[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Rules and Regulations]
[Pages 50053-50056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15686]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 14
[CG Docket Nos. 23-161, 10-213, 03-123; FCC 23-50; FR ID 156546]
Access to Video Conferencing
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission (FCC
or Commission) revisits the interpretation of a statutory term,
interoperable video conferencing service (IVCS). Finding no persuasive
reason to modify or limit the scope of the statutory definition of this
term, the Commission declines to revise its definition of IVCS, and
concludes that its accessibility rules for advanced communications
services and equipment apply to all services and equipment that meet
the statutory definition of IVCS.
DATES:
Effective date: This ruling is effective August 31, 2023.
Compliance date: The Commission sets the date for compliance with
IVCS rules in part 14 of the Commission's rules as initially adopted at
76 FR 82354 (Dec. 30, 2011) and 77 FR 24632 (April 25, 2012) as
September 3, 2024.
FOR FURTHER INFORMATION CONTACT: Ike Ofobike, Disability Rights Office,
Consumer and Governmental Affairs Bureau, at 202-418-1028, or
[email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, document FCC 23-50, adopted on June 8, 2023, released on
June 12, 2023, in CG Docket Nos. 23-161, 10-213, and 03-123. The
Commission previously sought comment on the issue in a Further Notice
of Proposed Rulemaking, published at 76 FR 82240, December 30, 2011,
and a Public Notice, published at 87 FR 30442, May 19, 2022. The full
text of document FCC 23-50 is available for public inspection and
copying via the Commission's Electronic Comment Filing System (ECFS).
To request materials in accessible formats for people with disabilities
(Braille, large print, electronic files, audio format), send an email
to [email protected] or call the Consumer and Governmental Affairs Bureau
at (202) 418-0530.
Synopsis
Background
1. Since the March 2020 outbreak of the COVID-19 pandemic in the
United States, video conferencing has grown from a niche product to a
central pillar of our communications infrastructure. The new social
interaction paradigm occasioned by the pandemic appears to have
permanently altered the norms of modern communication in the workplace,
healthcare, education, social interaction, civic life, and more. For
millions of Americans, video conferencing has become a mainstay of
their business and personal lives. With the growing use of video
conferencing has come heightened concern about accessibility. In recent
years, various accessibility features have been introduced by a number
of video conferencing providers. However, the accessibility of video
conferencing services remains limited for many users.
2. Under the Twenty-First Century Communications and Video
Accessibility Act (CVAA), enacted in 2010, providers of advanced
communications services (ACS) and manufacturers of equipment used for
ACS must make such services and equipment accessible to and usable by
people with disabilities, unless these requirements are not achievable.
47 U.S.C. 617(a)(1), (b)(1). Service providers and manufacturers may
comply with section 716 of the Act either by building accessibility
features into their services and equipment or by using third-party
applications, peripheral devices, software, hardware, or customer
premises equipment (CPE) that are available to individuals with
disabilities at nominal cost. 47 U.S.C. 617(a)(2), (b)(2). If
accessibility is not achievable through either of these means, then
manufacturers and service providers must make their products and
services compatible with existing peripheral devices or specialized CPE
commonly used by people with disabilities to achieve access, subject to
the achievability standard. 47 U.S.C. 617(c).
3. The Act defines advanced communications services as: (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. 47 U.S.C. 153(1). Interoperable video conferencing
service, in turn, is defined as a service that provides real-time video
communications, including audio, to enable users to share information
of the user's choosing. 47 U.S.C. 153(27).
4. In adopting rules to implement section 716 of the Act, the
Commission incorporated without change the statutory definitions of ACS
and the four then-existing types of ACS, including interoperable video
conferencing service. 47 CFR 14.10(m). However, in that 2011 rulemaking
a question was raised as to what Congress meant by including the word
interoperable as part of the term interoperable video conferencing
service. Agreeing with some commenters that the word ``cannot be read
out of the statute,'' the Commission found that the record before it
was insufficient to decide the correct interpretation, and sought
further comment on the issue. Implementing the Provisions of the
Communications Act of 1934, as Enacted by the Twenty-First Century
Communications and Video Accessibility Act of 2010, Final Rule,
published at 76 FR 82353, 82358, December 30, 2011; Proposed Rule,
published at 76 FR 82240, 82245-46, December 30, 2011.
5. Based on the record at that time, the Commission specifically
invited comment on the following three possible definitions of the word
interoperable as used in this context: able to function inter-platform,
inter-network, and inter-provider; having published or otherwise
agreed-upon standards that allow for manufacturers or service providers
to develop products or services that operate with other equipment or
services operating pursuant to the standards; or able to connect users
among different video conferencing services, including video relay
service (VRS). Commenters did not reach consensus on any of the three
suggested alternatives.
