Vol. 78 Friday, No. 245 December 20, 2013

Part II

Federal Communications Commission

47 CFR Part 79 Accessibility of User Interfaces, and Video Programming Guides and Menus; Final Rule

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FEDERAL COMMUNICATIONS Commission’s copy contractor, 445 12th Commission’s rules—that is, devices COMMISSION Street SW., Room CY–B402, and other equipment used by consumers Washington, DC 20554. Alternative to access multichannel video 47 CFR Part 79 formats are available for people with programming and other services offered [MB Docket Nos. 12–108, 12–107; FCC 13– disabilities (Braille, large print, over multichannel video programming 138] electronic files, audio format), by systems. sending an email to [email protected] or • Find that under current Accessibility of User Interfaces, and calling the Commission’s Consumer and marketplace and technological Video Programming Guides and Menus Governmental Affairs Bureau at (202) conditions, consumers generally only 418–0530 (voice), (202) 418–0432 access multichannel video programming AGENCY: Federal Communications (TTY). and other services offered over Commission. multichannel video programming ACTION: Final rule. Paperwork Reduction Act of 1995 systems through the use of devices that Analysis have built-in capability to use a SUMMARY: Pursuant to the Twenty-First This document contains new or conditional access mechanism, and Century Communications and Video modified information collection therefore, Section 205 only applies to Accessibility Act of 2010 (‘‘CVAA’’), the requirements. The Commission, as part devices manufactured with a Federal Communications Commission of its continuing effort to reduce CableCARD slot or other conditional (Commission) adopts rules requiring the paperwork burdens, invites the general access technology; this includes devices accessibility of user interfaces on digital public to comment on the information such as set-top boxes, digital cable ready apparatus and video programming collection requirements contained in televisions, devices with pre-installed guides and menus on navigation devices this Report and Order as required by the MVPD applications, and cable modems. • for individuals with disabilities. These Paperwork Reduction Act of 1995, Conclude that Section 204 of the rules will enable individuals who are Public Law 104–13. In addition, the CVAA applies to all other ‘‘digital blind or visually impaired to more Commission notes that pursuant to the apparatus designed to receive or play easily access video programming on a Small Business Paperwork Relief Act of back video programming transmitted in range of video devices, and will enable 2002, Public Law 107–198, see 44 U.S.C. digital format simultaneously with consumers who are deaf or hard of 3506(c)(4), we previously sought sound.’’ Interpret this phrase the same hearing to more easily activate closed specific comment on how the as a comparable phrase in Section 203 captioning on video devices. Commission might further reduce the was interpreted in the IP Closed DATES: Effective January 21, 2014, information collection burden for small Captioning Order, but excluding except for §§ 79.107(c), 79.108(a)(5), business concerns with fewer than 25 navigation devices. Thus, this class of 79.108(c)–(e), and 79.110, which employees. We did not receive any devices includes televisions and contain information collection comments specifically addressing this computers without conditional access requirements that are not effective until issue. In the present document, we have capability, mobile devices (such as approved by the Office of Management assessed the effects of the new tablets and smartphones) that do not and Budget. The Commission will requirements on small businesses, have pre-installed MVPD applications, publish a document in the Federal and removable media players. including those with fewer than 25 • Register announcing the effective date employees, in the Final Regulatory Conclude, consistent with the for those sections. Flexibility Analysis (‘‘FRFA’’) below. Commission’s approach in implementing Section 203 in the IP FOR FURTHER INFORMATION CONTACT: Summary of the Report and Order Closed Captioning Order, that Section Adam Copeland, Adam.Copeland@ 204 applies to the video players and fcc.gov, or Maria Mullarkey, I. Introduction user interfaces of video applications, [email protected], of the Policy 1. Pursuant to the Twenty-First such as Netflix, Hulu, and Amazon, Division, Media Bureau, (202) 418– Century Communications and Video when such applications are pre- 2120. For additional information Accessibility Act of 2010 (‘‘CVAA’’), the installed on digital apparatus by the concerning the Paperwork Reduction Report and Order (R&O) adopts rules manufacturer. Act information collection requirements requiring the accessibility of user • Find that professional and contained in this document, contact interfaces on digital apparatus and commercial equipment and public Cathy Williams at (202) 418–2918 or navigation devices used to view video safety and enterprise equipment are send an email to [email protected]. programming. The rules we adopt here outside the scope of Sections 204 and SUPPLEMENTARY INFORMATION: This is a will effectuate Congress’s goals in 205. summary of the Commission’s Report enacting Sections 204 and 205 of the • Defer the compliance deadline by and Order, FCC 13–138, adopted on CVAA by: (1) Enabling individuals who an additional five years for display-only October 29, 2013 and released on are blind or visually impaired to more monitors and video projectors and October 31, 2013. The full text of this easily access video programming on a devices, such as digital cameras, that are document is available for public range of video devices; and (2) enabling subject to the waiver granted in the IP inspection and copying during regular consumers who are deaf or hard of Closed Captioning Reconsideration business hours in the FCC Reference hearing to more easily activate closed Order. Center, Federal Communications captioning on video devices. • Determine that under Section 204, Commission, 445 12th Street SW., Room 2. As discussed in Section III below, the entities responsible for compliance CY–A257, Washington, DC 20554. This we delineate the types of devices that are digital apparatus manufacturers. document will also be available via are covered under Sections 204 and 205 • Determine that under Section 205, ECFS at http://fjallfoss.fcc.gov/ecfs/. and discuss the responsible entities the entities responsible for compliance Documents will be available under each section. Specifically, we: are MVPDs leasing or selling navigation electronically in ASCII, Microsoft Word, • Conclude that Section 205 of the devices, equipment manufacturers of and/or Adobe Acrobat. The complete CVAA applies to ‘‘navigation devices’’ navigation devices that place devices text may be purchased from the as defined by § 76.1200 of the into the chain of commerce for sale to

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consumers, and other manufacturers of include any of these functions, they • With respect to a covered entity that navigation device hardware and must be made accessible in accordance relies on separate equipment or software software. with our rules. (‘‘separate solution’’) to achieve • Find that MVPDs and other • Do not adopt technical standards or accessibility under Section 205(b)(4) of manufacturers of software installed on other technical requirements for the CVAA, we: devices by a device manufacturer that compliance with the accessibility Æ Conclude that a covered entity that provides on-screen text menus and mandates in Sections 204 and 205, but relies on a separate solution to achieve guides for the display or selection of apply the definition of ‘‘accessible’’ in accessibility is responsible for providing multichannel video programming, such § 6.3(a) of the Commission’s rules for such solution to a requesting blind or as applications offered by MVPDs to guidance on how to make functions visually impaired individual; view multichannel video programming, generally accessible. Æ Require that if a non-compliant are responsible for compliance with • Implement the same rules as in navigation device has any functions that Section 205, including both audible other CVAA contexts for determining are required to be made accessible guide and menu accessibility and whether compliance with Section 204 pursuant to the rules we adopt in the ensuring the software’s closed and 205 accessibility requirements is R&O, any separate solution relied upon captioning capability can be activated ‘‘achievable.’’ to achieve accessibility must make all of through a mechanism reasonably • Require apparatus covered by those functions accessible or enable the comparable to a button, key, or icon. Section 204 to provide access to closed accessibility of those functions; 3. As discussed in Section IV below, captioning and video description Æ Require that a separate solution be we specify the accessibility obligations through a mechanism for each that is provided in a manner that is not more of devices covered under Sections 204 reasonably comparable to a button, key, burdensome to requesting blind or and 205. Specifically, we: or icon. visually impaired individuals than the • Under Section 204, require • Require navigation devices covered manner in which other consumers apparatus designed to receive or play by Section 205 to provide access to generally obtain navigation devices; back video programming transmitted closed captioning (but not, at this time, Æ Require that a covered entity simultaneously with sound to make video description) through a mechanism relying on a separate solution must ‘‘appropriate’’ built-in functions (i.e., reasonably comparable to a button, key, make available such solution ‘‘within a those used for the reception, play back, or icon. reasonable time,’’ defined as a period of or display of video programming) 4. As discussed in Section V below, time comparable to the time in which it accessible to individuals who are blind we set forth the compliance obligations generally provides navigation devices to or visually impaired. of entities subject to Section 205 of the consumers who are not blind or visually Æ Conclude that, at this time, the 11 CVAA (‘‘covered entities’’) to provide impaired; Æ essential functions identified by the accessibility ‘‘upon request.’’ Conclude that a covered entity that VPAAC are the ‘‘appropriate’’ built-in Specifically, we: provides separate equipment or software functions under Section 204. • Require a covered entity to provide may not impose on a requesting blind or Æ Conclude that, if the ‘‘appropriate’’ accessible navigation devices to visually impaired consumer any charges built-in functions are accessed through requesting blind or visually impaired beyond those it has imposed for the on-screen text menus or other visual individuals ‘‘within a reasonable time,’’ non-compliant navigation device. In indicators built in to the apparatus, such defined as a time period comparable to cases where an entity provides functions must be accompanied by the time that it takes such entity to accessibility functionality in only select audio output. provide navigation devices generally to devices, this constitutes an ‘‘other • Under Section 205, require other consumers; solution’’ under Section 205(b)(4)(B) for navigation devices to make on-screen • Conclude that a covered entity must which an entity can impose no text menus and guides for the display or permit blind or visually impaired additional charge. For example, if a selection of multichannel video consumers to request compliant devices covered entity’s only solution is to programming audibly accessible. through any means that it generally provide a sophisticated navigation Æ Conclude that nine of the 11 makes available to other consumers that device (one with enhanced features and essential functions identified by the request navigation devices; functions) to a consumer that requests a VPAAC are used for the display or • Conclude that a manufacturer that less sophisticated device, it cannot selection of video programming and provides navigation devices at retail to charge the consumer more than the must be made audibly accessible on requesting blind or visually impaired price of the less sophisticated device; navigation devices under Section 205 to consumers must make a good faith effort and the extent they are accessed through on- to have retailers make available Æ Conclude that if a covered entity’s screen text menus and guides. compliant navigation devices to the chosen manner of compliance involves Æ Conclude that the remaining two same extent they make available a software solution that must be VPAAC functions—power on/off and navigation devices to other consumers operated on a third-party device (e.g., a volume adjust/mute—must be made generally; and laptop, tablet, smart phone) or if accessible (but not necessarily audibly • Conclude that any means that a additional services are required to make accessible) to individuals who are blind covered entity employs to accept use of the device, this manner of or visually impaired on navigation requests for accessible devices may not compliance constitutes an ‘‘other devices under Section 205 because they be more burdensome to blind or visually solution’’ under Section 205(b)(4)(B); are controls necessary to access covered impaired individuals than the means thus, the covered entity must provide functions. the entity employs to provide navigation that solution—i.e., the software, third- • Recognize that a covered apparatus devices generally to other consumers, party device, and any service needed to or navigation device may not include all e.g., if a covered entity establishes a use the accessibility features—to the of the functions required to be Web site through which blind or requesting individual at no additional accessible and is not required to add visually impaired consumers can charge. any of these functions, but to the extent request accessible devices, such Web • Require a covered entity to ensure the apparatus or navigation device does site must be screen-readable. that activation mechanisms comparable

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to a button, key, or icon for built-in digital format simultaneously with requirement.’’ Id. Section 205 also closed captioning are provided on all its sound’’ be built in a way so that directs the Commission to require, ‘‘for navigation devices (i.e., such ‘‘control of appropriate built-in navigation devices with built-in closed mechanisms are not subject to the apparatus functions are accessible to captioning capability, that access to that statutory ‘‘upon request’’ language in and usable by individuals who are blind capability through a mechanism is Section 205). or visually impaired.’’ 47 U.S.C. reasonably comparable to a button, key, 5. As discussed in Section VI below, 303(aa)(1). Section 204 states that the or icon designated for activating the we address a number of other issues Commission ‘‘may not specify the closed captioning, or accessibility related to our implementation of technical standards, protocols, features.’’ Id. 303(bb)(2). Sections 204 and 205. Specifically, we: procedures, and other technical 9. The CVAA directed the Chairman • Conclude that MVPDs must clearly requirements for meeting this of the Commission to establish an and conspicuously inform consumers requirement.’’ Id. Section 204 also advisory committee known as the Video about the availability of accessible specifies that if ‘‘on-screen text menus navigation devices when providing or other visual indicators built in to the Programming Accessibility Advisory information about equipment options in digital apparatus are used to access the Committee (‘‘VPAAC’’), with response to a consumer inquiry about functions of the apparatus . . . such representatives from the industry and service, accessibility, or other issues, functions shall be accompanied by consumer groups. The VPAAC was and also must provide such notice on audio output that is either integrated or directed to develop a report their official Web sites. peripheral to the apparatus’’ so that they recommending standards, protocols, • Allow covered entities to require are accessible to and usable by and procedures to enable user interfaces verification of eligibility (as an individuals with visual disabilities in and video programming guides and individual who is blind or visually real-time. Id. 303(aa)(2). Further, menus to be accessible to individuals impaired) to the extent the covered Section 204 directs the Commission to who are blind or visually impaired.3 entity chooses to rely on an accessibility require covered digital apparatus to The VPAAC submitted its statutorily solution that involves providing the ‘‘buil[d] in access to those closed mandated report addressing user consumer with sophisticated equipment captioning and video description interfaces and video programming and/or services at a price that is lower features through a mechanism that is guides and menus to the Commission on than that offered to the general public. reasonably comparable to a button, key, April 9, 2012.4 The VPAAC Second • Permit Section 204 covered entities or icon designated for activating the Report: User Interfaces defined the to comply with the new requirements by closed captioning or accessibility functional requirements needed to alternate means, as provided in the features.’’ Id. 303(aa)(3). Section 204 implement Sections 204 and 205 of the CVAA. states that ‘‘in applying this subsection CVAA, including a list of 11 functions • Adopt procedures for consumer the term ‘apparatus’ does not include a that the VPAAC determined are complaints alleging a violation of the navigation device, as such term is essential for making digital apparatus new requirements. defined in section 76.1200 of the and navigation devices accessible to • Set a three-year compliance Commission’s rules.’’ 1 Id. 303(aa)(4). individuals with disabilities. In April deadline by which covered entities must 8. Section 205 of the CVAA, entitled 2012, the Media Bureau and the generally comply with the requirements ‘‘Access to Video Programming Guides Consumer and Governmental Affairs of Sections 204 and 205. and Menus Provided on Navigation Bureau issued a Public Notice seeking • Set a five-year compliance deadline Devices,’’ portions of which were comment on the VPAAC Second Report: by which certain mid-sized and smaller codified as Section 303(bb) of the Act, User Interfaces, and the comments and MVPD operators (400,000 or fewer imposes requirements relating to reply comments received in response to subscribers) and small MVPD systems ‘‘navigation devices.’’ It directs the the Public Notice helped inform the (20,000 or fewer subscribers that are not Commission to require, ‘‘if achievable NPRM.5 The Commission released the affiliated with an operator serving more (as defined in section 716), that the on- than 10 percent of all MVPD screen text menus and guides 2 provided 3 Section 201(e)(2) also required the report to subscribers) must comply with the by navigation devices (as such term is include information related to the provision of requirements of Section 205. defined in section 76.1200 of title 47, emergency information and video description, • which is part of a separate Commission rulemaking Decline at this time to adopt a Code of Federal Regulations) for the proceeding that addresses Sections 202 and 203 of permanent exemption for small cable display or selection of multichannel the CVAA. See Accessible Emergency Information, systems of 20,000 or fewer subscribers, video programming are audibly and Apparatus Requirements for Emergency as permitted by Section 205(b)(2). accessible in real-time upon request by Information and Video Description: Implementation 6. In addition, as discussed in Section of the Twenty-First Century Communications and individuals who are blind or visually Video Accessibility Act of 2010; Video Description: VII, we eliminate the analog closed impaired.’’ 47 U.S.C. 303(bb)(1). Section Implementation of the Twenty-First Century captioning label requirement in our 205 states that the Commission ‘‘may Communications and Video Accessibility Act of rules and we reorganize Part 79 of our not specify the technical standards, 2010, MB Docket Nos. 12–107, 11–43, Report and rules to assist readers in browsing and protocols, procedures, and other Order and Further Notice of Proposed Rulemaking, 78 FR 31770 (2013) (‘‘Emergency Information/Video locating our accessibility rules. technical requirements for meeting this Description Order’’). II. Background 4 Second Report of the Video Programming 1 Section 76.1200 of the Commission’s rules Accessibility Advisory Committee on the Twenty- 7. Section 204 of the CVAA, entitled defines ‘‘navigation devices’’ to include ‘‘[d]evices First Century Communications and Video ‘‘User Interfaces on Digital Apparatus,’’ such as converter boxes, interactive Accessibility Act of 2010: User Interfaces, and communications equipment, and other equipment Video Programming and Menus, Apr. 9, 2012, portions of which were codified as used by consumers to access multichannel video available at http://apps.fcc.gov/ecfs/document/ Section 303(aa) of the Communications programming and other services offered over view?id=7021913531 (‘‘VPAAC Second Report: User Act of 1934 (‘‘the Act’’), directs the multichannel video programming systems.’’ 47 CFR Interfaces’’). Commission to require ‘‘if achievable (as 76.1200(c). 5 Public Notice, Media Bureau and Consumer and 2 In this context, we interpret the term ‘‘guides’’ Governmental Affairs Bureau Seek Comment on defined in section 716) that digital to mean ‘‘video programming guides,’’ which is the Second VPAAC Report: User Interfaces, and Video apparatus designed to receive or play complete phrase used in the title of Section 205. Programming Guides and Menus, MB Docket No. back video programming transmitted in Public Law 111–260, 205. 12–108, 27 FCC Rcd 4191 (2012).

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NPRM on May 30, 2013.6 Sections navigation device, but cannot be subject Electronics Association (‘‘CEA’’), after 204(b) and 205(b) of the CVAA provide to the requirements of both sections. initially supporting a broader that ‘‘[w]ithin 18 months after the 12. The NPRM set out two general interpretation of the term ‘‘navigation submission to the Commission of the approaches for how the Commission devices’’ as used in § 76.1200, now [VPAAC Second Report: User might categorize the devices subject to supports a reading of that term to Interfaces], the Commission shall Sections 204 and 205. Under one include only ‘‘devices that are actually prescribe such regulations as are approach, the Commission would apply configured to operate as navigation necessary to implement’’ Sections 204 Section 205 only to the navigation devices comparable to MVPD-furnished and 205.7 devices provided by MVPDs to their devices.’’ 9 Verizon takes a similar 10. To fulfill these statutory subscribers or, in a variation on this position, arguing that Section 205 mandates, we adopt the rules discussed approach, to MVPD-provided devices should be applied only to ‘‘traditional’’ below. By imposing new requirements and ‘‘to retail set-top boxes such as navigation devices, which Verizon with regard to the accessibility of user TiVos,’’ while applying Section 204 to defines as ‘‘set-top boxes and related interfaces and video programming all other navigation devices and digital equipment used in the home by guides and menus, the regulations apparatus. Under the second approach, consumers to access MVPD services’’ adopted herein further the purpose of the Commission would apply Section that are either MVPD-provided or the CVAA to ‘‘update the 205 to the full range of devices that purchased at retail. Verizon submits that communications laws to help ensure qualify as ‘‘navigation devices’’ as that such an approach is consistent with the that individuals with disabilities are term is defined in § 76.1200 of our rules, language of the VPAAC Second Report: able to fully utilize communications and Section 204 only to the digital User Interfaces and Congressional intent services and equipment and better apparatus that are not navigation in enacting the CVAA. Panasonic access video programming.’’ devices. Corporation of North America 13. Several commenters support the (‘‘Panasonic’’) suggests, along the same III. Scope of Sections 204 and 205 of the MVPD-provided devices approach. For lines as CEA and Verizon, that Section CVAA example, the American Foundation for 205 should apply only to MVPD- A. Categories of Devices Covered Under the Blind (‘‘AFB’’), the National provided or retail equipment employing Sections 204 and 205 Association of the Deaf in conjunction CableCARDs that ‘‘enable a consumer to with several consumer groups (‘‘NAD/ control the display or selection of 11. We conclude, consistent with the Consumer Groups’’), and dozens of text of Sections 204 and 205, and the multichannel video programming.’’ individuals with visual disabilities Panasonic argues that, without the use definition of ‘‘navigation devices’’ set express the view that Section 205’s out in § 76.1200 of our rules, 47 CFR of a CableCARD, a device cannot provisions should apply only to MVPD- provide the ‘‘on screen text menus and 76.1200(c), that ‘‘devices such as provided equipment. These commenters guides’’ which must be made accessible converter boxes, interactive contend that such an approach would under Section 205. Several other communications equipment, and other better effectuate Congress’s intent in commenters take no position as to equipment used by consumers to access enacting the CVAA by making more whether Section 205 should apply to multichannel video programming and devices subject to Section 204’s devices other than set-top boxes, but do other services offered over multichannel requirements, which require argue that Section 205 should apply not video programming systems’’ are subject accessibility without requiring just to MVPD-provided equipment but to the requirements of Section 205. As consumers to request an accessible also to comparable equipment sold at we discuss below, based on current solution. In contrast, other commenters retail. The National Cable & marketplace and technological assert that the statute gives the Telecommunications Association conditions, we interpret the term Commission no discretion to limit the (‘‘NCTA’’) also initially took no position ‘‘navigation devices’’ to encompass definition of ‘‘navigation device’’ to as to the scope of devices subject to devices that have built-in capability to only those devices provided by MVPDs Section 205, but later argued that, use a conditional access mechanism in and requires that any device that meets ‘‘[i]nterpreting ‘navigation device’ so order to access MVPD video the definition of navigation device broadly as to cover equipment that does programming and other services. All under § 76.1200 be covered by Section not perform the functions of a other ‘‘digital apparatus designed to 205. traditional set-top box but simply receive or play back video programming 14. Manufacturers and MVPDs have contains an Internet connection (by transmitted in digital format taken the position that the term which any mobile device or any other simultaneously with sound’’ that are not ‘‘navigation devices’’ is not as wide- equipment theoretically could access navigation devices as defined by ranging as we presumed in the NPRM. cable broadband service) would stray § 76.1200 of our rules are subject to the According to these commenters, the requirements of Section 204. We also term ‘‘navigation devices’’ includes all Section 205 should apply to set-top boxes sold at conclude that an individual device can devices that are designed to be used by retail that use conditional access mechanisms to be subject to the requirements of Section consumers to access multichannel video allow consumers to access MVPD programming and 204 or Section 205 depending on its other services, such as TiVo boxes, the approach programming and other services offered that we adopt is otherwise consistent with AFB and classification as a digital apparatus or over multichannel video programming ACB’s position in that consumer electronics systems using conditional access equipment sold at retail that does not use 6 See Accessibility of User Interfaces, and Video conditional access mechanisms to access MVPD Programming Guides and Menus, MB Docket No. technology; thus, they assert, Section programming and other services will be subject to 12–108, Notice of Proposed Rulemaking, 78 FR 205 should apply to both MVPD- Section 204. 36478 (2013) (‘‘NPRM’’). provided devices and those retail 9 CEA states that this position is consistent with 7 As noted, the VPAAC submitted its report to the devices that use conditional access to an agreement that it reached with AFB and ACB, Commission on April 9, 2012. We note that the reach MVPD services, consistent with in which CEA stated that it ‘‘would be agreeable to deadline set forth by statute for prescribing 8 the Commission proceeding to apply section 205 of regulations, October 9, 2013, fell during a shutdown congressional intent. The Consumer the CVAA only to MVPD-provided equipment, as of the Federal government due to a lapse in well as to equipment that is similar in kind to appropriations, during which time the Commission 8 We note that while AFB and the American MVPD-provided equipment (i.e., set-top boxes) could not conduct normal business operations. Council of the Blind (‘‘ACB’’) do not agree that made available to consumers via retail outlets.’’

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beyond Congress’ intent in the citation to § 76.1200 of our rules. meaning of the term ‘‘navigation CVAA.’’ 10 Accordingly, consistent with Congress’s devices,’’ taking into consideration 15. Based on our review of the repeated citations, in multiple sections current marketplace and technological statutory language and the record, we of the CVAA, to our definition of conditions, and in a manner that will conclude that the soundest approach is navigation device in § 76.1200, we give meaning and effect to each section to follow one of the paths suggested in interpret the term in accordance with of the CVAA. 14 the NPRM by applying Section 205 to all the definition contained in our rules. 18. As noted, § 76.1200 defines devices that qualify as ‘‘navigation 16. Therefore, consistent with a literal navigation devices as ‘‘devices such as devices’’ as that term is defined in interpretation of the statute and in converter boxes, interactive § 76.1200 of our rules, and Section 204 accordance with the Commission’s communications equipment, and other only to digital apparatus that are not definition of navigation device, Section equipment used by consumers to access navigation devices. In Sections 204 and 205 will apply to any device that can be multichannel video programming and 205, the term ‘‘navigation devices’’ is ‘‘used by consumers to access other services offered over multichannel repeatedly modified by the phrase ‘‘as multichannel video programming and video programming systems.’’ The such term is defined in [s]ection other services offered over multichannel Commission derived this definition 76.1200 of the Commission’s rules.’’ 11 video programming systems.’’ We from the text of Section 629 of the Act, As the NPRM discussed, some elements recognize that this definition uses broad added by the Telecommunications Act of Section 205 could be read to suggest language to describe what constitutes of 1996, which directed the Commission that Congress meant for Section 205 to ‘‘navigation devices,’’ and that in the apply only to MVPD-provided NPRM we proposed to interpret this to adopt rules ‘‘to assure the commercial equipment, but we find that there is phrase to cover a broad array of devices. availability’’ of such devices ‘‘from nothing in the statute or legislative The NPRM also sought comment on the manufacturers, retailers, and other history expressly indicating that Section correct reading of the term ‘‘navigation vendors not affiliated with any’’ MVPD. 205 should be applied only to a devices’’ as defined under Commission When the Commission adopted particular subset of navigation devices. rules. § 76.1200 in 1998, consumers used a Although the NPRM observed that 17. We have closely examined the wide variety of equipment to access certain statutory phrases ‘‘appear to arguments made in the record of this multichannel video programming and presume a preexisting relationship proceeding and met with other services. For example, at that time between the individual requesting or representatives of consumer groups and many consumers could connect analog using the device, menu and/or guide all sectors of the industry, and have ‘‘plug and play’’ televisions, video and the entity providing it,’’ 12 as been persuaded that our understanding cassette recorders (‘‘VCRs’’), and described in more detail below, we of the term ‘‘navigation devices’’ must personal computers directly to the cable conclude that these statutory phrases be clarified in light of intervening and access cable programming without 17 can also be applied to situations marketplace and technological changes. the need for a cable set-top box. Thus, involving no preexisting relationship, We do not believe that the Commission at that time, the Commission such as when an individual purchases intended the term to encompass every contemplated that some devices that an accessible device at retail.13 Had device with the ability to access the lack the ability to perform conditional Congress intended for Section 205 to Internet; nor do we believe that under access—such as these analog ‘‘plug and apply only to MVPD-provided current marketplace and technological play’’ televisions—were navigation equipment, as some commenters conditions such a broad definition of devices. We no longer believe that to be suggest, we believe that Congress would navigation devices is reasonable. We the case, given the current state of have used different terminology in also believe that Congress, in drafting technology. Nearly all MVPD services Sections 204 and 205 than the phrase the CVAA, understood the are encrypted today, and devices that do ‘‘navigation device’’ with a direct Commission’s definition of navigation not perform conditional access can devices to be narrower, because access at most a de minimis amount of 10 NCTA recognized that AFB and CEA could not otherwise the exemption in Section 204 MVPD programming, and that amount is come to agreement on whether non-MVPD provided for ‘‘navigation devices’’ would have decreasing rapidly, as discussed below. retail set-top boxes should be covered under largely nullified that section.15 This is Accordingly, we construe the phrase Section 205, which NCTA presumably still supports. the first time it has been necessary for ‘‘used by consumers to access’’ in the 11 The legislative history provides no additional us to delineate more precisely the outer definition of ‘‘navigation devices’’ to insight into Congress’s selection of the term boundaries of the term ‘‘navigation refer to the access that MVPDs control ‘‘navigation devices.’’ devices.’’ 16 After consideration of the when using conditional access 12 In addition, as NCTA points out, some devices record on this issue, we thus clarify the technology as a prerequisite to receive that are sold at retail, such as a TiVo, include subscriptions and create a relationship between the MVPD-offered multichannel video customer and the device manufacturer. 14 AFB suggests that the Commission could, programming and other services. 13 The NPRM also discussed how the phrase through the use of a Further Notice of Proposed Indeed, in 2010, the Commission ‘‘placing in service’’ in Section 205(b)(6) might Rulemaking, revise the definition of navigation recognized that conditional access is an device ‘‘for the limited purpose of sorting out the suggest that the provision was directed at MVPD- essential part of ‘‘access.’’ provided equipment. We agree with NCTA that the application of sections 204 and 205.’’ We find no Commission’s rules use similar phrasing in other compelling reason to do so, and therefore decline areas ‘‘wholly unrelated to MVPD-provided this request. 17 That is, subscribers could simply plug the cable service.’’ The NPRM also pointed to the fact that 15 Moreover, as noted in the NPRM, interpreting into the back of their TV sets or other devices; Section 205(b)(2) authorizes us to create an ‘‘navigation devices’’ to apply to ‘‘every device with conditional access was performed by means of traps exemption for cable systems with fewer than 20,000 Internet connectivity’’ would have ‘‘render[ed] installed outside the home. When the cable operator subscribers as evidence that Section 205 applied to meaningless Section 204’s statement that digital granted access to its programming, through the MVPDs. While such a statement does suggest that apparatus include ‘apparatus designed to receive or removal of a trap, both cable operator-provided set- Section 205 applies to MVPDs, it does not foreclose display video programming transmitted in digital top boxes and retail devices could access the the Commission from also applying Section 205 to format using Internet protocol’ . . . .’’ programming. Today, cable operators rely on other covered entities, such as manufacturers of 16 The Commission in 2010 sought comment on encryption rather than traps to protect themselves navigation devices placed into the chain of the various types of devices covered under the term from theft of service, and encryption requires commerce for sale and other navigation device ‘‘navigation devices,’’ but has not had the occasion hardware inside the consumer’s home to perform hardware and software manufacturers. to address the issue since then. the decryption functions.

