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General Requirements

The ACS and Mobile Browser requirements of the CVAA allow for accessibility solutions to be provided via third party solutions for a nominal cost. The goal of this is to provide flexibility at an industry level in how to effectively implement accessibility requirements and not require any one manufacturer to bear the sole cost of making an entire technology stack accessible.

As an example, when creating an Android smartphone, developers of the phone are not required to develop a self-voicing phone as a means of achieving conformance with key portions of 47 CFR 14.21 (b). Instead, developers generally provide support for the Android screen reader, TalkBack, which in this case would be a “third party” solution. In the same vein, the developers of a desktop ACS solution do not need to provide functionality for controlling the application vocally. Instead, they could provide support for widely-used voice recognition software present on the market. Given the complexity of assistive technology and the scope of the regulation, SSB expects that providing support for third party assistive technologies will become the standard approach for providing accessibility.

Manufacturers that choose to achieve accessibility via third party solutions, however, face a variety of requirements. In providing the third party solutions, manufacturers are required to “identify, notify consumers of, find, and arrange to install and support the third-party technology along with the covered entity’s product to facilitate consumer access to third-party solutions (FCC 11-151 ¶154).” This requires that the manufacturer ensure both that the product is readily available “around the same time as when the product or service is purchased (FCC 11-151 ¶155)” and that the product can be installed in a straightforward fashion. The manufacturer is obligated to arrange for the installation of third party solutions when they are used to provide accessibility. In practice for software-based assistive technologies, however, this is likely to prove impractical, and providing support for the installation process is likely sufficient.

It should be noted that if manufacturers or service providers elect to provide accessibility through the use of a third party solution, they are required to provide support for that solution (FCC 11-151 ¶157). Support is required to be provided for the longer of the life of the primary product or two years after the third-party solution is no longer available. If the third-party solution identified by the manufacturer or service provider to provide accessibility is no longer available on the market, then the manufacturer or service provider must identify a new solution.

Nominal Cost

The definition of nominal cost, and the issues relating to it, can be found in the Report and Order on the ACS (FCC 11-151). The core issue of nominal cost as discussed by the FCC is covered in paragraph 152:

As supported by several commenters, we adopt the Commission’s proposal in the Accessibility NPRM that “any fee for third-party software or hardware accessibility solutions be ‘small enough so as to generally not be a factor in the consumer’s decision to acquire a product or service that the consumer otherwise desires.’” We will apply this definition in accordance with the proposal submitted by AFB that in considering whether the cost to the consumer is nominal, we must look at the initial purchase price, including installation, plus the ongoing costs to the consumer to keep the third-party solution up to date and in good working order, and that the total cost to the consumer must be nominal as perceived by the consumer. We believe that this approach, which emphasizes the definition of nominal cost as perceived by the consumer, addresses the IT and Telecom RERCs’ concerns that our proposed definition of nominal cost provides insufficient guidance and does not take into account that many people with disabilities are poor and already face greater costs for nearly every aspect of their lives. In other words, the definition of nominal cost as perceived by the consumer will take into account the financial circumstances generally faced by people with disabilities.

In a later note, the FCC states that “we will therefore determine whether the cost of a third-party solution is nominal on a case-by-case basis, taking into consideration the nature of the service or product, including its total lifetime cost.” Further, the commission explicitly rejects a fixed percentage of cost approach. Instead, nominal is judged on a case-by-case basis against (i) the user’s economic resources and (ii) the total life cycle cost of the solution. In summary, it is fair to assume that a “nominal cost” would be quite low. As a rough rule of thumb, SSB recommends $100 or below as reasonable starting point for determining if something has a nominal cost.

In meeting the definition of nominal cost, many assistive technologies – such as JAWS and Dragon Naturally Speaking Professional – would be cost-prohibitive and are unlikely to meet the FCC’s definition of “nominal.” Other costly assistive technologies such as Window-Eyes and System Access are available on payment plans, which muddies the waters as to whether these are considered “nominal costs.” With that in mind, the following bullets list different free or low-cost solutions which would likely meet the FCC’s intent:

  • Screen readers: NVDA, System Access to Go, Narrator built into Windows 8, VoiceOver built into MacOS X
  • Screen magnifiers: Windows Magnifier, MacOS Zoom
  • Speech recognition: Windows Speech Recognition
  • iPhone: VoiceOver (screen reader), Zoom (screen magnifier), AssistiveTouch (for mobility disabilities)
  • Android: TalkBack (screen reader)
  • Blackberry OS 10: TBD

In addition to the specific list above, SSB would also broadly note that assistive technologies included free of charge in the base operating system of a system or device are likely to meet the definition of nominal cost. In most modern desktop operating system environments – notably in Windows 8 and the latest version of Mac OS X – the included assistive technologies are fairly feature rich and provide a reasonable baseline level of accessibility support for users. Validating functional use of a system with these base assistive technologies is likely to provide a defensible basis for use of the system in third party assistive technologies available at a nominal cost.

While no specific guidance is provided by the FCC, it is reasonable to assume that the definition of nominal cost will vary for commercial versus consumer products. Based on the FCC’s evaluation of nominal cost factors, users in a commercial environment are likely to have (i) significantly greater economic resources and (ii) a far greater ability to support high total life cycle cost solutions. In contrast, users in a consumer environment are likely to have (i) far more limited economic resources and (ii) far lower tolerance for total life cycle cost. In practice, this means that many of the higher cost assistive technology solutions that are not likely to meet the definition of nominal cost in a consumer context would meet the definition in a commercial context. Accordingly, an organization could choose to target usage in operating system based assistive technologies for consumer products, but target usage in more complex assistive technologies in commercial products.