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Class Waivers of Advanced Communications Services Rules

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Released: October 15, 2012

Federal Communications Commission

DA 12-1645

Before the

Federal Communications Commission

WASHINGTON, D.C. 20554

In the Matter of
)
)

Implementation of Sections 716 and 717 of the
)
CG Docket No. 10-213
Communications Act of 1934, as Enacted by the
)
Twenty-First Century Communications and Video
)
Accessibility Act of 2010
)
)

CONSUMER ELECTRONICS ASSOCIATION
)
)

NATIONAL CABLE &
)
TELECOMMUNICATIONS ASSOCIATION
)
)

ENTERTAINMENT SOFTWARE
)
ASSOCIATION
)
)

Petitions for Class Waivers of Sections 716 and 717 )
of the Communications Act and Part 14 of the
)
Commission’s Rules Requiring Access to
)
Advanced Communications Services (ACS) and
)
Equipment by People with Disabilities
)

ORDER

Adopted: October 15, 2012

Released: October 15, 2012

By the Acting Chief, Consumer and Governmental Affairs Bureau:

I.

INTRODUCTION

1.
In this Order, the Consumer and Governmental Affairs Bureau (CGB) of the Federal
Communications Commission (Commission), pursuant to its delegated authority,1 addresses petitions
(Petitions) filed by the Consumer Electronics Association (CEA),2 the National Cable &


1 Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First
Century Communications and Video Accessibility Act of 2010; Amendments to the Commission’s Rules
Implementing Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the
Telecommunications Act of 1966; Accessible Mobile Phone Options for People who are Blind, Deaf-Blind, or Have
Low Vision
, CG Docket No. 10-213, WT Docket No. 96-198, CG Docket No. 10-145, Report and Order and Further
Notice of Proposed Rulemaking, 26 FCC Rcd 14557, 14566, 14640-14641, ¶¶ 19, 197 (2011) (ACS Report and
Order
) (delegating to CGB the authority to act upon all waiver requests).
2 CEA Petition for Waiver, CG Docket No. 10-213, filed March 22, 2012 (CEA Petition). CEA is a U.S. trade
association for the consumer electronics and information technologies industries. CEA states that it has more than
2,000 member companies that are involved in the development, manufacturing and distribution of audio, video,
mobile electronics, communications, information technology, multimedia and accessory products, as well as related
services, that are sold through consumer channels. CEA Petition at 1 n.1. On May 15, 2012, the Consumer and
Governmental Affairs Bureau (Bureau) placed the CEA Petition on public notice. Request for Comment Petition for
Class Waiver of Commission’s Rules for Access to Advanced Communications Services and Equipment by People
with Disabilities
, Public Notice, 27 FCC Rcd 5202 (May 15, 2012) (CEA Public Notice). Comments were filed by
(continued….)

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Telecommunications Association (NCTA),3 and the Entertainment Software Association (ESA)4 for class
waivers of sections 716 and 717 of the Communications Act of 1934, as amended (Act),5 and Part 14 of
the Commission’s rules,6 which require access to advanced communications services (ACS) and
equipment by people with disabilities. CEA requests a waiver until July 1, 2016 for Internet protocol-
enabled television sets (IP-TVs) and Internet protocol-enabled digital video players (IP-DVPs)
manufactured before July 1, 2016. NCTA requests a waiver until July 1, 2016 for set-top boxes leased by
cable operators to their customers and manufactured before July 1, 2016. ESA requests an eight-year
waiver until October 8, 2021 for three classes of gaming devices and services. For the reasons set forth
below, we grant each waiver in part with a common expiration date of October 8, 2015.

II.

BACKGROUND

2.
On October 8, 2010, President Obama signed the Twenty-First Century Communications
and Video Accessibility Act of 2010 (CVAA) into law.7 One year later, on October 7, 2011, the
Commission adopted a Report and Order implementing section 716 of the Act,8 which was added by the
CVAA and requires ACS and equipment used for ACS9 to be accessible to and usable by individuals with
(Continued from previous page)


Consumer Groups (jointly filed by the National Association of the Deaf, Telecommunications for the Deaf and Hard
of Hearing, Inc., and the RERC on Telecommunications Access); Missouri Council of the Blind; NCTA; Panasonic
Corporation of North America (Panasonic); and individual consumers. Reply Comments were filed by American
Council of the Blind (ACB); CEA; and Telecommunications Industry Association (TIA).
3 NCTA Petition for Waiver, CG Docket No. 10-213, filed June 1, 2012 (NCTA Petition). NCTA states that it is a
trade association for the U.S. cable industry, representing cable operators serving more than 90 percent of the
nation’s cable television households and more than 200 cable program networks. The cable industry is the nation’s
largest provider of broadband service, and also provides competitive voice service to more than 23 million
customers. NCTA Petition at 1 n.1. On June 21, 2012, the Bureau placed the NCTA Petition on public notice.
Request for Comment Petition for Class Waiver of Commission’s Rules for Access to Advanced Communications
Services and Equipment by People with Disabilities
, Public Notice, 27 FCC Rcd 7101 (June 21, 2012) (NCTA
Public Notice). Comments were filed by American Council of the Blind of Maryland; CEA; Consumer Groups;
TIA; and individual consumers. Reply Comments were filed by NCTA.
4 Petition of the Entertainment Software Association, CG Docket No. 10-213, filed March 21, 2012 (ESA Petition).
ESA states that it is a U.S. trade association dedicated to serving companies that publish computer and video games
for video game consoles, handheld devices, personal computers, and the Internet. ESA Comments at 1 n.1, Docket
10-213, April 25, 2011. On May 15, 2012, the Bureau placed the ESA Petition on public notice. Request for
Comment Petition for Class Waiver of Commission’s Rules for Access to Advanced Communications Services and
Equipment by People with Disabilities
, Public Notice, 27 FCC Rcd 5204 (May 15, 2012) (ESA Public Notice). ESA
supplemented its petition on June 11, 2012 with textual descriptions of the visual material included in the original
ESA Petition (ESA Supplement). Comments were filed by Consumer Groups; the Voice on the Net Coalition (VON
Coalition); and individual consumers. Reply Comments were filed by ACB; ESA; and TIA.
5 47 U.S.C. §§ 617 and 618.
6 47 C.F.R. §§ 14.1 et seq.
7 Pub. L. No. 111-260, 124 Stat. 2751 (2010), amended Pub. L. No. 111-265, 124 Stat. 2795 (2010) (making
technical corrections).
8 47 U.S.C. § 617.
9 ACS is defined as interconnected voice over Internet protocol (VoIP) service; non-interconnected VoIP; electronic
messaging service, such as e-mail, instant messaging, and SMS text messaging; and interoperable video
conferencing service. 47 U.S.C. § 153(1); 47 C.F.R. § 14.10(c).
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disabilities, if achievable, beginning October 8, 2013.10 The Commission also adopted rules to implement
section 717 of the Act,11 which creates recordkeeping and enforcement provisions for sections 255, 716
and 718 of the Act.12
3.
Pursuant to section 716(h)(1) of the Act,13 the ACS rules allow the Commission to grant
waivers of the ACS requirements for multipurpose equipment or services or classes of multipurpose
equipment or services that have features or functions that are capable of accessing ACS but are
nonetheless designed primarily for purposes other than using ACS.14 In instances where equipment and
services may have multiple primary or co-primary purposes, waivers may not be warranted.15 In
conducting a waiver analysis, the rules provide for a case-by-case examination of whether the equipment
is marketed for its ACS features or functions.16 In order to make this determination, the ACS Report and
Order
directs the Commission to consider “whether the ACS functionality or feature is suggested to
consumers as a reason for purchasing, installing, downloading, or accessing the equipment or service.”17
The Commission may also consider the manufacturer’s market research and the usage trends of similar
equipment or services in order to determine whether a manufacturer or provider designed the equipment
or service primarily for purposes other than ACS.18 The ACS Report and Order further notes that the
following factors may be relevant to a primary purpose waiver determination: whether the ACS
functionality is designed to be operable outside of other functions or aids other functions; the impact that
the removal of the ACS feature has on the primary purpose for which the equipment or services is
claimed to be designed, and an examination of waivers for similar products or services.19 In addition to
considering these various factors, the ACS Report and Order calls for the Commission, when examining a
waiver request, to utilize its general waiver standard, which requires good cause to waive the rules, and a
showing that the particular facts of the petitioner make compliance with the relevant requirements


