[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66268-66283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17479]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MB Docket No. 12-108; FCC 24-79; FR ID 235228]
Accessibility of User Interfaces, and Video Programming Guides
and Menus
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) requires manufacturers of covered apparatus and
multichannel video programming distributors to make closed captioning
display settings readily accessible to individuals who are deaf and
hard of hearing. This action will further the Commission's efforts to
enable individuals with disabilities to access video programming
through closed captioning.
DATES:
Effective date: Effective September 16, 2024.
Compliance date: Compliance with 47 CFR 79.103(e) is not required
until the Commission has published a document in the Federal Register
announcing the compliance date.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Diana Sokolow, [email protected], of the Policy
Division, Media Bureau, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order (Order), in MB Docket No. 12-108; FCC 24-79, adopted
on July 18, 2024 and released on July 19, 2024. The full text of this
document will be available at https://docs.fcc.gov/public/attachments/FCC-24-79A1.pdf and via ECFS at https://www.fcc.gov/ecfs/. Documents
will be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat. Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to [email protected] or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), 1-844-4-FCC-ASL
(1-844-432-2275) (videophone).
Synopsis
This Order furthers our efforts to enable individuals with
disabilities to access video programming through closed captioning.
Closed captioning displays the audio portion of a television program as
text on the screen, providing access to news, entertainment, and
information for individuals who are deaf and hard of hearing. The
Federal Communications Commission requires the provision of closed
captioning on nearly all television programming, as well as on a large
portion of internet protocol (IP)-delivered programming. Through the
Commission's implementation of the Television Decoder Circuitry Act of
1990 (TDCA) and the Twenty-First Century Communications and Video
Accessibility Act of 2010 (CVAA), it has made significant progress in
enabling video programming to be accessible to persons who are deaf and
hard of hearing. Pursuant to the TDCA, the Commission adopted standards
for the display of closed captions on digital television receivers, and
those standards enable users to customize caption display by changing
the font, size, color, and other features of captions. Subsequently,
pursuant to the CVAA, the Commission adopted display standards for
other video devices, specifically for apparatus designed to receive or
play back video programming transmitted simultaneously with sound.
However, many consumers continue to have difficulty accessing the
closed captioning display settings on televisions and other video
devices--a technical barrier that prevents the use and enjoyment of
captioning. Today we take steps to alleviate this problem and thereby
ensure meaningful access to captioning.
Specifically, the rule we adopt requires manufacturers of covered
apparatus \1\ and multichannel video programming distributors (MVPDs)
to make closed captioning display settings readily accessible to
individuals who are deaf and hard of hearing. We afford covered
entities flexibility in how they meet this obligation, and the
Commission will determine whether settings are readily accessible to
consumers by evaluating the following factors: proximity,
discoverability,
[[Page 66269]]
previewability, and consistency and persistence. We adopt a compliance
deadline of two years after publication of this Order in the Federal
Register.
---------------------------------------------------------------------------
\1\ As discussed below, the requirements adopted herein apply to
devices covered by section 303(u) of the Act, in other words,
apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United
States and uses a picture screen of any size, except that the
requirements do not apply to third-party, pre-installed applications
that are otherwise covered by section 303(u).
---------------------------------------------------------------------------
Prior to adoption of the TDCA, consumers needed to purchase a
separate TeleCaption decoder device and connect it to a television set
in order to display closed captions. The TDCA amended section 303 of
the Communications Act of 1934, as amended (the Act), to require that
television receivers contain built-in decoder circuitry designed to
display closed captioning. It also amended section 330 of the Act to
require that the Commission's rules provide performance and display
standards for such built-in decoder circuitry. In the TDCA, Congress
observed that the availability of televisions with built-in decoders
``will significantly increase the audience that can be served by
closed-captioned television'' and outlined the significant benefits of
closed captioning for people who are deaf and hard of hearing as well
as other segments of the population, including children and older
Americans who have some loss of hearing. Congress also mandated in
section 330(b) of the Act that the Commission take appropriate action
to ensure that closed captioning service continues to be available to
consumers as new video technology is developed.
In 1991, the Commission adopted rules that codified standards for
the display of closed captioned text on analog television receivers.
Following the transition to digital broadcasting, the Commission in
2000 adopted technical standards for the display of closed captions on
digital television receivers ``to ensure that closed captioning service
continues to be available to consumers.'' In particular, the Commission
adopted with some modifications section 9 of EIA-708, an industry
standard addressing closed captioning for digital television, which
allows the caption display to be customized for a particular viewer by
enabling the viewer to change the appearance of the captions to suit
his or her needs. When the Commission adopted the technical standards,
it explained that the ``capability to alter fonts, sizes, colors,
backgrounds and more, can enable a greater number of persons who are
deaf and hard of hearing to take advantage of closed captioning.''
In 2010, Congress enacted the CVAA to ``update the communications
laws to help ensure that individuals with disabilities are able to
fully utilize communications services and equipment and better access
video programming.'' Section 203 of the CVAA broadened section 303(u)
of the Act, which previously applied to ``apparatus designed to receive
television pictures broadcast simultaneously with sound,'' to cover
``apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United
States and uses a picture screen of any size.'' Such apparatus must
``be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captioned video programming.'' In
2012, the Commission adopted performance and display standards for such
built-in decoder circuitry in accordance with section 330(b) of the
Act, and in particular it adopted functional requirements to ensure
that consumers can modify caption display features for IP-delivered
programming on covered apparatus. These rules require that apparatus
provide functionality that allows users to change the presentation,
color, opacity, size, and font of captions, caption background color
and opacity, character edge attributes, and caption window color. But
the rules do not mandate how users access such features on the device.
In the Commission's subsequent proceedings on implementing the
accessibility requirements of sections 204 and 205 of the CVAA,
Consumer Groups described the difficulties consumers who are deaf and
hard of hearing face in accessing closed captioning display features on
apparatus used to view video programming.
In November 2015, in a Second Further Notice of Proposed Rulemaking
(Second FNPRM) in the above-captioned docket, the Commission proposed
to adopt rules that would require manufacturers and MVPDs to ensure
that consumers are able to readily access user display settings for
closed captioning, and on the Commission's authority to do so under the
TDCA.\2\ Among other things, the Second FNPRM asked whether the
Commission should require the inclusion of closed captioning display
settings no lower than the first level of a menu, whether such an
approach would provide industry with sufficient flexibility, and
whether there are ``alternative ways to implement this requirement.''
In January 2022, the Media Bureau released a Public Notice seeking to
refresh the record on the proposals contained in the Second FNPRM.\3\
While some comments in the refreshed record assert that caption display
settings are accessible, others explain that problems with the
accessibility of such settings continue to persist.
---------------------------------------------------------------------------
\2\ In the Further Notice of Proposed Rulemaking in MB Docket
No. 12-108, the Commission had previously inquired whether sections
204 and 205 of the CVAA provide the Commission with authority to
adopt such a requirement. Given our conclusion herein that our
authority derives from the statutory provisions of the TDCA, as
codified in sections 303(u) and 330(b) of the Act, we find it
unnecessary to reach this issue.
\3\ The January 2022 Public Notice was published in the Federal
Register. See Federal Communications Commission, Accessibility Rules
for Closed Captioning Display Settings, 87 FR 2607 (Jan. 18, 2022).
---------------------------------------------------------------------------
In January 2023, the Media Bureau released another Public Notice,
seeking comment on a proposal in the record that the Commission require
compliance with the following factors when determining whether
captioning display settings are readily accessible: proximity,
discoverability, previewability, and consistency and persistence.\4\ On
March 14, 2024, NCTA and a coalition of consumer groups filed in the
record a joint proposal to make caption display settings readily
accessible.\5\ The Media Bureau released a Public Notice seeking
comment on the joint proposal.\6\
---------------------------------------------------------------------------
\4\ The 2023 Caption Display Settings Public Notice was
published in the Federal Register. See Federal Communications
Commission, Accessibility Rules for Closed Captioning Display
Settings, 88 FR 6725 (Feb. 1, 2023).
\5\ The proposal's signatories represent the following
organizations: NCTA, National Association of the Deaf, TDIforAccess
(TDI), Communication Service for the Deaf, and Hearing Loss
Association of America.
\6\ The 2024 Caption Display Settings Public Notice was
published in the Federal Register. See Federal Communications
Commission, Accessibility Rules for Closed Captioning Display
Settings, 89 FR 20965 (March 26, 2024).
---------------------------------------------------------------------------
Below, we first find that we have authority under the TDCA to
require that closed captioning display settings are readily accessible
to consumers. Second, we adopt the requirement that such settings must
be ``readily accessible,'' and we detail factors the Commission will
require when making this determination. Third, we explain our finding
that the public interest benefits outweigh the costs for a requirement
that the closed captioning display settings be readily accessible.
Fourth, we find that the rule we adopt herein applies to the full range
of devices covered by section 303(u) of the Act, and that both
manufacturers of covered apparatus and MVPDs are responsible for
compliance with the rule, except that the requirements do not apply to
third-party, pre-installed applications that are otherwise covered by
section 303(u). Fifth, we discuss the availability of waivers or
exemptions based on achievability and technical
[[Page 66270]]
feasibility. Finally, we establish a compliance deadline of two years
after publication of the Third Report and Order in the Federal
Register.
Authority. We conclude that the Commission has authority under the
TDCA to require that closed captioning display settings be readily
accessible to consumers. Section 303(u)(1)(A) of the Act authorizes the
Commission to require that ``apparatus designed to receive or play back
video programming transmitted simultaneously with sound'' must ``be
equipped with built-in closed caption decoder circuitry or capability
designed to display closed-captioned video programming.'' Section
330(b) of the Act directs the Commission to adopt rules to ``provide
performance and display standards for such built-in decoder circuitry
or capability designed to display closed captioned video programming''
and, ``[a]s new video technology is developed,'' to take such action as
it ``determines appropriate to ensure that closed-captioning service .
. . continue[s] to be available to consumers.''
We find that sections 303(u) and 330(b) authorize the Commission,
in implementing the TDCA, to consider the practical usability of closed
captioning features by consumers and to adopt ``performance and display
standards'' that will make closed captioning ``available to consumers''
by ensuring the usability of the display options. We find that
meaningful access to user display settings ``is essential to making
closed captioning `available' to consumers'' within the meaning of the
TDCA.\7\ As Consumer Groups explain, ``[i]f a consumer cannot readily
locate and use display settings, then closed captioning itself is not
truly `available' because the consumer cannot ensure that captions are
rendered in a readable and accessible format,'' and, thus the directive
and purpose of the statute will not be fulfilled. Given ``the increased
volume and variety of both the programming and devices available to
consumers'' today, it is ``more important now than ever'' that the
Commission modify its rules to ensure that closed captioning is
meaningfully--not just nominally--available to viewers in order to
serve Congressional intent.\8\ The record shows that expecting
consumers to ``search[] for settings which are buried in menus'' is an
``intimidating and frustrating experience.'' \9\ Thus, simply including
captioning circuitry somewhere in a device is not enough to satisfy the
requirements of the statute; for the captions to be ``available'' as
Congress intended, consumers must be able to adjust the caption display
settings in a manner that makes the captions accessible--i.e.,
``available'' to the consumer.
---------------------------------------------------------------------------
\7\ See Consumer Groups 2016 Comments at 3.
\8\ Id.
\9\ Id. at 4.
