President Signs New Accessibility Law to Extend Closed Captioning to the Internet and Reinstate FCC Video Description Regulations

On Oct. 8, 2010, President Obama signed into law the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act), coinciding with the 20th anniversary of the Americans with Disabilities Act.

Among other things, the Act (1) extends closed captioning requirements to video programming distributed on the Internet; (2) reinstates the Federal Communications Commission’s (FCC’s) video description regulations; and (3) requires customer digital equipment, including navigation devices (in particular, cable set-top boxes), to accommodate accessibility features for closed captioning, video description, emergency information, user interfaces, and video guides and menus.

The Act phases in these various requirements after an Advisory Committee submits its recommendations to the FCC, and the FCC adopts regulations to implement the recommendations and the requirements of the Act. A timeline summarizing these events is available here.

Advisory Committee

By Dec. 8, 2010 (within 60 days of the Act), the FCC must establish a Video Programming and Emergency Access Advisory Committee (Advisory Committee) composed of cable and video operators, content owners, broadcasters, consumer electronics manufacturers, and representatives for the disabled and elderly. This Advisory Committee is charged with laying the foundation for regulations to implement the Act’s mandates on closed captioning, video description, emergency information, user interfaces, and video guides and menus, including recommending an appropriate phase-in schedule for rule compliance, identifying the protocols, technical capabilities and technical procedures involved, and recommending any regulations to ensure compatibility between Internet-distributed video programming with accessibility features and those devices capable of receiving and displaying such programming.

A report of the Advisory Committee’s recommendations and findings on closed captioning is due by Oct. 8, 2011. The Advisory Committee’s report of its recommendations and findings on video description (as well as emergency information, user interfaces, and video guides and menus) is due by April 8, 2012.

Closed captioning on the Internet

One of Congress’ goals was to ensure that people with disabilities would have access to commercial video programming presented on the Internet. Under new regulations required by the Act, once a television program is published or exhibited on television with closed captions, any subsequent distribution of that programming on the Internet must include closed captions.

The FCC is directed to revise its regulations and adopt a phase-in schedule no later than six months after the Advisory Committee submits its closed captioning report to the FCC on the technical issues involved with the program creation and distribution process for captioning programming distributed using Internet protocol (which could be as late as April 8, 2012). Presumably the FCC will describe the specific responsibilities of video programming providers and distributors, as well as content creators and owners, during its rulemaking proceeding.

Video description

The Act restores the video description regulations the FCC adopted in 2000 to assist individuals with visual impairments (including the blind) in understanding what is happening on-screen by requiring audio narration when there is no dialogue. (The FCC’s earlier attempt to apply such rules was struck down by the U.S. Court of Appeals for the D.C. Circuit for lack of statutory authority.) The Act requires the video description regulations to be reinstated on Oct. 8, 2011, although actual compliance thereafter will be subject to a phase-in schedule. The Act adopts the main requirements of the original regulations:

• Affiliates of the top four commercial broadcast TV networks in the top 25 TV markets must provide 50 hours per calendar quarter of prime-time and/or children’s programming with video description. (The Act allows for phasing-in the regulations to the top 60 designated market areas (DMAs) within six years of the Act, although this would likely not begin for several years. After 10 years, the FCC may phase-in the regulations for an additional 10 DMAs each year if the implantation costs are deemed “reasonable.”)
• Multichannel video programming distributors (MVPDs) with 50,000 or more subscribers must provide 50 hours per calendar quarter of prime-time and/or children’s programming with video description on each of the top five national nonbroadcast networks they carry.

The Act imposes three new limitations to the reinstated regulations:

1. It specifically limits the video description regulations to television programming transmitted in digital format.
2. It exempts live or “near-live” programming, something that the FCC had declined to do in 2000.
3. It prohibits the FCC from expanding the scope of video description until it conducts an inquiry and submits a report to Congress on the state of video description following completion of the phase-in schedule.