10ACS Report and Order, 26 FCC Rcd 14557. See also 47 C.F.R. § 14.20. Specifically, the ACS rules apply to
models or versions of products and services that are introduced or upgraded after the October 8, 2013 date. ACS
Report and Order
, 26 FCC Rcd at 14609, ¶¶ 124-125.
11 47 U.S.C. § 618.
12 47 U.S.C. §§ 255, 617 and 619. See ACS Report and Order, 26 FCC Rcd at 14650-14577, ¶¶ 219-278.
13 47 U.S.C. § 617(h).
14 ACS Report and Order, 26 FCC Rcd at 14634, ¶ 181. See also 47 C.F.R. § 14.5.
15 ACS Report and Order, 26 FCC Rcd at 14635, ¶ 184 (offering as an example of equipment or services that have
multiple primary or co-primary purposes, smartphones that are designed for voice communications, text messaging,
e-mail, web browsing, video chat, digital video recording, mobile hotspot connectivity, and several other purposes).
In other words, multipurpose equipment or services that are capable of accessing ACS and are designed primarily or
co-primarily for ACS, do not qualify for a waiver under this provision. 47 U.S.C. § 617(h)(1); 47 C.F.R. §
14.5(a)(1). A product or service may have co-primary purposes when it contains multiple features and functions.
Conversely, as noted in the ACS Report and Order, the House and Senate Reports explain that “a device designed
for a purpose unrelated to accessing advanced communications might also provide, on an incidental basis, access to
such services. In this case, the Commission may find that to promote technological innovation the accessibility
requirements need not apply.” ACS Report and Order, 26 FCC Rcd at 14634, ¶ 182, citing House Report at 26;
Senate Report at 8.
16 ACS Report and Order, 26 FCC Rcd at 14634, 14640, ¶¶ 182, 196. See also 47 C.F.R. § 14.5(a)(2)(ii).
17 ACS Report and Order, 26 FCC Rcd at 14635, ¶ 185 (footnote omitted).
18 ACS Report and Order, 26 FCC Rcd at 14635, ¶ 183.
19 ACS Report and Order, 26 FCC Rcd at 14636, ¶186.
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inconsistent with the public interest.20
4.
The ACS rules allow the Commission to entertain a waiver for equipment and services
individually or as a class, and to limit the time of its coverage, with or without a provision for renewal.21
The Commission will exercise its authority to grant class waivers, which apply to more than one piece of
equipment or more than one service, in instances in which classes are carefully defined and the equipment
or services share common defining characteristics.22 In addition, the Commission will examine the extent
to which the petitioner has explained in detail the expected lifecycle of the equipment or services that are
part of the class.23 Substantial upgrades are considered new products or services for the purpose of this
waiver analysis.24 For products and services already under development after a class waiver expires, the
achievability analysis may take into consideration the developmental stage of the product and the effort
and expense needed to achieve accessibility at that point in the developmental stage.25 To the extent a
petitioner seeks a class waiver for multiple generations of similar equipment and services, the
Commission will examine the justification for the waiver extending through the lifecycle of each discrete
generation.26 We will take a careful look at industry developments to determine whether any extensions
are justified.
5.
All products and services covered by a class waiver that are introduced into the market
while the waiver is in effect will ordinarily be subject to the waiver for the duration of the life of those
particular products or services—i.e., for as long as those particular products or services are sold.27 For
example, if a particular model covered by a class waiver were introduced to the public on the day before
the expiration of the waiver period, then all products of that particular model that are sold from that point
forward would be covered by the waiver.28 Consequently, it is the period of time that it takes to get a
product or service from the drawing board to introduction in the marketplace that is relevant to
determining the appropriate waiver period.

III.

THE CEA PETITION

6.
Background. CEA requests a waiver until July 1, 2016 for two classes of equipment
manufactured before July 1, 2016: (1) Internet protocol-enabled television sets (IP-TVs) and (2) Internet
protocol-enabled digital video players (IP-DVPs).29 CEA’s petition states that although both types of


20 ACS Report and Order, 26 FCC Rcd at 14637, ¶ 188, citing 47 C.F.R. § 1.3; Northeast Cellular Telephone Co.,
L.P. v. FCC
, 897 F. 2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418 F. 2d 1153, 1159 (D.C. Cir.
1969).
21 ACS Report and Order, 26 FCC Rcd at 14638, ¶ 192. See also 47 C.F.R. § 14.5(c).
22 ACS Report and Order, 26 FCC Rcd at 14639, ¶ 193. See also 47 C.F.R. § 14.5(b).
23 ACS Report and Order, 26 FCC Rcd at 14639, ¶ 194. See also 47 C.F.R. § 14.5(c)(2).
24 ACS Report and Order, 26 FCC Rcd at 14639, ¶ 192. See also id. at 14609, ¶ 124 (“Natural opportunities to
assess or reassess the achievability of accessibility may include, for example, the redesign of a product model or
service, new versions of software, upgrades to existing features or functionalities, significant rebundling or
unbundling of product and service packages, or any other significant modification that may require redesign.”).
25 ACS Report and Order, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2).
26 ACS Report and Order, 26 FCC Rcd at 14640, ¶ 195.
27 ACS Report and Order, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2).
28 As noted above, if there were a substantial upgrade to the product model, a new waiver would be required. See
ACS Report and Order
, 26 FCC Rcd at 14639, ¶ 192.
29 CEA Petition at 1-2.
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equipment allow consumers to access and use ACS, they are designed primarily to display video content
rather than to provide access to ACS, and therefore qualify for a waiver from the Commission’s ACS
rules.30 CEA argues that because ACS features and functions are just beginning to make their way into
these devices, allowing manufacturers of IP-TVs and IP-DVPs additional time to provide accessibility
will afford them the opportunity to develop ACS features and functions and design accessibility features
in a more cost-effective way.31 CEA argues for a waiver until July 1, 2016 by claiming a product
lifecycle for IP-TVs and IP-DVPs of three years, comprised of a two-year development phase plus one
year, which according to CEA, is the typical period in which new models are offered and marketed by the
manufacturer.32 CEA also argues that it has demonstrated good cause to waive the rules because the
public interest would be served by providing for the cost-effective development of accessibility for these
products.33 Finally, it also claims that the benefits of including ACS functionality in IP-TVs and IP-DVPs
may be small because people with disabilities can use “alternative ACS-capable devices.”34
7.
CEA defines IP-TVs as televisions that “(1) allow consumers to access and use ACS via
IP and (2) are designed primarily to receive and display video content, principally full-length,
professional-quality video programming, not ACS.”35 CEA defines IP-DVPs as digital video players that
“(1) allow consumers to access and use ACS via IP and (2) are designed primarily for the playback and
rendering of video content, principally full-length, professional-quality video programming, not ACS.”36
In both cases, CEA claims that although the classes of these products allow consumers to access and use
ACS via IP, such function is not a primary purpose of the products.37 Rather, CEA insists that the
Internet-connectivity of these devices “is primarily focused on enabling and improving the playback and
rendering of video content . . . or the delivery of video-on-demand content from a pay television
service.”38
8.
The Consumer Groups argue that the ACS features of IP-TVs and IP-DVPs provide a co-
primary purpose, that IP-TVs and IP-DVPs are designed and marketed as multipurpose devices, and that
it is contrary to the fundamental purpose of the CVAA for consumers to have to wait to receive the
benefits of the ACS features and functions that are already included in these devices.39 They claim, for


30 CEA Petition at 8-10, 15-16; CEA Ex Parte Submission (September 7, 2012) at 2-6 (CEA September 7, 2012 Ex
Parte
).
31 CEA Petition at 4-5; CEA Ex Parte (July 13, 2012) and accompanying letter from Gregory L. Rosston (July 13,
2012) (Rosston Letter).
32 CEA Petition at 7-8, 13-14.
33 CEA Petition at 10-12, 16-18; Rosston Letter.
34 See also CEA Reply Comments at 6; Rosston Letter at 3, 8. See also Panasonic Comments at 11 (claiming that
ACS on IP-TVs and IP-DVPs need not be accessible because ACS is available on “second screens,” that is, devices
other than IP-TVs and IP-DVPs.)
35 CEA Petition at 5-6 (footnote omitted).
36 CEA Petition at 12-13 (footnote omitted).
37 See CEA Petition at 5-6, 12-13; CEA Reply Comments at 12; CEA September 7, 2012 Ex Parte at 4-6.
38 CEA September 7, 2012 Ex Parte at 6, offering Netflix, YouTube and Hulu Plus as examples of video content
obtained via the Internet over IP-TVs and DIRECTV as an example of video-on-demand content delivered from a
pay television service and made available on an IP-DVP.
39 See Consumer Groups Opposition to Petition for Waiver by Consumer Electronics Association (Consumer Groups
Opposition to CEA Petition) at 2-5. See also Patricia Albee Comments; Todd Morrison Comments; Don Cullen
Comments; Sommer Willis Comments; Brian Coppola Comments (on CEA Petition); Missouri Council of the Blind
(continued….)
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example, that many IP-TVs and IP-DVPs already pre-install or allow installation of ACS applications that
have web conferencing capabilities that need to be made accessible to users who are deaf and hard of
hearing.40 If the Commission does decide to grant a waiver, Consumer Groups urge that it be limited to
one year.41 In support, they cite to industry reports suggesting that approximately 70 percent of all in-
home video devices will be able to connect to the Internet by 2016.42 Similarly, the American Council for
the Blind (ACB) expresses concern that market conditions are rapidly evolving, and new models of these
products are released every year with increasing ACS capabilities.43

9.
Discussion. We grant CEA class waivers of the ACS rules for IP-TVs and IP-DVPs until
October 8, 2015, which is two years past the implementation date for compliance with these rules.44 First,
we agree that, as required by the ACS Report and Order, the two classes of equipment for which CEA
seeks a waiver are defined with specificity and that the equipment in each class share enough common
defining characteristics to be granted class waivers.45 Specifically, following CEA’s descriptions, for
purposes of these class waivers, we define IP-TVs as televisions designed primarily to receive and display
video content, principally full-length, professional-quality video programming,46 and IP-DVPs as digital
video players designed primarily for the playback and rendering of video content, principally full-length,
professional-quality video programming.47
10.
Next, we find that CEA has demonstrated that, although consumers can use both types of
equipment for ACS, presently IP-TVs and IP-DVPs are designed primarily to display video content rather
than for ACS, as is required to receive a waiver under section 716(h)(1)(A) and (B) of the Act48 and
section 14.5(a) of the rules.49 With respect to IP-TVs, CEA points to manufacturer marketing materials
that emphasize the primary purpose of these devices to provide video content.50 Likewise, CEA provides
(Continued from previous page)


