed $3 

million and do not exceed $15 million 

for the preceding three years (very small 

business) will receive a 25 percent 

discount on its winning bid; and (iii) a 

bidder with attributed average annual 

gross revenues that do not exceed $3 

million for the preceding three years 

(entrepreneur) will receive a 35 percent 

discount on its winning bid. Auction 86 

concluded in 2009 with the sale of 61 

licenses. Of the ten winning bidders, 

two bidders that claimed small business 

status won 4 licenses; one bidder that 

claimed very small business status won 

three licenses; and two bidders that 

claimed entrepreneur status won six 

licenses. 

238. In addition, the SBA’s Cable 

Television Distribution Services small 

business size standard is applicable to 

EBS. There are presently 2,032 EBS 

licensees. All but 100 of these licenses 

are held by educational institutions. 

Educational institutions are included in 

this analysis as small entities. Thus, we 

estimate that at least 1,932 licensees are 

small businesses. Since 2007, Cable 

Television Distribution Services have 

been defined within the broad economic 

census category of Wired 

Telecommunications Carriers; that 

category is defined as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ For these services, the 

Commission uses the SBA small 

business size standard for the category 

‘‘Wireless Telecommunications Carriers 

(except satellite),’’ which is 1,500 or 

fewer employees. To gauge small 

business prevalence for these cable 

services we must, however, use the most 

current census data. Census data for 

2007, which supersede data from the 

2002 Census, show that there were 

1,383 firms that operated that year. Of 

those 1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

firms can be considered small. The 

Commission notes that the Census’ use 

the classifications ‘‘firms’’ does not track 

the number of ‘‘licenses’’. 

239. In the 1998 and 1999 LMDS 

auctions, the Commission defined a 

small business as an entity that has 

annual average gross revenues of less 

than $40 million in the previous three 

calendar years. Moreover, the 

Commission added an additional 

classification for a ‘‘very small 

business,’’ which was defined as an 

entity that had annual average gross 

revenues of less than $15 million in the 

previous three calendar years. These 

definitions of ‘‘small business’’ and ‘‘very 

small business’’ in the context of the 

LMDS auctions have been approved by 

the SBA. In the first LMDS auction, 104 

bidders won 864 licenses. Of the 104 

auction winners, 93 claimed status as 

small or very small businesses. In the 

LMDS re-auction, 40 bidders won 161 

licenses. Based on this information, the 

Commission believes that the number of 

small LMDS licenses will include the 93 

winning bidders in the first auction and 

the 40 winning bidders in the reauction, for a total of 133 small entity 

LMDS providers as defined by the SBA 

and the Commission’s auction rules. 

240. 218–219 MHz Service. The first 

auction of 218–219 MHz spectrum 

resulted in 170 entities winning licenses 

for 594 Metropolitan Statistical Area 

(MSA) licenses. Of the 594 licenses, 557 

were won by entities qualifying as a 

small business. For that auction, the 

small business size standard was an 

entity that, together with its affiliates, 

has no more than a $6 million net worth 

and, after federal income taxes 

(excluding any carry over losses), has no 

more than $2 million in annual profits 

each year for the previous two years. In 

the 218–219 MHz Report and Order and 

Memorandum Opinion and Order, the 

Commission established a small 

business size standard for a ‘‘small 

business’’ as an entity that, together with 

its affiliates and persons or entities that 

hold interests in such an entity and 

their affiliates, has average annual gross 

revenues not to exceed $15 million for 

the preceding three years. A ‘‘very small 

business’’ is defined as an entity that, 

together with its affiliates and persons 

or entities that hold interests in such an 

entity and its affiliates, has average 

annual gross revenues not to exceed $3 

million for the preceding three years. 

These size standards will be used in 

future auctions of 218–219 MHz 

spectrum. 

241. 24 GHz—Incumbent Licensees. 

This analysis may affect incumbent 

licensees who were relocated to the 24 

GHz band from the 18 GHz band, and 

applicants who wish to provide services 

in the 24 GHz band. For this service, the 

Commission uses the SBA small 

business size standard for the category 

‘‘Wireless Telecommunications Carriers 

(except satellite),’’ which is 1,500 or 

fewer employees. To gauge small 

business prevalence for these cable 

services we must, however, use the most 

current census data. Census data for 

2007, which supersede data from the 

2002 Census, show that there were 

1,383 firms that operated that year. Of 

those 1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 


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category and the associated small 

business size standard, the majority of 

firms can be considered small. The 

Commission notes that the Census’ use 

of the classifications ‘‘firms’’ does not 

track the number of ‘‘licenses’’. The 

Commission believes that there are only 

two licensees in the 24 GHz band that 

were relocated from the 18 GHz band, 

Teligent and TRW, Inc. It is our 

understanding that Teligent and its 

related companies have less than 1,500 

employees, though this may change in 

the future. TRW is not a small entity. 

Thus, only one incumbent licensee in 

the 24 GHz band is a small business 

entity. 

242. 24 GHz—Future Licensees. With 

respect to new applicants in the 24 GHz 

band, the small business size standard 

for ‘‘small business’’ is an entity that, 

together with controlling interests and 

affiliates, has average annual gross 

revenues for the three preceding years 

not in excess of $15 million. ‘‘Very small 

business’’ in the 24 GHz band is an 

entity that, together with controlling 

interests and affiliates, has average gross 

revenues not exceeding $3 million for 

the preceding three years. The SBA has 

approved these small business size 

standards. These size standards will 

apply to the future auction, if held. 

243. Satellite Telecommunications 

Providers. Two economic census 

categories address the satellite industry. 

The first category has a small business 

size standard of $15 million or less in 

average annual receipts, under SBA 

rules. The second has a size standard of 

$25 million or less in annual receipts. 

244. The category of Satellite 

Telecommunications ‘‘comprises 

establishments primarily engaged in 

providing telecommunications services 

to other establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications.’’ Census Bureau 

data for 2007 show that 512 Satellite 

Telecommunications firms that operated 

for that entire year. Of this total, 464 

firms had annual receipts of under $10 

million, and 18 firms had receipts of 

$10 million to $24,999,999. 

Consequently, the Commission 

estimates that the majority of Satellite 

Telecommunications firms are small 

entities that might be affected by our 

action. 

245. The second category, i.e. ‘‘All 

Other Telecommunications’’ comprises 

‘‘establishments primarily engaged in 

providing specialized 

telecommunications services, such as 

satellite tracking, communications 

telemetry, and radar station operation. 

This industry also includes 

establishments primarily engaged in 

providing satellite terminal stations and 

associated facilities connected with one 

or more terrestrial systems and capable 

of transmitting telecommunications to, 

and receiving telecommunications from, 

satellite systems. Establishments 

providing Internet services or voice over 

Internet protocol (VoIP) services via 

client-supplied telecommunications 

connections are also included in this 

industry.’’ For this category, Census 

Bureau data for 2007 show that there 

were a total of 2,383 firms that operated 

for the entire year. Of this total, 2,347 

firms had annual receipts of under $25 

million and 12 firms had annual 

receipts of $25 million to $49, 999,999. 

Consequently, the Commission 

estimates that the majority of All Other 

Telecommunications firms are small 

entities that might be affected by our 

action. 

e. Cable and OVS Operators 

246. Because section 706 requires us 

to monitor the deployment of broadband 

regardless of technology or transmission 

media employed, the Commission 

anticipates that some broadband service 

providers may not provide telephone 

service. Accordingly, the Commission 

describes below other types of firms that 

may provide broadband services, 

including cable companies, MDS 

providers, and utilities, among others. 

247. Cable and Other Program 

Distributors. Since 2007, these services 

have been defined within the broad 

economic census category of Wired 

Telecommunications Carriers; that 

category is defined as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ The SBA has developed a 

small business size standard for this 

category, which is: all such firms having 

1,500 or fewer employees. Census data 

for 2007, which supersede data from the 

2002 Census, show that there were 

1,383 firms that operated that year. Of 

those 1,383, 1,368 had fewer than 100 

employees, and 15 firms had more than 

100 employees. Thus under this 

category and the associated small 

business size standard, the majority of 

such firms can be considered small. 

248. Cable Companies and Systems. 

The Commission has also developed its 

own small business size standards, for 

the purpose of cable rate regulation. 

Under the Commission’s rules, a ‘‘small 

cable company’’ is one serving 400,000 

or fewer subscribers, nationwide. 

Industry data indicate that, of 1,076 

cable operators nationwide, all but 

eleven are small under this size 

standard. In addition, under the 

Commission’s rules, a ‘‘small system’’ is 

a cable system serving 15,000 or fewer 

subscribers. Industry data indicate that, 

of 7,208 systems nationwide, 6,139 

systems have under 10,000 subscribers, 

and an additional 379 systems have 

10,000–19,999 subscribers. Thus, under 

this second size standard, most cable 

systems are small. 

249. Cable System Operators. The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, which 

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than 1 percent of all 

subscribers in the United States and is 

not affiliated with any entity or entities 

whose gross annual revenues in the 

aggregate exceed $250,000,000.’’ The 

Commission has determined that an 

operator serving fewer than 677,000 

subscribers shall be deemed a small 

operator, if its annual revenues, when 

combined with the total annual 

revenues of all its affiliates, do not 

exceed $250 million in the aggregate. 

Industry data indicate that, of 1,076 

cable operators nationwide, all but ten 

are small under this size standard. We 

note that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million, 

and therefore we are unable to estimate 

more accurately the number of cable 

system operators that would qualify as 

small under this size standard. 

250. Open Video Services. Open 

Video Service (OVS) systems provide 

subscription services. The open video 

system (‘‘OVS’’) framework was 

established in 1996, and is one of four 

statutorily recognized options for the 

provision of video programming 

services by local exchange carriers. The 

OVS framework provides opportunities 

for the distribution of video 

programming other than through cable 

systems. Because OVS operators provide 

subscription services, OVS falls within 

the SBA small business size standard 

covering cable services, which is ‘‘Wired 

Telecommunications Carriers.’’ The SBA 

has developed a small business size 

standard for this category, which is: all 

such firms having 1,500 or fewer 

employees. To gauge small business 

prevalence for the OVS service, the 

Commission relies on data currently 

available from the U.S. Census for the 


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year 2007. According to that source, 

there were 3,188 firms that in 2007 were 

Wired Telecommunications Carriers. Of 

these, 3,144 operated with less than 

1,000 employees, and 44 operated with 

more than 1,000 employees. However, 

as to the latter 44 there is no data 

available that shows how many 

operated with more than 1,500 

employees. Based on this data, the 

majority of these firms can be 

considered small. In addition, we note 

that the Commission has certified some 

OVS operators, with some now 

providing service. Broadband service 

providers (‘‘BSPs’’) are currently the 

only significant holders of OVS 

certifications or local OVS franchises. 

The Commission does not have 

financial or employment information 

regarding the entities authorized to 

provide OVS, some of which may not 

yet be operational. Thus, at least some 

of the OVS operators may qualify as 

small entities. The Commission further 

notes that it has certified approximately 

45 OVS operators to serve 75 areas, and 

some of these are currently providing 

service. Affiliates of Residential 

Communications Network, Inc. (RCN) 

received approval to operate OVS 

systems in New York City, Boston, 

Washington, DC, and other areas. RCN 

has sufficient revenues to assure that 

they do not qualify as a small business 

entity. Little financial information is 

available for the other entities that are 

authorized to provide OVS and are not 

yet operational. Given that some entities 

authorized to provide OVS service have 

not yet begun to generate revenues, the 

Commission concludes that up to 44 

OVS operators (those remaining) might 

qualify as small businesses that may be 

affected by the rules and policies 

adopted herein. 

f. Internet Service Providers, Web 

Portals and Other Information Services 

251. Internet Service Providers, Web 

Portals and Other Information Services. 

In 2007, the SBA recognized two new 

small business, economic census 

categories. They are (1) Internet 

Publishing and Broadcasting and Web 

Search Portals, and (2) All Other 

Information Services. 