6. Recently, the Commission refreshed the record on this matter.
First, in April 2021, the Consumer and Governmental Affairs, Media, and
Wireless Telecommunications Bureaus issued a joint Public Notice
seeking comment generally on whether any updates were needed to the
Commission's rules implementing the CVAA and inviting stakeholders to
provide input on aspects of the Commission's CVAA implementation that
are working well, on specific areas in which commenters believe
improvements are needed, and on requirements that may not be serving
[[Page 50054]]
their intended purpose or have been overtaken by new technologies. Some
of the comments responding to the 2021 Public Notice specifically
addressed the interpretation of the term interoperable video
conferencing service. The Accessibility Advocacy and Research
Organizations (AARO), for example, urged the Commission to simply
clarify that the statutory definition of interoperable video
conferencing service, as a service that uses real-time video
communications, including audio, to enable users to share information
of the user's choosing, is an exhaustive articulation of what Congress
intended to be covered.
7. Next, on April 27, 2022, the Commission's Consumer and
Governmental Affairs Bureau (CGB or Bureau) released a Public Notice
specifically inviting additional comment on the questions originally
posed in 2011 as to the meaning of interoperable video conferencing
service. Interoperable Video Conferencing Service, published at 87 FR
30442, May 19, 2022. The Bureau also invited commenters to submit
additional relevant information about what types of services are
currently available in the video conferencing marketplace, the kinds of
interoperability they currently offer, and how such developments may
assist in reaching an interpretation of interoperable video
conferencing service that is consistent with the intent of Congress in
enacting the CVAA. The Commission also sought comment on how consumers
access video conferencing services, whether various components of such
services are accessible and usable, and any other developments that the
Commission should consider in resolving this issue. Eight entities
filed comments in response to the 2022 Public Notice; seven filed reply
comments.
Definition of Interoperable Video Conferencing Service
8. The rapid growth of video conferencing underscores the need to
resolve lingering uncertainty as to the application of the Commission's
accessibility rules in this area. The social shift born of the pandemic
has altered the norms of modern communication. The record, other
relevant FCC documents, and public sources indicate that substantial
barriers to effective communication remain for many people with
disabilities. As video conferencing becomes further entrenched as an
essential means of communication, it is of critical importance to
resolve the extent to which these services are covered by section 716
of the Act and the Commission's accessibility rules. In the absence of
clarity, service providers are left uncertain as to their obligations,
and consumers face an inconsistent patchwork of accessibility features
that limit their ability to reliably achieve effective communication.
9. In light of these changed circumstances, and taking into account
comments in the record, the Commission revisits its previously stated
views regarding the interpretation of the statutory term interoperable
video conferencing service. The Act defines interoperable video
conferencing service as a service that provides real-time video
communications, including audio, to enable users to share information
of the user's choosing. 47 U.S.C. 153(27). The Commission finds no
persuasive reason to modify or limit the scope of the statutory
definition of this term. Therefore, it declines to revise part 14 of
the Commission's rules, which incorporates the statutory definition,
and concludes that part 14 applies to all services and equipment that
provide real-time video communications, including audio, to enable
users to share information of the user's choosing.
10. By its terms, the statutory definition of interoperable video
conferencing service encompasses a variety of video communication
services that are commonly used today, or that may be used in the
future, to enable two or more users to share information with one
another. In 2011, the Commission interpreted a qualifying phrase in the
definition--``to enable users to share information of the user's
choosing''--to mean that services ``providing real-time video
communications, including audio, between two or more users'' would be
included, ``even if they can also be used for video broadcasting
purposes (only from one user).'' 76 FR 82354, December 30, 2011
(emphasis in original). However, a service that provides real-time
video and audio communications ``only from one user'' (i.e., ``video
broadcasting'') would not meet the definition of interoperable video
conferencing service. (Emphasis in original.)
11. Nothing in the definition suggests that it is limited to
services that are only suitable for particular kinds of users--e.g.,
professional users who need a wide selection of features and tools to
conduct online meetings, or casual users who want to have spontaneous
video conversations with friends. The definition also does not indicate
an intention to exclude any service based on whether it is used
primarily for point-to-point or multi-point conversations, or based on
the type of device used to access the service. Similarly, based on the
wording of this definition, its application does not depend on the
options offered to users for connecting to a video conference (e.g.,
through a dial-up telephone connection or by broadband, through a
downloadable app or a web browser), what operating systems or browsers
their devices may use, whether the service works with more than one
operating system, or whether the service may be classified as offered
to the public or to a private group of users (such as a telehealth
platform). What matters is that two or more people can use the service
to share information with one another in real-time, via video.
12. Narrowing the scope of the part 14 rules to a more limited
class of services by importing the Commission's own definition of
interoperable would bring those rules into conflict with the definition
mandated by Congress. In terms of the Commission's codified rules, this
conclusion maintains the status quo, as the statutory definition of
interoperable video conferencing service has been incorporated in the
Commission's rules for more than a decade.