---------------------------------------------------------------------------
We find that the structure, text, purpose, and history of the TDCA
support Commission authority to regulate consumer access to closed
captioning display settings. First, the statutory structure and text
support this interpretation. Section 303(u)(1)(A) directs the
Commission to adopt regulations that, among other things, require (if
technically feasible) that covered devices ``be equipped with built-in
closed caption decoder circuitry or capability designed to display
closed-captioned video programming.'' Section 330(b) directs the
Commission to adopt ``performance and display standards'' and to take
such action as it deems necessary to ensure that closed captioning
continues to be ``available,'' as new technology is developed. Congress
did not define the term ``available'' for purposes of section 330(b).
We believe that the best reading is to interpret ``available'' to mean
that consumers can readily access the various functions and features of
closed captioning capability. We find that this reading is supported by
the statute as a whole and the surrounding text. Specifically, section
330(b) identifies certain requirements that Commission rules ``shall
provide'' in implementing section 303(u), including ``performance and
display standards,'' a requirement that is sufficiently broad to
encompass regulation of how closed captioning is accessed by consumers.
Indeed, Consumer Groups discuss the meaning of the word ``performance''
in the phrase ``performance and display standards,'' explaining that
``[a]n interpretation of the statute that would prohibit the Commission
from setting standards for easy access to configuration controls would
undermine'' Congress's accessibility goals, and the ``grant of
authority to implement performance standards'' provides the Commission
with ``substantial discretion'' in adopting requirements ``to specify
how users might interact with functions required by those performance
standards.'' We agree. By exercising our authority in this manner, we
fulfill the statutory requirement to include in our rules
``performance'' standards for closed captioning. In addition, section
330(b) directs the Commission ``[a]s new video technology is
developed'' to ``take such action as [it] determines appropriate to
ensure that closed-captioning service . . . continue[s] to be available
to consumers.'' The ``take such action as [it] determines appropriate''
mandate further supports a broad, rather than narrow, view of the
Commission's authority to ``ensure that closed-captioning service . . .
continue[s] to be available to consumers''--an objective advanced by
ensuring access to closed caption display options. We thus believe this
interpretation of the statute best reflects the ordinary meaning of the
statute and best serves the statutory purpose, as discussed below.
Second, our interpretation is consistent with the express purpose
of the TDCA, which is to increase the number of consumers who can avail
themselves of closed captioning, with increased demand spurring the
provision of more captioned programming. In enacting the TDCA, Congress
stated that ``to the fullest extent made possible by technology,''
persons who are deaf and hard of hearing ``should have equal access to
the television medium.'' Third, we observe that the legislative history
reveals that Congress believed the TDCA would increase the audience for
closed captioned programming and thereby create market incentives for
investment in closed captioned programming. If a covered apparatus has
the ability to process and display closed captions but does so in a way
that makes it practically infeasible or undesirable for consumers to
use that capability, the intent of broadening the potential audience
for captioned programming is undermined. By requiring that closed
captioning performance and display functionality be ``readily
accessible,'' we fulfill the purpose of the TDCA and Congressional
intent as reflected in the legislative history by ensuring that
captions are meaningfully available, and we can increase the likelihood
that the audience for closed captioned programming will continue to
grow as unmet needs are fulfilled, consistent with the statutory
purpose.
We do not agree that relying on sections 303(u)(1)(A) and 330(b) of
the Act here is ``a belated Commission reinterpretation of the TDCA.''
\10\ To the contrary, the Commission historically has recognized and
exercised authority under sections 303(u) and 330(b) of the Act, prior
to the enactment of the CVAA, in a manner that supports its exercise of
that authority to regulate access to closed captioning display options
here. Previously, the Commission concluded that ``[i]t is
[[Page 66271]]
essential'' that closed captions be readable, and it relied on sections
303(u) and 330(b) of the Act to adopt closed captioning rules that
required consumers to be able to modify settings such as font size and
color. Interpreting the TDCA to authorize regulations ensuring that
consumers can easily access the required display settings to make
closed captions readable, therefore, is entirely consistent with our
prior interpretations. For the same reason, there is no logical basis
to conclude that Congress, with respect to the TDCA modifications it
adopted via the CVAA, interpreted the TDCA as not having granted the
Commission authority to regulate access to display settings, as some
commenters advocate.
---------------------------------------------------------------------------
\10\ CTA 2016 Comments at 6-7; CTA 2022 Comments at 9.
---------------------------------------------------------------------------
Further, we reject the argument that the penultimate sentence of
section 330(b) does not support the adoption of new requirements here
because currently there is ``no threat to the availability of closed-
captioning service.'' \11\ To the contrary, we find that the
requirements we are adopting herein are a proper exercise of our
authority under section 330(b) because the record shows that the
development of new technology for viewing video programming has made it
more difficult for consumers to access the necessary caption display
settings. Specifically, consumers today watch video programming on a
multitude of different devices, and ``it is difficult for consumers to
readily anticipate where display settings are located because the
location varies depending on the device used.'' \12\ With the
proliferation of online video programming, a consumer that views
captioned video programming using the same application or website on
multiple devices may adjust the display settings for one device, only
to find that the settings need to be adjusted again when the
programming is viewed on a different device.
---------------------------------------------------------------------------
\11\ See NCTA 2016 Comments at 4. That sentence reads: ``As new
video technology is developed, the Commission shall take such action
as [it] determines appropriate to ensure that closed-captioning
service . . . continue[s] to be available to consumers.'' NCTA
claims that ``the legislative history shows that this particular
sentence was not intended to provide additional authority to the
Commission, but instead reflects Congress' desire to ensure that the
particular technical requirements Congress directed the Commission
to adopt would be revised as necessary to keep pace with future
technology changes.'' We disagree with NCTA's interpretation of the
legislative history. The legislative history that NCTA cites merely
indicates an intention to permit the Commission not to impose the
same requirements for both older and newer technologies so long as
closed captioning remains widely available to consumers.
\12\ Consumer Groups 2016 Comments at 7.
---------------------------------------------------------------------------
We also disagree with commenters who argue that the directives of
sections 303(u) and 330(b) are satisfied as long as closed captioning
circuitry or capability is included somewhere in their devices, that
the statute's use of the term ``available'' should be read narrowly to
exclude consideration of the accessibility of the closed captioning by
consumers,\13\ and that section 330(b) does nothing more than
``authorize the Commission to update specifications as necessary to
keep up with new video technologies.'' \14\ As explained above,
Congress used broad language in section 330(b), authorizing the
Commission to ``take such action as [it] determines appropriate'' to
ensure the continued availability of closed captioning. We thus reject
ACA's assertion that the Commission's authority under section 330(b)
``is limited to updating the specific technical requirements identified
in the TDCA'' to avoid requiring manufacturers to adhere to ``outdated
technical requirements.'' Further, our interpretation best serves the
statutory purpose of ensuring that persons who are deaf and hard of
hearing ``should have equal access to the television medium.'' Thus, we
believe our adoption of a rule ensuring the accessibility of closed
captioning display functions falls within the broad scope of this
language. The language also informs our interpretation and
implementation of our authority under section 303(u) to ensure that
video apparatus is ``equipped'' with closed captioning capabilities,
which requires both that the apparatus possesses the necessary
capabilities and that consumers are able to access them.\15\ Thus, our
advancement of the objectives identified in section 330(b) also
supports our use of section 303(u)(1)(A) authority to adopt the
requirements of this order.\16\
---------------------------------------------------------------------------
\13\ NCTA cites as support for its statutory analysis the
approach the Commission took in the TDCA Report and Order and the
DTV Closed Captioning Order, but both of those orders are
distinguishable. First, the TDCA Report and Order was a pre-digital
order that also predated the amendment of the TDCA to extend beyond
television sets. Second, the DTV Closed Captioning Order applied
only to DTV receivers.
\14\ ACA 2016 Reply at 6.
\15\ Interpreting the second to last sentence of section 330(b)
to, at a minimum, inform our interpretation and implementation of
section 303(u) is consistent with the remaining text of section
330(b). Among other things, that language directs the Commission to
adopt rules implementing section 303(u) that ``provide performance
and display standards for [ ] built-in decoder circuitry or
capability designed to display closed captioned video programming.''
As explained above, the rules we adopt here readily fit within the
scope of ``performance and display standards.''
\16\ NCTA overstates the significance of certain language from
the legislative history of the TDCA as allegedly demonstrating that
the Commission is precluded from interpreting the second to last
sentence of section 330(b) as a grant of authority. See NCTA 2016
Comments at 4, n.13. By its terms, that excerpt is an ``example'' of
the relevance of the second to last sentence of section 330(b),
rather than an exhaustive description of the role of that provision.
That language from the TDCA Senate Report also reinforces the view
that, at a minimum, the considerations identified in section 330(b)
inform our interpretation and implementation of our authority under
section 303(u). Moreover, this legislative history demonstrates our
authority to take steps reasonably necessary, as demonstrated above,
to ``ensure'' that closed captioning continues to be ``widely
available'' to consumers.
---------------------------------------------------------------------------
We further reject arguments that the statutory language does not
permit the Commission to regulate the manner in which consumers are
able to access and use such circuitry or capability. AT&T, for example,
points to language in section 330(b) directing the Commission to ensure
that covered apparatus ``be able to receive and display closed
captioning which have been transmitted by way of line 21 of the
vertical blanking interval,'' consistent with specific ``signal and
display specifications.'' Yet, that text is preceded by the phrase,
``Such rules shall further require,'' which belies the notion that
Congress intended to use that language to limit the Commission's
authority to the implementation of the identified specifications. To
the contrary, we conclude that the reference in section 330(b) of the
Act to ``performance and display standards,'' which Congress did not
define, includes the regulation of how consumers are able to access and
use closed captioning. To interpret the language more narrowly, as some
commenters advocate, would have the perverse result of allowing a
manufacturer or MVPD to bury those settings so deep in a complicated
series of menus that they are not readily accessible, undermining the
purpose of the statute to ensure they are ``available to consumers.''
Further, the reference that AT&T highlights in the statute to the
``line 21 of the vertical blanking interval'' relates only to analog
transmission. There is no vertical blanking interval in digital
transmissions. The digital transition occurred in 2009 for the majority
of stations, and the requirement contained in this sentence cannot
transfer directly into a digital environment. Thus the requirement
contained in this sentence cannot reasonably be read to limit the
Commission's authority here. The directive in section 330(b) that the
Commission ``take such action as [it] determines appropriate'' supports
a broad view of the Commission's authority to ensure that closed
captioning ``continue[s] to be available to consumers.''
[[Page 66272]]
Further, Congress's enactment in the CVAA of sections 303(aa) and
(bb) of the Act does not undercut the Commission's exercise of its
authority under sections 303(u) and 330(b) of the Act. Section 303(aa)
contains accessibility requirements for certain digital apparatus
functions and features, while section 303(bb) contains accessibility
requirements for certain navigation device functions and features.
First, we reject suggestions that sections 303(aa) and (bb) are more
specific than sections 303(u) and 330(b) and thus are controlling with
regard to Commission authority to regulate consumer access to closed
captioning display settings. These arguments invoke the general canon
of interpretation that ``specific statutory language should control
more general language when there is a conflict between the two.'' \17\
Such an interpretation would represent a narrowing of the authority
that the Commission previously understood itself to have and that it
has exercised, and there is no indication that Congress intended the
CVAA to have such an effect. It is more consistent with the
accessibility objectives of the CVAA to conclude that Congress intended
sections 303(u), (aa), (bb), and 330(b) of the Act to be available
collectively as a source of Commission authority to pursue disability
access objectives.\18\ While sections 303(aa)(3) and (bb)(2)
specifically address access to closed captioning activation, they are
silent regarding access to closed captioning display options.\19\ Had
Congress intended to curtail the Commission's authority to take further
action under section 330(b) to promote the continued availability of
closed captioning service, it could have done so explicitly. It did
not, and we find it unlikely that Congress intended to do so sub
silentio.
