NPRM to implement additional mandates of the Twenty-First Century Communications and Video Accessibility Act is on the fast track
As our readers know, in the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress aimed to ensure that folks with disabilities have “better access to video programming”. In the two years since the CVAA was enacted, the Commission has taken multiple steps to comply with that statutory direction.
But one important component of “video programming” remains to be addressed: emergency information during non-news programs. Existing rules already provide that all pertinent emergency information broadcast during regular or special newscasts must include an aural component for visually impaired persons. But what about announcements broadcast outside of newscasts?
We all know that emergencies don’t occur strictly at 6:00 p.m. or 11:00 p.m. (or even at the new trendy 4:00 or 5:00 a.m. hour), conveniently timed for scheduled newscasts. It’s not unusual for broadcasters to interrupt non-news programming to air emergency information short of devastating disaster coverage – such as weather warnings or alerts about dangerous circumstances (flooding, chemical spills, wildfires, etc.). Such information is often displayed on a visual crawl or some similar visual method, without accompanying audio. In such situations, the FCC requires only that the broadcaster include an aural tone that alerts visually impaired viewers so that they can turn on a radio or ask someone else to read the screen for them.
But that might place the visually impaired at a disadvantage by making the emergency information available too late for proper responsive action. In keeping with its CVAA mandate, the FCC has issued a Notice of Proposed Rulemaking (NPRM) looking to expand the existing rules to require that emergency information be provided aurally using the same secondary audio stream that is now used for various purposes. (Those purposes include video description and, sometimes, Spanish or other foreign language soundtracks.) And in a related proposal, the Commission is also inviting comments on how it should implement the statutory requirement to prescribe regulations requiring receiving apparatus to have the capability to decode and make emergency information available.
Use of the secondary audio stream
The possible complications attending the proposed use of the secondary audio stream are somewhat daunting. How many TV stations and MVPDs have an activated secondary audio channel? And should those that do not be treated differently? Do cable and satellite MVPDs have bandwidth constraints that impair their ability to add audio streams; and if not, might a secondary stream carriage requirement impair DBS local-into-local service in small markets? If a station has two audio streams in addition to its primary stream, how will visually impaired viewers know to which stream they should tune, particularly for stations providing both foreign language and video description services and given constraints on naming protocols that affect how TV remote controls access different audio streams?
Those questions involve only the current allocation scheme. What’s going to happen if and when the TV band is repacked? What will be the impact on available bandwidth for TV stations that elect to share channels after the proposed reverse auction and consequent spectrum repacking?
And at the nitty-gritty station level, who’s going to be providing the audio for the emergency information on the secondary audio stream? For stations without sufficient staff, should automated text-to-speech technology be permitted, even if there is an accompanying risk of errors that might distort the information? Should the aural information have to be identical to the video content, or would it be enough to provide only “critical details” about an emergency? If the same audio stream is used for both visual description and emergency information, how can we be sure that video description service will not be unduly interrupted? Is a change needed in the rule that prohibits emergency information from blocking video description or video description from blocking emergency information?
Who exactly should be subject to the new rules? For the time being, the FCC is planning to leave IP-based services alone, given the lack of a uniform technical standard for additional aural carriers. But the CVAA requires that “program owners” comply. The FCC’s rules define video programming provider and video programming distributor, but what is a “program owner”?
The CVAA requires that “apparatus designed to receive or play back video programming transmitted simultaneously with sound” must have certain capabilities to provide information (including particularly emergency information) to the blind and visually impaired.
The statute’s goal may be clear, but it’s a bit lacking in implementational details. When it comes to apparatus for displaying programs, just what types of gear should be included? The statute covers picture screens of any size, no matter how small. The FCC tentatively proposes to include DVD and Blu-Ray players, but only to the extent that they receive, play back, or record TV broadcast or MVPD services. But what about DBS set-top boxes, recording devices, and other devices that may process signals differently from how a TV receiver processes them? Should there be any minimum performance standards? Is there a way to insert the main channel audio on the secondary stream when no emergency information is being provided, so that the secondary stream is not silent, misleading users into thinking that the stream is not working?
Oh, yes – the statute allows the FCC to grant waivers to equipment manufacturers for devices that may be able to receive and play back video programming but are designed primarily for another purpose. One basis for waiver: whether the purposes of the VCAA are “achievable” with the particular apparatus. That’s all well and good, but how is the FCC supposed to figure out what’s “achievable”? The statute provides some general guidance on that issue – considerations include the nature and cost of steps that would be necessary to meet the statutory requirements, the technical and economic impact on the manufacturer, the “type of operations” of the manufacturer and the extent of its product line. But it’s now up to the FCC to develop some more concrete guidelines.
And finally, the FCC asks, if all of the above ideas fall into hopeless confusion or impracticality, is there some other way to achieve compliance with the CVAA? Are there “alternate means” of fulfilling the statutory purpose; and if so, what standards should be applied to requests to use alternate means?
The questions posed in the NPRM are many and complicated, particularly with respect to the logistics of implementation. So it’s something of a surprise that the Commission is allowing only 20 days for comments and half that for reply comments (and note that Christmas Day falls right in the middle of the reply comment period). Comments are currently due December 18, 2012, with Reply Comments due December 28. With such abbreviated commenting opportunities, spanning the Christmas holiday, does the FCC really contemplate no controversy over these proposals?