13. While the Commission stated in 2011 that it must determine the
meaning of interoperable in the context of the statute, in light of the
further comments received the Commission concludes that, as the Supreme
Court has repeatedly held, when a statute includes an explicit
definition, that definition must be followed, even if it varies from a
term's ordinary meaning. Here the interpretation of the statutory term
has already been given by the statutory definition: IVCS is a service
that provides real-time video communications, including audio, to
enable users to share information of the user's choosing. Because that
definition does not include the word interoperable, it is unnecessary
to construe that word separately in this context. In cases of
circularity--where the statutory term and the statutory definition of
that term include a common word--it might be appropriate for an agency
to interpret the common word. That is not the case here because
interoperable does not appear in the statutory definition.
14. The legislative history of the CVAA also supports the
conclusion that the Commission may rely on the statutory definition of
interoperable video conferencing service without further elaboration on
the word interoperable. As the Commission noted in 2011, early versions
of the legislation used the term video conferencing service, without
the word interoperable.
[[Page 50055]]
The term was left unchanged in the House of Representatives committee
report on H.R. 3101, released in July 2010. However, in the Senate
report on S. 3304, released in December 2010, the Senate Committee on
Commerce, Science, and Transportation added the word interoperable to
video conferencing service. The Commission has found nothing in the
legislative history of the CVAA to explain why the word was added, or
what that change was meant to communicate, if anything. The
interpretation of statutes cannot safely be made to rest upon mute
intermediate legislative maneuvers. Trailmobile Co. v. Whirls, 331 U.S.
40, 61 (1947).
15. Additionally, nothing in the legislative history suggests that
Congress intended for the insertion of interoperable in the defined
term to change the draft bill's existing definition of video
conferencing service. The definition remained the same in all versions,
even when the term it was defining metamorphosed without explanation.
This compels the Commission to conclude that, whatever reason the
Senate Committee may have had for altering the term used to describe
the service, there was no intent to alter the definition of that term
or to require separate interpretation of any word within that defined
term. As the D.C. Circuit noted in 1982, courts must:
exercise caution before drawing inferences regarding legislative
intent from changes made in committee without explanation. . . .
amendments to a bill's language are frequently latent with
ambiguity; they may either evidence a substantive change in
legislative design or simply a better means for expressing a
provision in the original bill.
Western Coal Traffic League v. U.S., 677 F.2d 915, 924 (D.C. Cir.
1982).
16. Some commenters also stress that the Commission should not use
this proceeding to mandate that video conferencing services be
interoperable. That is a different question, which the Commission
settled in 2011: There is no language in the CVAA supporting the view
that interoperability is required or should be required as a subset of
accessibility, usability, or compatibility. 76 FR 82354, December 30,
2011. The Commission sees no need to revisit that question.
17. Alternative Suggested Definitions. The Commission finds
unpersuasive the alternative definitions of interoperable video
conferencing service that various commenters proffer in lieu of the
statutory definition. The Consumer Technology Association (CTA)
continues to advocate a proposal advanced in 2011: that covered
services be limited to those that have the ability to operate among
different platforms, networks and providers without special effort or
modification by the end user. At that time, the Commission expressed
concern that this proposed definition would exclude virtually all
existing video conferencing services and equipment from the
accessibility requirements of section 716 of the Act, which it believes
would be contrary to congressional intent. 76 FR 82240, December 30,
2011. In its 2022 comments, citing the development of standards that
improve interoperability, CTA suggested that its proposed definition
would include a number of commonly used video services such as Webex,
Google Meet, and BlueJeans by Verizon. However, CTA emphasizes that its
approach will ensure that only the subset of video conferencing
services that are genuinely interoperable is covered under section 716.
18. CTIA suggests a modified version of this formulation that would
limit covered services to those that can function inter-platform and
inter-network. By contrast with CTA's proposed definition, CTIA's
proposal would define interoperable video conferencing services to
include services that are interoperable inter-platform and inter-
network but that are not interoperable between different providers.
Under CTIA's proposal, inter-platform refers to the ability of a user
to access a video conferencing service on multiple software platforms
and operating systems, such as Google Android, Apple iOS, and Microsoft
Windows, and inter-network refers to the ability of a user to access a
video conferencing service via the internet and on data networks, such
as through a broadband connection like 4G LTE or 5G. According to CTIA,
this definition reflects the video conferencing market today, which
likely means the most widely used services today would be covered by
the Commission's ACS rules. Nonetheless, like CTA, CTIA acknowledges
that its interpretation would narrow covered services to a smaller
group than those fitting under the statutory definition. The American
Council of the Blind (ACB) and American Foundation for the Blind (AFB)
state that vertically integrated services such as Apple Facetime would
likely not meet CTIA's narrow definition of IVCS.
