The CVAA: Video Game Chat Must Be Accessible To People With Disabilities

Beginning January 1, 2019, video games that allow players to communicate by text, voice, or video are subject to a U.S. law enacted nine years ago that requires communication services to be accessible to people with disabilities.  The Twenty-First Century Communications and Video Accessibility Act of 2010, or CVAA, updated communications laws from the 1980s and 1990s to extend accessibility requirements to digital and internet technologies.  Most industries were required to comply with the law beginning in 2012, but video game software was exempted under series of waivers granted by the Federal Communications Commission to the Entertainment Software Association to allow the video game industry to develop and implement accessibility solutions.  The FCC granted a third extension of the waiver in 2017 based in part on the ESA’s representation that it would be the industry’s final request.  That extension expired on December 31, 2018, and as a result, all new and substantially upgraded games now must comply with the CVAA unless the FCC grants an individualized waiver for a specific game.[1] 

The CVAA applies to “advanced communication services,” which it defines to include (1) interconnected voice over Internet protocol (VoIP) services, i.e., voice calling over the traditional phone network; (2) non-interconnected VoIP services, i.e., voice communications using Internet protocol that do not fit the FCC’s definition of “interconnected” VoIP; (3) electronic messaging services, such as instant messaging, text messaging, chat, and email; and (4) interoperable video conferencing services, i.e., video calling.  If a video game permits communication between players using any of these technologies, it is now subject to the CFAA. 

The CVAA requires game developers and publishers to take steps to ensure that people with disabilities—broadly defined to include impairments to hearing, vision, speech, manipulation, movement, and cognition—can access and use these communication functionalities if doing so is “achievable,” i.e., technically feasible with reasonable effort or expense.  The FCC will consider four factors in determining whether removing barriers to access is achievable.  Most relevant to game companies are the first two factors: the nature and cost of steps needed to make the product or service accessible, and the technical and economic impact on the operations of the manufacturer or provider and on the operation of the product or service.  The other two factors are the entity’s types of operations and the extent to which the entity provides products or services with different functionalities and features and different price points.  In applying these four factors, if the development of a game published after January 1, 2019, started before that date, the FCC will consider how far along the development was as of January 1, 2019.

The CVAA also requires game developers and publishers to maintain records for each game describing (1) their efforts to consult with people with disabilities about accessibility barriers and solutions, (2) the game’s accessibility features, (3) its compatibility with widely used assistive technologies, and (4) the extent to which compliance was not achievable.  The records must be maintained until two years after the entity ceases to offer the game.  If compliance was not achievable, the records should include information to demonstrate why, under the FCC’s four factor analysis above, so that the entity can rely on those records to defend against consumer complaints. 

In addition, the CVAA requires game developers and publishers to submit annual compliance certifications to the FCC’s online registry.  The certifications must state that the entity has established adequate operating procedures to ensure compliance with the record-keeping rules, and must be supported by a sworn affidavit by an authorized officer with personal knowledge of the representations in the certification.  The entity must also provide contact information for a corporate representative authorized to resolve consumer complaints and for a U.S. agent for service of consumer complaints. 

Consumers cannot sue in court or seek damages for violations of the CVAA.  The only private remedy under the CVAA is to ask the FCC to intervene.  A consumer begins by requesting “dispute assistance” from the FCC’s Disability Rights Office.  The DRO will work with the consumer and the entity providing the communication service to try to resolve the dispute.  If the dispute is not resolved within 30 days, the consumer can either extend the DRO process for an additional 30 days or file a complaint with the FCC.  If the complaint contains the necessary information, the FCC will send it to the entity, which must respond within 20 days.  The FCC will conduct an investigation and notify the consumer of its decision.  If it determines that the entity failed to comply with the CVAA, the FCC may impose fines of up to $100,000 for each violation, or for each day of a continuing violation, up to a maximum of $1 million per violation.

Game companies may apply to the FCC for individualized waivers for specific games, but the waivers are likely to be difficult to obtain.  In deciding whether to grant an individualized waiver, the FCC will consider whether the game is designed primarily for purposes other than accessing communication services, whether it was designed to be used for communication services by the general public, and whether the communication features are touted in advertising or promotions.  In granting the prior industry-wide waivers, the FCC found that although video game software was capable of accessing communication services, it was designed primary for playing games.  But the FCC also noted a clear trend toward marketing in-game communication features, and since that time the existence and marketing of such features has become ubiquitous.  Further, waiver applications must be submitted for public comment, and consumers are likely to oppose waivers on the ground that in-game communications have become a core part of gameplay and the gaming experience. 

[1] The waiver for video game consoles and distribution platforms expired in 2015.

By Ryan Tyz, the “Straight Shooter”