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19. The Commission has recognized MVPD market, means more than mere conditional access technology.21 Thus, that, in the past, most cable signals were passive display made possible through we interpret the term ‘‘navigation transmitted in the clear and that the use of an intermediary device. For devices’’ as encompassing only devices subscribers with analog ‘‘plug and play’’ a consumer to ‘‘use’’ a device to that support conditional access to television sets would not need cable set- ‘‘access’’ MVPD services, the device control consumer access to top boxes to view subscribed-to must employ some kind of access programming and services. Based on our programming. Beginning in the mid- control to ‘‘unlock’’ the services and interpretation, we find that navigation 1990’s, however, cable operators began make them available for the consumer’s devices subject to Section 205 are those to upgrade their systems to offer digital use. For example, a television set with devices manufactured with a cable service in addition to analog cable a CableCARD supports ‘‘conditional CableCARD slot, CableCARD’s successor service (hybrid cable service). Even access’’ such that an MVPD can control technology, or other conditional access 22 more recently, many cable operators which channels or services a device capabilities. Thus, the following are have transitioned to more efficient all- receives. In contrast, a television navigation devices: digital cable ready digital service, freeing up cable without a CableCARD cannot access televisions (i.e., televisions with spectrum to offer new or improved encrypted cable channels without an CableCARD slots), set-top boxes products and services. At each stage of intermediary device—e.g., a set-top (including those provided by MVPDs as the transition from all-analog to all- well as consumer-owned CableCARD- box—that controls access to the content; digital cable service, cable operators ready devices), computers with the television can merely display the have increasingly used conditional CableCARD slots, and cable modems. content that the set-top box sends to it. access to protect more types and tiers of The Commission has consistently programming from unauthorized access. In the latter example, the set-top box is recognized that these are navigation Nearly all MVPD services today use a navigation device but the television is devices throughout the past 15 years some form of conditional access to not because the consumer could not use since adoption of our navigation device prevent unauthorized access, and it to ‘‘access’’ cable service. As rules. Third-party devices with MVPD encryption of the program signal has Panasonic states, ‘‘absent the use of a applications that are installed by the proven to be an indispensable aspect of CableCARD, the Commission’s rules do device manufacturer are also navigation controlling access to MVPD services as not ensure the availability of the devices because the MVPD application it ensures that no signal can be viewed channel information necessary for performs conditional access functions in without digital permissions individually independent manufacturers to design a software-based manner that allows issued by the MVPD. The Commission ‘navigation devices.’ ’’ consumers to access multichannel video recognized as much in its recent 21. Cable operators also control access Encryption Order, when it observed that to their broadband services through an 21 It is conceivable that some cable systems will ‘‘relaxing the encryption prohibition for still exist three years from now, at the time of our authentication scheme similar to that compliance deadline, that do not use any all-digital systems will have minimal used for video services, reinforcing our encryption; thus, in some cases consumers may still impact on consumers because most view that ‘‘navigation devices’’ require be able to plug televisions directly into the cable subscribers do not rely on the clear- the use of conditional access. The to receive service. As explained, however, we QAM tuners in their devices to access expect such systems to be rare, and the subscribers navigation device definition includes who choose to use such devices without a set-top basic tier signals.’’ As of October 2012, devices consumers use to access ‘‘other box to be rarer still. Moreover, these systems are when the Commission released the services offered over multichannel likely to be very small systems subject to the Encryption Order permitting cable video programming systems,’’ which extended Section 205 compliance date that we operators to encrypt the basic service adopt herein. They are also likely to be analog would include broadband data services. systems. Because television broadcast receivers will tier under certain conditions, few Cable modems must be ‘‘initialized’’—a no longer be required to include analog tuners after subscribers were accessing cable process involving authentication and September 1, 2015 due to the low power television programming without the use of a set- registration—before the cable operator transition to digital television, we believe it is likely top box. Further, subscribers to direct that many manufacturers will cease including grants the modem access to the analog reception capability in devices sold after that broadcast satellite (‘‘DBS’’) and Internet broadband network.20 Although an date. Thus, it is unlikely that subscribers to all- protocol television (‘‘IPTV’’) operators Internet Protocol (‘‘IP’’)-enabled device analog cable systems will use devices manufactured after the effective date of these rules to access have never been able to use televisions may use Internet services by connecting to access service; rather, they must use analog cable service. We do not believe it would be through a cable modem, consumers do reasonable to subject retail devices—which are a set-top box. The Commission not use the IP-enabled device itself to manufactured for nationwide distribution—to a set concluded that allowing all-digital cable of rules designed for these corner cases. Nor would access the broadband service. Rather, it be appropriate to expect manufacturers to spend operators to encrypt the basic service the device uses the cable modem to tier served the public interest because it their resources designing their products based on a access the Internet. In this example, the technology that we expect to be essentially outdated would have a de minimis impact on cable modem is a navigation device, but by the time of our compliance deadline. Rather, to subscribers to these systems,18 while give manufacturers certainty as to their compliance the IP-enabled device is not. having significant additional benefits.19 obligations we will uniformly subject only devices 22. Given the widespread and routine using conditional access to regulation under 20. Therefore, the phrase ‘‘other Section 205 based on our predictive judgment about equipment used by consumers to access practice of cable operators controlling how the marketplace is developing. multichannel video programming and access to all of their programming and 22 We note that in EchoStar Satellite L.L.C. v. other services offered over multichannel other services, and the fact that DBS FCC, 704 F.3d 992 (D.C. Cir. 2013) (‘‘EchoStar’’), the video programming systems,’’ in today’s operators universally use encryption to DC Circuit vacated the Commission’s CableCARD Order, 68 FR 66728 (2003), which effectively control access to their programming, we vacated the rules adopted in the CableCARD Order, 18 This is because all-digital cable operators expect that shortly virtually all MVPDs including the technical standards for CableCARD indicate that all of their subscribers have at least will control access to their programming (47 CFR 76.602 and 76.640). Although the rule one set-top box or retail CableCARD device in their and services through some sort of requiring reliance on the specific CableCARD homes. standard was vacated in EchoStar, given that nearly 19 We note that since the advent of encryption of all cable operators use CableCARDs as their means the basic tier on all-digital cable systems, the 20 For instance, the DOCSIS specifications define to comply with the integration ban, we believe that Commission has received only one complaint from a procedure for initializing a cable modem that CableCARD use will continue for the foreseeable an aggrieved consumer. involves authentication and registration. future.

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programming.23 Devices that do not in the definition means, and our digital communications. . . . Our contain support for conditional access interpretation, described above, gives objective thus is to ensure that the goals functionality at the time of manufacture meaning to the term based on current of Section 629 are met without fixing will be classified as ‘‘digital apparatus’’ market and technological into law the current state of and covered by Section 204. considerations. Moreover, our technology.’’ More recently, in the 23. Our task in implementing Sections interpretation is consistent with the AllVid NOI, adopted in 2010, the 204 and 205 of the CVAA requires that other terms in the definition referring to Commission stated that ‘‘[t]raditionally, we identify for manufacturers which ‘‘converter boxes’’ and ‘‘interactive the Commission and interested parties section governs their equipment. To communications equipment.’’ Those have considered the term navigation give certainty to manufacturers, we terms were also not defined by Congress devices to include televisions, set-top conclude it is appropriate to take a or the Commission, but we believe that boxes (including DVRs), and home snapshot view of the equipment at the the term ‘‘interactive communications theater computers,’’ and sought time the manufacturer releases it into equipment’’ is most reasonably comment on whether ‘‘these devices the stream of commerce, and to describe interpreted to mean equipment used for comprise the universe of navigation now, before the devices are designed services such as video-on-demand and devices, and if not, what other devices and manufactured, the parameters we television-based commerce. Today, could perform navigation device will use for determining whether a unlike at the time Section 629 was functions.’’ The fact that the device is a navigation device. adopted, these functions are performed Commission in 2010 asked about the Accordingly, for purposes of Sections by the majority of today’s set-top boxes. scope of the term ‘‘navigation devices’’ 204 and 205 of the CVAA, and The term ‘‘converter box’’ refers to underscores that the definitions of the consistent with our application of other simpler equipment, more commonplace terms used in Section 629 and provisions of the CVAA,24 we will look in 1998, that merely converts signals § 76.1200(c) have not been definitively to the device’s built-in functionality at from the cable operator’s format to a fixed and may change over time.27 the time of manufacture to determine format that could be received by legacy 26. Our interpretation of ‘‘navigation whether a device is classified as a televisions—a function that digital devices’’ is also consistent with the ‘‘navigation device’’ for purposes of tuning adapters (‘‘DTAs’’) and similar language of Sections 204 and 205 as determining which section of our rules devices perform today. These well as Congress’s goals in enacting will apply. Under this approach, we interpretations are consistent with what them. As compared with our proposal to will not require manufacturers to the Commission envisioned when first apply Section 205 only to MVPD- anticipate possible adjustments that a adopting its definition of ‘‘navigation provided navigation devices, this consumer may independently make to devices.’’ 26 approach better honors the literal the equipment after sale (for example, 25. Our interpretation of the meaning of the terms of the provision. by installing an application post-sale).25 definition of ‘‘navigation devices’’ is At the same time, it avoids the perverse Looking at the functionality that a also consistent with the intent of outcome that would have resulted from manufacturer itself has chosen to Congress that the scope of the term an overly broad reading of ‘‘navigation include in a piece of equipment will change over time as technology changes. devices’’ that would have largely bring certainty to industry and Congress recognized the rapidly nullified Section 204, thwarting consumers alike as to what obligations evolving nature of MVPD and consumer Congress’s effort to craft different apply to particular equipment. electronics technology. The portion of requirements for different categories of 24. We conclude that the the Conference Report for the 1996 devices. For example, this interpretation interpretation described above is Telecommunications Act discussing gives meaning to the provision that consistent with both the language and navigation devices stated that, in states that Section 204 applies to certain the intent of Section 629 of the Act and implementing Section 629, the apparatus, ‘‘including apparatus § 76.1200 of our rules. We have Commission should ‘‘avoid actions designed to receive or display video discretion to interpret statutory which could have the effect of freezing programming transmitted in digital language that Congress left undefined, technologies and services. . . . Thus, in format using Internet protocol;’’ under such as the language used in Section implementing this section, the this approach not all devices that can Commission should take cognizance of 629 and echoed in the Commission’s display video programming will be the current state of the marketplace and definition of ‘‘navigation devices.’’ deemed to be navigation devices and consider the results of private standards Neither Congress nor the Commission thus excluded from coverage under setting activities.’’ Similarly, in has previously specified what the Section 204, a result we think would be implementing Section 629, the phrase ‘‘used by consumers to access’’ at odds with Congress’s intent. Thus, Commission stated: ‘‘We do not believe, our approach gives meaning and effect 23 however, that our work with respect to CenturyLink, Inc. states that it ‘‘is not aware of to both Sections 204 and 205. any navigation device manufacturers that either these issues is complete. The markets 27. Having determined which devices pre-install MVPD-provided mobile applications for involved are in the early stages of are excluded from coverage under accessing MVPD-delivered programming or require becoming competitive, and the end users to install such applications after sale.’’ To Section 204, we conclude that Section participants in these markets are on the eliminate uncertainty in the event that this does 204 will apply to ‘‘digital apparatus,’’ as happen, however, we clarify that such a device precipice of a change from analog to would be a navigation device under the rules we defined in that section, that are not used by consumers to access multichannel adopt in the R&O. 26 This interpretation is consistent with the 24 Classifying a device based on its capabilities at Commission’s Seventh Video Competition Report, video programming or other services the time of manufacture is consistent with our which stated ‘‘in the last year, interactive television offered over multichannel video implementation of other CVAA provisions. (‘ITV’) services are beginning to be offered through programming systems, such as 25 This also addresses the concerns of cable, satellite, and terrestrial technologies. ITV commenters who contend that they cannot ‘‘control provides or has the potential to provide a wide televisions and PCs without CableCARD the design of third-party devices running their range of services, including video on demand apps’’ because those commenters can test their (‘VOD’), email, TV-based commerce, Internet 27 We also note that the AllVid NOI was adopted applications to ensure accessibility on the third- access, and program-related content, using digital only months before enactment of the CVAA, which party devices before choosing to allow the set-top boxes and other devices that interface with suggests that Congress was aware that the definition manufacturers to pre-install the applications. television receivers. . . .’’ of ‘‘navigation devices’’ was continuing to evolve.

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or other conditional access technology, 29. Professional and commercial we find that because cable modems mobile devices (i.e., tablets and equipment. We conclude that cannot display or select multichannel smartphones) without MVPD professional and commercial video video programming and do not have applications pre-installed by the equipment, including professional ‘‘built-in closed captioning capability,’’ manufacturer, and removable media movie theater projectors and studio- cable modems have no compliance players.28 We adopt the NPRM’s grade video monitors and recorders, is obligations under Section 205. analysis that the references in Sections not subject to the requirements of 32. Removable media players. We 204 and 205 to navigation devices were Section 204 or 205. As the Commission reject Panasonic’s request that we find ‘‘designed to prevent overlap in has found in the past, the CVAA is that removable media players, such as coverage between Sections 204 and 205; intended to address the accessibility DVD and Blu-ray players, are not subject that is, a device can be a Section 204 needs of individual consumers. to Section 204.31 Removable media device or Section 205 device, but not Therefore, as the Commission found in players are designed to ‘‘play back’’ both.’’ AFB suggests that a single device the IP Closed Captioning Order, video programming simultaneously may have accessibility requirements professional and commercial equipment with sound and Panasonic does not under both Sections 204 and 205 is outside of the CVAA’s scope. appear to dispute this. Instead, because a device can be both a ‘‘digital Significantly, no commenters argue that Panasonic argues that the inclusion in apparatus’’ and a ‘‘navigation device.’’ the Commission’s rules should cover Section 204 of the clause ‘‘including AFB argues that the Commission has this equipment. As the Commission did apparatus designed to receive or display taken a similar approach in the past in the IP Closed Captioning Order, we video programming transmitted in when implementing Section 716(f) of note that other federal laws may impose digital format using Internet protocol’’ the Act, added by Section 104 of the accessibility obligations ‘‘to ensure that signifies that Congress intended the CVAA, finding that a device could have professional or commercial equipment word ‘‘transmitted’’ to mean ‘‘the obligations under both Section 716(f) is accessible to employees with conveyance of content from a video and Section 255. Other commenters that disabilities or enables the delivery of programming provider (e.g. a broadcast) address the issue agree with the NPRM accessible services.’’ to a receiver or recorder which in turn that Sections 204 and 205 are mutually 30. Public safety and enterprise plays back or displays the content to be exclusive in their coverage of devices. equipment. We also find that public viewed by a consumer.’’ Panasonic We agree with CEA that the language safety and enterprise equipment is not argues that removable media players do from Section 716(f) that AFB cites in subject to the requirements of either not ‘‘transmit’’ video programming and support of its position is distinguishable Section 204 or 205. Motorola Solutions, therefore fall outside the scope of from ‘‘Section 204’s clear exclusion of Inc. (‘‘Motorola’’) requested such a Section 204. We disagree with navigation devices from its coverage and determination, and its request was not Panasonic’s interpretation of Section Section 205’s express application to opposed. Motorola correctly observes 204. In interpreting a similar provision, navigation devices.’’ While Section 205 that nothing in Sections 204 or 205 the Commission found in the IP Closed applies to ‘‘navigation devices (as such evidences Congressional intent to cover Captioning Order, and recently term is defined in section 76.1200 of these devices, which are not provided to reiterated in the IP Closed Captioning title 47, Code of Federal Regulations) for individuals but rather are marketed or Reconsideration Order, that the word the display or selection of multichannel sold to ‘‘state or local governments, ‘‘transmitted’’ is best interpreted to video programming,’’ Section 204 public safety organizations or other ‘‘describe how the video programming is conveyed from the device (e.g., DVD categorically excludes navigation enterprise customers.’’ Therefore, we player) to the end user . . ., rather than devices. Therefore, it follows that a find that public safety and enterprise describe how the video programming device cannot be subject to the equipment is outside the scope of arrived at the device.’’ We see no reason requirements of both Section 204 and Section 204 or 205 of the CVAA.29 to deviate from this settled 205. 31. Broadband equipment. We agree interpretation here. Accordingly, with Panasonic that ‘‘general purpose 28. Several commenters seek an because removable media players can broadband equipment,’’ such as exemption or waiver from the ‘‘play back video programming routers,30 does not fall under Section requirements of Sections 204 and 205 transmitted in digital format,’’ we find 204 or Section 205 because it is not for certain classes of equipment or that they are subject to the requirements otherwise request a determination that designed to display or play back video of Section 204.32 certain equipment is outside of the content and cannot be used by scope of Sections 204 and 205. Before consumers to access MVPD services. As 31 Panasonic does not argue that removable media discussing these specific types of we describe above, in the case of players with IP connections or tuners should be equipment, we note that, unlike in other Internet service offered by MVPDs, the excluded from coverage. Rather, Panasonic argues device-related provisions of the CVAA, navigation device is the cable modem, that removable media players without a tuner or an IP network connection are not covered under either such as Section 203, Congress did not as that device is the only device Section 204 or 205. provide the Commission with authority consumers use to access the MVPD’s 32 Panasonic also submits that ‘‘[i]n the case of to grant exemptions from or waive the Internet service. Routers and other DVD and Blu-Ray DiscTM players, these devices statutory requirements imposed by equipment that interact with the cable depend on disc content authors to provide audio tags that are included in a disc’s menus in order to Sections 204 and 205. Accordingly, we modem are outside the scope of Section provide audio output for the on-screen text or do not exempt otherwise covered 205 because consumers do not use that visual indicators. The techniques for authoring devices from the statutory requirements equipment to access the MVPD’s accessible media are well known and accessible of Sections 204 and 205. service. With respect to cable modems, DVDs are widely available in the marketplace. For Blu-Ray DiscsTM, the Blu-Ray DiscTM Association although they are navigation devices, allows ‘button sounds’ for the creation of accessible 28 As we discuss further below, video interactive menus. Therefore, if the Commission programming applications that are installed by the 29 This approach is consistent with the finds that standalone removable media players are manufacturer (or those that the manufacturer Commission’s actions in the ACS Order. subject to Section 204 (a point on which we directs consumers to install), such as Netflix, Hulu, 30 A router is a device that connects two or more disagree, as noted above), the Commission should and Amazon, must also be made accessible under computer networks together, such as by connecting recognize that this support for accessible menus in Section 204. a home network to a broadband network. Continued

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33. Display-only monitors and video because display-only monitors and pursuant to the Commission’s authority projectors. We conclude that display- video projectors can display video under Section 203 of the CVAA.37 CEA only monitors and video projectors programming simultaneously with asks that we ‘‘clarify’’ that these devices qualify as covered digital apparatus sound, such devices fall under Section are not subject to the rules adopted under Section 204, consistent with the 204. The Information Technology under Sections 204 and 205 and claims Commission’s analysis in the IP Closed Industry Council (‘‘ITIC’’) argues that that the Commission has ‘‘ample Captioning Order, because the term the Commission should adopt a display- authority’’ to use its waiver authority ‘‘apparatus’’ includes ‘‘physical devices only monitor exemption in this under § 1.3, 47 CFR 1.3, or general capable of displaying video.’’ However, proceeding similar to the exemption rulemaking authority to exempt this as discussed below, we will defer the adopted in the IP Closed Captioning equipment from Section 204 or 205 compliance deadline under Section 204 Order. However, the display-only obligations. As we stated earlier, we for a period of five additional years for monitor exemption adopted by the disagree that we have the authority to these devices.33 Commission in the IP Closed Captioning provide exemptions from the statutory 34. Panasonic argues that these Order relied on a specific statutory requirements for devices covered under devices should not be covered by provision contained in Section 203 Sections 204 and 205. The waiver Section 204 on the same grounds they applicable to display-only monitors.35 adopted in the IP Closed Captioning argue that removable media players Section 204 lacks an analogous Reconsideration Order was pursuant to should not be covered, and we reject provision. We believe the inclusion of the explicit statutory waiver authority that argument for the same reasons such an exemption in Section 203 and provided under Section 203, and described above. CEA argues that under the omission of such an exemption in Congress did not provide analogous the language of Section 303(aa)(1) of the Section 204 evidences an intent on the authority in Sections 204 or 205. We Act, a digital apparatus must be able part of Congress to include display-only find that these devices are ‘‘digital independently to ‘‘receive or play back monitors under Section 204. apparatus’’ under Section 204 because video programming,’’ and display-only Nevertheless, we observe that the record they can be used to ‘‘receive or play monitors do not have this capability.’’ 34 lacks evidence that individuals with back video programming transmitted in We adopt the same analysis used in the disabilities rely upon display-only digital format simultaneously with IP Closed Captioning Order, in which monitors and video projectors to watch sound.’’ We note, however, that CEA’s the Commission determined that a video programming. And, significantly, request that these devices be excluded device that is ‘‘capable of displaying the requests to exempt display-only from coverage under Section 204 is video’’ is ‘‘designed to receive or play monitors and video projectors from supported by ACB and AFB and is not back video programming’’ and thus an Section 204 were supported by ACB and otherwise opposed. We are persuaded apparatus under Section 203. We AFB and not otherwise opposed. that a deferral of the compliance believe that the language in Section 204, 35. Although we do not believe we deadline is appropriate in this case which states that a ‘‘digital apparatus’’ have the statutory authority under because consumers are unlikely to use is a device ‘‘designed to receive or play Section 204 to exempt display-only these devices to watch video back video programming,’’ language that monitors and video projectors, we will programming due to the limited ability also is used in Section 203, should be defer the compliance deadline under of these devices to access video interpreted in the same manner as in the Section 204 for five additional years programming, the inconvenience of IP Closed Captioning Order. Thus, (eight years after publication of the rules configuring these devices to view video in the Federal Register) to allow programming, and the inefficiency of removable media already complies with this consumer electronics manufacturers to actually viewing video programming on Section. Removable media players cannot support focus on making accessible other these devices. As noted above with a requirement to enable accessibility of media devices, such as televisions, that blind content menus because such menus are not under respect to display-only monitors and the control of the equipment manufacturer.’’ We and visually-impaired consumers video projectors, we believe the focus of agree. Section 303(aa)(2) of the Act only applies to commonly use. As discussed further ‘‘on-screen text menus or other visual indicators below, we believe Congress’s omission 37 Under its authority pursuant to Section 203, the built in to the digital apparatus.’’ 47 U.S.C. of a specific compliance deadline under Commission granted waiver for two classes of 303(aa)(2) (emphasis added). Because the menus of Section 204 affords broad discretion to devices: (1) Devices that are primarily designed to the removable media itself (e.g., a Blu-Ray disc) are capture and display still and/or moving images not ‘‘built-in’’ to the digital apparatus, the the Commission to establish an consisting of consumer generated media, or of other 36 manufacturer of the removable media player does appropriate deadline. images that are not video programming as defined not have a compliance obligation under Section 204 36. Digital cameras and similar under the CVAA and Commission rules, and that to make such menus accessible. The manufacturer equipment subject to waiver under the have limited capability to display video of the removal media player does have an obligation IP Closed Captioning Reconsideration programming transmitted simultaneously with under Section 204 to make accessible the ‘‘built-in’’ sound; and (2) devices that are primarily designed text menus and other visual indicators of the Order. We will also defer compliance to display still images and that have limited removable media player and any other ‘‘appropriate under Sections 204 for a period of five capability to display video programming built-in apparatus functions.’’ Id. 303(aa)(1), (2). additional years (for a total of eight transmitted simultaneously with sound. The first This would include, for example, making accessible years after the rules are published in the category includes, for example, digital still cameras, the text menus and other visual indicators of video digital video cameras, baby monitors, security applications, such as Netflix, Hulu, and Amazon, Federal Register) for the devices, such cameras, digital video camera microscopes, digital when such applications are pre-installed on the as digital cameras and baby monitors, playback binoculars, and digital probes for viewing removal media player by the manufacturer. that received a waiver in the IP Closed and playing video of enclosed spaces. The second 33 The video projectors that we refer to in this Captioning Reconsideration Order category includes, for example, digital picture section are those available for purchase by frames, but not those that are primarily designed to individual consumers, not professional projectors, display both still photographs and video. We also such as movie theater projectors, which we find are 35 The IP Closed Captioning Order did not apply note that devices with general purpose operating outside the scope of Sections 204 and 205. the display-only monitor exemption to video systems, such as Android or Windows, that can 34 CEA also argues, and we agree, that display- projectors. receive content from the Internet and easily display only monitors are not navigation devices as they 36 The only guidance that Congress provided with video programming transmitted simultaneously cannot independently access MVPD programming respect to compliance deadlines in Section 204 is with sound, were not subject to the waiver granted or other services and must rely on another device mandating that the section’s requirements not go in the IP Closed Captioning Reconsideration Order to provide access to MVPD programming or other into effect for a minimum of 24 months for mobile and similarly will not be subject to the deferred services. TV devices. compliance deadline provided by the R&O.

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consumer electronics manufacturers at digital apparatus are the video players responsible for software components this time should be on making that manufacturers embed in their over which they have no control, nor do accessible other devices that will devices, video players designed by third we think Congress intended that result. provide a greater benefit to consumers parties but installed by manufacturers in Unlike Section 205, which directly in the manner envisioned by Congress their devices before sale, and video addresses the responsibility of software in enacting the CVAA. players that manufacturers direct manufacturers, Section 204 has no such consumers to add to the device after sale parallel language, and therefore we B. Responsibility and Definition of in order to enable the device to play believe it is more appropriate to follow Digital Apparatus Under Section 204 video.39 We clarify that this includes the the same approach used in the ACS 37. We find that digital apparatus video players that are part of third-party Order and IP Closed Captioning Order. manufacturers have the responsibility to applications that provide video 40. We also adopt the NPRM’s comply with Section 204. We also adopt programming, such as Netflix, Hulu, tentative conclusion that the inclusion the tentative conclusions in the NPRM and Amazon, if those applications are of the phrase ‘‘including apparatus to interpret the meaning of ‘‘apparatus’’ pre-installed on digital apparatus or designed to receive or display video and the scope of Section 204 the same manufacturers direct consumers to programming transmitted in digital way the Commission interpreted the install such applications. We find that format using Internet protocol,’’ a scope of Section 203 in the IP Closed Section 204 requires the manufacturer phrase not included in Section 203, Captioning Order, but excluding of the digital apparatus on which these should not result in a different navigation devices that are subject to types of video applications are pre- interpretation of the scope of Section Section 205. installed to ensure that the application’s 204. As the NPRM stated, we believe 38. We find that Section 204 applies user interfaces are accessible. We expect this phrase is best interpreted as a to the manufacturers of ‘‘digital in these instances that the clarification that Section 204 applies not apparatus’’ as we define that term manufacturers of the pre-installed video only to traditional video-programming below. Section 204 requires that digital applications will cooperate with the apparatus without IP functionality, such apparatus be designed, developed and device manufacturers to ensure the as non-IP enabled televisions, but also fabricated in a way that ensures that accessibility of such applications. Not to devices with IP-functionality, such as ‘‘built-in apparatus’’ functions are included in the definition of a digital ‘‘smart’’ TVs, tablets, and smartphones. accessible. Manufacturers of digital apparatus under Section 204 is any No commenters objected to this apparatus are uniquely positioned to ‘‘third-party software that is tentative conclusion. design, develop, and fabricate the built- downloaded or otherwise added to the 41. In addition, we adopt the NPRM’s in functions of the devices they device independently by the consumer tentative conclusion to interpret the manufacture. Furthermore, Section 204, after sale and that is not required by the term ‘‘designed to,’’ as used in Section unlike Section 205, does not explicitly manufacturer to enable the device to 204, the same way that the Commission address responsibility under that play video.’’ 40 interpreted that term in the IP Closed section for multiple different entities, 39. Consumer electronics Captioning Order. There, the such as manufacturers of software and manufacturers and commenters Commission concluded that ‘‘to manufacturers of hardware, suggesting representing manufacturers support the determine whether a device is designed that Congress intended for the Commission’s tentative conclusion to to receive or play back video requirements of Section 204 to apply to adopt the same definition of digital programming, and therefore covered by one entity. CEA and the individual apparatus in Section 204 as adopted for the statute, we should look to the consumer electronics manufacturers apparatus in Section 203, while device’s functionality, i.e., whether it is that commented do not dispute that consumer groups representing capable of receiving or playing back they are responsible for the accessibility individuals with disabilities urge the video programming.’’ The consumer compliance of the digital apparatus they Commission to include third-party groups support this interpretation, but manufacture. We adopt the NPRM’s software and other methods of viewing both Panasonic and the tentative conclusion to define the term video programming, such as video Telecommunications Industry ‘‘digital apparatus’’ as used in Section players on Web sites, within the scope Association (‘‘TIA’’) argue that the 204 the same way that the Commission of Section 204. While we are design intent of the manufacturer defined the term ‘‘apparatus’’ when sympathetic to the concerns of the should play a role in determining implementing Section 203, but disability community with respect to whether devices are covered under excluding navigation devices that are accessibility of third-party software, we Section 204. The Commission recently subject to Section 205, as specifically do not think that it would be reasonable reaffirmed the interpretation of provided in Section 204. Therefore, to hold equipment manufacturers ‘‘designed to’’ made in the IP Closed consistent with the analysis in both the Captioning Order and we see no reason IP Closed Captioning Order and the ACS establish a different definition for purposes of to deviate from that interpretation here. Section 204, given that all apparatus are digital Order, we find that the term digital We believe interpreting the phrase apparatus and no purely analog apparatus are ‘‘designed to’’ to focus on a device’s apparatus should be defined to include currently being manufactured. Indeed, the only two ‘‘the physical device and the video commenters to directly address the modifier’s capability rather than the intent of the players that manufacturers install into inclusion, ACB and NAD/Consumer Groups, agreed manufacturer provides more regulatory that the term’s inclusion does not require a different certainty for manufacturers and the devices they manufacture (whether implementation of Section 204 from that used for in the form of hardware, software, or a consumers. Conversely, Panasonic and Section 203. TIA’s interpretation could harm combination of both) before sale, as well 39 In addition, if a manufacturer offers updates or consumers by allowing the as any post-sale video players that upgrades to a video player component of a device, it must also ensure that those updates or upgrades manufacturer to dictate unilaterally manufacturers direct consumers to meet the accessibility requirements of Section 204. 38 whether a device falls within the scope install.’’ Included in the scope of 40 Consistent with the approach taken in the IP of the statute by claiming that they did Closed Captioning Order and ACS Order, we find 38 We find that Section 204’s inclusion of the term that digital apparatus manufacturers are also not intend that a device be used for a ‘‘digital’’ to modify the term apparatus, a modifier responsible for software upgrades made available by particular purpose even if it in fact has not present in Section 203, does not require that we the manufacturers for download. that capability, which could render the

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accessibility requirements of Section that ‘‘[a]n entity shall only be functionality for use in obtaining MVPD 204 effectively voluntary. We do not responsible for compliance with the service. believe that Congress intended to allow requirements added by the section with 44. Responsibility Under Section manufacturers to evade the statutory respect to navigation devices that it 303(bb)(2) of the Act for Providing requirements. No commenters provides to a requesting blind or Ready Access to Captions. Section addressed the NPRM’s proposal to apply visually impaired individual.’’ Section 303(bb)(2) of the Act provides that ‘‘for to Section 204 the limitation in Section 205 does not define the terms ‘‘provide’’ navigation devices with built-in closed 203 to apparatus ‘‘manufactured in the and ‘‘entity’’ used in this provision. We captioning capability, [ ] access to that United States or imported for use in the believe the most reasonable capability through a mechanism is United States.’’ We believe it is interpretation of the word ‘‘provide’’ is reasonably comparable to a button, key, appropriate to apply such a limitation to to offer a navigation device to customers or icon designated for activating the Section 204 in our implementing rules for lease or to place a navigation device closed captioning or accessibility to clarify that our rules only apply to into the chain of commerce for sale to features[.]’’ We find that both MVPDs devices manufactured in the United consumers. It follows that the most that provide navigation devices to their States or imported for domestic use. reasonable interpretation of the word customers (either for purchase or lease) ‘‘entity’’ is an MVPD providing and the manufacturers of navigation C. Entities Responsible for Compliance navigation devices for lease or purchase, Under Section 205 devices that place devices into the chain and a navigation device manufacturer of commerce for sale to consumers are 42. We conclude that both MVPDs that places its navigation devices into the entities responsible for providing leasing or selling navigation devices to the chain of commerce for sale to compliant equipment—including the their subscribers and equipment consumers. No commenters object to mechanism required under Section holding MVPDs and navigation device manufacturers placing navigation 303(bb)(2) of the Act. No commenters manufacturers responsible for devices into the chain of commerce for argue that MVPDs and navigation device compliance under Section 205,43 and purchase by consumers are responsible manufacturers should not be held 41 commenting MVPDs and manufacturers for complying with Section 205. In responsible for compliance under of retail navigation devices appear to addition, we conclude that Section 205 Section 205 and we believe the most accept that they have the responsibility imposes responsibilities on reasonable approach in implementing to provide compliant devices in manufacturers of navigation device Section 205 is to hold those entities accordance with the requirements of hardware and software. responsible for providing devices that Section 303(bb)(1) of the Act. We clarify 43. Responsibility Under Section comply with both Sections 303(bb)(1) that MVPDs bear responsibility under 303(bb)(1) of the Act For Making On- and 303(bb)(2) of the Act as these Screen Text Menus and Guides Audibly Section 205(b)(3) only for the devices they directly provide to customers.44 entities are best positioned to ensure Accessible. Section 303(bb)(1) of the Act that the devices they lease or states, that ‘‘if achievable (as defined in Therefore, an MVPD would not be responsible for ensuring the compliance manufacture have a compliant closed section 716), that the on-screen text captioning activation mechanism. menus and guides provided by of a device that one of its customers navigation devices (as such term is procures at retail or through some other 45. Responsibility of Manufacturers of defined in section 76.1200 of title 47, means and then uses to obtain MVPD Navigation Device Hardware and Code of Federal Regulations) for the service, because the MVPD is not Software. In addition to our finding that display or selection of multichannel providing that device. We note that the Section 205 imposes responsibilities on video programming are audibly navigation device manufacturer would MVPDs who lease or sell navigation accessible in real-time upon request, have compliance responsibilities under devices and on manufacturers who sell except that the Commission may not Section 205 in the event the customer navigation devices at retail, we also find specify the technical standards, purchases at retail a CableCARD- that Section 205 imposes responsibility protocols, procedures, and other compatible set-top box or other device on the manufacturers of navigation technical requirements for meeting this containing conditional access device hardware and software, even if requirement[.]’’ We find that both they are not the entity that leases or MVPDs that provide navigation devices menus and guides provided by navigation devices,’’ sells the navigation device to see 47 U.S.C. 303(bb)(1), ACA explains that the consumers. Section 303(bb)(3) of the Act to their subscribers and the information offered on such a programming channel manufacturers of navigation devices, ‘‘is provided entirely by equipment in the cable provides that ‘‘with respect to such as retail set-top boxes with headend, and not by any navigation device on the navigation device features and CableCARDs (e.g., TiVo boxes), that sell customer’s premises that has been provided by the functions—(A) delivered in software, cable operator.’’ Therefore, a cable channel the requirements set forth in this such devices to consumers at retail are providing program listings is not required to be responsible for providing compliant made accessible by Section 205. Similarly, as subsection shall apply to the equipment under Section 303(bb)(1) of requested by ACA, we clarify that, to the extent that manufacturer of such software; and (B) the Act.42 Section 205(b)(3) provides an MVPD does not provide navigation devices to its delivered in hardware, the requirements subscribers, it is not directly subject to the set forth in this subsection shall apply requirements of Section 205. We note that no party 41 We find that the requirements of Section 205 opposed ACA’s requests for clarification. to the manufacturer of such hardware.’’ would also apply to MVPDs in situations in which 43 We note that both AFB and NAD/Consumer The NPRM requested comment on the the MVPDs lease or otherwise give equipment to Groups generally object to including navigation meaning of this provision. We find that customers at no charge. devices other than MVPD-provided navigation these provisions require that 42 We clarify, as requested by the American Cable devices within the scope of Section 205, but would Association (‘‘ACA’’), that Section 205 does not have the Commission hold the manufacturers of manufacturers of navigation device apply to a cable channel providing program listings, these non-MVPD-provided navigation devices hardware and software each have often in the form of a scrolling grid. ACA requested responsible for compliance under Section 204. responsibility to ensure that the clarification that the requirements of Section 205(a) 44 As we discuss below, MVPDs may also have navigation device accessibility features do not apply to ‘‘a separate video channel that separate Section 205 compliance responsibilities 45 displays over the course of a few minutes the title pursuant to Section 303(bb)(3)(A) of the Act if the are functional. For instance, if the of the program currently playing on each network MVPD is the manufacturer of navigation device carried by the system.’’ While Section 205 applies hardware or software, including pre-installed 45 Such a responsibility also includes ensuring accessibility requirements to ‘‘the on-screen text MVPD applications. that any updates or upgrades that a manufacturer

