On April 9, 2013, the FCC released an Order that requires video programming distributors (“VPDs”), including multichannel video programming distributors (“MVPDs”), to pass through an audio translation of on-screen emergency information text crawls on a secondary audio stream.  These rules will become effective two years after publication of the Order in the Federal Register.

Note: The emergency information pass-through requirement does not have a technical capability exception.  ACA will petition the FCC to waive secondary audio pass-through requirements for operators of all-analog and smaller hybrid analog/digital cable systems not technically capable of providing a secondary audio program stream.

The Order also imposes accessibility requirements on manufacturers of most consumer devices (referred to as “apparatus”) that allow the viewing, playback and/or recording of video programming. The rules require that apparatus, such as a set-top box or DVR, be capable of processing and passing through emergency information and video description secondary audio streams.  The apparatus rules, which do contain technical feasibility or achievability exceptions, will also become effective two years from publication of the Order in the Federal Register.

Finally, while the emergency information rules do not yet apply to TV-Everywhere delivery of video content, the FCC concurrently issued a Notice of Further Proposed Rulemaking (“FNPRM”) asking whether they should.

Background

Section 202(a) of The Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) directs the FCC to promulgate regulations that would require video programming providers (“VPPs”), VPDs, and program owners to convey emergency information in a manner accessible to individuals who are blind or visually impaired.  The FCC’s Order implements this directive by specifying how this emergency information should be conveyed by “covered entities,” interpreted by the FCC to mean VPPs (which include “program owners”) and VPDs.  Section 203 of the CVAA directs the FCC to impose certain emergency information and video description requirements on apparatus designed to receive, play back, or record video programming transmitted simultaneously with sound.  The FCC’s Order implements this directive by providing specifics on the apparatus to which these rules apply and how compliance can be achieved.

Emergency Information Secondary Audio Rules

General Rule. The Order requires VPPs and VPDs to use a secondary audio stream (also known as secondary audio programming or “SAP”) to aurally convey emergency information that appears visually in on-screen crawls during programming other than newscasts.

The Emergency Information rules also provide that:

• Broadcasters and other programmers are responsible for putting emergency information in a secondary audio stream.
• VPDs are responsible for passing through the emergency information on an existing secondary audio stream.
• Emergency information must supersede all other programming on the secondary audio stream, including video description, foreign language translation, or duplication of the main audio stream.
• VPDs or VPPs are not required to offer specific customer support services to assist blind or visually impaired subscribers in navigating between the main and secondary audio streams to access video description and accessible emergency information.
• Consumers may file complaints with the FCC’s Consumer and Governmental Affairs Bureau.

Apparatus Requirements

General Rule. The Order requires that set-top boxes, DVRs and other affected apparatus, with a few limited exceptions, have the capability to decode, make available, present or pass through a secondary audio stream to facilitate the transmission and delivery of video description services and emergency information.  Manufacturers of these devices are primarily responsible for compliance.  Although the Order is not entirely clear on this point, the FCC will likely hold VPDs responsible for providing their subscribers with compliant apparatus as well.

The apparatus requirements only apply to devices that can be used to access television broadcast or MVPD services.  The rules do not apply to devices, for example, that solely allow viewing of videos on Internet websites.

The Apparatus rules also provide that:

• Apparatus designed to receive or play back video programming must comply with the requirements only to the extent it is “technically feasible.”
• Apparatus designed to record video programming transmitted simultaneously with sound, or that uses a picture screen less than 13 inches in size, must meet the requirements only if “achievable.”
• Consumers may file complaints with the FCC’s Consumer and Governmental Affairs Bureau.

FNPRM Concerning Implications for TV-Everywhere and Other IP-Based Offerings

The FCC issued an FNPRM requesting comment on whether the emergency information and video description rules should apply to an MVPD that permits its subscribers to access linear video programming via tablets, laptops, personal computers, smartphones, or similar devices, or by means of an application or plug-in.  The FCC’s resolution of this issue will determine if an MVPD’s TV-Everywhere and similar IP-based offerings must comply with the rules requiring emergency information to be provided through a secondary audio stream.

If you have questions regarding the FCC’s emergency information order, please contact Elvis Stumbergs at (202) 872-6881 or estumbergs@cinnamonmueller.com.