The Federal Communications Commission (FCC) released an order waiving the disabilities access compliance requirements for a distinct, narrow class of e-readers for an additional year – until January 28, 2016.

Last January, the FCC granted a request filed by the Coalition of E-Reader Manufacturers (“Coalition”) seeking a waiver of the Commission’s disabilities access rules as applied to e-readers, which was set to expire today. See our blog post from January 28, 2014. Today’s order extends the waiver for one year, but denies the Coalition’s request for a permanent waiver.

In extending the waiver, the FCC found that e-readers remain capable of accessing advanced communications services (ACS), but the primary purpose of e-readers (text reading) has not changed. This determination was based on an FCC analysis of the record and an independent review of the manufacturer marketing materials for e-readers. However, the order noted that “if ACS features on the next generation of these devices are featured more prominently, and, for example, begin to be utilized regularly in education, employment, and as a tool of social integration, it is conceivable that mobile communication in the online e-reader environment may become a co-primary purpose of basic e-reader devices.”

Participating organizations will include: the American Association of People with Disabilities; Adobe Systems; Hearing Loss Association of America; IBM; the U.S. Department of Labor; University of Colorado, Boulder; and the U.S. Business Leadership Network. (A complete list of participating organizations can be found here.)

The Commission launched the Accessibility and Innovation Initiative in 2010, on the twentieth anniversary of the passage of the Americans with Disabilities Act, to push for improved access to technology for disabled citizens. Several months after the announcement of the Initiative, President Obama signed the Twenty-First Century Communications and Video Accessibility Act (CVAA) into law, imposing a variety of accessibility requirements on advanced communications products and services. The FCC has, on occasion, granted waiver requests for select devices including most recently for certain e-reader devices.

With this latest ruling, electronic text-based readers that are capable of accessing advanced communications services (“ACS”) like electronic messaging and that meet the distinct, narrow definition are exempt from making their products accessible to individuals with disabilities until January 28, 2015. This new class waiver joins a limited set of waivers that the Commission has granted for IPTVs (and IP-DVPs), cable set top boxes, and certain game consoles, game distribution and online game play services, and game software.

Under Sections 716 and 717 of the Communications and Video Accessibility Act (“CVAA”), the FCC may waive the accessibility requirements for any feature or function of a multipurpose device or service that is designed primarily for purposes other than accessing ACS. In the Order, the Commission found that the Coalition defined the class of e-readers with sufficient specificity and with enough common characteristics to be granted a one-year waiver for the class of “basic e-readers” (as distinguished from more enhanced devices). The Commission defined this class to include “any mobile electronic device that is capable of accessing ACS, designed primarily for the purpose of reading text-based digital works, such as books and periodicals,” and that meet the following requirements:

1. The device has no LCD screen, but rather utilizes a screen that is designed to optimize reading.
2. The device has no camera.
3. The device is not offered or shipped to consumers with built-in ACS client applications and the device manufacturer does not develop ACS applications for its respective device, but the device may be offered or shipped to consumers with a browser and social media applications.
4. The device is marketed to consumers as a reading device and promotional material about the device does not tout the capability to access ACS.

In the end, however, the FCC’s ruling was a narrow one, rejecting the Coalition’s request for an indefinite waiver. In so ruling, the Commission reasoned that technological developments in e-readers may render ACS a primary or co-primary use in the near future, and that a one-year waiver was more appropriate given the short product lifecycles for each generation of e-reader.

Under the new procedures, a consumer can initiate the complaint process by contacting the company directly, or seeking assistance from the FCC’s Consumer & Governmental Affairs Bureau through its Disabilities Rights Office by submitting a request for dispute assistance, which is required before the consumer may file an informal complaint. Separately, the consumer may file a formal complaint with the FCC without the need for a request for dispute assistance. A more detailed explanation of the new complaint procedures is available on the FCC’s website .

The new complaint process marks a departure from previous FCC procedure, which required the consumer to file grievances only with the FCC, which would then serve as an intermediary between the consumer and the company. Thus, it is important for companies that offer ACS to be alert to complaints that may come directly from consumers in addition to correspondence from the FCC. The company’s designated FCC contact should also be a senior employee who can recognize the impact of a request for dispute assistance, or informal or formal complaint regarding ACS and the timelines and documentation necessary to respond to such complaints.

The new procedures are part of the FCC’s ongoing effort to implement the CVAA, with the latest round of regulations going into effect on October 8, 2013.

On October 22, 2013, the Consumer & Government Affairs Bureau of the FCC extended its review of the petition. It did so by granting a temporary waiver – until January 28, 2014 – for compliance with its ACS rules to a class of e-reader equipment. The waiver noted that over the next three months, the Consumer and Governmental Affairs Bureau would further evaluate the primary purpose of the e-reader equipment in question and examine the product life cycle of such e-readers to determine the appropriate duration of any further waiver, should it be granted.

The waiver applies only to e-reader devices that: (1) have no LCD screen; (2) have no camera; (3) are not offered or shipped to consumers with built-in ACS client applications, though the devices may include a browser and social media applications; and (4) are marketed to consumers as reading devices and promotional material does not advertise the capability to access ACS.