Overview
On Oct. 31, 2013, the FCC released rules requiring audible output of pre-installed video programming guides and menus on set top boxes, CableCARD televisions, and other devices employing conditional access technology (both leased and made available at retail) (all referred to here generically as “navigation devices”), and of on-screen menus and visual indicators on video players, i.e., televisions, PCs, mobile devices and removable media players, and user interfaces of video applications installed or directed to be installed with the players, such as Netflix, Hulu and Amazon (all referred to here generically as “digital apparatus”). Apps for viewing multichannel video on third party apparatus are not covered, unless pre-installed. The rules, which implement Sections 204 and 205 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), also require digital apparatus to make accessible 11 built-in functions related to the reception, play back or display of video programming (including power, volume, channel selection, configuration, playback and input selection controls) by making them operable without vision. Navigation devices must make nine of those 11 functions audible to the extent they are related to the display or selection of video programming and are provided via on-screen text menus or guides. All of these requirements pertaining to on-screen menus and guides are subject to an “achievability” standard. Digital apparatus and navigation devices must also provide access to closed captioning (and, for digital apparatus, to video description as well) through a mechanism reasonably comparable to a button, key or icon.
In addition, the new rules delineate the obligations of MVPDs and navigation device manufacturers to provide accessible navigation devices “upon request,” which generally requires doing so within a reasonable time and in the same way the entity makes navigation devices available to all consumers. MVPDs and manufacturers may also utilize separate equipment or software in some instances to bring navigation devices into compliance with the accessibility requirements, but such entities are responsible for providing those separate solutions to a requesting person at no additional charge. The entities responsible for compliance with these new rules are digital apparatus manufacturers, navigation device (hardware and software) manufacturers, and MVPDS that lease or sell navigation devices. Compliance is required, where achievable, for all navigation devices and digital apparatus manufactured after the date that is three years from publication of the Order in the Federal Register, or five years from publication for certain mid-sized and smaller MVPD operators (not among the top 14 operators) and systems (fewer than 20,000 subs and not affiliated with an MVPD serving more than 10.1 million subscribers). Display-only monitors and retail video projectors also are allotted additional time to come into compliance, while general purpose broadband equipment (such as routers), digital cameras, professional and commercial equipment, and public safety and enterprise equipment are exempted entirely.
Navigation Devices (Section 205)
The FCC’s new rules implementing Section 205 of the CVAA require audible output of pre-installed guides and menus on navigation devices. The FCC defined navigation devices as those devices employing a CableCARD slot or other conditional access mechanism, and include both devices that are leased by MVPDs and those made available at retail. The accessibility rules also apply to third-party devices that come with pre-installed MVPD apps that allow a user to view MVPD programming. MVPDs as well as navigation device hardware and software manufacturers each bear responsibility for complying with the rules and each have potential liability. The FCC stated that, in the event of a complaint, it will sort out who is responsible on a case-by-case basis.
For navigation devices, nine functions related to the display or selection of video programming must be made audible if offered through the on-screen text menu or guide. The nine functions are a subset of the list of 11 essential functions previously identified by the Video Programming Accessibility Advisory Committee (“VPAAC”) and include: Channel/Program Selection; Display Channel/Program Information; Configuration – Setup; Configuration – CC Control; Configuration – CC Options; Configuration – Video Description Control; Display Configuration Info; Playback Functions; and Input Selection. If any of these nine functions are not offered on a navigation device, they do not need to be added; rather, the FCC’s new rules only require that functionality already included in the device be made accessible. Furthermore, if a function is offered in some other capacity – such as via a dedicated play, rewind or pause feature on a remote control, as opposed to via an on-screen text menu or guide – that function is not covered by the new rules. The remaining two VPAAC essential functions, “Power On/Off” and “Volume Adjust and Mute,” must also be accessible to the extent they are accessed through the guide or menu, but these two functions need not be audible.
