CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

But the technical solution ran into an economic problem. While people with hearing aids could easily put hearing aid compatible telephones in their homes, those telephones were scarce elsewhere. The institutions responsible for putting phones into places like hotels, workplaces, public libraries, etc., had little incentive to spend more for hearing aid compatible equipment.

This kind of stand-off rarely goes away without regulation. In 1988 Congress duly stepped in, and passed a statute instructing the FCC to address the problem. The next year the FCC launched a sequence of rules that required a specified fraction of the telephones accessible to the public to be hearing aid compatible. That fraction has gradually increased since. Today, hearing aid compatibility is required for every wireline telephone manufactured – or imported for use – in the United States, including cordless phones.

The initial rules exempted cellphones, which were not all that common anyway in 1988. But in 2003, with wireless phones well on the way to ubiquity, the FCC reversed course. It required manufacturers of wireless phones to make available a certain number or percentage of models that are hearing aid compatible.

By 2003, though, the vast preponderance of wireless phones were digital. Adding hearing aid compatibility to a digital cell phone is technically difficult, at least compared to a traditional wireline analog phone. Stray low-level signals from digital circuits in the phone tend to produce audible interference in the hearing aid, particularly with GSM phones used by AT&T and T-Mobile. Another problem is a simple shortage of space. A modern smartphone contains a lot of components: up to six two-way radios (for 3G and 4G data, 800 MHz and 1.9 GHz voice, Wi-Fi, and Bluetooth), receivers for GPS and sometimes FM, antennas, display, camera and flash, tilt sensors, microphone and speaker, processor and memory, and a battery. All of this fits into a case a little bigger than a playing card and less than half an inch thick. Designers understandably resist having to configure components to minimize interference to hearing aids.

Under the post-2003 FCC rules, a wireless phone has two separate ratings for hearing aid compatibility. The “T” rating, from one to four, measures the effectiveness of communications using a coil. The “M” rating, also from one to four, assesses interference when the hearing aid does not use a coil, but instead picks up sound from the telephone earpiece.

To complicate matters, the hearing aid itself also receives an “M” rating. This denotes the hearing aid’s ability to suppress incoming interference, including the stray signals from a wireless phone. An M1 rating indicates the least resistance to interference, and M4 the most. To determine whether a particular digital wireless telephone is likely to interfere with a particular hearing aid, one adds the M ratings of both devices. A sum of four or above means the combination is usable; a sum of six or greater predicts excellent performance.

The FCC requires manufacturers and wireless service providers to ensure that some, but not necessarily all, of the handsets they offer carry at least T3 and M3 ratings. Very approximately, about a third of a manufacturer’s handsets, and half of a nationwide carrier’s handsets, must meet the requirements. The hearing aid compatible handsets cannot all be “plain vanilla,” but must span a range of features and functionality. Carriers must allow customers to test compatibility with their own hearing aids in the store prior to purchase.

Manufacturers and wireless carriers alike – even companies like Circle-K and 7-Eleven that carry prepaid phone cards and cellphones – must file annual reports with the FCC that list their hearing aid compatible handsets. And somebody at the FCC reads the reports. A small regional carrier in Northwest Alaska recently agreed to write a check for $13,000 to settle a claim that it offered too few hearing aid compatible models. To its credit, though, the FCC has a proceeding underway to assess whether the rules are accomplishing their intended purpose.

The engineering procedures for arriving at T and M ratings are highly complex. The FCC has outsourced the details to the American National Standards Institute (ANSI), a non-profit organization that sets standards for everything from (literally) the threads on nuts and bolts to interconnections in the national energy grid. Instead of devoting many pages of the FCC rulebook to the technical specifics, the FCC simply cites to the relevant ANSI standard. Unfortunately, when ANSI updates its standards, as it does periodically, the FCC must update the references in its rules. That requires a full-dress rulemaking proceeding. One such is underway now, a 25-page Notice of Proposed Rulemaking that basically just adds a newer ANSI standard. 

Updating to the new standard is important. It will improve testing procedures, and also expand the standard to cover frequencies (including the new 700 MHz band, which some wireless carriers have recently begun using to provide 4G data service) beyond basic cellphone bands. Without the update, new technology products soon expected on the market might be exempt from compatibility requirements. (The FCC allowed the iPhone to be exempt when it first appeared.) Issues in the rulemaking include a cut-off date after which the current standard may no longer be used, and whether manufacturers must apply one standard or the other, rather than cherry-picking parts of each.

Comments and reply comments on the ANSI update are due 30 and 45 days, respectively, after publication in the Federal Register, which has not yet occurred. We will post the due dates here when they are announced.

