New Disability Access Requirements for Advanced Communications and Video

By Marty Stern (Washington, DC), Carol Lumpkin (Miami) and Stephanie N. Moot (Miami).

The President signed the 21st Century Communications and Video Accessibility Act of 2010 on October 8, 2010 (the “ComVid Accessibility Act” or “Act”). The ComVid Accessibility Act expands various disability access requirements to VoIP phones, browser-enabled smart phones, text messaging, Internet-enabled video devices, on-line video of TV programming, TV navigation devices, and programming guides and menus, among other things.

Karen Peltz Strauss, who has the lead at the Federal Communications Commission (“FCC” or “Commission”) on implementing the ComVid Accessibility Act, appeared on a recent live program on Internet TV channel Broadband US TV and discussed the FCC’s “enormous mandate” to implement the new Act.  Click here for a clip of Ms. Peltz Strauss’ comments on the program.  (with permission from TV Worldwide).[1]  According to Ms. Peltz Strauss, “Every segment of the industry that has anything to do with broadband, television, including cable, satellite or broadcast, Internet-based television, as well as . . . Internet-based providers, traditionally regulated [telephone] companies, wireless companies” needs to be paying attention to the new Act.   “Virtually every segment that has anything to do with communications or video programming is covered.”

Additionally, Peltz Strauss commented that with the passage of the Act, the FCC now has “an enormous mandate” to ensure that all kinds of advanced communications are accessible to people with disabilities.  She noted that the FCC will initially be seeking comment on what should go into a draft notice of proposed rulemaking, and will also be forming within 60 days two advisory committees required by the Act, noting that the Commission has a “laundry list of things we need to do” and that there will be multiple, far-reaching documents involved.

An initial request for comments was released on October 21, 2010, with comments and reply comments due November 22 and December 7, respectively.  The comments will be used by the Commission to assist in the development of a Notice of Proposed Rulemaking required by the ComVid Accessibility Act.

Broadly speaking, the ComVid Accessibility Act:

• Clarifies that hearing aid compatibility requirements apply to VoIP customer premises equipment.  The Act also requires VoIP providers to contribute to the Telecommunications Services Relay Fund, which is used to support phone services for the hearing impaired.  This provision also applies both to “interconnected” or two-way VoIP services, as well as “non-interconnected” VoIP providers, potentially extending the TRS contribution requirements to certain types of one-way VoIP services that today are not covered by the FCC’s various VoIP-related rules.
• Extends accessibility requirements to mobile Internet browsers and email applications, requiring manufacturers and providers of equipment used for advanced communications, including end-user equipment, network equipment, software, and telecommunications services, to make their products and services, compatible with devices used by persons with disabilities, if “achievable.”  Manufacturers and service providers would have to show that they invested a “reasonable” level of expense and effort before determining that accessibility was not achievable.
• Requires providers of Internet access services and manufacturers of Internet access equipment to make user interfaces accessible to persons with disabilities, unless doing so would be an undue burden.
• Requires that devices that receive or play back video programming and have a picture screen of any size be capable of (i) decoding and displaying closed captioning, (ii) transmitting and delivering video description (a separate audio feed that includes the dialogue and an audio description of the actions occurring on screen), and (iii) conveying emergency information.  These requirements apply to devices with screens smaller than 13 inches, including mobile devices, if such requirements are “achievable.”  The provision also requires DVRs to render and pass through such information.
• Requires television networks to incrementally provide video description capability, reinstating FCC video description requirements that had been vacated by the D.C. Circuit.
• Requires closed captioning for Internet streaming of video programming exhibited on television with captions, taking into consideration whether such programming is pre-recorded, or whether such programming is to be streamed live or near-live, and the cost of captioning live streamed programming.
• Requires programming distributors, such as cable or satellite TV services, to make their programming guides accessible to the visually impaired.
• Creates new directives for associated FCC reporting obligations, as well as enforcement and complaint procedures.

As a new law, its interpretation and impact will, of course, be shaped by FCC regulations and any subsequent judicial review.  We will continue to track the law’s implementation, and will provide updates as appropriate.