ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT.

SEC. 104. ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT.(a) Title VII Amendment.—Title VII of the Communications Act of 1934 (47 U.S.C. 601 et seq.), as amended by section 103, is further amended by adding at the end the following new sections:“SEC. 716. ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT.“(a) Manufacturing.—“(1) In general.—With respect to equipment manufactured after the effective date of the regulations established pursuant to subsection (e), and subject to those regulations, a manufacturer of equipment used for advanced communications services, including end user equipment, network equipment, and software, shall 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 the requirements of this subsection are not achievable.“(2) Industry flexibility.—A manufacturer of equipment may satisfy the requirements of paragraph (1) with respect to such equipment by—“(A) ensuring that the equipment that such manufacturer offers is accessible to and usable by individuals with disabilities without the use of third party applications, peripheral devices, software, hardware, or customer premises equipment; or124 STAT. 2756“(B) if such manufacturer chooses, using third party applications, peripheral devices, software, hardware, or customer premises equipment that is available to the consumer at nominal cost and that individuals with disabilities can access.“(b) Service Providers.—“(1) In general.—With respect to services provided after the effective date of the regulations established pursuant to subsection (e), 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 the requirements of this subsection are not achievable.“(2) Industry flexibility.—A provider of services may satisfy the requirements of paragraph (1) with respect to such services by—“(A) ensuring that the services that such provider offers are accessible to and usable by individuals with disabilities without the use of third party applications, peripheral devices, software, hardware, or customer premises equipment; or“(B) if such provider chooses, using third party applications, peripheral devices, software, hardware, or customer premises equipment that is available to the consumer at nominal cost and that individuals with disabilities can access.“(c) Compatibility.—Whenever the requirements of subsections (a) or (b) are not achievable, a manufacturer or 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 the requirement of this subsection is not achievable.“(d) Network Features, Functions, and Capabilities.—Each provider of advanced communications services has the duty not to install network features, functions, or capabilities that do not impede accessibility or usability.“(e) Regulations.—“(1) In general.—Within one year after the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall promulgate such regulations as are necessary to implement this section. In prescribing the regulations, the Commission shall—“(A) 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;“(B) provide that advanced communications services, the equipment used for advanced communications services, and networks used to provide advanced communications services may not impair or impede the accessibility of information content when accessibility has been incorporated into that content for transmission through advanced communications services, equipment used for advanced communications services, or networks used to provide advanced communications services; 124 STAT. 2757“(C) determine the obligations under this section of manufacturers, service providers, and providers of applications or services accessed over service provider networks; and“(D) not mandate technical standards, except that the Commission may adopt technical standards as a safe harbor for such compliance if necessary to facilities the manufacturers’ and service providers’ compliance with sections (a) through (c). “(2) Prospective guidelines.—The Commission shall issue prospective guidelines for a manufacturer or provider regarding the requirements of this section.“(f) Services and Equipment Subject to Section 255.—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. Such services and equipment shall remain subject to the requirements of section 255.“(g) Achievable Defined.—For purposes of this section and section 718, the term ‘achievable’ means with reasonable effort or expense, as determined by the Commission. In determining whether the requirements of a provision are achievable, the Commission shall consider the following factors:“(1) 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.“(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.“(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.“(h) Commission Flexibility.—“(1) Waiver.—The Commission shall have the authority, on its own motion or in response to a petition by a manufacturer or provider of advanced communications services or any interested party, to waive the requirements of this section for any feature or function of equipment used to provide or access advanced communications services, or for any class of such equipment, for any provider of advanced communications services, or for any class of such services, that—“(A) is capable of accessing an advanced communications service; and“(B) is designed for multiple purposes, but is designed primarily for purposes other than using advanced communications services.“(2) Small entity exemption.