As the public notice indicates, the closed captioning complaint rules provide three ways to get that information to the Commission. Two of those ways are addressed only in passing in the notice, probably because the Commission would prefer that they not be used. (Those two ways are: (1) filing it in hard copy with the Chief of the Disability Rights Office, Consumer and Governmental Affairs Bureau; and (2) sending it in an email to CLOSED CAPTIONING_POC@fcc.gov.) The public notice does go on at some length about the third, preferred, way – submitting the info through the hand webform at https://esupport.fcc.gov/vpd-data/login!input.action.

The Commission is right to push VPDs in the direction of the webform, which has a lot going for it. In fact, it makes you wonder why the Commission offers the other two alternatives at all. Be that as it may, here’s the scoop on the webform.

All you need is your FRN, FRN password, and the contact information. The first page you access asks for your FRN and password. After you login with those, you’re at a screen with three tabs in the upper left corner. If you haven’t entered any contact information for any station (or system, if you’re a cable person), you click on the middle tab labeled “New VPD”, which will then take you through a series of screens. each soliciting aspects of your contact information. It’s all pretty simple (although the Commission provides a “support” tab in each screen, just in case).

The primary advantage of the webform is that the VPD gets to enter the information itself. The other alternatives require FCC staff themselves to enter the data into the system – which obviously introduces the possibility of inadvertent error.

So all you VPDs, let’s get to it. We don’t want to have to warn you again.

As of February 19, any viewer who believes that a video programming distributor (VPD) has failed to comply with captioning requirements may file a complaint – either with the FCC or with the VPD itself. (FYI – VPDs include, for these purposes, over-the-air broadcasters and multichannel video programming distributors, such as cable operators and satellite TV operators.) The complaint must be in writing (fax, e-mail or snail mail), and must be submitted within 60 days of the alleged failure.

When a VPD receives a complaint – whether the complaint is sent (a) directly to the VPD or (b) to the FCC which then forwards it on to the VPD – the VPD has 30 days to respond in writing to the complainant. If the complainant isn’t satisfied with the response, he/she can then complain further to the Commission.

The newly effective rules also require VPDs to post in various places, within 30 days (i.e., by March 22, 2010) contact information of various sorts. First, VPDs must designate a telephone number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns, such as technical problems which may cause captions to vanish or become garbled. Second, they must also provide contact information for closed captioning complaints of a more general and less immediate nature. That information must include the name of a person with primary responsibility for captioning issues and rule compliance, the person’s title or office, telephone number, fax number, mailing address, and e-mail address. All of this information must be posted on the VPD’s website (if it has one), included in billing statements for multichannel providers, and included in any local phone directory in which the VPD directly advertises or otherwise places commercial listings.

Perhaps more importantly, the VPD is now required to file its contact information with the Commission within 30 days of the rules’ effectiveness (again, by March 22, 2010). The Commission has set up a handy webpage which includes a link to a new electronic filing system just for this purpose – which the FCC specifically encourages VPDs to use – although the new rules also permit submissions by e-mail and/or in plain old paper-and-ink.

All contact information must be updated as necessary. (Website contact listings must be updated within ten days; listings on billing inserts must be updated by the billing cycle immediately following the changes; directories must be updated with the next publication.)

What about Section 79.1(g)(3), the sub-subsection that missed the effectiveness boat? That’s the provision that would require VPDs who receive a misdirected complaint to forward it along to the proper addressee. For example, the complainant might have written to her cable company – since that’s who she normally writes her monthly subscription checks to – not realizing that the party really responsible for the complained-of captioning issue was a program producer or distributor unrelated to the cable company. Under the new rules, the cable company would be obligated to forward the complaint on to the right folks. But as we reported last December, such forwarding would entail the disclosure of certain personal information – and the Communications Act prohibits such disclosure. So the Commission has put a hold on this particular forwarding requirement until it can resolve that pesky problem. No word yet on when that might be.

Complaints like that generally contain personally identifiable information, such as the complainant’s name and address. But Section 631(c)(1) of the Communications Act prohibits cable companies from disclosing any such personal information of a subscriber without prior written consent, and Section 338(i)(4) of the Act imposes the same prohibition on satellite carriers. As a result, in order to comply with the complaint-forwarding requirement, cable and satellite operators would be forced to violate the non-disclosure laws. Oops. (Exactly why this conundrum had not been perceived before the complaint-forwarding process was initially adopted is not clear. Nor is it clear why it’s taken the FCC a year to acknowledge and start to address the problem. But then again, it appears that even the folks at Time Warner Cable didn’t raise any questions about this until June, 2009.) 

So it’s back to the drawing boards – in a public notice the Commission has indicated that it will be releasing a Notice of Proposed Rule Making to seek comment on how to deal with this problem. In the meantime, the Commission is temporarily staying the effective date of this rule provision. The FCC further emphasized that other provision of the new rules would take effect as scheduled.

