On May 28, 2015, the FCC released a Second Report and Order and Second Further Notice of Proposed Rulemaking pursuant to authority granted by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) imposing additional emergency alert accessibility obligations on both device manufacturers and multichannel video programming distributors (MVPDs). The new requirements are designed to make access to emergency information easier for individuals who are blind or visually impaired. This advisory provides key information for MVPDs and manufacturers of covered equipment in complying with the new rules.
Consumers may be familiar with the on-screen crawls that appear during non-newscast television programming to announce emergency information such as extreme weather alerts and school closings. In 2013, the FCC adopted rules requiring that the visual emergency information be presented aurally through a secondary audio stream for individuals who are blind or visually impaired. The deadline for meeting this requirement was May 26, 2015. At the sound of an emergency alert tone, visually impaired individuals know to switch on the secondary audio stream to hear the on-screen crawl being read aloud. At other times, the secondary audio stream is used for foreign language audio or video descriptions.
Requirements for Device Manufacturers
What is the new requirement?
An individual’s ability to hear the emergency alerts over the secondary audio stream is dependent on his or her ability to switch to the secondary audio stream in a timely manner after hearing the alert tone. While the requirement to provide such a stream has only recently gone into full effect, some consumers have already noticed that the process for activating the secondary audio stream is often difficult. On some devices for example, the mechanism is buried in several layers of on-screen menus. The FCC is therefore requiring the manufacturers of video playback devices (e.g., TVs, tablets, smartphones) to provide a mechanism that is “simple and easy to use.”
What devices are affected?
Any apparatus designed to receive and play back video programming transmitted simultaneously with sound is required to both provide a secondary audio stream and an activation method that is simple and easy to use. This includes traditional televisions, but also devices without a screen including set-top boxes, game consoles and desktop computers.
There are several types of devices that are exempted from these rules, including display-only monitors that do not have any playback capability, and professional and commercial equipment that is not generally used by the public.
Are waivers available?
If providing either a secondary audio stream or an easy to use access mechanism is not “technically feasible,” covered manufacturers are permitted to file with the FCC a request for a ruling as to technical feasibility before manufacture. Alternatively, manufacturers may raise technical infeasibility as a defense when faced with a complaint. However, manufacturers should build their case for technical infeasibility and retain records supporting the analysis as part of the equipment design process rather than waiting for a complaint. Responses to formal and informal complaints are generally due within 20 days, which would likely be insufficient time to complete the technical infeasibility analysis and demonstration.
Even if providing a secondary audio stream is technically feasible, receive and playback device manufacturers may request a purpose-based waiver if they are able to argue that (1) the device is single-purpose, primarily designed for a purpose other than receiving or playing back video programming, and access to video programming on the device is merely incidental; or (2) that the device is multi-purpose, but that receiving or playing back video programming is not one of the uses which comprise the device’s essential utility. This is similar to the waiver standard and process for CVAA regulation of advanced communications services (ACS), under which the FCC granted waivers to a class of e-readers with incidental Internet connections and messaging potential.
What are the standards for determining compliance?
The FCC has given industry flexibility in determining the type of “easy” mechanism it will provide to access the secondary audio stream. The FCC has indicated that it considers examples of compliant mechanisms to include a dedicated button, key or icon; voice commands; gestures; or single step activation from the same location as the volume controls. Manufacturers should note, however, that in other proceedings implementing the CVAA, the FCC has decided to rely on complaints and enforcement proceedings to determine the meaning of key terms and requirements.
Manufacturers should note that while the FCC currently considers voice commands and gestures to be examples of compliant mechanisms, it is currently considering a Petition for Reconsideration from the National Association of the Deaf and others which asks the Commission to reconsider their status as compliant mechanisms for activating closed captioning and video description functionalities.
What is the deadline for compliance?
Manufacturers must provide a simple and easy to use mechanism for accessing the secondary audio stream on all covered devices by December 20, 2016.
Requirements for MVPDs
What is the new requirement?
As more Americans seek television content on-the-go, MVPDs have developed mobile applications and plugins such as Verizon’s Fios Mobile, Time Warner Cable’s TWC TV, or Comcast’s Xfinity TV Go. Through these applications, consumers can access the traditional live streams that are broadcast by the video programming provider, which is often referred to as linear programming. MVPDs must now pass through the secondary audio stream containing audible emergency information when they permit consumers to access linear programming on their laptops, smartphones, tablets, game consoles and other devices over the MVPD network or as part of their services.
What services are affected?
MVPD-provided applications that allow consumers to view linear programming are subject to the new rule. However, this rule does not currently apply to over-the-top (OTT) services such as Hulu or Netflix.
Device manufacturers are not obligated to ensure that the MVPD application used on their video playback device is compliant with this rule. However, the device has to be capable of providing a secondary audio stream, and the FCC has warned that it may impose obligations on manufacturers in the future if it finds that the apparatus itself does not make secondary audio streams available.
What is the deadline for compliance?
MVPDs will be required to make this secondary audio stream available two years after publication of the order in the Federal Register. The report identifies Comcast and Cablevision as having already made investments in infrastructure to be able to provide a secondary audio stream, but it notes that some MVPDs will need to take extensive measures in order to become compliant before the deadline.
Questions Raised by the Second FNPRM
In the Second FNPRM that accompanies the order, the FCC is seeking comment on three related issues:
(1) Whether the FCC should adopt rules regarding the prioritization of simultaneous displays of emergency messages. Often in emergency situations, multiple crawls and graphics are shown simultaneously. The FCC asks whether there are certain categories of information that ought to prioritized, or whether that judgement is better left to broadcasters.
(2) Whether school closings should continue to be announced on secondary audio streams. School closings are currently categorized by the FCC as “emergency information.” The National Association of Broadcasters (NAB) has asserted in a waiver petition that currently there is no way for broadcasters to prioritize more urgent messages over a prolonged reading of school closings, and that this could interfere with the dissemination of urgent messages to the visually impaired community.
(3) Whether the MVPD apps that allow consumers to view linear programming ought to be required to make the secondary audio stream “simple and easy” to activate. This change would make the requirement for MVPDs similar to that of the device manufacturers, as discussed previously. MVPDs should note that this rulemaking is following a similar path as well – first a requirement for a mechanism, and then a clarification within the original deadline that the mechanism be simple and easy to use. The FCC urges MVPDs to consult the disabled community when designing and developing activation mechanisms.
The deadline to comment on these issues will be 30 days after publication of the Second FNPRM in the Federal Register, and the deadline to file reply comments will be 60 days after publication.
Please keep in mind that attorneys in Kelley Drye & Warren's Communications practice group are experienced in addressing Federal Communications Commission technical and regulatory compliance and enforcement matters. For more information regarding this client advisory, please contact Steve Augustino at (202) 342-8612, John Heitmann at (202) 342-8544, Joshua Guyan at (202) 342-8566, your usual Kelley Drye attorney or any member of the Communications practice group. Also, please visit Kelley Drye's communications blog, CommLaw Monitor.