The Federal Communications Commission (FCC) recently adopted additional rules to facilitate easier access to video programming by blind and hearing impaired persons.1 These new rules, issued under Sections 204 and 205 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA),2 establish, among other things, requirements for the "usability" of built-in accessibility devices and ensure appropriate dissemination of information regarding the availability of accessible devices and features. The rules become effective on December 20, 2016. Compliance by small and mid-size cable operators is delayed until December 20, 2018.

The new rules affect user interfaces on digital apparatus and navigation devices used to view video programming. Examples of digital apparatus include: (i) televisions and PCs without CableCARD or other conditional access technology; (ii) mobile devices (i.e., tablets and smartphones); (iii) removable media players; and (iv) third-party applications that provide video programming, such as Netflix, Hulu, and Amazon, if pre-installed by the device manufacturer or if the device manufacturer directs consumers to install such applications.3 Examples of navigation devices include set-top boxes or computers with a CableCARD slot, cable modems, and third-party devices with video programming applications installed by the device manufacturer.4

The FCC also addressed several issues raised in a Petition for Reconsideration filed by a coalition of consumer and academic groups5 related to voice and gesture control activation mechanisms, and issued a Further Notice of Proposed Rulemaking regarding proposed requirements for manufacturers and multichannel video programming distributors (MVPDs) to ensure ready access to user displays for closed captioning.

Usability Information, Documentation, and Training Requirements

Section 204 of the CVAA requires that digital apparatus be "accessible" and "usable" by individuals who are blind or visually impaired.After specifying the requirements of "accessibility" in its 2013 Report and Order,6 the FCC here concludes that in order for digital apparatus to be "usable," manufacturers must ensure that individuals with disabilities "have access to the full functionality and documentation for the product, including instructions, product information (including accessible feature information), documentation, bills and technical support which is provided to individuals without disabilities."

The FCC also adopted information, documentation, and training requirements for entities covered by Sections 204 and 205 of the CVAA. These entities include (i) manufacturers of digital apparatus, (ii) MVPDs leasing or selling navigation devices (devices used to access MVPD programming, including broadband data services) to their subscribers, and (iii) equipment manufacturers placing navigation devices into the chain of commerce. The required information and documentation include "user guides, bills, installation guides . . . and product support communications." Manufacturers are also required to provide a contact method for those seeking such product information.

The usability requirement applicable to Section 204 digital apparatus, and the information, documentation, and training requirements applicable to Section 204 and 205 digital apparatus and navigation devices, are required only when they are "achievable" with "reasonable effort or expense." Such determinations will be made on a case-by-case basis by the FCC.

Equipment Manufacturer and MVPD Notifications

The FCC found that equipment manufacturers of digital apparatus and navigation devices will be required to inform consumers of the availability of accessible devices and specifically, that manufacturers must display accessibility solutions on their websites in such a way that the notices are accessible to those with disabilities. The websites must include information on how to request accessible devices as well as a contact person or office who can answer questions and provide other information. MVPDs also must list a contact office or person on their websites. The FCC declined to require these notices on product labeling (or other point of sale notifications), finding that Sections 6.3(l) and 6.11 of its rules already "require covered entities to provide consumers with such information."

Use of Voice and Gesture Control Activation Mechanisms for Closed Captioning and Video Description

Responding to a Petition for Reconsideration filed by a coalition of consumer and academic groups, the FCC found that "closed captioning activation mechanisms that rely solely on voice control will not fulfill the [Section 204 and 205] requirement that a closed captioning activation mechanism be reasonably comparable to a button, key, or icon." The FCC determined that mechanisms that rely solely on voice activation are not accessible to certain persons, such as those deaf and hearing impaired persons with limited speech, and thus are not "simple and easy to use." The FCC concluded that voice activated mechanisms are permissible, but may not be the sole source of access to a mechanism, and that although manufacturers have flexibility in choosing what mechanisms to provide, they "strongly recommend that [manufacturers] consult with consumers with disabilities about the method(s) they select."

Second Notice of Proposed Rulemaking

The FCC seeks comment on "a proposal to adopt rules that would require manufacturers and MVPDs to ensure that consumers are able to readily access user display settings for closed captioning" and the FCC's "authority to adopt such rules under the Television Decoder Circuitry Act of 1990." Comments are due 20 days after date of publication in the Federal Register, and Reply Comments are due 30 days after the date of publication. At this time, publication in the Federal Register has not yet occurred.