On another captioning complaints front, the Commission has announced in a separate public notice the implementation of a new electronic webform that will allow video programming distributors (VPD’s, a universe which includes cable and satellite operators, television stations and the like) to submit their contact information to the FCC more quickly, accurately, and efficiently. As part of the November, 2008, captioning complaint process, the Commission required VPD’s to submit their contact information by mail or by e-mail. While those options will remain, use of the new webform is strongly encouraged. Its use eliminates the risk of transcription errors by the Commission’s staff, lessens the staff time involved, electronically checks to make sure that all required data is provided, and makes the information available more quickly. In lauding the new system’s benefits, however, the Commission was a little less than clear on precisely how and where the electronic filing is to be done, but we are sure that all will become known.

The November, 2008, captioning complaints process – minus the complaint-forwarding aspect which, as noted above, is on indefinite hold – won’t take effect until the FCC has issued a public notice (in the Federal Register) advising that the Office of Management and Budget (OMB) has approved the process. According to OMB’s website, OMB approved the captioning complaints process last July. However, the Commission has not followed up with the required Federal Register notice of that approval, so the process is still technically not in place. When that will change, we do not know as yet. While we might expect the Public Notice announcing the effective date to be forthcoming shortly, you never know. One potential delaying factor that could crop up involves implementation of the electronic webform. Once the webform requirement kicks in, thousands of contact information filings will be expected within 30 days of the effective date. Obviously, the on-line form will need to work technically, so we may hope that any delays in implementation are the result of careful beta testing. In the interim, TV licensees and other VPD’s should be getting their contact information together.

First, if you want to comment on the proposed rules, you have until February 12; reply comments will be due on February 27. In case the precise subject matter of the Commission’s proposals may have slipped your mind over the holidays, here’s a quick refresher. The Commission’s rules (Section 79.1(d)(12), to be exact) provide that no video programming provider will have to lay out any coin to caption “any channel of video programming producing annual gross revenues of less than $3,000,000 during the previous calendar year.” But it’s not clear how that exemption would or should be applied to multi-channel DTV broadcasters: should each digital stream be deemed a separate and independent “channel” for these purposes, or should the term “channel” be deemed to mean the entire 6 MHz chunk of spectrum used by the licensee? Also, the Commission has questioned whether $3,000,000 is an appropriate threshold – and even whether a single threshold, as opposed to some sliding scale might be better suited. (Note that, notwithstanding the exemption, all video providers are required to pass through any captioning that has already been included by program producers supplying the video providers.)

Second, the “declaratory order” portion of the DRONPRM will be effective as of February 12. That portion was devoted to emphasizing that the shift from analog to digital would NOT alter the pre-existing captioning obligations. That is, there is no exemption for DTV programming just because it is digital. Likewise, the transition to all-digital broadcasting, whether on February 18 or some later date, does not relieve stations of the obligation to continue to caption programming in a manner that can be decoded by analog TV sets. Finally, the transition does not open up the opportunity for stations to claim the self-implementing exemption for channels with less than $3,000,000 in revenue or the new network exemption just because of a change from primarily analog to all-digital operation. In other words, captioning obligations are still in place, and don’t try to be too cute.

Third, the new contact information requirements and complaint process are still not yet in effect. Those items require review and approval by the Office of Management and Budget (OMB). The good news there is that, if you feel like filing comments with the FCC concerning the paperwork reduction aspects of the order – and particularly with regard to the contact information posting and notification requirements – you’ve got have until March 16, 2009, to do so. (The FCC will then presumably consider those comments in the preparation of the showing which it will have to make to OMB.)

In the meantime, the new FCC complaint process will NOT be in effect. That process calls for complaints to be filed with either the video programming distributor or the Commission, provides for a shorter turnaround time in responding to complaints, and requires stations and cable operators to provide assistance in forwarding misdirected complaints to the correct entity. Similarly, the new requirement that stations both provide and keep updated contact information for both complaints and inquiries of an urgent, primarily technical nature and those of a more general nature are also NOT yet in effect. 

If and when the OMB approves the new requirements, stations and cable operators will have 30 days in which to submit their contact information to the Commission. They will also have to post the information on their website (if they have one), obtain entries in local telephone directories, and, for cable operators, include the information in their bills.

First, VPDs must provide a telephone number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns, such as technical problems which may cause captions to vanish or become garbled. If a VPD has staff available either on-site or remotely for addressing technical issues, then consumers must be able to reach someone, either directly or indirectly, who can address the captioning problems. Further, for telephonic inquiries, the VPD must be able to accommodate incoming calls placed through a Telecommunications Relay Service (TRS) operator. For those inquiries made after-hours or when staff might otherwise be unavailable, a response should be provided within 24 hours.

Second, VPDs must provide contact information for closed captioning complaints of a more general and less immediate nature. That information must include the name of a person with primary responsibility for captioning issues and rule compliance, the person’s title or office, telephone number, fax number, mailing address, and e-mail address.

All of this contact information must be included in telephone directories, posted on the VPD’s website (if it has one), and included in billing statements for multichannel providers. The Commission also will compile a database of this information. It is therefore requiring all VPDs to file their contact information with the Commission within 30 days of Office of Management and Budget approval.

Of course, to remain useful, the information must be kept current. When there are changes, websites must be updated within ten days, any bills must be updated by the next billing cycle, and directories must be updated by the next publication. Updates also must be filed with the FCC within ten business days.  All of this means that, as employees responsible for closed captioning compliance come and go, and in the event of any change in mailing address, e-mail address, or telephone number, stations must remember to make the required updates.

Complaint process tweaked. In order to further ease the complaint process, the requirements for both timing and the location of filing of complaint have changed. (The FCC has noted that complainants may also use Form 2000-C – the general Disability Access Complaint form – for filings regarding closed captioning.) The Commission has reduced the period in which a complaint may be filed to within 60 days of the captioning problem; it has also reduced, to 30 days after receipt of the complaint, the time in which a VPD must respond in writing. Further, if a complainant has misdirected his complaint to a VPD which happens not to have been the source of the problem, that VPD can’t just declare the complaint to be somebody else’s problem and throw it away; rather, the recipient must assist the complainant in correctly directing the complaint. As another aid to consumers, a complaint will no longer be required to be filed first with the programming distributor but alternatively may be filed first with the Commission.

Analog v. DTV – The same rules apply. In looking at the consumer impact of the now-imminent DTV transition, the Declaratory Ruling portion of the order also offers the clarification that digital programming is fully subject to essentially the same closed captioning requirements as analog programming. While there would not seem to have been much doubt about the matter, the Commission explicitly states that there is no exemption for DTV programming just because it is digital. The only real difference is the controlling date for determining whether a program is considered to be “new” or “pre-rule.”  At this point, all “new”, non-exempt English language programs must have captions, but providing captions for only 75 percent of “pre-rule” programming is sufficient. Spanish language programming is currently subject to lesser requirements, but the same rules will kick in for new programs as of January 1, 2010, and for pre-rule programs as of January 1, 2012. For shows in either language, the dividing line between new and pre-rule programming is the date on which the program first aired.

For analog programming the magic date was set at January 1, 1998, i.e.,the effective date of the rules. Because there were then no technical standards for display of closed captioning on DTV receivers at that point, the setting of the critical date for digital programming was delayed until there were. The established date is now July 1, 2002.

As an operational matter, the Commission notes that for those viewers relying on digital-to-analog converter boxes, it will be necessary for stations to continue to broadcast captions in the analog standard following the DTV transition. While the boxes will convert digital programming to analog for viewing, the requirement for the converter boxes is only that they pass through analog caption information in a manner that can be decoded by analog sets.

The Commission also seeks to disabuse stations of the notion that certain of the self-executing exemptions from captioning requirements will come into play because of the change from digital to analog. For example, a station may not claim the “new network” exemption because of a change from analog to digital. It also may not claim the exemption for channels with less than $3 million in revenues the previous year based solely on switching from a primary analog channel to a primary digital channel. For example, if a station’s analog operation on Channel 5 produced the bulk of its revenues in 2008, while its digital operation on companion Channel 45 produced little revenue this year, the station cannot claim exemption for its all-digital operation on Channel 45 for 2009.

Comments sought on $3 million exemption. Speaking of the $3 million revenue exemption, the Commission is examining this rule provision more closely and has sought comment on how it should apply to digital stations. The language of the rule specifies that this revenue-based exemption is for any “channel” that has revenues below $3 million. In the new multicast environment, however, the question arises as to what constitutes a “channel.” Is each multicast programming stream a separate channel, or is a channel the entire 6 MHz television channel that each station is allotted? Obviously, the answer to that question could have a significant impact on how much captioning must be provided on each multicast programming stream. The Commission notes, however, that the impact could be less than might be expected, as many programming suppliers already include captions, and stations will continue to be required to pass through captioning that they receive.  The Commission also asks whether the $3 million threshold continues to be appropriate or whether there should be some sort of sliding scale or perhaps a different (lesser) figure for each multicast stream.

Comments are due and the rule interpretations in the Declaratory Ruling become effective 30 days after publication in the Federal Register. The new information collection and posting requirements become effective 30 days after notice of OMB approval is published in the Federal Register.