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navigation device uses a hardware- responsibility under Section 205 to must have a ‘‘mechanism reasonably based solution to enable accessibility, ensure that a consumer is provided with comparable to a button, key, or icon the manufacturer of the navigation an accessible device.47 Pursuant to the designated for activating the closed device’s hardware has responsibility for terms of Section 205, we have the captioning.’’ 50 For instance, an ensuring that solution works correctly. authority to impose liability on any application offered by an MVPD that 46. We agree with Verizon’s responsible party (or parties) that we enables subscribers to watch formulation that this provision should find violate Section 205. multichannel video programming on a be interpreted consistent with other 47. When a device that would mobile device that was pre-installed by provisions of the CVAA so that the otherwise be a digital apparatus the mobile device manufacturer would Commission has the authority to ‘‘assign becomes a navigation device because need to be made accessible pursuant to entities responsibility for compliance in the device manufacturer installs an the requirements of Section 205.51 accordance with their roles in any application that performs conditional 48. NCTA argues that ‘‘if a non-MVPD alleged noncompliance.’’ Therefore, access so that a consumer can access provides a navigation device to a when the Commission receives a multichannel video programming or consumer (even if pre-loaded at sale complaint regarding a violation of other services offered over multichannel with an MVPD app), the non-MVPD Section 205, the Commission will video programming systems (hereinafter would be responsible for providing a determine which entity (or entities), if collectively referred to as ‘‘MVPD requesting consumer with an audibly any, is potentially responsible for the applications’’), we find that pursuant to accessible on-screen text menu or violation. The Commission will Section 303(bb)(3)(A), Section 205 guide.’’ As discussed above, we agree undertake this effort because it is better applies.48 Therefore, to the extent that that the non-MVPD manufacturer in this positioned than individual consumers an MVPD application makes use of ‘‘text scenario is responsible for complying to determine the potentially responsible menus and guides’’ ‘‘for the display or with Section 205(b)(3) by providing an entity. As discussed above, we find that selection of multichannel video accessible navigation device to a the entity that provides a navigation programming,’’ such text menus and requesting blind or visually impaired device to a requesting blind or visually guides must be made audibly accessible. individual. We do not agree, however, impaired individual (whether an MVPD In addition, if the device on which the that this precludes the Commission or equipment manufacturer that places MVPD application is installed has built- from holding MVPDs responsible under navigation devices into the chain of in closed captioning,49 the application Section 205 for the accessibility of pre- commerce) has a responsibility to installed MVPD applications’ on-screen provide that consumer with an 47 For example, an MVPD that provided a device text menus and guides. We believe such accessible device. At the same time, we to a requesting blind or visually impaired a reading of Section 205 would render subscriber that the MVPD believed was accessible believe that the language of Section but had a hardware or software malfunction that meaningless Section 303(bb)(3) of the 303(bb)(3) of the Act requires us to rendered the device inaccessible would still be Act, which explicitly states that ‘‘the recognize that MVPDs or manufacturers responsible for providing that subscriber with a requirements of this subsection shall that supply navigation devices are not working device that provided accessibility; it could apply to the manufacturer of . . . the only entities responsible for not merely point to the hardware or software software’’ when ‘‘navigation device manufacturer and escape liability for its own compliance under Section 205. Rather, obligations. Similarly, if a hardware or software features and functions’’ are ‘‘delivered there may be some instances in which failure on a retail navigation device occurred that in software’’ and ‘‘shall apply to the the manufacturer of navigation device rendered the device inaccessible, the manufacturer hardware or software fails to meet its that placed the navigation device into the chain of to make the captioning both available on the commerce would have responsibility under the Act hardware and software and easily accessible. Section 205 compliance responsibility to ensure that the customer had a functioning 50 NCTA argues that even if MVPD applications and bears liability in addition to, the accessible device. In a situation in which a device are subject to Section 205, those applications would is classified as a navigation device because it has MVPD or manufacturer supplying the not be required to provide a closed captioning a pre-installed MVPD application, the equipment navigation device.46 We intend to activation mechanism reasonably comparable to a manufacturer of that navigation device is button, key, or icon because Section 303(bb)(2) of investigate complaints and determine responsible for providing accessible devices to violations under Section 205 on a case- the Act only applies to ‘‘navigation devices with requesting blind or visually impaired individuals, built-in captioning capability’’ and MVPD by-case basis. In adopting this and would not be relieved of that responsibility by applications downloaded on a third-party device interpretation of Section 205, we virtue of the fact that the device was not compliant are not ‘‘built-in’’ to the device. We disagree with as a result of a software problem with the MVPD NCTA’s interpretation. Section 303(bb)(3)(A) of the emphasize that even if a complaint application that caused the application itself to proceeding results in a finding that a Act applies the accessibility requirements of become inaccessible. As discussed, in all these Section 205, including the closed captioning violation stems from a failure by the instances the entity providing the device, the activation mechanism requirement, to the manufacturer of hardware or software hardware manufacturer, and the software manufacturers of software to the extent a navigation manufacturer are all potentially liable for violations device’s features and functions are being delivered included in navigation devices provided of Section 205. Of course, in many instances, the by MVPDs or sold at retail, such a in software. The pre-installed MVPD application manufacturer of the hardware or software in a given itself need not be considered a navigation device for finding would not relieve the MVPD or device may be the MVPD or navigation device the manufacturers of the application’s software to equipment manufacturer that placed the manufacturer itself. have compliance responsibilities under Section navigation device into the chain of 48 NCTA agrees that when an MVPD application 303(bb)(3)(A) of the Act. commerce of its distinct and separate is pre-installed on a device, its on-screen text 51 Similar applications to those offered by MVPDs menus and guides must be made accessible. that use text menus and guides for the display or 49 After the effective date of the regulations selection of multichannel video programming and may offer meet the accessibility requirements of adopted under Section 203 of the CVAA in the IP allow consumers to access multichannel video Section 205. Closed Captioning Order, new navigation devices programming and other services, such as the TiVo 46 ACB argues that MVPDs should not be able to with video players that are capable of downloading application for smartphones and tablets, would also shift responsibility onto manufacturers or software MVPD-provided applications will generally have need to be made accessible under Section 205 if developers under Section 205 for the equipment the built-in closed captioning capability. We also note such applications were pre-installed by the device MVPD distributes. As our discussion herein that MVPDs are required under the rules adopted manufacturer. We are not addressing here other indicates, MVPDs will not be able to shift by the IP Closed Captioning Order to pass through services that provide access to video programming, responsibility for providing accessible devices to or render closed captioning on MVPD applications. such as Netflix, Hulu, and Amazon, though we note consumers onto navigation software and hardware In requiring that pre-installed MVPD applications pursuant to our Section 204 analysis that these manufacturers; however manufacturers of make the closed caption activation mechanism video applications must be made accessible under navigation device hardware and software also have accessible, our rules are ensuring that Sections 202, Section 204 if pre-installed by the digital apparatus compliance responsibilities under Section 205. 203, and 205 of the CVAA are working in tandem manufacturer.

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manufacturer of . . . hardware’’ when device into the chain of commerce) will Similarly, the hardware manufacturer of ‘‘navigation device features and be responsible for ensuring the the navigation device with the pre- functions’’ are ‘‘delivered in hardware.’’ accessibility of on-screen text menus installed MVPD application has a If Congress intended the only and guides for the display or selection responsibility under Section responsible entities under Section 205 of multichannel video programming on 303(bb)(3)(B) of the Act for ensuring that to be those that provided navigation its device to requesting blind or visually the device’s hardware allows for the devices to requesting blind or visually impaired individuals.53 In the event that accessibility of the pre-installed MVPD impaired individuals, there would have the provider of the navigation device application. been no need for Congress to include and the software manufacturer of the 50. While some commenters would the provisions of Section 303(bb)(3) of MVPD application use an accessibility have us apply Section 205 to all MVPD the Act. We believe our interpretation of solution that incorporates the applications, regardless of whether they Section 205 is more reasonable as it accessibility into the application itself, are pre-installed by the manufacturer of gives effect to all provisions of the the software manufacturer would also the device or later downloaded by the statue.52 That is, under our have responsibility for compliance consumer after purchase, at this time, interpretation, both the manufacturer of under Section 303(bb)(3)(A).54 In such we only impose obligations under the navigation device and the circumstances, we believe that the most Section 205 on MVPD applications that manufacturer of the software reasonable interpretation of Section are pre-installed on devices. We believe application are held responsible for 303(bb)(3)(A) is to find that the MVPD such an approach is reasonable because ensuring compliance with Section 205’s itself is the ‘‘manufacturer’’ of its in these instances, the manufacturer requirements. software application because under the will only be responsible for ensuring the 49. We note that the entity providing current marketplace reality, the MVPD accessibility of applications that it the navigation device with the pre- has exclusive rights to offer such chooses to pre-install on devices. installed MVPD application (which may software for use by its subscribers.55 Moreover, MVPDs will have consented be an MVPD, but in most cases we Therefore, the MVPD, as the software to such pre-installation and will be well anticipate will be the equipment manufacturer, has a responsibility under positioned to work with manufacturers manufacturer that placed the navigation Section 303(bb)(3)(A) of the Act for to ensure the accessibility of pre- ensuring that its pre-installed software installed applications. Such an 52 Prior to NCTA’s October 24, 2013 ex parte applications meet the accessibility approach is also consistent with the letter on this issue, NCTA, AFB, and ACB, stated requirements of Section 205.56 approach taken in the IP Closed that ‘‘Section 205 grants MVPDs maximum flexibility to provide a requesting customer an Captioning Order and ACS Order, where accessible solution and should not be construed to 53 Pursuant to the Act, the entity providing the the Commission found that the CVAA require that MVPD-provided apps running on third- navigation device to the consumer is obligated to provisions being implemented in those provide audible accessibility of the MVPD party devices must be accessible regardless of proceedings did not apply to ‘‘third- whether the MVPD provides the customer with application’s text menus and guides ‘‘upon request’’ another accessible solution.’’ While we appreciate to individuals who are blind or visually impaired party software’’ the installation of which the industry working to achieve consensus with the and has the maximum flexibility in determining the is not controlled or directed by the organizations representing individuals with manner by which the MVPD application is made manufacturer. MVPD commenters and disabilities, we do not believe this agreement audibly accessible. represents the correct legal interpretation of Section 54 We find that an MVPD application that allows CEA argue that Section 205 does not 205. As an initial matter, we note that the a consumer to access and navigate an MVPD’s video provide the Commission with authority provisions of Section 205 that grant ‘‘maximum programming is delivering ‘‘navigation device to regulate software applications flexibility’’ to the entity responsible for compliance features and functions’’ within the meaning of because MVPD applications are not grant such maximum flexibility to ‘‘the entity Section 303(bb)(3)(A) of the Act because the providing the navigation device.’’ When an MVPD installation and use of applications is a feature or ‘‘devices’’ or ‘‘equipment’’ and therefore application is pre-installed on a device by that function of a navigation device with the MVPD do not meet the definition of a device’s manufacturer, the device manufacturer is application pre-installed by the device navigation device under § 76.1200(c) of the ‘‘entity providing the navigation’’ device and is manufacturer. NCTA is correct that Section 205 the Commission’s rules. However, our entitled to the maximum flexibility in complying does not require the MVPD application itself to with Section 205, not the MVPD. The MVPD in this provide accessibility; the entity providing the conclusion that pre-installed MVPD example, as the manufacturer of the pre-installed navigation device can choose the means by which applications must be covered under application, is the manufacturer of a ‘‘navigation the text menus and guides of the application are Section 205 is not predicated on MVPD device feature and function delivered in software.’’ made accessible. 55 applications themselves being Under Section 205, the software manufacturer is not In the case of a third-party application that 57 given ‘‘maximum flexibility’’ to select the manner offers access to multichannel video programming navigation devices, it is predicated on of compliance. Instead, Section 303(bb)(3)(A) of the but is not provided by the MVPD, such as the TiVo MVPD applications being a ‘‘navigation Act simply requires the software manufacturer to application, the third-party provider of the device feature[ ] or function[ ]’’ that is make its software functionality compliant. In other application would be the ‘‘manufacturer’’ under ‘‘delivered in software’’ under Section words, unlike with respect to the entity providing Section 205. For instance, using the example of the consumer with the navigation device, Section TiVo’s application referenced above, TiVo would be 303(bb)(3)(A) of the Act, which imposes 205 gives no leeway to the software manufacturer the responsible entity under Section 205. responsibility for compliance under to provide a separate solution to comply with the 56 Some MVPD commenters argue that imposing Section 205 directly on the CVAA’s requirements. In any event, even if the accessibility requirements on MVPD applications manufacturers of navigation device ‘‘maximum flexibility’’ provision of Section 205 will stunt the development of this type of software were to apply here, it would give the entity as it will require MVPDs to ensure that their flexibility to select the ‘‘manner of compliance,’’ not applications are accessible across numerous to design accessible software under Section 205 to select whether or not to comply. Moreover, the platforms. However, MVPDs will only have while other non-MVPD distributors of video fact that an MVPD may provide compliant compliance obligations in relation to MVPD programming would not be required to provide navigation devices to its subscribers that choose to applications that are pre-installed on devices. In accessible software applications. To the contrary, lease or purchase such a device from the MVPD, these circumstances, the MVPD will have already we find that our approach treats both MVPD does not relieve the MVPD from its potential consented to have its application pre-installed, and applications and other video applications similarly. separate compliance obligation as a software thus presumably has coordinated with the device As our above discussion of Section 204 explains, manufacturer of a pre-installed MVPD application manufacturer. To the extent that, in certain pre-installed video applications on digital to make such an application accessible. We observe circumstances, an MVPD believes that it will not be apparatus subject to Section 204 must be made that NCTA’s subsequent ex parte submissions ‘‘achievable’’ to build accessibility into its accessible similarly to how pre-installed MVPD appear to acknowledge that MVPD applications application as installed on certain platforms, it is applications on navigation devices must be made must be made accessible if pre-installed; they argue free to seek a determination that it is not accessible under Section 205. the responsibility for ensuring such accessibility is ‘‘achievable.’’ DIRECTV, LLC (‘‘DIRECTV’’) argues 57 Rather, the navigation device is the device that on the navigation device provider. that it would be ‘‘grossly unfair’’ to require MVPDs includes the pre-installed MVPD application.

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software. With respect to MVPD be designed, developed, and fabricated of industry commenters explain that applications that are not pre-installed by so that control of appropriate built-in multipurpose devices include functions the device manufacturer, but rather apparatus functions are accessible to unrelated to the display of video installed by consumers after purchase, and usable by individuals who are blind programming, and they argue that the the record indicates that MVPDs and or visually impaired.’’ 47 U.S.C. tentative conclusion is overbroad software application manufacturers will 303(aa)(1). We also adopt rules to ensure because it encompasses those functions. face significant technical challenges in that ‘‘if on-screen text menus or other For example, the Entertainment ensuring that consumer-installed MVPD visual indicators built in to the digital Software Association (‘‘ESA’’) argues applications comply with Section 205 apparatus are used to access the that the NPRM’s tentative conclusion ‘‘is on all devices.58 Given these [appropriate built-in] functions of the broader than needed to achieve the technological challenges, we believe at apparatus . . . such functions shall be accessibility goals behind Sections 204 this time it is not appropriate to impose accompanied by audio output that is and 205, which clearly are focused on compliance obligations under Section either integrated or peripheral to the video programming,’’ and ‘‘also creates 205 on MVPD applications that are not apparatus, so that such menus or significant uncertainty for pre-installed by device manufacturers.59 indicators are accessible to and usable manufacturers in determining how to 51. Other Entities. We disagree with by individuals who are blind or visually handle other device functions that are AFB that Section 205(b)(3) requires that impaired in real-time.’’ Id. 303(aa)(2). In completely unrelated to video we impose Section 205 requirements on the discussion that follows, we set forth programming, such as game play businesses such as restaurants and bars the compliance requirements for features of a game console.’’ Other because such business make ‘‘navigation manufacturers of covered apparatus commenters argue that imposing devices . . . available to their with regard to accessibility of accessibility requirements on all user customers’’ and therefore ‘‘must provide appropriate built-in functions and functions of a device is contrary to the accessible equipment upon the request related on-screen text menus and visual plain language of the statute, which of a customer who is blind or visually indicators. imposes obligations only with respect to impaired.’’ We also decline to impose 53. Accessibility of Appropriate Built- ‘‘appropriate built-in apparatus obligations on consumer electronics In Apparatus Functions. We require that functions.’’ Upon further consideration retailers, as AT&T Services, Inc. covered digital apparatus ‘‘if achievable of the arguments raised in the record, (‘‘AT&T’’) suggests.60 There is no . . . be designed, developed, and we decline to adopt our tentative indication that Congress intended to fabricated so that control of appropriate conclusion to extend Section 204 apply Section 205 to any entities other built-in apparatus functions are accessibility requirements to all user than MVPDs and manufacturers of accessible to and usable by individuals functions of a device, excluding hardware and software included in who are blind or visually impaired.’’ As diagnostic and debugging functions. We navigation devices. If Congress had discussed more thoroughly below, we agree with commenters that Congress’s intended to extend Section 205’s reach find that the ‘‘appropriate’’ built-in use of the term ‘‘appropriate’’ as a to cover retailers or businesses such as apparatus functions are those functions qualifier indicates that it did not intend those in the travel, entertainment, or that are used for the reception, play for the requirements to broadly cover food industries that purchase or lease back, or display of video programming user functions that are unrelated to navigation devices for the use of their and that, at this time, those are limited video programming. customers, we believe it would have to the VPAAC 11 essential functions.61 55. Instead, we conclude that the done so explicitly. As noted above, Further, we clarify that an apparatus ‘‘appropriate’’ apparatus functions are however, other federal laws may impose covered by Section 204 is not required those functions that are used for the accessibility obligations on some of the to include all 11 functions if those reception, play back, or display of video businesses that AFB discusses that are functions are not otherwise included in programming. We believe that not contemplated by the provisions of the device generally. That is, we do not interpreting ‘‘appropriate’’ user the CVAA. impose an obligation on a manufacturer functions to include those related to to add any of the 11 functions; rather, video programming and to exclude IV. Accessibility Requirements of we require only that those functions that those unrelated to video programming is Sections 204 and 205 of the CVAA are already included in the device be consistent with the intent of the CVAA A. Functions That Must Be Made made accessible. ‘‘to help ensure that individuals with Accessible Under Sections 204 and 205 54. In the NPRM, we tentatively disabilities are able to . . . better access concluded that the ‘‘appropriate’’ video programming.’’ We also believe 1. Section 204 Requirements for Digital functions that must be made accessible that this interpretation of the term Apparatus under Section 204 include all user ‘‘appropriate’’ is consistent with the 52. As mandated by Section 204, we functions of a covered device, with the scope of Section 204, which specifies adopt rules requiring that covered exception of diagnostic and debugging that covered digital apparatus are those ‘‘digital apparatus’’ ‘‘if achievable . . . functions. ACB, Verizon, and the that ‘‘receive’’ or ‘‘play back’’ video Rehabilitation Engineering Research programming transmitted in digital 58 Commenters that support requiring the Center for Wireless Technologies format simultaneously with sound, as accessibility of all MVPD applications do not (‘‘Wireless RERC’’) agree that all user well as those that ‘‘receive’’ or ‘‘display’’ provide countervailing evidence. functions on a covered device should be video programming transmitted in 59 We will continue to monitor the development 62 digital format via Internet protocol. of accessible technology in this area and will made accessible. However, a number reevaluate whether we should require the Commenters including CEA, CTIA—The accessibility of consumer-installed MVPD 61 As described herein, in the VPAAC Second applications at a later date if it appears necessary Report: User Interfaces, the VPAAC ‘‘define[d] the comments expressed support for the proposal in the to ensure access to MVPD programming by people set of [11] functions considered essential to the NPRM that all functions must be made accessible who are blind or visually impaired. video consumption experience.’’ under Section 204, a later ex parte letter that AFB 60 We also disagree with AFB that a literal 62 ACB and the Wireless RERC disagree with the filed jointly with CEA states that the 11 essential interpretation of Section 205(b)(3) would require NPRM’s tentative conclusion to the extent that it functions identified by the VPAAC are the set of that the Commission impose obligations on resellers excludes diagnostic and debugging functions from functions subject to Section 204 accessibility of used consumer electronics, such as Goodwill. accessibility requirements. Although AFB’s reply requirements.

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Wireless Association (‘‘CTIA’’), ESA, chaotic retail experience for consumers thus, as its first task, the VPAAC and Panasonic agree that ‘‘appropriate’’ who could not be certain which ‘‘define[d] the set of functions built-in apparatus functions should functions would be accessible on considered essential to the video encompass only those functions that particular devices. We also believe that consumption experience,’’ as relate in some manner to video allowing manufacturers to dictate which ‘‘applicable to devices covered under programming. In particular, CEA functions are ‘‘appropriate’’ is CVAA Section 204 and CVAA Section suggests that ‘‘[b]ecause Section 204 potentially harmful to consumers to the 205.’’ We recognize that the VPAAC was applies specifically to digital apparatus extent manufacturers can unilaterally not specifically instructed to determine designed to receive or play back video decide not to make certain functions the ‘‘appropriate’’ user functions programming, the functions to be accessible to individuals with visual referred to in Section 204 of the CVAA, considered ‘appropriate’ are limited to disabilities, even if such functions are nor are we bound by the VPAAC’s those that are necessary for the related to video programming. Given recommendations. We attach great apparatus to receive or play back that these concerns, we believe the suggested weight, however, to their findings on programming.’’ We are concerned, approach would be at odds with the this subject, which were based on however, that the ‘‘necessary for’’ intent of the CVAA to make the deliberations among industry and formulation put forth by CEA may be functionality of the apparatus consumer representatives. The VPAAC construed more narrowly than Congress ‘‘accessible to and usable by individuals defined these ‘‘essential functions’’ as had intended, resulting in the exclusion who are blind or visually impaired.’’ We the ‘‘set of appropriate built-in of some appropriate functions that are find that instead of permitting apparatus functions’’ under Section 204. related to video programming from the manufacturers to decide which We concur with the VPAAC and find accessibility requirements of Section functions on a covered device are the that, at this time, the apparatus 204. We believe that the approach more ‘‘appropriate’’ functions subject to functions that must be made accessible consistent with Congress’s intent is to accessibility requirements, we will to individuals who are blind or visually interpret ‘‘appropriate’’ more broadly as provide clarity to the industry and impaired if they are included in the including those functions that are used consumers by specifying which user device 64 are the following: 65 for the reception, play back, or display functions we consider to be • Power On/Off: Function that allows of video programming. Further, we ‘‘appropriate’’ (i.e., used for the the user to turn the device on or off. disagree with AT&T’s and CEA’s reception, play back, or display of video • Volume Adjust and Mute: Function contention ‘‘that Congress used the programming). that allows the user to adjust the volume word ‘appropriate’ to mean ‘appropriate 57. We find that, at this time, the 11 and to mute or un-mute the volume. for a person who is blind or visually essential functions identified in the • Channel/Program Selection: impaired’ ’’ and, therefore, VPAAC Second Report: User Interfaces Function that allows the user to select ‘‘appropriate’’ apparatus functions are the ‘‘appropriate’’ built-in apparatus channels and programs (e.g., via should include only ‘‘those functions functions used for the reception, play physical numeric or channel up/ that a person who is blind or visually back, or display of video programming channel down buttons or via on-screen impaired would need to use to select or that must be made accessible to guides and menus).66 access video programming.’’ As AFB individuals who are blind or visually • Display Channel/Program explains, ‘‘if a control or function is impaired pursuant to Section 204 if Information: Function that allows the these functions are included in the made available to all customers device. Thus, we decline to adopt our generally, there should be a 64 Consistent with our analysis in Section III.B tentative conclusion that the VPAAC presumption that people who are blind above, we emphasize that if a third-party video functions are representative, but not an or visually impaired, just like all other programming application is pre-installed by the exhaustive list, of the categories of user manufacturer on a covered apparatus (i.e., if Netflix customers, may be expected, and functions on an apparatus that must be is pre-installed on a smart television), any of the 11 possibly required, to use it.’’ We agree VPAAC functions that are included in that made accessible.63 We note that AFB with AFB that we should presume that application must be made accessible. and CEA agree with limiting the 65 any functions used to receive, play back, ACB and the Wireless RERC argue that ‘‘appropriate’’ functions to the VPACC diagnostic and debugging functions should be or display video programming would be 11 essential functions. In its report, the subject to accessibility requirements because users used by a person who is blind or VPAAC observed that ‘‘the CVAA does who are blind or visually impaired may need to make use of such functions, for example when visually impaired and, therefore, there not define the set of intended functions is no need to distinguish between video receiving technical support over the phone. ACB that must be made accessible and usable also points out that the technicians who are programming functions that would and by individuals with disabilities,’’ and, expected to access and utilize diagnostic and ‘‘would not be used by a person with a debugging functions may themselves be blind or

vision disability’’ for purposes of 63 visually impaired. Although we understand that The record reflects opposing views with regard individuals who are blind or visually impaired may determining which functions are to this tentative conclusion. ACB, NAD/Consumer want to directly access diagnostic and debugging Groups, Montgomery County, Maryland ‘‘appropriate’’ under Section 204. functions on occasion, the record does not (‘‘Montgomery County’’), Verizon, and the Carl and demonstrate that there is a broad need for 56. We disagree with commenters Ruth Shapiro Family National Center for Accessible consumers to regularly access such functions in who suggest that manufacturers should Media at WGBH (‘‘NCAM’’) agree with the tentative conclusion. These commenters maintain that order to receive, play back, or display video have the discretion to determine which programming. Therefore, at this time, we find that functions are ‘‘appropriate.’’ We believe Congress did not intend for Section 204 to apply to a subset of user functions deemed ‘‘essential’’ by an that the costs of imposing such a requirement that leaving this determination to the advisory committee, and that the list of essential outweigh its limited benefit. We also note that the discretion of manufacturers will lead to functions delineated by the VPAAC omits certain VPAAC did not consider such functions to be essential to the video consumption experience. inconsistencies in compliance across video programming-related functions that should be made accessible. On the other hand, numerous 66 We interpret this to include, for example, the devices and uncertainty for consumers industry commenters argue that the 11 VPAAC ability to select programs that are available on with regard to which video functions comprise an exhaustive list of apparatus demand or on a digital video recorder (‘‘DVR’’), in programming functions are required to functions that are subject to Section 204 addition to the ability to select linear programming be accessible on covered apparatus. The accessibility requirements, and they emphasize that that is available in real-time. We also interpret this the VPAAC viewed the 11 essential functions as the to include the ability to launch applications that are discretionary framework suggested by set of functions that must be made accessible under used for the selection and display of video these commenters could lead to a Section 204. programming.

