On October 31, 2013, the FCC released its anticipated Order implementing portions of the Twenty-First Century Communications and Video Accessibility Act of 2010. 

The Order requires navigation devices (e.g., set-top boxes), provided by “covered entities” (including MVPDs generally, such as cable operators) upon request by certain disabled persons, to:

• Include features that would audibly describe certain on-screen menu functions to make them accessible to individuals who are blind or visually impaired;
• Offer easy access to closed-captioning capabilities.

As explained below, the compliance deadline for the largest MVPDs is at least 3 years away.  Smaller to medium-sized operators will have at least 5 years to comply.

Navigation devices include converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over MVPD systems using conditional access functionality.  An operator that only provides a cable channel providing program listing, often in the form of a scrolling grid, is not subject to the accessibility requirements.

Specifically, the blind and visually impaired must be able to audibly access nine essential functions on navigation devices:

• Channel/Program Selection;
• Display Channel/Program Information;
• Configuration – Setup;
• Configuration – CC Control;
• Configuration – CC Options;
• Configuration – Video Description Control;
• Display Configuration Info;
• Playback Functions; and
• Input Selection. 

Power On/Off and Volume Adjust/Mute functions must be made accessible as well, though not necessarily audibly accessible.  In addition, navigation devices must provide access to closed captioning through a mechanism reasonably comparable to a button, key, or icon. 

The Order also covers the offering of such devices and notification requirements regarding their availability.  MVPDs must offer accessible navigation devices in the same manner and cost as other navigation devices and must make them available through the same means.  While MVPDs must only provide devices “upon request,” the devices must be provided within a time comparable to that within which MVPDs provide navigation devices generally to other customers.  MVPDs must also make the availability of compliant accessible navigation devices known in response to customer inquiries regarding service and equipment, and the devices should be publicized on the MVPD’s website.

MVPDs have flexibility to decide which of the devices they offer will contain accessibility features, but they must provide the accessible device at no additional charge.  For example, if the only accessible device an MVPD makes available is a more expensive device being offered by the MVPD because of its sophisticated features, and a blind or visually impaired consumer requests an accessible lower-end device, then the MVPD must provide the accessible device with the sophisticated features at the lower price.  In this situation, however, the MVPD may verify the requesting subscribers’ disability. MVPDs can also rely on separate equipment or software (e.g., a tablet with an accessibility app) to meet their compliance obligations.

The Order sets size-based compliance deadlines:  

• Five Years: MVPDs with 400,000 or fewer subscribers and for those systems with 20,000 or fewer subscribers (for all except the largest MVPDs) must comply within five years from when the Order is published in the Federal Register.
• Three Years: All other MVPDs must comply within three years from when the Order is published in the Federal Register.

To the extent MVPDs can demonstrate that compliance is not “achievable,” they would have a defense against compliance complaints.  Achievability is determined based on a four-factor analysis that examines the cost of compliance, the technical and economic impact on the entity, the entity’s type of operations, and the extent to which they already offer accessible services or equipment.

The FCC will review the marketplace after the three year deadline for larger MVPDs passes to determine whether the five-year delayed compliance deadline should be retained or extended based on whether it is “achievable” for smaller operators to provide navigation devices with audible accessibility. 

The FCC will also entertain requests for delayed compliance from MVPDs with more than 400,000 but fewer than two million subscribers if they attempted in good faith to obtain an accessible solution by the three-year deadline but could not do so.

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If you have further questions, please contact Barbara Esbin at (202) 872-6811 at besbin@cinnamonmueller.com, or Elvis Stumbergs at (202) 872-6881 or estumbergs@cinnamonmueller.com.

FCC Selects MVPDs for EEO Audits

On October 25, 2013, the Media Bureau released a Public Notice notifying multichannel video programming distributors (“MVPDs”), including cable operators, that Equal Employment Opportunity (“EEO”) audit letters had been sent to randomly selected MVPDs.  The Public Notice lists the MVPDs selected, and includes a copy of the letter mailed.  Responses are due to the FCC by December 9, 2013.

The FCC annually audits approximately five percent of MVPD employment units.  The audit letter requests certain data from the selected MVPD employment units, including the employment unit’s most recent EEO public file, information on job openings, and documentation demonstrating performance of the required recruitment initiatives.

All selected MVPD employment units must respond to the audit letter, but employment units with fewer than six full-time employees have more limited response requirements.  Failing to timely respond to the audit letter could result in a certification that the employment unit is not in compliance for 2013 with the FCC’s EEO rules. 

If you have any questions about EEO compliance, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

FCC Declines to Reduce EAS Forfeiture Violation Due to Licensee’s Inability to Pay

Clarifies Ability to Pay Based on Gross, not Net, Revenues

            On October 28, 2013, the FCC’s Enforcement Bureau issued a $6,400 Forfeiture Order to the licensee of an FM station in Puerto Rico for failing to maintain fully operation Emergency Alert System (“EAS”) equipment when the station was in operation.

            The Forfeiture Order follows a Notice of Apparent Liability for Forfeiture and Order (“NAL”),  in January 2013 proposing an $8,000 forfeiture.  After receiving the NAL, the licensee responded, and requested cancellation or reduction of the proposed forfeiture due to its history of compliance with FCC rules and inability to pay the forfeiture.

            While the Enforcement Bureau reduced the forfeiture to $6,400 based on the licensee’s history of compliance with FCC rules, it refused to further reduce the forfeiture due to the licensee’s inability to pay.  Because the FCC has determined that gross revenues are generally the best indicator of an individual or entity’s ability to pay a forfeiture, the FCC found that financial documents showing that the licensee has been operating with a net loss for the past two years an insufficient basis to further reduce the forfeiture.

This order serves as an important reminder that operating losses alone are insufficient, in most cases, to reduce proposed FCC forfeitures – the FCC generally examines the ability to pay based on gross, not net, revenues.  If you have any questions regarding the FCC’s enforcement process, or FCC compliance in general, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com or Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.