FCC Adopts New Rules for Accessibility of Emergency Information in Video Programming

by Davis Wright Tremaine LLP

On April 9, 2013, the Federal Communications Commission (FCC) established requirements for the video description of emergency announcements presented on-screen during TV programs, so that the blind and visually impaired can have access to critical details about such emergencies. The new rules require multichannel video programming distributors (MVPDs) and video programing owners to present on-screen emergency crawls aurally using the secondary audio program (SAP) stream, and require certain apparatus, including set-top boxes and video recorders, to be capable of delivering such aural descriptions to end users.

In practice, this means that the entity that adds visual emergency information content to a program—usually a broadcaster or program owner—must also now add an aural presentation of that emergency information in the secondary audio stream. Multichannel video programming distributors (MVPDs) must ensure that the aural representation is passed through to customers.

The rules, which do not go into effect for two years from the date published in the Federal Register, do not yet extend to linear MVPD programming viewed on tablets, laptops, PCs or smartphones. The rules also do not require MVPDs to provide specific customer support in connection with use of the SAP—however, such issues are the subject of a further rulemaking proceeding.

While the FCC declined to waive or defer the rules for analog-only cable systems or to otherwise adopt a technical capability exception, it suggested use of existing FCC waiver processes as an avenue for seeking relief where compliance presents unique difficulties. In particular, the FCC suggested that small, analog-only systems may be eligible for a class-based waiver.

Among other things, the FCC’s new and revised rules, implementing Sections 202 and 203 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), govern the video description of emergency information by requiring aural description of emergency information that is presented visually, such as printed crawls, maps or other graphic displays, during non-newscast programming. The visually-presented information must be conveyed in full at least twice aurally, and while it need not be translated verbatim, the aural presentation must reflect the emergency information accurately and effectively. The rules also mandate the continued use of an aural tone to accompany emergency announcements in the main program stream as well as on the secondary (SAP) stream. Emergency information must be prioritized over all other programming on the secondary audio stream, such as video description or foreign language translation.

The FCC stated that it will permit—but not require—the use of text-to-speech (TTS) technology provided it meets certain qualitative standards, including that TTS output be intelligible and present relevant information with correct pronunciation.

The rules continue to define “emergency information” as the term had been defined in the past—information, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency—but clarify that severe thunderstorms and other severe weather events should be considered emergencies. The details that must be provided, such as evacuation routes and shelters, pertain to the geographic areas that will be affected.

The rules do not extend to IP-delivered video programming, such as that provided by Netflix or Hulu. The Weather Channel was granted six-month waivers beyond the compliance deadlines from the requirements to provide emergency information on a secondary audio stream and to provide all critical details from the visually presented emergency information in the aural presentation, due to technological limitations. Similarly, DIRECTV was granted several waivers beyond the compliance deadlines due to limitations associated with the manner in which DIRECTV receives The Weather Channel’s localized programming.

In addition, the FCC mandated that all apparatus designed to receive or play back video programming transmitted simultaneously with sound have the capability to decode and make available the secondary audio stream if technically feasible. Removable media players, such as DVD and Blu-ray players, and mobile digital television apparatus are included under the new rules, thus imposing both emergency information and video description requirements on such apparatus.

The rules will begin to apply to apparatus manufactured after the effective date of the rules, which is two years away. The new rules exempt display-only monitors and commercial/professional equipment. In addition, the FCC did not adopt technical standards or protocols for covered apparatus, but instead allowed the industry to retain flexibility in ensuring that video description of emergencies is passed through. The FCC also established procedures for complaints, including specific information required in complaints of alleged violations.

Finally, the FCC also issued a Further Notice of Proposed Rulemaking (FNPRM), in which it explores several related issues. First, the FCC inquires whether an MVPD is covered by the emergency information rules when the MVPD permits subscribers to access linear video programming via devices such as tablets, computers, or smartphones. Similarly, the FCC asks whether an MVPD system must comply with the video description rules when it allows subscribers to access linear video programming via such devices. The FNPRM also probes whether the FCC should require a video description stream to include a particular tag identifying it as “visually impaired” (VI), so that apparatus can enable consumers to access a video description stream with such a tag. And, as noted above, the FCC inquires whether it should require covered entities to provide customer support services designed to assist blind or visually impaired customers to navigate the primary and secondary audio streams.

For more information about these new rules please contact any of the Communications attorneys at DWT.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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