FCC Enforcement Office Punishes ViaTalk For Failure To Provide Product Support To People With Disabilities | Davis Wright Tremaine LLP


In late August 2021, the Federal Communications Commission (FCC) Enforcement Office issued an order and citation to ViaTalk, LLC, for failing to meet its obligations under the Commission’s accessibility rules in 47 CFR § 6.11 (a). Specifically, the Bureau found that ViaTalk, a provider of interconnected VoIP services, failed to ensure that its customers with disabilities had access to adequate product support communications and therefore failed in its obligation to ensure that its customers with disabilities had access to adequate product support communications. services were accessible and usable by people with disabilities. .

FCC Accessibility Rules

The FCC Rules (Implementation of Section 255 and Section 716 of the Communications Act) impose obligations on manufacturers and service providers with respect to the accessibility and friendliness advanced telecommunications and communications services and equipment, respectively, by persons with disabilities to the extent that such accommodations are feasible.

Part 6 of the FCC Rules governs telecommunications service providers and equipment manufacturers, including those that offer interconnected VoIP services and products, on or before October 7, 2010. All non-interconnected VoIP services and Interconnected VoIP offered after this date are considered “advanced communications services” governed by Section 716 and Part 14 of the FCC Rules, added under the Accessibility of Communications and Video Act of 21st. Century (CAAC) Part 14 of the FCC Rules also includes procedures for filing a complaint against a manufacturer or service provider alleging violations of Section 255 as well as Section 716.1

Requirement

In this case, the plaintiff Cris Patterson, a quadriplegic, was having problems with his VoIP service and his equipment provided by ViaTalk. Patterson made several requests to ViaTalk in May 2020 to have someone call him and help him solve his problems.

When ViaTalk did not follow Patterson and refused to send a technician as requested, he filed an informal complaint with the Bureau alleging violations of Sections 255 and 716 of the Communications Act and that ViaTalk’s VoIP service was “Inaccessible”. Because ViaTalk began offering its VoIP service in 2005, the FCC assessed the request in accordance with Section 255 and Part 6 of its Rules.

Questions presented

  • 1. Has ViaTalk fulfilled its obligation to provide an accessible service in accordance with Articles 255 and 47 CFR § 6.5 (b)?
  • 2. Has ViaTalk fulfilled its obligation under Section 47 CFR § 6.11 (a) of the Commission Rules to “ensure access to information, including product support communications, to people with disabilities? “

Conclusions of the Bureau

Since Patterson had successfully used the services for over 10 years, the Bureau concluded that ViaTalk had fulfilled its obligations with respect to the provision of accessible VoIP services. Therefore, the defenses that ViaTalk presented regarding service obligations (e.g., small entity exemption, service issues were caused by the requesting ISP) were not discussed in detail by the Bureau. . This is important as it has long been feared that VoIP signal packet technology is not ideal for the transmission of TTY messages.

However, the Bureau also found that ViaTalk had breached its obligation to provide adequate product support communications to the requester. Ultimately, the Bureau found that planning a follow-up call with Patterson was easily achievable, and ViaTalk has violated its obligation to provide product support communications by not doing so.

In addition, ViaTalk has an existing callback service that the company provides to its customers, but chose not to schedule a callback because the Patterson was threatening litigation. The Bureau concluded that the obligation to comply with section 255 and the rules had not been eliminated because the applicant threatened legal action.

That this case focuses on ViaTalk’s VoIP customer support is not surprising as the large number of accessibility complaints against service providers (as opposed to equipment manufacturers) relate to failing to not provide adequate customer support rather than the underlying service.

Proposed remedy

The Bureau determined that ViaTalk’s customer service support for its interconnected VoIP service did not comply with FCC accessibility guidelines and, therefore, ordered ViaTalk to take specific steps to improve its support. customer service for people with disabilities, but refused to impose confiscations. Specifically, the FCC released the following proposed solutions and gave ViaTalk 14 days to comment:

  • System wide improvements: The Bureau directed ViaTalk to implement “system-wide improvements to ensure that in the future all people with disabilities will receive prompt and effective responses to concerns about their service.” Specifically, within 30 days of the remedy order, ViaTalk must establish “processes to ensure that (1) complaints from people with disabilities are promptly referred to an authorized ViaTalk representative to resolve the issue and (2) ViaTalk documents all efforts to resolve such complaints and retain such documents for twenty-four (24) months.2
  • Contact the applicant: ViaTalk must contact Patterson within 14 days and schedule a call to help him with his equipment within 28 days.3
  • No confiscation: The Bureau declined to propose monetary forfeiture under this order, but the Bureau notes that it is “not precluded from doing so in a separate proceeding.”4

In particular, failure to comply with this order may result in penalties and sanctions, including fines of up to $ 100,000 per violation or per day of continuing violation.5

FOOTNOTES

1 There are distinctions depending on the timing service offered. For services governed by section 255 on or before October 7, 2010, service providers must make the product or service accessible or usable by persons with disabilities if “readily achievable”, which is defined as “readily achievable and capable of being achieved without too much difficulty or expense. 42 USC § 12181 (9.) For services provided after October 7, 2010, the standard changed somewhat (under Section 716) to remove “readily” and require accommodation if “feasible”, defined as “ with reasonable effort or expense ”. 47 USC §§ 617 (a) (1), (b) (1), (g). The burden of showing that accessibility is “not achievable” is high; “Not easily achievable” less.
2 Order at ¶ 27.
3 Order at ¶ 26.
4 Order at ¶ 25.
5 Quote in 2.

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