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user to display channel or program apparatus.’’ However, industry of these functions may not be provided information.67 commenters argue that taking an for any users on certain devices. We • Configuration—Setup: Function expansive view of which apparatus agree with commenters that Section 204 that allows the user to access and functions are subject to accessibility ‘‘do[es] not mandate the inclusion of change configuration or setup options requirements beyond the VPAAC 11 any specific functions’’ in the design of (e.g., configuration of video display and functions ‘‘would leave apparatus a covered apparatus. However, to the audio settings, selection of preferred manufacturers guessing what other extent that an apparatus is designed to language for on-screen guides or menus, functions are ‘appropriate,’ and will include an ‘‘appropriate’’ built-in etc.).68 stifle innovation.’’ While we do not apparatus function, such function must • Configuration—CC Control: reach the conclusion here that be made accessible in accordance with Function that allows the user to enable incorporating accessibility features for our rules. or disable the display of closed functions other than the VPAAC 11 60. As contemplated by the Act, we captioning. do not adopt any technical standards or • functions will stifle innovation, and Configuration—CC Options: believe, based on past experience, that other technical requirements for how Function that allows the user to modify the incorporation of access features in covered apparatus should make the the display of closed caption data (e.g., some cases can enhance innovation and appropriate built-in apparatus functions configuration of the font size, font color, result in the development of improved ‘‘accessible to and usable by individuals background color, opacity, etc.). products for the general public,71 we who are blind or visually impaired.’’ We • Configuration—Video Description agree that delineating the current set of believe that Congress’s intent is clear, Control: Function that allows the user to ‘‘appropriate’’ functions with some and the Commission is prohibited by enable or disable the output of video specificity is necessary to eliminate Section 303(aa)(1) from specifying the description (i.e., allows the user to uncertainty for manufacturers as they technical means by which covered change from the main audio to the embark on designing and developing entities must meet their accessibility secondary audio stream that contains 73 accessible products. We also believe obligations. video description, and from the that such an approach is consistent with 61. While we do not adopt rules secondary audio stream back to the our determination that decisions about specifying the technical requirements main audio). for compliance with the accessibility • Display Configuration Info: what functions are made accessible should not be left to the discretion of mandate in Section 204, we will apply Function that allows the user to display the definition of ‘‘accessible’’ in § 6.3(a) how user preferences are currently manufacturers. The approach we implement balances the need to provide of the Commission’s rules to explain configured. generally what ‘‘accessible’’ means for • Playback Functions: Function that certainty to manufacturers when they are designing devices with the need to those functions that are not specifically allows the user to control playback required to be audibly accessible. To the ensure that those functions currently functions (e.g., pause, play, rewind, fast extent the appropriate built-in apparatus 69 used to receive, play back, or display forward, stop, and record). functions are accessed through on- • video programming are made accessible Input Selection: Function that screen text menus or other visual to individuals who are blind or visually allows the user to select their preferred indicators built in to the apparatus, the impaired, while also recognizing that input source. statute specifies that they must be made the Commission may need to assess 58. We emphasize that at this time we audibly accessible, and we find herein whether future, innovative functions on consider the abovementioned functions that this requirement is self- devices used to view video to be the set of ‘‘appropriate’’ functions implementing. However, if the that are used for receiving, playing back, programming are subject to accessibility 72 appropriate built-in apparatus functions or displaying video programming based requirements. We strongly encourage are not accessed through on-screen text on current technology, but the digital apparatus manufacturers, when menus or other visual indicators built in Commission may revisit this list if and designing innovative new functions, to to the apparatus, they must be made when technology evolves to a point concurrently design such features to be accessible generally to individuals who where devices incorporate new user accessible to individuals who are blind are blind or visually impaired, but need functions related to video programming or visually impaired. not be made audibly accessible. In the that were not contemplated by the 59. We clarify that an apparatus NPRM, we asked whether we should VPAAC.70 We understand NAD/ covered by Section 204 is not required apply relevant parts of the definition Consumer Groups’ and other to include all 11 functions deemed to be contained in § 6.3(a) of the commenters’ concern that ‘‘[a]s ‘‘appropriate,’’ understanding that some Commission’s rules,74 47 CFR 6.3(a), technology evolves, we can expect more which implements Sections 255 and 716 71 functions to be added to devices and As we have previously noted, in many 75 instances, innovative accessibility features are used of the Act, to define what ‘‘accessible’’ by people without disabilities. Closed captioning, 67 We interpret this to include, for example, the an innovation originally designed to provide access 73 Section 303(aa)(1) of the Act states that ‘‘the ability to display channel and program information to television programming for people who are deaf Commission may not specify the technical for programs that are available on demand or on a and hard of hearing, is now widely used by the standards, protocols, procedures, and other DVR, in addition to the ability to display channel general public in noisy locations, such as technical requirements for meeting’’ the and program information for linear programming restaurants, bars, and exercise facilities, as well as accessibility and usability requirements of this that is available in real-time. locations where a quiet environment is preferred, section. 47 U.S.C. 303(aa)(1). 68 We interpret this to include, for example, the such as legislative offices. 74 The relevant parts of the definition include ability to change setup options for V-chip and 72 A number of industry commenters advocate for those provisions that relate to accessibility for parental controls. the adoption of a safe harbor for the VPAAC 11 individuals who are blind or visually impaired. 69 We interpret this to include, for example, the functions. We believe the approach we adopt is 75 Section 6.3(a) of the Commission’s rules ability to control playback functions for programs preferable because it provides more certainty to implements Section 255 of the Act (requiring that are available on demand or on a DVR, in manufacturers and consumers, while allowing the telecommunications providers and equipment addition to the ability to control playback functions Commission to reevaluate whether the set of manufacturers to make their products ‘‘accessible to for linear programming that is available in real- functions that must be made accessible on covered and usable by’’ persons with disabilities), and time. apparatus should be updated to include new § 14.21(b) of the Commission’s rules, which is 70 Any such modifications to this list will be functions to the extent technology evolves in the analogous to § 6.3(a), implements Section 716 of the made by the full Commission. future. Continued

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means for those appropriate built-in digital apparatus are used to access the 64. In the NPRM, we tentatively apparatus functions that must be [appropriate built-in] functions of the concluded that all user functions that accessible, but are not specifically apparatus . . ., such functions shall be are offered via on-screen text menus and required to be audibly accessible (e.g., accompanied by audio output that is guides should be accessible on power on/off).76 ACB and Montgomery either integrated or peripheral to the navigation devices covered by Section County support applying the definition apparatus, so that such menus or 205. We also sought comment on of ‘‘accessible’’ in § 6.3(a) to the indicators are accessible to and usable whether there should be any substantive requirements we adopt pursuant to by individuals who are blind or visually difference between the functions of Sections 204 and 205 of the CVAA. impaired in real-time.’’ In the NPRM, we apparatus that must be accessible under Although NCTA and DIRECTV oppose tentatively concluded that the Section 204 as opposed to the functions using the § 6.3(a) definition of requirement that on-screen text menus of navigation devices that must be ‘‘accessible’’ in the context of Section or other visual indicators ‘‘be accessible under Section 205. With the 205 because the on-screen text menus accompanied by audio output’’ is self- exception of ACB and AT&T,77 and guides covered by Section 205 are implementing. No commenter addresses commenters argue that Congress specifically required by statute to be this tentative conclusion, but Verizon adopted distinct requirements for made audibly accessible, we do not and CTIA argue generally that the apparatus subject to Section 204 and propose to apply the definition in this obligations imposed by Section 204 navigation devices subject to Section context. To provide some clarity to should be self-implementing. We adopt 205. According to these commenters, industry in determining what it means our tentative conclusion and find that navigation devices subject to Section to make a function generally accessible this requirement is self-implementing, 205 are governed by a more narrow to individuals who are blind or visually and therefore simply codify this provision that focuses on access to ‘‘on- impaired, we apply the following parts requirement in our rules. Panasonic screen text menus and guides . . . for of § 6.3(a) of the Commission’s rules to emphasizes that Section 204 applies the display or selection of multichannel explain that ‘‘accessible’’ means: only to those on-screen text menus or video programming,’’ whereas Section (1) Input, control, and mechanical visual indicators that are used to access 204 applies more broadly to the functions shall be locatable, identifiable, the appropriate built-in apparatus ‘‘appropriate built-in functions’’ of an and operable in accordance with each of functions, and not to all on-screen text apparatus. As discussed below, we take the following, assessed independently: menus or visual indicators on a device, these differences into account in our (i) Operable without vision. Provide at and that Section 204 permits the audio analysis. Further, commenters point out least one mode that does not require output functionality to be either that a navigation device may include user vision. integrated or peripheral to the device. functions unrelated to video (ii) Operable with low vision and We agree. programming. Thus, based on the limited or no hearing. Provide at least 2. Section 205 Requirements for record, we no longer believe it is one mode that permits operation by Navigation Devices accurate to conclude that all of a users with visual acuity between 20/70 navigation device’s user functions that and 20/200, without relying on audio 63. We codify in our rules the are activated via text menus and guides output. language in Section 303(bb)(1) of the are used for the display or selection of (iii) Operable with little or no color Act, which requires ‘‘that the on-screen multichannel video programming. perception. Provide at least one mode text menus and guides provided by Instead, we agree with DIRECTV that we that does not require user color navigation devices . . . for the display ‘‘must determine which functions or perception. or selection of multichannel video categories of functions on a navigation 62. Accessibility of On-Screen Text programming are audibly accessible in device properly relate to the display or Menus or Other Visual Indicators Used real-time upon request by individuals selection of multichannel video to Access Appropriate Built-In who are blind or visually impaired.’’ 47 programming.’’ Apparatus Functions. We codify the U.S.C. 303(bb)(1). In the discussion that 65. Thus, we decline to adopt our statutory language in Section 204 that follows, we set forth the compliance tentative conclusion that all user requires ‘‘that if on-screen text menus or requirements for MVPDs and functions that are offered via on-screen other visual indicators built in to the manufacturers with regard to text menus and guides should be accessibility of on-screen text menus accessible on navigation devices, and Act (requiring providers of advanced and program guides on navigation instead find that Section 205 requires communications services and manufacturers of devices. Specifically, we conclude that audible accessibility for those equipment used for such services to make their nine of the 11 VPAAC functions must be navigation device functions that are products ‘‘accessible to and usable by’’ persons made audibly accessible on navigation offered via on-screen text menus and with disabilities). 47 CFR 6.3(a), 14.21(b). devices because they are accessed 76 We also inquired whether we should specify guides and used for the display or how a device accepts input from and provides through on-screen text menus and selection of multichannel video feedback to users with respect to such functions. guides and used for the display or programming, and more general The VPAAC explained that user input refers to ‘‘the selection of multichannel video accessibility for controls necessary to need for users to be able to locate, identify, and programming. We further conclude that interact with the control mechanism for each access those covered functions. For the essential function of the device . . . in order to the remaining two VPAAC functions same reasons we expressed in the express their intent, for control of playback must be made accessible to people who Section 204 context, we disagree with operations, setting preferences, making selections of are blind or visually impaired because content of interest, and the like,’’ and that user DISH Network L.L.C. and EchoStar they are controls necessary to access Technologies L.L.C. (‘‘DISH/EchoStar’’) feedback should ‘‘not depend on the impaired covered functions, but that these need ability.’’ Verizon, the only commenter who that the Commission should ‘‘allow addresses this issue, opposes any specific not be made audibly accessible. In manufacturers to determine which requirements with regard to user input and addition, as we did with regard to functions of particular devices best feedback. Given the concerns raised by Verizon Section 204, we find that the audible about the potential to hinder innovation by mandating the mechanisms for user input and accessibility requirement is self- 77 As discussed above, we disagree with ACB’s feedback, we decline at this time to adopt rules implementing, and therefore simply contention that Section 205 devices are a subset of specifying user input and feedback requirements. codify this requirement in our rules. Section 204 devices.

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satisfy the requirements of [Section 205 CC Control; Configuration—CC Options; display or selection of multichannel of] the CVAA.’’ If a function is provided Configuration—Video Description video programming covered by Section via an on-screen text menu or guide and Control; Display Configuration Info; 205. NCTA argues that one category, it is used for the display or selection of Playback Functions; and Input ‘‘Input Selection,’’ is not covered by multichannel video programming, Selection.79 We believe that all of these Section 205 because it ‘‘is generally Section 205 mandates that it must be functions are used for the display of performed by the television set or made audibly accessible. Our rules multichannel video programming. To be audio/video receiver’’ and ‘‘is not part implementing Section 205 will reflect more specific, the functions of an MVPD’s program guide or this mandate. Also, consistent with our ‘‘Configuration—Setup’’ and ‘‘Display menu.’’ 81 We note that navigation implementation of Section 204, we are Configuration Info’’ are used to view devices covered by Section 205 include not requiring covered entities to add any and change the settings for the display not only MVPD-provided set-top boxes particular functionality offered via an of multichannel video programming; the but also CableCARD televisions and on-screen text menu or guide for the functions ‘‘Channel/Program Selection’’ other navigation devices sold at retail display or selection of video and ‘‘Display Channel/Program and, therefore, it is appropriate to programming that it had not otherwise Information’’ are used to select and require that the ‘‘Input Selection’’ included on a navigation device. Rather, display specific channels and programs function, when offered via an on-screen we require only that the functionality of multichannel video programming; the text menu or guide on any navigation that is already included in the device be functions ‘‘Configuration—CC Control’’ device, be made accessible under made accessible. and ‘‘Configuration—CC Options’’ are Section 205.82 DISH/EchoStar argues 66. Given the divergent views in the used to control and configure the that two categories, ‘‘Configuration— record, we believe it is necessary to captions that are part of the display of Setup’’ and ‘‘Display Configuration specify which functions we consider to multichannel video programming; 80 the Info,’’ are not covered by Section 205 be used ‘‘for the display or selection of function ‘‘Configuration—Video because they are ‘‘broad, umbrella multichannel video programming.’’ In Description Control’’ is used to control categories of functions’’ that ‘‘may not the NPRM, we asked whether making the audibly-described portions of the relate to the display or selection of the VPAAC 11 essential functions display of multichannel video multichannel video programming.’’ accessible on navigation devices would programming; ‘‘Playback Functions’’ is However, a configuration menu that is achieve Section 205’s requirement that used to play, pause, fast forward, and used to view or adjust the display on-screen text menus and guides for the rewind multichannel video settings for multichannel video display or selection of multichannel programming that is displayed; and programming on a navigation device is video programming be made audibly ‘‘Input Selection’’ is used to select the covered by Section 205, regardless of accessible, and we tentatively input that permits the display of whether it can also be used to view or concluded that the VPAAC 11 functions multichannel video programming. In adjust the display settings for features are representative, but not an exhaustive addition, two of these functions— other than multichannel video list, of the categories of functions that a ‘‘Channel/Program Selection’’ and programming. DIRECTV contends that navigation device must make accessible. ‘‘Display Channel/Program only four of the VPAAC 11 functions are Certain MVPD commenters argue that, Information’’—also are used for the required to be accessible under Section while the VPAAC list may be useful in selection of multichannel video 205. We believe that DIRECTV’s providing some examples of functions programming. proposal is an inappropriately narrow that should be made accessible under 68. We find unpersuasive the interpretation of the phrase ‘‘display or Section 205, it includes functions that arguments of MVPD commenters for selection of video programming’’ are beyond the scope of the accessibility excluding certain of these nine because it excludes five functions that mandate in Section 205. functions from the audible accessibility we consider to be used for the display 67. Rather than adopt our tentative requirements of Section 205. NCTA and of video programming as explained in conclusion that the entire VPAAC list is DISH/EchoStar agree that most of the paragraph 67 above.83 representative of what functionality is nine functions are accessed by means of 69. In the NPRM, we tentatively required to be accessible pursuant to on-screen text menus or guides for the concluded that the statutory Section 205, we now identify nine of the requirement that on-screen text menus 79 Although we find that these functions are used or guides be audibly accessible is self- 11 functions on the VPAAC list of for the display of multichannel video programming essential functions,78 as defined in and subject to Section 205 audible accessibility implementing. No commenter disagrees. paragraph 57 above, as those that are requirements when they are accessed via an on- Further, Section 303(bb)(1) of the Act used for the display or selection of screen text menu or guide, we note that to the indicates that ‘‘the Commission may not extent such functions are provided by means of a multichannel video programming and mechanism other than an on-screen text menu or 81 therefore, are required to be made guide (e.g., if playback functions are accessed via We note that NCTA does not argue that the audibly accessible on navigation devices dedicated play, pause, rewind, and fast forward input selection function is not provided through on- buttons on a remote; if closed captioning or video screen text menus or guides, but rather that it is not under Section 205 if they are offered via description is activated through a dedicated button provided at all on MVPD-provided navigation an on-screen text menu or guide: on a remote, etc.), they are not subject to Section devices. As we note above, if a particular function Channel/Program Selection; Display 205 audible accessibility requirements. However, is not included on a navigation device, then there Channel/Program Information; we strongly encourage navigation device is no obligation to add that functionality; rather, we manufacturers to design such features to be require only that the functionality that is already Configuration—Setup; Configuration— accessible to individuals who are blind or visually included in the device be made accessible. impaired. 82 However, when a navigation device accesses 78 We do not include the VPAAC categories of 80 We reject the presumption that a person who the input selection for that device or another device ‘‘Power On/Off’’ and ‘‘Volume Adjust and Mute’’ is blind or visually impaired does not need to through a button on an included remote control, with the understanding that such functions are not access closed captioning features and that, there is no obligation to make such a button typically accessed via on-screen text menus or therefore, closed captioning features should not be accessible. guides, but instead, are functions that are accessed subject to Section 205 audible accessibility 83 Specifically, DIRECTV excludes via a physical button on the remote control or requirements. For example, a person who is both ‘‘Configuration—Setup,’’ ‘‘Configuration—CC device. However, we require these functions to be visually impaired and deaf or hard of hearing may Control,’’ ‘‘Configuration—CC Options,’’ generally accessible because they are controls use the closed captioning control and settings when ‘‘Configuration—Video Description Control,’’ and necessary to access covered functions. viewing video programming. ‘‘Display Configuration Info.’’

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specify the technical standards, they are necessary to make other the Alliance for Communications protocols, procedures, and other covered functions of the device Democracy, the Alliance for Community technical requirements for meeting this accessible. If a consumer who is blind Media, and the National Association of requirement.’’ Given this statutory or visually impaired cannot turn on a Counties et al., along with numerous limitation, we do not adopt any navigation device, then the device and providers of PEG programming from technical standards or other all of its functionality are rendered across the country (collectively, ‘‘PEG requirements for how navigation inaccessible. And, if a consumer who is commenters’’) advocate for the devices should make covered on-screen blind or visually impaired cannot adjust Commission ‘‘to adopt rules that would text menus and guides ‘‘audibly the volume to hear audible output, then require video programming guides and accessible in real-time’’ to individuals those functions that are required to be menus which display channel and who are blind or visually impaired, and audibly accessible under Section 205 program information [to] include, for all instead find that this requirement is are rendered inaccessible.85 channels, high level channel and self-implementing and codify it in our 72. We find our authority to require program descriptions and titles, as well rules. that these two functions be made as a symbol identifying the programs 70. DIRECTV, NCTA, and AT&T argue accessible in Section 205(b)(1), Public with accessibility options (captioning that the Commission should clarify that Law 111–260, 205(b)(1), which provides and video description).’’ 87 PEG the audible accessibility requirement for the Commission with authority to commenters argue that the level of text menus and guides does not require ‘‘prescribe such regulations as are information that is currently provided exactly replicating in audible form the necessary to implement’’ the for PEG channels on MVPD program complete on-screen text. We conclude requirements in Section 303(bb) of the guides is inadequate to satisfy the that the audible accessibility Act. We find that requiring the power accessibility goals of the CVAA because requirement requires consumers to on/off and volume adjust/mute viewers who are blind or visually receive the essential information from functions to be accessible is necessary to impaired are unable to determine from the on-screen text menus and guides ensure that on-screen text menus and the guide what the PEG program options that they seek, but we do not require guides for the display or selection of are and whether such programs are that the audible version of an on-screen multichannel video programming are accessible and, thus, are unable to make 88 text menu or guide be an exact audibly accessible by individuals who meaningful video program choices. replication of the text. We recognize that are blind or visually impaired, as 74. We believe there is not sufficient covered entities need flexibility in required by Section 303(bb)(1) of the information in the record to require implementing the audible accessibility MVPDs to include particular Act. Congress’s directive to require requirement so that they can best information in program guides. Section audibly accessible guides and menus for respond to the needs of consumers who 205 of the CVAA requires that on-screen multichannel video programming on are blind or visually impaired. For text menus and guides provided by navigation devices would be example, a consumer may not want the navigation devices for the display or meaningless if individuals who are entire programming guide made audible selection of multichannel video blind or visually impaired are not even but rather may just want to know what programming be made audibly able to turn on the device or to adjust programming is on a particular channel. accessible, but it does not govern the the volume. However, we do not require Similarly, there may be a need to underlying content in the menus and that the power on/off and volume provide relevant information that may guides. In other words, this section not appear as on-screen text (for controls be audibly accessible, so long requires that if there is text in a menu example, a contextual description such as covered entities make these functions or program guide on the screen, then as ‘‘displaying rows 10 through 20 of accessible to individuals who are blind that text must be audibly accessible, but 100 channels,’’ or ‘‘displaying menu 1 of or visually impaired, in accordance with it does not impose requirements with 5 menus’’). We emphasize, however, the definition of ‘‘accessible’’ in § 6.3(a) regard to what substantive information that all of the essential information from of the Commission’s rules. must appear in the on-screen text. To the on-screen text menu or guide must 73. Program Information for PEG the extent a program guide lacks be made audibly accessible as requested Channels. We do not require MVPDs to adequate information about the title and or selected by the consumer.84 include particular program information description of a program, this 71. Accessibility of Controls Needed in their program guides at this time, but inadequacy affects the ability of all to Access Covered Functions. We also we inquire in the FNPRM about conclude that covered entities must Commission authority to impose such a that the proposed requirement is beyond the scope make certain functions accessible to requirement. Aside from the comments of the CVAA. individuals who are blind or visually of public, educational, and 87 In addition, a subset of PEG commenters governmental (‘‘PEG’’) programmers, contend that consumers who are blind or visually impaired because they are necessary for impaired face unique challenges in accessing PEG individuals who are blind and visually there is little discussion in the record channels on AT&T’s U-Verse system, and they ask impaired to access the audibly about imposing such requirements. In the Commission to require that AT&T provide its accessible on-screen text menus and particular, there is limited discussion in U-Verse subscribers with access to PEG guides for the display or selection of the record about the costs to MVPDs if programming that is equivalent to the access provided to linear commercial programming multichannel video programming. we adopt this requirement and whether channels on its system. We note that there is a Specifically, we conclude that ‘‘Power it would be technically feasible to separate Commission proceeding with a record that On/Off’’ and ‘‘Volume Adjust and require all MVPDs to include program specifically addresses these issues, and the instant Mute,’’ as defined in paragraph 57 titles and other information in their proceeding may not be the appropriate place to 86 resolve these issues. We also note that, pursuant to above, must be made accessible because program guides. Montgomery County, the rules we adopt herein, AT&T will be required to ensure that the on-screen text guides for selecting 84 We expect that covered entities will consult 85 The ability to control volume for audible PEG programs on U-Verse are audibly accessible. with individuals who are blind or visually impaired output is particularly important for individuals who 88 For this reason, PEG commenters argue that the in their efforts to ensure that on-screen text menus are blind or visually impaired and also deaf or hard Commission has direct authority under Section 205 and guides are made accessible in a manner that of hearing. of the CVAA to require MVPDs to provide more effectively meets the accessibility needs of those 86 The only two industry commenters that specific content in video programming guides and individuals. respond to the PEG issue, NCTA and AT&T, argue menus, as well as ancillary authority to do so.

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subscribers to make meaningful program voluntary performance objectives, offered at differing price points.’’ 47 choices, not just the ability of those who functional criteria, or any other specific U.S.C. 617(g). are blind or visually impaired to do so. metrics for accessibility at this time, but 77. As proposed in the NPRM, we Although we find the record insufficient we can reconsider whether there is a adopt a flexible approach to to decide this issue at this time, we seek need for voluntary guidelines on achievability, consistent with the comment in the FNPRM that accessibility after the requirements go approach adopted in the Emergency accompanies the R&O on possible into effect. In the meantime, we Information/Video Description Order, sources of authority for requiring encourage covered entities to engage in the IP Closed Captioning Order, and the MVPDs to include specific information the type of voluntary effort envisioned ACS Order. When faced with a for PEG programming in video by NCAM, which would involve complaint or enforcement action for a programming guides and menus, as well coordination between industry and violation of the requirements adopted as on the technical issues and costs for consumer groups on considering ‘‘a set herein pursuant to either Section 204 or MVPDs to comply with such of common and translatable Section 205 of the CVAA, a covered requirements. We recognize the approaches’’ to accessibility as a means entity may raise as a defense that a important role of PEG providers in to reduce confusion for consumers and particular apparatus or navigation informing the public, including those to promote commonality across devices. device does not comply with the rules who are blind or visually impaired, on We also note that the VPAAC Second because compliance was not achievable local community issues, and we Report: User Interfaces describes under the statutory factors. encourage MVPDs to provide more accessibility criteria agreed upon by Alternatively, a covered entity may seek detailed information in their program industry and consumer groups, which a determination from the Commission guides for PEG programs where such may be a helpful reference for covered that compliance with all of our rules is information is provided by PEG entities as they undertake voluntary not achievable before manufacturing or providers and where it is technically efforts to develop approaches to importing the apparatus or navigation feasible. accessibility. device. Covered entities that do not 3. Performance Objectives 4. Achievability make a particular apparatus or 75. At this time, we decline to adopt navigation device accessible, and performance objectives to evaluate 76. We adopt rules for ‘‘achievability’’ subsequently claim as a defense that it accessibility or compliance with the that are consistent with our is not achievable for them to do so, bear rules we adopt pursuant to Sections 204 implementation of standards for the burden of proof on this defense. and 205. As noted above, Section achievability in other CVAA contexts. Consistent with our implementation of 303(aa)(1) of the Act prohibits the Section 303(aa)(1) of the Act indicates achievability in prior CVAA contexts, Commission from ‘‘specify[ing] the that apparatus covered by Section 204 we find that it is appropriate to weigh technical standards, protocols, are required to make appropriate built- each of the four statutory factors procedures, and other technical in apparatus functions accessible to and equally, and that achievability should requirements for meeting’’ the usable by individuals who are blind or be evaluated on a case-by-case basis. accessibility requirements of this visually impaired only ‘‘if achievable (as Commenters agree with this approach. section. Section 303(bb)(1) of the Act defined in section 716).’’ Similarly, In evaluating evidence offered to prove includes a similar restriction. In the Section 303(bb)(1) requires on-screen that compliance is not achievable, we NPRM, we inquired whether we can text menus and guides for the display or will be informed by the analysis in the adopt specific metrics to evaluate selection of multichannel video ACS Order, in which the Commission accessibility and compliance with programming on navigation devices provided a detailed explanation of each Sections 204 and 205, given this covered by Section 205 to be audibly of the four statutory factors.89 We limitation. We also asked whether there accessible by individuals who are blind are performance objectives or functional or visually impaired only ‘‘if achievable 89 Panasonic urges the Commission to ‘‘recognize criteria that covered entities can look to (as defined in section 716).’’ Section 716 that products are positioned at differing features and price points which may influence the voluntarily as an aid in meeting their of the Act defines ‘‘achievable’’ as ‘‘with achievability of accessibility features.’’ We note Section 204 and 205 accessibility reasonable effort or expense, as that, pursuant to the fourth statutory factor, the obligations. CTIA cautions that ‘‘[w]hile determined by the Commission,’’ and it Commission must consider ‘‘the extent to which the guidance from the Commission on what directs the Commission to consider the service provider or manufacturer in question offers accessible services or equipment containing varying it means to be ‘accessible’ may be following factors in determining degrees of functionality and features, and offered at appropriate and helpful, the rules whether the requirements of a provision differing price points’’ and weigh this consideration should not contain any particular are achievable: ‘‘(1) The nature and cost equally with the other three factors. 47 U.S.C. standards, objectives, or other metrics,’’ of the steps needed to meet the 617(g). In interpreting this factor, the Commission has found that ‘‘[a] covered entit[y] generally need because ‘‘[s]uch ‘voluntary’ standards or requirements of this section with not consider what is achievable with respect to performance objectives will inevitably respect to the specific equipment or every product, if the entity offers consumers with become the standards against which service in question. (2) The technical the full range of disabilities meaningful choices covered entities’ accessibility and economic impact on the operation through a range of accessible products with varying degrees of functionality and features, at differing approaches are judged, and so will serve of the manufacturer or provider and on price points.’’ Montgomery County asserts that all as de facto requirements in the operation of the specific equipment classes of devices should have accessibility features contravention of Congress’ intent.’’ or service in question, including on the and that ‘‘[t]here is no basis for requiring only a Because we are providing guidance on development and deployment of new subset of available devices [to] have the accessibility features.’’ To the extent Montgomery what it means to be ‘‘accessible’’ by communications technologies. (3) The County is arguing that all models of navigation applying the definition in § 6.3(a) of the type of operations of the manufacturer devices must be made accessible, we believe that Commission’s rules and because we do or provider. (4) The extent to which the requiring a covered entity to make all models of not wish to impede innovation in the service provider or manufacturer in navigation devices accessible would be at odds with Congress’s intent in adopting the fourth factor of the design of accessible apparatus by question offers accessible services or achievability test, provided that the covered entity prematurely adopting performance equipment containing varying degrees offers a full range of functionality within a line of objectives, we decline to adopt any of functionality and features, and Continued

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remind parties that the achievability a single step mandate.90 Commenters key, or icon; voice commands; gestures; limitation is applicable to Sections also emphasize that Section 204 permits and a single step activation from the 303(aa)(1) and 303(bb)(1) of the Act. ‘‘alternate means of compliance,’’ while same location as the volume controls. In Section 205 gives entities that provide contrast, for example, we find that B. Activating Accessibility Features navigation devices subject to that having to turn off the device in order to Through a Mechanism Reasonably section ‘‘maximum flexibility in the access the closed captioning activation Comparable to a Button, Key, or Icon selection of means for compliance with mechanism through another menu is not 1. Reasonably Comparable Requirement [S]ection 303(bb)(2) of the [Act],’’ and a mechanism that is reasonably that requiring a single step contravenes comparable to a button, key, or icon. 78. We codify in our rules the the flexibility that Congress intended for 81. Consistent with the statute’s language in Sections 303(aa)(3) and covered entities. Given the concerns ‘‘reasonably comparable’’ and 303(bb)(2) of the Act, which provides raised in the record about its potential ‘‘maximum flexibility’’ provisions, we that certain accessibility features must to inhibit simplified and innovative do not require covered entities to use a be accessible through a mechanism solutions, we decline to adopt a single specific mechanism to satisfy the reasonably comparable to a button, key, step requirement. We are mindful of the requirements of Sections 303(aa)(3) and or icon. Specifically, Section 303(aa)(3) need to ensure that covered entities can 303(bb)(2) of the Act. For example, if requires digital apparatus covered by continue to develop innovative Congress had intended for the only Section 204 of the CVAA to provide compliance solutions, without being permissible activation mechanism to be ‘‘built in access to [ ] closed captioning precluded from using a particular a button, or a key, or an icon, as some and video description features through technology to achieve an activation advocate,93 we expect that Congress a mechanism that is reasonably mechanism that is ‘‘reasonably would have expressly stated this. comparable to a button, key, or icon comparable to a button, key, or icon.’’ Instead, Congress required a mechanism designated for activating the closed 80. Although we codify the statutory ‘‘reasonably comparable to a button, captioning or accessibility features.’’ 47 language that requires a mechanism key, or icon’’ 94 and, with respect to U.S.C. 303(aa)(3). Similarly, Section reasonably comparable to a button, key, Section 205, gave providers and 303(bb)(2) requires ‘‘navigation devices or icon to activate certain accessibility manufacturers of navigation devices with built-in closed captioning features and reject a single step ‘‘maximum flexibility in the selection of capability’’ covered by Section 205 of requirement, we believe it is useful to means for compliance.’’ For the same the CVAA to provide ‘‘access to that provide guidance to covered entities as reason, we disagree with NAD/ capability through a mechanism [that] is to what ‘‘reasonably comparable to a Consumer Groups that we should reasonably comparable to a button, key, button, key, or icon’’ means.91 In ‘‘require the closed captioning control to or icon designated for activating the determining whether an activation be activated in a single action from all closed captioning, or accessibility mechanism is reasonably comparable to of the same locations from which the features.’’ Id. 303(bb)(2). In the a button, key, or icon, the Commission discussion that follows, we provide will consider the simplicity and ease of able to activate or deactiv[ate] closed captions.’’ guidance to covered entities with regard use of the mechanism. We believe this While we recognize that the process of to which activation mechanisms are programming buttons on a remote control may not approach is consistent with Congress’s be simple and straightforward, particularly for an ‘‘reasonably comparable to a button, intent ‘‘to ensure ready access to these individual with disabilities, we believe that once a key, or icon.’’ In determining whether features by persons with disabilities,’’ button is programmed for closed captioning or an activation mechanism is reasonably while still giving covered entities the video description activation, it offers a mechanism comparable to a button, key, or icon, we that has the equivalent simplicity and ease of use flexibility contemplated by the statute. as a dedicated physical button. Thus, we find that will consider the simplicity and ease of To provide some clarity to covered a button on a remote control that can be use of the mechanism. entities, we provide some examples of programmed as a dedicated activation mechanism 79. Based on the record, we decline to mechanisms that we consider to be and for closed captioning or video description satisfies adopt our proposal to require that the ‘‘reasonably comparable to a button, key, or consider not to be reasonably icon’’ requirement if the covered entities who closed captioning or video description comparable to a button, key, or icon. For choose to rely on this mechanism to satisfy their features be activated in a single step. In example, we believe that compliant statutory obligation either ensure that the remote the NPRM, we explained that such a mechanisms include, but are not limited can be programmed in a simple, straightforward 92 manner by an individual with disabilities, or requirement would allow users to to, the following: a dedicated button, provide customer support at the consumer’s home activate the closed captioning or video to assist with programming the remote. description immediately in a single step 90 CEA also explains that imposing a single step 93 Although Sections 204 and 205 do not require just as a button, key, or icon can be requirement would pose a unique hardship for dedicated physical buttons, keys, or icons, these are pressed or clicked in a single step. touchscreen devices, which typically have a small examples of mechanisms that would satisfy number of buttons. Sections 204 and 205. Commenters generally oppose a single 91 We note that the VPAAC did not reach 94 CEA, DISH/EchoStar, DIRECTV, and Rovi step requirement. NAD/Consumer consensus on what the phrase ‘‘reasonably suggest that ‘‘[w]hen dedicated physical buttons are Groups believe that the single step comparable to a button, key, or icon’’ means, and used to control volume and/or channel selection, proposal is too vague because it does the discussion of this issue in the VPAAC Second the controls for access to closed captions . . . must Report: User Interfaces reflects the disparate views also be reasonably comparable to physical buttons, not specify from where the single step of industry and consumer groups as to the meaning comparable in accessibility to those provided for is permitted. Other commenters argue of this phrase that are evident in the record of this control of volume or channel selection.’’ We do not that a single step requirement would proceeding. think that requiring a mechanism to be ‘‘reasonably hinder innovation, observing that there 92 In the NPRM, we asked how the ‘‘reasonably comparable to physical buttons’’ if physical buttons comparable’’ requirement should apply with are used for volume and channel selection differs are other useful activation mechanisms respect to programmable universal remotes that can in a meaningful way from the general requirement (e.g., voice or gesture control) that may be programmed with different features. NAD/ that activation mechanisms must be ‘‘reasonably be reasonably comparable to a button, Consumer Groups argue that use of programmable comparable to a button, key, or icon;’’ in both key, or icon and relatively simple for buttons that can be programmed for activation of instances, a physical button is not required. And, closed captioning is ‘‘completely at odds with the if an activation mechanism for closed captioning or consumers to use, but would not satisfy plain language of Sections 204 and 205 of the video description is ‘‘comparable in accessibility’’ CVAA, which do not permit an apparatus to be to the volume and channel selection controls, that products as well as a full range of prices within the delivered to the user without a fully realized may be an indication that it is simple and easy to product line, if achievable. mechanism comparable to a button, key, or icon use, but is not necessarily determinative.