252. Internet Service Providers. The 

2007 Economic Census places these 

firms, whose services might include 

voice over Internet protocol (VoIP), in 

either of two categories, depending on 

whether the service is provided over the 

provider’s own telecommunications 

facilities (e.g., cable and DSL ISPs), or 

over client-supplied 

telecommunications connections (e.g., 

dial-up ISPs). The former are within the 

category of Wired Telecommunications 

Carriers, which has an SBA small 

business size standard of 1,500 or fewer 

employees. These are also labeled 

‘‘broadband.’’ The latter are within the 

category of All Other 

Telecommunications, which has a size 

standard of annual receipts of $25 

million or less. These are labeled nonbroadband. 

253. The most current Economic 

Census data for all such firms are 2007 

data, which are detailed specifically for 

ISPs within the categories above. For the 

first category, the data show that 396 

firms operated for the entire year, of 

which 159 had nine or fewer employees. 

For the second category, the data show 

that 1,682 firms operated for the entire 

year. Of those, 1,675 had annual 

receipts below $25 million per year, and 

an additional two had receipts of 

between $25 million and $ 49,999,999. 

Consequently, we estimate that the 

majority of ISP firms are small entities. 

254. Internet Publishing and 

Broadcasting and Web Search Portals. 

This industry comprises establishments 

primarily engaged in (1) publishing and/ 

or broadcasting content on the Internet 

exclusively or (2) operating Web sites 

that use a search engine to generate and 

maintain extensive databases of Internet 

addresses and content in an easily 

searchable format (and known as Web 

search portals). The publishing and 

broadcasting establishments in this 

industry do not provide traditional 

(non-Internet) versions of the content 

that they publish or broadcast. They 

provide textual, audio, and/or video 

content of general or specific interest on 

the Internet exclusively. Establishments 

known as Web search portals often 

provide additional Internet services, 

such as e-mail, connections to other web 

sites, auctions, news, and other limited 

content, and serve as a home base for 

Internet users. The SBA has developed 

a small business size standard for this 

category; that size standard is fewer 

than 500 employees. Thus, a firm in this 

category with less than 500 employees 

is considered a small business. 

According to Census Bureau data for 

2007, there were 2,705 firms that 

provided one or more of these services 

for that entire year. Of these, 2,682 

operated with less than 500 employees 

and 13 operated with 500 to 999 

employees. Consequently, we estimate 

the majority of these firms are small 

entities that may be affected by our 

proposed actions. 

255. Data Processing, Hosting, and 

Related Services. This industry 

comprises establishments primarily 

engaged in providing infrastructure for 

hosting or data processing services. 

These establishments may provide 

specialized hosting activities, such as 

web hosting, streaming services or 

application hosting; provide application 

service provisioning; or may provide 

general time-share mainframe facilities 

to clients. Data processing 

establishments provide complete 

processing and specialized reports from 

data supplied by clients or provide 

automated data processing and data 

entry services. The SBA has developed 

a small business size standard for this 

category; that size standard is $25 

million or less in average annual 

receipts. According to Census Bureau 

data for 2007, there were 8,060 firms in 

this category that operated for the entire 

year. Of these, 6,726 had annual receipts 

of under $25 million, and 155 had 

receipts between $25 million and 

$49,999,999 million. Consequently, we 

estimate that the majority of these firms 

are small entities that may be affected 

by our proposed actions. 

256. All Other Information Services. 

‘‘This industry comprises establishments 

primarily engaged in providing other 

information services (except new 

syndicates and libraries and archives).’’ 

Our action pertains to interconnected 

VoIP services, which could be provided 

by entities that provide other services 

such as e-mail, online gaming, web 

browsing, video conferencing, instant 

messaging, and other, similar IP-enabled 

services. The SBA has developed a 

small business size standard for this 

category; that size standard is $7.0 

million or less in average annual 

receipts. According to Census Bureau 

data for 2007, there were 367 firms in 

this category that operated for the entire 

year. Of these, 334 had annual receipts 

of under $5 million, and an additional 

11 firms had receipts of between $5 

million and $9,999,999. Consequently, 

we estimate that the majority of these 

firms are small entities that may be 

affected by our action. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

257. We summarize below the 

requirements in the NPRM and 

proposed rules regarding compliance 

with sections 716 and 717, including 

recordkeeping and reporting obligations. 

Additional information on each of these 

requirements can be found in the 

NPRM. 

258. Recordkeeping. The NPRM 

proposes, beginning one year after the 

effective date of regulations 

promulgated by the Commission 

pursuant to section 716(e), to require 

that each manufacturer of equipment 

(including software) used to provide 

ACS and each provider of such services 


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subject to sections 255, 716, and 718, 

not exempted under rules proposed in 

that NPRM, maintain, in the ordinary 

course of business and for a reasonable 

period, certain records. These records 

are to document the efforts taken by 

such manufacturer or service provider 

to implement sections 255, 716, and 

718, including: (1) Information about 

the manufacturer’s or provider’s efforts 

to consult with individuals with 

disabilities; (2) descriptions of the 

accessibility features of its products and 

services; and (3) 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. 

259. Reporting Obligations. The 

CVAA and the Commission’s proposed 

rules require that an officer of each 

manufacturer of equipment (including 

software) used to provide ACS and an 

officer of each provider of such services 

submit to the Commission an annual 

certificate that records are being kept in 

accordance with the above 

recordkeeping requirements, unless 

such manufacturer or provider has been 

exempted from compliance with section 

716 under applicable rules. 

260. Costs of Compliance. Because of 

the diverse manufacturers of equipment 

used to provide ACS and diverse 

providers of ACS that may be subject to 

section 716, the possible exemption of 

certain small entities from compliance 

with that section, the multiple general 

and entity-specific factors used in 

determining, whether for a given 

manufacturer (or service provider) 

accessibility for a particular item of ACS 

equipment (or a particular service) is 

achievable, and the various provisions 

of section 716 and the proposed rules on 

when and to what extent accessibility 

must be incorporated into a given item 

of ACS equipment or service, it is 

difficult to estimate the costs of 

compliance for those small entities that 

may not be covered by an exemption or 

waiver, should the Commission choose 

to adopt any such exemptions or 

waivers. Accordingly, the NPRM seeks 

comment on the costs of compliance 

with these proposed rules. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities and 

Significant Alternatives Considered 

261. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in developing its 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance and reporting requirements 

under the rule for such small entities; 

(3) the use of performance rather than 

design standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities.’’ 

262. In addition to the factors in the 

RFA identified above, the achievability 

factors in the CVAA also serve to 

mitigate adverse impacts and reduce 

burdens on small entities. In the NPRM, 

the Commission proposes to make 

determinations about what is achievable 

by giving four factors equal weight. Two 

of these factors take into account the 

resources available to covered entities 

and may have a direct impact on small 

entities and the obligations they face 

under the CVAA: the second factor, the 

technical and economic impact on the 

operation of the manufacturer or 

provider and on the operation of the 

specific equipment or service in 

question, and the third factor, the type 

of operations of the manufacturer or 

provider. In addition, consideration of 

the first factor (the nature and cost of 

the steps needed to meet the 

requirements with respect to the 

specific equipment or service in 

question) and the fourth factor (the 

extent to which the service provider or 

manufacturer in question offers 

accessibility services or equipment 

containing varying degrees of 

functionality and features, and offered 

at different price points) would benefit 

all entities subject to section 716, 

including small entities. 

263. The Commission proposes not to 

consider additional factors and only to 

consider the factors enumerated in the 

statute, in light of legislative history 

directing the Commission to weigh the 

factors equally. While adoption of this 

proposal would prevent the 

Commission from considering 

additional factors that may benefit small 

entities, it would also require that the 

Commission consider only the factors 

listed above, which clearly serve to 

reduce the burden on small entities. The 

Commission does, however, seek 

comment on whether it might have the 

discretion to weigh other factors not 

specified in the statute. In addition, the 

Commission proposes to construe the 

factors broadly and to weigh any 

relevant considerations in determining 

their meaning. 

264. The Commission also proposes to 

consider exemptions from section 716 

for small entities and, if one or more 

such exemptions were adopted, further 

proposes to consider various criteria in 

setting standards for such exemptions. 

The Commission could have proposed 

not to exercise its discretionary 

authority to exempt small entities or 

could have proposed one or more 

specific size standards for any such 

exemptions but determined that it was 

necessary to build a more complete 

factual record on what factors it should 

consider in making this determination. 

Specifically, before making a specific 

proposal, the Commission seeks to 

understand the impact any such 

proposal would have on small entities, 

the marketplace of ACS services and 

equipment, and on people with 

disabilities. 

265. In addition, the Commission 

proposes consideration of specific 

performance objectives and seeks 

comment on alternative ways to develop 

procedures and timelines to develop 

these objectives. Such alternatives could 

be structured to reduce the burdens on 

small entities of compliance with 

section 716. 

266. The Commission also proposes 

not to adopt technical standards as safe 

harbors at this time. It determined that 

it needed to develop a more complete 

record on this issue before taking action. 

267. Finally, the Commission does not 

propose separate recordkeeping and 

reporting obligations for small entities. 

The Commission, however, has 

proposed that it will not mandate any 

one form in which records must be kept, 

to take into account that covered entities 

have a variety of business models and 

modes of operation. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With Proposed 

Rules 

268. Section 255(e) of the 

Communications Act, as amended, 47 

U.S.C. 255(e), directs the United States 

Access Board (Access Board) to develop 

equipment accessibility guidelines ‘‘in 

conjunction with’’ the Commission, and 

periodically to review and update those 

guidelines. We view the Board’s current 

guidelines as well as its draft guidelines 

as starting points for our interpretation 

and implementation of sections 716 and 

717 of the Communications Act, as 

amended, 47 U.S.C. 617, 618, as well as 

section 255, but because they do not 

currently cover ACS or equipment used 

to provide or access ACS, we must 

necessarily adapt these guidelines in 

our comprehensive implementation 

scheme. As such, it is our tentative view 

that our proposed rules do not overlap, 

duplicate, or conflict with either Access 

Board Final Rules, or (if later adopted) 

the Access Board Draft Guidelines. 


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Paperwork Reduction Act of 1995 

269. Initial Paperwork Reduction 

Analysis. The Notice of Proposed 

Rulemaking contains proposed new or 

modified information collection 

requirements. The Commission, as part 

of its continuing effort to reduce 

paperwork burdens, invites the general 

public and the Office of Management 

and Budget (OMB) to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995, Public Law 104–13. Public and 

agency comments are due 60 days after 

the date of publication in the Federal 

Register. Comments should address: (a) 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we seek specific comment on how we 

might ‘‘further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.’’ We note that we have 

described impacts that might affect 

small businesses, which includes most 

businesses with fewer than 25 

employees, in the IRFA. 

IX. Ordering Clauses 

270. Accordingly, it is ordered that 

pursuant to sections 1–4, 255, 303(r), 

403, 503, 716, and 717 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151–154, 255, 

303(r), 403, 503, 617, 618, this Notice of 

Proposed Rulemaking in CG Docket No. 

10–145, WT Docket No. 96–198, and CG 

Docket No. 10–213 is adopted. 

271. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects 

47 CFR Part 1 

Administrative practice and 

procedure, Communications common 

carriers, Individuals with disabilities, 

Radio, Reporting and recordkeeping 

requirements, Satellites, 

Telecommunications. 

47 CFR Parts 6 and 7 

Communications equipment, 

Individuals with disabilities, 

Telecommunications. 

47 CFR Part 8 

Advanced communications services 

equipment, Manufacturers of equipment 

used for advanced communications 

services, Providers of advanced 

communications services, Individuals 

with disabilities, Recordkeeping and 

enforcement requirements. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 parts 

1, 6, 7, and 8 as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

1. The authority citation for part 1 

reads as follows: 

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 

151, 154, 160, 201, 225, 303, 617 and 618. 

2. Amend § 1.80 by redesignating 

paragraphs (b)(3), (4) and (5) as 

paragraphs (b)(4), (5) and (6) and by 

adding new paragraph (b)(3) and 

revising newly redesignated paragraph 

(b)(4) to read as follows: 

§ 1.80 Forfeiture proceedings. 

