80 FR 39698 - Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description
FEDERAL COMMUNICATIONS COMMISSION Federal Register Volume 80, Issue 132 (July 10, 2015)
Federal Register Volume 80, Issue 132 (July 10, 2015)
| Page Range | 39698-39715 | |
| FR Document | 2015-16324 |
[Federal Register Volume 80, Number 132 (Friday, July 10, 2015)] [Rules and Regulations] [Pages 39698-39715] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-16324] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 79 [MB Docket No. 12-107; FCC 15-56] Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In this document, the Commission adopts additional rules under the authority of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) to make emergency information in video programming accessible to individuals who are blind or visually impaired. First, the document requires multichannel video programming distributors to pass through a secondary audio stream containing audible emergency information when they permit consumers to access linear programming on second screen devices, such as tablets, smartphones, laptops, and similar devices. Second, the document requires manufacturers of apparatus that receive or play back video programming to provide a mechanism that is simple and easy to use for activating the secondary audio stream to access audible emergency information. DATES: Effective August 10, 2015. FOR FURTHER INFORMATION CONTACT: Evan Baranoff, [email protected], of the Media Bureau, Policy Division, (202) 418-2120. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second Report and Order (Order), FCC 15-56, adopted on May 21, 2015, and released on May 28, 2015. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) Web site at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) Web site at http://fjallfoss.fcc.gov/ecfs2/. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). I. Introduction 1. In this Second Report and Order, we take additional steps under the authority of sections 202 and 203 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (``CVAA'') \1\ to make emergency information in video programming accessible to individuals who are blind or visually impaired. The Commission adopted rules in 2013 to require that visual emergency information shown during non-newscast television programming, such as in an on-screen crawl, is also available to individuals who are blind or visually impaired through an aural presentation on a secondary audio stream.\2\ In adopting these rules pursuant to sections 202 and 203 of the CVAA, the Commission recognized the importance of making sure that individuals who are blind or visually impaired are able to hear critical information about emergencies affecting their locality, which can enable them promptly to respond to such emergency situations and to protect their lives and property. --------------------------------------------------------------------------- \1\ Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010); Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) (making technical corrections to the CVAA). \2\ See Accessible Emergency Information; Apparatus Requirements for Emergency Information and Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket Nos. 12-107, 11-43, Report and Order, FCC 13-45, 78 FR 31770 (2013) (``First Report and Order''). A secondary audio stream is an audio channel, other than the main program audio channel, that is typically used for foreign language audio and video description. --------------------------------------------------------------------------- 2. First, this Second Report and Order concludes that multichannel video programming distributors (``MVPDs'') [[Page 39699]] must pass through a secondary audio stream containing audible emergency information in accordance with section 79.2 of the Commission's rules \3\ when they permit consumers to access linear programming \4\ on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services. Increasingly, Americans are utilizing a wide range of devices in addition to the television to view video programming,\5\ and a number of MVPDs now allow customers to view linear programming on ``second screen'' devices using applications or other technologies.\6\ Our rule ensures that individuals who are blind or visually impaired will be provided with accessible emergency information when they are watching linear programming over the MVPD's network as part of their MVPD services, regardless of whether they are viewing the programming on their television or on their tablet, smartphone, or similar device. --------------------------------------------------------------------------- \3\ 47 CFR 79.2. \4\ The term ``linear programming'' is generally understood to refer to video programming that is prescheduled by the video programming provider. See Promoting Innovation and Competition in the Provision of Multichannel Video Programming Distribution Services, MB Docket No. 14-261, Notice of Proposed Rulemaking, FCC 14-210, 80 FR 2078 (2014) (``MVPD Definition NPRM'') (using the term ``linear programming'' ``consistent with prior Commission use''); Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 14-16, Notice of Inquiry, FCC 14-8, 79 FR 8452 (2014) (``A linear channel is one that distributes programming at a scheduled time. Non-linear programming, such as video-on-demand (`VOD') and online video content, is available at a time of the viewer's choosing.'')). \5\ See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 14-16, Sixteenth Report, FCC 15-41, para. 336 (rel. Apr. 2, 2015) (``16th Video Competition Report'') (``IP video distribution opportunities for MVPDs and [online video distributors] continu`e to expand through portable media devices.''). \6\ For example, Cablevision, Charter, Comcast, Cox, and Time Warner Cable currently offer applications that allow their subscribers to view linear programming on mobile and other devices. --------------------------------------------------------------------------- 3. Second, this Second Report and Order requires manufacturers of apparatus subject to section 79.105 of the Commission's rules \7\ to provide a mechanism that is simple and easy to use for activating the secondary audio stream to access audible emergency information. Individuals who are blind or visually impaired should not have to navigate through multiple levels of menus or take other time-consuming actions to activate the secondary audio stream when they hear the aural tone signaling that emergency information is being provided visually on the screen. In emergency situations, every second counts. Thus, we believe that in order for emergency information to be made fully accessible to individuals who are blind or visually impaired in accordance with section 203 of the CVAA, manufacturers of covered apparatus must ensure that such individuals have a simple, easy to use mechanism to activate the secondary audio stream in order to hear emergency information. --------------------------------------------------------------------------- \7\ 47 CFR 79.105. --------------------------------------------------------------------------- 4. In the Second Further Notice of Proposed Rulemaking (``Second Further Notice'') accompanying the Second Report and Order (and published in this issue of the Federal Register), we seek comment on three issues: (i) Whether we should adopt rules regarding how covered entities should prioritize emergency information conveyed aurally on the secondary audio stream when more than one source of visual emergency information is presented on-screen at the same time; (ii) whether we should reconsider the Commission's requirement for ``school closings and changes in school bus schedules'' resulting from emergency situations to be conveyed aurally on the secondary audio stream, considering the length of such information and the limits of the secondary audio stream; and (iii) whether we should require MVPDs to ensure that the navigation devices that they provide to subscribers include a simple and easy to use activation mechanism for accessing audible emergency information on the secondary audio stream, and to provide a simple and easy to use mechanism to activate the secondary audio stream for emergency information when they permit subscribers to view linear programming on mobile and other devices as part of their MVPD services. II. Background 5. The CVAA was enacted on October 8, 2010 with the purpose of ensuring that individuals with disabilities are able to fully utilize modern communications services and equipment and to better access video programming.\8\ Sections 202 and 203 of the CVAA address, in part, the accessibility of emergency information for individuals who are blind or visually impaired.\9\ Specifically, section 202 of the CVAA directs the Commission to (i) ``identify methods to convey emergency information (as that term is defined in section 79.2 of title 47, Code of Federal Regulations \10\) in a manner accessible to individuals who are blind or visually impaired,'' \11\ and (ii) ``promulgate regulations that require video programming providers and video programming distributors (as those terms are defined in section 79.1 of title 47, Code of Federal Regulations \12\) and program owners to convey such emergency information in a manner accessible to individuals who are blind or visually impaired.'' \13\ Section 203 of [[Page 39700]] the CVAA directs the Commission to prescribe rules requiring certain apparatus on which consumers receive or play back video programming, such as televisions, set-top boxes, DVD and Blu-ray players, to have the capability to decode and make available emergency information and video description services in a manner accessible to individuals who are blind or visually impaired, and requiring certain apparatus designed to record video programming to enable the rendering or pass through of emergency information and video description.\14\ --------------------------------------------------------------------------- \8\ See H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010); S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010). \9\ Pursuant to Section 201 of the CVAA, the Chairman of the Commission established an advisory committee known as the Video Programming Accessibility Advisory Committee (``VPAAC''), comprised of representatives from industry and consumer groups, which submitted its statutorily mandated report addressing accessible emergency information to the Commission on April 9, 2012. See Second Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010, available at http://vpaac.wikispaces.com; Public Law 111- 260, sec. 201(e)(2) (``VPAAC Second Report: Access to Emergency Information''). The portion of the report that addresses emergency information is available at http://vpaac.wikispaces.com/file/view/120409+VPAAC+Access+to+Emergency+Information+REPORT+AS+SUBMITTED+4-9-2012.pdf. See also Media Bureau and Consumer and Governmental Affairs Bureau Seek Comment on Second VPAAC Report: Video Description and Access to Emergency Information, MB Docket No. 12- 107, Public Notice, DA 12-636 (MB rel. Apr. 24, 2012). \10\ ``Emergency information'' is defined in section 79.2 of the Commission's rules as ``[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency. Examples of the types of emergencies covered include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.'' 47 CFR 79.2(a)(2). As in the First Report and Order, we note that the emergency information covered by this proceeding does not include emergency alerts delivered through the Emergency Alert System (EAS), the accessibility requirements for which are contained in Part 11 of the Commission's rules. See 47 CFR 11.1 et seq.; First Report and Order, para. 9. However, to the extent a broadcaster or other covered entity uses the information provided through EAS or any other source (e.g., the National Weather Service) to generate its own crawl conveying emergency information as defined in section 79.2(a)(2) outside the context of an EAS activation, it must comply with the requirements of section 79.2. See First Report and Order, para. 9. \11\ 47 U.S.C. 613(g)(1). \12\ Section 79.1 defines a ``video programming provider'' as ``[a]ny video programming distributor and any other entity that provides video programming that is intended for distribution to residential households including, but not limited to broadcast or nonbroadcast television network and the owners of such programming.'' 47 CFR 79.1(a)(12). Section 79.1 defines a ``video programming distributor'' as ``[a]ny television broadcast station licensed by the Commission and any multichannel video programming distributor as defined in Sec. 76.1000(e) of this chapter, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.'' Id. 79.1(a)(11). \13\ 47 U.S.C. 613(g)(2). \14\ Id. 303(u)(1), 303(z)(1). --------------------------------------------------------------------------- 6. The Commission adopted the First Report and Order on April 9, 2013.\15\ The record compiled in the proceeding reflected consensus among industry and consumer groups supporting use of a secondary audio stream to provide emergency information in a manner accessible to individuals who are blind or visually impaired, which was recommended by the VPAAC.\16\ Thus, to implement the emergency information requirements in Section 202, the First Report and Order adopted rules requiring that video programming providers (including program owners) and video programming distributors use a secondary audio stream to convey televised emergency information aurally, when such information is conveyed visually during programming other than newscasts.\17\ Pursuant to section 203, the First Report and Order also adopted rules applicable to manufacturers that require apparatus designed to receive, play back, or record video programming transmitted simultaneously with sound to make available the secondary audio stream.\18\ --------------------------------------------------------------------------- \15\ See generally First Report and Order. \16\ See First Report and Order, para. 13; VPAAC Second Report: Access to Emergency Information at 7, 10-11. \17\ See First Report and Order, para. 12; 47 CFR 79.2(b)(2)(ii). The Commission did not revise the existing requirement applicable to emergency information provided visually during newscasts, explaining that the rule already requires such information to be made accessible to individuals who are blind or visually impaired through aural presentation in the main program audio. First Report and Order, para. 10. See 47 CFR 79.2(b)(2)(i). \18\ See First Report and Order, paras. 49, 52; 47 CFR 79.105 through 79.106. --------------------------------------------------------------------------- 7. In the Further Notice of Proposed Rulemaking (``Further Notice'') that accompanied the First Report and Order, the Commission sought comment on whether MVPDs are covered by the emergency information rules when they permit their subscribers to access linear programming via mobile or other devices.\19\ In a separate Further Notice of Proposed Rulemaking issued in conjunction with the Commission's User Interfaces Order \20\ (``User Interfaces Further Notice''), also under MB Docket No. 12-107, the Commission sought comment on whether to require manufacturers of apparatus covered by section 203 of the CVAA to provide access to the secondary audio stream used for audible emergency information by a simple and straightforward mechanism, such as a mechanism reasonably comparable to a button, key, or icon.\21\ In particular, the Commission sought comment on whether section 303(u)(1)(C) of the Communications Act of 1934, as amended (the ``Act''), as added by section 203 of the CVAA, which requires that covered apparatus have the capability to make available emergency information in a manner that is accessible to individuals who are blind or visually impaired, gives the Commission authority to adopt such a requirement.\22\ Consumer and academic commenters, including the American Foundation for the Blind (``AFB''), the American Council of the Blind (``ACB''), and the Rehabilitation Engineering Research Center for Wireless Technologies (``Wireless RERC''), support such a requirement, while industry commenters oppose it. --------------------------------------------------------------------------- \19\ See Accessible Emergency Information; Apparatus Requirements for Emergency Information and Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket Nos. 12-107, 11-43, Further Notice of Proposed Rulemaking, FCC 13-45, 78 FR 31800 (2013) (``Further Notice'') (accompanying First Report and Order). The Commission also sought comment on the following issues in the Further Notice: (i) Whether MVPDs must pass through video description on the secondary audio stream when they permit their subscribers to access linear programming via mobile or other devices; (ii) whether the Commission should mandate that the secondary audio stream include a particular tag (e.g., a ``visually impaired'' (``VI'') tag); and (iii) whether the Commission should require covered entities to provide customer support services that are specifically designed to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams. See id. The Commission is continuing to consider these issues. \20\ See Accessibility of User Interfaces, and Video Programming Guides and Menus; Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket Nos. 12-108, 12-107, Report and Order, FCC 13-138, 78 FR 77210 (2013) (``User Interfaces Order''); Accessibility of User Interfaces, and Video Programming Guides and Menus; Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket Nos. 12-108, 12-107, Further Notice of Proposed Rulemaking, FCC 13-138, 78 FR 77074 (2013) (``User Interfaces Further Notice''). \21\ See User Interfaces Further Notice, para. 9. \22\ See id.; 47 U.S.C. 303(u)(1)(C); Public Law 111-260, sec. 203. --------------------------------------------------------------------------- 8. To further implement sections 202 and 203 of the CVAA, we adopt the rules discussed below. Consistent with the intent of the CVAA, we must ensure that individuals with disabilities are not left behind as new technologies and platforms for viewing video programming are developed, and we are mindful of this as we revise our rules promoting the accessibility of emergency information. III. Discussion A. Accessible Emergency Information Requirements for Linear Programming on Mobile and Other Devices 9. Given the increasing number of ways in which consumers are accessing linear video programming from MVPDs, we believe that it is important to further define MVPD responsibilities with regard to the secondary audio stream for emergency information on mobile and other devices. Specifically, we conclude that MVPDs must pass through a secondary audio stream containing audible emergency information when they permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices \23\ over the MVPD's network as part of their MVPD services.\24\ For our purposes here, linear video programming is accessed ``over the MVPD's network'' \25\ if it can only be received via a connection provided by the MVPD \26\ using an MVPD- provided application or plug-in.\27\ --------------------------------------------------------------------------- \23\ In addition to tablets, smartphones, and laptops, the phrase ``similar devices'' includes other devices on which subscribers can view MVPD-provided linear programming over the MVPD's network, such as personal computers, game consoles, and Roku devices. \24\ At this time, this does not include over-the-top (``OTT'') services, which are at issue in a separate proceeding that considers whether to interpret the term MVPD to include ``services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming.'' MVPD Definition NPRM, para. 1. As in the MVPD Definition NPRM, we use the term OTT to refer to linear video services that travel over the Internet and that MVPDs do not treat as managed video services on any MVPD system. \25\ This definition applies when we use the phrase ``over the MVPD's network'' throughout the item. \26\ Video is ``received via a connection provided by the MVPD'' if it is received either via an MVPD's broadband connection or if it is video that comes over a coaxial or satellite connection that is converted to IP in the home gateway. \27\ This is distinguishable from video programming provided over the Internet, which can be accessed by an MVPD subscriber when using either an MVPD-provided connection, or a third-party Internet service provider or broadband connection. For example, a customer that uses a tablet connected to a bookstore's Wi-Fi to access video programming would not be accessing the programming ``over the MVPD's network.'' --------------------------------------------------------------------------- 1. Legal and Policy Analysis 10. In the Further Notice, we inquired whether an MVPD is acting as a ``video programming distributor'' that provides [[Page 39701]] ``video programming'' covered by the emergency information rules adopted in the First Report and Order when it permits its subscribers to access linear programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices.\28\ We also sought comment on whether, under this approach, an MVPD should be required to ensure that any application or plug-in that it provides to the consumer to access such programming is capable of making emergency information audible on a secondary audio stream. --------------------------------------------------------------------------- \28\ Further Notice, para. 2. --------------------------------------------------------------------------- 11. We conclude that the accessible emergency information requirements adopted in the First Report and Order should apply to linear video programming distributed by MVPDs to their subscribers over the MVPD's network, regardless of the device on which such programming is viewed. In the First Report and Order, the Commission determined that the accessible emergency information requirements adopted therein apply to video programming subject to section 79.2 that is provided by a covered entity, i.e., video programming provided by television broadcast stations licensed by the Commission, MVPDs, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.\29\ As the National Cable & Telecommunications Association (``NCTA'') observes, MVPDs are expressly included within the regulatory definition of a ``video programming distributor.'' \30\ Further, linear programming distributed by an MVPD to a subscriber over the MVPD's network is ``video programming'' subject to section 79.2 of the rules. In other words, it is ``[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station that is distributed and exhibited for residential use.'' \31\ Accordingly, MVPDs must comply with the accessible emergency information requirements when they permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services.\32\ Further, section 202 of the CVAA gives the Commission discretion in how it implements the requirement that video programming distributors, including MVPDs, ``convey [ ] emergency information in a manner accessible to individuals who are blind or visually impaired.'' \33\ Thus, applying the emergency information rules when MVPDs permit subscribers to access linear programming on mobile and other devices over the MVPD's network adheres to the statutory directive to ensure that emergency information is conveyed in an accessible manner to individuals with visual disabilities. --------------------------------------------------------------------------- \29\ First Report and Order, para. 7; 47 CFR 79.1(a)(10) through (11). \30\ See Comments of the National Cable & Telecommunications Association, MB Docket Nos. 12-107, 11-43, at 3 (``NCTA Comments''); 47 CFR 79.1(a)(11). See also First Report and Order, para. 33. \31\ See NCTA Comments at 3; 47 CFR 79.1(a)(10). \32\ Given that we apply the rules only when MVPDs permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services, and not to OTT services at this time, we need not address the issues raised by industry commenters with regard to whether the Commission has authority under the CVAA to extend the accessible emergency information requirements in Section 79.2 to all linear programming delivered over the Internet or via Internet protocol (``IP''). See Comments of AT&T Services, Inc., MB Docket Nos. 12-107, 11-43, at 3 (``AT&T Comments''); Comments of DIRECTV, LLC, MB Docket Nos. 12-107, 11-43, at 5-6 (``DIRECTV Comments''); Comments of the Consumer Electronics Association, MB Docket Nos. 12- 107, 11-43, at 6 (``CEA Comments''); Comments of the Telecommunications Industry Association, MB Docket Nos. 12-107, 11- 43, at 3-4 (``TIA Comments''); Reply Comments of the Entertainment Software Association, MB Docket Nos. 12-107, 11-43, at 3 (``ESA Reply''); Reply Comments of the Information Technology Industry Council, MB Docket Nos. 12-107, 11-43, at 3-4 (``ITIC Reply''). See also Reply Comments of the National Association of Broadcasters, MB Docket Nos. 12-107, 11-43, at 2 (``NAB Reply''). \33\ 47 U.S.C. 613(g)(2). --------------------------------------------------------------------------- 12. NCTA, AT&T Services, Inc. (``AT&T''), and the Wireless RERC argue that MVPDs should be covered by the emergency information rules in section 79.2 when they provide linear programming that contains emergency information for viewing on mobile and other devices within the home. NCTA contends that ``a cable operator delivering linear broadcast stations containing emergency information (or any other linear video programming service that might provide an aural version of emergency information covered by the rules) within a subscriber's home would be a `video programming distributor' for . . . purposes [of the rules], even if the linear service is received through use of an operator-supplied app on a device owned by a consumer.'' \34\ According to NCTA, ``cable operators would not object to applying the emergency information rules in these circumstances.'' \35\ Likewise, AT&T states that ``when an MVPD is allowing its subscribers to access video programming that is distributed to the home via the MVPD's network, the MVPD is subject to the Commission's emergency information rules, regardless of the devices that are accessing the video programming.'' \36\ The Wireless RERC agrees with AT&T's position.\37\ --------------------------------------------------------------------------- \34\ NCTA Comments at 3. \35\ Id. \36\ AT&T Comments at 3. \37\ Reply Comments of the Rehabilitation Engineering Research Center for Wireless Technologies, MB Docket Nos. 12-107, 11-43, at 5 (``Wireless RERC Reply''). --------------------------------------------------------------------------- 13. We believe that requiring MVPDs to pass through a secondary audio stream with audible emergency information in these circumstances will further the goals of the CVAA by helping to ensure that emergency information is made accessible to individuals who are blind or visually impaired when they watch linear video programming provided by their MVPD over the MVPD's network, regardless of the device on which they are viewing the programming. The number of ways in which consumers are able to access linear programming from their MVPDs is growing. As NCTA points out, ``[c]able operators, as part of their existing services, increasingly are providing applications (`apps') or other technologies that enable their subscribers to view linear programming within the home over the cable operator's network.'' \38\ Consumer advocates emphasize the importance of making sure that the emergency information rules keep pace with such trends and urge the Commission to apply the emergency information rules [[Page 39702]] to mobile and other devices.