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volume can be adjusted in a single 2. Accessibility Features Covered by closed captioning . . . may be action, or if the apparatus lacks a Sections 204 and 205 reasonably comparable to satisfy the volume control, from all of the same 83. Section 204 Requirements. Section requirements of the statute,’’ and that it locations where the apparatus’s other 303(aa)(3) of the Act requires covered does not encompass video description. primary controls, such as play/pause or digital apparatus to provide ‘‘built in Based on the record, at this time, we do fast-forward and rewind buttons, are access to [ ] closed captioning and video not require Section 205 navigation located.’’ 95 The statute does not require description features through a devices to provide an activation that the mechanism be activated from mechanism that is reasonably mechanism that is reasonably the same location as the volume comparable to a button, key, or icon comparable to a button, key, or icon for controls or other primary controls, and, designated for activating the closed video description because we believe with respect to Section 205, such a captioning or accessibility features.’’ We we are constrained by Congress’s requirement would be inconsistent with conclude that the statutory language is omission of video description in Section the ‘‘maximum flexibility’’ granted to clear that closed captioning and video 205, but we inquire in the FNPRM covered entities in determining the description on apparatus covered by whether the secondary audio stream for means of compliance.96 Section 204 must have an activation audible emergency information (which is also used for video description) must 82. We also reject the notion put forth mechanism that is reasonably comparable to a button, key, or icon. No be activated through a mechanism by CEA that ‘‘reasonably comparably to reasonably comparable to a button, key, a button, key, or icon’’ means that a commenter disagrees. 84. Section 205 Requirements. Section or icon pursuant to Section 203 of the person with disabilities can access the 97 303(bb)(2) of the Act requires CVAA. However, we strongly covered accessibility features in the ‘‘navigation devices with built-in closed encourage manufacturers and providers same or a similar number of steps as a captioning capability’’ to provide of navigation devices to provide a person without disabilities. Such an ‘‘access to that capability through a simple and easy means to access video interpretation would lead to results that mechanism [that] is reasonably description for consumers who are blind are wholly inconsistent with the intent comparable to a button, key, or icon or visually impaired. 85. Other Accessibility Features. At of the statute to ensure that persons designated for activating the closed this time, the record does not support with disabilities have not only access captioning, or accessibility features.’’ requiring accessibility features other but ‘‘ready’’ access to the features that We conclude that Section 303(bb)(2) than closed captioning (for Section 204 make video programming accessible to clearly applies to activation of closed and Section 205 devices) and video them. For example, under this captioning on navigation devices description (for Section 204 devices) to approach, a mechanism that requires a covered by Section 205. No commenter be activated by a mechanism reasonably person with disabilities to take ten steps disagrees. With regard to video comparable to a button, key, or icon. In to activate closed captioning would be description, in the NPRM, we noted that the NPRM, we sought comment on permissible, as long as it also takes a Section 205 includes a similar whether there are additional person without disabilities ten steps to requirement for a mechanism ‘‘accessibility features’’ that Sections activate closed captioning. Such an reasonably comparable to a button, key, 204 and 205 require to be activated via approach is clearly inconsistent with or icon as in Section 204, but that the a mechanism similar to a button, key, or Congress’s intent in enacting Sections provision in Section 205 explicitly icon. For example, we asked whether 204 and 205. For similar reasons, we references only closed captioning ‘‘accessibility features’’ includes find unpersuasive DISH/EchoStar’s capability; video description is not activation of the audible output of on- assertion that ‘‘the Commission should expressly mentioned. ACB, Montgomery screen text menus or guides and related interpret ‘reasonably comparable’ to County, and Rovi Corporation (‘‘Rovi’’) settings (e.g., volume, speed, and mean the same number of steps required believe that we should require a verbosity), and whether it includes to access other core features of a device mechanism reasonably comparable to a closed captioning settings (e.g., font, (e.g., for set-top boxes, the display and button, key, or icon to activate video color, and size of captions), and whether selection of programming).’’ By DISH/ description in navigation devices such settings should be required to be EchoStar’s own admission, ‘‘[t]he core covered by Section 205. In particular, in the first level of a menu. Montgomery features and number of steps may vary’’ Montgomery County argues that County, NAD/Consumer Groups, and even ‘‘among devices designed by a requiring a mechanism reasonably Dorothy L. Walt support a broad single manufacturer,’’ and DISH/ comparable to a button, key, or icon to interpretation of the term ‘‘accessibility EchoStar’s explanation of what activate video description is a features’’ to include other accessibility constitutes a ‘‘core feature’’ is vague; ‘‘reasonable interpretation[ ], consistent settings. CEA and other industry thus, such a standard would not ensure with the goals of the CVAA,’’ and Rovi commenters argue that the phrase that individuals with disabilities have asserts that ‘‘the Commission should ‘‘accessibility features’’ ‘‘is not an ‘‘ready’’ access to closed captioning and reasonably interpret ‘or accessibility invitation to impose new, and hitherto video description features, as Congress features’ in Section 205 as including unspecified, regulatory requirements on intended. video description.’’ Other commenters additional accessibility features besides disagree, arguing that the literal closed captioning and video description 95 language of the statute makes clear that Although Sections 204 and 205 do not require (in Section 204) and closed captioning an activation in a single action from the same Congress did not intend for Section 205 (in Section 205).’’ Because the record location as the volume controls, we believe this is to apply to any features other than an example of a mechanism that would satisfy closed captioning. CEA and other Sections 204 and 205. 97 Section 203 of the CVAA requires that 96 We note NCAM’s caution that ‘‘quite often commenters further argue that the apparatus designed to receive or play back video hearing and sighted users are just as frustrated by phrase ‘‘accessibility features’’ ‘‘merely programming transmitted simultaneously with poor user interface design, so reliance on an describes an activation mechanism— sound ‘‘have the capability to . . . make available ‘equivalence’ requirement could result in i.e., a mechanism for activating multiple emergency information (as that term is defined in captioning and video description controls that are section 79.2 of the Commission’s regulations [ ]) in just as frustrating, just equally so with every other accessibility features—to which the a manner that is accessible to individuals who are user.’’ mandated user control mechanism for blind or visually impaired.’’ 47 U.S.C. 303(u)(1)(C).

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does not fully address how accessibility uses to provide navigation devices to least through those means it has features that involve the selection of other consumers (i.e., via retail outlets established for accepting requests for settings on a menu (as opposed to or by providing such devices directly to navigation devices from other simply activating and deactivating the requesting consumers). We also consumers. In addition, the means for feature) can be ‘‘activated’’ through a conclude that, as part of its Section accepting requests for devices compliant mechanism reasonably comparable to a 303(bb)(1) obligation, a manufacturer with Section 303(bb)(1) must not be button, key, or icon, we do not adopt that relies on retailers to fulfill requests more burdensome to blind or visually requirements for additional accessibility from blind or visually impaired impaired subscribers than the means features at this time. However, we consumers must make a good faith effort that the MVPD makes available to other inquire in the FNPRM whether we to have such retailers make available consumers. For example, if an MVPD should impose such requirements and, compliant navigation devices to the accepts requests for non-compliant if so, how such requirements could be same extent they make available navigation devices through a telephone implemented. In addition, we strongly navigation devices to other consumers number, the MVPD’s customer service encourage covered entities, when generally. We also conclude that the representatives must be prepared to designing their devices, to provide a obligation in Section 303(bb)(1) of the handle requests for accessible devices in simple and easy means to access Act to provide compliant navigation the same manner. In this regard, we note accessibility settings for persons with devices ‘‘upon request’’ requires that an MVPD would not satisfy its disabilities. covered entities to provide such obligation to provide Section 303(bb)(1)- accessibility within a reasonable time compliant navigation devices ‘‘upon V. Obligation of Covered Entities To and in a manner that is not more request’’ by, for example, requiring a Provide Accessibility Under Section burdensome to requesting blind or blind or visually impaired consumer to 205 visually impaired individuals than is make requests for accessible devices in A. Obligation To Provide Accessibility required for other consumers generally person if it accepted requests for other Upon Request Under Section 303(bb)(1) to obtain navigation devices.99 navigation devices by phone. Likewise, 86. In this section, we discuss the 87. MVPDs. Section 205 of the CVAA if an MVPD establishes a Web site respective obligations of MVPDs and directs the Commission to require, through which blind or visually manufacturers of navigation devices among other things, that on-screen text impaired subscribers can request pursuant to Section 205(a) of the CVAA, menus and guides be made accessible in accessible devices, such Web site must which adds Section 303(bb)(1) to the real time ‘‘upon request’’ and states that be screen readable or otherwise allow Act, to provide navigation devices with ‘‘[a]n entity shall only be responsible for the subscriber to request the device as audibly accessible on-screen text menus compliance with the requirements seamlessly as could other consumers and guides ‘‘upon request’’ to added by this section with respect to requesting navigation devices. individuals who are blind or visually navigation devices that it provides to a 88. In the NPRM, the Commission impaired.98 In the NPRM, the requesting blind or visually impaired interpreted Section 205 to require Commission sought comment on how individual.’’ Section 205 does not define covered entities ‘‘to provide accessible Section 205 should be implemented if it the phrase ‘‘upon request’’ or otherwise navigation devices to requesting indicate what Congress envisioned in subscribers ‘within a reasonable time.’ ’’ were to conclude that retail navigation 100 devices come within the scope of that imposing this obligation. When the We affirm the Commission’s provision. The Commission also covered entity is an MVPD that leases or interpretation and conclude that the inquired how it should implement sells navigation devices to subscribers, ‘‘upon request’’ obligation contained in Section 205 requirements if it were to we conclude that such MVPD must Section 303(bb)(1) of the Act requires conclude that Section 205 applied to permit blind or visually impaired covered entities to provide compliant entities other than MVPDs. As discussed subscribers to request compliant devices navigation devices within a reasonable below, we conclude that when the through any means that it generally time. Although Section 303(bb)(1) covered entity is an MVPD that leases or makes available to other subscribers contains no express requirement that sells navigation devices to subscribers, requesting navigation devices in order accessibility be provided ‘‘within a the obligation to provide compliant to satisfy its statutory obligation to reasonable time,’’ we believe that navigation devices ‘‘upon request’’ provide such devices ‘‘upon request.’’ requiring covered entities to provide requires that such MVPD permit blind For example, if an MVPD generally compliant navigation devices in a or visually impaired subscribers to allows subscribers to order equipment timely fashion is implicit in the phrase request compliant devices through any by means of a phone call, email, in- ‘‘upon request,’’ and is necessary to means made available generally to other person request or via the MVPD Web implement the requirements of Section subscribers requesting navigation site, it must allow blind or visually 205. Public Law 111–260, 205(b)(1). We devices. Similarly, when the covered impaired subscribers to request also find that requiring the timely entity is a manufacturer of navigation accessible devices by those means as provision of accessible devices is devices, we conclude that such well. We emphasize, however, that consistent with the overriding objectives manufacturer can comply with its although we agree with parties that of the CVAA and advances the public Section 303(bb)(1) obligation to provide covered entities should have discretion interest because delay in providing such compliant navigation devices ‘‘upon to select the means or processes by devices would undermine the goal of request’’ by offering such devices which consumers can make requests, an the CVAA ‘‘to increase the access of through the same means that it generally MVPD must permit blind or visually persons with disabilities to modern impaired subscribers to make requests at communications.’’ Several parties 101 98 47 U.S.C. 303(bb)(1). See also Public Law 111– support this interpretation, and no 260, 205(b)(3) (‘‘to a requesting blind or visually 99 However, under certain limited circumstances, impaired individual’’), 205(b)(4)(A) and (B) (‘‘to the an MVPD may require verification that the 101 We decline to require that compliant devices requesting blind or visually impaired individual’’). consumer is blind or visually impaired. be provided within a specified time period, as As discussed above, we have determined that the 100 In the NPRM, the Commission sought advocated by Montgomery County, but will revisit entities principally responsible for compliance with comment on ‘‘whether a ‘request’ could take any this decision if we find that covered entities are Section 205 are MVPDs that lease or sell navigation form (e.g., a phone call, an email, or a request made failing to provide such devices in a timely fashion. devices and manufacturers of navigation devices. in-person).’’ Because the benchmark for compliance with the

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party has asserted that navigation accessible devices (e.g., at retail stores, make a good faith effort for accessible devices compliant with Section the Internet) in the same way that it devices to be available at retail to blind 303(bb)(1) should not be provided generally makes available other or visually impaired consumers to the within a reasonable time. navigation devices. Similarly, where a same extent that navigation devices are 89. To comply with its obligation to manufacturer has established means for made available to other consumers provide Section 303(bb)(1)-compliant accepting and fulfilling consumer generally. In cases where a devices ‘‘within a reasonable time,’’ we requests for navigation devices directly manufacturer satisfies its ‘‘upon conclude that an MVPD must provide (e.g., through a telephone number or request’’ obligation by providing such devices to requesting blind or email address), we require that it make accessible devices directly to blind or visually impaired consumers within a available those means to blind or visually impaired consumers, the means time period comparable to the time that visually impaired consumers who may made available for accepting such the MVPD’s other subscribers generally wish to request navigation devices requests (e.g., a telephone number, receive navigation devices from the compliant with Section 303(bb)(1). As email address, and/or Web site, whether MVPD. Absent such a requirement, an we concluded with respect to MVPDs or not dedicated for this purpose) may MVPD might choose not to order above, any means that a manufacturer be no more burdensome to a requesting compliant devices in advance of a employs to accept requests for blind or visually impaired consumer request, but rather to leave the accessible devices must not be more than is obtaining navigation devices requesting individual waiting while the burdensome to blind or visually generally for other consumers. Based on MVPD seeks a compliant solution, a impaired individuals than the means the record, we believe that result that would be contrary to what made available to other consumers for implementing Section 303(bb)(1) in the Congress intended by requiring that requesting navigation devices generally. manner set forth above will address the compliant devices be provided ‘‘upon 91. The phrase ‘‘upon request’’ in needs and expectations of consumers request.’’ The Commission may consider Section 303(bb)(1) does not lend itself to who are blind or visually impaired a variety of factors in assessing whether ready application to manufacturers while permitting manufacturers to an MVPD has provided an accessible because, in contrast to MVPDs, which discharge their Section 303(bb)(1) duties navigation device within a time period lease equipment directly to their in a way that is consistent with their equivalent to the period in which it subscribers, manufacturers often sell existing processes. Finally, we conclude typically provides navigation devices to their products through retail outlets. For that manufacturers must provide subscribers who are not blind or this reason, we interpret the phrase Section 303(bb)(1)-compliant devices to visually impaired. As DISH/EchoStar ‘‘upon request’’ with respect to requesting blind or visually impaired notes, for example, factors that the situations involving manufacturers in a consumers ‘‘within a reasonable time.’’ Commission might consider include the manner consistent with the statutory Manufacturers can satisfy this amount of time necessary to schedule a scheme and Congress’s intent in the requirement by providing such devices truck roll, identify and deploy a CVAA to ‘‘help ensure that individuals in a time period comparable to the time specialist, or take any other action that with disabilities are able to fully utilize in which they provide navigation is part of the process for providing any communications services and devices to other consumers (whether device to any customer. equipment and better access video through retail outlets or directly to 90. Manufacturers. When the covered programming,’’ while at the same time consumers). entity is a manufacturer of navigation recognizing the way in which the retail devices, we conclude that, in order to supply chain works. Consumers have B. Obligation of Covered Entities satisfy its obligation to provide Section made clear in the record that they prefer Complying With Section 303(bb)(1) 303(bb)(1)-compliant navigation devices to be able to obtain accessible devices Through the Use of Separate Equipment ‘‘upon request,’’ the manufacturer must ‘‘off the shelf’’ at retail stores. We or Software make available such devices to blind or conclude, therefore, that a 93. In this section, we find that under visually impaired individuals through manufacturer’s Section 303(bb)(1) Section 205(b)(4) of the CVAA, a the same means that it generally obligations require that it make a good covered entity that chooses to comply provides navigation devices to other faith effort to have retailers make with the requirements of Section consumers (i.e., via retailers or by available compliant devices to the same 303(bb)(1) of the Act through the use of providing such devices directly to extent as navigation devices made a separate solution must provide such requesting consumers).102 For example, available to other consumers generally. solution to the requesting blind or in cases where a manufacturer makes Because we do not wish to implement visually impaired individual; ensure available navigation devices at retail, it Section 303(bb)(1) in a way that that any separate solution relied upon can comply with its obligation to intrudes unduly on manufacturers’ provides accessibility in accordance provide Section 303(bb)(1)-compliant business practices and find no basis in with Section 303(bb)(1) and its devices ‘‘upon request’’ by offering the record for doing so, we decline at implementing rules; and provide such this time to prescribe detailed rules solution within a reasonable time and at ‘‘reasonable time’’ requirement is the amount of governing manufacturers’ agreements no additional charge. We also adopt our time in which an MVPD typically provides with retailers. Should we find after the tentative conclusion in the NPRM and navigation devices to consumers who are not blind or visually impaired, the issue of whether an MVPD compliance date for these rules that find that if a navigation device has any has met this requirement will necessarily be MVPD- navigation device manufacturers’ good functions that are required to be made specific. faith obligations or efforts are not accessible pursuant to the rules we 102 We encourage manufacturers that make their resulting in compliant devices being adopt in the R&O, any separate solution accessible navigation devices available through relied upon to achieve accessibility retail stores to meet their Section 303(bb)(1) available through retailers, however, we obligations, to also employ mechanisms that will revisit this decision in the future. must make all of those functions facilitate the provision of accessible devices to 92. We also emphasize that the accessible or enable the accessibility of blind or visually impaired consumers, such as obligation to provide compliant devices those functions. In addition, any establishing a telephone number and/or an ‘‘upon request’’ rests with the separate solution relied upon to achieve accessible Internet presence through which a consumer can find accessible devices at retail stores manufacturer, not the retailer. Thus, it accessibility must be provided in a near them. is incumbent on the manufacturer to manner that is not more burdensome to

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requesting blind or visually impaired devices to requesting consumers. This that this requirement will inhibit individuals than the manner in which a interpretation finds considerable innovation or hamper the provision of covered entity generally provides support in the record, and no party has interim solutions as suggested by two navigation devices to other consumers. asserted that a covered entity relying on commenters. Moreover, a separate 94. Section 205(b)(4)(A) permits a a separate solution to achieve solution that does not make the covered covered entity to comply with Section accessibility is not responsible for functionality accessible (or enable the 303(bb)(1) of the Act through the use of providing such solution to a requesting accessibility of the functions) would not software, a peripheral device, blind or visually impaired consumer. comply with Section 205(b)(4)’s specialized consumer premises Pursuant to our authority in Section requirement that ‘‘the entity providing equipment, a network-based service or 205(b)(1) to prescribe regulations the navigation device to the requesting other solution. Public Law 111–260, necessary to implement the blind or visually impaired individual 205(b)(4)(A). Section 205(b)(4)(B) requirements in Section 205(a), we . . . ensure that [a separate solution] further provides that: further conclude that any separate provides the access required by [the If an entity complies with [S]ection solution relied upon to achieve Commission’s] regulations 303(bb)(1) of the . . . Act . . . [through the accessibility must be provided in a [implementing Section 205(a) of the use of separate equipment or software], the manner that is not more burdensome to CVAA].’’ entity providing the navigation device to the requesting blind or visually impaired requesting blind or visually impaired individuals than the manner in which 2. Provision of Separate Equipment or individual shall provide any such software, other consumers obtain navigation Software ‘‘Within a Reasonable Time’’ peripheral device, equipment, service, or devices.103 For example, a covered 97. Rather than specify a time frame solution at no additional charge and within entity could not subject requesting blind in which a covered entity providing a a reasonable time to such individual and or visually impaired consumers to shall ensure that such software, device, separate accessibility solution under equipment, service or solution provides the installation processes that were more Section 205(b)(4) must make that access required by such regulations. cumbersome than those imposed on separate solution available, we require it other consumers for navigation devices, to do so within a time that is The Commission’s rules implementing or require blind or visually impaired comparable to the time it provides Section 303(bb)(1) of the Act must consumers to install a separate solution navigation devices to consumers who provide such entity ‘‘maximum without technical or logistical support, are not blind or visually impaired. flexibility to select the manner of if it provided such support to other Section 205(b)(4)(B) of the CVAA compliance.’’ Thus, although a covered consumers.104 expressly requires that an entity that entity may choose to comply with its 96. We also find, consistent with our complies with Section 303(bb)(1) of the Section 303(bb)(1) obligations by tentative conclusion in the NPRM, that Act through the use of separate building in accessibility to its if a non-compliant navigation device equipment or software must provide navigation devices, the statute does not has any functions that are required to be such equipment or software ‘‘within a mandate that it do so. made accessible pursuant to the rules reasonable time.’’ 105 We interpret this 1. Provision of Separate Equipment or we adopt in the R&O, any separate provision in the same manner that we Software That Ensures Accessibility solution relied upon to achieve implement the Section 303(bb)(1) accessibility must make all of those 95. Based on the language of Section obligation of covered entities to provide functions accessible or enable the compliant navigation devices ‘‘upon 205(b)(4), we adopt the Commission’s accessibility of those functions. tentative conclusion and require that an request.’’ In particular, we conclude that Consistent with the text of Section a ‘‘reasonable time’’ is comparable to the MVPD or navigation device 205(b)(4)(B), we conclude that manufacturer that complies with its time that a covered entity provides regardless of whether an entity chooses navigation devices generally to Section 303(bb)(1) obligations through to satisfy its accessibility obligations the use of separate equipment or consumers who are not blind or visually through a built-in solution or separate impaired. software is responsible for providing equipment or software, any solution such equipment or software to the chosen must ensure accessibility as 3. Provision of Separate Equipment or requesting individual who is blind or required by Section 303(bb)(1) of the Software ‘‘At No Additional Charge’’ visually-impaired. Specifically, Section Act and our implementing rules, if 98. We find that the phrase ‘‘no 205(b)(4)(B) states that ‘‘the entity achievable. To achieve Congress’s providing the navigation device . . . additional charge’’ means that a covered intended goals in Section 205, it is entity that provides separate equipment shall provide any such software, irrelevant whether an entity provides peripheral device, equipment, service or or software under Section 205(b)(4)(B) accessibility through the use of a built- may not impose on a requesting blind or solution’’ to the requesting blind or in or separate solution; any solution visually impaired individual. In visually impaired individual any chosen must ensure that all of the charges beyond those it has imposed for addition, Section 205(b)(4)(B) states that functions required to be made accessible ‘‘the entity providing the navigation a non-compliant navigation device. are, in fact, accessible. There is no Section 205(b)(4)(B) of the CVAA device . . . shall ensure that such support in the record for the suggestion software, device, equipment, service or provides that an entity complying with Section 303(bb)(1) of the Act through solution provides the access required by 103 A manufacturer could meet its obligation by such regulations.’’ We interpret this ensuring that a separate solution was made the use of separate equipment or language to mean that the obligation to available to requesting blind or visually impaired software must provide such equipment consumers at the point of sale. or software ‘‘at no additional charge.’’ provide an effective accessibility 104 However, when a covered entity relies on solution under Section 205(b)(4) rests Public Law 111–260, 205(b)(4)(B). In the separate software to achieve accessibility, the NPRM, the Commission tentatively with the entity that provides the obligation to provide the separate solution under navigation device to the requesting Section 205(b)(4) requires the covered entity to assist blind or visually impaired consumers in 105 The Commission sought comment in the blind or visually impaired consumer, downloading the software or to ensure that NPRM on what constitutes a ‘‘reasonable time’’ in even in cases where such entity relies instructions for downloading software themselves which to give a requesting subscriber an accessible on a retailer to provide accessible are accessible. separate solution.

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concluded that this requirement was visually impaired individual.’’ We sophisticated device, the manufacturer self-implementing, and sought comment interpret these provisions, taken cannot charge a requesting blind or on that tentative conclusion. together, to mean that a covered entity visually impaired individual more than 99. DISH/EchoStar suggests that the may choose to satisfy its accessibility $200 for that device.109 In either case, Commission has discretion to interpret obligations by making all of its this outcome is reasonable because the the phrase ‘‘no additional charge’’ to navigation devices, subject to the covered entity has chosen to comply permit a covered entity ‘‘to pass through achievability defense, accessible and with its obligations by providing any wholesale costs associated with available to requesting blind or visually accessibility through only one procuring such equipment.’’ We 107 impaired individuals, or instead may expensive, feature-rich device when it disagree with DISH/EchoStar and choose to provide these individuals could have avoided providing a higher- conclude that a covered entity may not with ‘‘software, a peripheral device, end box at no additional charge by impose on a requesting blind or visually specialized consumer premises impaired consumer the wholesale cost offering a range of accessible devices at equipment, a network-based service or 110 of providing separate equipment or other solution’’ at no additional charge. differing price points. software that is relied upon to achieve One permissible ‘‘other solution’’ 102. We agree with parties asserting accessibility.106 We note that the available to covered entities would be to that, if a covered entity’s compliance language in Section 205(b)(4)(B) is make accessible only high-end solution depends upon software that different from analogous provisions in navigation devices (e.g., those with can only be operated by means of a Section 716 of the Act, which state that sophisticated features), but to make third-party device such as a laptop, entities covered by Section 716 may these devices available to requesting tablet, or smart phone, the covered satisfy their accessibility obligations individuals who are blind or visually entity cannot rely on the consumer to through the use of ‘‘third party impaired without requiring them to pay own or acquire such a device or the applications, peripheral devices, an additional charge simply to obtain services needed to download or use the software, hardware or customer the accessibility features. This is additional software (such as Internet premises equipment that is available to consistent with Section 205(b)(4)(B), access service). Although Section the consumer at nominal cost and that which precludes the entity from 205(b)(4)(A) affords covered entities individuals with disabilities can imposing any additional charges for an access.’’ Given the differing language of ‘‘other solution’’ on an individual ‘‘maximum flexibility’’ to select the Section 205(b)(4)(B) of the CVAA and requesting accessibility under Section manner of compliance with regard to Sections 716(a)(1)(B) and 716(b)(2)(B) of 205. That is, if the only accessible separate solutions, Section 205(b)(4)(B) the Act, we conclude that, although in devices a covered entity makes available also requires that such entities provide other CVAA contexts it intended to are among the more expensive devices that manner of compliance ‘‘at no allow entities to recover ‘‘nominal being offered by that entity because of additional charge.’’ Accordingly, if a costs,’’ Congress expressly declared that their sophisticated features, and a blind covered entity’s chosen manner of entities opting to comply with Section consumer requests an accessible lower- compliance involves a software solution 303(bb)(1) of the Act by means of end device, then the entity must provide that must be operated on a third-party separate equipment or software must the accessible device at the lower device (e.g., a laptop, tablet, smart provide such equipment or software to price.108 phone) or if additional services are requesting blind or visually impaired 101. For example, suppose an MVPD required to make use of the device, we individuals ‘‘at no additional charge.’’ offers two models of set-top boxes for find that this manner of compliance Accordingly, we implement Section lease at $5 and $10 a month, but constitutes an ‘‘other solution’’ under 205(b)(4)(B) to give effect to that express chooses to make only the $10 box Section 205(b)(4)(B); thus, the covered declaration. We note that our accessible as it is permitted to do under entity must provide that solution—i.e., interpretation of Section 205(b)(4)(B) the analysis set out above. If a blind or both the software and the third-party would not prevent a covered entity from visually impaired subscriber requests an device, as well as the service to use the recovering the costs of providing accessible version of the lower end box, accessible navigation features—to the separate solutions by passing such costs the MVPD would have to lease that through to its entire subscriber base. subscriber the $10 box at no more than requesting individual at no additional 100. Section 205(b)(4)(A) permits the $5 rate. Similarly, if a retail charge. covered entities ‘‘maximum flexibility’’ navigation device manufacturer makes to select the manner in which they navigation devices that cost $200 and 109 Although some MVPDs could take the intend to comply with their obligation $300, and elects not to make the $200 approach of providing subscribers more expensive to make on-screen text menus and set-top boxes at no additional charge, no retail device accessible but rather to designate manufacturers have suggested on the record that guides audibly accessible. In addition, the more sophisticated $300 device as they intend to take this approach to complying with under Section 205(b)(3), a covered the accessibility solution for that less the statute. Given that retail device manufacturers entity is only responsible for often sell to consumers through intermediary retail compliance with this requirement with 107 Given the fact that under Section 205 covered partners, we recognize that if they opt for this respect to navigation devices ‘‘that it entities need only provide navigation devices with compliance solution they may face challenges in provides to a requesting blind or audibly accessible on-screen text menus and guides ensuring that requesting blind or visually impaired to requesting blind or visually impaired consumers receive a compliant solution at no individuals, they will be free to provide non- additional charge. We expect manufacturers opting 106 Further, to the extent that the sole solution a compliant devices to other customers. This for this approach to devise a mechanism for such covered entity chooses to make available for a given provision does not relieve them, however, of the consumers to request and receive such solutions at obligation to make accessible devices with ‘‘varying non-compliant device provides accessibility beyond no additional charge. the requirements of Section 303(bb)(1) of the Act, degrees of functionality and features, and offered at 110 the covered entity may not impose any additional differing price points’’ available to requesting blind In cases in which a consumer files a complaint charge for that enhanced accessibility. If, however, or visually impaired individuals, unless, as with the Commission alleging that a covered entity a covered entity makes more than one separate discussed below, they opt for a separate solution has violated the ‘‘no additional charge’’ requirement solution available to consumers, we agree with under Section 205(b)(4). in Section 205(b)(4)(B), such entity will bear the DISH/EchoStar that the entity may impose 108 As discussed below, covered entities choosing burden of demonstrating that it has imposed no reasonable charges if the consumer requests a this approach to compliance may require reasonable charges beyond the cost of the non-compliant solution with enhanced functionality. verification of disability. navigation device being replaced.