* * * * * 

(b) * * * 

(3) If the violator is a manufacturer or 

service provider subject to the 

requirements of section 255, 716 or 718 

of the Communications Act, and is 

determined by the Commission to have 

violated any such requirement, the 

manufacturer or service provider shall 

be liable to the United States for a 

forfeiture penalty of not more than 

$100,000 for each violation or each day 

of a continuing violation, except that the 

amount assessed for any continuing 

violation shall not exceed a total of 

$1,000,000 for any single act or failure 

to act. 

(4) In any case not covered in 

paragraphs (b)(1), (2), or (3) of this 

section, the amount of any forfeiture 

penalty determined under this section 

shall not exceed $16,000 for each 

violation or each day of a continuing 

violation, except that the amount 

assessed for any continuing violation 

shall not exceed a total of $112,500 for 

any single act or failure to act described 

in paragraph (a) of this section. 

* * * * * 

PART 6—ACCESS TO 

TELECOMMUNICATIONS SERVICE, 

TELECOMMUNICATIONS EQUIPMENT 

AND CUSTOMER PREMISES 

EQUIPMENT BY PERSONS WITH 

DISABILITIES 

3. The authority citation for part 6 

reads as follows: 

Authority: 47 U.S.C. 151–154, 251, 255, 

303(r), 617, 618. 

Subpart D—[Removed] 

4. Remove Subpart D, consisting of 

§§ 6.15 through 6.23. 

PART 7—ACCESS TO VOICEMAIL AND 

INTERACTIVE MENU SERVICES AND 

EQUIPMENT BY PEOPLE WITH 

DISABILITIES 

5. The authority citation for part 7 

reads as follows: 

Authority: 47 U.S.C. 151, 154(i), 154(j), 

208, 255, 617, 618. 

Subpart D—[Removed] 

6. Remove Subpart D, consisting of 

§§ 7.17 through 7.23. 

7. Add part 8 to read as follows: 

PART 8—ACCESS TO ADVANCED 

COMMUNICATIONS SERVICES AND 

EQUIPMENT BY PEOPLE WITH 

DISABILITIES 

Subpart A—Scope 

Sec. 

8.1 Applicability. 

8.2 Exclusions. 

8.3 Waivers. 

Subpart B—Definitions 

8.4 Definitions. 

Subpart C—Implementation 

Requirements—What Must Covered Entities 

Do? 

8.5 Obligations 

8.6 Performance objectives. 

8.7 through 8.15 [Reserved] 

Subpart D—Recordkeeping and 

Enforcement 

8.16 Generally. 

8.17 Recordkeeping. 

8.18 Informal or formal complaints. 

8.19 Informal complaints; form and content. 

8.20 Procedure; designation of agents for 

service. 

8.21 Answers and replies to informal 

complaints. 

8.22 Review and disposition of informal 

complaints. 

8.23 General pleading requirements. 

8.24 Format and content of formal 

complaints. 

8.25 Damages. 


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8.26 Joinder of complainants and causes of 

action. 

8.27 Answers. 

8.28 Cross-complaints and counterclaims. 

8.29 Replies. 

8.30 Motions. 

8.31 Formal complaints not stating a cause 

of action; defective pleadings. 

8.32 Discovery. 

8.33 Confidentiality of information 

produced or exchanged by the parties. 

8.34 Other required written submissions. 

8.35 Status conference. 

8.36 Specifications as to pleadings, briefs, 

and other documents; subscription. 

8.37 Copies; service; separate filings against 

multiple defendants. 

Authority: 47 U.S.C. 151–154, 255, 303, 

403, 503, 617, 618 unless otherwise noted. 

Subpart A—Scope 

§ 8.1 Applicability. 

Subject to the exclusions described in 

this part, the rules in this part apply to: 

(a) Any provider of advanced 

communications services, as that term is 

defined in this part, offering such 

services in or affecting interstate 

commerce; 

(b) Any manufacturer of equipment 

used for advanced communications 

services, including but not limited to 

end user equipment, network 

equipment, and software, that such 

manufacturer offers for sale or otherwise 

distributes in interstate commerce. 

§ 8.2 Exclusions. 

(a) Subject to the exception in 

paragraph (c) of this section, no person 

shall be subject to the requirements of 

the rules in this part with respect to 

advanced communications services or 

the equipment used to provide or access 

such services to the extent such person 

transmits, routes, or stores in 

intermediate or transient storage the 

communications made available 

through the provision of advanced 

communications services by a third 

party. 

(b) Subject to the exception in 

paragraph (c) of this section, no person 

shall be subject to the requirements of 

the rules in this part with respect to 

advanced communications services or 

the equipment used to provide or access 

such services to the extent such person 

provides an information location tool, 

such as a directory, index, reference, 

pointer, menu, guide, user interface, or 

hypertext link, through which an end 

user obtains access to such video 

programming, online content, 

applications, services, advanced 

communications services, or equipment 

used to provide or access advanced 

communications services. 

(c) The exclusions in paragraphs (a) 

and (b) of this section shall not apply to 

any person who relies on third party 

applications, services, software, 

hardware, or equipment to comply with 

the requirements of this part with 

respect to the provision of advanced 

communications services or the 

manufacture of equipment used to 

provide such services. 

(d) The requirements of this part shall 

not apply to any equipment or services, 

including interconnected VoIP service, 

that were subject to the requirements of 

section 255 of the Act on October 7, 

2010, which remain subject to section 

255 of the Act, as amended, and subject 

to the rules in parts 6 and 7 of this 

chapter. 

(e) None of the rules in this part shall 

apply to customized equipment or 

services that are not offered directly to 

the public regardless of the facilities 

used. Also, none of the rules in this part 

shall apply to customized equipment or 

services that are not offered to such 

classes of users as to be effectively 

available to the public regardless of the 

facilities used. However, this paragraph 

shall not be construed to create an 

exemption for equipment or for services 

designed for and used by members of 

the general public. 

§ 8.3 Waivers. 

Multi-purpose Services and 

Equipment: 

(a) Manufacturer. On its own motion 

or in response to a petition by a 

manufacturer of equipment used to 

provide or access advanced 

communications service or by any 

interested party, the Commission may 

waive the requirements of this part for 

a feature or function of equipment used 

to provide or access advanced 

communications services, or for any 

class of such equipment that: 

(1) Is capable of accessing advanced 

communications services and; 

(2) Is designed for multiple purposes, 

but is designed primarily for purposes 

other than providing or accessing 

advanced communications services. 

(b) Service Provider. On its own 

motion or in response to a petition by 

a provider of advanced communications 

services or by any interested party, the 

Commission may waive the 

requirements of this part for a feature or 

function of equipment used to provide 

or access advanced communications 

services, or for any class of such 

equipment that: 

(1) Is capable of accessing advanced 

communications services and; 

(2) Is designed for multiple purposes, 

but is designed primarily for purposes 

other than providing or accessing 

advanced communications services. 

Subpart B—Definitions 

§ 8.4 Definitions. 

(a) The term accessible shall have the 

meaning provided in § 8.6(b). 

(b) The term achievable shall mean 

with reasonable effort or expense, as 

determined by the Commission. In 

making such a determination, the 

Commission shall consider: 

(1) The nature and cost of the steps 

needed to meet the requirements of 

section 716 of the Act and this part with 

respect to the specific equipment or 

service in question, such that if 

accessibility to and usability by 

individuals with disabilities can be 

achieved only by a fundamental 

alteration to the specific equipment or 

service in question, then such 

accessibility and usability is not 

achievable; 

(2) The technical and economic 

impact on the operation of the 

manufacturer or provider and on the 

operation of the specific equipment or 

service in question, including on the 

development and deployment of new 

communications technologies; 

(3) The type and operations of the 

manufacturer or provider; and 

(4) The extent to which the service 

provider or manufacturer in question 

offers accessible services or equipment 

containing varying degrees of 

functionality and features, and offered 

at differing price points. 

(c) The term advanced 

communications services shall mean: 

(1) Interconnected VoIP service, as 

that term is defined in this section; 

(2) Non-interconnected VoIP service, 

as that term is defined in this section; 

(3) Electronic messaging service, as 

that term is defined in this section; and 

(4) Interoperable video conferencing 

service, as that term is defined in this 

section. 

(d) The term application shall mean 

software designed to perform or to help 

the user perform a specific task or 

specific tasks, such as communicating 

by voice, electronic text messaging, or 

video conferencing. 

(e) The term compatible shall have the 

meaning provided in § 8.6(d). 

(f) The term customer premises 

equipment shall mean equipment 

employed on the premises of a person 

(other than a carrier) to originate, route, 

or terminate telecommunications. 

(g) The term customized equipment or 

services shall mean equipment and 

services that are customized to unique 

specifications requested by a consumer 

and not otherwise available to the 

general public, including public safety 

networks and devices, but shall not 

apply to equipment distributed to and 


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services used by public or private sector 

employees, including public safety 

employees. 

(h) The term disability shall mean a 

physical or mental impairment that 

substantially limits one or more of the 

major life activities of an individual; a 

record of such an impairment; or being 

regarded as having such an impairment. 

(i) The term electronic messaging 

service means a service that provides 

real-time or near real-time non-voice 

messages in text form between 

individuals over communications 

networks. 

(j) The term end user equipment shall 

mean equipment designed for consumer 

use, including equipment designed for 

use by individuals with disabilities. 

(k) The term hardware shall mean a 

tangible communications device, 

equipment, or physical component of 

communications technology, including 

peripheral devices, such as a smart 

phone, a laptop computer, a desk top 

computer, a screen, a keyboard, a 

speaker, or an amplifier. 

(l) The term interconnected VoIP 

service shall have the same meaning as 

in § 9.3 of this chapter. 

(m) An interoperable video 

conferencing service means a service 

that provides real-time video 

communications, including audio, to 

enable users to share information of the 

user’s choosing. 

(n) The term manufacturer shall mean 

an entity that makes or produces a 

product, including equipment used for 

advanced communications services, 

including end user equipment, network 

equipment, and software. 

(o) The term network equipment shall 

mean equipment facilitating the use of 

a computer network, including routers, 

network interface cards, networking 

cables, modems, and other related 

hardware. 

(p) The term nominal cost in regard to 

accessibility and usability solutions 

shall mean small enough so as to 

generally not be a factor in the 

consumer’s decision to acquire a 

product or service that the consumer 

otherwise desires. 

(q) A non-interconnected VoIP service 

is a service that: 

(1) Enables real-time voice 

communications that originate from or 

terminate to the user’s location using 

Internet protocol or any successor 

protocol; and 

(2) Requires Internet protocolcompatible customer premises 

equipment (CPE); and 

(3) Is not an interconnected VoIP 

service. 

(r) The term peripheral devices shall 

mean devices employed in connection 

with equipment, including software, 

covered by this part to translate, 

enhance, or otherwise transform 

advanced communications services into 

a form accessible to individuals with 

disabilities. 

(s) The term proprietary technology 

shall mean hardware, software, and 

services such as devices, Internet 

service, and software applications, that 

are unique and legally owned, or for 

which a copyright or license is held, by 

an entity that does not offer such 

technology free or on an open source 

basis. 

(t) The term service provider shall 

mean a provider of advanced 

communications services that are 

offered in or affecting interstate 

commerce, including a provider of 

applications and services that can be 

used for advanced communications 

services and that can be accessed (i.e., 

downloaded or run) by users over a 

service provider’s network. 

(u) The term software shall mean 

computer programs, procedures, rules, 

and related data and documentation that 

direct the use and operation of a 

computer or related device and instruct 

it to perform a given task or function. 

(v) The term specialized customer 

premises equipment shall mean 

customer premise equipment which is 

commonly used by individuals with 

disabilities to achieve access. 

(w) The term usable shall have the 

meaning provided in § 8.6(c). 

Subpart C—Implementation 

Requirements—What Must Covered 

Entities Do? 