---------------------------------------------------------------------------
\17\ NCTA v. Gulf Power, 534 U.S. 327, 335-336 (2002).
\18\ The stated purpose of the CVAA is ``[t]o increase the
access of persons with disabilities to modern communications, and
for other purposes.''
\19\ Similarly, the provisions in sections 204 and 205 of the
CVAA that were not incorporated in sections 303(aa) and (bb) of the
Act are silent regarding access to closed captioning display
options. Contrary to CTA's suggestion, sections 204 and 205 did not
``express[ ] an intent to limit the Commission's authority'' in this
regard. In addition, sections 303(aa)(1) and (2) apply to an
unenumerated universe of ``functions'' to be made accessible to
individuals who are blind or visually impaired, and thus also are
not more specific than sections 303(u)(1)(A) and 330(b) regarding
the requirements for closed captioning display options that we adopt
here.
---------------------------------------------------------------------------
Second, contrary to the suggestion of some commenters, we find that
Congress's decision to require closed caption activation via a
mechanism reasonably comparable to a key, button, or icon does not mean
that it considered and rejected such a requirement for closed
captioning display settings.\20\ Rather, as stated above, we find that
Congress intended the relevant provisions of the Act--section 303(u),
as amended by the CVAA; sections 303(aa) and (bb), added to the Act by
the CVAA; and section 330(b), added to the Act by the TDCA--to be
available collectively as a source of Commission authority regarding
disability access issues. Given Congress's interest in expanding access
to video programming through the CVAA, we do not believe that it
intended the provisions of that statute to negate the express language
of section 330(b) to ensure that closed captions continue to be
available to consumers as new video technology is developed, nor the
overall intent of the TDCA to bring more programs that are closed
captioned into the homes of Americans. Congress required closed caption
activation via a certain mechanism in the CVAA, but Congress left it to
the Commission's discretion to determine whether and to what extent to
regulate other matters pertaining to the ability of consumers to access
closed captioning on video apparatus pursuant to its earlier grant of
authority, including specifically through establishment of
``performance and display standards.''
---------------------------------------------------------------------------
\20\ This argument invokes the ``expressio unius est exclusio
alterius'' canon of interpretation, which ``presum[es] that an
omission is intentional where Congress has referred to something in
one subsection but not in another.'' NAB v. FCC, 569 F.3d 416, 421
(D.C. Cir. 2009) (citing Russello v. United States, 464 U.S. 16, 23
(1983)).
---------------------------------------------------------------------------
Third, we disagree with commenters who contend that Congress would
not have needed to adopt provisions in the CVAA directing the
Commission to require closed caption activation through a mechanism
reasonably equivalent to a button, key, or icon if the Commission
already had authority pursuant to the TDCA to regulate access to closed
captioning display settings. There are legally meaningful differences
in the Commission's authority under section 303(u) as compared to
sections 303(aa) and (bb) of the Act, which indicate that Congress
intended to give the Commission new authority to accomplish a
particular purpose, rather than supplant the Commission's authority to
adopt closed-captioning regulations pursuant to a specific legal
standard under section 303(u). For example, section 303(u)(1)(A)
directs the Commission to adopt closed captioning requirements that
apply if compliance is ``technically feasible,'' whereas sections
303(aa)(3) and (bb)(2) contain no such limitation.\21\ Additionally,
the Commission has statutory authority to exempt certain apparatus from
the requirements of section 303(u) that it cannot exercise with respect
to the requirements of sections 303(aa)(3) and (bb)(2). Further, the
CVAA established deadlines for the Commission to adopt rules initially
implementing the requirements of sections 303(aa)(3) and (bb)(2) that
differ from those for implementing the CVAA's revisions to section
303(u). There is no logical basis to conclude that the ``button, key,
or icon'' requirement in sections 303(aa)(3) and (bb)(2) presupposes
the absence of authority in sections 303(u)(1) or 330(b) to adopt
different regulations to ensure that closed captioning performance and
display functions continue to be ``available'' to consumers. Thus, we
conclude that enactment of sections 303(aa)(3) and (bb)(2) does not
diminish our authority to adopt the new rule set forth herein.
---------------------------------------------------------------------------
\21\ The Commission previously concluded that section 303(bb)(2)
contains no limiting language and therefore imposes an unconditional
obligation, noting that it does not contain ``upon request''
language or any reference to specific types of individuals found
elsewhere in section 205 of the CVAA; lacks language found elsewhere
that allows entities to provide required functionalities using
separate equipment or software; and is not qualified by the phrase
``if achievable,'' in contrast with other provisions. Section
303(aa)(3) likewise lacks any limiting language.
---------------------------------------------------------------------------
Finally, as a separate and independent basis of authority, in
addition to the TDCA, we find authority to adopt accessibility
requirements under sections 4(i) and 303(r) of the Act. The Commission
is specifically delegated authority under the Act to require that
covered apparatus must ``be equipped'' with closed caption capability
and to adopt rules as it ``determines appropriate to ensure that
closed-captioning service . . . continue[s] to be available to
consumers'' ``[a]s new video technology is developed.'' Ensuring that
the required caption capabilities are actually accessible by consumers
is essential to fulfill these statutory requirements. Otherwise, if a
consumer cannot readily locate and use display settings to ensure that
captions are rendered in a readable and accessible format, then closed
captioning itself is not truly ``available'' as required under the
statute. The rules we adopt today are thus necessary to carry out the
specific requirements set forth in sections 303(u) and 330(b) of the
Act.
Access to Closed Captioning Display Settings Must Be ``Readily
Accessible.'' As proposed in the Second FNPRM, we adopt a rule that
requires covered
[[Page 66273]]
manufacturers and MVPDs to ensure that consumers are able to readily
access user display settings for closed captioning on covered apparatus
pursuant to our authority under the TDCA. Congress directed the
Commission to provide performance and display standards for built-in
decoder circuitry or capability designed to display closed captioned
video programming and to take action to ensure that closed captioning
continues to be available to consumers as video programming technology
evolves. The rule we adopt herein serves these statutory directives. As
discussed below, we afford covered entities (MVPDs and manufacturers)
flexibility in how they meet this obligation, and the Commission will
determine whether settings are readily accessible to consumers by
evaluating the following factors, as described in the March 2024 joint
proposal: proximity, discoverability, previewability, and consistency
and persistence.\22\ Below we explain the public interest benefits of
these new requirements. We also describe which devices and entities are
covered by the rule, set forth exemptions for achievability and
technical feasibility, and set a compliance deadline of two years from
publication of the rule in the Federal Register.
---------------------------------------------------------------------------
\22\ Although the March 2024 joint proposal does not explicitly
reference the previously proposed four factor framework, we believe
it fits within that framework. Accordingly, we adopt the contents of
the joint proposal as clarifying or modifying the meaning of the
previously proposed factors.
---------------------------------------------------------------------------
``Readily Accessible.'' ``Readily Accessible'' Requirement in
General. We first require manufacturers and MVPDs to ensure that
consumers are able to readily access user display settings for closed
captioning on covered apparatus. To determine whether particular
settings are readily accessible, the Commission will require compliance
with the following factors, which we further define below: proximity,
discoverability, previewability, and consistency and persistence.\23\
Failure to comply with any of the factors may be deemed a violation of
the Commission's rules.\24\
---------------------------------------------------------------------------
\23\ We note that ITI expresses vague concerns that the proposal
uses terms, definitions, and requirements that ``do not necessarily
reflect internationally-accepted practices for this technology . . .
.'' Information Technology Industry Council (ITI) 2023 Comments at
2. See also CTA/ITI 2023 Reply at 3-4 (stating that any new rules
should ``[h]armonize with existing international standards to avoid
confusion and imposing additional burdens on companies''); Letter
from Rachel Nemeth, Sr. Director, Regulatory Affairs, and Brian
Markwalter, Senior Vice President, Research & Standards, Consumer
Technology Association, to Marlene H. Dortch, Secretary, FCC, MB
Docket No. 12-108, at 2 (Apr. 28, 2023). Given the lack of specific
information in the record as to precisely what rules the Commission
should adopt in this area to ensure consistency with international
standards, we are unable to take any further action in response to
the cited pleadings.
\24\ While ACA Connects expresses concern that some of the
factors could be contradictory, we believe that is no longer the
case given the meaning of the factors we adopt below. In the event
that an allegation of non-compliance arises, the covered entity will
need to demonstrate how it has complied with the applicable
requirements. For example, if there is an allegation that a covered
entity has not provided the required employee training discussed
below, the entity could, for instance, offer information by
providing training materials and a training schedule.
---------------------------------------------------------------------------
The readily accessible requirement, which the Commission will
evaluate based on the four factors, will ensure that consumers who are
deaf and hard of hearing can easily access closed captioning display
settings, while still giving covered entities flexibility in the manner
of compliance.\25\ While display settings already may be readily
accessible for some devices, using such settings generally has not been
easy for consumers.\26\ As Consumer Groups explain, ``these functional
requirements provide a workable middle ground between strict design
mandates and the laissez faire approach called for by industry
commenters, allowing the industry substantial flexibility while
requiring it to finally address the long-standing gaps in the
accessibility of closed captioning display setting interfaces.'' \27\
We believe that this approach will alleviate the challenges faced by
consumers who are deaf and hard of hearing in accessing closed
captioning and will ensure that these viewers can adjust the font,
size, color, and other features of closed captions wherever they are
watching video programming on devices without the undue complexity
experienced today. This approach is also consistent with how the
Commission has implemented accessibility requirements for closed
captioning activation mechanisms on video devices pursuant to sections
204 and 205 of the CVAA.\28\
---------------------------------------------------------------------------
\25\ The adoption of flexible factors that we will require in
determining if caption display settings are readily accessible
should alleviate ACA Connects' concern that rigid standards could
``squelch innovation.'' Similarly, we expect the flexibility
inherent within the factors to alleviate ITI's concern that
stringent requirements could lead to ``a cluttered, overly-complex
user interface'' that could confuse users and have a particular
negative impact on individuals with cognitive difficulties.
\26\ For example, Consumer Groups note that changing closed
captioning settings for the most popular streaming service requires
many users to engage in a 10-step process that involves leaving the
application and navigating the service's website.
\27\ But see Letter from J. David Grossman, Vice President,
Regulatory Affairs, CTA, and Brian Markwalter, Senior Vice
President, Research & Standards, CTA, to Marlene H. Dortch,
Secretary, FCC, MB Docket No. 12-108, at 4 (June 30, 2022) (claiming
that these factors ``represent a very heavy regulatory lift that
neither the Commission nor industry has properly investigated''). We
disagree with CTA's claim, both because any regulatory burden will
be alleviated by the flexible nature of the factors, and because the
reply comments and subsequent 2023 and 2024 comments and replies did
not demonstrate that applying these flexible factors will be unduly
costly or otherwise unduly burdensome to industry. To the contrary,
we intend the factors to clarify for industry how the Commission
will evaluate whether particular settings are readily accessible.
