On September 30, 2016, the FCC released a Public Notice reminding video programming distributors (“VPDs”), including cable operators and other distributors of video programming, of their obligation to make televised emergency information accessible, as required by FCC rules, to persons who are deaf, hard of hearing, blind or visually impaired.  The Public Notice also contains recommendations for compliance measures and a consumer’s guide to filing complaints.

            Background.  Under FCC rules, VPDs must make televised emergency information, such as critical details or information regarding current emergencies, including how to respond to the emergency, accessible.   Examples of emergencies include natural disasters, severe weather watches and warnings, widespread power outages, industrial explosions, civil disruptions and school closings.

            Blind or Visually Impaired Accessibility.  VPDs must make all emergency information provided in the video portion of a regularly scheduled or interrupting newscast accessible to individuals who are blind or visually impaired by aurally describing the emergency information in the main audio portion of the programming.  If emergency information is conveyed visually during programming other than newscasts, such as crawling or scrolling text, the VPD must also provide an aural tone and immediately thereafter convey the emergency information aurally through a secondary audio stream.  The aural tone will alert customers who are blind or visually impaired to switch to the secondary audio stream to hear the information, which VPDs must convey on the secondary audio stream in full, at least twice.

            The Media Bureau granted waivers of these emergency information rules for certain hybrid cable systems, conditioned upon providing free equipment to blind or visually impaired analog subscribers to ensure access to the digital secondary audio stream, and for certain analog-only cable systems, until June 12, 2018.

            In addition, starting no later than July 10, 2017, MVPDs must pass through the secondary audio stream containing emergency information when it is provided on linear programming accessed on a second screen, such as smartphones, tablets and laptops, over their networks as part of their MVPD services.

            Deaf or Hard of Hearing Accessibility.  VPDs must make all emergency information provided in the audio portion of programming accessible using closed captioning or other methods of visual representation, including open captioning, crawls or scrolls on screen.  Information provided by these means may not block or obstruct any closed captioning, and closed captioning may not block or obstruct any emergency information provided by visual means.  As with VPDs’ general closed captioning obligations, emergency information must also be passed through from the original source to subscribers.

            Individuals with Cognitive Disabilities.  Although not required by FCC rules, the Public Notice encourages VPDs to make emergency information more accessible to individuals with cognitive disabilities, through practices such as providing content in plain and understandable English, including easy-to-understand instructions for emergency responses, providing content through multiple means, and avoiding scrolling information unrelated to the emergency during the broadcast of emergency information.

            Consumer Complaints and Enforcement.  According to the Public Notice, the FCC will continue to closely monitor complaints alleging violations of these rules and will review for possible enforcement action.  Consumers may contact their VPD directly or file a complaint with the FCC. 

If you have further questions, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com.

Preparing for Year-End Retransmission Consent Negotiations:  Bargaining in Good Faith

            Many cable operators will be negotiating retransmission consent before the end of this year.  Before you begin, there are FCC rules you should be familiar with, including the requirement that a broadcaster negotiate retransmission consent in good faith. 

            The FCC first issued regulations addressing retransmission consent negotiations following enactment of the 1999 Satellite Home Viewer Improvement Act, and amended these “good faith negotiation regulations” pursuant to the 2004 Satellite Home Viewer Extension and Reauthorization and again pursuant to the 2014 Satellite Television Extension Act Reauthorization.

The rules allow broadcasters to do the following based on competitive marketplace conditions:

• Ask for compensation above that agreed to with other MVPDs in the same market
• Ask for compensation that is different from the compensation offered by other broadcasters in the same market.
• Ask for terms and conditions different from that offered to other MVPDs in the same market.

The rules have also been interpreted to allow broadcasters to do the following without constituting a pro-se violation of the rules:

• Propose that carriage be conditioned on carriage of other programming.  
• Propose that carriage be conditioned on a broadcaster obtaining channel positioning or tier placement rights.
• Ask for compensation in the form of commitments to purchase advertising on the broadcast station or broadcast-affiliated media.

On the other hand, there are several examples of broadcaster bargaining positions that presumptively conflict with the good faith negotiation requirement.  These include:  

• Proposals that specifically foreclose carriage of other non-duplicative programming services. 
• Proposals involving compensation or carriage terms that result from an exercise of market power by a broadcast station the effect of which is to hinder significantly or foreclose MVPD competition. 
• Proposals that result from agreements not to compete or to fix prices. 
• Proposals for contract terms that would foreclose the filing of complaints with the Commission.   

The FCC has also concluded that the following broadcaster conduct violates the obligation to negotiate in good faith:

• Refusal to negotiate retransmission consent.
• Refusal to designate a representative with authority to make binding representations.
• Refusal to meet and negotiate at reasonable times and locations.
• Unreasonably delaying negotiations.
• Refusal to put forth more than a single, unilateral proposal.
• Failure to respond to a proposal from an MVPD, including the reasons for rejecting a proposal.
• Executing an agreement that prevents the broadcaster from entering into a retransmission consent agreement with any other MVPD.
• Refusal to execute an agreement that sets forth the full understanding of the parties.
• Two non-commonly owned top-four ranked stations in the same DMA jointly negotiating retransmission consent.

In addition, an MVPD may demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that the broadcaster breached its duty to negotiate in good faith.

If you have questions about the FCC’s good faith rules, or retransmission consent negotiations in general, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com or Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com.