\39\ In addition, the Wireless RERC explains that individuals who are blind or visually impaired may not draw a distinction between regular television broadcasts and linear programming on mobile and other devices offered as part of an MVPD's services and, therefore, they argue that the emergency information rules should apply equally to the latter.\40\ We concur. Consumers who choose to watch linear programming offered by an MVPD on a mobile device over the MVPD's network should not be deprived of timely and potentially life-saving accessible emergency information that they otherwise would have received had they watched the same programming on a television. --------------------------------------------------------------------------- \38\ See NCTA Comments at 2; Wireless RERC Reply at 4; Letter from Diane B. Burstein, Vice President and Deputy General Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, at 1 (Apr. 4, 2014) (``NCTA Apr. 4, 2014 Ex Parte Letter''). See also Further Notice, n.6 (stating that Cablevision currently permits consumers to access its entire package of video programming, including broadcast channels that contain emergency information, through its Optimum app for the iPad and other devices); Charter Communications, Press Release, Charter Announces Launch of Charter TV App (Apr. 8, 2014) (announcing the Charter TV App available for free download on various platforms, through which ``Charter TV customers can now watch over 130 live TV Channels anywhere inside their home on their mobile devices such as tablets or smartphones''); Comcast, Xfinity TV Apps, available at http://xfinitytv.comcast.net/apps (``Turn any device into a personal TV screen anywhere in your home. Stream any channel live, watch XFINITY On DemandTM and access your DVR shows on your tablet, smartphone or computer.''); Cox, About the Contour App, available at http://www.cox.com/residential/support/tv/article.cox?articleId=ee838930-c7d7-11e2-caa8-000000000000 (``With the Contour App, you can [w]atch over 130 live channels and thousands of On Demand programs while in the home.''); Time Warner Cable, TWC TV App, available at http://www.timewarnercable.com/en/tv/features/twc-tv.html (``Watch up to 300 live TV channels on up to five of your favorite devices simultaneously in your home with the TWC TV app''). \39\ See Wireless RERC Reply at 3-4; Comments of Jose Cruz, MB Docket Nos. 12-107, 11-43, at 2 (arguing that ``[t]he blind/visually impaired should be able to access emergency broadcasts from their MVPD . . . through mobile and/or other electronic devices,'' which ``may affect their well-being or the well-being of their families''); Comments of Jeanette M. Schmoyer, MB Docket Nos. 12- 107, 11-43, at 1 (arguing that the accessible emergency information requirements should apply to television programming delivered over tablets, laptops, smartphones, and similar devices, and stating that ``[a]t the rate technology changes, PC's are already decreasing in sales in favor of laptops and tablets'' and ``[i]nformation provided as a visual element needs to be provided in an audio element no matter what the device''). \40\ See Wireless RERC Reply at 4. --------------------------------------------------------------------------- 14. Although we inquired in the Further Notice as to whether the emergency information rules should apply to an MVPD's linear programming accessed outside the home, we find it more appropriate to apply the rules when MVPDs permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services. In the Further Notice, we noted that some MVPDs currently enable subscribers to access linear programming inside the home as well as outside the home (i.e., TV Everywhere \41\), and we sought comment on whether our emergency information rules should apply in both situations, irrespective of where the subscriber is physically located when accessing the programming.\42\ Instead of applying our rules based on where the consumer is located when viewing the programming, we look instead to whether the programming is provided over the MVPD's network, as opposed to over the Internet, given that Internet-based video services are currently at issue in a separate proceeding. NCTA argues that the rules should apply only within an MVPD subscriber's home, and not outside of the home, ``both because of the limited scope of the statutory and regulatory definitions, and because of the nature of emergency information.'' \43\ We conclude that focusing on whether the services are provided over the MVPD's network more clearly delineates the services subject to the rule and avoids confusion as to whether the rule applies with respect to OTT services that consumers may be able to access in their homes.\44\ Further, to the extent NCTA's ``in the home'' construction is intended to ensure that the emergency information rules do not apply to video programming accessed over the Internet, our approach to cover linear programming accessed over the MVPD's network as part of an MVPD's services accomplishes this objective. Our emergency information rules do not apply, at this time, to an MVPD's linear programming that is accessed via the Internet, such as TV Everywhere offerings. --------------------------------------------------------------------------- \41\ See 16th Video Competition Report, para. 3 (``These services, referred to as `TV Everywhere,' allow MVPD subscribers to access both linear and video-on-demand (`VOD') programming on a variety of in-home and mobile Internet-connected devices.''); id. at n.22 (``TV Everywhere is an authentication system whereby certain movies and television shows are accessible online via a variety of display devices including personal computer, mobile, and television--but only if you can prove (or `authenticate') that you have a subscription to an MVPD.''); id. para. 85 (``Most of the video programming offered on TV Everywhere is available only to MVPD subscribers. Access to TV Everywhere video programming is restricted through the use of an authentication process that requires a subscriber to select their MVPD service provider and then provide a user ID and password.'') (citation omitted). \42\ Further Notice, para. 2. \43\ NCTA Comments at 3, n.11. See also AT&T Comments at 1; CEA Comments at 4 (``The Commission consistently has applied Section[ ] 79.2 only in the context of traditional broadcast television and MVPD services, which are classic examples of services for residential reception that deliver such programming directly to the home.'') (citation omitted); TIA Comments at 4 (``The Commission's video description and emergency information requirements are appropriately limited to the MVPD's traditional programming offered within the home, and that qualifies as linear video programming under Part 79.1 of the Commission's rules.''); ESA Reply at 3 (``The CVAA imposes emergency information requirements not on the full range of video programming, but only on that programming intended for in[hyphen]home reception.''). \44\ Moreover, we disagree with NCTA's argument that emergency information is irrelevant to a subscriber outside of his or her home. See NCTA Comments at 3, n.11. --------------------------------------------------------------------------- 15. As mentioned above, we do not apply these rules to over-the-top services provided by MVPDs at this time. In December 2014, we adopted a Notice of Proposed Rulemaking proposing to include within the definition of MVPD certain Internet-based video services.\45\ Specifically, we proposed ``to modernize our interpretation of the term `multichannel video programming distributor' (`MVPD') by including within its scope services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming.'' \46\ In that NPRM, we specifically sought comment on the application of our rules pertaining to accessibility of emergency information by persons with disabilities to Internet-based distributors of video programming that qualify as MVPDs under the proposed definition.\47\ We conclude, therefore, that application of the emergency information rules to such services is better addressed in that proceeding. --------------------------------------------------------------------------- \45\ See MVPD Definition NPRM, para. 1. \46\ Id. \47\ Id. at para. 56. --------------------------------------------------------------------------- 2. MVPD Obligations 16. We conclude that MVPDs must ensure that any application or plug-in that they provide to consumers to access linear programming over the MVPD's network on mobile and other devices is capable of passing through the aural representation of emergency information (including the accompanying aural tone) on a secondary audio stream. In so concluding, we do not change the underlying obligations applicable to video programming distributors and video programming providers as set forth in the First Report and Order. In the First Report and Order, the Commission concluded that the video programming distributor or video programming provider that creates visual emergency information content and adds it to the programming stream is responsible for providing an aural representation of the information on a secondary audio stream, accompanied by an aural tone.\48\ The Commission also found that video programming distributors are responsible for ensuring that the aural representation of the emergency information and the accompanying aural tone get passed through to consumers.\49\ NCTA asserts that ``the Further Notice appears to contemplate an additional requirement that operators `mak[e] the emergency information audible on a secondary audio stream' on devices that they do not control,'' which, they argue, goes [[Page 39703]] beyond the requirement to ensure that aural emergency information gets passed through to consumers.\50\ We agree that, consistent with the responsibilities set forth in the current rule, to the extent MVPDs do not originate visual emergency information that is added to the programming stream, they are not responsible for providing an aural representation of the information on a secondary audio stream.\51\ MVPDs are responsible for ensuring that the aural representation of emergency information on the secondary audio stream gets passed through to consumers, and we find that this obligation applies if the MVPD permits the consumer to view linear programming on mobile and other devices over the MVPD's network as part of its MVPD services. --------------------------------------------------------------------------- \48\ First Report and Order, para. 36; 47 CFR 79.2(b)(2)(ii). In addition, both video programming distributors and video programming providers are responsible for ensuring that aural emergency information supersedes all other programming on the secondary audio stream, with each entity responsible only for its own actions or omissions in this regard. First Report and Order, para. 36; 47 CFR 79.2(b)(5). \49\ First Report and Order, para. 36; 47 CFR 79.2(b)(2)(ii). \50\ NCTA Comments at 3-4 (citation omitted). \51\ Although NCTA argues that ``[c]able operators do not originate the type of `emergency information' addressed by the Commission's new rule,'' but ``simply pass along the aural emergency information contained in a secondary audio stream that is created by the originator of that information,'' NCTA Comments at 4, we reiterate our position ``that to the extent an MVPD does create a crawl or other visual graphic conveying local emergency information as defined in Section 79.2 and embeds it in non-newscast programming, it should also be responsible for making the visual emergency information aurally accessible.'' First Report and Order, n.38. --------------------------------------------------------------------------- 3. Apparatus Manufacturer Obligations 17. We also sought comment in the Further Notice as to whether apparatus manufacturers covered by section 203 of the CVAA should be required to ensure that tablets, laptops, personal computers, smartphones, and similar devices are capable of receiving the secondary audio stream.\52\ As part of this inquiry, we asked whether apparatus manufacturers should be solely responsible for making emergency information accessible on these types of devices, or whether both the MVPD and the manufacturer have a role in facilitating the provision of the secondary audio stream on such devices.\53\ Consumer electronics industry commenters argue that manufacturers should not be subject to compliance obligations because apparatus have no control over the audio functionality of MVPD applications and technologies used to distribute linear programming on mobile and other devices.\54\ For example, CTIA- The Wireless Association (``CTIA'') explains that mobile device manufacturers have no control over the development or installation of MVPD applications, and once an MVPD application is installed on a mobile device, the application controls the audio capabilities, i.e., whether there are multiple audio streams and which audio stream is heard by the user.\55\ According to CTIA, ``the mobile device simply supports the general audio functionality of the device, so that it will play whatever audio stream the app itself provides.'' \56\ Likewise, CEA contends that if an MVPD application is capable of delivering and switching between more than one audio stream for linear programming, the device generally will play the audio stream delivered by the application.\57\ --------------------------------------------------------------------------- \52\ Further Notice, para. 3. \53\ Id. \54\ See Comments of CTIA-The Wireless Association, MB Docket Nos. 12-107, 11-43, at 2, 5-6 (``CTIA Comments''); CEA Comments at 10-11; TIA Comments at 4-5; ITIC Reply at 5; Letter from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 28, 2014) (``CEA Mar. 28, 2014 Ex Parte Letter''). See also Wireless RERC Reply at 5 (agreeing with TIA and CTIA that the responsibility for accessible emergency information on mobile and other devices lies with MVPDs because they are providing the video programming via an application or Web site, and ``thus the mobile device in this case is serving as a conduit''). \55\ CTIA Comments at 5. \56\ Id. \57\ CEA Mar. 28, 2014 Ex Parte Letter at 1-2. --------------------------------------------------------------------------- 18. Based on the record, we do not impose compliance obligations on the manufacturers of apparatus covered by section 203 of the CVAA with regard to ensuring that any application or plug-in that MVPDs provide to consumers to access linear programming on mobile and other devices is capable of passing through audible emergency information on a secondary audio stream. The record demonstrates that such entities typically do not control either the applications or technologies in question or the ability of consumers to select and receive the secondary audio stream for MVPD-provided linear programming on mobile and other devices. We believe that the responsibility for passing through the aural representation of emergency information in the secondary audio stream properly lies with MVPDs. However, to the extent MVPD applications or other technologies have been designed and developed to work on a specific type of device or platform, we expect that users will be able to hear the secondary audio stream in an MVPD application through the native audio functionality of the device, as professed by industry commenters. We may impose obligations on manufacturers in the future if we find that the apparatus itself does not make a secondary audio stream with audible emergency information from an MVPD application available to the apparatus user or otherwise impedes the ability of a user to hear the secondary audio stream.\58\ --------------------------------------------------------------------------- \58\ See ESA Reply at 4 (``If . . . the Commission were to impose emergency information requirements on IP-delivered linear video programming within the home, any responsibility on devices should be limited to a `do not block' or `do no harm' requirement.''). See also Wireless RERC Reply at 5 (``[I]f mobile device manufacture[r]s at any point incorporate the ability to tune into linear programming via a chip or other built-in modification (via software, hardware or firmware) or an app that is `integrated into a mobile device by the manufacturer,' then the device manufacturer should be responsible for ensuring the provision of accessible emergency information.'') (citation omitted). --------------------------------------------------------------------------- 4. Compliance Deadline 19. We adopt a compliance deadline of two years after publication of the Second Report and Order in the Federal Register. NCTA requests that the Commission provide MVPDs at least two years after adoption of new requirements to come into compliance because of the technical challenges involved.\59\ NCTA explains that passing through a secondary audio stream to mobile and other devices in the home is ``a different, more complex, and more costly matter'' than passing a secondary audio stream through to a television set.\60\ According to NCTA, ``cable operators generally just pass through the primary audio stream to operator-provided apps,'' and thus, ``operators would have to acquire additional equipment and encoding to support the pass through of an additional audio stream in IP,'' and ``operators may need to provide audio enhancements to many different apps created to serve a multiplicity of devices in the home.'' \61\ Given these challenges, NCTA asks for sufficient time to allow operators to support the capability for a secondary audio stream on these devices going forward.\62\ DIRECTV states that developing the technological ecosystem to support a secondary audio stream for emergency information in the IP context ``would be a massive undertaking'' because linear programming delivered via IP does not currently include this capability, the equipment used to view such programming does not currently support it, and adding additional data to [[Page 39704]] the video stream would further congest strained broadband capabilities.\63\ --------------------------------------------------------------------------- \59\ NCTA Comments at 5. See also CEA Comments at 9 (arguing that a two-year period would be consistent with deadlines the Commission has adopted in other CVAA proceedings); ESA Reply at 4 (suggesting that ``any deadline should be subject to industry development of appropriate technical standards, with a subsequent phase-in period of at least two years after adoption of such standard to address any complicated handoffs of other technical and business challenges''). \60\ NCTA Comments at 4-5. \61\ Id. at 5. See also NCTA Apr. 4, 2014 Ex Parte Letter at 1- 2. \62\ NCTA Apr. 4, 2014 Ex Parte Letter at 2. \63\ DIRECTV Comments at 7. See also NAB Reply at 3. --------------------------------------------------------------------------- 20. Although we acknowledge that today MVPDs typically pass through a single audio stream in the IP context,\64\ the record also demonstrates that at least some MVPDs are already able to use a secondary audio stream to deliver emergency information when they provide linear programming on mobile and other devices. Notably, Comcast has made investments in infrastructure to enable the secondary audio stream when it offers its cable services through its Xfinity applications, and, currently, ``Comcast customers can access the secondary audio stream via the Xfinity user interface on a number of third-party devices.'' \65\ Further, Cablevision customers currently can access the secondary audio stream when using Cablevision's Optimum application on a laptop or personal computer, though not when using this application on other mobile devices.\66\ Cablevision has already initiated efforts to transmit the secondary audio stream over the Optimum application on mobile and other devices, and explains that the process of implementing this functionality involves further development of the application, software upgrades, and testing.\67\ --------------------------------------------------------------------------- \64\ NCTA Apr. 4, 2014 Ex Parte Letter at 1. \65\ See Letter from James R. Coltharp, Chief Policy Advisor, FCC & Regulatory Policy, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, at 1 (May 23, 2014). \66\ See Letter from Tara M. Corvo, Counsel for Cablevision Systems Corp., to Marlene H. Dortch, Secretary, FCC, at 1 (June 26, 2014). \67\ Id. In addition, we note that Netflix has begun to include alternative audio tracks for their programming on Netflix-supported devices. See Todd Spangler, Netflix Adding Audio Description Tracks for Visually Impaired, Starting with `Marvel's Daredevil,' Variety (Apr. 14, 2015), available at http://variety.com/2015/digital/news/netflix-adding-audio-description-tracks-for-visually-impaired-starting-with-marvels-daredevil-1201472372/# (noting that ``the company is working with studios and other content owners to increase the amount of audio description across a range of devices including smart TVs, tablets and smartphones''). --------------------------------------------------------------------------- 21. Based on our review of the record, we conclude that a compliance deadline of two years after publication of the Second Report and Order in the Federal Register is reasonable, though we encourage covered MVPDs to offer this functionality as soon as it is technically feasible for them to do so. The record shows that MVPDs may need to take a number of steps to achieve compliance, such as acquiring additional equipment to support the pass through of the secondary audio stream for IP and developing or modifying applications to support this type of audio functionality for a number of devices. We believe that a two-year period will provide sufficient time for MVPDs to achieve these steps, along with the requisite testing and implementation, and is consistent with other timeframes adopted by the Commission for CVAA- related compliance.\68\ --------------------------------------------------------------------------- \68\ See First Report and Order, para. 37. --------------------------------------------------------------------------- B. Activation Mechanism for Audible Emergency Information on the Secondary Audio Stream 22. We require manufacturers of apparatus subject to section 79.105 of the Commission's rules \69\ to provide a mechanism that is simple and easy to use, such as one that is reasonably comparable to a button, key, or icon, for activating the secondary audio stream for audible emergency information. We conclude that such a requirement is necessary to ensure that covered apparatus are capable of making available emergency information in a manner that is accessible to individuals who are blind or visually impaired, as mandated by section 203 of the CVAA.\70\ --------------------------------------------------------------------------- \69\ 47 CFR 79.105. Covered apparatus include apparatus that are designed to receive or play back video programming transmitted simultaneously with sound that is provided by entities subject to sections 79.2 and 79.3, are manufactured or imported for use in the United States, and use a picture screen of any size, subject to certain exemptions. See id. 79.105(a) through (b). \70\ 47 U.S.C. 303(u)(1)(C). --------------------------------------------------------------------------- 1. Legal and Policy Analysis 23. In the User Interfaces Further Notice, the Commission sought comment on whether to require manufacturers of apparatus covered by section 203 of the CVAA to provide access to the secondary audio stream used for audible emergency information in a simple, straightforward, and timely manner, such as through a mechanism reasonably comparable to a button, key, or icon.\71\ Section 303(u)(1)(C) of the Act, as added by Section 203 of the CVAA, requires that apparatus designed to receive and play back video programming transmitted simultaneously with sound ``have the capability to decode and make available emergency information (as that term is defined in section 79.2 of the Commission's regulations (47 CFR 79.2)) in a manner that is accessible to individuals who are blind or visually impaired.'' \72\ Further, section 203 also provides the Commission with authority to ``prescribe such regulations as are necessary to implement the requirements of section[] 303(u) . . . of the Communications Act.'' \73\ Pursuant to these statutory provisions, we find that the Commission has authority to require that the secondary audio stream--which is used to make emergency information audible to individuals who are blind or visually impaired--be made available on covered apparatus in a manner that is accessible to such individuals.\74\ --------------------------------------------------------------------------- \71\ User Interfaces Further Notice, para. 9. \72\ 47 U.S.C. 303(u)(1)(C). \73\ Public Law 111-260, sec. 203(d). \74\ See Reply Comments of the Rehabilitation Engineering Research Center for Wireless Technologies, MB Docket Nos. 12-108, 12-107, at 8 (Feb. 25, 2014) (``Wireless RERC User Interfaces Reply Comments''); Reply Comments of the American Foundation for the Blind and the American Council of the Blind, MB Docket Nos. 12-108, 12- 107, at 2 (Mar. 20, 2014) (``AFB/ACB User Interfaces Reply Comments''). --------------------------------------------------------------------------- 24. As noted above, in the First Report and Order, we required video programming providers and distributors to use the secondary audio stream as the means to provide accessible emergency information for individuals who are blind or visually impaired in accordance with section 202 of the CVAA. Thus, to implement section 203 of the CVAA, we required apparatus designed to receive and play back video programming transmitted simultaneously with sound to decode and make available the secondary audio stream in a manner that enables consumers to select the stream used for transmission and delivery of emergency information.\75\ Notably, the Commission was given authority and discretion to promulgate regulations requiring covered entities to convey emergency information in a manner accessible to individuals who are blind or visually impaired. Use of the secondary audio stream to provide audible emergency information was not mandated by Congress.\76\ For example, the Commission could have required that visual emergency information be made audible on the main program audio.