While the FCC ponders the legality of implementing the recommendations of the National Broadband Plan (see our prior discussions of the Chairman's "Third Way" approach to regulating the Internet, here and here), it appears that Congress is first to move forward in addressing broadband accessibility issues for the disabled, including closed captioning for Internet-delivered video and reinstating the FCC's video description rules. (According to the FCC's broadband action agenda items schedule, the Commission was not planning to address hearing aid compatibility until Q3 of this year, and Internet video and device accessibility until Q4.)

Tomorrow, the Senate Subcommittee on Communications, Technology and the Internet (of the Senate Committee on Commerce, Science & Technology) will hold a hearing on “Innovation and Inclusion: The Americans with Disabilities Act at 20.” This hearing will likely include discussion of the recently introduced Senate bill entitled “Equal Access to 21st Century Communications Act” (S.3304, Pryor-Kerry-Conrad-Dorgan, May 4, 2010) which would expand the accessibility of “advanced communications” to people with hearing and visual disabilities.

As we noted in our initial analysis of accessibility under the National Broadband Plan, many federal laws have been enacted to require greater access to telecommunications by persons with disabilities, but they often lag technological development. For example, Section 255 of the Act requires telecommunications products and services to be accessible to the disabled but does not apply to voice over Internet protocol (VoIP) or other IP-based equipment and services. Video programs delivered by Internet are under no requirement to be captioned, even if they were previously shown with captions on TV. Many 911 emergency call centers also cannot accept calls from people who communicate in video or via pagers. Application of existing disability laws to Web sites that blend Internet with “bricks and mortar” retailing has caused confusion and spawned litigation.

In the past, Representative Edward Markey (D-Mass.) has regularly introduced bills to extend the reach of accessibility legislation. His most recent bill on this issue was “The Twenty-first Century Communications and Video Accessibility Act of 2009,” (H.R. 3101, June 26, 2009). In making its recommendations, the National Broadband Plan often cited to, and thus relied on, the recommendations made in the Markey bill, including extending hearing aid compatibility requirements to "advanced services" (including non-interconnected VoIP and text messaging) and to manufacturers of devices for such services, as well as reinstating the FCC's "video description rules." The more recent Pryor bill is similar to the Markey bill in both scope and intent.

Both bills' efforts to reinstate the FCC's video description rules are particularly noteworthy. "Video description" is defined as the "insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue." (47 C.F.R. 79.3(a)(3).) In other words, when there is no dialogue, audio narration would be inserted to describe what is happening onscreen, so that people with visual disabilities could follow the events unfolding. The original video description rules were adopted by the FCC in 2000 (15 FCC Rcd. 15,230) and would have required, among other things, that (1) affiliates of the top 4 broadcasters at the time (NBC, ABC, CBS, and Fox) must provide 50 hours of video description per calendar quarter either during prime time or children's programming, and (2) MVPDs with over 50,000 subscribers must provide 50 hours of video description on each channel on which they carry one of the top five national nonbroadcast networks. The MPAA immediately challenged the rules on the ground that the FCC had exceeded its authority by promulgating rules that implicated program content. The D.C. Circuit agreed, and struck down the video description rules. In doing so, the court clarified that the FCC "acted without delegated authority from Congress."

In light of the D.C. Circuit's clarification, the Pryor and Markey bills would expressly delegate such authority to the FCC, thus avoiding any challenges based on the FCC's delegated authority. Specifically, the law, if passed, would require the FCC to "republish" and "refresh" the original rules to apply to "video programming that is first published or exhibited after the date of enactment" of such new law. In addition, both bills would authorize the FCC to require closed captioning on certain video programming distributed over the Internet, and to impose (or inquire into imposing) accessibility requirements on navigation devices/set top boxes, programming guides, DVRs, and remote controls. With express Congressional authority, challenges to resultant FCC actions would have to find some other Constitutional ground for reversal.

The Senate hearing is scheduled for May 26 at 2:30 pm in the Russell Senate Office Building Room 253.