Comments; Walter Newsome Comments; Rosemarie A. Facilla Late-Filed Comments (July 5, 2012); ACB Reply
Comments at 2. Each of these commenters opposed the grant of the CEA Petition.
40 Consumer Groups Opposition to CEA Petition at 2 (offering Facebook and Skype as examples of applications that
can be installed or are pre-installed on these devices).
41 Consumer Groups Opposition to CEA Petition at 6.
42 Consumer Groups Opposition to CEA Petition at 3.
43 ACB Reply Comments at 7.
44 ACS Report and Order, 26 FCC Rcd at 14601-14605, ¶¶ 107-112.
45 See 47 C.F.R. § 14.5(b); ACS Report and Order, 26 FCC Rcd at 14639, ¶ 193.
46 See CEA Petition at 5-6.
47 See CEA Petition at 12-13. As noted by CEA, not every IP-enabled TV will fall into this class. As an example,
CEA notes that “any device not designed and marketed primarily to display video content (principally full-length,
professional-quality video programming)” will be excluded from the class waiver granted herein for IP-TVs. CEA
Petition at 6 n.19. We note that Consumer Groups ask the Commission to provide “an effective, expeditious process
for the public to file complaints about any improper application of a waiver to equipment not expressly covered.”
Consumer Groups Opposition to CEA Petition at 11. In the ACS Report and Order, the Commission adopted
procedures to expeditiously conduct a 30-day dispute assistance procedure, and if such process does not satisfy the
consumer’s concerns, the consumer may then file an informal complaint that will be resolved within 180 days. ACS
Report and Order
, 26 FCC Rcd at 14656-14672, ¶¶ 232-268.
48 47 U.S.C. § 617(h)(1)(A) and (B).
49 47 C.F.R. § 14.5(a).
50 CEA points to the marketing materials and statements of Samsung, LG, Sony, Panasonic and Mitsubishi to make
the point that “the vast majority of apps relate to video-content, gaming, or news and general information, which
generally do not include ACS features or functions.” CEA Petition at 8-10. In its September 7, 2012 Ex Parte, CEA
(continued….)
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examples of marketing materials that highlight the purpose of IP-DVPs to be the playback and rendering
of video content through Internet-based services or the delivery of video-on-demand content from pay
television services.51 We agree with CEA that ACS features and functions are just beginning to make
their way into these devices,52 and find that CEA has demonstrated that ACS is not designed to be a co-
primary feature of IP-TVs and IP-DVPs at this time.53 Although the Consumer Groups and ACB argue
that IP-TVs and IP-DVPs are multipurpose devices, and that ACS features and functions are included in
the marketing materials for these devices, which according to these commenters, establishes ACS as a
primary or co-primary purpose,54 we believe that presently the marketing and advertising of such products
focus primarily on use of these devices for video programming, rather than ACS use, and that
consequently, there is insufficient evidence to establish ACS as a primary or co-primary purpose for these
devices at this time. For example, as noted by CEA, at present, the vast majority of apps available for
download or installation on IP-TVs are marketed for the purpose of obtaining video content, not ACS.55
Likewise, we agree with CEA that presently, the marketing materials distributed for IP-DVPs emphasize
the playback and rendering of video content via video streaming apps, pay television services or locally
stored video content.56
11.
Finally, we agree that CEA has demonstrated in its petition good cause to waive the rules,
because the public interest will be served by allowing these new video innovations, which are breaking
new ground by beginning to combine the viewing of traditional and Internet forms of video on a single
device, to enter the marketplace.57 During the period of this waiver, CEA claims, and we agree, that
manufacturers will be able to apply the experience gained from designing accessibility in other products –
that do have ACS as a primary or co-primary function – to the development and implementation of
(Continued from previous page)


offers an extensive list of apps for IP-TVs and IP-DVPs that focus on video content. CEA September 7, 2012 Ex
Parte
at 4-6. See also ¶ 7, n.38, supra.
51 See CEA Comments at 15-16, citing to various video Blu-ray and streaming players by LG, Panasonic, Samsung
and Sony.
52 See CEA Petition at 4-5.
53 See CEA Petition at 8-10, 15-16; CEA Reply Comments at 7-10. See also Panasonic Comments at 4-8; NCTA
Comments at 2; TIA Reply Comments (to CEA Petition) at 2. Nevertheless, as discussed below, we agree with the
Consumer Groups and ACB that the market is rapidly changing, see Consumer Groups Opposition to CEA Petition
at 6, ACB Reply Comments at 7, and anticipate that ACS may become a co-primary purpose of IP-TVs and IP-
DVPs in the near term.
54 See Consumer Groups Opposition to CEA Petition at 4-5; Consumer Groups Supplement to Opposition (August
28, 2012) at 7-12 (Consumer Groups Supplement to Opposition); ACB Reply Comments at 7.
55 See CEA Petition at 8-10 (noting, for example, that Samsung’s roster of apps focus on video content, including
AOL, HD, CNBC Real-Time, Comcast Xfinity, Verizon Flex View and others; that LG emphasizes video content
provided by Netflix, Hulu Plus and other video providers; that Sony’s marketing materials focus on its “Video
Unlimited” streaming service; that Panasonic highlights popular IP-TV apps that are “overwhelmingly video related,
including Netflix, YouTube; and Amazon Video,” and that Mitsubishi emphasized high-definition and 3D movies
through its “StreamTV.”).
56 See CEA Petition at 15, n.62 (noting, for example, that LG’s advertisements for its LG Limitless Content
emphasize streaming video from Netflix, Hulu Plus, Vudu and more; Panasonic’s marketing for its DMP-BD77 Blu-
ray Player highlights access to Netflix, Cinema Now and Vudu; Samsung’s ads for its Smart Blu-ray Player notes
the ease with which viewers can search for movies and TV shows, and Sony’s Smart Streaming Player emphasizes
the ability to enjoy “instant access to thousands of hit movies, TV shows, music choices and online videos.”)
57 See CEA Petition at 11.
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accessibility features in the video devices subject to the class waiver.58 Therefore, during the period of
the waiver, we will not require the equipment and services covered by the waiver to comply with the
obligations of section 14.20, the performance objectives of section 14.21 and the recordkeeping
obligations of section 14.31 of our rules.59
12.
Duration of the Waiver. With respect to the duration of the waiver granted, CEA claims
to need a waiver until July 1, 2016 based on a product cycle of three years – a two-year development
cycle followed by a one-year period when the products are sold.60 However, as discussed above, because
“[a]ll products and services covered by a class waiver will ordinarily be subject to the waiver for the
duration of the life of those particular products and services[,]”61 the waiver extends to particular models
of equipment for as long as the covered models are sold without significant upgrades. Consequently, in
defining the waiver period for these purposes, we only consider the time used to get a product developed
and initially introduced in the market, and not the period of time during which it is sold. We thus exclude
the one-year period CEA identified as the time during which the products are sold, and grant a waiver
period of two years for IP-TVs and IP-DVPs. Since the waiver period will begin on October 8, 2013 (the
date by which covered equipment must comply),62 the waiver period will run until October 8, 2015.
13.
Limiting the waiver period to two years for IP-TVs and IP-DVPs is also justified by the
rapid pace by which changes in communications and video technologies are resulting in the convergence
of multiple functions in single devices.63 We share the concerns expressed by consumers that IP-TVs and
IP-DVPs may quickly develop ACS as a co-primary purpose.64 Given that the public interest is a key


58 See Rosston Letter at 5-6. Notwithstanding this finding in the public interest at this time, we reject CEA’s
argument that there is good cause to grant such waiver because people with disabilities are able to acquire second
screens, such as tablets, laptops or smartphones, to use ACS with their IP-TVs or IP-DVPs. See Rosston Letter at 3,
8. We believe that requiring the purchase of a second screen – and thereby denying people with disabilities the
opportunity to have access to Internet connectivity built into a single device that performs multiple functions (that is
available to the general public) – is contrary to the very purpose of the CVAA. See Senate Report at 1 (noting that
modern technology allows us to “streamlin[e] tasks and allow[] mobile access to the Internet and a diverse menu of
applications and services,” and that the CVAA is intended to “update the communications laws to help ensure that
individuals with visual, auditory, or speech disabilities are able to fully utilize communications services and
equipment . . . .” Id. at 2.
59 47 C.F.R. §§ 14.20, 14.21 and 14.31. The waiver of these rules also includes a waiver of the obligation to
conduct an achievability analysis during the period of the waiver. See ACS Report and Order, 27 FCC Rcd at
14607-14619, ¶¶ 119-148.
60 See CEA Petition at 7-8, 13-14; CEA Reply Comments at 10-11.
61 ACS Report and Order, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2).
62 See ACS Report and Order, 26 FCC Rcd at 14601-14605, ¶¶ 107-112.
63 See Consumer Groups Ex Parte Submission (August 13, 2012) at 3 (Consumer Groups August 13, 2102 Ex Parte)
(discussing the speed in which smartphones changed how we communicate within a very short period of time and
predicting that the same will happen for IP-TVs and IP-DVPs). See also video entitled “XFINITY, The Future of
Awesome,” http://www.youtube.com/watch?v=VlNJ-uR_tgY&feature=player_embedded) (last visited, October 4,
2012), which shows various devices, including laptops, tablets, mobile phones, televisions and cable set top boxes,
serving interchangeable functions. Contra, TIA Reply Comments (on CEA Petition) at 3-4 (disagrees with
assertions that projected use of ACS is rapidly-evolving). We find TIA’s unsupported assertions to be contrary to
the record evidence cited herein and below.
64 See Consumer Groups Opposition to CEA Petition at 3; ACB Reply Comments at 7; Consumer Groups August
13, 2012 Ex Parte at 3 (citing to a video entitled “A Day Made of Glass . . . Made Possible by Corning,”
http://www.youtube.com/watch?v=6Cf7IL_eZ38 (last visited, October 4, 2012), which demonstrates a multitude of
uses in the same glass surface devices).
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consideration in our waiver determination,65 we must consider the harm to consumers with disabilities
that might result were we to allow the waiver period to last for too long a duration. In this regard, we are
concerned that devices that are now designed primarily for viewing or recording video programming
could swiftly evolve to include ACS as a co-primary purpose; thus, a waiver period of the accessibility
requirements for too a long a duration could, if this occurs, result in consumers being denied access to
ACS. Restricting the waiver period to two years will serve the public interest by providing an appropriate
balance between promoting disability access to ACS when these devices are more likely to be re-
purposed to include ACS as a co-primary function, and meeting the needs of CEA’s members to release
their devices over the next two years, before such convergence of technologies is likely to take place.66
14.
The action we take herein is without prejudice to CEA requesting an extension of the
waiver period at a later time. However, as noted above, CEA asserts that grant of a class waiver will
provide for the cost-effective development of accessibility by, among other things, permitting
manufacturers to take advantage of the experience they gain from designing accessibility for products that
have ACS as a primary or co-primary function.67 In this vein, we expect manufacturers of IP-TVs and IP-
DVPs to plan for accessibility now so they are ready to implement accessible features and functions when
the class waiver period expires on October 8, 2015.68 As the Commission has previously noted, “in many
instances, accessibility is more likely to be achievable if covered entities consider accessibility issues
early in the development cycle.”69

IV.

