In a Notice of Proposed Rulemaking (NPRM) released May 30, 2013, the Federal Communications Commission (FCC) proposed “talking guide” rules which would require nearly all user interfaces on digital apparatus and navigation devices used to view video programming to be audibly accessible (e.g., through a built-in screen reader) in real time by individuals who are blind or visually impaired. The proposed rules, which are prescribed by Sections 204 and 205 of the Twenty-First Century Communications and Video Accessibility Act (CVAA), would impose similar accessibility requirements on both Section 204 digital apparatus and Section 205 navigation devices but would delegate liability differently depending upon whether the equipment is leased from an MVPD or purchased at retail. The proposed rules would also require a variety of devices to provide access to the built-in accessibility features via a single-step process, such as a button, icon or equivalent mechanism.

The key issues on which the FCC seeks comment include: (1) which devices are covered by each statutory provision; (2) who bears responsibility for compliance among the various entities involved in device design, development and creation; (3) which user functions (other than diagnostic or debugging functions) must be made accessible; (4) what is meant to render a covered device “accessible” and whether doing so is “achievable;” and (5) the alternative means that MVPDs may use to ensure compliance, including by making software or assistive device solutions available at no additional charge within a reasonable period of time.

Comments are due within 25 days of publication in the Federal Register, which is expected to be next week. Reply comments are due 25 days later. The rules must be adopted by Oct. 9, 2013, providing less than five months turnaround on a complicated topic.

Scope of Sections 204 and 205 of the CVAA and Compliance Responsibilities

In proposing its new rules governing user interfaces, guides and menus, the FCC must reconcile Congress’ reliance upon the FCC’s existing broad definition of “navigation devices” on the one hand with Congress’ intent to carve out MVPD-provided devices for separate requirements than those applied to other “digital apparatus” used to view programming. It does so in the NPRM by proposing to narrow the current definition of “navigation devices” to include only those devices provided by MVPDs directly to their customers. Digital apparatus used to view video programming and purchased at retail would be addressed separately. Practically speaking, the user functions for both navigation devices and digital apparatus would have to be audibly accessible. However, MVPDs would ultimately be responsible for ensuring that the devices (including set top boxes, DVRs, and possibly applications and remote controls) that they provide directly to consumers are accessible to blind and visually impaired persons, while “manufacturers” would be responsible for covered apparatus made available at retail. The definitions also matter because “navigation devices” are not required to include buttons or icons to activate video description features. The FCC acknowledges that its proposals do not track the statutory language perfectly and seeks comment on whether its proposed approach is appropriate.

Compliance responsibilities under Section 205 are further muddied by the separate allocation of responsibility to software and hardware manufacturers for the accessibility of a navigation device’s features and functions. The proposed rule places compliance with accessibility “requirements” directly upon hardware and software manufacturers (as does the statute) as well as MVPDs. The FCC asks whether Congress intended manufacturers and MVPDs to share responsibility for compliance under Section 205 or whether Congress intended MVPDs to be able to raise manufacturer responsibility as a defense to liability under the statute. The NPRM does not specifically address the fact that numerous entities contribute to the design and development of digital apparatus, thus rendering the terms “hardware” and “software” manufacturer inadequate. The FCC does specifically ask whether Section 205 should be interpreted to apply to retail set-top boxes such as TiVos (which some MVPDs lease directly to subscribers and others support as customer-owned equipment) and if so, how such a decision impacts compliance responsibility. But it does not ask the broader question of what to do about other devices that don’t neatly fall within the proposed MVPD leased/retail distinction. Thus, how the FCC construes the scope of Sections 204 and 205 raises important questions about which entities are responsible for ensuring a device’s compliance.

Functions That Must Be Made Accessible Under Each Statute

The NPRM tentatively concludes that the user interface functions that must be made audibly accessible include “all user functions” of the digital apparatus and navigation devices other than diagnostic or debugging functions. The eleven functions identified as “essential” by the Video Programming Accessibility Advisory Committee (VPAAC) are proffered by the Commission as an “illustrative but not exhaustive” list of the user functions that must be made accessible, and the FCC seeks comment on what functions on this list are inappropriate and what others might be added. The “essential functions” are:

  1. Power on/off;
  2. Volume adjust and mute;
  3. Channel and program selection;
  4. Channel and program information;
  5. Configuration–setup;
  6. Configuration–closed captioning control;
  7. Configuration–closed captioning options;
  8. Configuration–video description control;
  9. Display configuration info;
  10. Playback functions; and
  11. Input selection.

For example, the FCC asks whether additional functions, such as V-Chip or other parental controls, should be added, and whether a mechanism can be established to ensure that as new digital apparatus functions become available to consumers, they are also made accessible. Significantly, the FCC asks whether “user functions” include only those related to the display or selection of video programming, suggesting that it might apply to functions completely unrelated to video programming.

