FCC Set to Impose New Accessibility Requirements under the Twenty-First Century Communications and Video Accessibility Act

At the end of this week, in two advisory committee meetings on January 13 and 14, 2011, the Federal Communications Commission (the "FCC") will begin its public discussion of the new accessibility requirements of the Twenty-First Century Communications and Video Accessibility Act (the "Act"). The Act imposes -- or authorizes the FCC to impose -- substantial new obligations on manufacturers or providers of video programming and advanced communications ("AdvCom") equipment and services. These meetings, and accompanying FCC regulatory notice-and-comment proceedings, will inform a number of new regulatory mandates, including safe-harbor provisions, exemptions, and other guidelines intended to assist equipment manufacturers, service providers, and video programmers.

Twenty-First Century Communications and Video Accessibility Act

The Act, which became law late last year, broadens a number of existing mandates to newer technologies and also creates additional requirements. See Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 (2010) (as codified in various sections of 47 U.S.C.). Subject to some exceptions, the Act defines AdvCom to include interconnected and non-interconnected VoIP, much text messaging, and video conferencing. Consistent with past regulation, the Act defines video programming to include programming generally considered comparable to programming provided by a television broadcast station and generally does not include user-generated content such as a user might find on YouTube or other online video-sharing sites.

In addition to other requirements, including new hearing-aid compatibility mandates, emergency information requirements, and new rules for certain deaf-blind services (with the caveat that any prospective safe-harbor guideline cannot require use of any proprietary technology), the Act generally calls on the FCC to issue regulations sufficient to implement the following mandates and exceptions:

AdvCom. AdvCom equipment and services must be accessible to persons with disabilities UNLESS:

• it is not "achievable," which is defined to consider costs, the nature of the manufacturer's operations, other available options from the manufacturer, and technical or economic impact;
• the FCC waives, on its own or a petitioner's motion, requirements for equipment "designed for multiple purposes" and used "primarily for purposes other than" AdvCom services;
• the mandate is satisfied through "peripheral devices" or other equipment that affords access to those with disabilities at "nominal cost;
• the AdvCom equipment or services are "customized" and not "offered directly" or "effectively available directly" to the public;
• the provider is an FCC-exempted small entity; or

the equipment or service already is subject to Interconnected VoIP rules (see 47 U.S.C. § 255), which will continue to apply.

Online Video. Online video – specifically, video programming delivered using Internet protocol that was once published or exhibited on television with captions after the effective date of FCC regulations – must include captions UNLESS:

• the FCC has concluded that captioning would be "economically burdensome," either on its own or per an entity's petition; or
• the programming or entity complies with FCC-established "alternate means of compliance."

Video Devices. Video playback or receiving equipment must be able to decode or pass through captioning, video description and emergency information BUT:

• such capabilities must be "technically feasible;"
• the FCC may establish "alternate means of compliance;"
• if the apparatus uses a screen smaller than 13", then such a capability also must be "achievable;" or
• if the equipment is designed for multiple purposes, then mandates do not apply if the "essential utility" of the device is not video playback.

      Video recording devices must be able to activate or pass through captioning, video description and emergency information if chosen by user BUT:

• only if "technically feasible;" and
• the FCC may establish "alternate means of compliance."

For devices designed to play back, record or receive video programming, via Internet protocol or otherwise, their on-screen text menus and guides must be usable by individuals who are blind or visually impaired, including audio output or other accessibility for video menus, and accessible using a button, key or icon similar to that used to activate closed captioning BUT:

• only if "achievable;"
• the FCC may establish "alternate means of compliance;"
• NavGuides may comply through availability of free peripheral device to those who request it; and
• small MVPDs may be exempted from NavGuide mandates.

Note: Under the Act, UIs are any on-screen menu or indicator, other than NavGuides, through which user may access video-related functions. NavGuides include any interactive equipment used by consumers to access MVPD programming.

Video Description. Video programming by certain TV broadcast stations (i.e., "Big Four" network affiliates in the top-25 U.S. TV markets) and the top-five nonbroadcast networks with enough video programming subject to the rules must include audio description of key visual elements in pauses in dialogue during the programming ("video description") for at least 50 hours per calendar quarter of video programming during primetime or children's programming BUT:

• this does not include "consumer-generated programming";
• this does not include programming exempted by FCC because description would be "economically burdensome;" and
• this does not include "live or near-live" programming.

Upcoming FCC Actions

The FCC has to conduct several rulemaking proceedings on a relatively short deadline, including: (i) by October 2011, a rulemaking to implement new AdvCom mandates, potential safe harbor guidelines, and the scope of multiple exemptions; (ii) also by October 2011, a rulemaking to update and implement video description rules; and (iii) by April 2012, a rulemaking on online captioning obligations and exemptions. These proceedings will involve public comment. Already, a preliminary public notice on some of these matters has issued, although it attracted relatively little comment.

The FCC, either directly or through one of the two advisory committees that will hold their meetings this week, also must prepare and publish reports on multiple aspects of the Act. The reports from these committees, which are composed of multiple industry and advocacy-group representatives, are also likely to ultimately lead to additional regulations.