THE NCTA PETITION

15.
Background. NCTA requests a waiver until July 1, 2016 for set-top boxes that are leased
by cable operators to their customers and manufactured before July 1, 2016.70 According to NCTA,
although some set-top boxes being deployed and manufactured today are capable of accessing a limited
number of services that may qualify as ACS, the primary purpose of set-top boxes provided by cable
operators is to access video programming services, not ACS.71 NCTA claims a deployment cycle of six
years, arguing that there is a two to three year development cycle, followed by three years of
manufacturing and deployment.72 In addition, NCTA asserts that good cause to waive the rules has been
demonstrated because the public interest will be served by the promotion of innovation, competition and
investment in new technologies during the waiver period, granting a waiver will provide greater certainty
and predictability to eventually achieve a better experience for all stakeholders, including people with
disabilities, and a class waiver will encourage efficient use of Commission resources by avoiding large


65 ACS Report and Order, 26 FCC Rcd at 14637, ¶ 188.
66 See Consumer Groups Opposition to CEA Petition at 6.
67 See Rosston Letter at 5-6.
68 We acknowledge, as noted in section II, supra, that the achievability analysis conducted for products and services
already under development at the time when the class waiver expires may take into consideration the effort and
expense needed to achieve accessibility during the developmental stage of the product or service. ACS Report and
Order
, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2). However, manufacturers of IP-TVs and IP-
DVPs that attempt to demonstrate, in response to an enforcement action, that accessibility is not achievable for
models introduced after October 8, 2015 will be expected to demonstrate that they have conducted accessibility
planning throughout the time period of the class waiver, as early as possible during the design process for equipment
and services. ACS Report and Order, 26 FCC Rcd at 14602, ¶ 108.
69 ACS Report and Order, 26 FCC Rcd at 14609, ¶ 124.
70 NCTA Petition at 1-2.
71 NCTA Petition at 5-7.
72 NCTA Petition at 4.
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numbers of individual waiver requests.73
16.
The Consumer Groups oppose a class waiver, and argue that the ACS features of cable
set-top boxes, such as electronic messaging and non-interconnected VoIP, provide a co-primary purpose,
that the set-top boxes are designed and marketed as multipurpose devices that include voice and video
communications features, and that it is contrary to the fundamental purpose of the CVAA for consumers
to have to wait to receive the benefits of the ACS features and functions that are already included in these
devices.74 Consumer Groups further argue that cable operators routinely bundle telecommunications
packages as part of their offerings, and that set top boxes come with pre-installed support for applications
that use ACS functionality, such as email and social networking.75 The Consumer Groups add that if the
Commission does decide to grant a waiver, it should be limited to a period of one year.76 They point to
the swift pace at which video products are changing77 and “the trend for TV, Internet and
telecommunications to converge,” in urging the Commission to take steps now to ensure access to ACS
features and functions on cable operator-provided set top boxes, “particularly as the competition between
traditional cable TV operators and Internet video distributors continues to heat up and ACS features are
used to distinguish offerings from the competition.”78
17.
Discussion. We grant NCTA a class waiver of the ACS rules until October 8, 2015 for
one class of equipment: set-top boxes leased by cable operators to their customers. First, we find that the
class of equipment for which NCTA seeks a waiver is defined with specificity and that the equipment
within the class share enough common defining characteristics to be granted a class waiver.79
Specifically, for purposes of this waiver, we define the class of cable operator-supplied set-top boxes,
following NCTA’s description, as “standalone devices that are primarily designed to convert the video
signals delivered by cable systems to consumers’ homes and transmit the converted signal to television
sets or other display devices for viewing.”80 This definition is consistent with the Commission’s rules,
which define set-top boxes as a form of navigation device “used by consumers to access multichannel
video programming and other services offered over multichannel video programming systems.’”81


73 NCTA Petition at 7-10.
74 See Consumer Groups Opposition to Petition for Waiver by the National Cable & Telecommunications
Association (Consumer Groups Opposition to NCTA Petition) at 2-7. See also American Council of the Blind of
Maryland Comments; Diane Bomar Comments; Charis Austin Comments; Frank Brown Comments; Gina Allen
Comments; Joe Morgan Comments; Mark A. Webb Comments; Marlaina Lieberg Comments; Reginald George
Comments; Russell Schermer Comments; Tracey H. Gonzalez Comments; Yvonne T. Miller Comments; Philip G.
Rich Comments; Catherine Golding Comments; Karyn Campbell Comments; Pamela Scott Comments; Edwin
Rumsey Comments; Norma A. Boge Comments; Parras Shah Comments; Cheryl Roshka Comments; Gaylen Floy
Comments; Glenn McCully Comments; Heather Macdonald Comments; Louis J. Schwarz Late-Filed Comments
(August 21, 2012).
75 Consumer Groups Opposition to NCTA Petition at 3. The Consumer Groups point to Facebook integration into
Comcast Xfinity set top boxes and the intent of Comcast to partner with Skype as examples. Id. at 7.
76 See Consumer Groups Opposition to NCTA Petition at 9-10.
77 See Consumer Groups Opposition to NCTA Petition at 8-9 (suggesting that the changing landscape in video
programming, which is increasingly reliant on Internet-based participants, make it unreasonable to assume that
NCTA’s alleged six year lifecycle of cable operator-leased set-top boxes will be sustainable).
78 Consumer Groups Opposition to NCTA Petition at 4.
79 See 47 C.F.R. § 14.5(b); ACS Report and Order, 26 FCC Rcd at 14639, ¶ 193.
80 NCTA Comments at 3.
81 NCTA Petition at 4, quoting 47 C.F.R. § 76.1200(c).
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18.
Next, we find that NCTA has demonstrated that a class waiver for set top boxes satisfies
the waiver standard of multipurpose equipment that has a feature or function that is capable of accessing
ACS but is nonetheless designed primarily for purposes other than using ACS.82 Although consumers
may be able to use some cable set-top boxes for ACS to a limited extent, presently such devices are
designed primarily for the purpose of receiving video signals and delivering those signals to consumer
display and recording devices, and therefore meet the criteria of section 716(h)(1)(A) and (B) of the Act83
and section 14.5(a) of the rules.84 Additionally, as noted by NCTA, the advertising and marketing
materials distributed by the manufacturers who make these devices support a finding that these devices
are marketed primarily for the reception and delivery of video programming.85 Accordingly, we find that
ACS is not presently a co-primary feature of cable operator-supplied set-top boxes,86 and that for those
newer models that do incorporate ACS, the ACS features and functions that have been added are ancillary
to the reception and delivery of video programming.87
19.
Finally, we agree that NCTA has demonstrated good cause to waive the rules and that the
particular facts presented in its Petition suggest that compliance with the ACS rules for set top boxes at
the present time would be inconsistent with the public interest. 88 NCTA acknowledges that cable
operators are beginning to leverage new Internet technologies to incorporate ACS applications.89
However, because, at this early stage of development, it remains an open question whether “the set-top
box will succeed as a platform for delivering additional features or enhancements,”90 we find that it would
not serve the public interest to delay the deployment of these features. Allowing these enhanced set top
boxes to enter the marketplace at this time will provide the time needed to ensure that accessibility
features are incorporated into newer generations of set-top boxes when ACS becomes a primary or co-
primary function in these devices. During the period of the waiver, we will not require the equipment and
services covered by the waiver to comply with the obligations of section 14.20, the performance
objectives of section 14.21 and the recordkeeping obligations of section 14.31 of our rules.91
20.
Duration of the Waiver. NCTA seeks a waiver until July 1, 2016, claiming a product
cycle of six years. NCTA explains that this is based on a two to three year development cycle followed


82 See 47 C.F.R. § 14.5(a); ACS Report and Order, 26 FCC Rcd at 14634, ¶ 181.
83 47 U.S.C. § 617(h)(1)(A) and (B).
84 47 C.F.R. § 14.5(a).
85 See NCTA Petition at 6 (listing advertising materials distributed by Motorola, Cisco, and Pace, all of which focus
on the video programming functions of these devices).
86 See NCTA Petition at 5-7; NCTA Reply Comments at 3-4; CEA Comments (on NCTA Petition) at 2-3; TIA
Comments (on NCTA Petition) at 2-3.
87 See NCTA Petition at 7.
88 See 47 C.F.R. § 1.3; ACS Report and Order, 26 FCC Rcd at 14637, ¶ 188.
89 NCTA Petition at 8 (noting that potential applications include caller ID features and instant messaging).
90 NCTA Petition at 9. NCTA also raises concerns about the extent to which the ACS rules would apply to the
features being considered for set-top boxes – which it says includes interactive advertising to customizable sports
scores and news, traffic, and weather information, as well as the extent to which making these features accessible
will be achievable. Id. at 8. To the extent new features are incorporated into set-top boxes that are not ACS, they
would not be subject to the ACS rules and would not need to be subjected to an achievability analysis.
91 47 C.F.R. §§ 14.20, 14.21 and 14.31. The waiver of these rules also includes a waiver of the obligation to
conduct an achievability analysis during the period of the waiver. See ACS Report and Order, 27 FCC Rcd at
14607-14619, ¶¶ 119-148.
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by three years of manufacturing and deployment of the devices.92 However, as discussed above, product
models and services that are covered by a class waiver are entitled to regulatory relief for as long as they
are sold without significant upgrades.93 Consequently, in defining the waiver period for these purposes,
we only consider the time it takes to get a product developed and initially introduced in the market, and
not the period of time it is deployed. We thus exclude the three-year period NCTA identified as the time
during which the products are manufactured and deployed, and grant a waiver period of two years for
cable set-top boxes. We further find, in the interest of not adopting a waiver period of overbroad duration
and absent more definitive evidence that a full three year period is needed for the development of
products in the covered class, that it is in the public interest to limit the initial waiver period to the low
end of the range of two to three years identified by NCTA for the development cycle of these products.
The two-year waiver period will commence on October 8, 2013 (the date by which covered equipment
must comply)94 and end two years later on October 8, 2015.
21.
Limiting the waiver period to two years for cable set-top boxes is also justified in light of
the rapid changes in technology and industry trends towards convergence of functions. We thus share the
concerns expressed by consumers that cable set-top boxes may swiftly incorporate ACS as a co-primary
purpose.95 Given that the public interest is a key consideration in our waiver determination,96 we must
consider the harm to consumers with disabilities that might result if we were to grant the waiver for too
long a duration. Specifically, it is difficult to determine the pace at which single purpose devices that are
now designed primarily for the purpose of receiving video signals and delivering those signals to
consumer display and recording devices will transition to include ACS as a co-primary purpose. If,
however, the incorporation of ACS features into set-top boxes proves to be a success in the marketplace
and this transition occurs as swiftly as other technological developments have occurred in recent years,97
waiver of the ACS accessibility requirements for the full period of time sought by NCTA could result in
consumers being denied access to ACS.98 We believe that limiting the waiver period to two years will
serve the public interest by balancing the interest of NCTA’s members to begin rolling out recently