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C. Activation Mechanisms for Closed language of each to make sense of the 205(b)(5) of the CVAA, which governs Captioning Under Section 205 whole.’’ Attempting to make sense of the provision of devices with closed 103. Based on the language and these provisions, the Commission captioning pursuant to Section design of Section 205, we agree with sought comment in the NPRM on how 303(bb)(2) of the Act. Sections parties asserting that a covered entity Section 205(b)(3) of the CVAA should 205(b)(4)(A) and (B) of the CVAA give must provide a compliant mechanism to be read in conjunction with Section a covered entity flexibility in complying 111 activate closed captioning pursuant to 303(bb)(2) of the Act. The with the requirements of Section Section 303(bb)(2) of the Act Commission also inquired whether the 303(bb)(1) of the Act by allowing the irrespective of whether such entity has fact that Section 303(bb)(1) of the Act entity to provide audibly accessible on- received a ‘‘request’’ for such and Section 205(b)(4)(B) of the CVAA screen text menus and guides to mechanism from a ‘‘blind or visually focus on making navigation devices ‘‘requesting blind or visually impaired’’ impaired individual.’’ That is, covered accessible to people with vision individuals through separate equipment entities must ensure that all of their disabilities, and do not reference people or software. By contrast, Section navigation devices with built-in closed who are deaf or hard of hearing, means 205(b)(5) of the CVAA, which relates to captioning capability provide a that requests were not meant to be a pre- compliance with the requirements of mechanism reasonably comparable to a requisite to providing accessible Section 303(bb)(2) of the Act (closed button, key or icon to activate closed activation mechanisms for closed captioning activation mechanism), captioning. Although there is an captioning under Section 303(bb)(2) of references neither a ‘‘request’’ nor any ambiguity in the statute resulting from the Act. The Commission asked whether limitation on the kinds of individuals the uncertain relationship between new it was Congress’s intent that covered entitled to receive accessible activation Section 303(bb)(2) of the Act and entities include the mechanism to make mechanisms for closed captioning. Section 205(b)(3) of the CVAA, we closed captioning easily accessible on Moreover, Section 205(b) of the CVAA conclude that this is the most all devices with built-in closed does not permit entities to provide the reasonable interpretation of Section 205. captioning. closed captioning mechanism through 104. We find that the statutory text Section 303(bb)(2) of the Act requires separate equipment or software. We find and purpose support the interpretation ‘‘for navigation devices with built-in that the inclusion of the ‘‘requesting’’ that covered entities must ensure that closed captioning capability,’’ access to language in 303(bb)(1) of the Act and all of their navigation devices with that capability must be provided 205(b)(4) of the CVAA, and the omission built-in closed captioning capability of such language in 303(bb)(2) of the Act ‘‘through a mechanism that is provide a mechanism to activate closed reasonably comparable to a button, key and 205(b)(5) of the CVAA, and the captioning that is reasonably flexibility afforded to entities to provide or icon designated for activating the comparable to a button, key, or icon. closed captioning, or accessibility on-screen menus and guides but not Section 303(bb)(2) of the Act requires a closed captioning activation features. . . .’’ 47 U.S.C. 303(bb)(2). compliant activation mechanism for Section 205(b)(3) of the CVAA states mechanisms through separate navigation devices with built-in closed equipment or software, further supports that an ‘‘entity shall only be responsible captioning. The ‘‘upon request’’ for compliance with the requirements our conclusion that Congress did not language does not appear anywhere in intend to limit the provision of the added by this section with respect to that section. As discussed above, the navigation devices that it provides to a closed captioning activation mechanism terms ‘‘request’’ and ‘‘requesting’’ are to individuals who request them, as it requesting blind or visually impaired used in Section 205 of the CVAA only did with audibly accessible on-screen individual.’’ Public Law 111–260, in connection with individuals who are text menus and guides. Rather, it 205(b)(3). It is unclear whether Section blind or visually impaired. We believe intended that the closed captioning 205(b)(3) applies only to the the absence of the ‘‘upon request’’ mechanism be universally available. requirements of Section 205 designed to language in Section 303(bb)(2) of the afford accessibility of devices to Act, and the inclusion of such language 106. The absence in Section individuals who are blind or visually in Section 303(bb)(1) of the Act, is most 303(bb)(2) of the Act of the phrase ‘‘if impaired, i.e., those required by Section reasonably read as indicating that achievable’’ (which is included in 303(bb)(1) of the Act, or also to the Congress intended the closed captioning Section 303(bb)(1) of the Act) further closed captioning requirements in activation mechanism to be included on confirms our conclusion that Congress Section 303(bb)(2) of the Act. If Section all devices with built-in closed intended to impose on covered entities 205(b)(3) of the CVAA were read as captioning capability, and not just an unqualified obligation to ensure that applying to the closed captioning provided to individuals who request all navigation devices with built-in requirements, that would mean the them, as Congress provided with respect closed captioning capability provide closed captioning activation mechanism to audibly accessible on-screen text access to such capability through a would be provided only at the request menus and guides. mechanism ‘‘reasonably comparable to a of blind or visually impaired 105. Our interpretation of the button, key or icon.’’ That is, in contrast individuals, a group of consumers who obligations imposed by Section to the conditional requirements of would generally have far less need for 303(bb)(2) of the Act is further Section 303(bb)(1) of the Act—entities a closed captioning feature (closed supported by the language and structure must provide audibly accessible on- captioning being useless to someone of Section 205(b)(4) of the CVAA, which screen menus and guides to requesting who is blind), and not at the request of governs compliance with Section blind or visually impaired individuals deaf or hard of hearing consumers for 303(bb)(1) of the Act through ‘‘separate only ‘‘if achievable’’—Congress made whom closed captioning is essential for equipment or software,’’ and Section the requirements of Section 303(bb)(2) understanding a program’s content. We of the Act unconditional. Thus, the do not believe that Congress intended 111 Section 205(b)(3) of the CVAA provides that closed captioning activation mechanism such an absurd result. When ‘‘charged ‘‘[a]n entity shall only be responsible for must be provided without regard to an compliance with the requirements added by this with understanding the relationship section with respect to navigation devices that it ‘‘achievability’’ condition and cannot be between two different provisions within provides to a requesting blind or visually impaired provided through separate equipment or the same statute, we must analyze the individual.’’ Public Law 111–260, 205(b)(3). software. We believe requiring

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activation mechanisms for closed impaired individual requests the closed rules; or (ii) claim in defense to a captioning to be universally provided captioning activation device, such a complaint or enforcement action that makes sense from a practical standpoint reading would deny improvements in the Commission should determine that as well. Because both the CVAA and closed captioning accessibility to those the party’s actions were permissible other statutes have made closed consumers who need and utilize it most, alternate means of compliance.114 We captioning a universal design feature, i.e., individuals who are deaf and hard note that covered entities that claim in we find it reasonable to interpret of hearing, and make this feature defense to a complaint or enforcement Section 303(bb)(2) of the Act as ensuring accessible only to individuals who action that their actions were a that compliant activation mechanisms generally have far less of a need for it. permissible alternate means of for built-in closed captioning be We do not believe Congress intended compliance bear the burden of proof on universally available as well. such a nonsensical result, and we this defense. We delegate authority to 107. We observe that Section 205(b)(3) believe that the foregoing analysis of the the Media Bureau and the Consumer of the CVAA provides that ‘‘[a]n entity language of the various provisions of and Governmental Affairs Bureau, as we shall only be responsible for compliance Section 205 of the CVAA and how they did in the IP Closed Captioning Order with the requirements added by this fit together in context confirms that. For and other contexts, to consider all section with respect to navigation the reasons discussed above, we requests for a declaratory ruling devices that it provides to a requesting interpret Section 303(bb)(2) of the Act as regarding an alternate means of blind or visually impaired individual.’’ requiring covered entities to include compliance. Some commenters have argued that compliant closed captioning activation 109. We reject DISH/EchoStar’s under this provision, a covered entity is mechanisms on all navigation devices proposal to set a 90-day time limit for responsible for providing a closed with built-in closed captioning Bureau action on requests for a captioning activation mechanism only capability.113 declaratory ruling that a proposed to requesting individuals who are blind alternate means of compliance satisfies or visually impaired. We reject this the statutory requirements. While we argument. Commenters’ proffered VI. Other Issues believe the Bureaus can act interpretation is based on an overly A. Alternate Means of Compliance expeditiously on such requests, we broad reading of the phrase ‘‘the conclude that the potentially complex requirements added by this section;’’ 108. Section 204 of the CVAA states nature of proposals for alternate means they contend that ‘‘this section’’ that an entity may meet the of compliance that may need to be references Section 205 of the CVAA in requirements of Section 303(aa) of the evaluated makes it inadvisable to adopt its entirety. This reading, however, Act ‘‘through alternate means than those binding time frames. ignores the qualifier ‘‘with respect to prescribed by’’ the regulations that we navigation devices that it provides to a adopt herein if the requirements of B. Compliance Deadlines requesting blind or visually impaired Section 303(aa) of the Act are met, as 110. We set a compliance deadline of individual.’’ That is, by its terms, determined by the Commission. Public three (3) years from the date the R&O is Section 205(b)(3) of the CVAA limits an Law 111–260, 204(c). We adopt our published in the Federal Register by entity’s compliance responsibility to proposal in the NPRM to implement the which covered entities must comply devices provided to requesting same approach to alternate means of with the requirements of Sections 204 individuals, but only ‘‘with respect to compliance that the Commission and 205. Section 204 does not specify navigation devices that it provides to a adopted in the IP Closed Captioning the time frame by which digital requesting blind or visually impaired Order, which implemented a similar apparatus must comply with the individual.’’ In other words, Section provision in Section 203 of the CVAA. requirements for accessible user 205(b)(3) of the CVAA applies only with We note that the commenters on this interfaces and programming guides. regard to those devices provided issue generally support our proposal. However, Section 204(d) states that ‘‘[a] pursuant to Section 303(bb)(1) of the Under our approach, rather than digital apparatus designed and Act (audibly accessible on-screen text specifying what may constitute a manufactured to receive or play back menus and guides provided on permissible alternate means of the Advanced Television Systems navigation devices ‘‘upon request by compliance, we will address any Committee’s Mobile DTV Standards A/ individuals who are blind or visually specific requests from parties subject to 153 shall not be required to meet the impaired’’).112 It does not apply to the the new rules on a case-by-case basis closed captioning activation mechanism when they are presented to us. Should 114 We note that this approach slightly differs covered under Section 303(bb)(2) of the an entity seek to use an ‘‘alternate from the approach recently adopted in the Act, which says nothing about means’’ to comply with the applicable Emergency Information/Video Description Order. Under that approach, a covered entity that seeks to requesting blind or visually impaired requirements, that entity may either: (i) use an ‘‘alternate means’’ to comply with the individuals. We believe our request a Commission determination Section 203 emergency information and video interpretation is the most sensible that the proposed alternate means of description apparatus requirements must request reading of Section 205(b)(3) of the compliance satisfies the statutory and receive a Commission determination that the proposed alternate means satisfies the statutory CVAA in context. If we were to construe requirements pursuant to § 1.41 of our requirements through a request pursuant to § 1.41 that provision as limiting a covered of our rules before using such alternate means of entity’s obligation to comply with 113 Our decision is consistent with the compliance. The covered entity is not permitted to Section 303(bb)(2) of the Act to only requirement in Section 205(b)(5) of the CVAA that claim in defense to a complaint or enforcement our rules ‘‘permit the entity providing the action that the Commission should determine that those cases in which a blind or visually navigation device maximum flexibility in the the party’s actions were a permissible alternate selection of means for compliance with Section means of compliance. The Commission explained 112 For example, under Section 205(b)(3), an 303(bb)(2). . . .’’ Public Law 111–260, 205(b)(5). that it was deviating from the approach MVPD would be responsible for compliance with We interpret the phrase ‘‘selection of means for implemented in the IP Closed Captioning Order the audibly accessible requirement in Section compliance’’ to refer to the selection of the because of the uniquely heightened public interest 303(bb)(1) only with regard to devices it supplies mechanism that is ‘‘reasonably comparable to a in emergency information and the importance of to the requesting individual; it would not be button, key, or icon.’’ Our decision thus does not ensuring that consumers know how they can use responsible for compliance with regard to a device restrict a covered entity’s flexibility to choose the their apparatus to obtain emergency information an individual purchased at retail. mechanism by which it will meet this requirement. provided via the secondary audio stream.

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requirements of the regulations [adopted solutions for Sections 204 and 205 bring accessible equipment to under Section 204] for a period of not equipment. CEA explains that ‘‘covered consumers as required by our rules. less than 24 months after the date on digital apparatus and navigation devices 112. We clarify that the compliance which the final regulations are may rely on the same third-party deadlines adopted herein refer only to published in the Federal Register.’’ solutions to meet the applicable the date of manufacture, consistent with Section 205 sets forth a phase-in period accessibility requirements’’ and that the IP Closed Captioning of not less than two years from the date such ‘‘solutions would likely become Reconsideration Order and the of adoption of rules by which navigation available for both digital apparatus and Emergency Information/Video devices must comply with the navigation devices around the same Description Order. As explained in requirements for a mechanism time.’’ Industry commenters also those orders, this approach is consistent reasonably comparable to a button, key, explain that a common deadline would with the Commission’s past practices or icon for closed captioning or avoid uncertainty as to ‘‘when particular regarding similar equipment deadlines, accessibility features,115 and not less video programming features of a new, and a compliance deadline based on the than three years by which navigation multipurpose or hybrid product’’ must date of importation or the date of sale devices must comply with the comply. Finally, CEA asserts that, ‘‘due would be unworkable in most requirements for accessible on-screen to the timing of the product circumstances, given that the text menus and guides for the display or development cycle, especially for TVs,’’ manufacturer often does not control the 116 selection of video programming. With a uniform deadline ‘‘will greatly date of importation or sale. respect to Section 204, the VPAAC simplify the development of accessible 113. Delayed Compliance for Mid- recommends that the industry be given solutions for apparatus covered by sized and Smaller MVPDs. We set a later not less than two years after publication Section 204 without significantly compliance deadline of five (5) years of the regulations in the Federal delaying the introduction of accessible from the date the R&O is published in Register to come into compliance, devices.’’ 118 In addition, we believe the Federal Register by which certain consistent with the time frame adopted more time is appropriate for covered mid-sized and smaller MVPD operators in both the ACS Order and the IP Closed entities to provide an accessible and small MVPD systems must comply Captioning Order. With respect to activation mechanism for built-in closed with the requirements of Section 205. Section 205, the VPAAC recommends captioning because of our decision Specifically, this later deadline will that we adopt the minimum phase-in herein that this requirement applies to apply to: periods described in the statute, but • MVPD operators with 400,000 or all navigation devices (irrespective of suggests that they should run from the fewer subscribers (i.e., MVPD operators whether it has received a request from date of publication of the rules in the other than the top 14); 119 and Federal Register, rather than from the a consumer) and is not subject to the • MVPD systems with 20,000 or fewer date of adoption, consistent with its ‘‘achievability’’ limitation. We also subscribers that are not affiliated with recommendation in the Section 204 expect that having a common deadline an operator serving more than 10 context. The NPRM tentatively for an accessible activation mechanism percent of all MVPD subscribers (i.e., concluded to adopt the VPAAC’s for built-in closed captioning and 10.1 million 120). recommendations. Some commenters audibly accessible on-screen text menus In addition, we will review the support the NPRM’s proposal, while and guides will allow covered entities to marketplace after the three-year others advocate a ‘‘uniform’’ three-year design devices that incorporate all of compliance deadline for larger MVPDs compliance deadline for implementing these required accessibility features, to determine whether this five-year all new rules under Sections 204 and which should reduce consumer delayed compliance deadline should be 205. confusion about the accessibility of retained or extended (in whole or in 111. We are persuaded by industry device features. We note that, while part). Once we reach the three-year commenters that a uniform three-year NAD/Consumer Groups endorsed the compliance deadline for larger phase-in period for compliance with VPAAC timing recommendations, they operators, we believe we will be better Sections 204 and 205 will simplify did not otherwise respond to industry’s positioned to assess whether mid-sized implementation and enforcement of request for a uniform three-year phase- and/or smaller operators will be able to these provisions. We recognize that the in period. We agree with industry comply within another two years. We Commission has generally afforded commenters that the benefits of a delegate authority to the Media Bureau manufacturers two years to comply with simplified, uniform compliance to initiate this review. accessibility requirements under the deadline outweigh any inconvenience 114. As discussed above, Section 205 CVAA.117 However, we agree with that may be caused to consumers. sets forth minimum compliance phase- industry commenters that a common Although the compliance deadline is in periods (i.e., ‘‘not less than’’ two/ deadline will afford covered entities the three years away, we expect flexibility to adopt similar accessibility manufacturers to take accessibility into 119 See NCTA, Industry Data, Top 25 consideration as early as possible during Multichannel Video Service Customers (2012), 115 Section 205 provides that ‘‘[t]he Commission the design process for new and existing http://www.ncta.com/industry-data (visited Aug. shall provide affected entities with not less than 2 equipment and to begin taking steps to 28, 2013) (showing the number of subscribers for years after the adoption of such regulations to begin each of the top 25 MVPDs, based on 2012 data). We placing in service devices that comply with the will rely on this data for our purposes here. requirements of Section 303(bb)(2) of the 118 CEA explains that new TV models are usually 120 At the end of 2011, there were approximately Communications Act.’’ introduced in the spring, meaning that adoption of 101.0 million MVPD subscribers. We will use this 116 Section 205 provides that ‘‘[t]he Commission a 3-year compliance deadline that will go into effect 101.0 million total MVPD subscribers shall provide affected entities with not less than 3 in the fourth quarter of 2016 will lead to devices approximation for our purposes here, although we years after the adoption of such regulations to begin being introduced the previous spring, and thus recognize that the total may now be slightly less. placing in service devices that comply with the amount to ‘‘an effective phase-in period of only See NCTA, Industry Data (2012), http:// requirements of Section 303(bb)(1) of the about two and a half years.’’ ESA states that the www.ncta.com/industry-data (visited Aug. 28, Communications Act.’’ extra time may allow manufacturers ‘‘to roll out 2013). In any case, our definition of a small MVPD 117 The Commission has repeatedly determined accessibility solutions across product lines system will exclude systems affiliated with one of that manufacturers generally require approximately contemporaneously, which in turn may foster the top four MVPDs—Comcast, DIRECTV, DISH two years to design, develop, test, manufacture, and investment and innovation in improved Network, and Time Warner Cable, all of which have make available for sale new products. accessibility technologies.’’ more than 10.1 million subscribers.

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three years). Therefore, Section 205 fewer subscribers, industry commenters MVPD operators with 400,000 or fewer provides the Commission with the ask us to provide an indefinite subscribers (i.e., MVPD operators other discretion to set later deadlines if extension to all but the largest operators than the top 14) and MVPD systems deemed appropriate. MVPD commenters and to review the marketplace after the with 20,000 or fewer subscribers that are ask that we use this discretion to afford three-year phase-in to determine not affiliated with an operator serving mid-sized and smaller MVPD operators whether accessibility is ‘‘achievable’’ for more than 10 percent of all MVPD 122 and small MVPD systems with more smaller operators. We decline to subscribers. We base our decision time to comply with Section 205. We provide an indefinite extension, and allowing a deferred compliance agree with MVPD commenters that a agree with the Consumer Groups that deadline for MVPDs with 400,000 or there is no reason to assume that smaller longer phase-in is appropriate for fewer subscribers on the Commission’s certain mid-sized and smaller MVPD operators or small systems will never be definition of ‘‘small’’ cable company in operators and small MVPD systems. We able to achieve compliance. Therefore, 47 CFR 76.901(e).126 In addition, the recognize that smaller operators first, we limit our extension to two generally lack the market power and additional years, rather than providing Commission has recognized that small resources to drive independently the an indefinite extension of time. We systems may be part of larger, multiple- development of MVPD headend or believe that an open-ended extension of cable-system, networks, potentially customer premises equipment. NCTA time is unnecessary and would allowing even very high costs to be explains that smaller operators undermine the goals of the statute.123 spread over large numbers of ‘‘typically rely on the research and Nevertheless, as noted above, we will subscribers. Therefore, while we development efforts of the larger review the marketplace in three years to generally provide relief to MVPD operators prior to deploying new consider whether the five-year delayed systems with 20,000 or fewer equipment and services to their compliance deadline should be retained subscribers, we exclude from this relief customers.’’ Thus, it is the large cable or extended (in whole or in part). those systems that are affiliated with an operators that generally dictate 116. Second, we decline to extend the operator serving more than 10 percent of equipment features to manufacturers compliance deadline for any operator and commonly get priority in the smaller than the six largest incumbent a timely manner because larger operators get delivery of that equipment. We also cable operators, as requested by priority in the delivery of equipment. We note that agree with NCTA that ‘‘small systems NCTA,124 or to extend the compliance Suddenlink has a partnership with TiVo, which is deadline for any small system affiliated independently subject to these accessibility have a smaller customer base across requirements as a manufacturer of navigation which to spread costs.’’ 121 We recognize with an operator serving more than 10 devices sold at retail. See Suddenlink that delayed compliance may mean percent of all MVPD subscribers. Under Communications, ‘‘Suddenlink & TiVo Announce fewer accessibility choices for NCTA’s approach, all MVPDs except Strategic Distribution Agreement’’ (press release), Comcast, DIRECTV, DISH Network, July 8, 2010, available at http:// subscribers to smaller systems with static.suddenlink.synacor.com/ul/pdf/pr/pr_07_08_ disabilities in the near term, particularly Time Warner Cable, Verizon, Cox, 10.pdf. We also note that Suddenlink and Cable in rural areas. However, we agree with AT&T, Charter, Cablevision, and Bright One each primarily rely on user interfaces provided NCTA that this concern will be House would receive an extension of by Rovi, and WOW! primarily relies on user time to comply, and small systems interfaces provided by Cisco. See Rovi Corporation, mitigated by the presence of other ‘‘Rovi Announces New Guide Agreement with accessibility options available in the owned by the two largest operators Suddenlink’’ (press release), June 15, 2011, marketplace when the rules take effect. would never have to comply. NCTA has available at http://www.rovicorp.com/company/ As NCTA notes, most consumers should provided no evidence to suggest that it newscenter/pressreleases/1434_15354.htm. To the have access to satellite service, and would be too burdensome for all MVPDs extent Rovi and Cisco will continue to supply electronic program guides also to larger operators, subscribers to cable systems that are included within this broad category to they will have to undertake the research and 125 eligible for delayed compliance will be comply. Instead, we provide relief to development to make these guides accessible by the able to obtain navigation devices at compliance deadline for larger operators. At this retail that will be subject to the Section 122 As explained below, we decline this request, time, therefore, it is premature for us to conclude but consider it for purposes of affording a delayed that these operators will be unable to meet the 205 audible accessibility requirement. compliance deadline to most small systems. requirements of Section 205 in three years. Therefore, we believe providing some 123 Moreover, to the extent MVPDs can Nevertheless, Suddenlink, Cable One and WOW!, relief to mid-sized and smaller operators demonstrate that compliance is not ‘‘achievable,’’ like other covered entities, may seek an extension is reasonable and consistent with they have recourse under the statute. We remind of the compliance deadline if they determine they congressional intent to allow the covered entities that do not make their products or need additional time to comply and can provide services accessible and claim as a defense that it is evidence to support that request. We will entertain Commission to establish reasonable not achievable for them to do so, that they bear the individual requests for a limited extension of time compliance deadlines. burden of proof on this defense. to comply for operators with more than 400,000 115. However, cognizant of Congress’s 124 NCTA points to the BST Encryption Order to subscribers and fewer than 2 million subscribers, if desire that consumers with disabilities support this size standard. In the BST Encryption a requesting operator can demonstrate that it attempted in good faith to obtain a compliant gain better access to video programming Order, the Commission required only the six largest incumbent cable operators to adopt a solution that accessible solution by the three-year deadline, but without undue delay, we limit the delay would make basic service tier channels available to that it could not feasibly procure such a solution in compliance for mid-sized and smaller consumers on third-party provided IP-enabled clear by the deadline. Such a showing must include a operators to two years. In addition to QAM devices. Notably, the Commission found it detailed factual statement describing the steps the seeking a permanent exemption for all unnecessary to extend the additional equipment operator has taken to comply with the requirements requirement to smaller cable operators because of Section 205, an estimate of how long it will take small cable systems serving 20,000 or ‘‘only a small number of consumers rely on IP- the operator to comply, supported by appropriate enabled devices to access the basic tier’’ and documentation (e.g., letters to and from equipment 121 However, as discussed below, we recognize therefore the Commission expected ‘‘this particular suppliers), and a corroborating affidavit by an that small systems that are part of a larger, multiple- compatibility problem to be extremely limited in officer or director of the operator, pursuant to § 1.16 cable-system network are able to spread even very scope.’’ In the instant accessibility context, of the rules, 47 CFR 1.16. We delegate authority to high costs over large numbers of subscribers, easing however, the need for accessibility solutions is far the Media Bureau to consider such requests. the upgrade cost burden even in systems with small greater and much more certain, as evidenced by the 126 In addition, in the CALM Act Report and numbers of subscribers. Therefore, we exclude from CVAA’s enactment. Order, we used the 400,000 subscriber threshold to our later compliance deadline any system affiliated 125 Three cable operators with more than 400,000 define a smaller operator, excusing such operators with an operator serving more than 10.1 million subscribers and fewer than 2 million subscribers with 400,000 or fewer subscribers from having to subscribers. argue that each would have difficulty complying in perform annual spot checks.

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all MVPD subscribers.127 Accordingly, systems will never be able to comply previously had such a requirement for we find that affording an extra two years with the requirements of Section 205.130 television closed captioning complaints, but that process proved problematic for for covered entities meeting these size C. Complaint Procedures standards to comply with the many consumers who often were not requirements of Section 205 will ease 119. We adopt the NPRM’s proposal sure whom to contact with their burdens on smaller operators, while to use the same procedures for the filing complaint. As a result, we revised our of consumer complaints alleging minimizing any adverse impact on television closed captioning complaint violations of the Commission’s rules consumers.128 procedures to allow complaints to be requiring accessibility of user interfaces first filed with the Commission and 117. Section 205 states that the and video programming guides and have adopted this revised procedure in Commission ‘‘may provide an menus that the Commission adopted in subsequent contexts, such as the IP- exemption from the regulations for cable the IP-closed captioning context. closed captioning rules.132 Accordingly, systems serving 20,000 or fewer Commenters on this issue generally as the Commission did in the IP-closed subscribers.’’ As noted in the NPRM, use support our proposal; however, NCTA captioning rules, we will create a of the word ‘‘may’’ in this provision seeks certain modifications to these process for complainants to file their suggests that adoption of such an procedures. As explained below, we complaints either with the Commission exemption is in the Commission’s reject NCTA’s proposed modifications. or with the covered entity responsible discretion. MVPD commenters advocate Accordingly, we establish the following for the problem. that we afford this exemption, while procedures for the filing of consumer 122. Consumers who file their consumer groups oppose it. We decline complaints alleging violations of the complaints first with the Commission at this time to adopt a permanent Commission’s rules requiring may name a covered entity in their exemption for small cable systems with accessibility of user interfaces and video complaints. The Commission will 20,000 or fewer subscribers, as programming guides and menus: (i) forward such complaints, as permitted by Section 205(b)(2). Require complainants to file within 60 appropriate, to the named covered However, all small cable systems other days after experiencing a problem; (ii) entity for its response, as well as to any other entity that Commission staff than those affiliated with an operator allow complainants to file their determines may be involved, and the serving more than 10.1 million complaints either with the Commission or with the covered entity responsible Commission may request additional subscribers129 will benefit from the for the problem; (iii) provide the entity information from any relevant parties longer phase-in deadline described 30 days to respond to the complaint; (iv) when, in the estimation of Commission above. do not specify a time frame within staff, such information is needed to 118. We find that the record does not which the Commission must act on investigate the complaint or adjudicate support a permanent exemption. We complaints; (v) follow the Commission’s potential violations of Commission agree with the Consumer Groups that flexible, case-by-case forfeiture rules. MVPDs, regardless of size, should approach governed by § 1.80(b)(6) of our 123. If a complaint is filed first with provide access to accessible equipment rules; (vi) specify the information that a covered entity, our rules will require if doing so is achievable. Whereas the the complaints must include; and (vii) the covered entity to respond in writing uncertainty surrounding how covered require covered entities to make contact to the complainant within thirty (30) small entities will comply makes it information available to end users for days after receipt of a complaint. If a reasonable to afford a later compliance the receipt and handling of written covered entity fails to respond to the deadline, it also means it would be complaints. complainant within thirty (30) days, or premature to assume that small cable 120. Timing of Complaints. We adopt the response does not satisfy the the NPRM’s proposal to require consumer, the complainant may file the complaint with the Commission within 127 Under this approach, systems affiliated with complainants to file within 60 days after Comcast, DIRECTV, DISH Network, and Time experiencing a problem. The thirty (30) days after the time allotted Warner Cable would be excluded from the Commission will accept a consumer’s for the covered entity to respond. If the definition of a small system. allegations as to the timeliness of a 128 We estimate that our longer phase-in period complaint as true, unless a covered certify that they ‘‘attempted in good faith to resolve for smaller operators and small systems would the dispute’’ with the covered entity before filing apply to approximately 7 percent (or 7 million) of entity demonstrates otherwise. a complaint with the Commission. The CVAA, all MVPD subscribers. Of course, subscribers 121. Option to File Complaints with however, required the Commission to reinstate the seeking an accessibility solution would account for the Commission or with the Covered video description rules previously adopted in 2000. an even smaller subset of these MVPD subscribers. Entity. We adopt the NPRM’s proposal Our rule permitting a complainant to file either Our estimate is based on industry data indicating with the Commission or the covered entity is that the 14 largest MVPD operators (i.e., those to allow complainants to file their consistent with our rules in the other video operators serving more than 400,000 subscribers) complaints either with the Commission programming accessibility contexts, such as closed accounted for approximately 95 million of the or with the covered entity (e.g., captioning and emergency information. approximately 101 million MVPD subscribers, manufacturer or MVPD) responsible for 132 We did not require that consumers file first meaning approximately 6 million subscribers may with covered entities in the IP Closed Captioning potentially be affected. See NCTA, Industry Data the problem. We disagree with NCTA Order and we see no need to do so here, where (2012), http://www.ncta.com/industry-data (visited that consumers should be required to consumers may have difficulty identifying the Aug. 28, 2013). Based on our Form 325 data, we first attempt to resolve disputes with apparatus or navigation device manufacturer or estimate that MVPD systems with 20,000 or fewer covered entities before filing a provider. We are not persuaded by NCTA’s subscribers which are not affiliated with an 131 assertion that ‘‘there is no such difficulty in the operator serving more than 10 percent of all MVPD complaint with the Commission. We instant proceeding.’’ There may still be confusion subscribers account for less than 1 million about who is the responsible apparatus or subscribers, thus adding an additional 1 million 130 If the delayed compliance deadline proves navigation device manufacturer or provider in some subscribers to our estimate of the pool of potential insufficient to allow small systems to implement an situations, and allowing consumers to file directly subscribers that may be affected. affordable solution, we may consider requests for a with the Commission will provide a more expedient 129 Since few systems with 20,000 or fewer further extension on an individual or industry-wide solution. Moreover, because there may be situations subscribers are affiliated with an operator serving basis. We delegate authority to the Media Bureau where consumers will know their MVPD service more than 10.1 million subscribers, almost all of to consider such requests. provider is responsible, our approach permits the these small systems will be able to take advantage 131 NCTA points to our video description rules, filing of complaints directly with the MVPD service of the deferred compliance deadline. 47 CFR 79.3(e)(vi), which require consumers to provider.