\77\ Given broad-based support from consumers and industry, as well as the recommendation of the VPAAC, however, the Commission decided that the secondary audio stream would be the best method to make visual information presented during non-newscast programming audibly accessible to individuals who are blind [[Page 39705]] or visually impaired. Yet, emergency information presented aurally on the secondary audio stream is not, as a practical matter, fully accessible to such individuals unless they are able to promptly switch to the secondary audio stream to hear the critical details of an emergency in a timely manner. As the VPAAC concluded, unless blind or visually impaired consumers are able to more easily control the means of accessing the secondary audio stream on devices, ``emergency information present on the secondary audio channel may not be readily accessible.'' \78\ --------------------------------------------------------------------------- \75\ First Report and Order, para. 50; 47 CFR 79.105(a). \76\ See 47 U.S.C. 613(g)(1) through (2), 303(u)(1)(C). See also S. Rep. No. 111-386, at 13 (``The Committee is aware that emergency alert information is inherently local and time sensitive in nature. Therefore it is the intention of the Committee that the Commission have flexibility with respect to applying the requirements of new section 713(g). . . .''); H.R. Rep. No. 111-563, at 29 (same). \77\ See VPAAC Second Report: Access to Emergency Information at 8. See also id. at 11-12. \78\ VPAAC Second Report: Access to Emergency Information at 7-8 (``To obtain emergency information from television programming, many users with visual disabilities require a greater level of access to controls on receiving devices than most models of such devices offer today. . . . [A] blind or visually impaired person will need a reliable method of accessing the secondary audio feed if emergency information is to be provided on [this] service.''). --------------------------------------------------------------------------- 25. Although the requirements related to the provision of accessible emergency information on a secondary audio stream have not yet gone into effect,\79\ the experiences of consumers who use the secondary audio stream for video description are illustrative in showing how difficult it is for consumers to access any kind of programming on the secondary audio stream. Currently, the process for activating the secondary audio stream is often arduous and time- consuming.\80\ In the User Interfaces Further Notice, the Commission observed that individuals who are blind or visually impaired have experienced difficulty with accessing the secondary audio stream because the mechanism for switching to the secondary audio stream from the main program audio is buried in several layers of on-screen menus.\81\ Likewise, in a CVAA-required report to Congress on video description, the Commission noted that numerous individual commenters who are blind or visually impaired contend that activating the secondary audio stream on televisions and set-top boxes is challenging, and sometimes impossible for individuals who are blind or visually impaired, due to the complexities of navigating through multiple on- screen menus to select this feature.\82\ While it is important that consumers who are blind or visually impaired are able to access the secondary audio stream for video description services, it is even more critical that consumers who are blind or visually impaired are able to access the secondary audio stream for audible emergency information, and that they are able to do so in a timely manner.\83\ In an emergency situation, every second counts. Thus, to ensure that emergency information is made readily accessible, we conclude that individuals who are blind or visually impaired must be able to activate the secondary audio stream in a simple and easy to use manner. --------------------------------------------------------------------------- \79\ Compliance with the accessible emergency information rules adopted in the First Report and Order is required by May 26, 2015, subject to certain exceptions. See 47 CFR 79.2(b)(2)(ii), 79.105(a), 79.106(a). See also First Report and Order, paras. 37-45, paras. 76- 77. \80\ See AFB/ACB User Interfaces Reply Comments at 2 (noting that AFB, ACB, and individual consumers ``have commented on the current difficulty, and frequently virtual impossibility, of locating [video] description controls and turning [video] description on''); Video Description: Implementation of the Twenty- First Century Communications and Video Accessibility Act of 2010, MB Docket No. 11-43, Report to Congress, DA 14-945, para. 32, nn.102-05 (MB rel. Jun. 30, 2014) (``Video Description Report to Congress''). \81\ User Interfaces Further Notice, para. 9. \82\ Video Description Report to Congress, para. 32. \83\ See VPAAC Second Report: Access to Emergency Information at 7 (``The effective use of video description by the blind or visually impaired for any purpose requires convenient, reliable and readily available access to the video description service [on the secondary audio stream]. If this service is to convey emergency information, the convenience of such access is all the more important.''). --------------------------------------------------------------------------- 26. Requiring a simple and easy to use mechanism for activating the secondary audio stream for emergency information will provide a substantial benefit for consumers who are blind or visually impaired by providing an easy and quick method to switch to the secondary audio stream to hear critical emergency information. According to AFB and ACB, ``the importance of a streamlined and obvious means for accessing emergency information is indispensable,'' given that the information being accessed ``may very well save lives.'' \84\ Indeed, as the Commission has consistently recognized, ``providing all viewers with accurate information regarding emergencies is of great importance.'' \85\ Emergency information is of unique significance given its potential impact on public safety, and it is essential that persons with disabilities have access to the same time-sensitive emergency information to which other viewers have access. Our emergency information requirements, including the activation mechanism requirement we adopt here, will ensure that critical information that is conveyed on television to further the protection of life, health, safety, and property in an emergency is available to every viewer in a timely manner, including persons with visual disabilities. --------------------------------------------------------------------------- \84\ AFB/ACB User Interfaces Reply Comments at 2. See also Wireless RERC User Interfaces Reply Comments at 9 (strongly urging the Commission to adopt a requirement for a mechanism reasonably comparable to a button, key, or icon for accessing the secondary audio stream for audible emergency information because ``[t]his can be a life and death scenario where people with vision disabilities would miss information that affects their immediate safety''). \85\ Implementation of Section 305 of the Telecommunications Act of 1996, Closed Captioning and Video Description of Video Programming: Accessibility of Emergency Programming, MM Docket No. 95-176, Second Report and Order, FCC 00-136, 65 FR 26757 (2000). --------------------------------------------------------------------------- 27. We find that requiring the provision of a simple and easy to use activation mechanism for audible emergency information on the secondary audio stream is necessary to fulfill the statute's mandate that emergency information be made accessible to individuals who are blind or visually impaired. This is particularly true given the time- sensitive nature of emergency information. At the same time, however, we believe it is important that the industry has flexibility in choosing the precise means for activating the secondary audio stream.\86\ Accordingly, we do not mandate a particular means of compliance. For example, we note that the VPAAC stated that covered entities could provide a dedicated button on a remote control to activate the secondary audio stream, a mechanism it singled out as useful.\87\ However, we believe the better path is to give industry the flexibility to develop simple and easy to use activation methods, similar to the approach we adopted to implement the requirements of sections 204 and 205 of the CVAA.\88\ Some industry commenters have indicated that they have already begun developing innovative approaches to comply with the activation mechanism rules adopted in the User Interfaces Order. For example, NCTA states that activation methods now in development include programmable buttons on remote controls and that voice and gesture controls will likely be offered in addition to these methods.\89\ --------------------------------------------------------------------------- \86\ See User Interfaces Order, para. 81 (stating that the requirement to provide an activation mechanism reasonably comparable to a button, key, or icon ``is consistent with Congress's intent `to ensure ready access to [closed captioning and video description] features by persons with disabilities,' while still giving covered entities the flexibility contemplated by the statute''). \87\ See VPAAC Second Report: Access to Emergency Information at 8-9 (``In the event that . . . the crawl or scroll is made auditory in the secondary audio channel, several other methods could possibly be used to assist visually impaired consumers in gaining access to this audio service. For example, physical buttons on the remote control may help individuals with visual disabilities enable the second audio channel.''). \88\ User Interfaces Order, para. 81. \89\ See National Cable & Telecommunications Association, Opposition to Petition for Reconsideration, MB Docket Nos. 12-108, 12-07, at 7 (filed Feb. 18, 2014). See also Letter from James R. Coltharp, Chief Policy Advisor, FCC & Regulatory Policy, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, at 1 (Mar. 20, 2015) (detailing a demonstration of how consumers can activate and use the talking guide, closed captioning, and video description on Comcast's X1 platform). --------------------------------------------------------------------------- [[Page 39706]] 28. Industry commenters raise a number of legal arguments as to why they believe the Commission should not require an activation mechanism for audible emergency information on section 203 apparatus, but we find each of them to be unpersuasive. As we explain below, we require covered entities to provide a simple and easy to use activation mechanism and find that a mechanism reasonably comparable to a button, key, or icon would satisfy this standard. We disagree with commenters who contend that the Commission should not require covered entities to provide a simple means for accessing the secondary audio stream for emergency information because section 203 does not contain such a mandate.\90\ As explained above, section 303(u)(1)(C) of the Act requires generally that covered apparatus have the capability to make available emergency information in an accessible manner, and section 203 of the CVAA grants the Commission authority to adopt regulations that are necessary to implement this requirement.\91\ Thus, the Commission has latitude to adopt requirements that will ensure that emergency information is made available in an accessible manner. --------------------------------------------------------------------------- \90\ Comments of the Consumer Electronics Association, MB Docket Nos. 12-108, 12-107, at 8 (Feb. 18, 2014) (``CEA User Interfaces Comments''). See also Comments of DISH Network L.L.C. and EchoStar Technologies L.L.C., MB Docket Nos. 12-108, 12-107, at 6 (Feb. 18, 2014) (``DISH/EchoStar User Interfaces Comments'') (``The absence of a `reasonably comparable' mechanism requirement in Section 203 precludes the Commission from imposing such a requirement in that context.''); Reply Comments of the Consumer Electronics Association, MB Docket Nos. 12-108, 12-107, at 5 (Mar. 20, 2014) (``CEA User Interfaces Reply Comments''). \91\ 47 U.S.C. 303(u)(1)(C); Public Law 111-260, sec. 203(d). --------------------------------------------------------------------------- 29. For similar reasons, we reject industry commenters' argument that the Commission has no authority to require an activation mechanism for audible emergency information because Congress specifically required an activation mechanism reasonably comparable to a button, key, or icon in sections 204 and 205 of the CVAA, but not in section 203 of the CVAA.\92\ CEA opines that ``[i]f Congress had meant for such a specific requirement to apply to emergency information, it surely would have said so in section 203.'' \93\ However, this argument also fails to recognize that Congress gave the Commission authority to identify methods to convey emergency information in a manner accessible to individuals who are blind or visually impaired, and to promulgate regulations (i) requiring covered video programming providers and distributors to convey emergency information in an accessible manner, and (ii) requiring covered apparatus to have the capability to make emergency information available in an accessible manner.\94\ In other words, as discussed above, when Congress enacted the CVAA, it did not specify the particular requirements for making emergency information available in a manner accessible to individuals who are blind or visually impaired. Rather, it gave the Commission authority and discretion to adopt implementing regulations. Moreover, as Congress did not specify in the statute that covered entities must use a secondary audio stream to convey audible emergency information to individuals who are blind or visually impaired, there was no reason for Congress to mandate a simple and easy to use mechanism to access that stream. Indeed, had the Commission chosen instead to implement section 203 by requiring all emergency information to be audible on the primary audio stream, there would have been no need for an activation mechanism for the secondary audio stream that is reasonably comparable to a button, key, or icon. Thus, even though the ``reasonably comparable to a button, key, or icon'' language is included in other sections of the CVAA, we do not believe its omission from section 203 is indicative of Congress' intent to bar the Commission from requiring an activation mechanism in the emergency information context. We find this argument fails to recognize the rulemaking authority Congress granted the Commission in section 203 to ensure that covered apparatus have the capability to make available emergency information in an accessible manner. As explained above, the record demonstrates that such a mechanism is necessary to carry out the statutory directive.\95\ --------------------------------------------------------------------------- \92\ See CEA User Interfaces Comments at 9; DISH/EchoStar User Interfaces Comments at 5-7; Comments of the National Cable & Telecommunications Association, MB Docket Nos. 12-108, 12-107, at 6 (Feb. 18, 2014) (``NCTA User Interfaces Comments''). \93\ CEA User Interfaces Comments at 9. See also DISH/EchoStar User Interfaces Comments at 6 (``If Congress had intended for the Commission to require that access to the secondary audio stream for audible emergency information on apparatus covered by section 203 be available via a mechanism `reasonably comparable to a button, key, or icon,' or any other specified mechanism, Congress would have stated so.''); NCTA User Interfaces Comments at 6 (noting that section 205 specifically references a mechanism for activating closed captioning, but ``section 203 . . . does not reference a mechanism at all. Under these circumstances, no additional authority to impose such a requirement can be inferred.''); CEA User Interfaces Reply Comments at 6. See also Letter from Diane B. Burstein, Vice President and Deputy General Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, at 1 (Feb. 18, 2015) (``NCTA Feb. 18, 2015 Ex Parte Letter''). \94\ See 47 U.S.C. 613(g)(1) through (2), 303(u)(1)(C). \95\ Commissioner Pai dissents ``from the requirement that manufacturers of televisions, set-top boxes, and other covered devices include in those apparatuses a mechanism for activating the secondary audio stream for emergency information that is reasonably comparable to a button, key, or icon.'' He objects to what he describes as importing into the rules implementing section 203 of the CVAA specific mandates set forth in sections 204 and 205 of the CVAA. See Statement of Commissioner Ajit Pai, Approving in Part and Dissenting in Part. The rule we adopt today, however, does no such thing. Rather, it requires only that ``all apparatus subject to this section must provide a simple and easy to use mechanism for activating the secondary audio stream for audible emergency information.'' See 47 CFR 79.105(d). While the dissent distinguishes between ``the capabilities that devices must have'' and ``the means of activating those capabilities,'' id., the Commission finds that distinction artificial. In directing the Commission to ensure that covered apparatus ``have the capability to decode and make available emergency information . . . in a manner that is accessible to individuals who are blind or visually impaired,'' the majority does not believe that Congress intended that such apparatus have capabilities such as an audio stream of emergency information that are impossible for individuals who are blind or vision impaired to activate quickly when they are needed--in an emergency. Such a distinction would be self-defeating. As discussed in the order, the statutory directive that the Commission adopt rules ensuring that emergency information is accessible to individuals who are blind or visually impaired grants the Commission ample authority for the rules we adopt today. --------------------------------------------------------------------------- 30. NCTA and CEA point out that the Commission adopted rules pursuant to sections 204 and 205 of the CVAA requiring the accessibility of appropriate built-in apparatus functions on digital apparatus and the audible accessibility of on-screen text menus and guides used for the display or selection of multichannel video programming on navigation devices for individuals who are blind or visually impaired.\96\ According to NCTA and CEA, because individuals who are blind or visually impaired will have audible access to the on- screen menus used to locate the secondary audio stream, ``no additional dedicated `mechanism' will be needed for blind or visually impaired customers to be able to readily locate'' the secondary audio stream for emergency information.\97\ Although we believe that these new regulations will make it easier for individuals who are blind or [[Page 39707]] visually impaired to access the secondary audio stream for video description, they will not fully alleviate accessibility issues with regard to audible emergency information. In particular, if the activation mechanism for the secondary audio stream is buried in multiple levels of menus, it will still be a time-consuming process for individuals who are blind or visually impaired to navigate through those menus, even if the menus are made audible, and such individuals will not have ready and immediate access to time-sensitive emergency information. As AFB and ACB emphasize, ``it is imperative that the Commission . . . ensure ease of use so that consumers are not confounded by avoidable technological barriers at the very time when time is of the essence.'' \98\ We find that, as part of their obligation to make emergency information available in a manner that is accessible to individuals who are blind or visually impaired, manufacturers of covered apparatus must ensure that these individuals are provided with a mechanism to quickly activate the secondary audio stream to hear audible emergency information. --------------------------------------------------------------------------- \96\ See NCTA User Interfaces Comments at 7; CEA User Interfaces Reply Comments at 6. \97\ Id. See also NCTA Feb. 18, 2015 Ex Parte Letter at 1, n.2 (``We further explained that audibly-accessible guides and menus will assist blind or visually impaired individuals in locating [the] secondary audio stream that will contain emergency information as well as video description.''). \98\ AFB/ACB User Interfaces Reply Comments at 2. --------------------------------------------------------------------------- 2. Apparatus Manufacturer Obligations 31. Manufacturers of apparatus covered by section 79.105 of the Commission's rules must provide a simple and easy to use mechanism for activating the secondary audio stream for audible emergency information.\99\ As described above, to provide some guidance to industry, we find that providing a mechanism reasonably comparable to a button, key, or icon--as is required for activating closed captioning and video description on section 204 digital apparatus, and for activating closed captioning on section 205 navigation devices--would comply with the requirement to provide a simple and easy to use mechanism for activating the secondary audio stream for audible emergency information. The Commission will consider the simplicity and ease of use of the mechanism in determining whether the statutory requirement has been met, i.e., that the covered apparatus has the capability to make available emergency information in an accessible manner. Consistent with our approach in the User Interfaces Order,\100\ we will consider examples of compliant mechanisms to include, but not be limited to, a dedicated button, key, or icon; voice commands; gestures; and a single step activation from the same location as the volume controls.\101\ This approach will ensure ready access to the secondary audio stream by persons who are blind and visually impaired, while still giving covered manufacturers the flexibility to determine the appropriate activation mechanism, as long as it is simple and easy to use in accordance with our rules. --------------------------------------------------------------------------- \99\ We emphasize that manufacturers will need to ensure that set-top boxes include a simple and easy to use activation mechanism for emergency information on the secondary audio stream. We seek comment in the Second Further Notice on whether we should require MVPDs to provide their customers with set-top boxes that contain the simple and easy to use activation mechanism for the secondary audio stream. We also note that manufacturers of televisions and other digital apparatus covered by section 204 of the CVAA are already required to provide a mechanism reasonably comparable to a button, key, or icon for activating the secondary audio stream for video description by December 20, 2016 and thus, as a practical matter, they should not need to take additional steps to comply with the rule we adopt here. See 47 CFR 79.109(a)(2), (c). \100\ User Interfaces Order, para. 81. \101\ Id. at para. 81. The Commission is considering a Petition for Reconsideration filed by the National Association of the Deaf along with other consumer and academic groups which asks the Commission to reconsider allowing voice commands as compliant mechanisms for activating closed captioning, and to reconsider allowing gestures as compliant mechanisms for activating closed captioning and video description. See Petition for Reconsideration of the National Association of the Deaf, Telecommunications for the Deaf and Hard of Hearing, Inc., Deaf and Hard of Hearing Consumer Advocacy Network, Association of Late-Deafened Adults, Inc., Hearing Loss Association of America, California Coalition of Agencies Serving the Deaf and Hard of Hearing, Cerebral Palsy and Deaf Organization, and Technology Access Program Gallaudet University, MB Docket Nos. 12-107, 12-108 (Jan. 20, 2014). --------------------------------------------------------------------------- 32. We find that manufacturers are not responsible for providing a simple and easy to use mechanism to activate the secondary audio stream for emergency information on third-party MVPD applications and plug-ins that are downloaded by consumers to view linear programming on mobile and other devices. As noted above, manufacturers typically do not control such applications and, in particular, they do not control the ability of consumers to select and receive the secondary audio stream for linear programming provided through an MVPD application on mobile and other devices. In the Second Further Notice, we seek comment on whether we should impose an obligation on MVPDs to provide a simple and easy to use activation mechanism for the secondary audio stream to access emergency information with respect to the applications and plug- ins they provide to consumers to access linear programming on mobile and other devices. In the meantime, we strongly encourage MVPDs to design their applications and plug-ins such in a way that access to the secondary audio stream is simple and easy to use for individuals who are blind or visually impaired. In this regard, we urge MVPDs to consult with the disability community when designing and developing these features. 33. We note that the provisions for achievability determinations, purpose-based waivers, and exemptions that apply to devices covered by Section 79.105 of the Commission's rules will apply equally to the requirement that covered apparatus provide an activation mechanism that is simple and easy to use for accessing the secondary audio stream.\102\ In addition, apparatus designed to receive and play back video programming transmitted simultaneously with sound must comply with Section 203 requirements only to the extent they are ``technically feasible.'' \103\ Thus, we permit covered manufacturers to raise technical infeasibility as a defense when faced with a complaint alleging a violation of the apparatus requirements adopted herein, or to file a request for a ruling under Section 1.41 of the Commission's rules as to technical feasibility before manufacturing or importing the product, consistent with our approach in the First Report and Order.\104\ Although we note that apparatus manufacturers may use alternate means of compliance with the rules adopted pursuant to section 203, consistent with our approach in the First Report and Order,\105\ we believe that few, if any, manufacturers will need to request an alternate means of compliance with the requirement to make the secondary audio stream accessible by providing a simple and easy to use activation mechanism because we do not prescribe the precise means for compliance. --------------------------------------------------------------------------- \102\ See 47 CFR 79.105(b)(1) through (2) (exempt apparatus), 79.105(b)(3) (achievability), 79.105(b)(4) (purpose-based waivers). See also First Report and Order, paras. 