92 See NCTA Petition at 4.
93 See ¶ 12, supra. We thus reject NCTA’s arguments concerning the burdens associated with the potential need to
retrofit millions of devices. See NCTA Petition at 9; NCTA Reply Comments at 6. Manufacturers and service
providers are not required to recall or retrofit equipment already in inventories or in the field. See ACS Report and
Order
, 26 FCC Rcd at 14609, ¶ 126.
94 See ACS Report and Order, 26 FCC Rcd at 14601-14605, ¶¶ 107-112.
95 See Consumer Groups Opposition to NCTA at 6-7 (referencing the intent of Comcast to partner with Skype as
well as cable industry promotions of access to social media, which now include ACS functions such as instant
messaging and e-mail); Gina Allen Comments; Marlaina Lieberg Comments; Reginald George Comments; Karyn
Campbell Comments; Edwin Rumsey Comments; Cheryl Roshka Comments; Heather Macdonald Comments;
Consumer Groups August 13, 2012 Ex Parte at 3 (discussing the multiple functions of consumer devices, including
set-top boxes, and citing to a video entitled “A Day Made of Glass . . . Made Possible by Corning,”
http://www.youtube.com/watch?v=6Cf7IL_eZ38 (last visited, October 4, 2012), which shows the multitude of uses
from various glass surface devices).
96 ACS Report and Order, 26 FCC Rcd at 14637, ¶ 188.
97 See Consumer Groups August 13, 2012 Ex Parte Letter at 3 (discussing the extraordinary speed at which
smartphones transitioned the way that Americans communicate and noting that the same could happen for cable-
supplied set-top boxes). See also video entitled “XFINITY, The Future of Awesome,”
http://www.youtube.com/watch?v=VlNJ-uR_tgY&feature=player_embedded) (last visited, October 4, 2012), which
shows various devices including laptops, tablets, mobile phones, televisions and cable set top boxes serving
interchangeable functions.
98 See Consumer Groups Opposition to NCTA Petition at 9-10.
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developed devices with limited ACS features, with the interests of consumers in having access to these
devices when ACS becomes a co-primary purpose with their video programming functions.
22.
The action we take herein is without prejudice to NCTA exercising its right to come back
to the Commission at a later time to request an extension of the waiver period. However, we expect cable
service providers and manufacturers of cable set-top boxes to plan for accessibility now so they are ready
to implement accessible features and functions when the class waiver expires on October 8, 2015.99

V.

THE ESA PETITION

23.
Background. ESA requests an eight-year waiver period – until October 8, 2021100 – for
new models or upgrades of the following three classes of equipment and services: Class I – game
consoles, both home and handheld, and their peripherals and integrated online networks; Class II – game
distribution and online game play services that distribute game software or enable online game play
across a network, regardless of the device from which it is accessed; and Class III – game software used
for game play.101 According to ESA, ACS-type features, where they presently exist in game industry
products and services, are subordinate to, and typically used to enhance and support the primary purpose
of game play rather than ACS, and therefore qualify for a waiver from the Commission’s ACS rules.102
24.
ESA claims that each of these classes of equipment and services (1) are specifically
defined and demonstrate the similarity of the equipment and services within each class;103 (2) satisfy the
waiver standard of multipurpose equipment that has a feature or function that is capable of accessing ACS
but is nonetheless designed primarily for purposes other than using ACS;104 and (3) satisfy the
Commission’s general waiver standard, which requires a demonstration of good cause to waive the rules,
and a showing that particular facts of the petitioner make compliance inconsistent with the public
interest.105
25.
ESA defines Class I equipment as game consoles and handheld game devices, along with
their integrated online networks and peripherals that utilize ACS.106 ESA explains that Class I devices
share many similar characteristics including: “custom hardware and operating systems designed for game


99 As the Commission has previously noted, “in many instances, accessibility is more likely to be achievable if
covered entities consider accessibility issues early in the development cycle.” ACS Report and Order, 26 FCC Rcd
at 14609, ¶ 124. We acknowledge, as noted in Section II, supra, that the achievability analysis conducted for
products and services already under development at the time when the class waiver expires may take into
consideration the effort and expense needed to achieve accessibility during the developmental stage of the product
or service. ACS Report and Order, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2). However, if a
cable service provider or manufacturer of cable set-top boxes attempts to demonstrate, in response to an enforcement
action, that accessibility is not achievable for models introduced after October 8, 2015, the manufacturer or service
provider would also need to demonstrate that it has conducted accessibility planning throughout the time period of
the waiver, as early as possible during the design process for equipment and services. ACS Report and Order, 26
FCC Rcd at 14602, ¶ 108.
100 See ESA Petition at 21-22, 27 and 34. Eight years is measured from the ACS Report and Order implementation
date of October 8, 2013. See ACS Report and Order, 26 FCC Rcd at 14601-14605, ¶¶ 107-112.
101 See ESA Petition at 4.
102 ESA Petition at 9-10.
103 See 47 C.F.R. § 14.5(b); ACS Report and Order, 26 FCC Rcd at 14639, ¶ 193.
104 See 47 C.F.R. § 14.5(a); ACS Report and Order, 26 FCC Rcd at 14634, ¶ 181.
105 See 47 C.F.R. § 1.3; ACS Report and Order, 26 FCC Rcd at 14637, ¶ 188.
106 ESA Petition at 18-19.
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play; an integrated online network and marketplace unique to that platform and that emphasizes game
play functions while also providing ancillary functions; and parental control systems.”107 According to
ESA, game consoles “are first and foremost meant for playing games”108 and any ACS functionality “is
limited and is offered as a discrete, add-on feature designed to supplement and enhance the device’s
primary game play purpose.”109 ESA supports its assertions with examples of marketing materials that
emphasize the game play functions of the devices,110 the design of game consoles, which focuses on
technological advances directed to game play,111 the location of game consoles in the “Video Games”
section of physical and online retail establishments,112 and market research that has categorized game
console systems as a distinct category separate from telecommunications products and services.113 ESA
excludes from Class I general purpose devices with ACS features and functions, such as PCs and mobile
phones, even if those devices include game play.114
26.
ESA defines Class II as game distribution and online game play services that share a
common purpose of distributing games and enabling game play, but that are not games themselves.115
ESA explains that these services include “game download services, game streaming services, web sites
directed to hosting games or game-related support services, and online game networks (including those
associated with game consoles, when accessed through devices other than a game console).”116 ESA
excludes from Class II general communications services, including social networking services such as
Facebook, that may offer the ability to play games, as well as generalized distribution platforms such as
iTunes that originate outside of the game industry.117
27.
ESA contends that the primary purpose of online game services is game distribution and
enabling game play and not ACS as evidenced by various websites of game networks.118 While ESA
acknowledges that that these services offer some ACS chat functions, it says these functions are to


107 ESA Petition at 18.
108 ESA Petition at 11.
109 ESA Petition at 12.
110 ESA Petition at 12-17 and Exhibit A (listing, as examples, marketing materials by Microsoft, Nintendo and
Sony).
111 ESA Petition at 11 (listing, as examples, state-of the art Central Processing Units and Graphic Processing Units,
increased memory and storage capacity, advanced controllers, enhanced capabilities for multiplayer game play and
online marketplaces, all of which, according to ESA, “enable games of increased complexity and depth, while
simultaneously providing consumers fresh new ways to acquire games and enjoy them with their friends.”)
112 ESA Petition at 17-18 (listing, as examples, Best Buy, Target, and Amazon.com).
113 ESA Petition at 19 (providing, as an example, market research conducted by the NDP Group); ESA Ex Parte
Letter, October 11, 2012 at 1-3.
114 ESA Petition at 19.
115 ESA Petition at 22.
116 ESA Petition at 22 (footnote omitted, emphasis and parentheses in original). ESA adds that online game services
offer leaderboards, the ability to find other users for game competition, tournaments, chat, and game downloading.
Id. at 22-23.
117 ESA Petition at 26.
118 ESA Petition at 23-25 and Exhibit B (citing as examples, EA Origin’s, Microsoft’s Games for Windows LIVE,
and Valve Corp’s websites, all of which ESA says emphasize the functionality of ACS only in the context of game
play or the game distribution function). See also VON Coalition Comments at 1-2; TIA Reply Comments (on ESA
Petition) at 2.
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enhance or support game play, and that their primary focus is on delivering game content to the
consumer.119 Consequently, ESA concludes that even if ACS capabilities were absent, it “would not
impair these services’ primary purpose as a distribution platform.”120
28.
ESA defines Class III as game software, which covers game software in all of its forms,
including online games, but according to ESA is distinguishable from other software and entertainment
media.121 ESA asserts that the primary purpose of video game software is “self-evident”122 and adds that
it would be cumbersome to use in-game chat as a generalized communications platform, and that in-game
chat terminates when the game session ends.123 ESA further argues that game software is marketed and
designed primarily for game play and not ACS, and provides examples of such promotional materials that
support its assertions.124
29.
Finally, ESA argues that the ACS that occurs through its gaming systems and services
should be waived because this is not the sort of “general communications” that Congress intended to be
covered by section 716,125 i.e., it does “not constitute ACS in the sense meant by the CVAA, which was
intended to address real-time voice communications or text messaging between individuals.”126 Along
these lines, ESA concludes that accessibility of other forms of ACS “are far more likely to have
meaningful real-world implications than the limited and focused ACS functions of video games, which
means that the waivers will not adversely affect the fundamental Congressional concerns that propelled
the Act.”127
30.
ESA states that it has demonstrated good cause to waive the rules because the public
interest would be served by advancing innovation and fostering competition, class waivers would promote
efficiency by avoiding large numbers of individual waiver requests, and waivers would facilitate
voluntary efforts to increase accessibility to the many elements of games not covered by the CVAA.128
ESA further claims that its requested waivers will reduce uncertainty among manufacturers who might