—The Commission may exempt small entities from the requirements of this section.“(i) Customized Equipment or Services.—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 124 STAT. 2758 users as to be effectively available directly to the public, regardless of the facilities used.“(j) Rule of Construction.—This section shall not be construed to require a manufacturer of equipment used for advanced communications or a provider of advanced communications services to make every feature and function of every device or service accessible for every disability. “SEC. 717. ENFORCEMENT AND RECORDKEEPING OBLIGATIONS.“(a) Complaint and Enforcement Procedures.—Within one year after the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall establish regulations that facilitate the filing of formal and informal complaints that allege a violation of section 255, 716, or 718, establish procedures for enforcement actions by the Commission with respect to such violations, and implement the recordkeeping obligations of paragraph (5) for manufacturers and providers subject to such sections. Such regulations shall include the following provisions:“(1) No fee.—The Commission shall not charge any fee to an individual who files a complaint alleging a violation of section 255, 716, or 718. “(2) Receipt of complaints.—The Commission shall establish separate and identifiable electronic, telephonic, and physical receptacles for the receipt of complaints filed under section 255, 716, or 718.“(3) Complaints to the commission.—“(A) In general.—Any person alleging a violation of section 255, 716, or 718 by a manufacturer of equipment or provider of service subject to such sections may file a formal or informal complaint with the Commission.“(B) Investigation of informal complaint.—The Commission shall 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, unless such complaint is resolved before such time. The order shall include a determination whether any violation occurred.“(i) If the Commission determines that a violation has occurred, the Commission may, in the order issued under this subparagraph 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.“(ii) No violation.—If a determination is made that a violation has not occurred, the Commission shall provide the basis for such determination.“(C) Consolidation of complaints.—The Commission may consolidate for investigation and resolution complaints alleging substantially the same violation.“(4) Opportunity to respond.—Before the Commission makes a determination pursuant to paragraph (3), the party that is the subject of the complaint shall have a reasonable opportunity to respond to such complaint, and may include 124 STAT. 2759 in such response any factors that are relevant to such determination. Before issuing a final order under paragraph (3)(B)(i), the Commission shall provide such party a reasonable opportunity to comment on any proposed remedial action.“(5) Recordkeeping.—(A) 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 shall 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 the following:“(i) Information about the manufacturer’s or provider’s efforts to consult with individuals with disabilities.“(ii) Descriptions of the accessibility features of its products and services.“(iii) 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.“(B) An officer of a manufacturer or provider shall submit to the Commission an annual certification that records are being kept in accordance with subparagraph (A).“(C) After the filing of a formal or informal complaint against a manufacturer or provider in the manner prescribed in paragraph (3), the Commission may request, and shall keep confidential, a copy of the records maintained by such manufacturer or provider pursuant to subparagraph (A) of this paragraph that are directly relevant to the equipment or service that is the subject of such complaint.“(6) Failure to act.—If the Commission fails to carry out any of its responsibilities to act upon a complaint in the manner prescribed in paragraph (3), the person that filed such complaint may bring an action in the nature of mandamus in the United States Court of Appeals for the District of Columbia to compel the Commission to carry out any such responsibility.“(7) Commission jurisdiction.—The limitations of section 255(f) shall apply to any claim that alleges a violation of section 255, 716, or 718. Nothing in this paragraph affects or limits any action for mandamus under paragraph (6) or any appeal pursuant to section 402(b)(10).“(8) Private resolutions of complaints.—Nothing in the Commission’s rules or this Act shall be construed to preclude a person who files a complaint and a manufacturer or provider from resolving a formal or informal complaint prior to the Commission’s final determination in a complaint proceeding. In the event of such a resolution, the parties shall jointly request dismissal of the complaint and the Commission shall grant such request.“(b) Reports to Congress.—“(1) In general.—Every two years after the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives a report that includes the following:124 STAT. 2760“(A) An assessment of the level of compliance with sections 255, 716, and 718.“(B) An evaluation of the extent to which any accessibility barriers still exist with respect to new communications technologies.“(C) The number and nature of complaints received pursuant to subsection (a) during the two years that are the subject of the report.