67-74. \103\ See 47 U.S.C. 303(u). \104\ See First Report and Order, para. 66. \105\ See id. at para. 75; Public Law 111-260, sec. 203(e). Under this approach, an entity that seeks to use an alternate means to comply with the apparatus requirements must file a request pursuant to section 1.41 of the Commission's rules for a determination that the proposed alternative satisfies the statutory requirements. See First Report and Order, para. 75 (``We will not permit an entity to claim in defense to a complaint or enforcement action that the Commission should determine that the party's actions were a permissible alternate means of compliance.''). We will consider such requests on a case-by-case basis. See id. --------------------------------------------------------------------------- 3. Compliance Deadline 34. In the User Interfaces Further Notice, the Commission sought comment on the appropriate time frame [[Page 39708]] for requiring covered entities to provide a simple and easy to use mechanism for accessing the secondary audio stream for audible emergency information.\106\ The Commission also inquired whether the deadline should be consistent with the deadline for compliance with section 203 apparatus requirements that were adopted in the First Report and Order (May 26, 2015) \107\ or whether device manufacturers would need additional time to come into compliance.\108\ --------------------------------------------------------------------------- \106\ User Interfaces Further Notice, para. 11. \107\ 47 CFR 79.105(a). \108\ User Interfaces Further Notice, para. 11. --------------------------------------------------------------------------- 35. The Wireless RERC, the only party to comment on this issue, argues that the deadline for a requirement to provide a simple and easy to use mechanism for accessing the secondary audio stream for audible emergency information should be consistent with the deadlines for apparatus that the Commission adopted in the First Report and Order.\109\ The Wireless RERC strongly recommends that the Commission not go beyond the deadlines adopted in that Order because delays in implementation of the new requirements could place persons who are blind or visually impaired in a potentially ``perilous position[ ].'' \110\ Further, the Wireless RERC asserts that any extensions of the deadline or waivers of the newly adopted regulations ``should be granted very judiciously.'' \111\ --------------------------------------------------------------------------- \109\ See Wireless RERC User Interfaces Reply Comments at 10. \110\ Id. \111\ Id. --------------------------------------------------------------------------- 36. We conclude that it is reasonable to apply the same compliance deadline that we adopted in the User Interfaces Order for digital apparatus and navigation devices to comply with the accessible user interfaces rules, including the requirement to provide an activation mechanism reasonably comparable to a button, key, or icon for certain accessibility features, to the requirement adopted here. Thus, consistent with the deadline in section 79.109(c) of our rules, covered manufacturers must provide a simple and easy to use mechanism for accessing the secondary audio stream for audible emergency information no later than December 20, 2016.\112\ Although apparatus manufacturers were silent in the record with regard to this issue, we believe that they will need some time for the design, testing, and implementation of a simple and easy to use activation mechanism for the secondary audio stream on covered apparatus. We believe that making the deadline consistent with that imposed in the User Interfaces Order will provide sufficient time for apparatus manufacturers to achieve these steps. In addition, we find that requiring manufacturers of such devices to incorporate the required accessibility features at the same time will ensure that the devices are updated on a uniform timetable. Such a uniform timeframe will prevent any consumer confusion as to the capabilities of their devices.\113\ --------------------------------------------------------------------------- \112\ 47 CFR 79.109(c). \113\ This will also reduce any consumer confusion that could arise from different deadlines relating to access to the secondary audio stream applying depending upon whether a particular device is covered by Section 203, 204, or 205 of the CVAA. We find that Wireless RERC's proposed timeframe of May 26, 2015 has been rendered moot by the passage of time. --------------------------------------------------------------------------- IV. Procedural Matters A. Final Regulatory Flexibility Act 37. As required by the Regulatory Flexibility Act of 1980, as amended (``RFA''),\114\ an Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated into each of the Further Notices of Proposed Rulemaking (``-NPRM'') in this proceeding.\115\ The Federal Communications Commission (``Commission'') sought written public comment on the proposals in the Further Notices, including comment on the IRFA. The Commission received no comments on the IRFA. This present Final Regulatory Flexibility Analysis (``FRFA'') conforms to the RFA.\116\ --------------------------------------------------------------------------- \114\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (``CWAAA''). \115\ See Further Notice, para. 9; User Interfaces Further Notice, para. 17. \116\ See 5 U.S.C. 604. --------------------------------------------------------------------------- 1. Need for, and Objectives of, the Second Report and Order 38. In the Second Report and Order, we take additional steps under the authority of sections 202 and 203 of the CVAA \117\ to make emergency information in video programming accessible to individuals who are blind or visually impaired. --------------------------------------------------------------------------- \117\ Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010); Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) (making technical corrections to the CVAA). --------------------------------------------------------------------------- 39. First, the Second Report and Order concludes that multichannel video programming distributors (``MVPDs'') must pass through a secondary audio stream containing audible emergency information in accordance with section 79.2 of the Commission's rules \118\ when they permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services. Increasingly, Americans are utilizing a wide range of devices in addition to the television to view video programming, and a number of MVPDs now allow customers to view linear programming on second screen devices using applications or other technologies. The conclusion we make in the Second Report and Order ensures that individuals who are blind or visually impaired will be provided with accessible emergency information when they are watching linear programming over the MVPD's network as part of their MVPD services, regardless of whether they are viewing the programming on their television or on their tablet, smartphone, or similar device. --------------------------------------------------------------------------- \118\ 47 CFR 79.2. --------------------------------------------------------------------------- 40. Second, the Second Report and Order requires manufacturers of apparatus subject to Section 79.105 of the Commission's rules \119\ to provide a mechanism that is simple and easy to use for activating the secondary audio stream to access audible emergency information. Individuals who are blind or visually impaired should not have to navigate through multiple levels of menus or take other time-consuming actions to activate the secondary audio stream when they hear the aural tone signaling that emergency information is being provided visually on the screen. In emergency situations, every second counts. Thus, we believe that in order for emergency information to be made fully accessible to individuals who are blind or visually impaired in accordance with Section 203 of the CVAA, manufacturers of covered apparatus must ensure that such individuals have a simple, easy to use mechanism to activate the secondary audio stream in order to hear emergency information. --------------------------------------------------------------------------- \119\ 47 CFR 79.105. --------------------------------------------------------------------------- 2. Summary of Significant Issues Raised By Public Comments in Response to the IRFA 41. No public comments were filed in response to the IRFA. 42. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those [[Page 39709]] comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding. 3. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 43. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted in the Second Report and Order.\120\ The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' \121\ In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act.\122\ A ``small business concern'' is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.\123\ Small entities that are directly affected by the rules adopted in the Second Report and Order include MVPDs and manufacturers of apparatus covered by Section 79.105 of the Commission's rules. --------------------------------------------------------------------------- \120\ 5 U.S.C. 603(b)(3). \121\ Id. 601(6). \122\ Id. 601(3) (incorporating by reference the definition of ``small-business concern'' in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ``unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.'' \123\ 15 U.S.C. 632. --------------------------------------------------------------------------- 44. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers, which was developed for small wireline businesses. This category is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services.'' \124\ The SBA has developed a small business size standard for this category, which is: All such businesses having 1,500 or fewer employees.\125\ Census data for 2007 shows that there were 31,996 establishments that operated that year.\126\ Of this total, 30,178 establishments had fewer than 100 employees, and 1,818 establishments had 100 or more employees.\127\ Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. --------------------------------------------------------------------------- \124\ U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' (partial definition) at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this category are: Broadband Internet service providers (e.g., cable, DSL); local telephone carriers (wired); cable television distribution services; long-distance telephone carriers (wired); closed circuit television (``CCTV'') services; VoIP service providers, using own operated wired telecommunications infrastructure; direct-to-home satellite system (``DTH'') services; telecommunications carriers (wired); satellite television distribution systems; and multichannel multipoint distribution services (``MMDS''). \125\ 13 CFR 121.201; 2012 NAICS code 517110. \126\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Information: Subject Series--Estab and Firm Size: Employment Size of Establishments for the United States: 2007--2007 Economic Census,'' NAICS code 517110, Table EC0751SSSZ2; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \127\ Id. --------------------------------------------------------------------------- 45. Cable Companies and Systems. The Commission has also developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a ``small cable company'' is one serving 400,000 or fewer subscribers nationwide.\128\ Industry data shows that there were 1,141 cable companies at the end of June 2012.\129\ Of this total, all but 10 incumbent cable companies are small under this size standard.\130\ In addition, under the Commission's rate regulation rules, a ``small system'' is a cable system serving 15,000 or fewer subscribers.\131\ Current Commission records show 4,945 cable systems nationwide.\132\ Of this total, 4,380 cable systems have less than 20,000 subscribers, and 565 systems have 20,000 subscribers or more, based on the same records. Thus, under this standard, we estimate that most cable systems are small. --------------------------------------------------------------------------- \128\ 47 CFR 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Implementation of Sections of the Cable Television Consumer Protection And Competition Act of 1992: Rate Regulation, MM Docket No. 92-266, MM Docket No. 93-215, Sixth Report and Order and Eleventh Order on Reconsideration, FCC 95-196, 60 FR 35854 (1995). \129\ NCTA, Industry Data, Number of Cable Operating Companies (June 2012), http://www.ncta.com/Statistics.aspx (visited Sept. 28, 2012). Depending upon the number of homes and the size of the geographic area served, cable operators use one or more cable systems to provide video service. See Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report, FCC 13-99 at para. 24 (rel. July 22, 2013) (``15th Annual Competition Report''). \130\ See SNL Kagan, ``Top Cable MSOs--12/12 Q''; available at http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2012Q4&sortcol=subscribersbasic&sortorder=desc. We note that, when applied to an MVPD operator, under this size standard (i.e., 400,000 or fewer subscribers) all but 14 MVPD operators would be considered small. See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industry-data (visited Aug. 30, 2013). The Commission applied this size standard to MVPD operators in its implementation of the CALM Act. See Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, FCC 11-182, 77 FR 40276, para. 37 (2011) (``CALM Act Report and Order'') (defining a smaller MVPD operator as one serving 400,000 or fewer subscribers nationwide, as of December 31, 2011). \131\ 47 CFR 76.901(c). \132\ The number of active, registered cable systems comes from the Commission's Cable Operations and Licensing System (COALS) database on Aug. 28, 2013. A cable system is a physical system integrated to a principal headend. --------------------------------------------------------------------------- 46. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is ``a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.'' \133\ There are approximately 56.4 million incumbent cable video subscribers in the United States today.\134\ Accordingly, an operator serving fewer than 564,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.\135\ Based on available data, we find that all but 10 incumbent cable operators are small under this size standard.\136\ We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 [[Page 39710]] million.\137\ Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. --------------------------------------------------------------------------- \133\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3. \134\ See NCTA, Industry Data, Cable Video Customers (2012), http://www.ncta.com/industry-data (visited Aug. 30, 2013). \135\ 47 CFR 76.901(f); see Public Notice, FCC Announces New Subscriber Count for the Definition of Small Cable Operator, DA 01- 158 (Cable Services Bureau, Jan. 24, 2001). \136\ See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industry-data (visited Aug. 30, 2013). \137\ The Commission does receive such information on a case-by- case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to 47 CFR 76.901(f). --------------------------------------------------------------------------- 47. Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic ``dish'' antenna at the subscriber's location. DBS, by exception, is now included in the SBA's broad economic census category, Wired Telecommunications Carriers,\138\ which was developed for small wireline businesses. In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\139\ Census data for 2007 shows 3,188 firms in this category.\140\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, the majority of such businesses can be considered small. However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled ``Cable and Other Program Distribution.'' The definition of Cable and Other Program Distribution provided that a small entity is one with $12.5 million or less in annual receipts.\141\ Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and DISH Network.\142\ Each currently offer subscription services. DIRECTV and DISH Network each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider. --------------------------------------------------------------------------- \138\ See 13 CFR 121.201; 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.'' (Emphasis added to text relevant to satellite services.) U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \139\ 13 CFR 121.201; NAICS Code 517110. \140\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. \141\ 13 CFR 121.201; NAICS code 517510 (2002). \142\ See 15th Annual Competition Report, at para. 27. As of June 2012, DIRECTV is the largest DBS operator and the second largest MVPD in the United States, serving approximately 19.9 million subscribers. DISH Network is the second largest DBS operator and the third largest MVPD, serving approximately 14.1 million subscribers. Id. para. 27, 110-11. --------------------------------------------------------------------------- 48. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA's broad economic census category, Wired Telecommunications Carriers,\143\ which was developed for small wireline businesses. In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\144\ Census data for 2007 shows 3,188 firms in this category.\145\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, the majority of such businesses can be considered small. --------------------------------------------------------------------------- \143\ See 13 CFR 121.201; 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.'' (Emphasis added to text relevant to satellite services.) U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \144\ 13 CFR 121.201; NAICS Code 517110. \145\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. --------------------------------------------------------------------------- 49. Home Satellite Dish (HSD) Service. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled (free) programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Wired Telecommunications Carriers.\146\ In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\147\ Census data for 2007 shows 3,188 firms in this category.\148\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. --------------------------------------------------------------------------- \146\ See 13 CFR 121.201; 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is defined in part as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services.'' U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \147\ 13 CFR 121.201; NAICS Code 517110. \148\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. --------------------------------------------------------------------------- [[Page 39711]] 50. Open Video Services. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers.\149\ The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services,\150\ OVS falls within the SBA small business size standard covering cable services, which is Wired Telecommunications Carriers.\151\ In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\152\ Census data for 2007 shows 3,188 firms in this category.\153\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. In addition, we note that the Commission has certified some OVS operators, with some now providing service.\154\ Broadband service providers (``BSPs'') are currently the only significant holders of OVS certifications or local OVS franchises.\155\ The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities. --------------------------------------------------------------------------- \149\ 47 U.S.C. 571(a)(3) through (4). See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 06-189, Thirteenth Annual Report, FCC 07- 206, 74 FR 11102, para. 135 (2009) (``Thirteenth Annual Cable Competition Report''). \150\ See 47 U.S.C. 573. \151\ See 13 CFR 121.201; 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is defined in part as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services.'' U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \152\ 13 CFR 121.201; NAICS Code 517110. \153\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. \154\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html. \155\ See Thirteenth Annual Cable Competition Report, para. 135. BSPs are newer businesses that are building state-of-the-art, facilities-based networks to provide video, voice, and data services over a single network. --------------------------------------------------------------------------- 51. Wireless cable systems--Broadband Radio Service and Educational Broadband Service. Wireless cable systems use the Broadband Radio Service (BRS) \156\ and Educational Broadband Service (EBS) \157\ to transmit video programming to subscribers. In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years.\158\ The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.\159\ After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas.\160\ The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid.\161\ Auction 86 concluded in 2009 with the sale of 61 licenses.\162\ Of the 10 winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses. --------------------------------------------------------------------------- \156\ BRS was previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS). See Amendment of Parts 21 and 74 of the Commission's Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act-- Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, FCC 95-230, 60 FR 36524, para. 7 (1995). \157\ EBS was previously referred to as the Instructional Television Fixed Service (ITFS). See id. \158\ 47 CFR 21.961(b)(1). \159\ 47 U.S.C. 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. 309(j). For these pre- auction licenses, the applicable standard is SBA's small business size standard of 1,500 or fewer employees. \160\ Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, Public Notice, DA 09-1376 (WTB rel. Jun. 26, 2009). \161\ Id. at 8296. \162\ Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, Public Notice, DA 09-2378 (WTB rel. Nov. 6, 2009). --------------------------------------------------------------------------- 52. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers, which was developed for small wireline businesses. This category is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services.'' \163\ In this category, [[Page 39712]] the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\164\ Census data for 2007 shows 3,188 firms in this category.\165\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. In addition to Census data, the Commission's internal records indicate that as of September 2012, there are 2,241 active EBS licenses.\166\ The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.\167\ --------------------------------------------------------------------------- \163\ U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' (partial definition) at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this category are: broadband Internet service providers (e.g., cable, DSL); local telephone carriers (wired); cable television distribution services; long-distance telephone carriers (wired); closed circuit television (``CCTV'') services; VoIP service providers, using own operated wired telecommunications infrastructure; direct-to-home satellite system (``DTH'') services; telecommunications carriers (wired); satellite television distribution systems; and multichannel multipoint distribution services (``MMDS''). \164\ 13 CFR 121.201; NAICS Code 517110. \165\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. \166\ http://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp. \167\ The term ``small entity'' within SBREFA applies to small organizations (non-profits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. 601(4) through (6). --------------------------------------------------------------------------- 53. Incumbent Local Exchange Carriers (ILECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. ILECs are included in the SBA's economic census category, Wired Telecommunications Carriers.\168\ In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\169\ Census data for 2007 shows 3,188 firms in this category.\170\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, the majority of such businesses can be considered small. --------------------------------------------------------------------------- \168\ See 13 CFR 121.201; 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.'' (Emphasis added to text relevant to satellite services.) U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \169\ 13 CFR 121.201; NAICS Code 517110. \170\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. --------------------------------------------------------------------------- 54. Small Incumbent Local Exchange Carriers. We have included small incumbent local exchange carriers in this present RFA analysis. A ``small business'' under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and ``is not dominant in its field of operation.'' \171\ The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not ``national'' in scope.\172\ We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. --------------------------------------------------------------------------- \171\ 15 U.S.C. 632. \172\ Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of ``small-business concern,'' which the RFA incorporates into its own definition of ``small business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 601(3) (RFA). SBA regulations interpret ``small business concern'' to include the concept of dominance on a national basis. See 13 CFR 121.102(b). --------------------------------------------------------------------------- 55. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. These entities are included in the SBA's economic census category, Wired Telecommunications Carriers.\173\ In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500 or fewer employees.\174\ Census data for 2007 shows 3,188 firms in this category.\175\ Of these 3,188 firms, only 44 had 1,000 or more employees. While we could not find precise Census data on the number of firms with in the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000 employees would be in that group. Therefore, under this size standard, the majority of such businesses can be considered small. --------------------------------------------------------------------------- \173\ See 13 CFR 121.201; 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is defined as follows: ``This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.'' (Emphasis added to text relevant to satellite services.) U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \174\ 13 CFR 121.201; NAICS Code 517110. \175\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. --------------------------------------------------------------------------- 56. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: ``This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.'' \176\ The SBA has developed a small business size standard for this category, which is: all such businesses having 750 or fewer employees.\177\ Census data for 2007 shows that there were 939 establishments that operated for part or all of the entire year.\178\ Of those, 912 operated with fewer than 500 employees, and 27 operated with 500 or [[Page 39713]] more employees.