\28\ With the exception of a Petition for Reconsideration filed
by Consumer Groups regarding use of voice control and gestures for
closed captioning activation, no party filed an appeal of the Report
and Order and Further Notice. We need not address the argument that
we lack sufficient notice to adopt the proposed factors, because the
Media Bureau subsequently issued the 2023 Caption Display Settings
Public Notice and the 2024 Caption Display Settings Public Notice
and published both documents in the Federal Register, giving notice
to all interested parties that this proposal was up for
consideration. We further note that the Commission's authority to
adopt the factors stems from the same authority it has to adopt the
readily accessible requirement generally, as discussed above.
---------------------------------------------------------------------------
Proximity. In determining whether specific closed captioning
display settings are readily accessible, the Commission will require
that the settings are ``proximate.'' For this purpose, ``proximity''
requires that covered entities ``will place . . . the closed caption
display settings . . . in one area of the settings (either at the
operating system or application level) that is accessed via a means
reasonably comparable to a button, key, or icon.'' \29\ Consumer Groups
initially argued that this factor should require access to closed
captioning settings in the first level of a menu.\30\ Industry objected
to this approach as too rigid. Consumer Groups then modified their
proposed definition of ``proximity,'' clarifying that it is intended to
ensure that consumers need not navigate a lengthy set of steps and/or
switch devices or applications to access closed caption display
settings.
[[Page 66274]]
The subsequent March 2024 joint proposal did not specifically reference
that modification and instead further refined the approach to provide
that caption display settings should be available in one area of the
settings that can be accessed via a means reasonably comparable to a
button, key, or icon. We find that requiring proximity pursuant to the
revised definition is in the public interest because it will ensure
that consumers do not need to complete many steps or switch devices or
applications to access closed caption display settings, and it is
hereby required by our rules. We believe that the presence of ready
access to caption display settings is paramount to the utility of such
settings, and the ``proximity'' requirement will further that aim.
---------------------------------------------------------------------------
\29\ Letter from Mary Beth Murphy, Vice President & Deputy
General Counsel, NCTA--The internet & Television Association, et
al., to Marlene H. Dortch, Secretary, FCC, MB Docket No. 12-108, at
1 (Mar. 14, 2024) (NCTA/Consumer Groups Mar. 14, 2024 Ex Parte). We
recognize that the joint proposal was to ``place all accessibility
functions--including, but not limited to, the closed caption display
settings and caption on/off--in one area of the settings. . . .''
The rules established in this Order, however, do not apply to any
accessibility functions other than closed captioning display
settings. In addition, the Commission's rules already require that
closed captioning and audio description ``can be activated through a
mechanism that is reasonably comparable to a button, key, or icon.''
47 CFR 79.109(a)(1)-(2), (b). We encourage covered entities to make
all accessibility functions, including closed captioning display
settings and caption on/off, available in the same location.
\30\ We recognize that commenters previously evaluated some of
what we now deem ``proximity'' as part of the ``discoverability''
factor. The meaning of ``proximity'' that we adopt here is tailored
to fit the joint proposal within the four-factor framework.
---------------------------------------------------------------------------
Under the approach we adopt today, industry is afforded flexibility
in how precisely to ensure that closed captioning display settings are
made readily accessible pursuant to the proximity factor, so long as
the settings are available in one area that is accessible via a means
reasonably comparable to a button, key, or icon. Making closed
captioning display settings available solely or primarily through the
use of voice control likely would not be considered proximate. In an
Order on Reconsideration, the Commission previously found that closed
captioning activation mechanisms that rely solely on voice control do
not fulfill the requirement of sections 204 and 205 of the CVAA and our
implementing rules that such mechanism be reasonably comparable to a
button, key, or icon. The Commission was persuaded by a Petition for
Reconsideration filed by Consumer Groups indicating that voice
activation is not simple and easy to use for many individuals who are
deaf and hard of hearing. We believe that a similar rationale applies
here. We cannot find that caption display settings are reasonably
accessible if many of the individuals who are intended to benefit from
the settings, in other words those consumers who are deaf and hard of
hearing, would not actually be able to access them. As in the Order on
Reconsideration, we clarify that covered entities are not prohibited
from using voice controls to provide access to the area of the settings
that contains the closed captioning display settings as long as there
is an alternative way that is reasonably comparable to a button, key,
or icon for individuals who are deaf and hard of hearing to readily
access closed captioning display features. In addition, CTA indicated
that at least one device manufacturer was considering a long press of a
button on the remote to bring up closed captioning display settings.
Compliance with the factors we adopt today is a fact-specific
determination, and as a result, we decline to rule definitively on
whether any particular means of providing closed captioning display
settings is ``readily accessible.'' We agree with CTA that the long
press of a remote control button may be consistent with the proximity
requirement, which requires a mechanism reasonably comparable to a
dedicated button, key, or icon, but we emphasize that the long press,
like any mechanism, also would need to be evaluated to determine
compliance with each of the other factors to be considered readily
accessible.
Discoverability. In determining whether specific closed captioning
display settings are readily accessible, the Commission will require
that the settings are ``discoverable.'' For this purpose, to ensure
that the settings are ``discoverable,'' covered entities must: (1)
conduct usability testing to determine if caption display settings can
be easily found by working with consumers and disability groups as part
of the testing process; (2) make good faith efforts to correct problems
identified during the consumer testing process; and (3) train customer-
facing employees on how to advise customers with regard to caption
display settings. This approach is consistent with the March 2024 joint
proposal between NCTA and Consumer Groups. We note that as proposed in
some comments, discoverability would have considered whether it is
simple and intuitive for a viewer to find closed captioning display
settings. Some commenters objected to that formulation as too
subjective. The formulation in the March 2024 joint proposal that we
adopt here has the benefit of being more objective because it requires
entities to conduct usability testing, demonstrate efforts to address
problems that arise during such testing, and train customer-facing
employees. In addition, this approach is not superfluous of any other
existing or new requirement.\31\ We believe that discoverability, the
ability to find the settings, is central to users' ability to benefit
from and receive the value of closed captioning and is therefore in the
public interest and is hereby required by our rules. We decline to
specify the type of employee training that must be provided, instead
concluding that regulated entities should retain flexibility to
determine the type of employee training needed in their particular
circumstances to ensure that settings are discoverable.
---------------------------------------------------------------------------
\31\ We note that manufacturers and MVPDs are already required
to provide information to consumers about how to access and use
accessibility features on devices. See 47 CFR 79.107(a)(5) and (d)-
(e), 79.108(d) and (f). The new employee training requirement will
provide further consumer benefits.
---------------------------------------------------------------------------
Previewability. In determining whether specific closed captioning
display settings are readily accessible, the Commission will require
that the settings are ``previewable.'' For this purpose,
``previewability'' means whether viewers are able to preview the
appearance of closed captions on programming on their screen while
changing the closed captioning display settings. As explained in the
March 2024 joint proposal between NCTA and Consumer Groups, previewed
captions must appear ``via a caption box overlaying the programming,''
such that [c]ustomers will still be able to see the underlying
programming. . . .'' The caption preview may include ``stock text or
caption previews, rather than the captions carried on the specific
program,'' which ``will enable customers to preview captions even in
situations where the channel the customer is watching may not include
captions at a particular time, e.g., during a commercial break or
portions of programming that are uncaptioned due to the nature of the
content.'' Although the Commission's rules already require apparatus to
enable ``the user to preview default and user selection of the caption
features required by this section,'' \32\ that provision does not
require the preview function to be accessible without exiting the
programming. We find that requiring previewability to the extent
described herein is in the public interest because it will enable a
viewer to see how particular caption display settings work with the
program the viewer is watching, and it is hereby required by our
rules.\33\ A previewability requirement as defined herein will make it
efficient for consumers to adjust captions, while giving designers
flexibility as to precisely how they modify their interfaces to
facilitate previewability.
---------------------------------------------------------------------------
\32\ 47 CFR 79.103(c)(10).
\33\ We believe this requirement is consistent with CTA's
position that when consumers view video programming on smaller
screens they may need to scroll to permit full visibility of all
display settings.
---------------------------------------------------------------------------
Consistency and Persistence. In determining whether specific closed
captioning display settings are readily accessible, the Commission will
require that the settings are ``consistent and persistent.'' In keeping
with the March 2024 joint proposal, for this purpose,
[[Page 66275]]
``consistency and persistence'' means: (1) MVPDs that provide
navigation devices must ``expose closed caption display settings via an
application programming interface (API) that an over-the-top app
provider can use upon launch of their app on the device,'' \34\ the API
must ``enable the app provider to use the device-level caption settings
for its own content, if it chooses,'' and ``covered entities must
notify application developers about this API or similar method through
any reasonable means;'' (2) MVPDs that provide their own video
programming app hosted on third-party devices ``will [utilize] the
operating system-level closed caption settings of the [apparatus] upon
launch of the app on the device;'' and (3) manufacturers must ensure
that such apparatus ``make[ ] those settings available to applications
via an API or similar method.'' \35\ Consumer Groups have explained the
difficulties of using different settings for each application on the
same platform, and of maintaining the same settings across different
platforms. As Consumer Groups explain, a consistency and persistence
requirement will subject consumers to ``fewer procedures to customize
captions for the same service used on different devices and for
different services accessed on the same device,'' which will reduce the
frequency with which consumers must adjust captions.
---------------------------------------------------------------------------
\34\ An API is an application programming interface. We
understand that some devices or applications covered by our rules
may use other tools comparable to APIs, such as application
programming kits (APKs) or software development kits (SDKs). All
references herein to APIs shall be read to include any such
comparable development tools that allow one device or application to
coordinate with another.
\35\ NCTA/Consumer Groups Mar. 14, 2024 Ex Parte at 2; Letter
from Mary Beth Murphy, Vice President & Deputy General Counsel,
NCTA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 12-108, at
3 (July 12, 2024) (NCTA July 12, 2024 Ex Parte). Consistent with
CTA's ex parte filing, we clarify that compliance with (1) and (2)
above focuses on MVPDs as entities that provide customers with
access to video programing through navigation devices or the MVPD's
own apps that customers access on third party devices. Compliance
with (3) above reflects similar requirements for manufacturers as
entities that manufacture apparatus. Consistent with NCTA's ex parte
filing, language in (1) above fortifies a requirement from the joint
proposal. One example of a ``reasonable means'' for the required
notice would be ``a developer portal the developer must use to get
its app onto the device.'' NCTA July 12, 2024 Ex Parte at 3.
---------------------------------------------------------------------------
The approach to consistency and persistence that we adopt today is
narrower than the approach previously advocated by the Consumer Groups,
which would have required covered entities to ensure that their closed
captioning display settings are consistent when the same service is
used on different devices and persistent when different services are
used on the same device. Industry raised several significant concerns
with this broader definition of the ``consistency and persistence''
factor. We believe that the narrower approach to consistency and
persistence that we adopt today, which includes specific requirements
that are tailored to the role of each party, will help make display
settings more readily accessible to users and therefore is in the
public interest.
We recognize that any consistency and persistence requirement could
raise certain issues, including how caption display settings should be
stored and transmitted, how to address privacy and competitive
implications that may arise, and whether to prioritize a preset setting
versus a conflicting setting that a user subsequently inputs or a
setting input on a device versus a conflicting setting input on an
application accessed via the device. However, we do not believe these
implementation issues are impediments to the development of solutions
that satisfy the consistency and persistence requirement as defined
here and we agree with NCTA that these issues ``should not stop the
Commission from taking positive steps now to benefit consumers.'' With
respect to CTA's objection that the requirement could compel disclosure
of sensitive personal information in violation of state or federal
privacy laws, we find that such objections are vague and
unsubstantiated and we disagree that the requirements adopted here to
provide consumers with consistent settings when different services are
used on the same device would have such a result.\36\ Similarly, while
CTA explains that a television has no way to know if the person using
it is the most recent user or a guest, the API-based approach set forth
in the joint proposal still will improve the consumer experience and we
do not believe that advancements in accessibility should be stalled
because video equipment may be accessed by multiple viewers. To the
extent compliance concerns remain even with the narrower approach we
adopt today, we note that ``achievability'' and ``technical
feasibility'' exemptions remain available to covered entities, as
discussed further below.