119 ESA Petition at 25.
120 ESA Petition at 25.
121 ESA Petition at 31.
122 ESA Petition at 27.
123 ESA Petition at 28-29.
124 ESA Petition at 29-31 and Exhibit C. As examples, ESA notes that a 2012 Nielsen study found that the most
popular way to play the existing generation of console games remains offline, that only a small percentage of
Scrabble players use chat “to any significant degree,” id. at 29, and that the marketing for DC Universe Online and
the Madden NFL series confirms that their primary purpose is for game play. Id. at 30-31. ESA also points to the
websites of Microsoft Xbox Games for Windows and EA Origin to support its assertion that the marketing of game
networks identify game delivery and/or support as their primary purpose. Id. at 24.
125 ESA Petition at 12-13. ESA notes, for example, that voice communication when using the Xbox Live
multiplayer enables interaction with teammates and opponents, id. at 12 n.27, and that Sony’s marketing for the
PlayStation 3 “emphasizes the connection between chat and game play.” Id. at 13.
126 ESA Petition at 12 (footnote omitted). See also id. at 28 (noting that games are “about game play and are not a
generalized communications platform”); id. at 36, n.85. Although ESA acknowledges that some chat features
available through Class I consoles may be operated independently of a live game session, id. at 15, 25 n.63, and that
in this context chat “may not directly support game play,” it insists that it is still “focused on connecting with other
gamers and supporting other entertainment experiences on the console.” ESA Petition at 25 n.63.
127 ESA Petition at 36.
128 ESA Petition at 34-36.
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otherwise decline to experiment with new ACS features “for fear that such experimentation may trigger
unclear regulatory obligations disproportionate to the value of the feature to the overall product or
service.”129
31.
The Consumer Groups argue that the ACS features of game consoles, services and
software provide a co-primary purpose, that ACS is an essential function of games,130 and that the CVAA
requires that consumers with disabilities be able to attain and maintain access that is functionally
equivalent to that accorded other users in the gaming community.131 Specifically, Consumer Groups offer
several examples of how online communication and interaction with team players occur during game
play, in strategy sessions before and after play, and via third party software that is available on some
gaming systems.132 At the same time that the consumers claim reliance on online communications during
gaming sessions is growing and online communication is becoming essential to participation, they insist
that the failure to incorporate accessibility in the ACS features and functions is resulting in the exclusion
of users with disabilities.133
32.
The Consumer Groups add that the gaming community uses ACS to chat with friends and
teammates not only about games and avatars, but also about other matters, such as catching up with
friendships, making plans to meet, and swapping information on subjects other than the game, both inside
and outside of game play.134 For support, the Consumer Groups point to marketing materials and Internet
advertisements for games that they say emphasize the social networking aspect of ACS on game
consoles.135 Various other commenters report use of ACS in gaming systems to talk to people around the


129 ESA Petition at 35.
130 Consumer Groups Opposition to ESA Petition at 7-10. See also id. at 4 (because ACS has become critical to
receive and relay imperative information, particularly for multiplayer games with teams, games that do not have
ACS capabilities have become nearly extinct in the online community); Consumer Groups Ex Parte Letter, October
9, 2012 at 2-3.
131 Consumer Groups Opposition to ESA Petition at 2-3.
132 Consumer Groups Opposition to ESA Petition at 4.
133 See Consumer Groups Opposition to ESA Petition at 5 (individuals who have disabilities are already being
excluded “full membership to the gaming community”). ACB adds that the lack of accessible ACS features in
gaming consoles and services requires people who are blind, visually impaired or deaf-blind to pay for additional
devices and services to be able to utilize the entertainment content of these games. ACB Reply Comments at 5. See
also
Frank M. Hernandez Ex Parte Comments (August 29, 2012) (“People who are blind or visually impaired
should be able to fully use the most popular gaming technologies on the market today including any
communications features, such as text chat and other forms of electronic messaging.”); Tony B. Swartz Ex Parte
Comments (August 29, 2012) (“[O]ther communication components such as text chat and other forms of electronic
messaging should be made accessible.”).
134 Consumer Groups Opposition to ESA Petition at 4; Consumer Groups Supplement to Opposition at 2-6. The
Consumer Groups cite to game communications that resulted in marriage and other long term relationships.
Consumer Groups Supplement to Opposition at 2-3, citing A “World of Warcraft” Wedding (February 19, 2007),
available at: http://voices.yahoo.com/a-world-warcraft-wedding-206654.html?cat=19 (last visited, October 4, 2012)
(Noting that the reason that “[s]ome people may have a harder time understanding how and why people can meet in
a virtual game and then form a romantic relationship . . . is that people who have never played these types of game
have a hard time understanding how highly social they actually are.”). See also ACB Reply Comments at 2-4
(games are multimedia entertainment platforms with multiple primary purposes, including ACS).
135 See e.g., Consumer Groups Ex Parte Submission (August 20, 2012) at 2 (Consumer Groups August 20, 2012 Ex
Parte
), referencing an advertisement for Xbox, which states “Whether you’re on your computer, your phone or your
console, Xbox Social is your connection to the Xbox LIVE community.”
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globe,136 to promote socialization and interaction,137 and to foster learning in educational contexts.138
While the Consumer Groups seek a denial of the requested waivers,139 they add that if the waivers are
granted, they should be limited to a term of one year.140
33.
Discussion. We grant waivers for all three defined classes of products and services set
out in ESA’s petition. However, for the reasons enumerated below, we limit the term of these waivers to
a period of two years, rather than the eight years requested by ESA, so that the waivers will expire on
October 8, 2015, which is two years past the implementation date for compliance with these rules.141
While we are convinced that these class waivers are appropriate at this time, we believe that, given the
current trajectory of integration and use of ACS in gaming systems, granting waivers beyond October 8,
2015 at this point is outweighed by the public interest and congressional intent to ensure that Americans
with disabilities have access to advanced communications technologies.
34.
First, we agree that, as required by the ACS Report and Order, the classes of equipment
and services for which ESA seeks a waiver are defined with sufficient specificity and that the equipment
and services in each class share enough common defining characteristics to be granted class waivers.142
Specifically, per the definitions provided by ESA,143 for purposes of these class waivers, we define Class I
to include game consoles, both home and handheld, and their peripherals and integrated online networks,


136 See e.g., Evan Spytek Late-Filed Comments (August 17, 2012) (“One of my favorite parts of the Xbox360 is
being able to talk with people that live in different places. . . . Communicating with people is the awesome part
about the Xbox360 and one of the main reasons I like it.”); Darrell Borchardt Ex Parte Comments (September 7,
2012) (“We have relied on video game technology as a means to communicate with other people not just around our
community or country but from across the globe . . . there is also the bond that we are able to experience through
meeting other people via our video games. . . .”); DeAnna Noriega Ex Parte Comments (August 28, 2012) (“Several
times a day, friends and acquaintances send me requests to participate in an inaccessible online game. When I
interact with my children and grandchildren, I am told of the friends they have made in England or halfway across
the world through a game they share.”).
137 Gretchen Maune Ex Parte Comments (August 28, 2012) (“These games provide an extremely popular way for
people to socialize, play, and interact together and people with visual impairments should not be left out of this. It’s
hard enough to fit in when you’re so different, and the more ways in which we can relate to our sighted peers, the
better.”); Phyllis Slater Ex Parte Comments (September 2, 2012) (“For many of us across the world, this is a way to
have fun together.”).
138 Rene Latorre Ex Parte Comments (August 31, 2012) (“Gaming systems offer advanced communications
functionality such as text chat and other electronic messaging capabilities. . . . The growing popularity of gaming
technologies in K-12 education to foster learning and the overall impact of gaming technologies to bring people
together means that the accessibility of these gaming technologies must not be forgotten . . . gaming technologies . .
. serve as a communication device, promote social interaction, and enable the blind or visually impaired parent to
use it as an educational tool.”); Frank Welte Ex Parte Comments (September 11, 2012) (“Online game technologies
are being deployed for educational purposes, so it is important that such educational applications of gaming
technology be accessible to students who are blind or visually impaired.”).
139 Consumer Groups Opposition to ESA Petition at 2-3. See also Patricia Albee Comments; Todd Morrison
Comments; Don Cullen Comments; Sommer Willis Comments; Brian Coppola Comments (on ESA Petition);
Walter Newsome Comments; ACB Reply Comments at 2. Each of these commenters opposed the grant of the ESA
petition for waiver.
140 Consumer Groups Opposition to ESA Petition at 14.
141 See ACS Report and Order, 26 FCC Rcd at 14601-14605, ¶¶ 107-112.
142 See 47 C.F.R. § 14.5(b); ACS Report and Order, 26 FCC Rcd at 14639, ¶ 193.
143 See ESA Petition at 4, 18.
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which are designed for multiple entertainment purposes but with a primary purpose of playing games.
We define Class II to include game distribution and online game play services designed for the primary
purpose of distributing online game software or enabling online game play across a network. Class II
does not include general communications services, including general online social networking services
that offer the ability to play games or generalized digital distribution platforms originating outside of the
game industry.144 Class III includes game software that is designed for the primary purpose of game
play.145
35.
Next, we find that the equipment and services defined by these three classes are capable
of accessing ACS and are designed for multiple purposes, but, at present, are designed primarily for the
purpose of game play, which meets the waiver criteria of section 716(h)(1)(A) and (B) of the Act and
section 14.5(a) of the Commission’s rules.146 As explained by ESA, at this time, game consoles are
designed primarily for playing games,147 online game services are designed primarily for game
distribution and enabling game play,148 and video game software is designed primarily for game play.149
Among the factors used to determine whether ACS is a primary or co-primary use in gaming is the extent
to which the ACS functionality is advertised, announced, or marketed to consumers as a reason for
purchasing, installing, downloading, or accessing the equipment or service.150 Even though there is a
clear trend towards marketing the ACS features and functions of gaming equipment and services,151
currently, most of the marketing for these products and services emphasizes game playing.152
36.
Finally, we must determine the extent to which granting the requested gaming waivers is
in the public interest.153 A review of the record suggests that the competing public interests at stake – i.e.,
the ability of consumers with disabilities to use ACS to communicate with others via online gaming