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consumer files the complaint with the files or public sources. When the impaired, if a complainant calls the Commission (after filing with the Commission requests additional Commission for assistance in preparing covered entity), the Commission will information, parties to which such a complaint, Commission staff will forward the complaint to the named requests are addressed must provide the document the complaint in writing for covered entity, as well as to any other requested information in the manner the consumer. covered entity that Commission staff and within the time period the 129. Contact Information. We adopt determines may be involved. If the Commission specifies. the NPRM’s proposal to require covered Commission is aware that a complaint 127. Sanctions or Remedies. We adopt entities to make contact information has been filed simultaneously with the the NPRM’s proposal to follow the available to consumers for the receipt Commission and the covered entity, the Commission’s flexible, case-by-case and handling of complaints. We Commission may allow the process approach to fashioning sanctions and disagree with NCTA that the involving the covered entity and the remedies governed by § 1.80 of our Commission should not require the consumer to reach its conclusion before rules. We will adjudicate complaints on availability of specific contact moving forward with its complaint the merits and may employ the full information. Given that we will permit procedures, in the interest of efficiency. range of sanctions and remedies consumers to file their complaints 124. If a consumer names a covered available to the Commission under the directly with a covered entity, we think entity in its complaint, but the Act. it is important that consumers have the Commission determines that its 128. Content of Complaints. We adopt information necessary to contact the investigation should be directed against the NPRM’s proposal to specify the covered entity. Although we do not another covered entity, the Commission information that the complaints should specify how covered entities must will forward the complaint to that include. Consistent with the provide contact information for the covered entity without requiring any Commission’s approach in the IP closed receipt and handling of consumer further action by the consumer. In captioning context, complaints should complaints, we encourage them to addition, if a covered entity receives a include the following information: (a) include this information with the other complaint from the Commission that it The complainant’s name, address, and accessibility information they must post believes the Commission should have other contact information, such as on their official Web site.134 We expect directed to a different covered entity, telephone number and email address; that covered entities will prominently the covered entity may say so in its (b) the name and contact information of display their contact information in a response to the complaint. In such the covered entity; (c) information way that makes it available and instances, however, the covered entity’s sufficient to identify the software or accessible to all consumers of their response should also indicate the device used; (d) the date or dates on products and services. We emphasize identity and contact information of the which the complainant purchased, that such notice should be provided in covered entity to which the complaint acquired, or used, or tried to purchase, a location that is conspicuous to should be directed, if known. acquire, or use the apparatus or consumers and accessible to those who 125. Complaint Response Time. We navigation device; (e) a statement of are blind or visually impaired. adopt the NPRM’s proposal to require facts sufficient to show that the Consistent with the IP closed captioning covered entities to respond in writing to manufacturer or provider has violated or rules, we will require covered entities to the Commission and the complainant is violating the Commission’s rules; (f) make available and accessible the within 30 days after receipt of a the specific relief or satisfaction sought contact information of a person with complaint from the Commission. In by the complainant; (g) the primary responsibility for accessibility response to a complaint, a covered complainant’s preferred format or compliance issues. Covered entities entity must file with the Commission method of response to the complaint; must provide that person’s name and sufficient records and documentation to and (h) if a Section 205 complaint, the title or office, telephone number, fax prove that it was (and remains) in date that the complainant requested an number, postal mailing address, and compliance with the Commission’s accessible navigation device and the email address. Covered entities must rules. Conclusory or insufficiently person or entity to whom that request keep this information current and supported assertions of compliance will was directed. Complaints alleging a update it within 10 business days of any not meet a covered entity’s burden of violation of the apparatus or navigation change. proof. If the covered entity admits that 130. Revisions to Form 2000C. We device rules that we adopt in this it was not, or is not, in compliance with direct the Consumer and Governmental proceeding may be transmitted to the the Commission’s rules, it must file with Affairs Bureau to revise the existing Consumer and Governmental Affairs the Commission sufficient records and complaint form for disability access Bureau 133 by any reasonable means, documentation to explain the reasons complaints (Form 2000C) in accordance such as the Commission’s online for its noncompliance, show what with the R&O, to facilitate the filing of informal complaint filing system, letter, remedial steps it has taken or will take, complaints. In the NPRM, the facsimile transmission, telephone and show why such steps have been or Commission asked if it should revise the (voice/TRS/TTY), email, or some other will be sufficient to remediate the existing complaint form for disability problem. method that would best accommodate access complaints (Form 2000C) and, if 126. Resolution of Complaints. We the complainant’s disability. Because so, what changes should be made. adopt the NPRM’s proposal not to some of the rules we are adopting are Consumer groups state that the form specify a time frame within which the intended to make apparatus or needs to be updated to accommodate Commission must act on complaints. No navigation devices accessible to complaints related to the accessibility of such time frame exists for IP closed individuals who are blind or visually user interfaces, and video programming captioning complaints. In evaluating a impaired, and therefore complainants guides and menus. We agree, and direct complaint, the Commission will review may themselves be blind or visually all relevant information provided by the 134 As discussed below, we require MVPDs to 133 complainant and the subject entity, as The Consumer and Governmental Affairs notify their subscribers about the availability of Bureau reserves the discretion to refer complaints accessible devices through notice on their official well as any additional information the that reveal a pattern of noncompliance to the Web sites, and encourage manufacturers to do the Commission deems relevant from its Commission’s Enforcement Bureau. same.

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the Bureau to make any changes may be sufficient risk of fraud or abuse verification procedures to adopt to necessary to facilitate the filing of by individuals who are not blind or verify the consumers’ eligibility to complaints pursuant to the rules we visually impaired to warrant allowing receive the device, we strongly adopt herein.135 verification of eligibility.139 With encourage covered entities to consult respect to proof of eligibility, covered with people who are blind and visually D. Verification of Eligibility entities must allow a consumer to impaired to ensure that whatever 131. As a general matter, we will not provide a wide array of documentation processes they adopt are not allow covered entities to require to verify eligibility for the accessibility burdensome on consumers. Similarly, consumer verification of eligibility as an solution provided.140 In addition, they while we do not require it, we individual who is blind or visually must protect personal information encourage a covered entity to seek a impaired prior to the provision of gathered from consumers through their determination from the Commission as accessible equipment.136 There is verification procedures. We note that to whether its proposed verification consensus in the record, however, that MVPDs have a statutory obligation procedures would be burdensome to verification of eligibility should be pursuant to Sections 338(i)(4)(A) and consumers before implementing such permitted in certain limited 631(c)(1) of the Act to protect personal procedures.142 Except in the limited situations.137 We will allow covered information gathered from subscribers. situations in which verification is entities to verify that a consumer 47 U.S.C. 338(i)(4)(A), 551(c)(1). We permitted (as discussed above), we requesting an accessible navigation believe the privacy protections required require that covered entities accept all device or accessibility solution pursuant by these provisions will adequately requests for an accessible navigation to Section 205 is eligible for such address our concerns about consumer device or accessibility solution from equipment when the covered entity privacy, because they generally forbid consumers who self-identify (disclose) chooses to rely on an accessibility disclosure of personally identifiable that they are blind or visually impaired solution that involves providing the information regarding subscribers for the purpose of obtaining an consumer with sophisticated equipment without prior consent and require accessible navigation device or and/or services at a price that is lower necessary actions to prevent accessibility solution ‘‘upon request’’ than that offered to the general public unauthorized access to information by a pursuant to Section 205.143 because the entity is relying on this person other than the subscriber. We E. Notification to Consumers solution to meet its accessibility therefore find it appropriate for obligations under Section 205. NCTA, manufacturers that choose to require 132. We conclude that MVPDs must AFB, and ACB agree that MVPDs may consumer verification of eligibility to notify consumers that navigation establish reasonable verification also comply with the requirements of devices with the required accessibility eligibility procedures‘‘ only ... in Sections 338(i)(4)(A) and 631(c)(1) of features are available to consumers who situations where an MVPD is providing the Act to protect personal information are blind or visually impaired ‘‘upon the customer with an accessible solution gathered from consumers through their request’’ to the extent discussed below. that he or she would otherwise not be verification procedures.141 We find that Section 205(b)(1) gives the Commission entitled to receive under his or her it is equally important that authority to ‘‘prescribe such regulations existing level of service and associated manufacturers protect the privacy of as are necessary to implement’’ the equipment.’’ For example, NCTA, AFB, consumers to the same extent as requirements that ‘‘on-screen text and ACB state that ‘‘an MVPD might MVPDs, given the personal nature of the menus and guides provided by seek proof of eligibility in situations eligibility information required and that navigation devices . . . for the display where it is providing an accessible on- the same confidentiality concerns are at or selection of multichannel video screen text menu or guide via a set-top issue. We also believe that establishing programming are audibly accessible in box different from (and more advanced verification and privacy requirements real-time upon request by individuals than) the equipment that the customer for manufacturers consistent with those who are blind or visually impaired.’’ is currently using to access MVPD that apply to MVPDs will benefit Public Law 111–260, 205(b)(1). In the service, or where an MVPD offers a consumers by creating one uniform NPRM, we sought comment on whether separate accessibility solution, such as a standard with which regulated entities to require MVPDs to notify their tablet with an accessible app.’’ 138 We must comply. In determining which subscribers, in an accessible format, that understand that in these situations there accessible devices are available upon 139 This is consistent with other accessibility request. Consumer groups favor notice 135 Should the complaint filing rules adopted in contexts in which we permitted reasonable requirements, while industry the R&O become effective before the revised Form verification eligibility procedures because of a commenters oppose such requirements. 2000C is available to consumers, complaints may be significant risk of fraud or abuse. 133. We believe consumer notification filed in the interim by fax, mail, or email. 140 For example, we would consider as reasonable is an essential part of a covered entity’s 136 We note that verification of eligibility is not eligibility requirements that accommodate a wide at issue for consumers who are deaf or hard of array of methods for consumers to document obligation to make audibly accessible hearing seeking an accessible closed captioning eligibility, including, but not limited to: proof of devices (or separate solutions, such as mechanism because, as discussed above, covered participation in a nationally-established program software, peripheral devices, specialized entities must ensure that all of their navigation for individuals who are blind or visually impaired, consumer premises equipment, a devices with built-in closed captioning capability such as the Commission’s National Deaf-Blind provide a mechanism to activate closed captioning. Equipment Distribution Program or the National network-based service, or other 137 Consumer groups had previously opposed Library Service’s talking books program; or industry’s requests to require verification of documentation from any professional or service 142 Any such requests should follow the disabilities. MVPDs favored permitting verification provider with direct knowledge of the individual’s procedures for an informal request for Commission procedures. disability, such as a social worker, case worker, action pursuant to § 1.41 of our rules. 47 CFR 1.41. 138 A manufacturer could impose a verification counselor, teacher, school superintendent, We delegate authority to the Chief of the Consumer requirement in the analogous situation in which, in professional librarian, doctor, ophthalmologist, and Governmental Affairs Bureau to make these fulfillment of its Section 205 obligations, it provides optometrist, or registered nurse. determinations. an accessible retail navigation device different from 141 We note that the requirements in Sections 143 This is consistent with other accessibility (and more advanced than) a less sophisticated, non- 338(i) and 631 of the Act to protect personal contexts, such as implementation of Sections 255, compliant navigation device that the customer information are identical so manufacturers need 716, and 718 of the Communications Act, in which preferred to purchase, but at the same price as the only refer to one of these provisions for their the potential for fraud or abuse was not raised as less sophisticated device. requirements. an issue.

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solution) available to consumers who 134. At this time, we do not impose the second subpart includes rules that are blind or visually impaired ‘‘upon any notification requirements on apply to apparatus manufacturers. CEA request.’’ 144 Indeed, the ability to equipment manufacturers. We find the and NAD/Consumer Groups were the purchase or request an audibly record is insufficient regarding the only commenters to address our accessible device or accessibility scope of what such obligations, if any, proposed renaming and reorganization solution means little if consumers are should be. However, we encourage and both expressed support for the idea. unaware of its existence and equipment manufacturers to publicize We agree with CEA that our proposed availability. Certainly, the Commission information about their accessible reorganization of Part 79 will assist will do its part to inform consumers devices and accessibility solutions readers in browsing and locating our about the availability of audibly through information on their Web sites, accessibility rules. We therefore rename accessible devices upon request, but we in marketing efforts, and through their Part 79 of the Commission’s rules believe such efforts are no substitute for retailers. In the accompanying FNPRM, ‘‘Accessibility of Video Programming’’ consumers getting information directly we seek comment on whether and how and divide it into two subparts, Subpart from service providers. Accordingly, we equipment manufacturers should notify A, entitled ‘‘Video Programming establish two notification rules consumers about the availability of Owners, Distributors, and Providers,’’ requiring MVPDs to notify consumers accessible devices. which will contain those rules regarding the provision of various services, and that navigation devices with the VII. Elimination of Analog Closed Subpart B, ‘‘Apparatus,’’ which will required accessibility features are Captioning Labeling Requirement and contain those rules pertaining to devices available to consumers who are blind or Renaming Part 79 visually impaired upon request. First, and other equipment used to receive, 135. Although this is not mandated by play back, or record video programming. when providing information about the CVAA, we adopt the NPRM’s equipment options in response to a In taking this action, we clarify that the tentative conclusion to eliminate the renaming and reorganization of Part 79 consumer inquiry about service, analog closed captioning labeling accessibility, or other issues, MVPDs is purely procedural in nature and does requirements from our rules. That is, we not affect any of the underlying must clearly and conspicuously inform will eliminate the requirement that substance of the rules. consumers about the availability of manufacturers label analog television accessible navigation devices. Although receivers based on whether they contain VIII. Procedural Matters we do not require a specific means for an analog closed captioning decoder A. Final Regulatory Flexibility Analysis satisfying this notice requirement, we and the requirement that manufacturers 137. As required by the Regulatory find that the MVPD could provide this include information in a television’s required notice by instructing their Flexibility Act of 1980, as amended user manual if the receiver implements 146 customer service representatives to only a subset of the analog closed (‘‘RFA’’), an Initial Regulatory provide this information orally to captioning functionality. See 47 CFR Flexibility Analysis (‘‘IRFA’’) was consumers calling the MVPD’s customer incorporated in the Notice of Proposed 79.101(m). As we explained in the 147 service line.145 Second, MVPDs must NPRM, we find that these requirements Rulemaking in this proceeding. The provide notice on their official Web are no longer necessary. As of March 1, Federal Communications Commission sites about the availability of accessible 2007, our rules require that all (‘‘Commission’’) sought written public navigation devices. MVPDs must televisions contain a digital television comment on the proposals in the NPRM, prominently display accessibility receiver, and, by extension, a digital including comment on the IRFA. The information on their Web sites in a way closed captioning decoder. CEA and Commission received no comments on that makes it available (and in an NAD/Consumer Groups, the only two the IRFA. This present Final Regulatory accessible format) to all current and commenters who addressed our Flexibility Analysis (‘‘FRFA’’) conforms 148 potential customers of their products tentative conclusion to eliminate the to the RFA. and services. For example, we agree analog closed captioning labeling with DIRECTV that providing notice requirements, both agree that the 1. Need for, and Objectives of, the through a link on the home page would requirements are unnecessary because Report and Order be appropriate. Also, while we do not all television receivers that are currently specify the content of these sold are required to support the features 138. Pursuant to the Twenty-First notifications, we agree with Consumer of digital closed captioning, which are Century Communications and Video Groups that the notices must publicize more extensive than those of analog Accessibility Act of 2010 (‘‘CVAA’’), the the availability of accessible devices and closed captioning. Given that it appears R&O adopts rules requiring the solutions and convey ‘‘the means for that no televisions are being accessibility of user interfaces on digital making requests for accessible manufactured in or imported into the apparatus and navigation devices used equipment and the specific person, United States today that implement only to view video programming for office or entity to whom such requests a subset of the analog closed captioning individuals with disabilities. The rules are to be made.’’ In the accompanying functionality, we believe that it is no we adopt here will effectuate Congress’s FNPRM, we seek comment on whether longer appropriate to continue requiring goals in enacting Sections 204 and 205 additional notification requirements on the labeling of television receivers that MVPDs are necessary and, if so, what include analog tuners or the 146 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– requirement that user manuals indicate 612, has been amended by the Small Business those requirements should be. Regulatory Enforcement Fairness Act of 1996 if a device does not support all of the (‘‘SBREFA’’), Public Law 104–121, Title II, 110 Stat. 144 Notice to consumers about the availability of aspects of the analog closed captioning 857 (1996). The SBREFA was enacted as Title II of accessible devices takes on even more importance standard. the Contract With America Advancement Act of given that covered entities may be subject to 136. We also adopt our proposal to 1996 (‘‘CWAAA’’). different compliance deadlines and may have rename Part 79 and divide Part 79 into 147 See Accessibility of User Interfaces, and Video different equipment roll-out schedules. Programming Guides and Menus, MB Docket No. 145 We note that customer service representatives two subparts; the first subpart includes 12–108, Notice of Proposed Rulemaking, 28 FCC are not required to repeat this required notice to a rules applying to video programming Rcd 8506 (2013) (‘‘NPRM’’). repeat caller about the same inquiry. owners, providers, and distributors and 148 See 5 U.S.C. 604.

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of the CVAA by: (1) Enabling small MVPDs,’’ and in which it that they own and/or lease for the individuals who are blind or visually recommended that the Commission transmission of voice, data, text, sound, impaired to more easily access video exempt small MVPDs serving fewer than and video using wired programming on a range of video 20,000 subscribers from the proposed telecommunications networks. devices; and (2) enabling consumers rule and adopt a delayed compliance Transmission facilities may be based on who are deaf or hard of hearing to more schedule for all small MVPDs. SBA also a single technology or a combination of easily activate closed captioning on shared concerns regarding compliance technologies. Establishments in this video devices. Specifically, and as with the RFA in the IRFA, which we industry use the wired discussed more thoroughly below, the address in this FRFA by providing a telecommunications network facilities rules require that digital apparatus discussion of the potential that they operate to provide a variety of subject to Section 204 make appropriate disproportionate impact of the final services, such as wired telephony built-in apparatus functions (i.e., the rules on small entities, as well as steps services, including VoIP services; wired functions used to receive, play back, taken to mitigate those impacts. (cable) audio and video programming and display video programming) distribution; and wired broadband 3. Description and Estimate of the accessible to individuals who are blind Internet services.’’ The SBA has Number of Small Entities to Which the or visually impaired. The rules also developed a small business size Rules Will Apply require that navigation devices subject standard for this category, which is: all to Section 205 make on-screen text 142. The RFA directs the Commission such businesses having 1,500 or fewer menus and guides used for the display to provide a description of and, where employees. Census data for 2007 shows or selection of multichannel video feasible, an estimate of the number of that there were 31,996 establishments programming audibly accessible, and small entities that will be affected by the that operated that year. Of this total, that they make the controls used to rules adopted in the R&O.149 The RFA 30,178 establishments had fewer than access covered functions (i.e., power on/ generally defines the term ‘‘small 100 employees, and 1,818 off, volume adjust/mute) accessible to entity’’ as having the same meaning as establishments had 100 or more individuals who are blind or visually the terms ‘‘small business,’’ ‘‘small employees. Therefore, under this size impaired. Covered entities must also organization,’’ and ‘‘small governmental standard, we estimate that the majority provide a mechanism reasonably jurisdiction.’’ 150 In addition, the term of businesses can be considered small comparable to a button, key, or icon for ‘‘small business’’ has the same meaning entities. accessing certain accessibility features. as the term ‘‘small business concern’’ 144. Cable Companies and Systems. By imposing new requirements with under the Small Business Act.151 A The Commission has also developed its regard to the accessibility of user ‘‘small business concern’’ is one which: own small business size standards for interfaces and video programming (1) Is independently owned and the purpose of cable rate regulation. guides and menus, the regulations operated; (2) is not dominant in its field Under the Commission’s rules, a ‘‘small adopted herein further the purpose of of operation; and (3) satisfies any cable company’’ is one serving 400,000 the CVAA to ‘‘update the additional criteria established by the or fewer subscribers nationwide. communications laws to help ensure SBA.152 Small entities that are directly Industry data shows that there were that individuals with disabilities are affected by the rules adopted in the R&O 1,141 cable companies at the end of able to fully utilize communications include manufacturers of digital June 2012. Of this total, all but 10 services and equipment and better apparatus, MVPDs leasing or selling incumbent cable companies are small access video programming.’’ navigation devices, equipment under this size standard. In addition, 139. Legal Basis. The authority for the manufacturers of navigation devices that under the Commission’s rate regulation action taken in this rulemaking is place devices into the chain of rules, a ‘‘small system’’ is a cable system contained in the Twenty-First Century commerce for sale to consumers, and serving 15,000 or fewer subscribers. Communications and Video other manufacturers of navigation Current Commission records show 4,945 Accessibility Act of 2010, Public Law device hardware and software. cable systems nationwide. Of this total, 111–260, 124 Stat. 2751, and Sections 143. Cable Television Distribution 4,380 cable systems have less than 4(i), 4(j), 303(aa), 303(bb), and 716(g) of Services. Since 2007, these services 20,000 subscribers, and 565 systems the Communications Act of 1934, as have been defined within the broad have 20,000 subscribers or more, based amended, 47 U.S.C. 154(i), 154(j), economic census category of Wired on the same records. Thus, under this 303(aa), 303(bb), and 617(g). Telecommunications Carriers, which standard, we estimate that most cable was developed for small wireline systems are small. 2. Summary of Significant Issues Raised 145. Cable System Operators in Response to the IRFA businesses. This category is defined as follows: ‘‘This industry comprises (Telecom Act Standard). The 140. Summary of Significant Issues establishments primarily engaged in Communications Act of 1934, as Raised by Public Comments. No public operating and/or providing access to amended, also contains a size standard comments were filed in response to the transmission facilities and infrastructure for small cable system operators, which IRFA. is ‘‘a cable operator that, directly or 141. Response to Comments filed by 149 5 U.S.C. 603(b)(3). through an affiliate, serves in the the Small Business Administration. The 150 Id. 601(6). aggregate fewer than 1 percent of all Small Business Administration (‘‘SBA’’) 151 Id. 601(3) (incorporating by reference the subscribers in the United States and is Office of Advocacy filed an ex parte definition of ‘‘small-business concern’’ in the Small not affiliated with any entity or entities letter in MB Docket No. 12–108, in Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. whose gross annual revenues in the 601(3), the statutory definition of a small business which it forwarded the concerns of applies ‘‘unless an agency, after consultation with aggregate exceed $250,000,000.’’ There small multichannel video programming the Office of Advocacy of the Small Business are approximately 56.4 million distributors (‘‘MVPDs’’), including those Administration and after opportunity for public incumbent cable video subscribers in affiliated with rural local exchange comment, establishes one or more definitions of the United States today. Accordingly, an such term which are appropriate to the activities of carriers, ‘‘regarding the potential for the the agency and publishes such definition(s) in the operator serving fewer than 564,000 proposed rule to place a Federal Register.’’ subscribers shall be deemed a small disproportionate economic impact on 152 15 U.S.C. 632. operator, if its annual revenues, when

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combined with the total annual video distribution facilities that use covering cable services, which is Wired revenues of all its affiliates, do not closed transmission paths without using Telecommunications Carriers. The SBA exceed $250 million in the aggregate. any public right-of-way. They acquire has developed a small business size Based on available data, we find that all video programming and distribute it via standard for this category, which is: all but 10 incumbent cable operators are terrestrial wiring in urban and suburban such businesses having 1,500 or fewer small under this size standard. We note multiple dwelling units such as employees. Census data for 2007 shows that the Commission neither requests apartments and condominiums, and that there were 31,996 establishments nor collects information on whether commercial multiple tenant units such that operated that year. Of this total, cable system operators are affiliated as hotels and office buildings. SMATV 30,178 establishments had fewer than with entities whose gross annual systems or PCOs are now included in 100 employees, and 1,818 revenues exceed $250 million. Although the SBA’s broad economic census establishments had 100 or more it seems certain that some of these cable category, Wired Telecommunications employees. Therefore, under this size system operators are affiliated with Carriers, which was developed for small standard, we estimate that the majority entities whose gross annual revenues wireline businesses. Under this of businesses can be considered small exceed $250,000,000, we are unable at category, the SBA deems a wireline entities. In addition, we note that the this time to estimate with greater business to be small if it has 1,500 or Commission has certified some OVS precision the number of cable system fewer employees. Census data for 2007 operators, with some now providing operators that would qualify as small shows that there were 31,996 service. Broadband service providers cable operators under the definition in establishments that operated that year. (‘‘BSPs’’) are currently the only the Communications Act. Of this total, 30,178 establishments had significant holders of OVS certifications 146. Direct Broadcast Satellite (DBS) fewer than 100 employees, and 1,818 or local OVS franchises. The Service. DBS service is a nationally establishments had 100 or more Commission does not have financial or distributed subscription service that employees. Therefore, under this size employment information regarding the delivers video and audio programming standard, the majority of such entities authorized to provide OVS, via satellite to a small parabolic ‘‘dish’’ businesses can be considered small. some of which may not yet be antenna at the subscriber’s location. 148. Home Satellite Dish (HSD) operational. Thus, again, at least some DBS, by exception, is now included in Service. HSD or the large dish segment of the OVS operators may qualify as the SBA’s broad economic census of the satellite industry is the original small entities. category, Wired Telecommunications satellite-to-home service offered to Carriers, which was developed for small consumers, and involves the home 150. Wireless cable systems— wireline businesses. Under this reception of signals transmitted by Broadband Radio Service and category, the SBA deems a wireline satellites operating generally in the C- Educational Broadband Service. business to be small if it has 1,500 or band frequency. Unlike DBS, which Wireless cable systems use the fewer employees. Census data for 2007 uses small dishes, HSD antennas are Broadband Radio Service (BRS) and shows that there were 31,996 between four and eight feet in diameter Educational Broadband Service (EBS) to establishments that operated that year. and can receive a wide range of transmit video programming to Of this total, 30,178 establishments had unscrambled (free) programming and subscribers. In connection with the 1996 fewer than 100 employees, and 1,818 scrambled programming purchased from BRS auction, the Commission establishments had 100 or more program packagers that are licensed to established a small business size employees. Therefore, under this size facilitate subscribers’ receipt of video standard as an entity that had annual standard, the majority of such programming. Because HSD provides average gross revenues of no more than businesses can be considered small. subscription services, HSD falls within $40 million in the previous three However, the data we have available as the SBA-recognized definition of Wired calendar years. The BRS auctions a basis for estimating the number of Telecommunications Carriers. The SBA resulted in 67 successful bidders such small entities were gathered under has developed a small business size obtaining licensing opportunities for a superseded SBA small business size standard for this category, which is: all 493 Basic Trading Areas (BTAs). Of the standard formerly titled ‘‘Cable and such businesses having 1,500 or fewer 67 auction winners, 61 met the Other Program Distribution.’’ The employees. Census data for 2007 shows definition of a small business. BRS also definition of Cable and Other Program that there were 31,996 establishments includes licensees of stations authorized Distribution provided that a small entity that operated that year. Of this total, prior to the auction. At this time, we is one with $12.5 million or less in 30,178 establishments had fewer than estimate that of the 61 small business annual receipts. Currently, only two 100 employees, and 1,818 BRS auction winners, 48 remain small entities provide DBS service, which establishments had 100 or more business licensees. In addition to the 48 requires a great investment of capital for employees. Therefore, under this size small businesses that hold BTA operation: DIRECTV and DISH Network. standard, we estimate that the majority authorizations, there are approximately Each currently offer subscription of businesses can be considered small 392 incumbent BRS licensees that are services. DIRECTV and DISH Network entities. considered small entities. After adding each report annual revenues that are in 149. Open Video Services. The open the number of small business auction excess of the threshold for a small video system (OVS) framework was licensees to the number of incumbent business. Because DBS service requires established in 1996, and is one of four licensees not already counted, we find significant capital, we believe it is statutorily recognized options for the that there are currently approximately unlikely that a small entity as defined provision of video programming 440 BRS licensees that are defined as by the SBA would have the financial services by local exchange carriers. The small businesses under either the SBA wherewithal to become a DBS service OVS framework provides opportunities or the Commission’s rules. In 2009, the provider. for the distribution of video Commission conducted Auction 86, the 147. Satellite Master Antenna programming other than through cable sale of 78 licenses in the BRS areas. The Television (SMATV) Systems, also systems. Because OVS operators provide Commission offered three levels of known as Private Cable Operators subscription services, OVS falls within bidding credits: (i) A bidder with (PCOs). SMATV systems or PCOs are the SBA small business size standard attributed average annual gross revenues

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that exceed $15 million and do not 2,241 active EBS licenses. The 155. Radio and Television exceed $40 million for the preceding Commission estimates that of these Broadcasting and Wireless three years (small business) received a 2,241 licenses, the majority are held by Communications Equipment 15 percent discount on its winning bid; non-profit educational institutions and Manufacturing. The Census Bureau (ii) a bidder with attributed average school districts, which are by statute defines this category as follows: ‘‘This annual gross revenues that exceed $3 defined as small businesses. industry comprises establishments million and do not exceed $15 million 152. Incumbent Local Exchange primarily engaged in manufacturing for the preceding three years (very small Carriers (ILECs). Neither the radio and television broadcast and business) received a 25 percent discount Commission nor the SBA has developed wireless communications equipment. on its winning bid; and (iii) a bidder a small business size standard Examples of products made by these with attributed average annual gross specifically for incumbent local establishments are: transmitting and revenues that do not exceed $3 million exchange services. ILECs are included receiving antennas, cable television for the preceding three years in the SBA’s economic census category, equipment, GPS equipment, pagers, (entrepreneur) received a 35 percent Wired Telecommunications Carriers. cellular phones, mobile discount on its winning bid. Auction 86 Under this category, the SBA deems a communications equipment, and radio concluded in 2009 with the sale of 61 wireline business to be small if it has and television studio and broadcasting licenses. Of the 10 winning bidders, two 1,500 or fewer employees. Census data equipment.’’ The SBA has developed a bidders that claimed small business for 2007 shows that there were 31,996 small business size standard for this status won four licenses; one bidder that establishments that operated that year. category, which is: all such businesses claimed very small business status won Of this total, 30,178 establishments had having 750 or fewer employees. Census three licenses; and two bidders that fewer than 100 employees, and 1,818 data for 2007 shows that there were 939 claimed entrepreneur status won six establishments had 100 or more establishments that operated for part or licenses. employees. Therefore, under this size all of the entire year. Of those, 912 standard, the majority of such 151. In addition, the SBA’s placement operated with fewer than 500 businesses can be considered small. of Cable Television Distribution employees, and 27 operated with 500 or 153. Small Incumbent Local Exchange more employees. Therefore, under this Services in the category of Wired Carriers. We have included small Telecommunications Carriers is size standard, the majority of such incumbent local exchange carriers in establishments can be considered small. applicable to cable-based Educational this present RFA analysis. A ‘‘small 156. Audio and Video Equipment Broadcasting Services. Since 2007, these business’’ under the RFA is one that, Manufacturing. The Census Bureau services have been defined within the inter alia, meets the pertinent small defines this category as follows: ‘‘This broad economic census category of business size standard (e.g., a telephone Wired Telecommunications Carriers, communications business having 1,500 industry comprises establishments which was developed for small wireline or fewer employees), and ‘‘is not primarily engaged in manufacturing businesses. This category is defined as dominant in its field of operation.’’ The electronic audio and video equipment follows: ‘‘This industry comprises SBA’s Office of Advocacy contends that, for home entertainment, motor vehicles, establishments primarily engaged in for RFA purposes, small incumbent and public address and musical operating and/or providing access to local exchange carriers are not dominant instrument amplification. Examples of transmission facilities and infrastructure in their field of operation because any products made by these establishments that they own and/or lease for the such dominance is not ‘‘national’’ in are video cassette recorders, televisions, transmission of voice, data, text, sound, scope. We have therefore included small stereo equipment, speaker systems, and video using wired incumbent local exchange carriers in household-type video cameras, telecommunications networks. this RFA analysis, although we jukeboxes, and amplifiers for musical Transmission facilities may be based on emphasize that this RFA action has no instruments and public address a single technology or a combination of effect on Commission analyses and systems.’’ The SBA has developed a technologies. Establishments in this determinations in other, non-RFA small business size standard for this industry use the wired contexts. category, which is: all such businesses telecommunications network facilities 154. Competitive Local Exchange having 750 or fewer employees. Census that they operate to provide a variety of Carriers (CLECs), Competitive Access data for 2007 shows that there were 492 services, such as wired telephony Providers (CAPs), Shared-Tenant establishments in this category operated services, including VoIP services; wired Service Providers, and Other Local for part or all of the entire year. Of (cable) audio and video programming Service Providers. Neither the those, 488 operated with fewer than 500 distribution; and wired broadband Commission nor the SBA has developed employees, and four operated with 500 Internet services.’’ The SBA has a small business size standard or more employees. Therefore, under developed a small business size specifically for these service providers. this size standard, the majority of such standard for this category, which is: all These entities are included in the SBA’s establishments can be considered small. such businesses having 1,500 or fewer economic census category, Wired 4. Description of Projected Reporting, employees. Census data for 2007 shows Telecommunications Carriers. Under Recordkeeping, and Other Compliance that there were 31,996 establishments this category, the SBA deems a wireline Requirements for Small Entities that operated that year. Of this total, business to be small if it has 1,500 or 30,178 establishments had fewer than fewer employees. Census data for 2007 157. In this section, we describe the 100 employees, and 1,818 shows that there were 31,996 reporting, recordkeeping, and other establishments had 100 or more establishments that operated that year. compliance requirements adopted in the employees. Therefore, under this size Of this total, 30,178 establishments had R&O and consider whether small standard, we estimate that the majority fewer than 100 employees, and 1,818 entities are affected disproportionately of businesses can be considered small establishments had 100 or more by these requirements. entities. In addition to Census data, the employees. Therefore, under this size 158. Reporting Requirements. The Commission’s internal records indicate standard, the majority of such R&O does not adopt reporting that as of September 2012, there are businesses can be considered small. requirements.