---------------------------------------------------------------------------
\36\ CTA's comments do not cite any specific state or federal
privacy statute or case law that would be implicated by the rule we
adopt or describe how the requirement could potentially violate such
requirements.
---------------------------------------------------------------------------
Public Interest Benefits of New Display Settings Requirement. We
find that the public interest benefits outweigh the costs for a
requirement that the closed captioning display settings be readily
accessible. In enacting the TDCA, Congress stated that ``to the fullest
extent made possible by technology,'' persons who are deaf and hard of
hearing ``should have equal access to the television medium.'' In the
Second FNPRM, the Commission stated that there are important public
interest considerations that weigh in favor of ensuring that consumers
are able to readily access user display settings for closed captioning.
The record supports the continued need for this access, providing
numerous examples of user interfaces across various popular platforms,
services, and devices that are apparently not readily accessible.\37\
When it adopted technical standards for the display of closed captions
on digital television receivers, the Commission concluded that ``[o]nly
by requiring decoders to respond to these various [display] features
can we ensure that closed captioning will be accessible for the
greatest number of persons who are deaf and hard of hearing, and
thereby achieve Congress' vision.'' According to Consumer Groups, the
ability to alter font, size, color, and other display features of
captions is ``a critical component of accessing closed captioning'' for
individuals who are deaf and hard of hearing, allowing them to change
the appearance of captions to best meet their particular needs.
---------------------------------------------------------------------------
\37\ While the record also contains examples of some accessible
user interfaces, that does not change the fact that many user
interfaces are not readily accessible.
---------------------------------------------------------------------------
Although the rules the Commission adopted in 2000 were intended to
provide consumers with the benefits of customizing the appearance of
closed captions, these features are not readily accessible to many
consumers who are deaf and hard of hearing. When consumers cannot
readily access the closed captioning display settings, the benefits of
our rule allowing the customization of closed caption display are
greatly diminished. Consumer Groups explained in 2016 that ``many
consumers face the intimidating and frustrating technical barrier of
display settings that are difficult to locate and utilize, which
prevents viewers from being able to easily customize the captions to be
readable.'' There is little evidence in the record of significant
progress since the Commission proposed caption display settings
requirements in 2015. Having to take cumbersome steps to access display
settings that make closed captions readable may discourage individuals
who are deaf and hard of hearing from using closed captioning to make
video programming accessible. If consumers
[[Page 66276]]
are unable to read default captions (e.g., if the size of the font is
too small) and are unable to locate and use display settings to change
the appearance of the captions, they are precluded from using closed
captioning at all.
As explained above, our action ensures that the Commission can meet
its continuing obligation under the TDCA to take appropriate action to
ensure that closed captioning remains available to consumers as new
video technology is developed. As Consumer Groups explain, making
closed captioning display settings easy to find and use is especially
important given the multitude of devices and programming options
available to consumers today, which may each require customization to
suit a user's needs.\38\ We agree with Consumer Groups that ``the[ ]
goals of removing technical barriers and ensuring practical
accessibility and readability of captions would all be advanced by the
proposed rule.'' The benefits of the rule will extend not only to the
deaf and hard of hearing population, but also to other members of the
public that utilize closed captioning, including in public places such
as restaurants, bars, hotels, hospitals, and nursing homes.
---------------------------------------------------------------------------
\38\ We thus disagree with ACA Connects' contention that the
Commission has failed to identify ``how the continued availability
of closed captioning service would be frustrated in the absence of
consumers' ability to readily access closed captioning display
settings.'' Rather, we agree with Consumer Groups that consumers
must be able to readily access closed captioning display settings to
ensure that those captions are readable.
---------------------------------------------------------------------------
While the record reflects that there will be some costs to industry
to comply with the rule we adopt herein, we find that the substantial
benefits to consumers outweigh those costs. In the Second FNPRM, we
inquired about the costs of the proposal as well as the impact of the
proposed rule on small entities. The record does not contain any
specific figures or estimates quantifying the costs of compliance.
However, industry commenters indicate that modifying access to closed
captioning display settings may be ``a significant undertaking
involving design, development, testing, and manufacture [and] involving
coordination among `multiple internal and external design and
engineering teams.' '' \39\ These commenters assert that the efforts
will involve more than a small software modification, but they do not
allege that these efforts would be prohibitively burdensome or costly.
Other industry commenters state that ``[a]dopting a new requirement
regarding closed caption display settings . . . would chill
innovation.'' \40\ However, we find that the flexibility allowed in
determining how to comply will mitigate this possibility. Taking into
account the industry comments, we find that the extensive benefits
outlined above will outweigh the compliance costs to industry. The
benefits extend to the approximately 48 million Americans who are deaf
and hard of hearing, as well as to the DeafBlind community and the
millions of individuals with low vision, including many senior
citizens.\41\ As Consumer Groups state, ``The ability to adjust
captioning settings is particularly essential for people who have both
hearing and vision disabilities. For example, people who are DeafBlind,
low vision or color blind often rely on high-contrast visuals and
interfaces to be able to read information on screens. By ensuring that
these individuals can easily find and adjust the caption display
settings, the rules we now adopt will provide the autonomy needed for
these individuals to independently customize captions on their own--
i.e., to select the color, size, and contrast that best fits their
personalized needs for optimal readability and comprehension of
content. Enhancing access to video programming in this manner will
ensure that such individuals can fully benefit from the news,
information and entertainment that video programming makes available to
the rest of the general public.'' We also believe that the costs of
compliance will be mitigated because we give covered entities
flexibility in the manner of compliance, which allows them to choose a
cost-effective solution, and because the requirements do not apply to
third-party, pre-installed applications. Further, to the extent there
are companies that already provide closed captioning display settings
in a readily accessible manner, they will not need to incur any
additional costs to comply.
---------------------------------------------------------------------------
\39\ CTA 2016 Reply at 7 (quoting Telecommunications Industry
Association (TIA) 2016 Comments at 2.
\40\ CTA 2022 Comments at 1; CTA 2023 Comments at 8 (``Locking
in user interfaces to conform to the Advocacy Groups' proposal can
slow future innovation and degrade the experience of individuals
seeking to adjust more than just closed captioning display
settings.'').
\41\ Individuals who are low vision and also rely on closed
captions may need to modify caption settings to make the captions
readable.
---------------------------------------------------------------------------
In the initial comment period, industry commenters asserted that
the Commission should take a ``wait-and-see approach'' to determine if
additional accessibility rules are necessary. In particular, industry
commenters asserted that manufacturers had been working hard to comply
with the accessible user interfaces requirements adopted pursuant to
sections 204 and 205 of the CVAA, which were subject to a December 20,
2016 compliance deadline, and that it was premature for the Commission
to adopt new rules before evaluating the technical innovations
developed by covered entities to meet these accessibility obligations.
However, while the accessible user interfaces rules require that closed
captioning be activated by a mechanism reasonably comparable to a
button, key, or icon on digital apparatus and navigation devices, these
requirements do not govern how closed captioning display settings
should be accessed on such devices. Further, the record at that time
contained few specific examples of how closed captioning display
settings actually would be made available to consumers after the
December deadline. While the accessible user interface rules and the
2016 compliance deadline were not intended to address access to closed
captioning display settings, the Commission now has the benefit of a
refreshed record that reflects a lack of progress since the 2016
deadline, and a basis to find that the closed captioning display
setting requirements the Commission initially proposed remain
necessary. Thus, we do not believe that the section 204 and 205
accessibility requirements obviate the need for Commission action with
respect to closed captioning display settings, and we see no reason to
further delay rules that are sorely needed by consumers who are deaf
and hard of hearing to address the ``long and frustrating history'' of
inaccessible display settings.\42\
---------------------------------------------------------------------------
\42\ See Consumer Groups 2013 Comments at 8. See also Consumer
Groups 2016 Reply at 4 (``These unsupported assurances stand in
stark contrast to the experiences of Consumer Groups, which indicate
that closed captioning settings remain difficult to access and, in
many instances, are becoming less accessible.'') (footnote omitted).
We thus reject the argument of CTA that rather than adopt new
requirements, the Commission ``should encourage industry to continue
to respond to user experiences, research and feedback to offer
improved user interfaces that benefit all consumers, including those
with disabilities.'' CTA 2023 Comments at 11-12.
---------------------------------------------------------------------------
Covered Devices. As proposed in the Second FNPRM, the rule we adopt
herein applies to the devices covered by section 303(u) of the Act--
apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United
States and uses a picture screen of any size, as interpreted
consistently with our precedent in the IP Closed Captioning Order,
except that,
[[Page 66277]]
consistent with the joint proposal, the readily accessible requirements
do not apply to third-party, pre-installed applications.\43\ Further,
consistent with our precedent, the following are not subject to the
requirements adopted herein: (1) apparatus exempt from the requirement
to be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captioned video programming
(e.g., display-only video monitors, and professional or commercial
equipment); (2) equipment for which the requirement has been determined
to be not achievable or technically feasible; or (3) equipment for
which the requirement has been waived (e.g., apparatus primarily
designed for purposes other than receiving or playing back video
programming). In CVAA orders subsequent to the IP Closed Captioning
Order, the Commission consistently interpreted the term apparatus to
include only applications that are pre-installed by the device
manufacturer or that the manufacturer requires the consumer to install
after sale. However, the Commission stated that it ``will continue to
monitor the development of accessible technology in this area and will
reevaluate whether we should require the accessibility of consumer-
installed MVPD applications at a later date if it appears necessary to
ensure access to MVPD programming'' by persons with disabilities.
Although at that time the Commission observed that there are technical
challenges in ensuring that consumer-installed MVPD applications comply
with accessible user interface requirements, we recognize that the
industry is constantly evolving. Similarly, for purposes of the readily
accessible requirement, we credit the decision of the joint proposal to
exclude both consumer-installed applications and third-party, pre-
installed applications.\44\ The exclusion of third-party, pre-installed
applications is reasonable in this instance because inclusion would
``pose substantially more practical and technical difficulties'' \45\
due to the types of requirements that are at issue herein--for instance
customer service training and usability testing--and the independence
of app developers on the one hand and MVPDs and manufacturers on the
other. However, we intend to continue to monitor the constantly
evolving video programming industry to ensure that people with
disabilities are not left behind. Accordingly, if we find that MVPDs
and/or manufacturers are not making their applications accessible, or
if third-party, pre-installed applications, or new technologies,
present accessibility challenges because display settings are not
readily accessible, the Commission will consider initiating a
rulemaking to determine whether we should impose additional readily
accessible requirements.\46\
---------------------------------------------------------------------------
\43\ We note that section 303(u) imposes requirements on
apparatus ``if technically feasible.''
\44\ We note that the Consumer Groups request that in light of
NCTA's clarification of the joint proposal with respect to the
exclusion of third-party, pre-installed applications for MVPDs that
the Commission consider whether the same concerns exist for device
manufacturers. NCTA clarifies that this joint proposal exclusion is
contemplated for both MVPDs and manufacturers and CTA notes the
importance to consumers ``of a consistent experience across covered
entities with respect to pre-installed applications.'' We agree and
include the exclusion for all covered entities.