§ 8.5 Obligations. 

(a) General Obligations. (1) With 

respect to equipment manufactured after 

the effective date of the regulations, a 

manufacturer of equipment used for 

advanced communications services, 

including end user equipment, network 

equipment, and software, must ensure 

that the equipment and software that 

such manufacturer offers for sale or 

otherwise distributes in interstate 

commerce shall be accessible to and 

usable by individuals with disabilities, 

unless such requirements are not 

achievable 

(2) With respect to services provided 

after the effective date of the 

regulations, a provider of advanced 

communications services must ensure 

that services offered by such provider in 

or affecting interstate commerce are 

accessible to and usable by individuals 

with disabilities, unless such 

requirements are not achievable. 

(3) If accessibility is not achievable 

either by building it in or by using third 

party accessibility solutions, then a 

manufacturer or service provider shall 

ensure that its equipment or service is 

compatible with existing peripheral 

devices or specialized customer 

premises equipment. 

(4) Providers of advanced 

communications services shall not 

install network features, functions, or 

capabilities that impede accessibility or 

usability. 

(5) Advanced communications 

services and the equipment and 

networks used with these services may 

not impair or impede the accessibility of 

information content when accessibility 

has been incorporated into that content 

for transmission through such services, 

equipment or networks. 

(b) Product design, development, and 

evaluation. (1) Manufacturers and 

service providers must consider 

performance objectives set forth in § 8.7 

at the design stage as early and as 

consistently as possible and must 

implement such evaluation to the extent 

that it is achievable. 

(2) Manufacturers and service 

providers must identify barriers to 

accessibility and usability as part of 

such evaluation. 

(c) Information Pass Through. 

Equipment used for advanced 

communications services, including end 

user equipment, network equipment, 

and software must pass through crossmanufacturer, nonproprietary, industrystandard codes, translation protocols, 

formats or other information necessary 

to provide advanced communications 

services in an accessible format, if 

achievable. Signal compression 

technologies shall not remove 

information needed for access or shall 

restore it upon decompression. 

(d) Information, documentation, and 

training. Manufacturers and service 

providers must ensure access to 

information and documentation they 

provide to customers, if achievable. 

Such information and documentation 

includes user guides, bills, installation 

guides for end user devices, and product 

support communications, in alternate 

formats, as needed. The requirement to 

provide access to information also 

includes ensuring that individuals with 

disabilities can access, at no extra cost, 

call centers and customer support 

regarding both the product generally 

and the accessibility features of the 

product. 

§ 8.6 Performance objectives. 

(a) Generally—Manufacturers and 

service providers shall ensure that 

equipment and services covered by this 

part are accessible, usable, and 

compatible as those terms are defined in 


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paragraphs (b) through (d) of this 

section. 

(b) Accessible—The term accessible 

shall mean that: 

(1) Input, control, and mechanical 

functions shall be locatable, identifiable, 

and operable in accordance with each of 

the following, assessed independently: 

(i) Operable without vision. Provide at 

least one mode that does not require 

user vision. 

(ii) Operable with low vision and 

limited or no hearing. Provide at least 

one mode that permits operation by 

users with visual acuity between 20/70 

and 20/200, without relying on audio 

output. 

(iii) Operable with little or no color 

perception. Provide at least one mode 

that does not require user color 

perception. 

(iv) Operable without hearing. 

Provide at least one mode that does not 

require user auditory perception. 

(v) Operable with limited manual 

dexterity. Provide at least one mode that 

does not require user fine motor control 

or simultaneous actions. 

(vi) Operable with limited reach and 

strength. Provide at least one mode that 

is operable with user limited reach and 

strength. 

(vii) Operable with a Prosthetic 

Device. Controls shall be operable 

without requiring body contact or close 

body proximity. 

(viii) Operable without timedependent controls. Provide at least one 

mode that does not require a response 

time or allows response time to be bypassed or adjusted by the user over a 

wide range. 

(ix) Operable without speech. Provide 

at least one mode that does not require 

user speech. 

(x) Operable with limited cognitive 

skills. Provide at least one mode that 

minimizes the cognitive, memory, 

language, and learning skills required of 

the user. 

(2) All information necessary to 

operate and use the product, including 

but not limited to, text, static or 

dynamic images, icons, labels, sounds, 

or incidental operating cues, [shall] 

comply with each of the following, 

assessed independently: 

(i) Availability of visual information. 

Provide visual information through at 

least one mode in auditory form. 

(ii) Availability of visual information 

for low vision users. Provide visual 

information through at least one mode 

to users with visual acuity between 20/ 

70 and 20/200 without relying on audio. 

(iii) Access to moving text. Provide 

moving text in at least one static 

presentation mode at the option of the 

user. 

(iv) Availability of auditory 

information. Provide auditory 

information through at least one mode 

in visual form and, where appropriate, 

in tactile form. 

(v) Availability of auditory 

information for people who are hard of 

hearing. Provide audio or acoustic 

information, including any auditory 

feedback tones that are important for the 

use of the product, through at least one 

mode in enhanced auditory fashion (i.e., 

increased amplification, increased 

signal-to-noise ratio, or combination). 

(vi) Prevention of visually-induced 

seizures. Visual displays and indicators 

shall minimize visual flicker that might 

induce seizures in people with 

photosensitive epilepsy. 

(vii) Availability of audio cutoff. 

Where a product delivers audio output 

through an external speaker, provide an 

industry standard connector for 

headphones or personal listening 

devices (e.g., phone-like handset or 

earcup) which cuts off the speaker(s) 

when used. 

(viii) Non-interference with hearing 

technologies. Reduce interference to 

hearing technologies (including hearing 

aids, cochlear implants, and assistive 

listening devices) to the lowest possible 

level that allows a user to utilize the 

product. 

(ix) Hearing aid coupling. Where a 

product delivers output by an audio 

transducer which is normally held up to 

the ear, provide a means for effective 

wireless coupling to hearing aids. 

(c) Usable: The term usable shall 

mean that 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. 

(d) Compatible: The term compatible 

shall mean compatible with peripheral 

devices and specialized customer 

premises equipment, and in compliance 

with the following provisions, as 

applicable: 

(1) External electronic access to all 

information and control mechanisms. 

Information needed for the operation of 

products (including output, alerts, 

icons, on-line help, and documentation) 

shall be available in a standard 

electronic text format on a crossindustry standard port and all input to 

and control of a product shall allow for 

real time operation by electronic text 

input into a cross-industry standard 

external port and in cross-industry 

standard format. The cross-industry 

standard port shall not require 

manipulation of a connector by the user. 

(2) Connection point for external 

audio processing devices. Products 

providing auditory output shall provide 

the auditory signal at a standard signal 

level through an industry standard 

connector. 

(3) TTY connectability. Products that 

provide a function allowing voice 

communication and which do not 

themselves provide a TTY functionality 

shall provide a standard non-acoustic 

connection point for TTYs. It shall also 

be possible for the user to easily turn 

any microphone on and off to allow the 

user to intermix speech with TTY use. 

(4) TTY signal compatibility. 

Products, including those providing 

voice communication functionality, 

shall support use of all crossmanufacturer non-proprietary standard 

signals used by TTYs. 

§§ 8.7–8.15 [Reserved] 

Subpart D—Recordkeeping and 

Enforcement 

§ 8.16 Generally. 

(a) The rules in this subpart regarding 

recordkeeping and enforcement are 

applicable to all manufacturers and 

service providers that are subject to the 

requirements of sections 255, 716, and 

718 of the Act. 

(b) The requirements set forth in 

§ 8.17 of this subpart shall be effective 

[DATE ONE YEAR AFTER THE 

EFFECTIVE DATE OF THE FINAL 

RULE]. 

§ 8.17 Recordkeeping. 

(a) Each manufacturer and service 

provider subject to sections 255, 716, or 

718 of the Act, must maintain, in the 

ordinary course of business and for a 

reasonable period, records of the efforts 

taken by such manufacturer or provider 

to implement sections 255, 716, and 

718, as applicable, including: 

(1) Information about the 

manufacturer’s or service provider’s 

efforts to consult with individuals with 

disabilities; 

(2) Descriptions of the accessibility 

features of its products and services; 

and 

(3) Information about the 

compatibility of its products and 

services with peripheral devices or 

specialized customer premise 

equipment commonly used by 

individuals with disabilities to achieve 

access. 

(b) An officer of each manufacturer 

and service provider subject to section 

255, 716, or 718 of the Act, must sign 

and file an annual compliance 

certificate with the Commission. The 


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officer must state in the certificate that 

he or she has personal knowledge that 

the manufacturer or service provider has 

established operating procedures that 

are adequate to ensure compliance with 

the rules in this subpart and that records 

are being kept in accordance with this 

section. The certificate shall identify the 

agent designated for service pursuant to 

§ 8.20(b) of this subpart and provide 

contact information for this agent. 

(c) Upon the service of a complaint, 

formal or informal, on a manufacturer or 

service provider under this section, a 

copy of the records maintained by the 

manufacturer or service provider that 

are directly relevant to the equipment or 

service that is the subject of the 

complaint shall be provided to the 

Commission in accordance with 

§ 8.21(a) of this subpart. Requests for 

confidential treatment of documents or 

information submitted under this 

section may be filed in accordance with 

§ 0.459 of this chapter. 

(d) In response to a filed formal or 

informal complaint, a manufacturer or 

service provider may, instead of 

providing a duplicate document, record 

or other information directly related to 

the equipment or service that is the 

subject of the complaint, direct the 

Commission to documents or records 

already in the Commission’s possession 

by providing sufficient specificity for 

Commission staff to locate the relevant 

record or document or portion thereof, 

including (title of proceeding or report, 

date, page/para. #s, etc.). 

§ 8.18 Informal or formal complaints. 

Complaints against manufacturers or 

service providers, as defined under this 

subpart, for alleged violations of this 

subpart may be either informal or 

formal. 

§ 8.19 Informal complaints; form and 

content. 

(a) An informal complaint alleging a 

violation of sections 255, 716 or 718 of 

the Act or this chapter may be 

transmitted to the Commission via any 

reasonable means, e.g., letter, facsimile 

transmission, telephone (202–418–2517 

(voice); 202–418–2922 (TTY)), Internete-mail (dro@fcc.gov), audio-cassette 

recording, and Braille. 

(b) An informal complaint shall 

include: 

(1) The name, address, e-mail address, 

and telephone number of the 

complainant; 

(2) The name and address of the 

manufacturer or service provider 

defendant against whom the complaint 

is made; 

(3) The date or dates on which the 

complainant or person on whose behalf 

the complaint is being filed either 

purchased, acquired, or used or 

attempted to purchase, acquire, or use 

the equipment or service about which 

the complaint is being made; 

(4) A complete statement of fact 

explaining why the complainant 

contends that the defendant 

manufacturer or provider is in violation 

of section 255, 716 or 718 of the Act or 

this chapter, including details regarding 

the service or equipment and the relief 

requested, and all documentation that 

supports the complainant’s contention; 

(5) The complainant’s preferred 

format or method of response to the 

complaint by the Commission and 

defendant (e.g., letter, facsimile 

transmission, telephone (voice/TRS/ 

TTY), Internet e-mail, audio-cassette 

recording, Braille; or some other method 

that will best accommodate the 

complainant’s disability, if any; and 

(6) Any other information that is 

required by the Commission’s 

accessibility complaint form. 

§ 8.20 Procedure; designation of agents 

for service. 

(a) The Commission shall promptly 

forward any informal complaint meeting 

the requirements of § 8.19 of this 

subpart to each manufacturer and 

service provider named in or 

determined by the staff to be implicated 

by the complaint. 

(b) To ensure prompt and effective 

service of informal and formal 

complaints filed under this subpart, 

every manufacturer and service provider 

subject to the requirements of section 

255, 716, or 718 of the Act and this 

subpart, shall designate an agent, and 

may designate additional agents if it so 

chooses, upon whom service may be 

made of all notices, inquiries, orders, 

decisions, and other pronouncements of 

the Commission in any matter before the 

Commission. Such designation shall 

include, for the manufacturer or the 

service provider, a name or department 

designation, business address, 

telephone number, and, if available TTY 

number, facsimile number, and Internet 

e-mail address. 

