Last week, the Federal Communications Commission (“FCC”) released a Report and Order, Notice of Proposed Rulemaking, and Order that seeks “to ensure that video conferencing is accessible to all.” The action establishes that video conferencing services, including popular platforms used by millions of Americans every day for work, school, healthcare, and more, fall within the definition of “interoperable video conferencing service” set forth in the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”). It also seeks comment on performance standards for interoperable video conferencing services and proposes to amend the FCC’s telecommunications relay services (“TRS”) rules to facilitate the use of video relay services (“VRS”) in video conferences. Finally, the FCC granted a partial waiver of the VRS privacy screen rule to allow VRS users participating in a video conference to turn off their cameras when not presenting. The item garnered unanimous support from the Commission.
Ensuring that Video Conferencing is Accessible to All
As the FCC observed in the item, video conferencing services have become an essential component of many aspects of daily life due to the public health considerations surrounding the COVID-19 pandemic. As this growth in the use of video conferencing services has occurred, however, accessibility advocates have raised concerns that the accessibility of video conferencing services varies widely and in many cases can be limited such that users with hearing or vision disabilities may struggle or be unable to use these services.
The CVAA requires that Advanced Communications Services (“ACS”) and manufacturers of equipment used for ACS make their services and equipment accessible to and usable by people with disabilities, unless the requirements are not achievable. ACS includes five types of services: (1) interconnected VoIP service; (2) non-interconnected VoIP service; (3) electronic messaging service; (4) interoperable video conferencing service; and (5) any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used. When the FCC initially adopted the CVAA ACS rules in 2011, it left open the question of how it should interpret the term “interoperable” in interoperable video conferencing service. Given the lack of consensus when the FCC first explored this question, the FCC’s Consumer and Governmental Affairs Bureau released a Public Notice in April of 2022 seeking additional comment on the kinds of services encompassed by the term interoperable video conferencing service.
Adopting the Statutory Definition of IVCS
In the Report and Order, the FCC resolved the long-open question of how it will interpret “interoperable” for the purposes of applying the ACS rules to interoperable video conferencing services. Specifically, the FCC adopted without modification or limit the statutory definition of interoperable video conferencing service: “A service that provides real-time video communications, including audio, to enable users to share information of the user’s choosing.” The FCC concluded that this was the appropriate definition because it could find no evidence in the CVAA’s legislative history that the inclusion of the word “interoperable” in “interoperable video conferencing service” was intended to alter the term’s definition. It concluded that any interpretation of the word “interoperable” that would narrow the definition set forth in the CVAA would result in impermissible internal discord between the statute and the regulation.
Given the decade-long pendency of this question, the FCC emphasized that it had provided adequate notice under the Administrative Procedure Act (“APA”) that this was a potential outcome in this rulemaking proceeding, in particular through the 2022 Public Notice. It also observed that it views this action as an interpretative rule, rather than a substantive rule, meaning it falls outside of the APA’s notice and comment procedures. Regardless, because many operators of video conferencing services may have reasonably assumed their services fell outside of the scope of the CVAA in the absence of clarity from the FCC on this definition, the FCC extended the date for compliance with the ACS video conferencing rules for an additional year beyond the effective date, which is 30 days after publication in the Federal Register (which remains forthcoming).
Updating the Performance Objectives for IVCS
In the notice of proposed rulemaking (“NPRM”), the FCC seeks comments on two sets of amendments to its rules to improve the accessibility of video conferencing. The first set of amendments concerns performance objectives for interoperable video conferencing services. The item proposes to require that interoperable video conferencing services “provide at least one mode with captions that are accurate and synchronous,” and the accuracy and latency of which should be “at minimum comparable to that provided on TRS Fund-supported captioned telephone services.” It also proposes to require that these services support “at least text-to-speech functionality.” The NPRM also seeks comment on a proposal to incorporate a new performance standard to specify that interoperable video conferencing services must include an effective video connection for sign language interpreters. It then seeks comment on whether the current user interface control requirement in the rules is adequate, or whether an amended rule specifically to address user interface control issues for interoperable video conferencing services should be adopted.
Each of these proposals, if implemented, would be done consistent with the general requirements of the CVAA, meaning that the FCC would allow compliance to be accomplished either through native applications or third-party services, would not mandate any particular technical standards, and would not require compliance if compliance is not achievable. Nevertheless, the FCC does seek comment on whether there are technical standards it could adopt as a “safe harbor” through which interoperable video conferencing services would be able to satisfy these proposed performance standards.
Revisions to the TRS rules for Video Conferencing
In the second set of amendments to improve the accessibility of interoperable video conferencing services, the FCC proposes to amend its rules to clarify that the integrated provision of TRS to enable functionally equivalent participation in video conferences can be supported by the Interstate TRS Fund. As a part of this proposal, the FCC has set forth several two tentative conclusions: (1) that the Communications Act authorizes the FCC to support the integrated provision of TRS in video conferences, without any need for either the TRS user or the communications assistant (“CA”) to place a dial-up, voice-only call to the conferencing platform; and (2) that the integrated provision of VRS with video conferencing is often necessary to enable sign-language users to communicate in a functionally equivalent manner. The FCC then seeks comment on a variety of issues concerning reforms that may be necessary to enable VRS providers to meet their legal obligations for purposes of the TRS Fund and also provide a functionally equivalent communications services to TRS users.
Partial Waiver of the Privacy Screen Rule
Finally, the FCC granted a limited waiver of the privacy screen rule which “prohibits a VRS CA from enabling a visual privacy screen or similar feature during a VRS call and requires the CA to disconnect a VRS call if the caller or called party enables a visual privacy screen or similar feature for more than five minutes or is otherwise unresponsive or unengaged for more than five minutes.” The FCC is proposing to reform this rule as a part of its changes to the TRS rules to better equip VRS providers to provide a functionally equivalent communications experience. As any video conference participant has experienced, there are plenty of circumstances in which calls may be “cameras off,” which would be inconsistent with the privacy screen rule as written. Accordingly, the FCC has granted this limited waiver to provide VRS providers reasonable flexibility while it seeks comment on reforms to the rule.
What is next? As mentioned above, the FCC will delay by one year the requirement that all video conferencing platforms fully comply with the requirements for interoperable video conferencing services given that the question had remained unresolved for over a decade. Comments on the proposals in the NPRM will be due 30 days after publication of the item in the Federal Register, and reply comments will be due 60 days after publication of the item in the Federal Register.