\179\ Therefore, under this size standard, the majority of such establishments can be considered small. --------------------------------------------------------------------------- \176\ U.S. Census Bureau, 2012 NAICS Definitions, ``334220 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \177\ 13 CFR 121.201; 2012 NAICS code 334220. \178\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Manufacturing: Summary Series: General Summary: Industry Statistics for Subsectors and Industries by Employment Size: 2007--2007 Economic Census,'' NAICS code 334220, Table EC0731SG3; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \179\ Id. --------------------------------------------------------------------------- 57. Audio and Video Equipment Manufacturing. The Census Bureau defines this category as follows: ``This industry comprises establishments primarily engaged in manufacturing electronic audio and video equipment for home entertainment, motor vehicles, and public address and musical instrument amplification. Examples of products made by these establishments are video cassette recorders, televisions, stereo equipment, speaker systems, household-type video cameras, jukeboxes, and amplifiers for musical instruments and public address systems.'' \180\ The SBA has developed a small business size standard for this category, which is: all such businesses having 750 or fewer employees.\181\ Census data for 2007 shows that there were 492 establishments in this category operated for part or all of the entire year.\182\ Of those, 488 operated with fewer than 500 employees, and four operated with 500 or more employees.\183\ Therefore, under this size standard, the majority of such establishments can be considered small. --------------------------------------------------------------------------- \180\ U.S. Census Bureau, 2012 NAICS Definitions, ``334310 Audio and Video Equipment Manufacturing'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. \181\ 13 CFR 121.201; 2012 NAICS code 334310. \182\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, ``Manufacturing: Summary Series: General Summary: Industry Statistics for Subsectors and Industries by Employment Size: 2007--2007 Economic Census,'' NAICS code 334310, Table EC0731SG3; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. \183\ Id. --------------------------------------------------------------------------- 4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 58. The Second Report and Order (i) concludes that MVPDs must pass through a secondary audio stream containing audible emergency information in accordance with Section 79.2 of the Commission's rules when they permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services, and (ii) adopts new requirements applicable to manufacturers of apparatus covered by Section 79.105 of the Commission's rules pursuant to the authority in Section 203 of the CVAA. 59. With respect to the first issue, the Second Report and Order does not adopt a new regulatory regime, but rather finds that the existing emergency information requirements in Section 79.2 of the Commission's rules apply when an MVPD provides linear programming for viewing on mobile and other devices over the MVPD's network. Accordingly, there are no new reporting or recordkeeping requirements. There will, however, be compliance requirements for MPVDs, including small MVPDs. Specifically, MVPDs must pass through a secondary audio stream containing audible emergency information when they permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their MVPD services. As part of this obligation, MVPDs must ensure that any application or plug-in that they provide to consumers to access such programming is capable of passing through audible emergency information on a secondary audio stream. 60. With respect to the second issue, the Second Report and Order adopts new compliance requirements for manufacturers of covered apparatus, including small entities. Specifically, manufacturers of apparatus subject to Section 79.105 of the Commission's rules must provide a mechanism that is simple and easy to use for activating the secondary audio stream to access audible emergency information on covered apparatus. The provisions for achievability, purpose-based waiver, and exemptions in Section 79.105 of the Commission's rules apply to the requirement that covered apparatus provide a simple and easy to use activation mechanism for the secondary audio stream.\184\ --------------------------------------------------------------------------- \184\ See 47 CFR 79.105(b)(1) through (2) (exempt apparatus), 79.105(b)(3) (achievability), 79.105(b)(4) (purpose-based waivers). --------------------------------------------------------------------------- 61. No commenter provided specific information about the costs and administrative burdens associated with the rules adopted in the Second Report and Order. However, we note that the rule we adopt pursuant to Section 203 of the CVAA--which requires manufacturers of apparatus subject to Section 79.105 of the Commission's rules to provide a mechanism that is simple and easy to use for activating the secondary audio stream to access audible emergency information--affords covered entities flexibility in how they implement this requirement. 5. Steps Taken To Minimize the Significant Economic Impact on Small Entities and Significant Alternatives Considered 62. The RFA requires an agency to describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.\185\ --------------------------------------------------------------------------- \185\ 5 U.S.C. 604(a)(6). --------------------------------------------------------------------------- 63. The rules adopted in the Second Report and Order may have an economic impact in some cases, and that impact may affect small entities. Although the Commission has considered alternatives where possible, as directed by the RFA, to minimize economic impact on small entities, we emphasize that our action is governed by the congressional mandate contained in Sections 202 and 203 of the CVAA. 64. In crafting its new requirements, the Commission provided reasonable timeframes within which covered entities may come into compliance, as requested in the record. 65. In addition, with regard to the accessibility requirements adopted pursuant to Section 203 of the CVAA, in certain instances, the Commission may grant exemptions to the rules where a petitioner has shown that compliance is not achievable (i.e., cannot be accomplished with reasonable effort or expense).\186\ We note that two of the four statutory factors that the Commission will consider in determining achievability are particularly relevant to small entities: The nature and cost of the steps needed to meet the requirements, and the technical and economic impact on the entity's operations. In addition, apparatus designed to receive and play back video programming transmitted simultaneously with sound must comply with Section 203 requirements only to the extent they are ``technically feasible.'' \187\ Thus, covered manufactures, including small entities, may raise technical infeasibility as a defense when faced with a complaint alleging a violation of the apparatus requirements adopted herein, or to file a request for a ruling under Section 1.41 of the Commission's rules as to technical feasibility before manufacturing or importing the product.\188\ As an additional means of reducing the costs of compliance, apparatus manufacturers may use alternate means of compliance with the rules adopted pursuant to Section [[Page 39714]] 203.\189\ Under this approach, the Commission will permit an entity that seeks to use an alternate means to comply with the apparatus requirements to file a request pursuant to Section 1.41 of the Commission's rules for a determination that the proposed alternative satisfies the statutory requirements. The Commission will consider such requests on a case-by-case basis. Further, the rule also allows for certain purpose-based waivers and exemptions.\190\ These processes will allow the Commission to address the impact of the rules on individual entities, including smaller entities, on a case-by-case basis and to modify the application of the rules to accommodate individual circumstances, which can reduce the costs of compliance for these entities. --------------------------------------------------------------------------- \186\ See 47 CFR 79.105(b)(3). \187\ See 47 U.S.C. 303(u). \188\ See First Report and Order, para. 66. \189\ See id., para. 75. \190\ See 47 CFR 79.105(b)(1) through (2), 79.105(b)(4). --------------------------------------------------------------------------- 66. Overall, we believe we have appropriately considered both the interests of individuals with disabilities and the interests of the entities who will be subject to the rules, including those that are smaller entities. The requirements adopted by the Commission today help ensure that the critical details of an emergency are made accessible to individuals who are blind or visually impaired, thus significantly benefiting consumers and serving the stated public interest goal of the CVAA. 6. Report to Congress 67. The Commission will send a copy of the Second Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act.\191\ In addition, the Commission will send a copy of the Second Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Second Report Order and FRFA (or summaries thereof) will also be published in the Federal Register.\192\ --------------------------------------------------------------------------- \191\ See 5 U.S.C. 801(a)(1)(A). \192\ See id. 604(b). --------------------------------------------------------------------------- B. Paperwork Reduction Act 68. The Second Report and Order does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA).\193\ In addition, therefore, it does not contain any information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002.\194\ --------------------------------------------------------------------------- \193\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104- 13, 109 Stat 163 (1995) (codified in Chapter 35 of title 44 U.S.C.). \194\ The Small Business Paperwork Relief Act of 2002 (SBPRA), Public Law 107-198, 116 Stat 729 (2002) (codified in Chapter 35 of title 44 U.S.C.); see 44 U.S.C. 3506(c)(4). --------------------------------------------------------------------------- C. Congressional Review Act 69. The Commission will send a copy of the Second Report and Order in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act.\195\ --------------------------------------------------------------------------- \195\ See 5 U.S.C. 801(a)(1)(A). --------------------------------------------------------------------------- D. Additional Information 70. For additional information on this proceeding, contact Maria Mullarkey, [email protected], of the Media Bureau, Policy Division, (202) 418-2120. V. Ordering Clauses 71. Accordingly, it is ordered that, pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and the authority found in Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617, this Second Report and Order is adopted, effective August 10, 2015. 72. It is ordered that, pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and the authority found in Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617, the Commission's rules are hereby amended as set forth herein. 73. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 74. It is further ordered that the Commission shall send a copy of this Second Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 79 Cable television operators, Communications equipment, Multichannel video programming distributors (MVPDs), Satellite television service providers. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 79 as follows: PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING 0 1. The authority citation for part 79 continues to read as follows: Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 330, 544a, 613, 617. 0 2. Amend Sec. 79.2 by revising paragraph (b)(2)(ii) and adding paragraph (b)(6) to read as follows: Sec. 79.2 Accessibility of programming providing emergency information. * * * * * (b) * * * (2) * * * (ii) Emergency information that is provided visually during programming that is neither a regularly scheduled newscast, nor a newscast that interrupts regular programming, must be accompanied with an aural tone, and beginning May 26, 2015 except as provided in paragraph (b)(6) of this section, must be made accessible to individuals who are blind or visually impaired through the use of a secondary audio stream to provide the emergency information aurally. Emergency information provided aurally on the secondary audio stream must be preceded by an aural tone and must be conveyed in full at least twice. Emergency information provided through use of text-to-speech (``TTS'') technologies must be intelligible and must use the correct pronunciation of relevant information to allow consumers to learn about and respond to the emergency, including, but not limited to, the names of shelters, school districts, streets, districts, and proper names noted in the visual information. The video programming distributor or video programming provider that creates the visual emergency information content and adds it to the programming stream is responsible for providing an aural representation of the information on a secondary audio stream, accompanied by an aural tone. Video programming distributors are responsible for ensuring that the aural representation of the emergency information (including the [[Page 39715]] accompanying aural tone) gets passed through to consumers. * * * * * (6) Beginning July 10, 2017, multichannel video programming distributors must ensure that any application or plug-in that they provide to consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD's network as part of their multichannel video programming distributor services is capable of passing through to consumers an aural representation of the emergency information (including the accompanying aural tone) on a secondary audio stream. * * * * * 0 3. Amend Sec. 79.105 by adding paragraph (d) and a note to paragraph (d) to read as follows: Sec. 79.105 Video description and emergency information accessibility requirements for all apparatus. * * * * * (d) Beginning December 20, 2016, all apparatus subject to this section must provide a simple and easy to use mechanism for activating the secondary audio stream for audible emergency information. Note To Paragraph (d): This paragraph places no restrictions on the importing, shipping, or sale of navigation devices that were manufactured before December 20, 2016. [FR Doc. 2015-16324 Filed 7-9-15; 8:45 am] BILLING CODE 6712-01-P
![39698 Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations
States prior to publication of the rule in planning SIPs related to attainment of fjallfoss.fcc.gov/ecfs2/. (Documents will
the Federal Register. A major rule the standard for as long as this area be available electronically in ASCII,
cannot take effect until 60 days after it continues to meet the 2006 24-hour Microsoft Word, and/or Adobe Acrobat.)
is published in the Federal Register. PM2.5 NAAQS. If EPA determines, after This document is also available for
This action is not a ‘‘major rule’’ as notice-and-comment rulemaking, that public inspection and copying during
defined by 5 U.S.C. 804(2). this area no longer meets the 2006 24- regular business hours in the FCC
hour PM2.5 NAAQS, the corresponding Reference Information Center, Federal
C. Petitions for Judicial Review
determination of attainment for that area Communications Commission, 445 12th
Under section 307(b)(1) of the CAA, shall be withdrawn. Street SW., CY–A257, Washington, DC
petitions for judicial review of this [FR Doc. 2015–16813 Filed 7–9–15; 8:45 am] 20554. The complete text may be
action must be filed in the United States BILLING CODE 6560–50–P purchased from the Commission’s copy
Court of Appeals for the appropriate contractor, 445 12th Street SW., Room
circuit by September 8, 2015. Filing a CY–B402, Washington, DC 20554.
petition for reconsideration by the FEDERAL COMMUNICATIONS Alternative formats are available for
Administrator of this final rule does not COMMISSION people with disabilities (Braille, large
affect the finality of this action for the print, electronic files, audio format), by
purposes of judicial review nor does it 47 CFR Part 79 sending an email to fcc504@fcc.gov or
extend the time within which a petition calling the Commission’s Consumer and
for judicial review may be filed, and [MB Docket No. 12–107; FCC 15–56]
Governmental Affairs Bureau at (202)
shall not postpone the effectiveness of Accessible Emergency Information, 418–0530 (voice), (202) 418–0432
such rule or action. This action, and Apparatus Requirements for (TTY).
determining that the Liberty-Clairton Emergency Information and Video
Area has attained the 2006 24-hour I. Introduction
Description
PM2.5 NAAQS, may not be challenged 1. In this Second Report and Order,
later in proceedings to enforce its AGENCY: Federal Communications we take additional steps under the
requirements. (See section 307(b)(2).) Commission. authority of sections 202 and 203 of the
ACTION: Final rule. Twenty-First Century Communications
List of Subjects in 40 CFR Part 52 and Video Accessibility Act of 2010
Environmental protection, Air SUMMARY: In this document, the (‘‘CVAA’’) 1 to make emergency
pollution control, Incorporation by Commission adopts additional rules information in video programming
reference, Intergovernmental relations, under the authority of the Twenty-First accessible to individuals who are blind
Particulate matter, Reporting and Century Communications and Video or visually impaired. The Commission
recordkeeping requirements. Accessibility Act of 2010 (CVAA) to adopted rules in 2013 to require that
Authority: 42 U.S.C. 7401 et seq. make emergency information in video visual emergency information shown
programming accessible to individuals during non-newscast television
Dated: June 25, 2015.
who are blind or visually impaired. programming, such as in an on-screen
Shawn M. Garvin, First, the document requires crawl, is also available to individuals
Regional Administrator, Region III. multichannel video programming who are blind or visually impaired
40 CFR part 52 is amended as follows: distributors to pass through a secondary through an aural presentation on a
audio stream containing audible secondary audio stream.2 In adopting
PART 52—APPROVAL AND emergency information when they these rules pursuant to sections 202 and
PROMULGATION OF permit consumers to access linear 203 of the CVAA, the Commission
IMPLEMENTATION PLANS programming on second screen devices, recognized the importance of making
such as tablets, smartphones, laptops, sure that individuals who are blind or
■ 1. The authority citation for part 52
and similar devices. Second, the visually impaired are able to hear
continues to read as follows:
document requires manufacturers of critical information about emergencies
Authority: 42 U.S.C. 7401 et seq. apparatus that receive or play back affecting their locality, which can
video programming to provide a enable them promptly to respond to
Subpart NN—Pennsylvania mechanism that is simple and easy to such emergency situations and to
■ 2. Section 52.2059 is amended by use for activating the secondary audio protect their lives and property.
adding paragraph (q) to read as follows: stream to access audible emergency 2. First, this Second Report and Order
information. concludes that multichannel video
§ 52.2059 Control strategy: Particulate programming distributors (‘‘MVPDs’’)
matter. DATES: Effective August 10, 2015.
* * * * * FOR FURTHER INFORMATION CONTACT: 1 Twenty-First Century Communications and
(q) Determination of attainment. EPA Evan Baranoff, Evan.Baranoff@fcc.gov, Video Accessibility Act of 2010, Public Law 111–
has determined, as of July 10, 2015, of the Media Bureau, Policy Division, 260, 124 Stat. 2751 (2010); Amendment of Twenty-
based on quality-assured ambient air (202) 418–2120. First Century Communications and Video
Accessibility Act of 2010, Public Law 111–265, 124
quality data for 2012 to 2014, that the SUPPLEMENTARY INFORMATION: This is a Stat. 2795 (2010) (making technical corrections to
Liberty-Clairton, PA nonattainment area summary of the Commission’s Second the CVAA).
has attained the 2006 24-hour fine Report and Order (Order), FCC 15–56, 2 See Accessible Emergency Information;
particle (PM2.5) national ambient air adopted on May 21, 2015, and released Apparatus Requirements for Emergency
mstockstill on DSK4VPTVN1PROD with RULES
Information and Video Description: Implementation
quality standards (NAAQS). This on May 28, 2015. The full text of this of the Twenty-First Century Communications and
determination suspends the document is available electronically via Video Accessibility Act of 2010, MB Docket Nos.
requirements for this area to submit an the FCC’s Electronic Document 12–107, 11–43, Report and Order, FCC 13–45, 78 FR
attainment demonstration, associated Management System (EDOCS) Web site 31770 (2013) (‘‘First Report and Order’’). A
secondary audio stream is an audio channel, other
reasonably available control measures, a at http://fjallfoss.fcc.gov/edocs_public/ than the main program audio channel, that is
reasonable further progress plan, or via the FCC’s Electronic Comment typically used for foreign language audio and video
contingency measures, and other Filing System (ECFS) Web site at http:// description.
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/1.svg)
![Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations 39699
must pass through a secondary audio counts. Thus, we believe that in order the CVAA directs the Commission to (i)
stream containing audible emergency for emergency information to be made ‘‘identify methods to convey emergency
information in accordance with section fully accessible to individuals who are information (as that term is defined in
79.2 of the Commission’s rules 3 when blind or visually impaired in section 79.2 of title 47, Code of Federal
they permit consumers to access linear accordance with section 203 of the Regulations 10) in a manner accessible to
programming 4 on tablets, smartphones, CVAA, manufacturers of covered individuals who are blind or visually
laptops, and similar devices over the apparatus must ensure that such impaired,’’ 11 and (ii) ‘‘promulgate
MVPD’s network as part of their MVPD individuals have a simple, easy to use regulations that require video
services. Increasingly, Americans are mechanism to activate the secondary programming providers and video
utilizing a wide range of devices in audio stream in order to hear emergency programming distributors (as those
addition to the television to view video information. terms are defined in section 79.1 of title
programming,5 and a number of MVPDs 4. In the Second Further Notice of 47, Code of Federal Regulations 12) and
now allow customers to view linear Proposed Rulemaking (‘‘Second Further program owners to convey such
programming on ‘‘second screen’’ Notice’’) accompanying the Second emergency information in a manner
devices using applications or other Report and Order (and published in this accessible to individuals who are blind
technologies.6 Our rule ensures that issue of the Federal Register), we seek or visually impaired.’’ 13 Section 203 of
individuals who are blind or visually comment on three issues: (i) Whether
impaired will be provided with we should adopt rules regarding how Programming Accessibility Advisory Committee on
accessible emergency information when covered entities should prioritize the Twenty-First Century Communications and
Video Accessibility Act of 2010, available at http://
they are watching linear programming emergency information conveyed vpaac.wikispaces.com; Public Law 111–260, sec.
over the MVPD’s network as part of aurally on the secondary audio stream 201(e)(2) (‘‘VPAAC Second Report: Access to
their MVPD services, regardless of when more than one source of visual Emergency Information’’). The portion of the report
whether they are viewing the emergency information is presented on- that addresses emergency information is available at
http://vpaac.wikispaces.com/file/view/
programming on their television or on screen at the same time; (ii) whether we 120409+VPAAC+Access+to+Emergency+
their tablet, smartphone, or similar should reconsider the Commission’s Information+REPORT+AS+SUBMITTED+4-9-
device. requirement for ‘‘school closings and 2012.pdf. See also Media Bureau and Consumer
3. Second, this Second Report and changes in school bus schedules’’ and Governmental Affairs Bureau Seek Comment
on Second VPAAC Report: Video Description and
Order requires manufacturers of resulting from emergency situations to Access to Emergency Information, MB Docket No.
apparatus subject to section 79.105 of be conveyed aurally on the secondary 12–107, Public Notice, DA 12–636 (MB rel. Apr. 24,
the Commission’s rules 7 to provide a audio stream, considering the length of 2012).
mechanism that is simple and easy to such information and the limits of the 10 ‘‘Emergency information’’ is defined in section
use for activating the secondary audio secondary audio stream; and (iii) 79.2 of the Commission’s rules as ‘‘[i]nformation,
about a current emergency, that is intended to
stream to access audible emergency whether we should require MVPDs to further the protection of life, health, safety, and
information. Individuals who are blind ensure that the navigation devices that property, i.e., critical details regarding the
or visually impaired should not have to they provide to subscribers include a emergency and how to respond to the emergency.
navigate through multiple levels of simple and easy to use activation Examples of the types of emergencies covered
include tornadoes, hurricanes, floods, tidal waves,
menus or take other time-consuming mechanism for accessing audible earthquakes, icing conditions, heavy snows,
actions to activate the secondary audio emergency information on the widespread fires, discharge of toxic gases,
stream when they hear the aural tone secondary audio stream, and to provide widespread power failures, industrial explosions,
signaling that emergency information is civil disorders, school closings and changes in
a simple and easy to use mechanism to school bus schedules resulting from such
being provided visually on the screen. activate the secondary audio stream for conditions, and warnings and watches of
In emergency situations, every second emergency information when they impending changes in weather.’’ 47 CFR 79.2(a)(2).
permit subscribers to view linear As in the First Report and Order, we note that the
emergency information covered by this proceeding
3 47 CFR 79.2. programming on mobile and other does not include emergency alerts delivered
4 The term ‘‘linear programming’’ is generally devices as part of their MVPD services. through the Emergency Alert System (EAS), the
understood to refer to video programming that is
accessibility requirements for which are contained
prescheduled by the video programming provider. II. Background
See Promoting Innovation and Competition in the in Part 11 of the Commission’s rules. See 47 CFR
Provision of Multichannel Video Programming 5. The CVAA was enacted on October 11.1 et seq.; First Report and Order, para. 9.