§ 8.21 Answers and replies to informal 

complaints. 

(a) Any manufacturer or service 

provider to whom an informal 

complaint is directed by the 

Commission under this subpart shall 

file and serve an answer. The answer 

shall: 

(1) Be filed with the Commission and 

served on the complainant within 

twenty days of service of the complaint, 

unless the Commission or its staff 

specifies another time period; 

(2) Respond specifically to each 

material allegation in the complaint; 

(3) Set forth the steps taken by the 

manufacturer or service provider to 

make the product or service accessible 

and usable; 

(4) Set forth the procedures and 

processes used by the manufacturer or 

service provider to evaluate whether it 

was achievable to make the product or 

service accessible and usable; 

(5) Set forth the names, titles, and 

responsibilities of each decision maker 

in the evaluation process; 

(6) Set forth the manufacturer’s basis 

for determining that it was not 

achievable to make the product or 

service accessible and usable; 

(7) Provide all documents supporting 

the manufacturer’s or service provider’s 

conclusion that it was not achievable to 

make the product or service accessible 

and usable; 

(8) Include a certification by an officer 

of the manufacturer or service provider 

that it was not achievable to make the 

product or service accessible and 

usable; 

(9) Set forth any claimed defenses; 

(10) Set forth any remedial actions 

already taken or proposed alternative 

relief without any prejudice to any 

denials or defenses raised; 

(11) Provide any other information or 

materials specified by the Commission 

as relevant to its consideration of the 

complaint; and 

(12) Must be prepared or formatted in 

the manner requested by the 

Commission and the complainant, 

unless otherwise permitted by the 

Commission for good cause shown. 

(b) The complainant may file and 

serve a reply. The reply shall: 

(1) Be served on the Commission and 

the complainant within ten days after 

service of answer, unless otherwise 

directed by the Commission; 

(2) Be responsive to matters contained 

in the answer and shall not contain new 

matters. 

§ 8.22 Review and disposition of informal 

complaints. 

(a) The Commission will investigate 

the allegations in any informal 

complaint filed that satisfies the 

requirements of § 8.18(b) of this subpart, 

and, within 180 days after the date on 

which such complaint was filed with 

the Commission, issue an order finding 

whether the manufacturer or service 

provider that is the subject of the 

complaint violated section 255, 716, or 

718 of the Act, or the Commission’s 

implementing rules, and provide a basis 

therefor, unless such complaint is 

resolved before that time. 

(b) If the Commission determines in 

an order issued pursuant to paragraph 


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(a) of this section that the manufacturer 

or service provider violated section 255, 

716, or 718 of the Act, or the 

Commission’s implementing rules, the 

Commission may, in such order, or in a 

subsequent order: 

(1) Direct the manufacturer or service 

provider to bring the service, or in the 

case of a manufacturer, the next 

generation of the equipment or device, 

into compliance with the requirements 

of sections 255, 716, or 718 of the Act, 

and the Commission’s rules, within a 

reasonable period of time; and 

(2) Take such other enforcement 

action as the Commission is authorized 

and as it deems appropriate. 

(c) Any manufacturer or service 

provider that is the subject of an order 

issued pursuant to paragraph (b)(1) of 

this section shall have a reasonable 

opportunity, as established by the 

Commission, to comment on the 

Commission’s proposed remedial action 

before the Commission issues a final 

order with respect to that action. 

§ 8.23 General pleading requirements. 

Formal complaint proceedings are 

generally resolved on a written record 

consisting of a complaint, answer, and 

joint statement of stipulated facts, 

disputed facts and key legal issues, 

along with all associated affidavits, 

exhibits and other attachments. 

Commission proceedings may also 

require or permit other written 

submissions such as briefs, written 

interrogatories, and other 

supplementary documents or pleadings. 

(a) Pleadings must be clear, concise, 

and explicit. All matters concerning a 

claim, defense or requested remedy, 

including damages, should be pleaded 

fully and with specificity. 

(b) Pleadings must contain facts 

which, if true, are sufficient to 

constitute a violation of the Act or 

Commission order or regulation, or a 

defense to such alleged violation. 

(c) Facts must be supported by 

relevant documentation or affidavit. 

(d) Legal arguments must be 

supported by appropriate judicial, 

Commission, or statutory authority. 

(e) Opposing authorities must be 

distinguished. 

(f) Copies must be provided of all 

non-Commission authorities relied upon 

which are not routinely available in 

national reporting systems, such as 

unpublished decisions or slip opinions 

of courts or administrative agencies. 

(g) Parties are responsible for the 

continuing accuracy and completeness 

of all information and supporting 

authority furnished in a pending 

complaint proceeding. Information 

submitted, as well as relevant legal 

authorities, must be current and 

updated as necessary and in a timely 

manner at any time before a decision is 

rendered on the merits of the complaint. 

(h) All statements purporting to 

summarize or explain Commission 

orders or policies must cite, in standard 

legal form, the Commission ruling upon 

which such statements are based. 

(i) Pleadings shall identify the name, 

address, telephone number, and 

facsimile transmission number for either 

the filing party’s attorney or, where a 

party is not represented by an attorney, 

the filing party. 

§ 8.24 Format and content of formal 

complaints. 

(a) Subject to paragraph (e) of this 

section governing supplemental 

complaints filed pursuant to § 8.25 of 

this subpart, a formal complaint shall 

contain: 

(1) The name of each complainant and 

defendant; 

(2) The occupation, address and 

telephone number of each complainant 

and, to the extent known, each 

defendant; 

(3) The name, address, and telephone 

number of complainant’s attorney, if 

represented by counsel; 

(4) Citation to the section of the 

Communications Act and/or order and/ 

or regulation of the Commission alleged 

to have been violated. 

(5) A complete statement of facts 

which, if proven true, would constitute 

such a violation. All material facts must 

be supported, pursuant to the 

requirements of § 8.30(c) of this subpart 

and paragraph (a)(11) of this section, by 

relevant affidavits and documentation, 

including copies of relevant written 

agreements, offers, counter-offers, 

denials, or other related 

correspondence. The statement of facts 

shall include a detailed explanation of 

the manner and time period in which a 

defendant has allegedly violated the 

Act, Commission order, or Commission 

rule in question, including a full 

identification or description of the 

communications, transmissions, 

services, or other carrier conduct 

complained of and the nature of any 

injury allegedly sustained by the 

complainant. Assertions based on 

information and belief are expressly 

prohibited unless made in good faith 

and accompanied by an affidavit 

explaining the basis for the plaintiff’s 

belief and why the complainant could 

not reasonably ascertain the facts from 

the defendant or any other source; 

(6) Proposed findings of fact, 

conclusions of law, and legal analysis 

relevant to the claims and arguments set 

forth in the complaint; 

(7) The relief sought, including 

recovery of damages and the amount of 

damages claimed, if known; 

(8) Certification that the complainant 

has, in good faith, discussed or 

attempted to discuss the possibility of 

settlement with each defendant prior to 

the filing of the formal complaint. Such 

certification shall include a statement 

that, prior to the filing of the complaint, 

the complainant mailed a certified letter 

outlining the allegations that form the 

basis of the complaint it anticipated 

filing with the Commission to the 

defendant carrier or one of the 

defendant’s registered agents for service 

of process that invited a response within 

a reasonable period of time and a brief 

summary of all additional steps taken to 

resolve the dispute prior to the filing of 

the formal complaint. If no additional 

steps were taken, such certificate shall 

state the reason(s) why the complainant 

believed such steps would be fruitless; 

(9) Whether a separate action has been 

filed with the Commission, any court, or 

other government agency that is based 

on the same claim or same set of facts, 

in whole or in part, or whether the 

complaint seeks prospective relief 

identical to the relief proposed or at 

issue in a notice-and-comment 

proceeding that is concurrently before 

the Commission; 

(10) An information designation 

containing: 

(i) The name, address, and position of 

each individual believed to have 

firsthand knowledge of the facts alleged 

with particularity in the complaint, 

along with a description of the facts 

within any such individual’s 

knowledge; 

(ii) A description of all documents, 

data compilations and tangible things in 

the complainant’s possession, custody, 

or control, that are relevant to the facts 

alleged with particularity in the 

complaint. Such description shall 

include for each document: 

(A) The date it was prepared, mailed, 

transmitted, or otherwise disseminated; 

(B) The author, preparer, or other 

source; 

(C) The recipient(s) or intended 

recipient(s); 

(D) Its physical location; and 

(E) A description of its relevance to 

the matters contained in the complaint; 

and 

(iii) A complete description of the 

manner in which the complainant 

identified all persons with information 

and designated all documents, data 

compilations and tangible things as 

being relevant to the dispute, including, 

but not limited to, identifying the 

individual(s) that conducted the 

information search and the criteria used 


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to identify such persons, documents, 

data compilations, tangible things, and 

information; 

(11) Copies of all affidavits, 

documents, data compilations and 

tangible things in the complainant’s 

possession, custody, or control, upon 

which the complainant relies or intends 

to rely to support the facts alleged and 

legal arguments made in the complaint; 

(12) A completed Formal Complaint 

Intake Form; 

(13) A declaration, under penalty of 

perjury, by the complainant or 

complainant’s counsel describing the 

amount, method, and the complainant’s 

10-digit FCC Registration Number, if 

any; 

(14) A certificate of service; and 

(15) A FCC Registration Number is 

required under part 1, subpart W. 

Submission of a complaint without the 

FCC Registration Number as required by 

part 1, subpart W will result in 

dismissal of the complaint. 

(b) The following format may be used 

in cases to which it is applicable, with 

such modifications as the circumstances 

may render necessary: 

Before the Federal Communications 

Commission, Washington, DC 20554 

In the matter of 

Complainant, 

v. 

Defendant. 

File No. (To be inserted by the Enforcement 

Bureau) 

Complaint 

To: The Commission. 

The complainant (here insert full name of 

each complainant and, if a corporation, the 

corporate title of such complainant) shows 

that: 

(1) (Here state post office address, and 

telephone number of each complainant). 

(2) (Here insert the name, and, to the extent 

known, address and telephone number of 

defendants). 

(3) (Here insert fully and clearly the specific 

act or thing complained of, together with 

such facts as are necessary to give a full 

understanding of the matter, including 

relevant legal and documentary support). 

Wherefore, complainant asks (here state 

specifically the relief desired). 

(Date) 

(Name of each complainant) 

(Name, address, and telephone number of 

attorney, if any) 

(c) The complainant may petition the 

staff, pursuant to § 1.3 of this chapter, 

for a waiver of any of the requirements 

of this section. Such waiver may be 

granted for good cause shown. 

(d) Supplemental complaints: 

(1) Supplemental complaints filed 

pursuant to § 8.25 shall conform to the 

requirements set out in this section and 

§ 8.23 of this subpart, except that the 

requirements in §§ 8.23(b), 8.24(a)(4), 

(a)(5), (a)(8), (a)(9), (a)(12), and (a)(13) of 

this subpart shall not apply to such 

supplemental complaints; 

(2) In addition, supplemental 

complaints filed pursuant to § 8.25 of 

this subpart shall contain a complete 

statement of facts which, if proven true, 

would support complainant’s 

calculation of damages for each category 

of damages for which recovery is 

sought. All material facts must be 

supported, pursuant to the requirements 

of § 8.23(c) of this subpart and 

paragraph (a)(11) of this section, by 

relevant affidavits and other 

documentation. The statement of facts 

shall include a detailed explanation of 

the matters relied upon, including a full 

identification or description of the 

communications, transmissions, 

services, or other matters relevant to the 

calculation of damages and the nature of 

any injury allegedly sustained by the 

complainant. Assertions based on 

information and belief are expressly 

prohibited unless made in good faith 

and accompanied by an affidavit 

explaining the basis for the 

complainant’s belief and why the 

complainant could not reasonably 

ascertain the facts from the defendant or 

any other source; 

(3) Supplemental complaints filed 

pursuant to § 8.25 of this subpart shall 

contain a certification that the 

complainant has, in good faith, 

discussed or attempted to discuss the 

possibility of settlement with respect to 

damages for which recovery is sought 

with each defendant prior to the filing 

of the supplemental complaint. Such 

certification shall include a statement 

that, no later than 30 days after the 

release of the liability order, the 

complainant mailed a certified letter to 

the primary individual who represented 

the defendant carrier during the initial 

complaint proceeding outlining the 

allegations that form the basis of the 

supplemental complaint it anticipates 

filing with the Commission and inviting 

a response from the carrier within a 

reasonable period of time. The 

certification shall also contain a brief 

summary of all additional steps taken to 

resolve the dispute prior to the filing of 

the supplemental complaint. If no 

additional steps were taken, such 

certification shall state the reason(s) 

why the complainant believed such 

steps would be fruitless. 