\45\ Letter from Mary Beth Murphy, Vice President & Deputy
General Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, MB
Docket No. 12-108, at 1 (July 10, 2024).
\46\ In the absence of such a rulemaking, we do not at this time
require MVPDs or manufacturers to provide software updates that they
would not otherwise provide.
---------------------------------------------------------------------------
Consumer Groups agree that the rule should be applied broadly to
the full range of devices covered by section 303(u) of the Act, which
would ``promote Congress's goal of ensuring that closed captioning is
available to consumers.'' AT&T and CTA, on the other hand, argue that
the Commission's authority with respect to the TDCA is limited to the
accessibility of broadcast television receivers. Contrary to the
contention of these industry commenters, the Commission has authority
under sections 303(u) and 330(b) of the Act to apply its new rules for
consumer access to closed captioning display settings to apparatus
beyond broadcast televisions. Although Congress's focus at the time of
enactment of the TDCA was on broadcast television-related technical
standards, that does not preclude a broader interpretation today.
Section 303(u)(1), by its terms, applies broadly to all ``apparatus
designed to receive or play back video programming transmitted
simultaneously with sound.'' Although this phrase is not defined in the
statute, Congress had amended the original language in 303(u), which
had referred to ``apparatus designed to receive television pictures
broadcast simultaneously with sound.'' The Commission has interpreted
section 303(u)(1)'s scope broadly. The Commission's interpretation of
section 303(u) as extending beyond broadcast televisions thus reflects
the ordinary meaning of the statute. Because section 330(b), in
pertinent part, simply refers to the ``apparatus described in section
303(u),'' our analysis of the scope of section 330(b) mirrors our
interpretation of the scope of section 303(u).
Covered Entities. Both manufacturers of covered apparatus and MVPDs
are responsible for compliance with the rule we adopt herein. The
Commission sought comment in the Second FNPRM on whether both
manufacturers and MVPDs should be obligated to make it easier for
consumers to locate and control closed captioning display settings.
Consumer Groups argue that manufacturers and MVPDs should share
responsibility in ensuring that consumers can locate and use display
settings, particularly because MVPDs have ongoing relationships with
subscribers who are likely to turn to them to resolve any issues with
accessibility features. We are persuaded by Consumer Groups that there
are significant benefits of imposing these requirements on MVPDs as
well as manufacturers, including that a consumer who is viewing video
programming via an MVPD service would be more likely to contact the
MVPD for assistance with user display settings. Industry commenters
argue that the TDCA cannot be applied to MVPDs because the Commission's
prior rulemakings implementing the TDCA imposed requirements only on
manufacturers. We disagree. Whereas the initial order in this
proceeding applied certain rules to navigation devices, which were the
responsibility of MVPDs, and certain rules to apparatus, which were the
responsibility of manufacturers, the overall result was that both
manufacturers and MVPDs were subject to the requirements. Similarly in
this Order, we hold MVPDs responsible for the apparatus they distribute
to consumers, and manufacturers responsible for the apparatus they
manufacture.
While the joint proposal submitted in March 2024 was focused on the
cable context, it indicated that ``the proposals could also serve as a
model for other MVPDs and equipment manufacturers.'' We believe that it
is appropriate and reasonable to adopt the joint proposal to apply to
all covered entities. The Media Bureau specifically sought comment on
whether the joint proposal should ``apply broadly to the devices
covered by section 303(u) of the Communications Act of 1934, as
amended, and to both manufacturers of covered apparatus and MVPDs.'' In
response, CTA argued that the Commission ``should not hold
manufacturers responsible for aspects of the complex video ecosystem
that they do not control and over which they do
[[Page 66278]]
not have sufficient leverage to require compliance with regulatory
obligations.'' We agree, and we note that the rules we adopt today hold
manufacturers responsible for apparatus they manufacture and MVPDs
responsible for apparatus they provide to their customers. We agree
with Consumer Groups that ``just because responsibilities need to be
coordinated among various video programming participants is no reason
for these responsibilities not to be mandated and fulfilled.'' \47\
---------------------------------------------------------------------------
\47\ Consumer Groups state further that the Commission
previously apportioned responsibilities among some of the same
entities when it adopted the IP closed captioning requirements in
2012, and the television closed captioning quality requirements in
2016.
---------------------------------------------------------------------------
We agree with Consumer Groups that we have the authority to apply
the rules we adopt today to MVPDs, as well as manufacturers. Sections
303(u) and 330(b) of the Act operate in tandem. Under section 303(u),
the Commission establishes requirements for covered apparatus to be
equipped with closed captioning, audio description, and emergency
information capability. The first sentence of section 330(b) of the
Act, in turn, states that ``[n]o person shall ship in interstate
commerce, manufacture, assemble, or import from any foreign country
into the United States'' any apparatus that fails to satisfy the
requirements adopted pursuant to section 303(u) of the Act. In other
words, the duty to meet the apparatus requirements adopted under
section 303(u) applies to any person engaging in the activities
identified in section 330(b). MVPDs regularly ``ship in interstate
commerce'' or ``import . . . into the United States'' the set-top boxes
that they distribute to customers. In this respect, the requirements
adopted under section 303(u)(1)(A) relating to closed captioning
capability flow through to MVPDs by restricting the devices they can
ship or import for distribution to their customers. We therefore
conclude that, pursuant to the express terms of section 330(b), which
states that ``no person shall'' engage in the specified activities, we
will apply our new rule implementing sections 303(u) and 330(b) of the
Act to MVPDs for the purpose of proscribing the actions enumerated in
the first sentence of section 330(b).\48\
---------------------------------------------------------------------------
\48\ This approach is consistent with our existing apparatus
rules governing the accessibility of video programming, which apply
to MVPDs to the extent that they engage in the enumerated
activities.
---------------------------------------------------------------------------
Although the statute defines the term ``interstate commerce,'' it
does not separately define the phrase ``ship in interstate commerce,''
or provide express guidance on how that phrase should be applied to
specific types of shipments. We therefore interpret this phrase in a
way that best reflects the ordinary meaning of the text and meets the
statutory objectives of section 330(b) and section 303(u). We believe
it is best to interpret the phrase to apply to the entire
transportation path from the point at which the goods leave the
seller's warehouse to the point at which the buyer, such as an MVPD,
delivers the goods to its own customers--in this context an MVPD's
subscribers. Thus, we conclude that the term ``interstate commerce''
encompasses ``commerce'' in apparatus deployed by MVPDs to their
subscribers, and we interpret the phrase ``no person shall ship in
interstate commerce'' to proscribe an MVPD's deployment of noncompliant
set-top boxes or other covered apparatus to subscribers' premises after
the applicable compliance deadline, where covered apparatus originated
from out of state or traversed state lines.
Our conclusion is supported by cases in which the phrase ``in
interstate commerce'' has been interpreted to refer to the entire
stream or flow of commerce with respect to a product. Those cases hold
that the flow of interstate commerce does not end once an intrastate
shipment begins where a seller transporting goods intrastate ``made
interstate sales or was `otherwise directly involved in national
markets' or . . . the `local market . . . is an integral part of the
interstate market in other component commodities or products.' '' \49\
---------------------------------------------------------------------------
\49\ Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195-96
(1974) (cited in Able Sales v. CAPR, 406 F.3d56, 64 (1st Cir.
2005)). We recognize that specific outcomes under a flow of commerce
analysis can vary somewhat in different decisions and in different
contexts. In interpreting section 330 of the Act, we need not, and
do not, seek to replicate the specific approach taken in any of
those other regulatory contexts, but draw upon principles from that
precedent that are useful, including in carrying out the goals and
purposes of the Act.
---------------------------------------------------------------------------
In the circumstances at issue here, MVPDs are an active link in the
continuous flow of equipment to their subscribers. They typically order
equipment from manufacturers that is shipped interstate for deployment
to their subscribers. Thus, an MVPD is the pivotal intermediary between
the apparatus manufacturer and the MVPD's subscribers, essentially
making choices on behalf of its subscribers. This is materially
different from situations in which a manufacturer sells to a
wholesaler, the wholesaler sells to multiple retailers, and consumers
shop at retailers and decide what to buy. Under these circumstances, we
find that MVPDs engage in interstate commerce when they procure
equipment across state lines and deploy it to subscribers to enable
them to view their programming.
This conclusion is reinforced by the statutory context. The statute
is intended to protect consumers with disabilities by ensuring that
equipment that the MVPD selects on their behalf serves their needs. In
this context, it makes sense to view all of the links in the chain as a
continuous stream of commerce ultimately destined for the MVPD
subscriber.\50\ And given the MVPD's intermediary role, interpreting
the phrase ``ship in interstate commerce'' to apply to the MVPD's
deployment of apparatus to subscribers' premises best reflects the
ordinary meaning of the statutory text and best serves the statutory
purpose of ensuring that all consumers who are deaf and hard of hearing
should have equal access to television programming. In light of this
statutory purpose, and against the backdrop of judicial precedent
interpreting the phrase ``in interstate commerce,'' we conclude that an
MVPD that procures covered apparatus from a manufacturer located in
another state or foreign country and deploys it to subscribers is
shipping apparatus in interstate commerce.\51\ Accordingly, we
interpret the phrase ``no person shall ship in interstate commerce'' as
prohibiting MVPDs from deploying non-compliant apparatus to subscribers
after the applicable compliance deadline. Further, from a
[[Page 66279]]
policy perspective, we agree with Consumer Groups that MVPDs play an
integral role in ensuring that closed captioning service is available
because, unlike manufacturers, they have an ongoing relationship with
consumers. In addition, to the extent any MVPD manufactures covered
apparatus, we note that section 330(b) applies to such MVPDs for that
reason alone. For all of these reasons, the statutory language and
policy objectives both support application of the rule to MVPDs.
---------------------------------------------------------------------------
\50\ The legislative history does not discuss the definition of
``interstate commerce.'' It appears that congressional deliberations
were informed by the 1960 legal opinion of the FCC's then-General
Counsel, John L. Fitzgerald, which observed: ``The congressional
power under the commerce clause is not confined simply to the
regulation of commerce among the states but extends to those
activities intrastate which so affect interstate commerce as to make
regulation of them proper means to the attainment of a legitimate
end.'' See All Channel Television Receivers and Demixture, Hearings
Before the Committee on Interstate and Foreign Commerce, House of
Representatives, on HR. 8031 et al. at 124-25, 128 (Mar. 5, 6, 7,
and 9, 1962) (including the 1960 Legal Opinion of FCC General
Counsel John L. Fitzgerald for the record). See also H. Rep. No. 87-
1559 at 6 (Apr. 9, 1962) (discussing the constitutionality of the
All Channel Television Receivers Act and noting opinions provided by
the FCC's General Counsel and the Department of Justice); S. Rep.
No. 87-1526 at 5 (May 24, 1962) (same).
\51\ The MVPD is shipping apparatus ``within the flow of
interstate commerce--the practical, economic continuity in the
generation of goods and services for interstate markets and their
transport and distribution to the consumer.'' Gulf Oil Corp., 419
U.S. at 195. See also FCC General Counsel Opinion at 128 (``The
congressional power under the commerce clause is not confined simply
to the regulation of commerce among the states but extends to those
activities intrastate which so affect interstate commerce as to make
regulation of them proper means to the attainment of a legitimate
end.'').