19. The fundamental defect of these proposed alternatives is that
they substantially alter the definition of interoperable video
conferencing service provided by Congress. Supporters of alternative
definitions fail to show how their proposed approaches, which they
acknowledge are less inclusive than the statutory definition, could be
harmonized with Congress's definition. Instead, CTA and CTIA argue that
relying on the statutory definition would render the word interoperable
superfluous, effectively reading the word out of the statute.
20. The Commission rejects CTA and CTIA's argument because it is
far from clear that interoperable is superfluous. For instance,
information sharing cannot take place at all without some degree of
interoperability between the devices or software that each sharing user
operates. The inclusion of the word interoperable in the term
interoperable video conferencing service may simply reflect the fact
that any video service satisfying that definition--i.e., any real-time
video communication service that enable[s] users to share information
of the user's choosing--necessarily involves some level of
interoperability among the particular devices and software employed by
users of that service.
21. In any event, while the Commission should construe statutes,
where possible, so as to avoid rendering superfluous any parts thereof,
Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 112 (1991),
it is not always possible to do so, given the imperfections of the
legislative process. Further, the Commission must also read the text
harmoniously. Accordingly, interpretations that result in
irreconcilable internal discord must be rejected. In this instance, as
the proponents agree, their interpretive attempts to give independent
meaning to the word interoperable are inconsistent with the statutory
definition. Therefore, the Commission must conclude that it is not
possible to interpret interoperable in the way that these commenters
request.
22. Administrative Procedure Act Notice. The Commission also
concludes that it has provided adequate notice in this proceeding that
it could arrive at the decision it reaches today. The 2022 Public
Notice, which was published in the Federal Register, invited the public
to file additional comments on the questions posed in 2011 regarding
the meaning of the term interoperable in the context of video
conferencing services and equipment. In the very next sentence, the
2022 Public Notice made direct reference to a recent filing by AARO
proposing that the Commission apply the statutory definition. The 2022
Public Notice also specifically invited commenters to suggest
additional alternatives or other types of input on how to interpret the
word interoperable beyond the three approaches suggested
[[Page 50056]]
by the Commission in 2011. 87 FR 30444, May 19, 2022. The 2022 Public
Notice thus provided ample indication that the interpretive question
could have a broader range of outcomes than those specifically
suggested in 2011.
23. Even assuming, arguendo, that notice was lacking, the
Commission finds no conflict with the Administrative Procedure Act.
Contrary to the arguments of several commenters, it is procedurally
proper for the Commission to conclude that interoperable video
conferencing service has the meaning given by the statutory definition.
The Commission is not adopting or amending any substantive rule.
Therefore, the notice-and-comment requirements of the Administrative
Procedure Act (APA) are not implicated by any action taken here. The
Commission is simply revisiting its 2011 assertion of a perceived need
to resolve, through further interpretation, the correct interpretation
of the word interoperable. At most that assertion was an interpretive
rule, and hence prior notice was not required to revisit that
interpretation. The Supreme Court has confirmed that the adoption or
modification of interpretive rules occurs outside the APA's notice-and-
comment requirements. Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 96
(2015).
24. Given the extended pendency of questions regarding the
application of these requirements to video conferencing, the Commission
recognizes that some service providers may need additional time to
fully comply with the Report and Order. For that reason, the Commission
extends the date for compliance with the part 14 video conferencing
service rules until September 3, 2024. The Commission directs the
Consumer and Governmental Affairs Bureau to announce the compliance
date by subsequent Public Notice.
Final Regulatory Flexibility Analysis
25. The Regulatory Flexibility Act of 1980, as amended (RFA),
requires that an agency prepare a regulatory flexibility analysis for
notice and comment rulemakings, unless the agency certifies that the
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 603, 605(b). In document
FCC 23-50, the Commission declines to adopt rule changes and therefore
a Final Regulatory Flexibility Analysis has not been performed.
Ordering Clauses
26. Pursuant to sections 1, 2, 3, and 716 of the Communications Act
of 1934, as amended, 47 U.S.C. 151, 152, 153, 617, the foregoing Report
and Order is adopted.
Congressional Review Act
27. The Commission has determined, and the Administrator of the
Office of Information and Regulatory Affairs, Office of Management and
Budget, concurs, that this rule is non-major under the Congressional
Review Act, 5 U.S.C. 804(2). The Commission sent a copy of the Report
and Order to Congress and the Government Accountability Office pursuant
to 5 U.S.C. 801(a)(1)(A).
Final Paperwork Reduction Act of 1995 Analysis
28. The Report and Order does not contain new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995. In addition, therefore, it does not contain any new or
modified information collection burden for small business concerns with
fewer than 25 employees, pursuant to the Small Business Paperwork
Relief Act of 2002.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2023-15686 Filed 7-31-23; 8:45 am]
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