§ 8.25 Damages. 

(a) A complaint against a common 

carrier may seek damages. If a 

complainant wishes to recover damages, 

the complaint must contain a clear and 

unequivocal request for damages. 

(b) If a complainant wishes a 

determination of damages to be made in 

the same proceeding as the 

determinations of liability and 

prospective relief, the complaint must 

contain the allegations and information 

required by paragraph (h) of this 

section. 

(c) Notwithstanding paragraph (b) of 

this section, in any proceeding to which 

no statutory deadline applies, if the 

Commission decides that a 

determination of damages would best be 

made in a proceeding that is separate 

from and subsequent to the proceeding 

in which the determinations of liability 

and prospective relief are made, the 

Commission may at any time order that 

the initial proceeding will determine 

only liability and prospective relief, and 

that a separate, subsequent proceeding 

initiated in accordance with paragraph 

(e) of this section will determine 

damages. 

(d) If a complainant wishes a 

determination of damages to be made in 

a proceeding that is separate from and 

subsequent to the proceeding in which 

the determinations of liability and 

prospective relief are made, the 

complainant must: 

(1) Comply with paragraph (a) of this 

section, and 

(2) State clearly and unequivocally 

that the complainant wishes a 

determination of damages to be made in 

a proceeding that is separate from and 

subsequent to the proceeding in which 

the determinations of liability and 

prospective relief will be made. 

(e) If a complainant proceeds 

pursuant to paragraph (d) of this 

section, or if the Commission invokes its 

authority under paragraph (c) of this 

section, the complainant may initiate a 

separate proceeding to obtain a 

determination of damages by filing a 

supplemental complaint that complies 

with § 8.24(d) of this subpart and 

paragraph (h) of this section within 

sixty days after public notice (as defined 

in § 1.4(b) of this chapter) of a decision 

that contains a finding of liability on the 

merits of the original complaint. 

(f) If a complainant files a 

supplemental complaint for damages in 

accordance with paragraph (e) of this 

section, the supplemental complaint 

shall be deemed, for statutory 

limitations purposes, to relate back to 

the date of the original complaint. 

(g) Where a complainant chooses to 

seek the recovery of damages upon a 

supplemental complaint in accordance 

with the requirements of paragraph (e) 

of this section, the Commission will 

resolve the separate, preceding liability 

complaint within any applicable 


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complaint resolution deadlines 

contained in the Act. 

(h) In all cases in which recovery of 

damages is sought, it shall be the 

responsibility of the complainant to 

include, within either the complaint or 

supplemental complaint for damages 

filed in accordance with paragraph (e) of 

this section, either: 

(1) A computation of each and every 

category of damages for which recovery 

is sought, along with an identification of 

all relevant documents and materials or 

such other evidence to be used by the 

complainant to determine the amount of 

such damages; or 

(2) An explanation of: 

(i) The information not in the 

possession of the complaining party that 

is necessary to develop a detailed 

computation of damages; 

(ii) Why such information is 

unavailable to the complaining party; 

(iii) The factual basis the complainant 

has for believing that such evidence of 

damages exists; 

(iv) A detailed outline of the 

methodology that would be used to 

create a computation of damages with 

such evidence. 

(i) Where a complainant files a 

supplemental complaint for damages in 

accordance with paragraph (e) of this 

section, the following procedures may 

apply: 

(1) Issues concerning the amount, if 

any, of damages may be either 

designated by the Enforcement Bureau 

for hearing before, or, if the parties 

agree, submitted for mediation to, a 

Commission Administrative Law Judge. 

Such Administrative Law Judge shall be 

chosen in the following manner: 

(i) By agreement of the parties and the 

Chief Administrative Law Judge; or 

(ii) In the absence of such agreement, 

the Chief Administrative Law Judge 

shall designate the Administrative Law 

Judge. 

(2) The Commission may, in its 

discretion, order the defendant either to 

post a bond for, or deposit into an 

interest bearing escrow account, a sum 

equal to the amount of damages which 

the Commission finds, upon 

preliminary investigation, is likely to be 

ordered after the issue of damages is 

fully litigated, or some lesser sum which 

may be appropriate, provided the 

Commission finds that the grant of this 

relief is favored on balance upon 

consideration of the following factors: 

(i) The complainant’s potential 

irreparable injury in the absence of such 

deposit; 

(ii) The extent to which damages can 

be accurately calculated; 

(iii) The balance of the hardships 

between the complainant and the 

defendant; and 

(iv) Whether public interest 

considerations favor the posting of the 

bond or ordering of the deposit. 

(3) The Commission may, in its 

discretion, suspend ongoing damages 

proceedings for fourteen days, to 

provide the parties with a time within 

which to pursue settlement negotiations 

and/or alternative dispute resolution 

procedures. 

(4) The Commission may, in its 

discretion, end adjudication of damages 

with a determination of the sufficiency 

of a damages computation method or 

formula. No such method or formula 

shall contain a provision to offset any 

claim of the defendant against the 

complainant. The parties shall negotiate 

in good faith to reach an agreement on 

the exact amount of damages pursuant 

to the Commission-mandated method or 

formula. Within thirty days of the 

release date of the damages order, 

parties shall submit jointly to the 

Commission either: 

(i) A statement detailing the parties’ 

agreement as to the amount of damages; 

(ii) A statement that the parties are 

continuing to negotiate in good faith 

and a request that the parties be given 

an extension of time to continue 

negotiations; or 

(iii) A statement detailing the bases 

for the continuing dispute and the 

reasons why no agreement can be 

reached. 

(j) Except where otherwise indicated, 

the rules governing initial formal 

complaint proceedings govern 

supplemental formal complaint 

proceedings, as well. 

§ 8.26 Joinder of complainants and causes 

of action. 

(a) Two or more complainants may 

join in one complaint if their respective 

causes of action are against the same 

defendant and concern substantially the 

same facts and alleged violation of the 

Communications Act. 

(b) Two or more grounds of complaint 

involving the same principle, subject, or 

statement of facts may be included in 

one complaint, but should be separately 

stated and numbered. 

§ 8.27 Answers. 

(a) Any defendant upon whom copy 

of a formal complaint is served shall 

answer such complaint in the manner 

prescribed under this section within 

twenty days of service of the formal 

complaint by the complainant, unless 

otherwise directed by the Commission. 

(b) The answer shall advise the 

complainant and the Commission fully 

and completely of the nature of any 

defense, and shall respond specifically 

to all material allegations of the 

complaint. Every effort shall be made to 

narrow the issues in the answer. The 

defendant shall state concisely its 

defense to each claim asserted, admit or 

deny the averments on which the 

complainant relies, and state in detail 

the basis for admitting or denying such 

averment. General denials are 

prohibited. Denials based on 

information and belief are expressly 

prohibited unless made in good faith 

and accompanied by an affidavit 

explaining the basis for the defendant’s 

belief and why the defendant could not 

reasonably ascertain the facts from the 

complainant or any other source. If the 

defendant is without knowledge or 

information sufficient to form a belief as 

to the truth of an averment, the 

defendant shall so state and this has the 

effect of a denial. When a defendant 

intends in good faith to deny only part 

of an averment, the defendant shall 

specify so much of it as is true and shall 

deny only the remainder. The defendant 

may deny the allegations of the 

complaint as specific denials of either 

designated averments or paragraphs. 

(c) The answer shall contain proposed 

findings of fact, conclusions of law, and 

legal analysis relevant to the claims and 

arguments set forth in the answer. 

(d) Averments in a complaint or 

supplemental complaint filed pursuant 

to § 8.25 of this subpart are deemed to 

be admitted when not denied in the 

answer. 

(e) Affirmative defenses to allegations 

contained in the complaint shall be 

specifically captioned as such and 

presented separately from any denials 

made in accordance with paragraph (c) 

of this section. 

(f) The answer shall include an 

information designation containing: 

(1) The name, address, and position of 

each individual believed to have 

firsthand knowledge of the facts alleged 

with particularity in the answer, along 

with a description of the facts within 

any such individual’s knowledge; 

(2) A description of all documents, 

data compilations and tangible things in 

the defendant’s possession, custody, or 

control, that are relevant to the facts 

alleged with particularity in the answer. 

Such description shall include for each 

document: 

(i) The date it was prepared, mailed, 

transmitted, or otherwise disseminated; 

(ii) The author, preparer, or other 

source; 

(iii) The recipient(s) or intended 

recipient(s); 

(iv) Its physical location; and 


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(v) A description of its relevance to 

the matters in dispute. 

(3) A complete description of the 

manner in which the defendant 

identified all persons with information 

and designated all documents, data 

compilations and tangible things as 

being relevant to the dispute, including, 

but not limited to, identifying the 

individual(s) that conducted the 

information search and the criteria used 

to identify such persons, documents, 

data compilations, tangible things, and 

information. 

(g) The answer shall attach copies of 

all affidavits, documents, data 

compilations and tangible things in the 

defendant’s possession, custody, or 

control, upon which the defendant 

relies or intends to rely to support the 

facts alleged and legal arguments made 

in the answer. 

(h) The answer shall contain 

certification that the defendant has, in 

good faith, discussed or attempted to 

discuss, the possibility of settlement 

with the complainant prior to the filing 

of the formal complaint. Such 

certification shall include a brief 

summary of all steps taken to resolve 

the dispute prior to the filing of the 

formal complaint. If no such steps were 

taken, such certificate shall state the 

reason(s) why the defendant believed 

such steps would be fruitless; 

(i) The defendant may petition the 

staff, pursuant to § 1.3 of this chapter, 

for a waiver of any of the requirements 

of this section. Such waiver may be 

granted for good cause shown. 

§ 8.28 Cross-complaints and 

counterclaims. 

Cross-complaints seeking any relief 

within the jurisdiction of the 

Commission against any party 

(complainant or defendant) to that 

proceeding are expressly prohibited. 

Any claim that might otherwise meet 

the requirements of a cross-complaint 

may be filed as a separate complaint in 

accordance with §§ 8.23 through 8.37 of 

this subpart. For purposes of this 

subpart, the term ‘‘cross-complaint’’ 

shall include counterclaims. 

§ 8.29 Replies. 

(a) Within three days after service of 

an answer containing affirmative 

defenses presented in accordance with 

the requirements of § 8.27(e) of this 

subpart, a complainant may file and 

serve a reply containing statements of 

relevant, material facts and legal 

arguments that shall be responsive to 

only those specific factual allegations 

and legal arguments made by the 

defendant in support of its affirmative 

defenses. Replies which contain other 

allegations or arguments will not be 

accepted or considered by the 

Commission. 

(b) Failure to reply to an affirmative 

defense shall be deemed an admission 

of such affirmative defense and of any 

facts supporting such affirmative 

defense that are not specifically 

contradicted in the complaint. 

(c) The reply shall contain proposed 

findings of fact, conclusions of law, and 

legal analysis relevant to the claims and 

arguments set forth in the reply. 

(d) The reply shall include an 

information designation containing: 

(1) The name, address and position of 

each individual believed to have 

firsthand knowledge about the facts 

alleged with particularity in the reply, 

along with a description of the facts 

within any such individual’s 

knowledge. 