Distribution Services, MB Docket No. 14–261, However, to the extent a broadcaster or other
8, 2010 with the purpose of ensuring covered entity uses the information provided
Notice of Proposed Rulemaking, FCC 14–210, 80 FR
2078 (2014) (‘‘MVPD Definition NPRM’’) (using the
that individuals with disabilities are through EAS or any other source (e.g., the National
term ‘‘linear programming’’ ‘‘consistent with prior able to fully utilize modern Weather Service) to generate its own crawl
Commission use’’); Annual Assessment of the communications services and conveying emergency information as defined in
Status of Competition in the Market for the Delivery section 79.2(a)(2) outside the context of an EAS
equipment and to better access video activation, it must comply with the requirements of
of Video Programming, MB Docket No. 14–16,
Notice of Inquiry, FCC 14–8, 79 FR 8452 (2014) (‘‘A programming.8 Sections 202 and 203 of section 79.2. See First Report and Order, para. 9.
linear channel is one that distributes programming the CVAA address, in part, the 11 47 U.S.C. 613(g)(1).
at a scheduled time. Non-linear programming, such accessibility of emergency information 12 Section 79.1 defines a ‘‘video programming
as video-on-demand (‘VOD’) and online video provider’’ as ‘‘[a]ny video programming distributor
content, is available at a time of the viewer’s
for individuals who are blind or visually
and any other entity that provides video
choosing.’’)). impaired.9 Specifically, section 202 of programming that is intended for distribution to
5 See Annual Assessment of the Status of residential households including, but not limited to
Competition in the Market for the Delivery of Video 8 See H.R. Rep. No. 111–563, 111th Cong., 2d broadcast or nonbroadcast television network and
Programming, MB Docket No. 14–16, Sixteenth Sess. at 19 (2010); S. Rep. No. 111–386, 111th the owners of such programming.’’ 47 CFR
Report, FCC 15–41, para. 336 (rel. Apr. 2, 2015) Cong., 2d Sess. at 1 (2010). 79.1(a)(12). Section 79.1 defines a ‘‘video
mstockstill on DSK4VPTVN1PROD with RULES
(‘‘16th Video Competition Report’’) (‘‘IP video 9 Pursuant to Section 201 of the CVAA, the programming distributor’’ as ‘‘[a]ny television
distribution opportunities for MVPDs and [online Chairman of the Commission established an broadcast station licensed by the Commission and
video distributors] continu‘e to expand through advisory committee known as the Video any multichannel video programming distributor as
portable media devices.’’). Programming Accessibility Advisory Committee defined in § 76.1000(e) of this chapter, and any
6 For example, Cablevision, Charter, Comcast,
(‘‘VPAAC’’), comprised of representatives from other distributor of video programming for
Cox, and Time Warner Cable currently offer industry and consumer groups, which submitted its residential reception that delivers such
applications that allow their subscribers to view statutorily mandated report addressing accessible programming directly to the home and is subject to
linear programming on mobile and other devices. emergency information to the Commission on April the jurisdiction of the Commission.’’ Id. 79.1(a)(11).
7 47 CFR 79.105. 9, 2012. See Second Report of the Video 13 47 U.S.C. 613(g)(2).
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/2.svg)
![Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations 39701
‘‘video programming’’ covered by the services.32 Further, section 202 of the its subscribers to access video
emergency information rules adopted in CVAA gives the Commission discretion programming that is distributed to the
the First Report and Order when it in how it implements the requirement home via the MVPD’s network, the
permits its subscribers to access linear that video programming distributors, MVPD is subject to the Commission’s
programming that contains emergency including MVPDs, ‘‘convey [ ] emergency information rules, regardless
information via tablets, laptops, emergency information in a manner of the devices that are accessing the
personal computers, smartphones, or accessible to individuals who are blind video programming.’’ 36 The Wireless
similar devices.28 We also sought or visually impaired.’’ 33 Thus, applying RERC agrees with AT&T’s position.37
comment on whether, under this the emergency information rules when 13. We believe that requiring MVPDs
approach, an MVPD should be required MVPDs permit subscribers to access to pass through a secondary audio
to ensure that any application or plug- linear programming on mobile and other stream with audible emergency
in that it provides to the consumer to devices over the MVPD’s network information in these circumstances will
access such programming is capable of adheres to the statutory directive to further the goals of the CVAA by
ensure that emergency information is helping to ensure that emergency
making emergency information audible
conveyed in an accessible manner to information is made accessible to
on a secondary audio stream.
individuals with visual disabilities. individuals who are blind or visually
11. We conclude that the accessible 12. NCTA, AT&T Services, Inc. impaired when they watch linear video
emergency information requirements (‘‘AT&T’’), and the Wireless RERC argue programming provided by their MVPD
adopted in the First Report and Order that MVPDs should be covered by the over the MVPD’s network, regardless of
should apply to linear video emergency information rules in section the device on which they are viewing
programming distributed by MVPDs to 79.2 when they provide linear the programming. The number of ways
their subscribers over the MVPD’s programming that contains emergency in which consumers are able to access
network, regardless of the device on information for viewing on mobile and linear programming from their MVPDs
which such programming is viewed. In other devices within the home. NCTA is growing. As NCTA points out,
the First Report and Order, the contends that ‘‘a cable operator ‘‘[c]able operators, as part of their
Commission determined that the delivering linear broadcast stations existing services, increasingly are
accessible emergency information containing emergency information (or providing applications (‘apps’) or other
requirements adopted therein apply to any other linear video programming technologies that enable their
video programming subject to section service that might provide an aural subscribers to view linear programming
79.2 that is provided by a covered version of emergency information within the home over the cable
entity, i.e., video programming provided covered by the rules) within a operator’s network.’’ 38 Consumer
by television broadcast stations licensed subscriber’s home would be a ‘video advocates emphasize the importance of
by the Commission, MVPDs, and any programming distributor’ for . . . making sure that the emergency
other distributor of video programming purposes [of the rules], even if the linear information rules keep pace with such
for residential reception that delivers service is received through use of an trends and urge the Commission to
such programming directly to the home operator-supplied app on a device apply the emergency information rules
and is subject to the jurisdiction of the owned by a consumer.’’ 34 According to 36 AT&T Comments at 3.
Commission.29 As the National Cable & NCTA, ‘‘cable operators would not 37 Reply Comments of the Rehabilitation
Telecommunications Association object to applying the emergency Engineering Research Center for Wireless
(‘‘NCTA’’) observes, MVPDs are information rules in these Technologies, MB Docket Nos. 12–107, 11–43, at 5
expressly included within the circumstances.’’ 35 Likewise, AT&T (‘‘Wireless RERC Reply’’).
38 See NCTA Comments at 2; Wireless RERC
regulatory definition of a ‘‘video states that ‘‘when an MVPD is allowing
Reply at 4; Letter from Diane B. Burstein, Vice
programming distributor.’’ 30 Further, President and Deputy General Counsel, NCTA, to
32 Given that we apply the rules only when
linear programming distributed by an Marlene H. Dortch, Secretary, FCC, at 1 (Apr. 4,
MVPDs permit consumers to access linear 2014) (‘‘NCTA Apr. 4, 2014 Ex Parte Letter’’). See
MVPD to a subscriber over the MVPD’s programming on tablets, smartphones, laptops, and also Further Notice, n.6 (stating that Cablevision
network is ‘‘video programming’’ similar devices over the MVPD’s network as part of currently permits consumers to access its entire
subject to section 79.2 of the rules. In their MVPD services, and not to OTT services at package of video programming, including broadcast
other words, it is ‘‘[p]rogramming this time, we need not address the issues raised by channels that contain emergency information,
industry commenters with regard to whether the through its Optimum app for the iPad and other
provided by, or generally considered Commission has authority under the CVAA to devices); Charter Communications, Press Release,
comparable to programming provided extend the accessible emergency information Charter Announces Launch of Charter TV App
by, a television broadcast station that is requirements in Section 79.2 to all linear (Apr. 8, 2014) (announcing the Charter TV App
programming delivered over the Internet or via
distributed and exhibited for residential Internet protocol (‘‘IP’’). See Comments of AT&T
available for free download on various platforms,
use.’’ 31 Accordingly, MVPDs must through which ‘‘Charter TV customers can now
Services, Inc., MB Docket Nos. 12–107, 11–43, at 3 watch over 130 live TV Channels anywhere inside
comply with the accessible emergency (‘‘AT&T Comments’’); Comments of DIRECTV, LLC, their home on their mobile devices such as tablets
information requirements when they MB Docket Nos. 12–107, 11–43, at 5–6 (‘‘DIRECTV or smartphones’’); Comcast, Xfinity TV Apps,
Comments’’); Comments of the Consumer available at http://xfinitytv.comcast.net/apps
permit consumers to access linear Electronics Association, MB Docket Nos. 12–107, (‘‘Turn any device into a personal TV screen
programming on tablets, smartphones, 11–43, at 6 (‘‘CEA Comments’’); Comments of the anywhere in your home. Stream any channel live,
laptops, and similar devices over the Telecommunications Industry Association, MB watch XFINITY On DemandTM and access your
MVPD’s network as part of their MVPD Docket Nos. 12–107, 11–43, at 3–4 (‘‘TIA DVR shows on your tablet, smartphone or
Comments’’); Reply Comments of the Entertainment computer.’’); Cox, About the Contour App, available
Software Association, MB Docket Nos. 12–107, 11– at http://www.cox.com/residential/support/tv/
28 Further Notice, para. 2. 43, at 3 (‘‘ESA Reply’’); Reply Comments of the
mstockstill on DSK4VPTVN1PROD with RULES
article.cox?articleId=ee838930-c7d7-11e2-caa8-
29 FirstReport and Order, para. 7; 47 CFR Information Technology Industry Council, MB 000000000000 (‘‘With the Contour App, you can
79.1(a)(10) through (11). Docket Nos. 12–107, 11–43, at 3–4 (‘‘ITIC Reply’’). [w]atch over 130 live channels and thousands of On
30 See Comments of the National Cable & See also Reply Comments of the National Demand programs while in the home.’’); Time
Telecommunications Association, MB Docket Nos. Association of Broadcasters, MB Docket Nos. 12– Warner Cable, TWC TV App, available at http://
12–107, 11–43, at 3 (‘‘NCTA Comments’’); 47 CFR 107, 11–43, at 2 (‘‘NAB Reply’’). www.timewarnercable.com/en/tv/features/twc-
33 47 U.S.C. 613(g)(2).
79.1(a)(11). See also First Report and Order, para. tv.html (‘‘Watch up to 300 live TV channels on up
33. 34 NCTA Comments at 3.
to five of your favorite devices simultaneously in
31 See NCTA Comments at 3; 47 CFR 79.1(a)(10). 35 Id. your home with the TWC TV app’’).
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/4.svg)
![39702 Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations
to mobile and other devices.39 In situations, irrespective of where the (‘MVPD’) by including within its scope
addition, the Wireless RERC explains subscriber is physically located when services that make available for
that individuals who are blind or accessing the programming.42 Instead of purchase, by subscribers or customers,
visually impaired may not draw a applying our rules based on where the multiple linear streams of video
distinction between regular television consumer is located when viewing the programming, regardless of the
broadcasts and linear programming on programming, we look instead to technology used to distribute the
mobile and other devices offered as part whether the programming is provided programming.’’ 46 In that NPRM, we
of an MVPD’s services and, therefore, over the MVPD’s network, as opposed to specifically sought comment on the
they argue that the emergency over the Internet, given that Internet- application of our rules pertaining to
information rules should apply equally based video services are currently at accessibility of emergency information
to the latter.40 We concur. Consumers issue in a separate proceeding. NCTA by persons with disabilities to Internet-
who choose to watch linear argues that the rules should apply only based distributors of video programming
programming offered by an MVPD on a within an MVPD subscriber’s home, and that qualify as MVPDs under the
mobile device over the MVPD’s network not outside of the home, ‘‘both because proposed definition.47 We conclude,
should not be deprived of timely and of the limited scope of the statutory and therefore, that application of the
potentially life-saving accessible regulatory definitions, and because of emergency information rules to such
emergency information that they the nature of emergency information.’’ 43 services is better addressed in that
otherwise would have received had they We conclude that focusing on whether proceeding.
watched the same programming on a the services are provided over the
2. MVPD Obligations
television. MVPD’s network more clearly
14. Although we inquired in the delineates the services subject to the 16. We conclude that MVPDs must
Further Notice as to whether the rule and avoids confusion as to whether ensure that any application or plug-in
emergency information rules should the rule applies with respect to OTT that they provide to consumers to access
apply to an MVPD’s linear programming services that consumers may be able to linear programming over the MVPD’s
accessed outside the home, we find it access in their homes.44 Further, to the network on mobile and other devices is
more appropriate to apply the rules extent NCTA’s ‘‘in the home’’ capable of passing through the aural
when MVPDs permit consumers to construction is intended to ensure that representation of emergency
access linear programming on tablets, the emergency information rules do not information (including the
smartphones, laptops, and similar apply to video programming accessed accompanying aural tone) on a
devices over the MVPD’s network as over the Internet, our approach to cover secondary audio stream. In so
part of their MVPD services. In the linear programming accessed over the concluding, we do not change the
Further Notice, we noted that some MVPD’s network as part of an MVPD’s underlying obligations applicable to
MVPDs currently enable subscribers to services accomplishes this objective. video programming distributors and
access linear programming inside the Our emergency information rules do not video programming providers as set
home as well as outside the home (i.e., apply, at this time, to an MVPD’s linear forth in the First Report and Order. In
TV Everywhere 41), and we sought programming that is accessed via the the First Report and Order, the
comment on whether our emergency Internet, such as TV Everywhere Commission concluded that the video
information rules should apply in both offerings. programming distributor or video
15. As mentioned above, we do not programming provider that creates
39 See Wireless RERC Reply at 3–4; Comments of apply these rules to over-the-top visual emergency information content
Jose Cruz, MB Docket Nos. 12–107, 11–43, at 2 services provided by MVPDs at this and adds it to the programming stream
(arguing that ‘‘[t]he blind/visually impaired should is responsible for providing an aural
be able to access emergency broadcasts from their
time. In December 2014, we adopted a
MVPD . . . through mobile and/or other electronic Notice of Proposed Rulemaking representation of the information on a
devices,’’ which ‘‘may affect their well-being or the proposing to include within the secondary audio stream, accompanied
well-being of their families’’); Comments of Jeanette definition of MVPD certain Internet- by an aural tone.48 The Commission also
M. Schmoyer, MB Docket Nos. 12–107, 11–43, at 1 found that video programming
(arguing that the accessible emergency information based video services.45 Specifically, we
requirements should apply to television proposed ‘‘to modernize our distributors are responsible for ensuring
programming delivered over tablets, laptops, interpretation of the term ‘multichannel that the aural representation of the
smartphones, and similar devices, and stating that video programming distributor’ emergency information and the
‘‘[a]t the rate technology changes, PC’s are already
decreasing in sales in favor of laptops and tablets’’
accompanying aural tone get passed
and ‘‘[i]nformation provided as a visual element
42 Further
Notice, para. 2. through to consumers.49 NCTA asserts
needs to be provided in an audio element no matter 43 NCTA Comments at 3, n.11. See also AT&T that ‘‘the Further Notice appears to
what the device’’). Comments at 1; CEA Comments at 4 (‘‘The contemplate an additional requirement
40 See Wireless RERC Reply at 4. Commission consistently has applied Section[ ]
41 See 16th Video Competition Report, para. 3 79.2 only in the context of traditional broadcast that operators ‘mak[e] the emergency
(‘‘These services, referred to as ‘TV Everywhere,’ television and MVPD services, which are classic information audible on a secondary
allow MVPD subscribers to access both linear and examples of services for residential reception that audio stream’ on devices that they do
video-on-demand (‘VOD’) programming on a variety deliver such programming directly to the home.’’) not control,’’ which, they argue, goes
of in-home and mobile Internet-connected (citation omitted); TIA Comments at 4 (‘‘The
devices.’’); id. at n.22 (‘‘TV Everywhere is an Commission’s video description and emergency
46 Id.
authentication system whereby certain movies and information requirements are appropriately limited
to the MVPD’s traditional programming offered 47 Id. at para. 56.
television shows are accessible online via a variety
of display devices including personal computer, within the home, and that qualifies as linear video 48 First Report and Order, para. 36; 47 CFR
mobile, and television—but only if you can prove programming under Part 79.1 of the Commission’s 79.2(b)(2)(ii). In addition, both video programming
mstockstill on DSK4VPTVN1PROD with RULES
(or ‘authenticate’) that you have a subscription to rules.’’); ESA Reply at 3 (‘‘The CVAA imposes distributors and video programming providers are
an MVPD.’’); id. para. 85 (‘‘Most of the video emergency information requirements not on the full responsible for ensuring that aural emergency
programming offered on TV Everywhere is available range of video programming, but only on that information supersedes all other programming on
only to MVPD subscribers. Access to TV programming intended for in-home reception.’’). the secondary audio stream, with each entity
44 Moreover, we disagree with NCTA’s argument responsible only for its own actions or omissions
Everywhere video programming is restricted
through the use of an authentication process that that emergency information is irrelevant to a in this regard. First Report and Order, para. 36; 47
requires a subscriber to select their MVPD service subscriber outside of his or her home. See NCTA CFR 79.2(b)(5).
provider and then provide a user ID and Comments at 3, n.11. 49 First Report and Order, para. 36; 47 CFR
password.’’) (citation omitted). 45 See MVPD Definition NPRM, para. 1. 79.2(b)(2)(ii).