---------------------------------------------------------------------------
Waivers and Exemptions. Achievability. Because we derive our
authority for the rule we adopt herein from section 303(u)(1) of the
Act, we find that the requirement for readily accessible caption
display settings for covered apparatus that use a picture screen less
than 13 inches in size is subject to the achievability provision set
forth in section 303(u)(2)(A). Section 303(u)(2)(A) of the Act, as
amended by section 203 of the CVAA, specifies that apparatus described
in section 303(u)(1) that use a picture screen that is less than 13
inches in size must meet the requirements of that section only if such
requirements ``are achievable (as defined in section 617 of this
title).'' In the Second FNPRM, the Commission sought comment on whether
the provisions related to achievability in section 303(u) of the Act
apply to the requirement that consumers be able to readily access user
display settings for closed captioning. Industry commenters argued that
we should allow covered entities to seek an exemption on the grounds of
achievability, while Consumer Groups argued that it is unnecessary to
adopt an achievability exemption because compliance with the rule will
involve only a minor software modification. We find that covered
apparatus that use a picture screen less than 13 inches in size must
meet the requirements of section 303(u)(1), which requires covered
apparatus to be equipped with built-in closed caption decoder circuitry
or capability designed to display closed captioned video programming,
only if such requirements ``are achievable.''
The Act defines ``achievable'' to mean ``with reasonable effort or
expense,'' as determined by the Commission. The Commission will
determine whether compliance is ``achievable'' on a case-by-case basis,
consistent with the approach taken by the Commission when implementing
section 203 of the CVAA.\52\ In particular, the Commission will
consider the following factors in determining whether compliance with
the requirements adopted herein is achievable in particular
circumstances: (1) the nature and cost of the steps needed to meet the
requirements of this section with respect to the specific equipment or
service in question; (2) the technical and economic impact on the
operation of the manufacturer or provider and on the operation of the
specific equipment or service in question, including on the development
and deployment of new communications technologies; (3) the type of
operations of the manufacturer or provider; and (4) the extent to which
the service provider or manufacturer in question offers accessible
services or equipment containing varying degrees of functionality and
features, and offered at differing price points. If a covered entity
believes that it is not achievable for it to comply with the rule we
adopt herein, it may either (i) seek a determination from the
Commission that compliance with the rule is not achievable before
manufacturing or importing the apparatus; or (ii) raise as a defense to
a complaint or Commission enforcement action that a particular
apparatus does not comply with the rules because compliance was not
achievable.\53\ If a party seeks a determination of achievability
before manufacturing or importing the apparatus, it should follow the
procedures for an informal request for Commission action pursuant to
Sec. 1.41 of our rules.
---------------------------------------------------------------------------
\52\ The Commission will rely on the existing provision in Sec.
79.103(b)(3) of its rules.
\53\ To provide one example, CTA expresses concern ``that on
small or less sophisticated devices, overlaying the captioning menu
over currently playing video may be challenging to implement on some
combinations of hardware and operating systems.'' To the extent a
manufacturer has this concern about a particular device, it may seek
to avail itself of the achievability provision.
---------------------------------------------------------------------------
Technical feasibility. In the Second FNPRM, we also sought comment
on whether the technical feasibility exemption in section 303(u) of the
Act applies to the requirement that consumers be able to readily access
user display settings for closed captioning. As discussed above, we
find that it does. In particular, the requirements set forth in section
303(u) of the Act, including the requirement that covered apparatus be
equipped with built-in closed caption decoder circuitry or capability
designed to display closed captioned video programming, apply only ``if
technically feasible.'' According to industry commenters, the
Commission should permit covered entities to seek an exemption based on
technical infeasibility. Consumer Groups, on the other hand, contend
that the Commission should not adopt a technical feasibility exemption
because compliance can be achieved through a simple technical
modification, making such an exemption unnecessary. However, section
303(u) clearly specifies that compliance is required only ``if
technically feasible.''
We interpret the term ``technically feasible'' consistent with
Commission precedent. Notably, to demonstrate that compliance is
technically infeasible, covered entities must show that changes to the
design of the apparatus to make closed captioning display settings
readily accessible are not physically or technically possible, and not
just that they are ``merely difficult.'' We permit parties to raise
technical infeasibility as a defense when faced with a complaint
alleging a violation of the apparatus requirements adopted herein, or
to file a request for a ruling under Sec. 1.41 of the Commission's
rules as to technical infeasibility before manufacturing or importing
the product.
Legacy navigation devices. We decline to adopt a blanket exemption
for ``legacy navigation devices that are provided by small and medium-
sized MVPDs,'' as ACA Connects advocates.\54\ To the extent ACA
Connects is concerned about devices that were manufactured prior to the
compliance deadline, any such concern should be alleviated by our
decision not to apply the requirements to such apparatus. It appears
that ACA Connects' concern applies to such previously manufactured
devices, but to the extent the concern extends to some other category
of devices, we reiterate that the waiver and exemption processes
adopted herein are available to MVPDs on a case-by-case basis. Because
the record does not indicate that an MVPD would need to avail itself of
an exemption or extension for every ``legacy navigation device,'' we
find that the availability of case-by-case waivers or exemptions is a
preferable solution to an overbroad blanket exemption.
---------------------------------------------------------------------------
\54\ ACA Connects defines ``legacy navigation device(s)'' as
``any set-top box or navigation device that MVPDs sell or lease to
their subscribers that provides access to the MVPDs' `closed
systems' by decrypting MVPD video programming streams for display on
television receivers.''
---------------------------------------------------------------------------
Streamlined process for small and medium-sized providers. ACA
Connects asks the Commission to adopt a streamlined waiver process for
small and medium-sized providers, enabling them to obtain a waiver
without the use of any external resources. We find that the existing
waiver and exemption processes are sufficiently flexible to be workable
for small and mid-sized providers. Providers have the flexibility to
raise achievability and technical feasibility either prior to
manufacture or
[[Page 66280]]
in response to a complaint. Adopting a different process here for small
and medium-sized providers would be inconsistent with prior orders
adopting the same achievability and technical feasibility provisions.
ACA Connects has failed to justify why the same process that has been
used in prior proceedings implementing the same provisions should be
modified here.
Compliance Deadline. We adopt a compliance deadline after the
Office of Management and Budget completes its review of any new or
modified information collection requirements under the Paperwork
Reduction Act or two years after publication of the Third Report and
Order in the Federal Register, whichever is later. In the Second FNPRM,
we inquired about the appropriate time frame for requiring covered
entities to ensure that consumers are able to readily access user
display settings for closed captioning.\55\ According to Consumer
Groups, ``[i]ncluding user display settings in the first level of a
menu would require only a small software modification and would not
require any hardware design changes,'' and thus, an extended period to
come into compliance is unnecessary. CTA disputes this contention,
arguing that Consumer Groups ``fail[ ] to acknowledge the complexity of
implementing rules regarding closed captioning display settings.'' \56\
NCTA, TIA, AT&T, and EchoStar request at least two years to comply,
while CTA and ACA Connects assert that three years is a reasonable
implementation period. Consumer Groups initially sought a one year
compliance deadline, but in the comment cycle following the March 2024
joint proposal they requested two years.
---------------------------------------------------------------------------
\55\ In particular, we sought comment on Consumer Groups'
request that the compliance deadline coincide with the December 20,
2016 deadline for the requirement to provide an accessible closed
captioning activation mechanism pursuant to sections 204 and 205 of
the CVAA. Given the passage of time, Consumer Groups' proposal to
use that deadline has become moot.
\56\ Providing greater specificity, EchoStar explains that
making display settings available in the top level of a menu would
require EchoStar to rewrite software for each set-top box remote
control based on its current design and would require EchoStar to
rewrite both the factory code and production code for all types of
set-top boxes that it manufactures. As EchoStar explains, ``[t]his
factory code controls the default accessibility features for the
set-top box which the consumer can customize as part of the
installation process. Once the set-top box is connected to a
properly aimed satellite dish, [a] production code specific to each
set-top box model is downloaded and used in normal operation.''
---------------------------------------------------------------------------
Based on our review of the record, we adopt the compliance deadline
included in the joint proposal as clarified in ex parte presentations.
Specifically, compliance is required for devices that use next
generation operating systems deployed more than two years after
publication of the Third Report and Order in the Federal Register. We
find the compliance deadline is reasonable, though we encourage covered
manufacturers and MVPDs to offer readily accessible closed captioning
display settings as soon as it is technically feasible for them to do
so. Consistent with the initial order in this proceeding, the
requirements adopted herein will not apply to devices manufactured
prior to the deadline.\57\ MVPDs should, however, ``provide new
equipment upon request to any customer who is deaf or hard of
hearing,'' as stated in the March 2024 joint proposal. MVPDs should
provide notice to customers who are deaf or hard of hearing when new
operating systems are deployed. Based on the record, it appears that
the requirement to make closed captioning display settings readily
accessible may involve more than a ``small software modification.''
Even software changes may involve a more substantial design and
development process than a simple update.
---------------------------------------------------------------------------
\57\ ACA maintains that any obligation placed on MVPDs should
apply only ``to navigation devices purchased after a certain future
date,'' and that our rule should not prohibit the use of existing
inventory after the compliance deadline. By declining to apply the
requirements to apparatus manufactured prior to the deadline, we
will ensure that MVPDs are able to utilize their existing inventory.
---------------------------------------------------------------------------
When the Commission adopted a rule requiring manufacturers of
apparatus subject to Sec. 79.105 of the Commission's rules to provide
a mechanism that is simple and easy to use for activating the secondary
audio stream for audible emergency information, it gave covered
entities approximately 17 months to comply. In that proceeding, we
similarly acknowledged that covered entities ``will need some time for
the design, testing, and implementation of a simple and easy to use
activation mechanism for the secondary audio stream on covered
apparatus,'' and concluded that the time granted was sufficient to
achieve these steps. In practice, the deadline proved sufficient, with
no waiver requests filed pertaining to the requirement contained in
Sec. 79.105. Likewise, we believe that a 24-month period will provide
covered entities with sufficient time to achieve the steps necessary to
comply with the rule adopted herein.\58\
---------------------------------------------------------------------------
\58\ Some industry commenters ask for an extended compliance
timeline, arguing that this would be consistent with the timeframe
needed for product development and our prior implementation of CVAA
accessibility rules. However, such longer timeframes were justified
when the Commission adopted more extensive accessibility
requirements than we are adopting in this Order. For example, we
established a three-year compliance period in the initial Report and
Order implementing sections 204 and 205 of the CVAA because there we
adopted multiple requirements related to accessible program guides
and menus and closed captioning and audio description activation
mechanisms. Additionally, while CTA suggests that a minimum of five
years would be needed to comply with a ``consistency and
persistence'' requirement, we find that the narrow approach we adopt
to the ``consistency and persistence'' requirement does not justify
a longer timeframe. Industry commenters have failed to provide the
details necessary to support a compliance timeline longer than two
years here.
---------------------------------------------------------------------------
We decline to adopt a later compliance deadline for certain mid-
sized and smaller MVPDs, as ACA Connects requests, because we find that
such an approach is unnecessary and unworkable here. First, a longer
deadline for smaller MVPDs is unnecessary because a compliance deadline
based on the date of manufacture will ensure that MVPDs can utilize
their existing inventory, and because MVPDs will not need to rely on
their market power to compel manufacturers to comply since the rules
explicitly apply to both entities. Second, a longer deadline for
smaller MVPDs is unworkable because it would result in a situation in
which provision of a given device that was manufactured after the
deadline applicable to manufacturers, but before the deadline
applicable to smaller MVPDs, would be a violation for the manufacturer
but not the MVPD. We note additionally that an extended deadline for
mid-sized and smaller MVPDs was justified when the Commission adopted
multiple accessibility requirements in the initial Report and Order,
whereas here we adopt a single requirement for accessible closed
captioning display settings. To the extent particular MVPDs find that
they are unable to comply with the requirements adopted herein, the
waiver or exemption procedures discussed above are available to them.
Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to
the Third Report and Order. In summary, the Third Report and Order
requires closed captioning display settings to be ``readily
accessible.'' The action is authorized pursuant to the Television
Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and
the authority found in sections 4(i), 4(j), 303(r), 303(u), and 330(b)
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j),
[[Page 66281]]
303(r), 303(u), 330(b). The types of small entities that may be
affected by the action fall within the following categories: Cable
Television Distribution Services, Cable Companies and Systems (Rate
Regulation), Cable System Operators (Telecom Act Standard), Direct
Broadcast Satellite (DBS) Service, Satellite Master Antenna Television
(SMATV) Systems also known as Private Cable Operators (PCOs), Home
Satellite Dish (HSD) Service, Open Video Systems, Broadband Radio
Service and Educational Broadband Service, Incumbent Local Exchange
Carriers (Incumbent LECs), Competitive Local Exchange Carriers (LECs),
Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing, and Audio and Video Equipment Manufacturing.
The projected reporting and recordkeeping requirements include that
covered entities must notify application developers about the
application programming interface (API) or similar method by which
covered MVPDs providing navigation devices must expose closed
captioning display settings. This notification can be accomplished by
any reasonable means. More generally, in the event that an allegation
of non-compliance arises against an entity, regardless of the size of
the covered entity, it will need to demonstrate how it has complied
with the applicable requirements. For example, if there is an
allegation that a covered entity has not provided the required employee
training, it could refute that allegation by reference to training
materials or a training schedule. The Third Report and Order permits
small and other covered entities to seek exemptions from the adopted
requirements on the basis that compliance is not technically
feasibility and/or not achievable, pursuant to section 303(u) of the
Act and consistent with our precedent in the IP Closed Captioning
Order.\59\ To demonstrate that compliance is not achievable--cannot be
accomplished with reasonable effort or expense--or is not ``technically
feasible'' will require small and other entities to have records, and
to make a filing with the Commission to substantiate such claims. Small
and other entities will also have to keep and be able to produce
records associated with their compliance in the event they are subject
to a dispute or complaint about accessibility.
---------------------------------------------------------------------------
\59\ Note that in accordance with the statute, achievability
only applies to covered apparatus that use a picture screen less
than 13 inches in size, whereas technical feasibility may apply to
any covered apparatus.
---------------------------------------------------------------------------
The other compliance requirements that are applicable to covered
small entities include the adoption of a rule that requires
manufacturers and MVPDs to ensure that consumers are able to readily
access user display settings for closed captioning on covered
apparatus. To determine whether particular settings are readily
accessible, the Commission requires compliance with the following
factors: proximity, discoverability, previewability, and consistency
and persistence. The Commission does not otherwise dictate the precise
manner of compliance as long as such settings are readily accessible.
This approach will ensure that consumers who are deaf and hard of
hearing can easily access closed captioning display settings, while
still giving small and other covered entities flexibility in the manner
of compliance and allowing companies to develop innovative solutions
for accessibility.
The Chief Counsel for Advocacy of the Small Business Administration
(SBA) did not file any comments in response to the proposed rules in
this proceeding.
To minimize the significant economic impact the rules adopted in
the Third Report and Order may have on small entities, in the Second
FNPRM the Commission inquired whether the provisions of section 303(u)
of the Act that allow the Commission to tailor its rules, as necessary,
to small entities for whom compliance with such rules is economically
burdensome should apply. Consistent with our determination that Section
303(u) of the Act should apply, we considered and find that small
entities are able to avoid potentially economically burdensome
compliance with the requirements in the Third Report and Order to
ensure that users can readily access closed captioning display settings
if they are able to demonstrate to the Commission that such compliance
is not ``achievable'' (i.e., cannot be accomplished with reasonable
effort or expense, with the provision limited by statute to apparatus
that use a picture screen less than 13 inches in size) or is not
``technically feasible.'' Two of the four statutory factors that we
must consider in assessing achievability are particularly relevant to
small entities: (i) the nature and cost of the steps needed to meet the
requirements, and (ii) the technical and economic impact on the
entity's operations.
In general, we afford covered entities flexibility in how they make
closed captioning display settings readily accessible to consumers, and
will determine whether settings are readily accessible to consumers by
evaluating the following factors: proximity, discoverability,
previewability, and consistency and persistence. This approach will
ensure that small and other covered entities can choose how to make
closed captioning display settings available, as long as such settings
are readily accessible to consumers, enabling these entities to decide
what works best for them. Our approach will also allow the Commission
to address the impact of the rules on individual entities on a case-by-
case basis, and to modify application of our rules to accommodate
individual circumstances thereby potentially reducing the costs of
compliance for such entities. The Commission's adopted definition of
the four required factors that we will evaluate to determine whether
small and other entities have met their obligation to make display
settings readily accessible to consumers is based on a March 2024 joint
proposal filed in the record by NCTA and certain Consumer Groups. The
meaning of the ``discoverability'' factor evolved from a previously
proposed meaning, which industry objected to as being too subjective,
to a meaning that focuses on consumer testing and employee training.
This objective definition should make it easier and simpler for covered
entities to ensure they are in compliance. Similarly, the meaning of
the ``consistency and persistence'' factor evolved from a previously
proposed broader definition, which industry objected to as raising
several problems, to a meaning that focuses largely on the use of
application programming interfaces (APIs) or comparable tools and the
coordination between covered entities. This narrow approach should also
make it easier and simpler for small and other covered entities to
comply. Additionally, rather than requiring compliance for third-party,
pre-installed applications, the Commission explicitly states that the
readily accessible requirements do not apply to such applications,
which is consistent with the March 2024 joint proposal and will further
ease compliance burdens for all entities, including small entities.
In response to commenter ACA Connects, as discussed above, the
Commission considered and rejected the request for a blanket compliance
exemption for small and medium-sized providers of legacy navigation
devices, a streamlined waiver process for such providers, and a later
compliance deadline. Our decision is consistent with prior orders, and
the record did not provide sufficient justification for the Commission
to adopt any other
[[Page 66282]]
proposed alternatives. To the extent particular small entities find
that they are unable to comply with the requirements adopted in the
Third Report and Order, the waiver and exemption procedures are
available to them.
Based on these considerations, the Commission believes that we have
appropriately considered both the interests of individuals with
disabilities and the interests of small and other entities who will be
subject to the rules, consistent with Congress's intent that ``to the
fullest extent made possible by technology,'' persons who are deaf and
hard of hearing ``should have equal access to the television medium.''
Paperwork Reduction Act. This document contains new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. It will be submitted to the
Office of Management and Budget (OMB) for review under section 3507(d)
of the PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, we note that
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific
comment on how the Commission might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
Ordering Clauses. Accordingly, it is ordered that, pursuant to the
Television Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat.
960, and the authority found in sections 4(i), 4(j), 303(r), 303(u),
and 330(b) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 303(r), 303(u), 330(b), this Third Report and Order is
adopted, effective thirty (30) days after the date of publication in
the Federal Register.
It is further ordered that, pursuant to the Television Decoder
Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and the
authority found in sections 4(i), 4(j), 303(r), 303(u), and 330(b) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j),
303(r), 303(u), 330(b), the Commission's rules are hereby amended as
set forth in Appendix A, effective thirty (30) days after the date of
publication in the Federal Register. Compliance with new Sec.
79.103(e) of the Commission's rules, 47 CFR 79.103(e), which may
contain new or modified information collection requirements, will not
be required until the Office of Management and Budget has completed its
review of any information collection requirements that the Media Bureau
determines is required under the Paperwork Reduction Act or two years
after the date of publication in the Federal Register, whichever is
later. The Commission directs the Media Bureau to announce the
compliance date for Sec. 79.103(e) by subsequent Public Notice and to
revise Sec. 79.103(e) accordingly.
It is further ordered that the Commission's Office of the Secretary
shall send a copy of this Third Report and Order, including the Final
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
It is further ordered that the Office of the Managing Director,
Performance Program Management, shall send a copy of this Third Report
and Order in MB Docket No. 12-108 in a report to be sent to Congress
and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 79
Cable television, Communications equipment, Satellite
communications, Television.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 79 to read as follows:
PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING
0
1. The authority citation for part 79 continues to read as follows:
Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310,
330, 544a, 613, 617.
0
2. Amend Sec. 79.103 by revising the section heading and adding
paragraph (e) to read as follows:
Sec. 79.103 Closed caption decoder and display requirements for
apparatus.
* * * * *
(e) Access to closed captioning display settings. Manufacturers of
apparatus subject to paragraph (a) of this section and multichannel
video programming distributors must ensure that consumers are able to
readily access user display settings for closed captioning on apparatus
designed to receive or play back video programming transmitted
simultaneously with sound, if such apparatus is manufactured in the
United States or imported for use in the United States and uses a
picture screen of any size, if technically feasible, except that the
requirement does not apply to third-party, pre-installed applications,
and for apparatus that use a picture screen of less than 13 inches in
size the requirement is mandated only if doing so is achievable as
defined in this section.
(1) In determining whether closed captioning display settings are
readily accessible, the Commission will require compliance with the
following factors:
(i) Proximity. This factor considers whether the closed captioning
display settings are available in one area of the settings that is
accessed via a means reasonably comparable to a button, key, or icon.
(ii) Discoverability. This factor considers whether the user has
the ability to easily find the closed captioning display settings. To
ensure settings are discoverable, manufacturers of apparatus subject to
paragraph (a) of this section and multichannel video programming
distributors are required to:
(A) Conduct usability testing to determine if caption display
settings can be easily found by working with consumers and disability
groups as part of the testing process;
(B) Make good faith efforts to correct problems identified during
the consumer testing process; and
(C) Train customer-facing employees on how to advise customers with
regard to caption display settings.
(iii) Previewability. This factor considers whether viewers are
able to preview the appearance of closed captions on programming on
their screen while changing the closed captioning display settings.
(iv) Consistency and persistence. This factor requires covered
entities to:
(A) With regard to an MVPD's provision of navigation devices,
expose closed caption display settings via an application programming
interface (API) or similar method that an over-the-top application
provider can use upon launch of their application on the device. The
API or similar method must enable the application provider to use the
device-level caption settings for its own content, if it chooses, and
covered entities must notify application developers about this API or
similar method through any reasonable means;
(B) With regard to providing an MVPD's own video programming
application hosted on third-party devices, utilize the operating
system-level closed caption settings of the apparatus upon launch of
the application on the device; and
[[Page 66283]]
(C) Ensure that apparatus they manufacture make closed caption
settings available to applications via an API or similar method.
(2) Compliance with this requirement is required for devices that
use next generation operating systems deployed after FCC publishes a
rule in the Federal Register establishing the compliance date.
Note: The compliance date is after the Office of Management and
Budget has completed its review of any information collection
requirements that the Media Bureau determines is required under the
Paperwork Reduction Act or August 17, 2026, whichever is later.
(3) This paragraph (e) places no restrictions on the importing,
shipping, or sale of apparatus that were manufactured before August 17,
2026.
[FR Doc. 2024-17479 Filed 8-14-24; 8:45 am]
BILLING CODE 6712-01-P