(2) A description of all documents, 

data compilations and tangible things in 

the complainant’s possession, custody, 

or control that are relevant to the facts 

alleged with particularity in the reply. 

Such description shall include for each 

document: 

(i) The date prepared, mailed, 

transmitted, or otherwise disseminated; 

(ii) The author, preparer, or other 

source; 

(iii) The recipient(s) or intended 

recipient(s); 

(iv) Its physical location; and 

(v) A description of its relevance to 

the matters in dispute. 

(3) A complete description of the 

manner in which the complainant 

identified all persons with information 

and designated all documents, data 

compilations and tangible things as 

being relevant to the dispute, including, 

but not limited to, identifying the 

individual(s) that conducted the 

information search and the criteria used 

to identify such persons, documents, 

data compilations, tangible things, and 

information; 

(e) The reply shall attach copies of all 

affidavits, documents, data compilations 

and tangible things in the complainant’s 

possession, custody, or control upon 

which the complainant relies or intends 

to rely to support the facts alleged and 

legal arguments made in the reply. 

(f) The complainant may petition the 

staff, pursuant to § 1.3 of this chapter, 

for a waiver of any of the requirements 

of this section. Such waiver may be 

granted for good cause shown. 

§ 8.30 Motions. 

(a) A request to the Commission for an 

order shall be by written motion, stating 

with particularity the grounds and 

authority therefor, and setting forth the 

relief or order sought. 

(b) All dispositive motions shall 

contain proposed findings of fact and 

conclusions of law, with supporting 

legal analysis, relevant to the contents of 

the pleading. Motions to compel 

discovery must contain a certification 

by the moving party that a good faith 

attempt to resolve the dispute was made 

prior to filing the motion. All facts 

relied upon in motions must be 

supported by documentation or 

affidavits pursuant to the requirements 

of § 8.23(c) of this subpart, except for 

those facts of which official notice may 

be taken. 

(c) The moving party shall provide a 

proposed order for adoption, which 

appropriately incorporates the basis 

therefor, including proposed findings of 

fact and conclusions of law relevant to 

the pleading. The proposed order shall 

be clearly marked as a ‘‘Proposed 

Order.’’ The proposed order shall be 

submitted both as a hard copy and on 

computer disk in accordance with the 

requirements of § 8.36(d) of this subpart. 

Where appropriate, the proposed order 

format should conform to that of a 

reported FCC order. 

(d) Oppositions to any motion shall be 

accompanied by a proposed order for 

adoption, which appropriately 

incorporates the basis therefor, 

including proposed findings of fact and 

conclusions of law relevant to the 

pleading. The proposed order shall be 

clearly captioned as a ‘‘Proposed Order.’’ 

The proposed order shall be submitted 

both as a hard copy and on computer 

disk in accordance with the 

requirements of § 8.36(d) of this subpart. 

Where appropriate, the proposed order 

format should conform to that of a 

reported FCC order. 

(e) Oppositions to motions may be 

filed and served within five business 

days after the motion is filed and served 

and not after. Oppositions shall be 

limited to the specific issues and 

allegations contained in such motion; 

when a motion is incorporated in an 

answer to a complaint, the opposition to 

such motion shall not address any 

issues presented in the answer that are 

not also specifically raised in the 

motion. Failure to oppose any motion 

may constitute grounds for granting of 

the motion. 

(f) No reply may be filed to an 

opposition to a motion. 

(g) Motions seeking an order that the 

allegations in the complaint be made 

more definite and certain are prohibited. 

(h) Amendments or supplements to 

complaints to add new claims or 

requests for relief are prohibited. Parties 

are responsible, however, for the 

continuing accuracy and completeness 

of all information and supporting 


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13846 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

authority furnished in a pending 

complaint proceeding as required under 

§ 8.23(g) of this subpart. 

§ 8.31 Formal complaints not stating a 

cause of action; defective pleadings. 

(a) Any document purporting to be a 

formal complaint which does not state 

a cause of action under the 

Communications Act or a Commission 

rule or order will be dismissed. In such 

case, any amendment or supplement to 

such document will be considered a 

new filing which must be made within 

the statutory periods of limitations of 

actions contained in section 415 of the 

Communications Act. 

(b) Any other pleading filed in a 

formal complaint proceeding not in 

conformity with the requirements of the 

applicable rules in this part may be 

deemed defective. In such case the 

Commission may strike the pleading or 

request that specified defects be 

corrected and that proper pleadings be 

filed with the Commission and served 

on all parties within a prescribed time 

as a condition to being made a part of 

the record in the proceeding. 

§ 8.32 Discovery. 

(a) A complainant may file with the 

Commission and serve on a defendant, 

concurrently with its complaint, a 

request for up to ten written 

interrogatories. A defendant may file 

with the Commission and serve on a 

complainant, during the period starting 

with the service of the complaint and 

ending with the service of its answer, a 

request for up to ten written 

interrogatories. A complainant may file 

with the Commission and serve on a 

defendant, within three calendar days of 

service of the defendant’s answer, a 

request for up to five written 

interrogatories. Subparts of any 

interrogatory will be counted as separate 

interrogatories for purposes of 

compliance with this limit. Requests for 

interrogatories filed and served 

pursuant to this procedure may be used 

to seek discovery of any non-privileged 

matter that is relevant to the material 

facts in dispute in the pending 

proceeding, provided, however, that 

requests for interrogatories filed and 

served by a complainant after service of 

the defendant’s answer shall be limited 

in scope to specific factual allegations 

made by the defendant in support of its 

affirmative defenses. This procedure 

may not be employed for the purpose of 

delay, harassment or obtaining 

information that is beyond the scope of 

permissible inquiry related to the 

material facts in dispute in the pending 

proceeding. 

(b) Requests for interrogatories filed 

and served pursuant to paragraph (a) of 

this section shall contain a listing of the 

interrogatories requested and an 

explanation of why the information 

sought in each interrogatory is both 

necessary to the resolution of the 

dispute and not available from any other 

source. 

(c) A responding party shall file with 

the Commission and serve on the 

propounding party any opposition and 

objections to the requests for 

interrogatories as follows: 

(1) By the defendant, within ten 

calendar days of service of the requests 

for interrogatories served 

simultaneously with the complaint and 

within five calendar days of the requests 

for interrogatories served following 

service of the answer; 

(2) By the complainant, within five 

calendar days of service of the requests 

for interrogatories; and 

(3) In no event less than three 

calendar days prior to the initial status 

conference as provided for in § 8.35(a) 

of this subpart. 

(d) Commission staff will consider the 

requests for interrogatories, properly 

filed and served pursuant to paragraph 

(a) of this section, along with any 

objections or oppositions thereto, 

properly filed and served pursuant to 

paragraph (b) of this section, at the 

initial status conference, as provided for 

in § 8.35(a)(5) of this subpart, and at that 

time determine the interrogatories, if 

any, to which parties shall respond, and 

set the schedule of such response. 

(e) The interrogatories ordered to be 

answered pursuant to paragraph (d) of 

this section are to be answered 

separately and fully in writing under 

oath or affirmation by the party served, 

or if such party is a public or private 

corporation or partnership or 

association, by any officer or agent who 

shall furnish such information as is 

available to the party. The answers shall 

be signed by the person making them. 

The answers shall be filed with the 

Commission and served on the 

propounding party. 

(f) A propounding party asserting that 

a responding party has provided an 

inadequate or insufficient response to a 

Commission-ordered discovery request 

may file a motion to compel within ten 

days of the service of such response, or 

as otherwise directed by Commission 

staff, pursuant to the requirements of 

§ 8.30 of this subpart. 

(g) The Commission may, in its 

discretion, require parties to provide 

documents to the Commission in a 

scanned or other electronic format that 

provides: 

(1) Indexing by useful identifying 

information about the documents; and 

(2) Technology that allows staff to 

annotate the index so as to make the 

format an efficient means of reviewing 

the documents. 

(h) The Commission may allow 

additional discovery, including, but not 

limited to, document production, 

depositions and/or additional 

interrogatories. In its discretion, the 

Commission may modify the scope, 

means and scheduling of discovery in 

light of the needs of a particular case 

and the requirements of applicable 

statutory deadlines. 

§ 8.33 Confidentiality of information 

produced or exchanged by the parties. 

(a) Any materials generated in the 

course of a formal complaint proceeding 

may be designated as proprietary by that 

party if the party believes in good faith 

that the materials fall within an 

exemption to disclosure contained in 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552(b)(1) through (9). Any party 

asserting confidentiality for such 

materials shall so indicate by clearly 

marking each page, or portion thereof, 

for which a proprietary designation is 

claimed. If a proprietary designation is 

challenged, the party claiming 

confidentiality shall have the burden of 

demonstrating, by a preponderance of 

the evidence, that the material 

designated as proprietary falls under the 

standards for nondisclosure enunciated 

in the FOIA. 

(b) Materials marked as proprietary 

may be disclosed solely to the following 

persons, only for use in prosecuting or 

defending a party to the complaint 

action, and only to the extent necessary 

to assist in the prosecution or defense of 

the case: 

(1) Counsel of record representing the 

parties in the complaint action and any 

support personnel employed by such 

attorneys; 

(2) Officers or employees of the 

opposing party who are named by the 

opposing party as being directly 

involved in the prosecution or defense 

of the case; 

(3) Consultants or expert witnesses 

retained by the parties; 

(4) The Commission and its staff; and 

(5) Court reporters and stenographers 

in accordance with the terms and 

conditions of this section. 

(c) These individuals shall not 

disclose information designated as 

proprietary to any person who is not 

authorized under this section to receive 

such information, and shall not use the 

information in any activity or function 

other than the prosecution or defense in 

the case before the Commission. Each 


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individual who is provided access to the 

information shall sign a notarized 

statement affirmatively stating that the 

individual has personally reviewed the 

Commission’s rules and understands the 

limitations they impose on the signing 

party. 

(d) No copies of materials marked 

proprietary may be made except copies 

to be used by persons designated in 

paragraph (b) of this section. Each party 

shall maintain a log recording the 

number of copies made of all 

proprietary material and the persons to 

whom the copies have been provided. 

(e) Upon termination of a formal 

complaint proceeding, including all 

appeals and petitions, all originals and 

reproductions of any proprietary 

materials, along with the log recording 

persons who received copies of such 

materials, shall be provided to the 

producing party. In addition, upon final 

termination of the complaint 

proceeding, any notes or other work 

product derived in whole or in part 

from the proprietary materials of an 

opposing or third party shall be 

destroyed. 

§ 8.34 Other required written submissions. 

(a) The Commission may, in its 

discretion, or upon a party’s motion 

showing good cause, require the parties 

to file briefs summarizing the facts and 

issues presented in the pleadings and 

other record evidence. 

(b) Unless otherwise directed by the 

Commission, all briefs shall include all 

legal and factual claims and defenses 

previously set forth in the complaint, 

answer, or any other pleading submitted 

in the proceeding. Claims and defenses 

previously made but not reflected in the 

briefs will be deemed abandoned. The 

Commission may, in its discretion, limit 

the scope of any briefs to certain 

subjects or issues. A party shall attach 

to its brief copies of all documents, data 

compilations, tangible things, and 

affidavits upon which such party relies 

or intends to rely to support the facts 

alleged and legal arguments made in its 

brief and such brief shall contain a full 

explanation of how each attachment is 

relevant to the issues and matters in 

dispute. All such attachments to a brief 

shall be documents, data compilations 

or tangible things, or affidavits made by 

persons, that were identified by any 

party in its information designations 

filed pursuant to §§ 8.24(a)(10)(i), 

(a)(10)(ii), 8.27(f)(1), (f)(2), and 

8.29(d)(1), (d)(2) of this subpart. Any 

other supporting documentation or 

affidavits that is attached to a brief must 

be accompanied by a full explanation of 

the relevance of such materials and why 

such materials were not identified in the 

information designations. These briefs 

shall contain the proposed findings of 

fact and conclusions of law which the 

filing party is urging the Commission to 

adopt, with specific citation to the 

record, and supporting relevant 

authority and analysis. 