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/5.svg)
![Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations 39703
beyond the requirement to ensure that example, CTIA–The Wireless otherwise impedes the ability of a user
aural emergency information gets Association (‘‘CTIA’’) explains that to hear the secondary audio stream.58
passed through to consumers.50 We mobile device manufacturers have no
agree that, consistent with the control over the development or 4. Compliance Deadline
responsibilities set forth in the current installation of MVPD applications, and 19. We adopt a compliance deadline
rule, to the extent MVPDs do not once an MVPD application is installed of two years after publication of the
originate visual emergency information on a mobile device, the application Second Report and Order in the Federal
that is added to the programming controls the audio capabilities, i.e., Register. NCTA requests that the
stream, they are not responsible for whether there are multiple audio Commission provide MVPDs at least
providing an aural representation of the streams and which audio stream is two years after adoption of new
information on a secondary audio heard by the user.55 According to CTIA, requirements to come into compliance
stream.51 MVPDs are responsible for ‘‘the mobile device simply supports the because of the technical challenges
ensuring that the aural representation of general audio functionality of the involved.59 NCTA explains that passing
emergency information on the device, so that it will play whatever through a secondary audio stream to
secondary audio stream gets passed audio stream the app itself provides.’’ 56 mobile and other devices in the home is
through to consumers, and we find that Likewise, CEA contends that if an ‘‘a different, more complex, and more
this obligation applies if the MVPD MVPD application is capable of costly matter’’ than passing a secondary
permits the consumer to view linear delivering and switching between more audio stream through to a television
programming on mobile and other than one audio stream for linear set.60 According to NCTA, ‘‘cable
devices over the MVPD’s network as programming, the device generally will operators generally just pass through the
part of its MVPD services. play the audio stream delivered by the primary audio stream to operator-
3. Apparatus Manufacturer Obligations application.57 provided apps,’’ and thus, ‘‘operators
17. We also sought comment in the 18. Based on the record, we do not would have to acquire additional
Further Notice as to whether apparatus impose compliance obligations on the equipment and encoding to support the
manufacturers covered by section 203 of manufacturers of apparatus covered by pass through of an additional audio
the CVAA should be required to ensure section 203 of the CVAA with regard to stream in IP,’’ and ‘‘operators may need
that tablets, laptops, personal ensuring that any application or plug-in to provide audio enhancements to many
computers, smartphones, and similar that MVPDs provide to consumers to different apps created to serve a
devices are capable of receiving the access linear programming on mobile multiplicity of devices in the home.’’ 61
secondary audio stream.52 As part of and other devices is capable of passing Given these challenges, NCTA asks for
this inquiry, we asked whether through audible emergency information sufficient time to allow operators to
apparatus manufacturers should be on a secondary audio stream. The record support the capability for a secondary
solely responsible for making demonstrates that such entities typically audio stream on these devices going
emergency information accessible on do not control either the applications or forward.62 DIRECTV states that
these types of devices, or whether both technologies in question or the ability of developing the technological ecosystem
the MVPD and the manufacturer have a consumers to select and receive the to support a secondary audio stream for
role in facilitating the provision of the secondary audio stream for MVPD- emergency information in the IP context
secondary audio stream on such provided linear programming on mobile ‘‘would be a massive undertaking’’
devices.53 Consumer electronics and other devices. We believe that the because linear programming delivered
industry commenters argue that responsibility for passing through the via IP does not currently include this
manufacturers should not be subject to aural representation of emergency capability, the equipment used to view
compliance obligations because information in the secondary audio such programming does not currently
apparatus have no control over the stream properly lies with MVPDs. support it, and adding additional data to
audio functionality of MVPD However, to the extent MVPD
applications and technologies used to applications or other technologies have 58 See ESA Reply at 4 (‘‘If . . . the Commission
distribute linear programming on were to impose emergency information
been designed and developed to work requirements on IP-delivered linear video
mobile and other devices.54 For on a specific type of device or platform, programming within the home, any responsibility
we expect that users will be able to hear on devices should be limited to a ‘do not block’ or
50 NCTA Comments at 3–4 (citation omitted). ‘do no harm’ requirement.’’). See also Wireless
the secondary audio stream in an MVPD
51 Although NCTA argues that ‘‘[c]able operators RERC Reply at 5 (‘‘[I]f mobile device
application through the native audio manufacture[r]s at any point incorporate the ability
do not originate the type of ‘emergency information’
addressed by the Commission’s new rule,’’ but functionality of the device, as professed to tune into linear programming via a chip or other
‘‘simply pass along the aural emergency by industry commenters. We may built-in modification (via software, hardware or
information contained in a secondary audio stream impose obligations on manufacturers in firmware) or an app that is ‘integrated into a mobile
that is created by the originator of that device by the manufacturer,’ then the device
the future if we find that the apparatus manufacturer should be responsible for ensuring
information,’’ NCTA Comments at 4, we reiterate
our position ‘‘that to the extent an MVPD does itself does not make a secondary audio the provision of accessible emergency
create a crawl or other visual graphic conveying stream with audible emergency information.’’) (citation omitted).
local emergency information as defined in Section information from an MVPD application 59 NCTA Comments at 5. See also CEA Comments
79.2 and embeds it in non-newscast programming, available to the apparatus user or at 9 (arguing that a two-year period would be
it should also be responsible for making the visual consistent with deadlines the Commission has
emergency information aurally accessible.’’ First adopted in other CVAA proceedings); ESA Reply at
Report and Order, n.38. Letter’’). See also Wireless RERC Reply at 5 4 (suggesting that ‘‘any deadline should be subject
(agreeing with TIA and CTIA that the responsibility to industry development of appropriate technical
mstockstill on DSK4VPTVN1PROD with RULES
52 Further Notice, para. 3.
53 Id. for accessible emergency information on mobile and standards, with a subsequent phase-in period of at
54 See Comments of CTIA–The Wireless other devices lies with MVPDs because they are least two years after adoption of such standard to
Association, MB Docket Nos. 12–107, 11–43, at 2, providing the video programming via an address any complicated handoffs of other technical
5–6 (‘‘CTIA Comments’’); CEA Comments at 10–11; application or Web site, and ‘‘thus the mobile and business challenges’’).
TIA Comments at 4–5; ITIC Reply at 5; Letter from device in this case is serving as a conduit’’). 60 NCTA Comments at 4–5.
55 CTIA Comments at 5. 61 Id. at 5. See also NCTA Apr. 4, 2014 Ex Parte
Julie M. Kearney, Vice President, Regulatory
56 Id. Letter at 1–2.
Affairs, CEA, to Marlene H. Dortch, Secretary, FCC,
at 2 (Mar. 28, 2014) (‘‘CEA Mar. 28, 2014 Ex Parte 57 CEA Mar. 28, 2014 Ex Parte Letter at 1–2. 62 NCTA Apr. 4, 2014 Ex Parte Letter at 2.
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/6.svg)
![39704 Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations
the video stream would further congest for a number of devices. We believe that the Communications Act.’’ 73 Pursuant
strained broadband capabilities.63 a two-year period will provide sufficient to these statutory provisions, we find
20. Although we acknowledge that time for MVPDs to achieve these steps, that the Commission has authority to
today MVPDs typically pass through a along with the requisite testing and require that the secondary audio
single audio stream in the IP context,64 implementation, and is consistent with stream—which is used to make
the record also demonstrates that at other timeframes adopted by the emergency information audible to
least some MVPDs are already able to Commission for CVAA-related individuals who are blind or visually
use a secondary audio stream to deliver compliance.68 impaired—be made available on
emergency information when they covered apparatus in a manner that is
provide linear programming on mobile B. Activation Mechanism for Audible
accessible to such individuals.74
and other devices. Notably, Comcast has Emergency Information on the 24. As noted above, in the First Report
made investments in infrastructure to Secondary Audio Stream and Order, we required video
enable the secondary audio stream 22. We require manufacturers of programming providers and distributors
when it offers its cable services through apparatus subject to section 79.105 of to use the secondary audio stream as the
its Xfinity applications, and, currently, the Commission’s rules 69 to provide a means to provide accessible emergency
‘‘Comcast customers can access the mechanism that is simple and easy to information for individuals who are
secondary audio stream via the Xfinity use, such as one that is reasonably blind or visually impaired in
user interface on a number of third- comparable to a button, key, or icon, for accordance with section 202 of the
party devices.’’ 65 Further, Cablevision activating the secondary audio stream CVAA. Thus, to implement section 203
customers currently can access the for audible emergency information. We of the CVAA, we required apparatus
secondary audio stream when using conclude that such a requirement is designed to receive and play back video
Cablevision’s Optimum application on a necessary to ensure that covered programming transmitted
laptop or personal computer, though not apparatus are capable of making simultaneously with sound to decode
when using this application on other available emergency information in a and make available the secondary audio
mobile devices.66 Cablevision has manner that is accessible to individuals stream in a manner that enables
already initiated efforts to transmit the who are blind or visually impaired, as consumers to select the stream used for
secondary audio stream over the mandated by section 203 of the CVAA.70 transmission and delivery of emergency
Optimum application on mobile and information.75 Notably, the Commission
other devices, and explains that the was given authority and discretion to
process of implementing this 1. Legal and Policy Analysis promulgate regulations requiring
functionality involves further 23. In the User Interfaces Further covered entities to convey emergency
development of the application, Notice, the Commission sought information in a manner accessible to
software upgrades, and testing.67 comment on whether to require individuals who are blind or visually
21. Based on our review of the record, impaired. Use of the secondary audio
manufacturers of apparatus covered by
we conclude that a compliance deadline stream to provide audible emergency
section 203 of the CVAA to provide
of two years after publication of the information was not mandated by
Second Report and Order in the Federal access to the secondary audio stream
Congress.76 For example, the
Register is reasonable, though we used for audible emergency information
Commission could have required that
encourage covered MVPDs to offer this in a simple, straightforward, and timely
visual emergency information be made
functionality as soon as it is technically manner, such as through a mechanism
audible on the main program audio.77
feasible for them to do so. The record reasonably comparable to a button, key,
Given broad-based support from
shows that MVPDs may need to take a or icon.71 Section 303(u)(1)(C) of the
consumers and industry, as well as the
number of steps to achieve compliance, Act, as added by Section 203 of the
recommendation of the VPAAC,
such as acquiring additional equipment CVAA, requires that apparatus designed
however, the Commission decided that
to support the pass through of the to receive and play back video the secondary audio stream would be
secondary audio stream for IP and programming transmitted the best method to make visual
developing or modifying applications to simultaneously with sound ‘‘have the information presented during non-
support this type of audio functionality capability to decode and make available newscast programming audibly
emergency information (as that term is accessible to individuals who are blind
63 DIRECTV Comments at 7. See also NAB Reply defined in section 79.2 of the
at 3. Commission’s regulations (47 CFR 79.2)) 73 Public Law 111–260, sec. 203(d).
64 NCTA Apr. 4, 2014 Ex Parte Letter at 1. in a manner that is accessible to 74 See Reply Comments of the Rehabilitation
65 See Letter from James R. Coltharp, Chief Policy
individuals who are blind or visually Engineering Research Center for Wireless
Advisor, FCC & Regulatory Policy, Comcast impaired.’’ 72 Further, section 203 also Technologies, MB Docket Nos. 12–108, 12–107, at
Corporation, to Marlene H. Dortch, Secretary, FCC, 8 (Feb. 25, 2014) (‘‘Wireless RERC User Interfaces
at 1 (May 23, 2014). provides the Commission with authority Reply Comments’’); Reply Comments of the
66 See Letter from Tara M. Corvo, Counsel for to ‘‘prescribe such regulations as are American Foundation for the Blind and the
Cablevision Systems Corp., to Marlene H. Dortch, necessary to implement the American Council of the Blind, MB Docket Nos. 12–
Secretary, FCC, at 1 (June 26, 2014). requirements of section[] 303(u) . . . of 108, 12–107, at 2 (Mar. 20, 2014) (‘‘AFB/ACB User
67 Id. In addition, we note that Netflix has begun Interfaces Reply Comments’’).
75 First Report and Order, para. 50; 47 CFR
to include alternative audio tracks for their 68 See
First Report and Order, para. 37. 79.105(a).
programming on Netflix-supported devices. See 69 47
Todd Spangler, Netflix Adding Audio Description CFR 79.105. Covered apparatus include 76 See 47 U.S.C. 613(g)(1) through (2),
Tracks for Visually Impaired, Starting with apparatus that are designed to receive or play back 303(u)(1)(C). See also S. Rep. No. 111–386, at 13
video programming transmitted simultaneously
mstockstill on DSK4VPTVN1PROD with RULES
‘Marvel’s Daredevil,’ Variety (Apr. 14, 2015), (‘‘The Committee is aware that emergency alert
available at http://variety.com/2015/digital/news/ with sound that is provided by entities subject to information is inherently local and time sensitive
netflix-adding-audio-description-tracks-for-visually- sections 79.2 and 79.3, are manufactured or in nature. Therefore it is the intention of the
impaired-starting-with-marvels-daredevil- imported for use in the United States, and use a Committee that the Commission have flexibility
1201472372/# (noting that ‘‘the company is working picture screen of any size, subject to certain with respect to applying the requirements of new
with studios and other content owners to increase exemptions. See id. 79.105(a) through (b). section 713(g). . . .’’); H.R. Rep. No. 111–563, at 29
70 47 U.S.C. 303(u)(1)(C).
the amount of audio description across a range of (same).
71 User Interfaces Further Notice, para. 9. 77 See VPAAC Second Report: Access to
devices including smart TVs, tablets and
smartphones’’). 72 47 U.S.C. 303(u)(1)(C). Emergency Information at 8. See also id. at 11–12.
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/7.svg)
![Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations 39705
or visually impaired. Yet, emergency impaired, due to the complexities of requirements, including the activation
information presented aurally on the navigating through multiple on-screen mechanism requirement we adopt here,
secondary audio stream is not, as a menus to select this feature.82 While it will ensure that critical information that
practical matter, fully accessible to such is important that consumers who are is conveyed on television to further the
individuals unless they are able to blind or visually impaired are able to protection of life, health, safety, and
promptly switch to the secondary audio access the secondary audio stream for property in an emergency is available to
stream to hear the critical details of an video description services, it is even every viewer in a timely manner,
emergency in a timely manner. As the more critical that consumers who are including persons with visual
VPAAC concluded, unless blind or blind or visually impaired are able to disabilities.
visually impaired consumers are able to access the secondary audio stream for 27. We find that requiring the
more easily control the means of audible emergency information, and provision of a simple and easy to use
accessing the secondary audio stream on that they are able to do so in a timely activation mechanism for audible
devices, ‘‘emergency information manner.83 In an emergency situation, emergency information on the
present on the secondary audio channel every second counts. Thus, to ensure secondary audio stream is necessary to
may not be readily accessible.’’ 78 that emergency information is made fulfill the statute’s mandate that
25. Although the requirements related readily accessible, we conclude that emergency information be made
to the provision of accessible emergency individuals who are blind or visually accessible to individuals who are blind
information on a secondary audio impaired must be able to activate the or visually impaired. This is particularly
stream have not yet gone into effect,79 secondary audio stream in a simple and true given the time-sensitive nature of
the experiences of consumers who use easy to use manner. emergency information. At the same
the secondary audio stream for video 26. Requiring a simple and easy to use time, however, we believe it is
description are illustrative in showing mechanism for activating the secondary important that the industry has
how difficult it is for consumers to audio stream for emergency information flexibility in choosing the precise means
access any kind of programming on the will provide a substantial benefit for for activating the secondary audio
secondary audio stream. Currently, the consumers who are blind or visually stream.86 Accordingly, we do not
process for activating the secondary impaired by providing an easy and mandate a particular means of
audio stream is often arduous and time- quick method to switch to the secondary compliance. For example, we note that
consuming.80 In the User Interfaces audio stream to hear critical emergency the VPAAC stated that covered entities
Further Notice, the Commission information. According to AFB and could provide a dedicated button on a
observed that individuals who are blind ACB, ‘‘the importance of a streamlined remote control to activate the secondary
or visually impaired have experienced and obvious means for accessing audio stream, a mechanism it singled
difficulty with accessing the secondary emergency information is out as useful.87 However, we believe the
audio stream because the mechanism for indispensable,’’ given that the better path is to give industry the
switching to the secondary audio stream information being accessed ‘‘may very flexibility to develop simple and easy to
from the main program audio is buried well save lives.’’ 84 Indeed, as the use activation methods, similar to the
in several layers of on-screen menus.81 Commission has consistently approach we adopted to implement the
Likewise, in a CVAA-required report to recognized, ‘‘providing all viewers with requirements of sections 204 and 205 of
Congress on video description, the accurate information regarding the CVAA.88 Some industry
Commission noted that numerous emergencies is of great importance.’’ 85 commenters have indicated that they
individual commenters who are blind or have already begun developing
Emergency information is of unique
visually impaired contend that innovative approaches to comply with
significance given its potential impact
activating the secondary audio stream the activation mechanism rules adopted
on public safety, and it is essential that
on televisions and set-top boxes is in the User Interfaces Order. For
persons with disabilities have access to
challenging, and sometimes impossible example, NCTA states that activation
the same time-sensitive emergency
for individuals who are blind or visually methods now in development include
information to which other viewers
programmable buttons on remote
have access. Our emergency information
78 VPAAC Second Report: Access to Emergency controls and that voice and gesture
Information at 7–8 (‘‘To obtain emergency controls will likely be offered in
82 VideoDescription Report to Congress, para. 32.
information from television programming, many
users with visual disabilities require a greater level 83 SeeVPAAC Second Report: Access to addition to these methods.89
of access to controls on receiving devices than most Emergency Information at 7 (‘‘The effective use of
models of such devices offer today. . . . [A] blind video description by the blind or visually impaired 86 See User Interfaces Order, para. 81 (stating that
or visually impaired person will need a reliable for any purpose requires convenient, reliable and the requirement to provide an activation
method of accessing the secondary audio feed if readily available access to the video description mechanism reasonably comparable to a button, key,
emergency information is to be provided on [this] service [on the secondary audio stream]. If this or icon ‘‘is consistent with Congress’s intent ‘to
service.’’). service is to convey emergency information, the ensure ready access to [closed captioning and video
79 Compliance with the accessible emergency convenience of such access is all the more description] features by persons with disabilities,’
information rules adopted in the First Report and important.’’). while still giving covered entities the flexibility
Order is required by May 26, 2015, subject to 84 AFB/ACB User Interfaces Reply Comments at contemplated by the statute’’).
certain exceptions. See 47 CFR 79.2(b)(2)(ii), 2. See also Wireless RERC User Interfaces Reply 87 See VPAAC Second Report: Access to
79.105(a), 79.106(a). See also First Report and Comments at 9 (strongly urging the Commission to Emergency Information at 8–9 (‘‘In the event that
Order, paras. 37–45, paras. 76–77. adopt a requirement for a mechanism reasonably . . . the crawl or scroll is made auditory in the
80 See AFB/ACB User Interfaces Reply Comments comparable to a button, key, or icon for accessing secondary audio channel, several other methods
at 2 (noting that AFB, ACB, and individual the secondary audio stream for audible emergency could possibly be used to assist visually impaired
consumers ‘‘have commented on the current information because ‘‘[t]his can be a life and death consumers in gaining access to this audio service.
mstockstill on DSK4VPTVN1PROD with RULES
difficulty, and frequently virtual impossibility, of scenario where people with vision disabilities For example, physical buttons on the remote
locating [video] description controls and turning would miss information that affects their immediate control may help individuals with visual
[video] description on’’); Video Description: safety’’). disabilities enable the second audio channel.’’).
Implementation of the Twenty-First Century 85 Implementation of Section 305 of the 88 User Interfaces Order, para. 81.
