An important legal waiver recently expired and as a result, video game developers and publishers must now ensure that new and substantially upgraded games comply with the accessibility requirements of the 21st Century Communications and Video Accessibility Act ("CVAA"). 


While the CVAA was signed into law in 2010, video game developers and publishers were granted a waiver exempting them from compliance. However, the final waiver for video games expired on December 31, 2018, and the Federal Communications Commission ("FCC") has stated that no additional waivers will be granted. Therefore, as of January 1, 2019, video games must comply with the law. What does compliance look like? Here's what we know:

What does the CVAA require? The CVAA requires that any "advanced communications services" a video game utilizes are made accessible to those with disabilities. The law applies to manufacturers and service providers of games that contain advanced communications services. Advanced communications services include text messaging, email, instant messaging, and video communications services. Specifically, the act defines the term as: "interconnected voice over Internet protocol (VoIP) service; (2) non-interconnected VoIP service; (3) electronic messaging service; and (4) interoperable video conferencing service." If a game features any of these services (such as a chat function), they must be made accessible to those with disabilities. 

Which video games must comply? Any game released to the public prior to December 31, 2018 is still covered under the previously issued waivers. However, all new games released January 1, 2019 and after, and all pre-existing games that undergo future "substantial upgrades" must comply with the CVAA. Based on existing FCC guidance and decisions concerning other technology covered by the CVAA, a "substantial upgrade" means any upgrade to a video game that changes the nature of the product so as to present developers/publishers with a "natural opportunity" to assess the accessibility of advanced communications functions. Natural opportunities 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." The FCC's guidance would seem to encompass many potential scenarios.    

Do any exceptions remain available?  If accessibility for a video game is not "achievable", the FCC may grant a further exception for that particular game. The FCC's achievability analysis looks at four statutory factors, including: (i) the nature and cost of the steps needed to comply; (ii) the technical and economic impact on the operation of the video game developer or publisher and on the operation of the video game and its development; (iii) the type of operations of the developer or publisher; and (iv) the extent to which the developer or publisher offers accessible services or equipment.

What are the penalties for non-compliance?  CVAA non-compliance may result in fines up to $100,000 for each violation. This amount can be increased by up to $100,000 for each day of a continuing violation — up to a maximum of $1,000,000 for any single act or failure to act. 


While we cannot predict the amount of FCC CVAA enforcement to come, enforcement in other technological areas suggests that developers and publishers would be wise to ensure their video games are in compliance as soon as possible. Developers should discuss the CVAA with their publishers and the platforms that support their video games to understand and coordinate on what features and systems may already be in place or are currently under development. Developers and publishers should be aware that the CVAA specifically envisions that individuals will submit complaints concerning which video games should be investigated for lack of compliance.

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.