Last month, the Federal Communications Commission (“FCC”) released its second order (“Second CVAA Order”) further implementing the accessibility goals established in the Twenty-First Century Communications and Video Accessibility Act (“CVAA”) passed by Congress in 2010.  The Second CVAA Order, which builds on the FCC’s 2013 order (“First CVAA Order”), imposes new requirements on multichannel video programming distributors (“MVPDs”) selling or leasing navigation devices, such as set-top boxes, and manufacturers of navigation devices and digital apparatus designed to receive or play back video programming.

Access to Information and Documentation and Training Requirements

Under the new requirements, MVPDs that sell or lease navigation devices and manufacturers of navigation devices and digital apparatus must “ensure that individuals with disabilities have access to information and documentation on the full functionality of those devices, including instructions, product information (including accessible feature information), documentation, bills, and technical support which are provided to individuals without disabilities.”  This obligation also requires that MVPDs and manufacturers provide a description of the accessibility and compatibility features of the product upon request, including, as needed, in alternative formats or alternate modes at no additional charge, provide a contact method for obtaining such information, ensure that individuals with disabilities have usable customer and technical support, and consider relevant accessibility topics in developing or modifying existing training programs.

Consistent with the CVAA, these new obligations are applicable only “if achievable,” i.e. with reasonable effort or expense, as determined by the Commission on a case-by-case basis.  Entities must be in compliance with these new requirements by December 20, 2016.

Notification of Availability of Accessible Navigation Devices and Digital Apparatus

MVPDs selling or leasing navigation devices and manufacturers of navigation devices or digital apparatus must prominently display information about the availability of audibly accessible devices and other accessibility solutions on their websites.  The website notice, which must be in a format that is accessible to individuals with disabilities, must convey the means of making requests for accessible equipment and the specific person, office, or entity to which such requests are to be made.  The specified contact must be able to answer both general and specific questions about the availability of accessibility equipment, including, if necessary, providing information to consumers or directing consumers to a place where they can locate information about how to activate and use accessibility features.  The deadline for compliance with this requirement is December 20, 2016.

The FCC declined to impose labeling requirements or other point of sale notifications for navigation devices or digital apparatus but indicated it may revisit its rules in the future to ensure that consumers are receiving information as intended by the statute.  The FCC also encouraged parties to coordinate with the FCC’s Consumer and Governmental Affairs Bureau to determine the feasibility of including information about the accessibility of navigation devices and digital apparatus within a centralized website, such as the FCC-maintained Accessibility Clearinghouse.

Proposed New Requirements Regarding User Display Settings for Closed Captioning

The FCC decision also seeks comment on potential new rules regarding the accessibility of user display settings for closed captioning, such as colors, fonts, sizes, and backgrounds, and the FCC’s statutory authority to impose such rules.  Some of the questions the FCC has posed include the following:  Should closed captioning display features be no lower than the first level of a menu?  Would this provide sufficient flexibility to develop other innovative ways for users to access and locate closed captioning display settings?  What steps has industry taken or is planning to take to facilitate access to user display settings for closed captioning?  Is there a need to adopt regulations in light of industry plans?  Should the exceptions relating to technical feasibility and achievability for digital apparatus apply to any new rules?  Should the FCC adopt the same December 20, 2016 compliance deadline for any new rules?

Comments regarding the questions and issues raised by the FCC are due 20 days after the date of publication of the FCC’s decision in the Federal Register.  Reply comments are due 30 days after publication in the Federal Register.

Companies operating in the media sector face significant competition and an ever-changing regulatory environment.  Hogan Lovells’ communications lawyers possess an in-depth understanding of the sector, working closely with cable, mobile, satellite, and all types of advanced broadband network operators; internet service and content providers; broadcasters and media companies; equipment providers and other vendors; as well as with regulators, government bodies, and investors in the sector.  For more information on our practice, click here:  http://www.hoganlovells.com/telecommunications/