(c) In cases in which discovery is not 

conducted, absent an order by the 

Commission that briefs be filed, parties 

may not submit briefs. If the 

Commission does authorize the filing of 

briefs in cases in which discovery is not 

conducted, briefs shall be filed 

concurrently by both the complainant 

and defendant at such time as 

designated by the Commission staff and 

in accordance with the provisions of 

this section. 

(d) In cases in which discovery is 

conducted, briefs shall be filed 

concurrently by both the complainant 

and defendant at such time designated 

by the Commission staff. 

(e) Briefs containing information 

which is claimed by an opposing or 

third party to be proprietary under 

§ 8.33 of this subpart shall be submitted 

to the Commission in confidence 

pursuant to the requirements of § 0.459 

of this chapter and clearly marked ‘‘Not 

for Public Inspection.’’ An edited 

version removing all proprietary data 

shall also be filed with the Commission 

for inclusion in the public file. Edited 

versions shall be filed within five days 

from the date the unedited brief is 

submitted, and served on opposing 

parties. 

(f) Initial briefs shall be no longer than 

twenty-five pages. Reply briefs shall be 

no longer than ten pages. Either on its 

own motion or upon proper motion by 

a party, the Commission staff may 

establish other page limits for briefs. 

(g) The Commission may require the 

parties to submit any additional 

information it deems appropriate for a 

full, fair, and expeditious resolution of 

the proceeding, including affidavits and 

exhibits. 

(h) The parties shall submit a joint 

statement of stipulated facts, disputed 

facts, and key legal issues no later than 

two business days prior to the initial 

status conference, scheduled in 

accordance with the provisions of 

§ 8.35(a) of this subpart. 

§ 8.35 Status conference. 

(a) In any complaint proceeding, the 

Commission may, in its discretion, 

direct the attorneys and/or the parties to 

appear before it for a status conference. 

Unless otherwise ordered by the 

Commission, an initial status conference 

shall take place, at the time and place 

designated by the Commission staff, ten 

business days after the date the answer 

is due to be filed. A status conference 

may include discussion of: 

(1) Simplification or narrowing of the 

issues; 

(2) The necessity for or desirability of 

additional pleadings or evidentiary 

submissions; 

(3) Obtaining admissions of fact or 

stipulations between the parties as to 

any or all of the matters in controversy; 

(4) Settlement of all or some of the 

matters in controversy by agreement of 

the parties; 

(5) Whether discovery is necessary 

and, if so, the scope, type and schedule 

for such discovery; 

(6) The schedule for the remainder of 

the case and the dates for any further 

status conferences; and 

(7) Such other matters that may aid in 

the disposition of the complaint. 

(b)(1) Parties shall meet and confer 

prior to the initial status conference to 

discuss: 

(i) Settlement prospects; 

(ii) Discovery; 

(iii) Issues in dispute; 

(iv) Schedules for pleadings; 

(v) Joint statement of stipulated facts, 

disputed facts, and key legal issues; and 

(2) Parties shall submit a joint 

statement of all proposals agreed to and 

disputes remaining as a result of such 

meeting to Commission staff at least two 

business days prior to the scheduled 

initial status conference. 

(c) In addition to the initial status 

conference referenced in paragraph (a) 

of this section, any party may also 

request that a conference be held at any 

time after the complaint has been filed. 

(d) During a status conference, the 

Commission staff may issue oral rulings 

pertaining to a variety of interlocutory 

matters relevant to the conduct of a 

formal complaint proceeding including, 

inter alia, procedural matters, discovery, 

and the submission of briefs or other 

evidentiary materials. 

(e) Parties may make, upon written 

notice to the Commission and all 

attending parties at least three business 

days prior to the status conference, an 

audio recording of the Commission 

staff’s summary of its oral rulings. 

Alternatively, upon agreement among 

all attending parties and written notice 

to the Commission at least three 

business days prior to the status 

conference, the parties may make an 

audio recording of, or use a 

stenographer to transcribe, the oral 

presentations and exchanges between 

and among the participating parties, 

insofar as such communications are ‘‘onthe-record’’ as determined by the 

Commission staff, as well as the 

Commission staff’s summary of its oral 

rulings. A complete transcript of any 


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13848 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

audio recording or stenographic 

transcription shall be filed with the 

Commission as part of the record, 

pursuant to the provisions of paragraph 

(f)(2) of this section. The parties shall 

make all necessary arrangements for the 

use of a stenographer and the cost of 

transcription, absent agreement to the 

contrary, will be shared equally by all 

parties that agree to make the record of 

the status conference. 

(f) The parties in attendance, unless 

otherwise directed, shall either: 

(1) Submit a joint proposed order 

memorializing the oral rulings made 

during the conference to the 

Commission by 5:30 p.m., Eastern Time, 

on the business day following the date 

of the status conference, or as otherwise 

directed by Commission staff. In the 

event the parties in attendance cannot 

reach agreement as to the rulings that 

were made, the joint proposed order 

shall include the rulings on which the 

parties agree, and each party’s 

alternative proposed rulings for those 

rulings on which they cannot agree. 

Commission staff will review and make 

revisions, if necessary, prior to signing 

and filing the submission as part of the 

record. The proposed order shall be 

submitted both as hard copy and on 

computer disk in accordance with the 

requirements of § 8.36(d) of this subpart; 

or 

(2) Pursuant to the requirements of 

paragraph (e) of this section, submit to 

the Commission by 5:30 p.m., Eastern 

Time, on the third business day 

following the status conference or as 

otherwise directed by Commission staff 

either: 

(i) A transcript of the audio recording 

of the Commission staff’s summary of its 

oral rulings; 

(ii) A transcript of the audio recording 

of the oral presentations and exchanges 

between and among the participating 

parties, insofar as such communications 

are ‘‘on-the-record’’ as determined by the 

Commission staff, and the Commission 

staff’s summary of its oral rulings; or 

(iii) A stenographic transcript of the 

oral presentations and exchanges 

between and among the participating 

parties, insofar as such communications 

are ‘‘on-the-record’’ as determined by the 

Commission staff, and the Commission 

staff’s summary of its oral rulings. 

(g) Status conferences will be 

scheduled by the Commission staff at 

such time and place as it may designate 

to be conducted in person or by 

telephone conference call. 

(h) The failure of any attorney or 

party, following reasonable notice, to 

appear at a scheduled conference will 

be deemed a waiver by that party and 

will not preclude the Commission staff 

from conferring with those parties and/ 

or counsel present. 

§ 8.36 Specifications as to pleadings, 

briefs, and other documents; subscription. 

(a) All papers filed in any formal 

complaint proceeding must be drawn in 

conformity with the requirements of 

§§ 1.49 and 1.50 of this chapter. 

(b) All averments of claims or 

defenses in complaints and answers 

shall be made in numbered paragraphs. 

The contents of each paragraph shall be 

limited as far as practicable to a 

statement of a single set of 

circumstances. Each claim founded on a 

separate transaction or occurrence and 

each affirmative defense shall be 

separately stated to facilitate the clear 

presentation of the matters set forth. 

(c) The original of all pleadings and 

other submissions filed by any party 

shall be signed by the party, or by the 

party’s attorney. The signing party shall 

include in the document his or her 

address, telephone number, facsimile 

number and the date on which the 

document was signed. Copies should be 

conformed to the original. Unless 

specifically required by rule or statute, 

pleadings need not be verified. The 

signature of an attorney or party shall be 

a certificate that the attorney or party 

has read the pleading, motion, or other 

paper; that to the best of his or her 

knowledge, information, and belief 

formed after reasonable inquiry, it is 

well grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and that it is 

not interposed solely for purposes of 

delay or for any other improper 

purpose. 

(d) All proposed orders shall be 

submitted both as hard copies and on 

computer disk formatted to be 

compatible with the Commission’s 

computer system and using the 

Commission’s current word processing 

software. Each disk should be submitted 

in ‘‘read only’’ mode. Each disk should 

be clearly labeled with the party’s name, 

proceeding, type of pleading, and date 

of submission. Each disk should be 

accompanied by a cover letter. Parties 

who have submitted copies of tariffs or 

reports with their hard copies need not 

include such tariffs or reports on the 

disk. Upon showing of good cause, the 

Commission may waive the 

requirements of this paragraph. 

§ 8.37 Copies; service; separate filings 

against multiple defendants. 

(a) Complaints may generally be 

brought against only one named 

defendant; such actions may not be 

brought against multiple defendants 

unless the defendants are commonly 

owned or controlled, are alleged to have 

acted in concert, are alleged to be jointly 

liable to complainant, or the complaint 

concerns common questions of law or 

fact. Complaints may, however, be 

consolidated by the Commission for 

disposition. 

(b) The complainant shall file an 

original copy of the complaint and, on 

the same day: 

(1) File three copies of the complaint 

with the Office of the Commission 

Secretary; 

(2) Serve two copies on the 

Enforcement Bureau; and 

(3) If a complaint is addressed against 

multiple defendants, file three copies of 

the complaint with the Office of the 

Commission Secretary for each 

additional defendant. 

(c) Generally, a separate file is set up 

for each defendant. An original plus two 

copies shall be filed of all pleadings and 

documents, other than the complaint, 

for each file number assigned. 

(d) The complainant shall serve the 

complaint by hand delivery on either 

the named defendant or one of the 

named defendant’s registered agents for 

service of process on the same date that 

the complaint is filed with the 

Commission in accordance with the 

requirements of paragraph (b) of this 

section. 

(e) Upon receipt of the complaint by 

the Commission, the Commission shall 

promptly send, by facsimile 

transmission to each defendant named 

in the complaint, notice of the filing of 

the complaint. The Commission shall 

send, by regular U.S. mail delivery, to 

each defendant named in the complaint, 

a copy of the complaint. The 

Commission shall additionally send, by 

regular U.S. mail to all parties, a 

schedule detailing the date the answer 

will be due and the date, time and 

location of the initial status conference. 

(f) All subsequent pleadings and 

briefs filed in any formal complaint 

proceeding, as well as all letters, 

documents or other written 

submissions, shall be served by the 

filing party on the attorney of record for 

each party to the proceeding, or, where 

a party is not represented by an 

attorney, each party to the proceeding 

either by hand delivery, overnight 

delivery, or by facsimile transmission 

followed by regular U.S. mail delivery, 

together with a proof of such service in 

accordance with the requirements of 

§ 1.47(g) of this chapter. Service is 

deemed effective as follows: 

(1) Service by hand delivery that is 

delivered to the office of the recipient 

by 5:30 p.m., local time of the recipient, 

on a business day will be deemed 


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Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 13849 

served that day. Service by hand 

delivery that is delivered to the office of 

the recipient after 5:30 p.m., local time 

of the recipient, on a business day will 

be deemed served on the following 

business day; 

(2) Service by overnight delivery will 

be deemed served the business day 

following the day it is accepted for 

overnight delivery by a reputable 

overnight delivery service such as, or 

comparable to, the US Postal Service 

Express Mail, United Parcel Service or 

Federal Express; or 

(3) Service by facsimile transmission 

that is fully transmitted to the office of 

the recipient by 5:30 p.m., local time of 

the recipient, on a business day will be 

deemed served that day. Service by 

facsimile transmission that is fully 

transmitted to the office of the recipient 

after 5:30 p.m., local time of the 

recipient, on a business day will be 

deemed served on the following 

business day. 

(g) Supplemental complaint 

proceedings. Supplemental complaints 

filed pursuant to § 8.25 of this subpart 

shall conform to the requirements set 

out in this section, except that the 

complainant need not submit a filing 

fee, and the complainant may effect 

service pursuant to paragraph (f) of this 

section rather than paragraph (d) of this 

section numerals. 

[FR Doc. 2011–5348 Filed 3–11–11; 8:45 am] 

BILLING CODE 6712–01–P 


srobinson on DSKHWCL6B1PROD with PROPOSALS3