“(D) A description of the actions taken to resolve such complaints under this section, including forfeiture penalties assessed.“(E) The length of time that was taken by the Commission to resolve each such complaint.“(F) The number, status, nature, and outcome of any actions for mandamus filed pursuant to subsection (a)(6) and the number, status, nature, and outcome of any appeals filed pursuant to section 402(b)(10).“(G) An assessment of the effect of the requirements of this section on the development and deployment of new communications technologies.“(2) Public comment required.—The Commission shall seek public comment on its tentative findings prior to submission to the Committees of the report under this subsection.“(c) Comptroller General Enforcement Study.—“(1) In general.—The Comptroller General shall conduct a study to consider and evaluate the following:“(A) The Commission’s compliance with the requirements of this section, including the Commission’s level of compliance with the deadlines established under and pursuant to this section and deadlines for acting on complaints pursuant to subsection (a).“(B) Whether the enforcement actions taken by the Commission pursuant to this section have been appropriate and effective in ensuring compliance with this section.“(C) Whether the enforcement provisions under this section are adequate to ensure compliance with this section.“(D) Whether, and to what extent (if any), the requirements of this section have an effect on the development and deployment of new communications technologies.“(2) Report.—Not later than 5 years after the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Comptroller General shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives a report on the results of the study required by paragraph (1), with recommendations for how the enforcement process and measures under this section may be modified or improved.“(d) Clearinghouse.—Within one year after the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall, in consultation with the Architectural and Transportation Barriers Compliance Board, the National Telecommunications and Information Administration, trade associations, and organizations representing individuals with disabilities, establish a clearinghouse of information on the availability of accessible products and services and accessibility 124 STAT. 2761 solutions required under sections 255, 716, and 718. Such information shall be made publicly available on the Commission’s website and by other means, and shall include an annually updated list of products and services with access features.“(e) Outreach and Education.—Upon establishment of the clearinghouse of information required under subsection (d), the Commission, in coordination with the National Telecommunications and Information Administration, shall conduct an informational and educational program designed to inform the public about the availability of the clearinghouse and the protections and remedies available under sections 255, 716, and 718. “SEC. 718. INTERNET BROWSERS BUILT INTO TELEPHONES USED WITH PUBLIC MOBILE SERVICES.“(a) Accessibility.—If a manufacturer of a telephone used with public mobile services (as such term is defined in section 710(b)(4)(B)) 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, except that this subsection shall not impose any requirement on such manufacturer or provider—“(1) to make accessible or usable any Internet browser other than a browser that such manufacturer or provider includes or arranges to include in the telephone; or“(2) to make Internet content, applications, or services accessible or usable (other than enabling individuals with disabilities to use an included browser to access such content, applications, or services).“(b) Industry Flexibility.—A manufacturer or provider may satisfy the requirements of subsection (a) with respect to such telephone or services by—“(1) ensuring that the telephone or services that such manufacture or provider offers is accessible to and usable by individuals with disabilities without the use of third party applications, peripheral devices, software, hardware, or customer premises equipment; or“(2) using third party applications, peripheral devices, software, hardware, or customer premises equipment that is available to the consumer at nominal cost and that individuals with disabilities can access.” .(b) Effective Date for Section 718.—Section 718 of the Communications Act of 1934, as added by subsection (a), shall take effect 3 years after the date of enactment of this Act.(c) Title V Amendments.—Section 503(b)(2) of such Act (47 U.S.C. 503(b)(2)) is amended by adding after subparagraph (E) the following:“(F) Subject to paragraph (5) of this section, if the violator is a manufacturer or service provider subject to the requirements of section 255, 716, or 718, and is determined by the Commission to have violated any such requirement, the manufacturer or 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 124 STAT. 2762 assessed for any continuing violation shall not exceed a total of $1,000,000 for any single act or failure to act.”.(d) Review of Commission Determinations.—Section 402(b) of such Act (47 U.S.C. 402(b)) is amended by adding the following new paragraph:“(10) By any person who is aggrieved or whose interests are adversely affected by a determination made by the Commission under section 717(a)(3).”.