The FCC declined to adopt new performance objectives to evaluate accessibility or compliance with the new rules, but instead explained that it will apply the definitions set forth in Section 6.3 of its rules (those requiring accessibility of telecommunications and interconnected VoIP) to explain its expectation of accessibility for the 11 essential functions. Section 6.3(a) states that “accessible” means that input, control, and mechanical functions shall be locatable, identifiable, and operable in accordance with each of the following, assessed independently:
-
Operable without vision. Provide at least one user mode that does not require vision.
-
Operable with low vision and limited or no hearing. Provide at least one mode that permits operation by users with visual acuity between 20/70 and 20/200, without relying on audio output.
-
Operable with little or no color perception. Provide at least one mode that does not require user color perception.
The new rules are generally subject to the FCC’s “achievability” standard (the same one as used for Advanced Communications Services (ACS)), which means that it can be done with reasonable effort or expense. The FCC weighs four statutory factors equally in determining whether an accessibility requirement is achievable: (1) the nature and cost of the steps needed to meet the requirements with respect to specific equipment or services; (2) the technical and economic impact on the manufacturer’s or provider’s operation and on the equipment’s or service’s operation, including on the development and deployment of new communications technologies; (3) the type of operations of the manufacturer or provider; and (4) the extent to which the service provider or manufacturer offers accessible services or equipment with various degrees of functionality at differing price points.
Navigation devices with built-in closed captioning functionality must provide access to that functionality via a mechanism reasonably comparable to a button, key or icon. The FCC noted that navigation device manufacturers and MVPDs will have maximum flexibility to satisfy this requirement and thus offered examples of compliant mechanisms (dedicated button, key or icon; voice commands; gestures; single-step activation from the same location as the volume controls) rather than mandating specific mechanisms. However, this requirement to provide access to closed captioning via a mechanism reasonably comparable to a button, key or icon is an unqualified obligation for MVPDs and navigation device manufacturers. Thus, the requirement is not subject to the achievability standard, it must be met regardless of whether the covered entity has received a request for such a mechanism, and it cannot be provided through separate equipment or software.
The obligation of MVPDs and navigation device manufacturers to provide navigation devices with audibly accessible on-screen text menus and guides must be fulfilled “upon request” within a reasonable time to blind or visually impaired individuals. The FCC explained that “upon request” means that blind or visually impaired subscribers may request compliant devices through any means that an MVPD generally makes available to other subscribers requesting navigation devices. For example, if customers can order navigation devices via a website, then that website must be screen readable (i.e., capable of audio output) to accommodate blind or visually impaired subscribers. Further, the compliant device must be made available within a reasonable time, meaning in the same amount of time that any navigation device would be otherwise made available to other subscribers. Manufacturers that rely on retailers to fulfill requests from blind or visually impaired consumers must make a good faith effort to have retailers make available compliant devices to the same extent as navigation devices are made available to other consumers generally.
If an MVPD or navigation device manufacturer opts to rely on a separate solution to comply with the accessibility requirements, the entity must provide the solution to the requesting blind or visually impaired individual within a reasonable time and at no additional charge. The separate solution must meet the same functionality requirements and must be no more burdensome to obtain or use.
MVPDs and navigation device manufacturers must comply with the new rules starting three years from the date that the rules are published in the Federal Register. However, smaller MVPDs with 400,000 or fewer subscribers (MVPDs not in the top 14) and smaller systems with 20,000 or fewer subscribers that are not affiliated with an MVPD serving more than 10 percent of all MVPD subscribers were granted a delayed compliance deadline, and must comply with the new rules starting five years after publication.
The FCC adopted the same complaint process that it previously adopted in the IP closed captioning proceeding. Under this process, a complaint must be filed within 60 days of experiencing a problem, and complainants may file their complaints with either the FCC or the entity responsible for the problem. The covered entity is given 30 days to respond to the complaint, but the process does not specify a time frame for FCC action on the complaint. A valid complaint must include certain information, and covered entities must make certain contact information available to consumers for the receipt and handling of complaints.