Communications and Video Accessibility Act of Telecommunications Act of 1996, Closed 89 See National Cable & Telecommunications
2010, MB Docket No. 11–43, Report to Congress, DA Captioning and Video Description of Video Association, Opposition to Petition for
14–945, para. 32, nn.102–05 (MB rel. Jun. 30, 2014) Programming: Accessibility of Emergency Reconsideration, MB Docket Nos. 12–108, 12–07, at
(‘‘Video Description Report to Congress’’). Programming, MM Docket No. 95–176, Second 7 (filed Feb. 18, 2014). See also Letter from James
81 User Interfaces Further Notice, para. 9. Report and Order, FCC 00–136, 65 FR 26757 (2000). Continued
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/8.svg)
![39706 Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations
28. Industry commenters raise a have said so in section 203.’’ 93 the Commission in section 203 to ensure
number of legal arguments as to why However, this argument also fails to that covered apparatus have the
they believe the Commission should not recognize that Congress gave the capability to make available emergency
require an activation mechanism for Commission authority to identify information in an accessible manner. As
audible emergency information on methods to convey emergency explained above, the record
section 203 apparatus, but we find each information in a manner accessible to demonstrates that such a mechanism is
of them to be unpersuasive. As we individuals who are blind or visually necessary to carry out the statutory
explain below, we require covered impaired, and to promulgate regulations directive.95
entities to provide a simple and easy to (i) requiring covered video programming 30. NCTA and CEA point out that the
use activation mechanism and find that providers and distributors to convey Commission adopted rules pursuant to
a mechanism reasonably comparable to emergency information in an accessible sections 204 and 205 of the CVAA
a button, key, or icon would satisfy this manner, and (ii) requiring covered requiring the accessibility of appropriate
standard. We disagree with commenters apparatus to have the capability to make built-in apparatus functions on digital
who contend that the Commission emergency information available in an apparatus and the audible accessibility
should not require covered entities to accessible manner.94 In other words, as of on-screen text menus and guides used
provide a simple means for accessing discussed above, when Congress for the display or selection of
the secondary audio stream for enacted the CVAA, it did not specify the multichannel video programming on
emergency information because section particular requirements for making navigation devices for individuals who
203 does not contain such a mandate.90 emergency information available in a are blind or visually impaired.96
As explained above, section 303(u)(1)(C) manner accessible to individuals who According to NCTA and CEA, because
of the Act requires generally that are blind or visually impaired. Rather, it individuals who are blind or visually
covered apparatus have the capability to gave the Commission authority and impaired will have audible access to the
make available emergency information discretion to adopt implementing on-screen menus used to locate the
in an accessible manner, and section regulations. Moreover, as Congress did secondary audio stream, ‘‘no additional
203 of the CVAA grants the Commission not specify in the statute that covered dedicated ‘mechanism’ will be needed
authority to adopt regulations that are entities must use a secondary audio for blind or visually impaired customers
necessary to implement this stream to convey audible emergency to be able to readily locate’’ the
requirement.91 Thus, the Commission information to individuals who are secondary audio stream for emergency
has latitude to adopt requirements that blind or visually impaired, there was no information.97 Although we believe that
will ensure that emergency information reason for Congress to mandate a simple these new regulations will make it
is made available in an accessible and easy to use mechanism to access easier for individuals who are blind or
manner. that stream. Indeed, had the
29. For similar reasons, we reject Commission chosen instead to 95 Commissioner Pai dissents ‘‘from the
industry commenters’ argument that the implement section 203 by requiring all requirement that manufacturers of televisions, set-
Commission has no authority to require emergency information to be audible on top boxes, and other covered devices include in
those apparatuses a mechanism for activating the
an activation mechanism for audible the primary audio stream, there would secondary audio stream for emergency information
emergency information because have been no need for an activation that is reasonably comparable to a button, key, or
Congress specifically required an mechanism for the secondary audio icon.’’ He objects to what he describes as importing
activation mechanism reasonably stream that is reasonably comparable to into the rules implementing section 203 of the
comparable to a button, key, or icon in CVAA specific mandates set forth in sections 204
a button, key, or icon. Thus, even and 205 of the CVAA. See Statement of
sections 204 and 205 of the CVAA, but though the ‘‘reasonably comparable to a Commissioner Ajit Pai, Approving in Part and
not in section 203 of the CVAA.92 CEA button, key, or icon’’ language is Dissenting in Part. The rule we adopt today,
opines that ‘‘[i]f Congress had meant for included in other sections of the CVAA, however, does no such thing. Rather, it requires
such a specific requirement to apply to only that ‘‘all apparatus subject to this section must
we do not believe its omission from provide a simple and easy to use mechanism for
emergency information, it surely would section 203 is indicative of Congress’ activating the secondary audio stream for audible
intent to bar the Commission from emergency information.’’ See 47 CFR 79.105(d).
R. Coltharp, Chief Policy Advisor, FCC & Regulatory requiring an activation mechanism in While the dissent distinguishes between ‘‘the
Policy, Comcast Corporation, to Marlene H. Dortch, the emergency information context. We capabilities that devices must have’’ and ‘‘the
Secretary, FCC, at 1 (Mar. 20, 2015) (detailing a means of activating those capabilities,’’ id., the
demonstration of how consumers can activate and find this argument fails to recognize the Commission finds that distinction artificial. In
use the talking guide, closed captioning, and video rulemaking authority Congress granted directing the Commission to ensure that covered
description on Comcast’s X1 platform). apparatus ‘‘have the capability to decode and make
90 Comments of the Consumer Electronics 93 CEA User Interfaces Comments at 9. See also available emergency information . . . in a manner
Association, MB Docket Nos. 12–108, 12–107, at 8 DISH/EchoStar User Interfaces Comments at 6 (‘‘If that is accessible to individuals who are blind or
(Feb. 18, 2014) (‘‘CEA User Interfaces Comments’’). Congress had intended for the Commission to visually impaired,’’ the majority does not believe
See also Comments of DISH Network L.L.C. and require that access to the secondary audio stream that Congress intended that such apparatus have
EchoStar Technologies L.L.C., MB Docket Nos. 12– for audible emergency information on apparatus capabilities such as an audio stream of emergency
108, 12–107, at 6 (Feb. 18, 2014) (‘‘DISH/EchoStar covered by section 203 be available via a information that are impossible for individuals who
User Interfaces Comments’’) (‘‘The absence of a mechanism ‘reasonably comparable to a button, are blind or vision impaired to activate quickly
‘reasonably comparable’ mechanism requirement in key, or icon,’ or any other specified mechanism, when they are needed—in an emergency. Such a
Section 203 precludes the Commission from Congress would have stated so.’’); NCTA User distinction would be self-defeating. As discussed in
imposing such a requirement in that context.’’); Interfaces Comments at 6 (noting that section 205 the order, the statutory directive that the
Reply Comments of the Consumer Electronics specifically references a mechanism for activating Commission adopt rules ensuring that emergency
Association, MB Docket Nos. 12–108, 12–107, at 5 closed captioning, but ‘‘section 203 . . . does not information is accessible to individuals who are
(Mar. 20, 2014) (‘‘CEA User Interfaces Reply reference a mechanism at all. Under these blind or visually impaired grants the Commission
mstockstill on DSK4VPTVN1PROD with RULES
Comments’’). circumstances, no additional authority to impose ample authority for the rules we adopt today.
91 47 U.S.C. 303(u)(1)(C); Public Law 111–260, such a requirement can be inferred.’’); CEA User 96 See NCTA User Interfaces Comments at 7; CEA
sec. 203(d). Interfaces Reply Comments at 6. See also Letter User Interfaces Reply Comments at 6.
92 See CEA User Interfaces Comments at 9; DISH/ from Diane B. Burstein, Vice President and Deputy 97 Id. See also NCTA Feb. 18, 2015 Ex Parte Letter
EchoStar User Interfaces Comments at 5–7; General Counsel, NCTA, to Marlene H. Dortch, at 1, n.2 (‘‘We further explained that audibly-
Comments of the National Cable & Secretary, FCC, at 1 (Feb. 18, 2015) (‘‘NCTA Feb. accessible guides and menus will assist blind or
Telecommunications Association, MB Docket Nos. 18, 2015 Ex Parte Letter’’). visually impaired individuals in locating [the]
12–108, 12–107, at 6 (Feb. 18, 2014) (‘‘NCTA User 94 See 47 U.S.C. 613(g)(1) through (2), secondary audio stream that will contain emergency
Interfaces Comments’’). 303(u)(1)(C). information as well as video description.’’).
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/9.svg)
![39708 Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations
for requiring covered entities to provide deadline consistent with that imposed accordance with section 79.2 of the
a simple and easy to use mechanism for in the User Interfaces Order will Commission’s rules 118 when they
accessing the secondary audio stream provide sufficient time for apparatus permit consumers to access linear
for audible emergency information.106 manufacturers to achieve these steps. In programming on tablets, smartphones,
The Commission also inquired whether addition, we find that requiring laptops, and similar devices over the
the deadline should be consistent with manufacturers of such devices to MVPD’s network as part of their MVPD
the deadline for compliance with incorporate the required accessibility services. Increasingly, Americans are
section 203 apparatus requirements that features at the same time will ensure utilizing a wide range of devices in
were adopted in the First Report and that the devices are updated on a addition to the television to view video
Order (May 26, 2015) 107 or whether uniform timetable. Such a uniform programming, and a number of MVPDs
device manufacturers would need timeframe will prevent any consumer now allow customers to view linear
additional time to come into confusion as to the capabilities of their programming on second screen devices
compliance.108 devices.113 using applications or other technologies.
35. The Wireless RERC, the only party The conclusion we make in the Second
to comment on this issue, argues that IV. Procedural Matters
Report and Order ensures that
the deadline for a requirement to A. Final Regulatory Flexibility Act individuals who are blind or visually
provide a simple and easy to use 37. As required by the Regulatory impaired will be provided with
mechanism for accessing the secondary Flexibility Act of 1980, as amended accessible emergency information when
audio stream for audible emergency (‘‘RFA’’),114 an Initial Regulatory they are watching linear programming
information should be consistent with Flexibility Analysis (‘‘IRFA’’) was over the MVPD’s network as part of
the deadlines for apparatus that the incorporated into each of the Further their MVPD services, regardless of
Commission adopted in the First Report Notices of Proposed Rulemaking whether they are viewing the
and Order.109 The Wireless RERC (‘‘-NPRM’’) in this proceeding.115 The programming on their television or on
strongly recommends that the Federal Communications Commission their tablet, smartphone, or similar
Commission not go beyond the (‘‘Commission’’) sought written public device.
deadlines adopted in that Order because comment on the proposals in the 40. Second, the Second Report and
delays in implementation of the new Further Notices, including comment on Order requires manufacturers of
requirements could place persons who the IRFA. The Commission received no apparatus subject to Section 79.105 of
are blind or visually impaired in a comments on the IRFA. This present the Commission’s rules 119 to provide a
potentially ‘‘perilous position[ ].’’ 110 Final Regulatory Flexibility Analysis mechanism that is simple and easy to
Further, the Wireless RERC asserts that (‘‘FRFA’’) conforms to the RFA.116 use for activating the secondary audio
any extensions of the deadline or stream to access audible emergency
waivers of the newly adopted 1. Need for, and Objectives of, the information. Individuals who are blind
regulations ‘‘should be granted very Second Report and Order or visually impaired should not have to
judiciously.’’ 111 38. In the Second Report and Order, navigate through multiple levels of
36. We conclude that it is reasonable we take additional steps under the menus or take other time-consuming
to apply the same compliance deadline authority of sections 202 and 203 of the actions to activate the secondary audio
that we adopted in the User Interfaces CVAA 117 to make emergency stream when they hear the aural tone
Order for digital apparatus and information in video programming signaling that emergency information is
navigation devices to comply with the accessible to individuals who are blind being provided visually on the screen.
accessible user interfaces rules, or visually impaired. In emergency situations, every second
including the requirement to provide an 39. First, the Second Report and counts. Thus, we believe that in order
activation mechanism reasonably Order concludes that multichannel for emergency information to be made
comparable to a button, key, or icon for video programming distributors fully accessible to individuals who are
certain accessibility features, to the (‘‘MVPDs’’) must pass through a blind or visually impaired in
requirement adopted here. Thus, secondary audio stream containing accordance with Section 203 of the
consistent with the deadline in section audible emergency information in CVAA, manufacturers of covered
79.109(c) of our rules, covered apparatus must ensure that such
manufacturers must provide a simple 113 This will also reduce any consumer confusion individuals have a simple, easy to use
and easy to use mechanism for that could arise from different deadlines relating to mechanism to activate the secondary
accessing the secondary audio stream access to the secondary audio stream applying
depending upon whether a particular device is
audio stream in order to hear emergency
for audible emergency information no covered by Section 203, 204, or 205 of the CVAA. information.
later than December 20, 2016.112 We find that Wireless RERC’s proposed timeframe
Although apparatus manufacturers were of May 26, 2015 has been rendered moot by the 2. Summary of Significant Issues Raised
silent in the record with regard to this passage of time. By Public Comments in Response to the
issue, we believe that they will need 114 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 IRFA
et seq., has been amended by the Small Business
some time for the design, testing, and Regulatory Enforcement Fairness Act of 1996 41. No public comments were filed in
implementation of a simple and easy to (‘‘SBREFA’’), Public Law 104–121, Title II, 110 Stat. response to the IRFA.
use activation mechanism for the 857 (1996). The SBREFA was enacted as Title II of 42. Pursuant to the Small Business
secondary audio stream on covered the Contract with America Advancement Act of Jobs Act of 2010, the Commission is
1996 (‘‘CWAAA’’).
apparatus. We believe that making the 115 See Further Notice, para. 9; User Interfaces
required to respond to any comments
filed by the Chief Counsel for Advocacy
mstockstill on DSK4VPTVN1PROD with RULES
Further Notice, para. 17.
106 User Interfaces Further Notice, para. 11. 116 See 5 U.S.C. 604. of the Small Business Administration
107 47 CFR 79.105(a).
108 User Interfaces Further Notice, para. 11.
117 Twenty-First Century Communications and (SBA), and to provide a detailed
Video Accessibility Act of 2010, Public Law 111– statement of any change made to the
109 See Wireless RERC User Interfaces Reply
260, 124 Stat. 2751 (2010); Amendment of Twenty-
Comments at 10. First Century Communications and Video
proposed rules as a result of those
110 Id.
Accessibility Act of 2010, Public Law 111–265, 124
111 Id. 118 47 CFR 79.2.
Stat. 2795 (2010) (making technical corrections to
112 47 CFR 79.109(c). the CVAA). 119 47 CFR 79.105.
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/11.svg)
![Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Rules and Regulations 39715
accompanying aural tone) gets passed temporary rule. NMFS projects for greater amberjack is also closed, as
through to consumers. commercial landings for greater specified in 50 CFR 622.34(c), and
* * * * * amberjack, will reach the commercial during this recreational closure, the bag
(6) Beginning July 10, 2017, ACT (commercial quota) by July 19, and possession limits for greater
multichannel video programming 2015. Therefore, NMFS closes the amberjack in or from the Gulf EEZ are
distributors must ensure that any commercial sector for greater amberjack zero. During the commercial closure, the
application or plug-in that they provide in the Gulf on July 19, 2015, and it will sale or purchase of greater amberjack
to consumers to access linear remain closed until the start of the next taken from the EEZ is prohibited. The
programming on tablets, smartphones, fishing season on January 1, 2016. This prohibition on sale or purchase does not
laptops, and similar devices over the closure is necessary to protect the Gulf apply to the sale or purchase of greater
MVPD’s network as part of their greater amberjack resource. amberjack that were harvested, landed
multichannel video programming DATES: This rule is effective 12:01 a.m., ashore, and sold prior to 12:01 a.m.,
distributor services is capable of passing local time, July 19, 2015, until 12:01 local time, July 19, 2015, and were held
through to consumers an aural a.m., local time, January 1, 2016. in cold storage by a dealer or processor.
representation of the emergency FOR FURTHER INFORMATION CONTACT: Rich
The commercial sector for greater
information (including the Malinowski, NMFS Southeast Regional amberjack will reopen on January 1,
accompanying aural tone) on a Office, telephone: 727–824–5305, or 2016, the beginning of the 2016
secondary audio stream. email: rich.malinowski@noaa.gov. commercial fishing season.
* * * * * SUPPLEMENTARY INFORMATION: NMFS Classification
■ 3. Amend § 79.105 by adding manages the reef fish fishery of the Gulf, The Regional Administrator,
paragraph (d) and a note to paragraph which includes greater amberjack, Southeast Region, NMFS, has
(d) to read as follows: under the Fishery Management Plan for determined this temporary rule is
the Reef Fish Resources of the Gulf necessary for the conservation and
§ 79.105 Video description and emergency (FMP). The Gulf of Mexico Fishery
information accessibility requirements for management of the Gulf greater
Management Council (Council) amberjack component of the Gulf reef
all apparatus.
prepared the FMP and NMFS fish fishery and is consistent with the
* * * * * implements the FMP under the
(d) Beginning December 20, 2016, all Magnuson-Stevens Act and other
authority of the Magnuson-Stevens applicable laws.
apparatus subject to this section must Fishery Conservation and Management This action is taken under 50 CFR
provide a simple and easy to use Act (Magnuson-Stevens Act) by 622.41(a)(1) and is exempt from review
mechanism for activating the secondary regulations at 50 CFR part 622. All under Executive Order 12866.
audio stream for audible emergency greater amberjack weights discussed in These measures are exempt from the
information. this temporary rule are in round weight. procedures of the Regulatory Flexibility
Note To Paragraph (d): This paragraph The commercial annual catch limit Act, because the temporary rule is
places no restrictions on the importing, (ACL) for Gulf greater amberjack is issued without opportunity for prior
shipping, or sale of navigation devices that 481,000 lb (218,178 kg), as specified in notice and comment.
were manufactured before December 20, 50 CFR 622.41(a)(1), and the This action responds to the best
2016. scientific information available. The
commercial ACT (equivalent to the
[FR Doc. 2015–16324 Filed 7–9–15; 8:45 am] commercial quota) is 409,000 lb Assistant Administrator for Fisheries,
BILLING CODE 6712–01–P (185,519 kg), as specified in 50 CFR NOAA (AA), finds that the need to
622.39(a)(1)(v). immediately implement this action to
Under 50 CFR 622.41(a)(1)(i), NMFS close the commercial sector for greater
DEPARTMENT OF COMMERCE is required to close the commercial amberjack constitutes good cause to
sector for greater amberjack when the waive the requirements to provide prior
National Oceanic and Atmospheric commercial ACT (commercial quota) is notice and opportunity for public
Administration reached, or is projected to be reached, comment pursuant to the authority set
by filing a notification to that effect with forth in 5 U.S.C. 553(b)(B), as such
50 CFR Part 622 the Office of the Federal Register. NMFS procedures would be unnecessary and
[Docket No. 1206013412–2517–02] has determined the commercial ACT contrary to the public interest. Such
(commercial quota) will be reached by procedures are unnecessary because the
RIN 0648–XE028 July 19, 2015. Accordingly, the rule establishing the closure provisions
commercial sector for Gulf greater was subject to notice and comment, and
Fisheries of the Caribbean, Gulf of amberjack is closed effective 12:01 a.m., all that remains is to notify the public
Mexico, and South Atlantic; 2015 local time, July 19, 2015, until 12:01 of the closure. Such procedures are
Commercial Accountability Measure a.m., local time, January 1, 2016. contrary to the public interest because
and Closure for Gulf of Mexico Greater The operator of a vessel with a valid of the need to immediately implement
Amberjack commercial vessel permit for Gulf reef this action to protect greater amberjack.
AGENCY: National Marine Fisheries fish with greater amberjack on board The capacity of the commercial sector
Service (NMFS), National Oceanic and must have landed, bartered, traded, or allows for rapid harvest of the
Atmospheric Administration (NOAA), sold such greater amberjack prior to commercial ACT (commercial quota),
Commerce. 12:01 a.m., local time, July 19, 2015. and prior notice and opportunity for
mstockstill on DSK4VPTVN1PROD with RULES
ACTION: Temporary rule; closure. During the commercial closure, the bag public comment would require time and
and possession limits specified in 50 would potentially result in harvest
SUMMARY: NMFS implements CFR 622.38(b)(1), apply to all harvest or exceeding the commercial ACT
accountability measures (AMs) for possession of greater amberjack in or (commercial quota) and commercial
commercial greater amberjack in the from the Gulf exclusive economic zone ACL.
Gulf of Mexico (Gulf) reef fish fishery (EEZ). However, from June 1 through For the aforementioned reasons, the
for the 2015 fishing year through this July 31 each year, the recreational sector AA also finds good cause to waive the
VerDate Sep<11>2014 16:28 Jul 09, 2015 Jkt 235001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1](https://thefederalregister.org/doc/80_FR_39830/page/18.svg)
Document Created: 2018-02-23 09:15:55
Document Modified: 2018-02-23 09:15:55
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective August 10, 2015. | |
| Contact | Evan Baranoff, [email protected], of the Media Bureau, Policy Division, (202) 418-2120. | |
| FR Citation | 80 FR 39698 | |
| CFR Associated | Cable Television Operators; Communications Equipment; Multichannel Video Programming Distributors (mvpds) and Satellite Television Service Providers |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR