FCC Releases Emergency Information Accessibility Rules for Second-Screen Devices and Grants Compliance Waivers

by Davis Wright Tremaine LLP

The Federal Communications Commission (FCC) has released the text of its Second Report and Order (R&O) adopting rules requiring multichannel video programming distributors (MVPDs) to pass through the secondary audio stream containing audible emergency information (i.e., descriptions of emergency crawls) on any application or plug-in they provide to enable consumers to view the MVPD’s linear network programming on tablets, smartphones, computers and similar devices (i.e., “second screen devices”). In a separate order, the FCC also granted a six month waiver for both broadcasters and MVPDs to comply with the audible crawl rule, as well as an 18-month waiver to aurally describe visual but non-textual emergency information such as maps or other graphics. It also granted additional time for pass through requirements for certain cable systems still transmitting in analog.

Significantly, the new “second screen accessibility” rules, which become effective two years after publication in the Federal Register, do not extend to non-linear programming such as video-on-demand or over-the-top services such as TV Everywhere. The R&O also adopts rules requiring manufacturers of covered equipment, such as set-top boxes (STBs), to provide a simple and easy-to-use mechanism, such as a button, key or icon, by which users may access the secondary audio stream. The rules governing manufacturers become effective Dec. 20, 2016 (consistent with the deadline for compliance of digital apparatus and navigation devices with the accessible user interface rule).

Additionally, in a Second Further Notice of Proposed Rulemaking (FNPRM), the FCC seeks comment on several issues related to the new rules. Specifically, the FCC asks: (1) how covered entities should prioritize aural descriptions of emergency information when more than one source of visual information is conveyed at the same time and whether the FCC should impose a prioritization scheme based on types of emergencies or rely on broadcasters’ judgment; (2) whether it should reconsider its inclusion of “school closings and changes in school bus schedules” as emergency information subject to the audio description rules; and (3) whether MVPDs should be required, as it tentatively concludes, to ensure that the navigation devices they provide subscribers as well as the applications and plug-ins used to access their linear programming over second screen devices include a simple mechanism to activate access to the secondary audio stream (and if so, by when).  Comments in response to the FNPRM are due 30 days after publication in the Federal Register.

The new rules, which continue the FCC’s implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), supplement FCC emergency information rules adopted two years ago, which require companies offering visually displayed emergency information during non-newscast television programming to provide an audio version on a secondary audio programming (SAP) channel, and require video distributors to pass through the aural representation of the emergency information to consumers. (Compliance with the May 2013 emergency information rules had been required to begin May 26, 2015 but was extended by waiver to Nov. 26, 2015.) The text of the R&O echoes statements made at the FCC’s recent Open Meeting, by both Media Bureau staff and several Commissioners, that the increased use of devices other than traditional television sets to view programming necessitates additional rules to ensure that blind or visually impaired consumers accessing content on “second-screen” devices have access to time-sensitive emergency information.

By including second-screen devices, the new rules expand existing requirements that emergency information presented visually during non-newscast programming (such as printed crawls, maps or other graphic displays) be provided aurally on a secondary audio stream. MVPDs will be required to pass through such emergency information on the second audio stream when they allow customers to access the MVPD’s linear programming on second-screen devices on the MVPD’s own network. The obligation does not, however, extend to users accessing MVPD programming over the Internet, such as by TV Everywhere, or to other non-linear programming such as video-on-demand.

The Commission declined to require manufacturers to enable pass through of the second audio stream on plug-ins and applications used for MVPD linear programming included on their devices at this time, although cautioned that they may do so in the future if the apps and devices don’t work together to transmit the aural emergency information to the end user. Moreover, the R&O implements rules that will require manufacturers of STBs and other covered equipment to provide a simple mechanism, such as a button, key, or icon to enable consumers to switch from the primary audio stream to the secondary stream that carries the aural descriptions of emergency information. However, as pointed out by Commissioner Pai in his dissent, certain digital apparatus already were required to include such a mechanism as part of the obligations under Section 204 of the CVAA concerning accessibility of user interfaces. In addition, the FNPRM contemplates imposing a similar mechanism on cable operators that provide equipment, plug-ins and apps directly to consumers for viewing their linear managed network services, asking if it does, whether the obligation should only be upon request of the consumer and what time frame should apply.

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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