144 See ESA Petition at 4, 26.
145 See ESA Petition at 4, 31.
146 47 U.S.C. § 617(h)(1)(A) and (B); 47 C.F.R. § 14.5(a).
147 See ESA Petition at 11-16 and Exhibit A.
148 See ESA Petition at 22-24 and Exhibit B.
149 See ESA Petition at 27-29 and Exhibit C. We disagree, however, with ESA’s suggestion that for a purpose to be
co-primary, it must be equal to other co-primary purposes. For support, ESA refers to the Commission’s statement
in the ACS Report and Order that where multipurpose equipment and services are “equally designed for multiple
primary purposes, none of which are the exclusive primary use or design purpose,” the denial of a waiver may be
appropriate. See ESA Reply Comments at 3-4, citing ACS Report and Order, 26 FCC Rcd at 14635, ¶ 184.
However, the ACS Report and Order goes on to provide as an example the smartphone, which is “designed for
several purposes, including voice communications, text messaging, and e-mail, as well as web browsing, two-way
video chat, digital photography, digital video recording, high-definition video output, access to applications, and
mobile hotspot connectivity.” ACS Report and Order, 26 FCC Rcd at 14635, ¶ 184. There is no evidence that
manufacturers designed each of these smartphone functions to be used equally by all consumers. As is apparent
from the smartphone example, the amount of intended usage, as designed by the manufacturer, or the amount of
actual usage by the customer of each function does not need to be considered “equal” in order for multiple purposes
within a device to be considered co-primary.
150 ACS Report and Order, 26 FCC Rcd at 14635, ¶ 185.
151 See, e.g., Consumer Groups August 20, 2012 Ex Parte at 2 (referencing an advertisement for Xbox that
emphasizes social connections); Consumer Groups Supplement to Opposition at 2-6 (referencing a number of
marketing materials where ACS features and functions are touted).
152 See ESA Petition at 17-18, 24-25. 30-31, and Exhibits A, B and C.
153 See ACS Report and Order, 26 FCC Rcd at 14637, ¶ 188.
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systems and services, versus the gaming industry’s interest in rolling out innovative games that are
currently or are about to go into development – make consideration of ESA’s waivers a closer call than
the waivers granted to CEA or NCTA, where the inclusion of ACS in the covered classes is not yet as
prevalent. We agree with ESA that granting waivers at this time will allow manufacturers of new online
gaming systems and services that have ACS to compete with other video game products and services that
are already in the market.154 We also agree that if granted waivers, gaming equipment manufacturers and
service providers will be able to benefit from and utilize the experience gained in making ACS accessible
in other contexts, to develop and implement ACS accessibility in the equipment and services that are
subject to the class waiver in a more efficient and cost-effective manner. However, we note the
increasing role that ACS is beginning to play in online gaming systems and services – both with respect
to the ability to compete effectively,155 and with respect to engaging in communications that are unrelated
to game play.156 We disagree with ESA that online communication that occurs through gaming systems
and services should be excluded from the coverage of section 716 because this is not the sort of “general
communications” that Congress intended to be covered by this section.157 Neither the CVAA nor its
legislative history restricts the Act’s coverage to ACS used for a particular purpose.158 The denial of
communications access during gaming – even if it is communication designed to better one’s participation
in the task created by the game, by conferring and strategizing with others – is included within the kinds
of barriers that Congress intended to address in the CVAA.159 Accordingly, given evidence in the record
of the expanding role of ACS in online gaming systems, we believe that good cause exists to waive the
Commission’s rules for the three gaming classes at this time, but to do so for a more limited period than
the eight years requested by ESA. During the period of the waiver, we will not require the equipment and
services covered by the waiver to comply with the obligations of section 14.20, the performance


154 See ESA Petition at 35.
155 See Consumer Groups Opposition to ESA Petition at 4 (noting that the ability to compete effectively during an
online game frequently turns on the ability to share information with other players.)
156 See ¶ 32, supra.
157 See ESA Petition at 12-13.
158 Senate and House legislative reports accompanying the CVAA speak of the “innovative and exciting ways to
communicate and share information” provided by Internet-based technologies, Senate Report at 1; House Report at
19, and the need “to ensure that individuals with visual, auditory or speech disabilities are able to fully utilize [such]
communications services and equipment. . . .” Senate Report at 2. According to Congress, section 716’s mandate
for accessible ACS, “is intended to ensure that individuals with disabilities are able to utilize fully the essential
advanced technologies that have developed since the passing of the Americans with Disabilities Act and subsequent
statutes addressing communications accessibility.” Senate Report at 3.
159 See Senate Report at 1-2; House Report at 19-20. In the same way that using ACS in the context of employment,
education, and civic affairs may be necessary for full participation in society, so too could having the ability to
communicate online in a recreational context. Just as the inability of an employee with a disability to send an e-mail
to a colleague might impede his ability to fulfill the essential functions of a job, and obstacles preventing a student
from conferring with a teacher online might cause her grades to suffer, so too, could an accessibility barrier
preventing a person with a disability from communicating during gaming create the type of exclusion and isolation
that the CVAA sought to eliminate. See generally, John Boone Ex Parte Comments (August 28, 2012) (“[I]f the
communications features of such technologies are allowed to continue to be inaccessible, kids, adults and seniors
with vision loss will continue to be shut out of full participation in school and community and will not be able to
enjoy the full benefits afforded by such technologies.”); Sandy Finkel Ex Parte Comments (August 29, 2012); Robin
Williams Ex Parte Comments (September 2, 2012); Fred Olver Ex Parte Comments (August 28, 2012).
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objectives of section 14.21 and the recordkeeping obligations of section 14.31 of our rules.160 As
discussed below, by limiting the waiver period to two years, we find that the public interest benefits of the
waivers outweigh the countervailing public interest concerns for covering gaming systems and services
under the ACS accessibility requirements of section 716.
37.
Duration of the Waiver. The eight-year waiver period that ESA seeks for all three
proposed waiver classes would end on October 8, 2021.161 For Class I video game consoles, ESA claims
that new systems typically are released every five to seven years, but that the lifecycle of such systems are
five to ten years because this includes the full period during which a typical consumer is likely to
purchase or continue to use the product.162 ESA states that Class II game distribution and online game
play services do not have a specific lifecycle,163 because “an online gaming service is upgraded and
refined, incrementally, over the duration the gamer uses the service.”164 In addition, ESA argues that
because Class II gaming services rely on underlying hardware, the timing of the waiver for Class II
should track the timing of the waivers granted for game consoles in Classes I and game software in Class
III.165 In describing the product cycle for Class III gaming software, ESA explains that although popular
games may be released annually, they are designed to last for several years.166 ESA argues that because
games depend upon the underlying hardware and network technology, the waiver for Class III should
track the waivers granted for Classes I and II.167
38.
As discussed earlier, because “[a]ll products and services covered by a class waiver will
ordinarily be subject to the waiver for the duration of the life of those particular products and
services[,]”168 a waiver extends to particular models of equipment for as long as the covered models are
sold without significant upgrades. Consequently, in defining the waiver period for each of ESA’s
products and services, we only consider the time it takes for a product to be developed and initially
introduced in the market, and not the period of time it is deployed.169 The remainder of the lifecycle—
that is, the time after introduction when the product or service is sold and the consumers continue to use


160 47 C.F.R. §§ 14.20, 14.21 and 14.31. The waiver of these rules also includes a waiver of the obligation to
conduct an achievability analysis during the period of the waiver. See ACS Report and Order, 27 FCC Rcd at
14607-14619, ¶¶ 119-148.
161 ESA Petition at 21-22, 27, 34. The waiver requested would start with the implementation date of the ACS rules,
October 8, 2013.
162 ESA Petition at 20-21. See also TIA Reply Comments (on ESA Petition) at 2-3. ESA adds that the current cycle
is longer “on account of console makers’ significant mid-cycle improvements to current generation consoles.” ESA
Petition at 19-20. We note that ESA’s estimated product lifecycle period is not consistent with the guidance in the
ACS Report and Order. Since a significant upgrade is considered a new product or service for ACS achievability
purposes, ACS Report and Order, 26 FCC Rcd at 14609, ¶ 124, and substantial upgrades require new waivers, ACS
Report and Order
, 26 FCC Rcd at 14639, ¶ 192, a “significant mid-cycle improvement” as described by ESA, ESA
Petition at 19-20, is thus a new product for development cycle purposes.
163 ESA Petition at 27.
164 ESA Petition at 26.
165 ESA Petition at 27. See also id. at 34.
166 ESA Petition at 33.
167 ESA Petition at 34.
168 ACS Report and Order, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2).
169 In particular, the life of a game console already sitting on a user’s shelf has no bearing on whether the waiver
should extend to consoles not yet manufactured. See Consumer Groups Opposition to ESA Petition at 13.
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the product—is relevant for making a public interest assessment of the ongoing impact of the waiver.
39.
If, as ESA suggests, the development cycle for video games is five to seven years,170 were
we to grant the waivers for the full eight years that ESA requests (until October 8, 2021), inaccessible
products and services introduced just prior to the end of the waiver period would continue to be sold for
another five to seven years – i.e., somewhere in the 2026 to 2028 timeframe. There is considerable record
evidence demonstrating the pervasiveness of gaming in American society,171 and the rapidly expanding
role of online communications services in gaming systems and services.172 ESA acknowledges that
although the popularity of video games occurred decades before online chat became possible through
broadband, ACS is “an evolutionary feature that some game designers have added as Internet connectivity
has become prevalent to enhance game play. . . .,”173 and that gaming “Class I systems have ACS
capabilities outside of any game function.”174 Other commenters have submitted evidence that game
manufacturers and service providers are beginning to promote video gaming equipment and services for
their ACS features, and consumers are beginning to enjoy these features, both for strategizing with team
players about game play and for multiple purposes unrelated to game play.175 Moreover, as gaming takes
on an ever-present role in our society, use of online gaming systems that have ACS options may have
increasing applications in the employment and educational contexts,176 as well as becoming a tool of
social integration.177 In this manner, gaming environments may increasingly take on the attributes of a