MVPDs and navigation device manufacturers may verify that a requesting consumer is eligible for an accessible navigation device or accessibility solution only if the consumer would be provided equipment that typically is not covered by that consumer’s level of paid-for service. Covered entities must accept a wide array of documentation for proof of eligibility and must protect the personal information they receive from consumers pursuant to statutory privacy obligations.
Under the new rules, MVPDs must notify consumers of the availability of accessible navigation devices at two times: 1) when providing information about equipment options upon a service inquiry; and 2) on the MVPD’s official website, where the notice must be prominently displayed in an accessible format. However, the FCC is considering whether to add additional notice obligations in a Further Notice of Proposed Rulemaking (see below).
Digital Apparatus (Section 204)
The FCC also implemented the provisions of Section 204 of the CVAA that apply to digital apparatus. For purposes of these new rules, digital apparatus is defined to mean the physical device and video players installed into devices by manufacturers (via hardware or software), except for devices that are considered navigation devices as discussed above. Examples of digital apparatus include televisions, PCs, mobile devices (tablets and smartphones), removable media players (DVD and Blu-ray players), as well as software-based players like preinstalled apps from Netflix, Hulu and Amazon. The manufacturers of digital apparatus are responsible for compliance with the relevant rules.
Under the FCC’s rules, digital apparatus must make the control of 11 essential built-in functions accessible to the blind or visually impaired. The 11 essential functions, which cover the reception, play back or display of video programming (and are listed above), need not be included in any particular digital apparatus, but to the extent the functions are already included in the apparatus, those functions must be made accessible, subject to the achievability standards. The FCC did not adopt technical standards for how covered digital apparatus must make the relevant functions accessible. Built-in essential functions that are accessed through on-screen text menus or other visual indicators must be audibly accessible if achievable, and the FCC’s definition of “accessible” in Section 6.3(a) of its rules will be used to explain what “accessible” means for functions not specifically required to be audibly accessible. In addition, on-screen text menus or other visual indicators used by digital apparatus to access the 11 essential functions must be accompanied by audio output, if achievable. Furthermore, digital apparatus must provide built-in access to closed captioning and video description features through a mechanism that is reasonably comparable to a button, key or icon.
A manufacturer of digital apparatus may seek “alternate means of compliance” by petition for an FCC determination or as a defense to a complaint or enforcement action. The FCC will decide whether the manufacturer’s actions constitute a permissible alternate means of compliance on case by case basis.
The compliance deadline for digital apparatus manufacturers is three years after the new rules are published in the Federal Register.
FNPRM
The FCC also issued a Further Notice of Proposed Rulemaking (“FNPRM”) that covers several issues related to those covered by the new rules. The FNPRM seeks comment on the following issues:
-
Whether the FCC should add a “usability” requirement – i.e., requiring that individuals with disabilities have access to the full functionality and documentation (instructions, bills and technical support) of the product or service, requiring employee training on accessibility, etc. (similar to the requirements governing voice and Advanced Communications Services);
-
Whether the captioning button/icon should also control enhanced captioning functionality (such as the ability to tailor display of caption fonts, etc.);
-
Whether the FCC has authority to require MVPDs to include particular information (such as high level channel and program descriptions and titles, and accessibility symbols) in video programming guides and menus and if it is technically feasible for operators to provide this specific information for PEG or other programs;
-
Whether the FCC should implement a requirement that entities provide access to the secondary audio stream (SAP) by a mechanism reasonably comparable to button, key or icon;
-
Whether the FCC should impose additional notice requirements on MVPDs beyond the equipment inquiry stage and the MVPD’s website; and
-
Whether navigation device manufacturers should also be subject to the notice requirements and if so, in what form.
Comments on the FNPRM are due 60 days after the date of publication in the Federal Register and reply comments are due 90 days after publication.
Conclusion
As discussed above, the FCC’s new rules implementing Sections 204 and 205 of the CVAA create several new obligations for digital apparatus manufacturers, MVPDS, and navigation device manufacturers. Meanwhile, the accompanying FNPRM seeks comment on several related issues. For more information about these new or proposed rules, please contact one of the DWT attorneys listed here.