Six-month shot clock imposed on petitions for exemptions

The Act allows petitions for exemption from the closed captioning and video description rules that are “economically burdensome,” and requires the FCC to act within six months of any petition. A petitioner is not required to comply during the pendency of its petition. Under the prior rules, which did not have any time requirements, very few petitions—less than 5 percent—were granted. The FCC may also grant blanket exemptions for any service, program, or equipment.

Emergency information

The Act directs the FCC to identify methods to “convey emergency information … in a manner accessible to individuals who are blind or visually impaired,” and to adopt regulations to implement such methods, which are likely to require an audible signal accompanying the emergency information on screen. The FCC must complete a proceeding on this issue within one year after the Advisory Committee submits its report on video description (and emergency information), which could be as late as April 8, 2013.

Accessibility of digital equipment and navigation devices ¹

In order to facilitate access to and use of video description and closed captioning, the Act imposes several requirements on “digital apparatus” (such as digital televisions, as well as any other apparatus that can receive and play back digital video programming) and “navigation devices” (such as set-top boxes, although the Act references the FCC’s broad definition of “navigation devices”) to permit the use of these accessibility features on such devices. However, the Act makes clear that the FCC may not impose technological standards on these devices, thus giving affected entities technological flexibility to comply with these requirements.

First, the Act requires that a digital apparatus (not including a “navigation device”) “designed to receive or play back” digital video programming, including programming transmitted using Internet protocol, include the following:

• If achievable through “reasonable effort or expense, as determined by the FCC,” the apparatus must be designed so that the built-in functions are accessible to and usable by the blind or visually impaired. This includes the incorporation of audio outputs for on-screen text menus or “other visual indicators” used to access such functions. Significantly, in adopting regulations for this requirement, the FCC may not specify technical standards, protocols, procedures, or other technical requirements;
• Access to accessibility features must be facilitated through the use of a button, key, or icon, essentially a hard or soft on-off switch.

The FCC must adopt implementing regulations within 18 months of the Advisory Committee’s video description report to the FCC, or as late as Oct. 8, 2012.

Second, for “navigation devices,” on-screen text menus and guides for selecting video programming must be audibly accessible in real time to individuals who are blind or visually impaired, if achievable. The FCC may not specify technical standards, protocols, procedures, or other technical requirements. The Act specifically permits entities to select their own means of compliance, including the use of any software, peripheral device, specialized consumer premises equipment, network-based service, or other solution. While the FCC must adopt regulations within 18 months of the Advisory Committee’s video description report, entities are not required to begin placing compliant devices into service until three years after adoption of the regulations.

Third, the Act requires navigation devices with built-in closed captioning capabilities to provide a mechanism like a button, key or icon for accessing such capabilities, e.g., a hard or soft on-off switch. The Act gives entities “maximum flexibility” in selecting the means of complying with this requirement. Again, the FCC must adopt regulations within 18 months of the Advisory Committee’s video description report, however, entities are not required to begin placing compliant devices into service until two years after adoption of the regulations.

Closed captioning and video description capabilities

The Act updates closed caption decoder requirements to require video devices to be able to decode and display or transmit video description signals and emergency information, in addition to closed captions. The Act adds an additional requirement for video recording devices to enable the rendering or pass-through of closed captions, video description signals and emergency information so that viewers can “activate and de-activate” the closed captions or video descriptions on other devices (during playback), and establish mechanisms and standards for carriage of closed captions, video description, and emergency information from source devices to other consumer equipment.

Those aspects of the requirements related to closed captioning must be implemented within six months of the Advisory Committee’s closed captioning report to the FCC, and those related to video description and emergency information must be implemented within 18 months of the Advisory Committee’s video description report.

Small system exemption

The Act also exempts any cable systems serving 20,000 or fewer subscribers from its regulations.

For more information on how the Twenty-First Century Communications and Video Accessibility Act of 2010 may affect you and your business, please contact your DWT attorney.

FOOTNOTE

1 The Act also mandates that “advanced communications services” and equipment that access such services be accessible and usable to the hearing and visually impaired. This advisory, however, focuses on the video description and closed captioning requirements of the Act.