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Digital Accessibility and the FCC’s Net Neutrality Ruling

C.P. Hoffman 01/16/18

Last month, the Federal Communications Commission (FCC) voted to repeal Obama-era net neutrality regulations. While the full implication of the decision remains unclear, one major question has been how the repeal will affect the ability of individuals with disabilities to access the Internet.

With the release of the FCC’s full order, we now have a partial answer: the commission has retained its power to protect individuals with disabilities under Title II of the Communications Act, but it does not have any specific plan to do so at this time.

Prior to the FCC’s vote, disability rights advocates argued that net neutrality was necessary because it would prohibit discriminatory pricing, unreasonable data caps and overage fees, and throttling of sites and services used by individuals with disabilities. Broadband providers, on the other hand, contested this, arguing that net neutrality harmed their ability to prioritize traffic by the advanced communications services and telemedicine applications used by individuals with disabilities.Icon for Advanced Communication Services (ACS)

In its 539-page Order, however, the FCC acknowledged the very real concerns about digital accessibility. Although the FCC’s Order emphasized that “a variety of accessibility requirements already have applied in the context of broadband Internet access service” under the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), it acknowledged that there were situations where ISP policies that appeared on their face to be neutral could disproportionately affect individuals with disabilities.

The Order, for example, referenced how bandwidth limits or data caps could restrict the ability of individuals with who were deaf, hard of hearing, or who had speech disabilities to use video relay services to communicate. The Order also found that although Internet access enabled individuals “to achieve greater productivity, independence, and integration into society in a variety of ways,” they lagged behind the broader public in Internet access because of barriers such as inaccessible hardware, software, and services.

Because of this, the FCC opted not to waive Title II requirements in the context of access to the Internet by individuals with disabilities. Although existing regulations under the CVAA offer some protections, the FCC noted that it was “persuaded by the record of concerns about accessibility in the context of broadband Internet access service that we should not rest solely on the protections of the CVAA.” As such, the FCC maintained its power to issue new regulations and orders to protect individuals with disabilities from other forms of discrimination.

The FCC does not, however, appear to have current plans to enact any additional regulations to guarantee individuals with disabilities access to the Internet, although it left open the possibility for the future. According to the Order, “To the extent that other accessibility issues arise, we will address those issues in separate proceedings… to ensure that broadband networks are accessible to and usable by individuals with disabilities.”

For more information on the CVAA, download our whitepaper, The 21st Century Communications and Video Accessibility Act.

This blog post is for informational purposes only and does not constitute legal advice.

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