Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), the Federal Communications Commission (FCC or Commission) recently adopted rules designed to permit (1) the blind or visually impaired to more easily access video programming on a range of video devices, and (2) the deaf and hard of hearing to more easily activate closed captioning on video devices. Specifically, Section 204 of the CVAA requires “digital apparatus” (described below) that receive or play back video to accompany on-screen text menus with audio output, and to build in access to those features through a button, key or icon. Section 205 of the CVAA requires “navigation devices” (described below) also to have audibly accessible on-screen menus and guides. The rules were set forth in a recent Report and Order and Further Notice of Proposed Rulemaking (the Order). Effective dates of the new rules are noted below.

Section 204 - Digital Apparatus

Section 204 of the CVAA applies to digital apparatus designed to receive or play back video programming, such as computers, mobile phones, televisions and removable media players. The section imposes requirements on the manufacturers of such apparatus, which, in the Commission’s view, are best positioned to develop and build-in the necessary functions.

The term “digital apparatus” includes “the physical device and the video players that manufacturers install into the devices they manufacture (whether in the form of hardware, software, or a combination of both) before sale, as well as any post-sale video players that manufacturers direct consumers to install.” Order ¶ 39. This includes “video players that are part of third-party applications that provide video programming, such as Netflix, Hulu, and Amazon, if those applications are pre-installed on digital apparatus or manufacturers direct consumers to install such applications.” However, the definition does not include “third-party software that is downloaded or otherwise added to the device independently by the consumer after sale and that is not required by the manufacturer to enable the device to play video.” Order ¶ 39. Nor does it include equipment or software that falls within the meaning of the term “navigation device” (discussed below).

Such digital apparatus must, if achievable, “be designed, developed, and fabricated so that control of appropriate built-in apparatus functions are accessible to and usable by individuals who are blind or visually impaired.” Furthermore, “if on-screen text menus or other visual indicators built in to the digital apparatus are used to access the [appropriate built-in] functions of the apparatus … such functions shall be accompanied by audio output that is either integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and usable by individuals who are blind or visually impaired in real-time.” Order ¶ 53.

The essential functions which must be made accessible to the blind or visually impaired are the following, as identified by the Video Programming Accessibility Advisory Committee (VPAAC):

  • „„ Power On / Off: Function that allows the user to turn the device on or off.
  • „„ Volume Adjust and Mute: Function that allows the user to adjust the volume and to mute or un-mute the volume.
  • „„ Channel / Program Selection: Function that allows the user to select channels and programs (e.g., via physical numeric or channel up/channel down buttons or via onscreen guides and menus).
  • „„ Display Channel / Program Information: Function that allows the user to display channel or program information.
  • „„ Configuration – Setup: Function that allows the user to access and change configuration or setup options (e.g., configuration of video display and audio settings, selection of preferred language for on-screen guides or menus, etc.).
  • „„ Configuration – CC Control: Function that allows the user to enable or disable the display of closed captioning.
  • „„ Configuration – CC Options: Function that allows the user to modify the display of closed caption data (e.g., configuration of the font size, font color, background color, opacity, etc.).
  • „„ Configuration – Video Description Control: Function that allows the user to enable or disable the output of video description (i.e., allows the user to change from the main audio to the secondary audio stream that contains video description, and from the secondary audio stream back to the main audio).
  • „„ Display Configuration Info: Function that allows the user to display how user preferences are currently configured. „„ Playback Functions: Function that allows the user to control playback functions (e.g., pause, play, rewind, fast forward, stop, and record).
  • „„ Input Selection: Function that allows the user to select their preferred input source.

The FCC does not mandate inclusion of these features on all covered digital apparatus; rather, to the extent that a digital apparatus is designed to include the functions listed, such functions must be made accessible in accordance with the FCC rules. Furthermore, the Commission declined to adopt any technical standards or other technical requirements for how covered apparatus should achieve compliance, leaving the technical means up to the manufacturers. As noted by the Commission, the CVAA prohibits the Commission from specifying the technical means to achieve the CVAA requirements.

