On April 9, 2013, the Federal Communications Commission (FCC or Commission) adopted video description rules1 that fulfill the mandate of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) to make emergency information in video programming accessible to blind or visually impaired individuals.2 The new rules impose obligations on both video programming providers (VPPs) and video programming distributors (VPDs), including broadcasters, cable networks and multichannel video programming distributors (MVPDs). The rules do not implicate online video distributors (OVDs), but the Commission may revisit the rules’ application to OVDs in the coming years. (Order ¶ 8.) The Commission also adopted new video description rules for certain devices. Covered entities and devices must be in compliance with the new rules within two years of their publication in the Federal Register. As of the date of this Advisory, Federal Register publication has not yet occurred.

Section 202: Emergency Information Rules

The Commission’s rules currently require that emergency information provided visually during newscasts must be made accessible to persons with visual disabilities by aurally describing such information in the main program audio. The new rules require aural descriptions for emergency information provided during non-newscasts as well. The aural descriptions are to be transmitted on a secondary audio stream, and just as for newscasts, the Commission will require an aural tone on the main audio stream as an alert mechanism. (Order ¶ 12.)

The Commission was in agreement with commenters that a secondary audio stream is the best way to provide aural emergency information, because “many covered entities already provide a secondary audio stream for video description or foreign language translation, and there are few technical impediments to passing through aural emergency information on a secondary audio stream.” (Order ¶ 13.)

Although the aural information stream need not be a verbatim translation of the information provided textually, it must convey the critical details of an emergency, including for visual but non-textual information provided, such as maps. Text-to-speech (TTS) technology is a permitted, but not required, method for providing an aural rendition of emergency information. The information provided must be “intelligible and must use the correct pronunciation of relevant information to allow consumers to learn about and respond to the emergency, including, but not limited to, the names of shelters, school districts, streets, districts, and proper names noted in the visual information.” (Order ¶ 16.)

Information provided on the secondary audio stream should be delayed, so that the visually impaired have time to switch to the secondary audio stream, and should be conveyed at least twice. (Order ¶ 25.) Furthermore, aural emergency information should supersede other audio on the secondary stream, such as video description, foreign language translation, or duplication of the main audio stream. Notably, the Commission declined to adopt any technical capability exception to the new emergency information rules.

The Commission did not change the definition of “emergency information,” but did clarify that it includes severe thunderstorms and other severe weather events. (Order ¶ 30.)

Programming Entities Subject to the Rules

The revised emergency information rules adopted by the Commission apply to video programming that is provided by a VPD as defined in Section 79.1. Pursuant to that section, a VPD is “[a]ny television broadcast station licensed by the Commission and any [MVPD], and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.”3 However, the responsibility for ensuring that covered programming is in compliance with the rules falls not only on the VPD, but also on the VPP, if the VPP is a different entity. A VPP is defined as “[a]ny [VPD] and any other entity that provides video programming that is intended for distribution to residential households including, but not limited to broadcast or nonbroadcast television network and the owners of such programming.”4 With regard to the allocation of responsibility among VPDs and VPPs, the Commission requires the following:

  • „„ “[A]mong [VPDs] and [VPPs], the entity that creates the visual emergency information content and adds it to the programming stream is responsible for providing an aural representation of the information on a secondary audio stream, accompanied by an aural tone.” „„
  • “[VPDs] are responsible for ensuring that the aural representation of the emergency information (including the accompanying aural tone) gets passed through to consumers.”
  • „„ Finally, “both [VPDs] and [VPPs] are responsible for ensuring that emergency information supersedes any other programming on a secondary audio channel, with each entity responsible only for its own actions or omissions in this regard.” (Order ¶ 36.)

Section 203: Apparatus Requirements for Emergency Information and Video Description Service

Pursuant to Section 203 of the CVAA, the Commission must adopt rules requiring that covered apparatus be capable of making emergency information and video description services available. Apparatus covered by the rule are those “designed to receive, play back, or record video programming provided by the entities subject to [the] existing emergency information rules … and [the] existing video description rules.” (Order ¶ 60.) Apparatus that are “not designed to receive, play back, or record video programming provided by entities subject to our existing emergency information and video description rules” are not covered by the new rule. (Order ¶ 61.) The Commission also specified that the term “apparatus” includes both the physical device and any integrated software.5

Recording devices, which are also covered by the rules, must be capable of enabling or passing through the secondary audio stream. The Commission notes that secondary audio streams are already available on most covered apparatus, so the new apparatus rules should not unduly burden equipment manufacturers. TTS capability is not required.

The Order specifically addressed the applicability of the rules to certain types of apparatus. Removable media players, such as DVD and blu-ray players, are subject to the rules. However, professional and commercial apparatus such as movie theatre projectors, and display-only monitors, are not covered.

The rules also permit an entity to meet the emergency information and video description requirements through “alternate means” than those specified by the Commission. However, such entities will have to seek a Commission determination in advance that such alternate means are compliant with the rules, pursuant to Section 1.41 of the Commission’s rules.6

Further Notice of Proposed Rulemaking

The Commission also initiated a Further Notice of Proposed Rulemaking which seeks comment on many issues. We have listed a few below:

Linear programming to mobile and other devices:

  • „„ If an MVPD provides linear programming with emergency information to devices such as tablets, laptops, personal computers, smartphones, or similar devices, is it a “video programming distributor” subject to the emergency information rules?
  • „„ Should applications or plug-ins provided by an MVPD be capable of transmitting emergency information on a secondary audio stream?
  • „„ In these situations, should the transmission of emergency information be the responsibility of the device maker?

Provision of video description services on mobile or other devices:

  • „„ Must an MVPD ensure that any application or plugin that it provides is capable of providing or passing through video description on a secondary audio stream, regardless of the type of device (e.g., tablets, laptops, personal computers, smartphones)?
  • „„ What obligations, if any, fall on the manufacturers to ensure that these devices are capable of receiving the secondary audio stream?
  • „„ Is additional time needed for MVPDs and/or manufacturers to comply with the video description rules for linear video programming services provided via mobile devices?

Tagging of the Secondary Audio Stream:

The Commission is concerned that “some consumers may be unable to find and activate an audio stream tagged as ‘visually impaired’ (VI), which is the label dictated by the digital television standard, and that the audio stream used for video description must be labeled as ‘complete main’ (CM) instead.” (Order ¶ 85.)

  • „„ Should the Commission mandate that the video description stream include a particular tag, and that all apparatus subject to the rules adopted herein enable consumers to access a video description stream with that tag? If so, is the VI tag the one that the Commission should mandate?
  • „„ What would broadcasters and manufacturers need to do to comply with such a requirement and what deadline should be imposed?
  • „„ How can the Commission minimize any confusion or cost to such consumers, and specifically, how can the Commission mitigate the need for consumers to purchase new equipment to take advantage of the tagging requirements discussed in the Order?

Customer Support Services:

The Commission posed a series of questions on whether to require entities subject to Sections 202 and 203 of the CVAA to provide dedicated customer support services.