Aside from addressing user functions, the FCC also asks whether it may require MVPDs to provide programming description information in programming guides for local programs and channels for the purpose of promoting accessibility. The NPRM also asks whether remotes that enable the user to access all of the user functions on a covered digital apparatus or navigation device must be made accessible.

What Is Necessary to Make Covered Devices Accessible?

As in its previous proceedings to implement provisions of the CVAA, the FCC observed in the NPRM that it lacks the authority to prescribe specific technical standards, protocols or procedures for making the digital apparatus and navigation devices accessible. It requests comment, however, on the metrics that it can and should use to evaluate device accessibility and compliance with the proposed rules. It also asks whether it should incorporate the “performance objectives” used to define accessibility in its rules governing voice communication and Advanced Communications Services (ACS). These objectives include making visual output accessible in large font for the visually impaired, audibly for the blind, and in tactile format as well. Similarly, input control must be accessible audibly or in tactile format. The NPRM seeks comment on whether FCC rules need to specify how a device accepts user input (i.e., voice, touch) or provides feedback to individuals who are blind or visually impaired.

The FCC tentatively concludes that the accessibility requirements for navigation devices under Section 205 may be satisfied by providing requesting customers with equipment or software that is separate from the navigation device and performs the required accessibility solutions. In practical terms, the FCC recognizes all navigation devices may not have built-in accessibility solutions when the new rules go into effect, and that an MVPD or other covered entity may fulfill its accessibility obligations by providing a requesting customer with a peripheral device or software that provides the requisite solutions. In making this observation, however, the FCC states that the peripheral device or software must achieve the same functions as a built-in solution, and be provided to the customer: (1) by the entity providing the navigation device (i.e., the customer should not have to seek out the solution from a third party); (2) at no additional cost; and (3) within the same “reasonable time” frame as a built-in solution. The FCC has requested comment on its tentative conclusion.

In past rulemaking proceedings implementing provisions of the CVAA, the FCC has stated that covered entities are not required to build accessibility solutions into every product offering, provided that they offer consumers with the full range of disabilities meaningful choices through a range of accessible products with varying degrees of functionality and features at differing price points. The FCC did not address or seek comment on this point in the NPRM regarding the obligation to make digital apparatus used for transmitting video programming and navigation devices audibly accessible in real time by individuals who are blind or visually impaired. However, in adopting the same definition of “achievable,” the FCC implies that in measuring compliance it will consider the availability of accessibility features in products containing varying degrees of functionality and features and offered at various price points. Accordingly, commenters may raise it as a point for clarification in response to the NPRM.

Additional Matters for Which the FCC Requests Comment

Achievability: Sections 204 and 205 of the CVAA provide that the FCC’s implementing rules will only be effective if they are “achievable.” In the NPRM, the FCC observed that the CVAA amendments to the Communications Act define “achievable” based on: (1) the nature and cost of steps needed to meet requirements; (2) the technical and economic impact on the manufacturer or provider and the equipment/service in question; (3) the manufacturer or provider’s type of operations; and (4) the extent to which the provider or manufacturer offers accessible services or equipment. The FCC has requested comment on whether these standards, which it adopted in the context of ACS accessibility, should also apply to the digital apparatus and navigations devices accessibility requirements.

Enforcement: The FCC proposes using the same complaint filing procedure it adopted in the IP Closed Captioning proceeding, under which complaints must be filed with either the FCC or the entity responsible for non-compliance within 60 days after a person experiences a problem, with 30 days allowed for a response. The proposed rules do not clearly delineate how the consumer will identify the party responsible for non-compliance. The complaint procedure would follow the FCC’s case-by-case forfeiture approach and would require covered entities to make contact information available to users for the handling of complaints.

Exemption for Small Cable Operators: The FCC has requested comment regarding whether it should exempt cable systems serving 20,000 or fewer subscribers from the accessibility requirements governing navigation devices, or whether it would be more appropriate to provide small operators more time for compliance.

Timing: The FCC tentatively concluded that Section 205 requirements to provide a mechanism comparable to a button, key or icon to access captioning functions should become effective in two years, and that the rules covering navigation device accessibility requirements should take effect in three years. Similarly, for Section 204, the FCC tentatively concluded that it should provide a two-year phase-in period for compliance with accessibility rules for digital apparatus.

As noted above, this proceeding features an abbreviated comment period. Initial comments are due 25 days after the proposed rules are published in the Federal Register, and reply comments are due 25 days later. While the timing of publication and the grant of any extension may move those dates out some, extensions will be limited because final rules must be adopted by Oct. 9, 2013. Please let us know if you have any questions concerning the NPRM or would like our assistance in preparing responsive comments.