170 ESA Petition at 19.
171 ESA’s website notes that $24.75 billion was spent on video games, hardware and accessories in 2011. See
Consumer Groups Opposition to ESA Petition at 3. ESA itself notes that gaming software is one of the fastest
growing industries in America. http://www.theesa.com/facts/econdata.asp (last visited, October 4, 2012).
172 See, e.g., Consumer Groups Opposition to ESA Petition at 7-10.
173 ESA Petition at 28.
174 ESA Petition at 15. ESA’s website further states that 62 percent of gamers play games with others, either in-
person or online. http://www.theesa.com/facts/index.asp (last visited, October 4, 2012).
175 See Consumer Groups Comments at 4. See ¶ 32, supra, describing various uses of online game communication
services.
176 See e.g., http://www.ere.net/2010/12/22/6-tips-on-using-games-and-simulations-for-recruiting-success/ (last
visited, October 4, 2012) (U.S. Army has used Xbox video games to garner new recruits, L’Oreal has used video
games to help job candidates determine marketing skills, and IBM has used an interactive game “targeted at
business leaders, city planners and government agencies” to allow “players to react to a variety of crises and see
how their decisions affect outcomes.”); http://chronicle.com/article/5-Lessons-Professors-Can-Learn/63708/ (last
visited, October 4, 2012) (describing studies of video gamers that focused on the use of games in higher education to
conduct complex problem solving and collaborative learning, including “players in a chat room that used complex
mathematics to argue for a certain plan of attack”); http://www.abcya.com/teachers.htm (last visited, October 4,
2012) (a teacher-created website with downloadable educational games for children in grades kindergarten to fifth
grade). We note that although ESA limits its Class I definition to gaming consoles that are designed for “multiple
entertainment purposes,” there is no such limitation on its Class II and Class III definitions, and therefore games
used for employment and education purposes potentially could be included in these classes.
177 Consumer Groups point out that Rockstar Games, a developer of mass market titles such as Grand Theft Auto
and Max Payne, has established its own in-house gaming community, “Rockstar Games Social Club,” emphasizing
the social component of online game play. Consumer Groups Supplement to Opposition at 6, citing
http://socialclub.rockstargames.com (last visited, October 4, 2012). Similarly, according to one gaming website,
“[r]omantic relationships aren’t the only type that we see develop in video games. Non-romantic relationships form
as well, such as close friendships between two people with similar interests that might never have met one another
otherwise. These friendships tend to last long after the game has grown cold and even after one or both players have
(continued….)
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social network for which communication is essential.178 As Congress explained, the benefits of modern
communications technologies “have profoundly altered our everyday lives . . . allowing mobile access to
the Internet and a diverse menu of applications and services.”179 Though many advances have improved
the communications capabilities of persons with disabilities, Congress noted that “the extraordinary
benefits of these technological advances are often still not accessible to individuals with disabilities.”180
Because we are concerned about the harm to consumers with disabilities that might result from the denial
of access to ACS for so long a duration, we find that that granting a waiver for video game consoles,
services and software for an eight-year period would be contrary to the public interest.
40.
We are also concerned that the evidence provided by ESA may not correlate with the
actual development cycles that apply to each of the classes within the meaning of the ACS waiver
framework. First, as noted above, it is not clear that ESA’s determination of a five to seven year lifecycle
for Class I properly accounts for significant mid-cycle upgrades.181 When a product or service is
substantially upgraded, the ACS Report and Order considers it a new product or service for the purpose
of determining its lifecycle.182 Second, ESA claims that services and software in Classes II and III each
merit an eight-year waiver because of their interdependency with each other and with the gaming
hardware covered under Class I.183 However, the services and software encompassed within Classes II
and III (as defined by ESA) are not necessarily limited to use with Class I equipment. As such, their
development cycles may be shorter than offerings that are linked to gaming consoles and other equipment
covered by Class I. In light of our concern that people with disabilities will be denied access to essential
ACS, and the lack of more definitive evidence in the record on the development cycle for the products
and services of the covered classes, we find that granting ESA’s request for waivers for a two-year period,
beginning on October 8, 2013 and ending on October 8, 2015, is reasonable and will best serve the public
interest. Adopting a two-year waiver period for ESA will encourage product engineers and manufacturers
to strive to incorporate accessibility sooner into their gaming products and services, which will in turn
(Continued from previous page)


stopped playing the original game which they met in.” http://voices.yahoo.com/a-world-warcraft-wedding-
206654.html?cat=19 (last visited, October 4, 2012).
178 In the ACS Report and Order, the Commission explained that while it recognizes that Congress’s “‘primary
concerns . . . are focused on more traditional, two-way, interactive services,’ [it does] not interpret that expression of
primary concerns or focus to exempt new or less traditional electronic messaging services that fully meet the
definition in the Act.” ACS Report and Order, 26 FCC Rcd at 14575, ¶ 43 n.83, quoting Senate Report at 6, House
Report at 23. The Commission accordingly found it consistent with Congress’s intent to conclude that electronic
messaging service covered by sections 716 and 717 of the Act (defined by Section 3(19) of the Act, 47 U.S.C. §
153(19)) includes two-way interactive services such as text messaging, instant messaging, and electronic mail, even
when such services are provided through social networking or related sites. ACS Report and Order, 26 FCC Rcd at
14574-14575, ¶ 43, citing Senate Report at 6; House Report at 23. It is consistent with this line of reasoning to
conclude that online communication that takes place within an online social gaming community network can be
covered by section 716 .
179 Senate Report at 1; House Report at 19.
180 Senate Report at 2; House Report at 19.
181 See ¶ 37 n.160, supra; ESA Petition at 19-20 (describing significant mid-cycle improvements to current
generation consoles).
182 See ACS Report and Order, 26 FCC Rcd at 14639, ¶ 192 (substantial upgrades require new waivers).
183 ESA Petition at 34 (there is an “interdependency of Class III offerings with game hardware and online game
networks,” which means that “major changes to Class III offerings are likely to track or result from significant
changes in these other classes, such as the release of new consoles or other major game technology”).
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promote innovation – not only for people with disabilities, but for the general public.184 Finally, granting
ESA a two-year waiver will enable the Commission’s analysis of any future requests to extend the
waivers to be informed not only by the evidence specific to game products and services, but more
generally by the development of accessibility features throughout ACS industries.185
41.
The action we take herein is without prejudice to ESA exercising its right to come back to
the Commission at a later time to request an extension of the waivers. We recognize, given the lengthier
product cycles for video game consoles, that accessibility for these products may not be achievable by
October 8, 2015 in all cases. However, manufacturers and service providers will be expected to plan for
accessibility over the next three years and to consider accessible design early during the development
stages of the next generation of their products and services to better enable them to eliminate accessibility
barriers when the class waiver expires on October 8, 2015.186 Given the dynamism of the electronic
software industry, should ESA seek to renew or extend the class waivers granted herein, it may be
necessary for ESA to define with greater specificity the classes of equipment and services under
consideration at that time.

VI.

ORDERING CLAUSES

42.
Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 4(i),
4(j) and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), (j) and 617, and
sections 0.361, 1.3 and 14.5 of the Commission’s Rules, 47 C.F.R. §§ 0.361, 1.3 and 14.5, this Order IS
ADOPTED.
43.
IT IS FURTHER ORDERED that the Consumer Electronics Association Petition for
Waiver IS GRANTED to the extent discussed above and IS OTHERWISE DENIED.
44.
IT IS FURTHER ORDERED that the National Cable & Telecommunications Association
Petition for Waiver IS GRANTED to the extent discussed above and IS OTHERWISE DENIED.
45.
IT IS FURTHER ORDERED that the Petition of the Entertainment Software Association
IS GRANTED to the extent discussed above and IS OTHERWISE DENIED.


184 We disagree with TIA that application of the ACS rules to gaming necessarily would discourage investment and
innovation and hamper the proliferation of ACS features in gaming products. TIA Reply Comments (on ESA
Petition) at 3-4. In many instances, innovative accessibility features are used by people without disabilities, such as
talking caller ID systems, which enable people who are blind to ascertain the identities of incoming callers, but
which also are used by sighted people seeking to enjoy dinner without getting up from the table to answer a call.
185 We also believe that a waiver period of two years will better correlate with the delivery of the second biennial
CVAA Report, due to Congress in 2014. The preparation for such report will necessarily entail a review of the
development of added accessibility features and functions in new ACS products and services.
186 See ACS Report and Order, 26 FCC Rcd at 14609, ¶ 124 (“we believe in many instances, accessibility is more
likely to be achievable if covered entities consider accessibility issues early in the development cycle”). We
recognize, however, that the achievability analysis conducted for products and services already under development
at the time when the class waiver expires may take into consideration the developmental stage of those products or
services and the effort and expense needed to achieve accessibility at that point in the developmental stage. See
ACS Report and Order
, 26 FCC Rcd at 14640, ¶ 194. See also 47 C.F.R. § 14.5(c)(2). However, if a manufacturer
or provider of video game consoles, services or software attempts to demonstrate, in response to an enforcement
action, that accessibility is not achievable for models introduced after October 8, 2015, the manufacturer or provider
would also need to demonstrate that it has conducted accessibility planning throughout the time period of the class
waiver, as early as possible during the design process for equipment and services. ACS Report and Order, 26 FCC
Rcd at 14602, ¶ 108.
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46.
IT IS FURTHER ORDERED that this Order SHALL BE EFFECTIVE upon release.
47.
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 and Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief
Consumer and Governmental Affairs Bureau
24

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