Section 205 - Navigation Devices

Section 205 of the CVAA addresses “navigation devices,” which are devices used to access multichannel video programming, including broadband data services. In the Order, the FCC found that in order to be classified as a “navigation device,” rather than a “digital apparatus,” the device must have the ability to perform conditional access. The FCC then stated that “navigation devices” include TVs with CableCARD slots, set-top boxes (including those provided by Multichannel Video Programming Distributors1 (MVPDs) as well as consumer-owned CableCARD-ready devices), computers with CableCARD slots, cable modems and “third party devices with MVPD applications that are installed by the device manufacturer.” Order ¶ 23.

Those responsible for compliance with Section 205 include both “MVPDs leasing or selling navigation devices to their subscribers” and “equipment manufacturers placing navigation devices into the chain of commerce for purchase.” Order ¶ 43. In addition, the FCC noted that Section 205 imposes responsibilities on manufacturers of navigation device hardware and software. Id.

Navigation devices, like digital apparatus, must also make on-screen text menus and guides for the display or selection of multichannel video programming audibly accessible in realtime upon request by blind or visually impaired individuals. With respect to navigation devices, as opposed to digital apparatus, only nine of the VPAAC’s 11 essential functions are required to be audibly accessible: Channel / Program Selection; Display Channel / Program Information; Configuration – Setup; Configuration – CC Control; Configuration – CC Options; Configuration – Video Description Control; Display Configuration Info; Playback Functions; and Input Selection. The power on/off and volume adjust/mute functions must be made accessible, but not necessarily audibly accessible.

A Mechanism Reasonably Comparable to a Button, Key, or Icon

Digital apparatus under Section 204 and navigation devices under Section 205 must provide access to certain accessibility features through “a mechanism reasonably comparable to a button, key, or icon.” Order ¶ 79. With respect to digital apparatus, the rules require built-in access to both closed captioning and video description features. With respect to navigation devices, the rules require that navigation devices with built-in closed captioning capability provide access to that capability. The Order states that mechanisms deemed compliant with this requirement include a dedicated button, key, or icon; voice commands; gestures; and a single step activation from the same location as the volume controls. However, the Commission declined to adopt the proposal that such features must be accessible in a single step.

Entities covered by Section 205 must provide compliant devices to consumers “upon request,” which the FCC has generally interpreted to mean that consumers must be able to “request compliant devices through any means made available generally to other subscribers requesting navigation devices.” Order ¶ 87. Such equipment should be provided in the same time frame as to other subscribers, and should be at no additional cost. With respect to closed captioning, however, rather than providing compliant devices only upon request, “covered entities must ensure that all of their navigation devices with built-in closed captioning capability provide a mechanism reasonably comparable to a button, key or icon to activate closed captioning.” Order ¶ 104 (emphasis added).

Complaint Process

The FCC established a complaint process by which consumers may file complaints against covered entities for alleged violations of the rules, and covered entities must make contact information available to end users for the receipt and handling of written complaints. Order ¶ 120. Complainants must file within 60 days after experiencing a problem, and may file with either the Commission or the covered entity. The covered entity then has 30 days to file a response to the complaint. Id. The Commission has adopted a case-bycase approach to sanctions, and may employ the full range of sanctions and remedies available to it.

Effective Dates

With respect to navigation devices and most digital apparatus, the rules will take effect three years after their publication date in the Federal Register, which has not occurred as of the posting of this Advisory. However, certain digital apparatus will have a compliance deadline of eight years from publication in the Federal Register. Specifically, display-only monitors and projectors, although covered by Section 204 governing “digital apparatus,” have a compliance deadline of eight years from publication in the Federal Register. The eight-year compliance deadline also applies to digital cameras, baby monitors and similar equipment.