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159. Recordkeeping Requirements. Commission or with the covered entity the accessibility solution provided.156 In The R&O adopts certain recordkeeping responsible for the problem and provide addition, they must protect personal requirements, which are applicable to the covered entity 30 days to respond in information gathered from consumers covered small entities. Specifically, the writing to the complaint. In response to through their verification procedures. following provisions will require a complaint, a covered entity must file 160. Other Compliance Requirements. covered entities to make a filing and, with the Commission sufficient records Under Section 204, the entities thus, to make and keep records of the and documentation to prove that it was responsible for compliance are digital filing: (and remains) in compliance with the apparatus manufacturers. Under Section • Achievability—The R&O Commission’s rules. The procedures 205, the entities responsible for implements rules for determining also require covered entities to make compliance are MVPDs leasing or whether compliance with Section 204 contact information available to selling navigation devices, equipment and 205 accessibility requirements is consumers for the receipt and handling manufacturers of navigation devices that ‘‘achievable.’’ When faced with a of written complaints.154 place devices into the chain of complaint or enforcement action for a • Notification Requirements—The commerce for sale to consumers, and violation of the requirements adopted R&O requires MVPDs to notify other manufacturers of navigation herein pursuant to either Section 204 or consumers that navigation devices with device hardware and software. The R&O Section 205 of the CVAA, a covered the required accessibility features are adopts the following compliance entity may raise as a defense that a available to consumers who are blind or requirements, which are applicable to particular apparatus or navigation visually impaired ‘‘upon request.’’ covered small entities: device does not comply with the rules Specifically, MVPDs must clearly and • Requires apparatus covered by because compliance was not achievable conspicuously inform consumers about Section 204—i.e., digital apparatus under the statutory factors.153 the availability of accessible navigation designed to receive or play back video Alternatively, a covered entity may seek devices when providing information programming transmitted a determination from the Commission about equipment options in response to simultaneously with sound—to make that compliance with all of our rules is a consumer inquiry about service, ‘‘appropriate’’ built-in functions (i.e., not achievable before manufacturing or accessibility, or other issues 155 and also those used for the reception, play back, importing the apparatus or navigation must provide notice about the or display of video programming) device. availability of accessible navigation accessible to individuals who are blind • Alternate Means of Compliance— devices on their official Web site, such or visually impaired. At this time, the The R&O permits entities covered by as a through a link on their home page. ‘‘appropriate’’ built-in functions under Section 204 to comply with the The notices must publicize the Section 204 are limited to the 11 requirements adopted pursuant to that availability of accessible devices and essential functions identified by the section by alternate means. A covered solutions and convey the means for Video Programming Accessibility entity seeking to use an alternate means making requests for accessible Advisory Committee (‘‘VPAAC’’), an of compliance with Section 204 may equipment and the specific person, advisory committee comprised of either: (i) request a Commission office or entity to whom such requests industry and consumer groups determination that the proposed are to be made. established by the Chairman of the alternate means satisfies the statutory • Verification Requirements—The Commission pursuant to the CVAA. • requirements through a request R&O allows covered entities to require Requires navigation devices pursuant to § 1.41 of the Commission’s verification of eligibility (as an covered by Section 205 to make on- rules; or (ii) claim in defense to a individual who is blind or visually screen text menus and guides for the complaint or enforcement action that impaired) to the extent the covered display or selection of multichannel the Commission should determine that entity chooses to rely on an accessibility video programming audibly accessible. the party’s actions were permissible solution that involves providing the Nine of the 11 essential functions alternate means of compliance. identified by the VPAAC are used for • consumer with sophisticated equipment Complaint Procedures—The R&O and/or services at a price that is lower the display or selection of video adopts procedures for consumer than that offered to the general public. programming and must be made audibly complaints alleging a violation of the With respect to proof of eligibility, accessible on navigation devices to the Commission’s rules requiring covered entities must allow a consumer extent they are accessed through on- accessibility of user interfaces and video to provide a wide array of screen text menus and guides. In programming guides and menus. These documentation to verify eligibility for addition, two functions (power on/off procedures allow complainants to file and volume adjust/mute) must be made their complaints either with the 154 Covered entities are encouraged to include accessible (but not necessarily audibly this information with the other accessibility accessible) because they are controls 153 Achievability is determined through a four information they must post on their official Web necessary to access covered functions. factor analysis that examines: ‘‘(1) The nature and site and are expected to prominently display their • Requires apparatus covered by cost of the steps needed to meet the requirements contact information in a way that makes it available of this section with respect to the specific and accessible to all consumers of their products Section 204 to provide access to closed equipment or service in question. (2) The technical and services. The R&O emphasizes that such notice and economic impact on the operation of the should be provided in a location that is 156 In order to ensure that fulfilling such manufacturer or provider and on the operation of conspicuous to consumers and accessible to those verification requests and the processes needed to the specific equipment or service in question, who are blind or visually impaired, and requires verify the consumer’s eligibility to receive the including on the development and deployment of covered entities to make available and accessible device will not be burdensome to consumers, the new communications technologies. (3) The type of the contact information of a person with primary R&O strongly encourages covered entities to consult operations of the manufacturer or provider. (4) The responsibility for accessibility compliance issues. with people who are blind and visually impaired. extent to which the service provider or Covered entities must provide that person’s name In addition, although not required, the R&O manufacturer in question offers accessible services and title or office, telephone number, fax number, encourages a covered entity to seek a determination or equipment containing varying degrees of postal mailing address, and email address. Covered from the Commission’s Consumer and functionality and features, and offered at differing entities must keep this information current and Governmental Affairs Bureau as to whether its price points.’’ Through this analysis, an otherwise update it within 10 business days of any change. proposed verification procedures would be covered entity can demonstrate that accessibility is 155 The R&O does not require a specific means of burdensome to consumers before implementing not achievable. notification for these notices. such procedures.

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captioning and video description Æ Requires that a covered entity procedures, and other technical through a mechanism for each that is relying on a separate solution must requirements for meeting the reasonably comparable to a button, key, make available such solution ‘‘within a accessibility requirements of those or icon, and requires navigation devices reasonable time,’’ defined as a period of sections. In addition, entities covered by covered by Section 205 to provide time comparable to the time in which it Section 205 of the CVAA have access to closed captioning through a generally provides navigation devices to ‘‘maximum flexibility to select the mechanism reasonably comparable to a consumers who are not blind or visually manner of compliance’’ with Section button, key, or icon. With regard to impaired; 303(bb)(1) of the Act, as well as Section 205, covered entities must Æ Concludes that a covered entity that ‘‘maximum flexibility in the selection of ensure that mechanisms reasonably provides separate equipment or software the means for compliance with Section comparable to a button, key, or icon for may not impose on a requesting 303(bb)(2)’’ of the Act. Entities covered activating closed captioning are consumer who is blind or visually by Section 204 may build in provided on all their navigation devices impaired any charges beyond those it accessibility on digital apparatus or they (i.e., such mechanisms are not subject to has imposed for the non-compliant can use alternate means to comply with the ‘‘upon request’’ language in Section navigation device. In cases where an the accessibility requirements of that 205). entity provides accessibility section. Entities covered by Section 205 • Requires entities covered by Section functionality in only select devices, this may build in solutions to make 205 to provide accessible navigation constitutes an ‘‘other solution’’ under navigation devices accessible or they devices to requesting blind or visually Section 205(b)(4)(B) for which an entity may use separate solutions (such as impaired individuals ‘‘within a can impose no additional charge. For software, peripheral devices, specialized reasonable time,’’ defined as a time example, if a covered entity’s only consumer premises equipment, a period comparable to the time it takes solution is to provide a sophisticated network-based service, or other such entity to provide navigation navigation device (one with enhanced solution) to ensure accessibility. No devices generally to other consumers. features and functions) to a consumer commenter provided information • Requires entities covered by Section that requests a less sophisticated device, concerning the costs and administrative 205 to permit consumers who are blind it cannot charge the consumer more burdens associated with the R&O’s or visually impaired to request than the price of the less sophisticated compliance requirements. Although the compliant devices through any means device; and record does not contain specific Æ Concludes that if a covered entity’s that they generally make available to information about the costs of chosen manner of compliance involves other consumers that request navigation compliance, covered entities have a software solution that must be devices. flexibility to choose the most cost- • operated on a third-party device (e.g., a effective solution possible, and we Requires a manufacturer that laptop, tablet, smart phone) or if anticipate that some solutions may be provides navigation devices at retail to additional services are required to make considerably less costly than others. For requesting blind or visually impaired use of the device, this manner of example, MVPDs may be able to consumers to make a good faith effort to compliance constitutes an ‘‘other purchase an accessible navigation have retailers make available compliant solution’’ under Section 205(b)(4)(B); device (e.g., TiVo) and provide it to a navigation devices to the same extent thus, the covered entity must provide requesting customer who is blind or they make available navigation devices that solution—i.e., the software, third- visually impaired to satisfy their to other consumers generally. party device, and any service needed to • accessibility obligations, which may be Requires entities covered by Section use the accessibility features—to the significantly less costly than having to 205 to ensure that any means they requesting individual at no additional employ to accept requests for accessible charge. develop a built-in solution and make devices are not more burdensome to • Sets a three-year compliance corresponding changes to their headend blind or visually impaired individuals deadline by which covered entities must facility. As discussed below, MVPD than the means they employ to provide generally comply with the requirements commenters said they do not know how navigation devices generally to other of Sections 204 and 205, and sets a five- they will comply, only that they expect consumers. year compliance deadline by which that, whatever means is used, the costs • Requires entities covered by Section certain mid-sized and smaller MVPD will likely be greater for smaller entities 205 that rely on separate equipment or operators and small MVPD systems than for larger ones. software (‘‘separate solution’’) to must comply with the requirements of 162. In the record of this proceeding, achieve accessibility under Section Section 205. MVPDs, in particular, have expressed 205(b)(4) to provide such solution to a 161. Potential for disproportionate concern regarding the potential for the requesting individual who is blind or impact on small entities. As required by proposed rule to place a visually impaired. In addition, the R&O: Sections 204 and 205 of the CVAA, the disproportionate economic impact on Æ Requires that if a non-compliant rules require covered entities, such as smaller MVPDs. Industry commenters, navigation device has any functions that equipment manufacturers and MVPD such as NCTA and NTCA, state that the are required to be made accessible service providers, to ensure that user proposed rules may have greater pursuant to the rules we adopt in the interfaces and video programming impacts on smaller companies than R&O, any separate solution relied upon guides on digital apparatus and larger ones, and that ‘‘[s]maller cable to achieve accessibility must make all of navigation devices used to view video operators do not have the financial those functions accessible or enable the programming are accessible to wherewithal to develop these solutions accessibility of those functions; consumers with disabilities (unless on their own and typically rely on the Æ Requires that a separate solution be doing such is not achievable). Neither research and development efforts of the provided in a manner that is not more the statute nor the rules mandate a larger operators prior to deploying new burdensome to requesting blind or specific means of compliance. Indeed, equipment and services to their visually impaired individuals than the Sections 204 and 205 of the CVAA customers.’’ ACA states that manner in which other consumers restrict the Commission from specifying ‘‘compliance with the accessible user generally obtain navigation devices; the technical standards, protocols, guide requirements within a three-year

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timeframe will be challenging for all but considered alternatives where possible, means of compliance. The Commission the very largest MVPDs because there is as directed by the RFA, to minimize will evaluate these filings on a case-by- substantial uncertainty about how economic impact on small entities, we case basis. In addition, entities covered accessibility requirements will be emphasize that our action is governed by Section 205 of the CVAA have implemented, what technologies and by the congressional mandate contained ‘‘maximum flexibility to select the equipment will be available for in Sections 204 and 205 of the CVAA. manner of compliance’’ with Section operators to meet them, and when they 166. In formulating the final rules, 303(bb)(1) of the Act, as well as will be made commercially available.’’ however, the Commission has ‘‘maximum flexibility in the selection of Regardless of the solution ultimately considered alternatives to minimize the the means for compliance with Section employed, MVPDs explain that, because economic impact on small entities. As 303(bb)(2)’’ of the Act. Individual of their relatively diminished discussed below, covered entities entities, including small entities, can purchasing power, small MVPDs will (including small entities) may avoid benefit from the flexibility provided by likely face higher prices than large potentially economically burdensome these provisions. MVPDs for technology solutions compliance with certain requirements if 169. Finally, in response to industry’s developed to meet the statute’s accessibility is not ‘‘achievable’’ and are request, the Commission adopted a two- accessibility requirements. Therefore, afforded flexibility with respect to the year delay in compliance with the while the economic impacts of the rules means of compliance. In addition, based requirements of Section 205 for certain are uncertain at this time, it seems likely on the record in the proceeding, certain mid-sized and smaller MVPD operators that the rules may disproportionately mid-sized and smaller MVPD operators and small MVPD systems. Specifically, impact small MVPDs. As a result, the (i.e., those with 400,000 or fewer the later deadline will apply to: (1) Commission takes steps to minimize subscribers) and small MVPD systems MVPD operators with 400,000 or fewer this impact on small entities (see (i.e., those with 20,000 or fewer subscribers; and (2) MVPD systems with discussion below), consistent with the subscribers that are not affiliated with 20,000 or fewer subscribers that are not statutory mandate. an operator serving more than 10 affiliated with an operator serving more 163. We note that it would be percent of all MVPD subscribers) are than 10 percent of all MVPD premature to undertake the formal cost- afforded more time to comply with the subscribers. The delayed compliance of-compliance analysis required by requirements of Section 205. deadline (which will be five (5) years 167. With regard to the accessibility Section D of the RFA because the from the date the R&O is published in requirements adopted pursuant to flexibility granted to covered entities in the Federal Register) for such smaller Sections 303(aa)(1) and 303(bb)(1) of the accordance with Sections 204 and 205 entities will help minimize the Act, the R&O adopts procedures of the CVAA permits a wide array of economic impact of Section 205’s enabling the Commission to grant means of compliance with varied costs, requirements and addresses the the Commission does not yet know how exemptions to the rules where a potential for disproportionate impact covered entities will choose to comply petitioner has shown that compliance is discussed above. with the accessibility requirements, and not achievable (i.e., cannot be more concrete financial data based on accomplished with reasonable effort or 170. We note that the Commission experience is not available because the expense). This process will allow the also considered, but declined at this rules have not yet gone into effect. Commission to address the impact of time to grant, a permanent exemption the rules on individual entities, for small cable systems with 20,000 or 5. Steps Taken To Minimize Significant including smaller entities, on a case-by- fewer subscribers, as permitted by Economic Impact on Small Entities and case basis and to modify the application Section 205(b)(2). However, all small Significant Alternatives Considered of the rules to accommodate individual cable systems other than those affiliated 164. The RFA requires an agency to circumstances, which can reduce the with an operator serving more than 10.1 describe any significant alternatives that costs of compliance for these entities. million subscribers will benefit from the it has considered in reaching its We note that two of the four statutory delayed compliance deadline described proposed approach, which may include factors that the Commission will above. In addition, we note that, if the the following four alternatives (among consider in determining achievability delayed compliance deadline proves others): (1) The establishment of are particularly relevant to small insufficient to allow small systems to differing compliance or reporting entities: the nature and cost of the steps implement an affordable solution, the requirements or timetables that take into needed to meet the requirements, and Commission may consider requests for a account the resources available to small the technical and economic impact on further extension on an individual or entities; (2) the clarification, the entity’s operations. industry-wide basis. Whereas the consolidation, or simplification of 168. As an additional means of uncertainty surrounding how covered compliance or reporting requirements reducing the costs of compliance, the small entities will comply makes it under the rule for small entities; (3) the R&O provides that entities covered by reasonable to afford a later compliance use of performance, rather than design, Section 204 of the CVAA may use deadline, it also means it would be standards; and (4) an exemption from alternate means of compliance for the premature to assume that small cable coverage of the rule, or any part thereof, rules adopted pursuant to this section. systems will never be able to comply for small entities.157 The NPRM invited Under this approach, the Commission with the requirements of Section 205. comment on issues that had the will permit an entity that seeks to use 171. Overall, we believe we have potential to have significant impact on an alternate means of compliance to file appropriately considered both the some small entities. a request pursuant to § 1.41 of the interests of individuals with disabilities 165. The rules adopted in the R&O Commission’s rules for a determination and the interests of the entities who will may have a significant economic impact that the proposed alternate means of be subject to the rules, including those in some cases, and that impact may compliance satisfies the requirements, that are smaller entities, consistent with affect a substantial number of small or to claim in defense to a complaint or Congress’ goal to ‘‘update the entities. Although the Commission has enforcement action that the Commission communications laws to help ensure should determine that the party’s that individuals with disabilities are 157 5 U.S.C. 603(c)(1)–(c)(4). actions were permissible alternate able to fully utilize communications

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services and equipment and better presentation was made, and (2) the authority found in sections 4(i), 4(j), access video programming.’’ summarize all data presented and 303(r), 303(aa), 303(bb), and 716(g) of arguments made during the the Communications Act of 1934, as 6. Report to Congress presentation. If the presentation amended, 47 U.S.C. 154(i), 154(j), 172. The Commission will send a consisted in whole or in part of the 303(r), 303(aa), 303(bb), and 617(g), the copy of the R&O, including this FRFA, presentation of data or arguments Commission’s rules are hereby amended in a report to be sent to Congress already reflected in the presenter’s as set forth in Appendix B. pursuant to the Congressional Review written comments, memoranda or other 158 179. It is further ordered that we Act. In addition, the Commission will filings in the proceeding, the presenter delegate authority to the Media Bureau send a copy of the R&O, including this may provide citations to such data or and the Consumer and Governmental FRFA, to the Chief Counsel for arguments in his or her prior comments, Affairs Bureau to consider all requests Advocacy of the SBA. The R&O and memoranda, or other filings (specifying for declaratory rulings pursuant to § 1.2 FRFA (or summaries thereof) will also the relevant page and/or paragraph 159 of the Commission’s rules, 47 CFR 1.2, be published in the Federal Register. numbers where such data or arguments all waiver requests pursuant to § 1.3 of can be found) in lieu of summarizing B. Paperwork Reduction Act the Commission’s rules, 47 CFR 1.3, and them in the memorandum. Documents all informal requests for Commission 173. The R&O contains new and shown or given to Commission staff modified information collection action pursuant to § 1.41 of the during ex parte meetings are deemed to Commission’s rules, 47 CFR 1.41, filed requirements subject to the Paperwork be written ex parte presentations and under these rules and pursuant to Reduction Act of 1995 (PRA), Public must be filed consistent with Sections 204 and 205 of the CVAA as Law 104–13. The requirements will be § 1.1206(b). In proceedings governed by discussed herein. submitted to the Office of Management § 1.49(f) or for which the Commission and Budget (OMB) for review under has made available a method of 180. It is further ordered that the Section 3507(d) of the PRA. OMB, the electronic filing, written ex parte Commission’s Consumer and general public, and other Federal presentations and memoranda Governmental Affairs Bureau, Reference agencies will be invited to comment on summarizing oral ex parte Information Center, shall send a copy of the information collection requirements presentations, and all attachments the Report and Order and Further contained in this proceeding. The thereto, must be filed through the Notice of Proposed Rulemaking in MB Commission will publish a separate electronic comment filing system Docket No. 12–108, including the Final document in the Federal Register at a available for that proceeding, and must Regulatory Flexibility Analysis and the later date seeking these comments. In be filed in their native format (e.g., .doc, Initial Regulatory Flexibility Analysis, addition, we note that pursuant to the .xml, .ppt, searchable .pdf). Participants to the Chief Counsel for Advocacy of the Small Business Paperwork Relief Act of in this proceeding should familiarize Small Business Administration. 2002 (SBPRA), Public Law 107–198, see themselves with the Commission’s ex 181. It is further ordered that the 44 U.S.C. 3506(c)(4), we seek specific parte rules. Commission shall send a copy of the comment on how the Commission might E. Additional Information Report and Order and Further Notice of further reduce the information Proposed Rulemaking in MB Docket No. collection burden for small business 176. For additional information on 12–108 in a report to be sent to Congress concerns with fewer than 25 employees. this proceeding, contact Adam and the Government Accountability Copeland, [email protected], or C. Congressional Review Act Office pursuant to the Congressional Maria Mullarkey, Review Act, see 5 U.S.C. 801(a)(1)(A). 174. The Commission will send a [email protected], of the Media copy of the R&O in MB Docket No. 12– Bureau, Policy Division, (202) 418– List of Subjects in 47 CFR Part 79 108 in a report to be sent to Congress 2120. Cable television operators, and the Government Accountability IX. Ordering Clauses Communications equipment, Office pursuant to the Congressional Multichannel video programming Review Act, see 5 U.S.C. 801(a)(1)(A). 177. Accordingly, it is ordered that, pursuant to the Twenty-First Century distributors (MVPDs), Satellite D. Ex Parte Rules Communications and Video television service providers. 175. Permit-But-Disclose. This Accessibility Act of 2010, Public Law Federal Communications Commission. proceeding shall be treated as a ‘‘permit- 111–260, 124 Stat. 2751, and the Sheryl D. Todd, but-disclose’’ proceeding in accordance authority found in sections 4(i), 4(j), Deputy Secretary. with the Commission’s ex parte rules. 303(r), 303(u), 303(aa), 303(bb), and Persons making ex parte presentations 716(g) of the Communications Act of For the reasons discussed in the must file a copy of any written 1934, as amended, 47 U.S.C. 154(i), preamble, the Federal Communications presentation or a memorandum 154(j), 303(r), 303(u), 303(aa), 303(bb), Commission amends 47 CFR part 79 as summarizing any oral presentation and 617(g), the Report and Order and follows: within two business days after the Further Notice of Proposed Rulemaking presentation (unless a different deadline is adopted, effective January 21, 2014, PART 79—CLOSED CAPTIONING AND applicable to the Sunshine period except for 47 CFR 79.107(c), VIDEO DESCRIPTION OF VIDEO applies). Persons making oral ex parte 79.108(a)(5), 79.108(c)–(e), and 79.110, PROGRAMMING presentations are reminded that which shall become effective upon memoranda summarizing the announcement in the Federal Register ■ 1. The authority citation for part 79 presentation must (1) list all persons of OMB approval and an effective date continues to read as follows: attending or otherwise participating in of the rules. Authority: 47 U.S.C. 151, 152(a), 154(i), the meeting at which the ex parte 178. It is ordered that, pursuant to the 303, 307, 309, 310, 330, 544a, 613, 617. Twenty-First Century Communications 158 See 5 U.S.C. 801(a)(1)(A). and Video Accessibility Act of 2010, ■ 2. Revise the heading to part 79 to 159 See id. 604(b). Public Law 111–260, 124 Stat. 2751, and read as set forth above.

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■ 3. Designate §§ 79.100 through 79.106 programming in digital format transmitted channels and programs (e.g., via as Subpart A under the following simultaneously with sound that physical numeric or channel up/ heading: manufacturers direct consumers to install channel down buttons or via on screen after sale. The term software includes third- guides and menus). Subpart A—Video Programming party applications that are pre-installed on a (iv) Display Channel/Program Owners, Providers, and Distributors device by the manufacturer or that the manufacturer directs consumers to install Information. Function that allows the user to display channel or program * * * * * after sale. information. § 79.101 [Amended] Note 2 to paragraph (a)(1): This paragraph (v) Configuration—Setup. Function places no restrictions on the importing, that allows the user to access and ■ 4. In § 79.101, remove and reserve shipping, or sale of digital apparatus change configuration or setup options paragraph (m). manufactured before the applicable (e.g., configuration of video display and compliance deadline for this section. ■ 5. Revise § 79.103 section heading to audio settings, selection of preferred read as follows: (2) If on-screen text menus or other language for onscreen guides or menus, visual indicators built in to the digital etc.). § 79.103 Closed caption decoder apparatus are used to access the (vi) Configuration—CC Control. requirements for apparatus. appropriate built-in apparatus Function that allows the user to enable * * * * * functions, manufacturers of the digital or disable the display of closed apparatus must ensure that those captioning. ■ 6. Add Subpart B to part 79 consisting functions are accompanied by audio (vii) Configuration—CC Options. of §§ 79.107 through 79.110 to read as output that is either integrated or Function that allows the user to modify follows: peripheral to the digital apparatus, so the display of closed caption data (e.g., Subpart B—Apparatus that such menus or indicators are configuration of the font size, font color, Sec. accessible to and usable by individuals background color, opacity, etc.). 79.107 User interfaces provided by digital who are blind or visually impaired in (viii) Configuration—Video apparatus. real time. Description Control. Function that 79.108 Video programming guides and (3) For appropriate built-in digital allows the user to enable or disable the menus provided by navigation devices. apparatus functions that are not output of video description (i.e., allows 79.109 Activating accessibility features. accessed through on screen text menus the user to change from the main audio 79.110 Complaint procedures for user or other visual indicators, i.e., those that to the secondary audio stream that interfaces, menus and guides, and activating accessibility features on digital are not required to be accompanied by contains video description, and from the apparatus and navigation devices. audio output in accordance with secondary audio stream back to the paragraph (a)(2) of this section, main audio). Subpart B—Apparatus manufacturers of digital apparatus must (ix) Display Configuration Info. make such functions accessible to Function that allows the user to display § 79.107 User interfaces provided by individuals who are blind or visually how user preferences are currently digital apparatus. impaired by ensuring that the input, configured. (a)(1) A manufacturer of digital control, and mechanical functions are (x) Playback Functions. Function that apparatus manufactured in or imported locatable, identifiable, and operable in allows the user to control playback for use in the United States and accordance with each of the following, functions (e.g., pause, play, rewind, fast designed to receive or play back video assessed independently: forward, stop, and record). programming transmitted in digital (i) Operable without vision. The (xi) Input Selection. Function that format simultaneously with sound, digital apparatus must provide at least allows the user to select their preferred including apparatus designed to receive one mode that does not require user input source. or display video programming vision. (b) Compliance deadline. Compliance transmitted in digital format using (ii) Operable with low vision and with the requirements of this section is Internet protocol, must ensure that limited or no hearing. The digital required no later than December 20, digital apparatus be designed, apparatus must provide at least one 2016; except that compliance with the developed, and fabricated so that mode that permits operation by users requirements of this section is required control of appropriate built-in functions with visual acuity between 20/70 and no later than December 20, 2021 for the included in the digital apparatus are 20/200, without relying on audio following digital apparatus: accessible to and usable by individuals output. (1) Display-only monitors and video who are blind or visually impaired. (iii) Operable with little or no color projectors; (2) Devices that are primarily Digital apparatus do not include perception. The digital apparatus must designed to capture and display still navigation devices as defined in provide at least one mode that does not and/or moving images consisting of § 76.1200 of this chapter. Manufacturers require user color perception. consumer generated media, or of other must comply with the provisions of this (4) Appropriate built-in apparatus images that are not video programming section only if achievable as defined in functions are those functions that are as defined under § 79.4(a)(1) of this part, § 79.107(c)(2). used for receiving, playing back, or displaying video programming, and and that have limited capability to Note 1 to paragraph (a)(1): The term digital include the following functions: display video programming transmitted apparatus as used in this section includes the (i) Power On/Off. Function that allows simultaneously with sound; and physical device and the video player(s) the user to turn the device on or off. (3) Devices that are primarily capable of displaying video programming (ii) Volume Adjust and Mute. designed to display still images and that transmitted in digital format simultaneously with sound that manufacturers install into Function that allows the user to adjust have limited capability to display video the devices they manufacture before sale, the volume and to mute or un-mute the programming transmitted whether in the form of hardware, software, or volume. simultaneously with sound. a combination of both, as well as any video (iii) Channel/Program Selection. (c)(1) Achievable. Manufacturers of players capable of displaying video Function that allows the user to select digital apparatus:

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(i) May file a petition seeking a MVPDs must comply with the (ix) Input Selection. Function that determination from the Commission, provisions of this section only if doing allows the user to select their preferred pursuant to § 1.41 of this chapter, that so is achievable as defined in input source. compliance with the requirements of § 79.108(c)(2). (3) Manufacturers of navigation this section is not achievable, which the Note 1 to paragraph (a)(1): This paragraph devices and MVPDs covered by this Commission may grant upon a finding places no restrictions on the importing, section must ensure that the following that such compliance is not achievable, shipping, or sale of navigation devices functions are made accessible, as or manufactured before the applicable defined by § 79.107(a)(3), to individuals (ii) May raise as a defense to a compliance deadline for this section. who are blind or visually impaired: complaint or Commission enforcement (i) Power On/Off. Function that allows action that a particular digital apparatus Note 2 to paragraph (a)(1): In determining the user to turn the device on or off. does not comply with the requirements whether a particular device is considered a (ii) Volume Adjust and Mute. ‘‘navigation device’’ subject to the Function that allows the user to adjust of this section because compliance was requirements of this section, the Commission not achievable, and the Commission the volume and to mute or un-mute the will look to the device’s built-in functionality volume. may dismiss a complaint or Commission at the time of manufacture. enforcement action upon a finding that (4) With respect to navigation device such compliance is not achievable. (2) The following functions are used features and functions: (2) The petitioner or respondent must for the display or selection of (i) Delivered in software, the support a petition filed pursuant to multichannel video programming and requirements set forth in this section paragraph (c)(1) of this section or a must be made audibly accessible by shall apply to the manufacturer of such response to a complaint or Commission manufacturers of navigation devices and software; and enforcement action with sufficient MVPDs covered by this section when (ii) Delivered in hardware, the evidence to demonstrate that included in a navigation device and requirements set forth in this section compliance with the requirements of accessed through on-screen text menus shall apply to the manufacturer of such this section is not ‘‘achievable.’’ or guides: hardware. (5) Manufacturers of navigation ‘‘Achievable’’ means with reasonable (i) Channel/Program Selection. devices and MVPDs covered by this effort or expense. The Commission will Function that allows the user to select section must permit a requesting blind consider the following factors when channels and programs (e.g., via or visually impaired individual to determining whether compliance with physical numeric or channel up/ request an accessible navigation device the requirements of this section is not channel down buttons or via on screen through any means that such covered ‘‘achievable’’ under the factors set out in guides and menus). entities generally use to make available 47 U.S.C. 617(g): (ii) Display Channel/Program (i) The nature and cost of the steps Information. Function that allows the navigation devices to other consumers. needed to meet the requirements of this user to display channel or program Any such means must not be more section with respect to the specific information. burdensome to a requesting blind or visually impaired individual than the equipment or service in question; (iii) Configuration—Setup. Function means required for other consumers to (ii) The technical and economic that allows the user to access and obtain navigation devices. A impact on the operation of the change configuration or setup options manufacturer that provides navigation manufacturer or provider and on the (e.g., configuration of video display and devices at retail to requesting blind or operation of the specific equipment or audio settings, selection of preferred visually impaired consumers must make service in question, including on the language for onscreen guides or menus, a good faith effort to have retailers make development and deployment of new etc.). available compliant navigation devices communications technologies; (iv) Configuration—CC Control. to the same extent they make available (iii) The type of operations of the Function that allows the user to enable navigation devices to other consumers manufacturer or provider; and or disable the display of closed generally. (iv) The extent to which the service captioning. provider or manufacturer in question (6) Manufacturers of navigation (v) Configuration—CC Options. devices and MVPDs covered by this offers accessible services or equipment Function that allows the user to modify containing varying degrees of section must provide an accessible the display of closed caption data (e.g., navigation device to a requesting blind functionality and features, and offered configuration of the font size, font color, at differing price points. or visually impaired individual within a background color, opacity, etc.). reasonable time, defined as a time § 79.108 Video programming guides and (vi) Configuration—Video Description period comparable to the time that such menus provided by navigation devices. Control. Function that allows the user to covered entities generally provide (a)(1) Manufacturers that place enable or disable the output of video navigation devices to other consumers. navigation devices, as defined by description (i.e., allows the user to (7) Compliance through the use of § 76.1200 of this chapter, into the chain change from the main audio to the separate equipment or software. of commerce for purchase by secondary audio stream that contains Manufacturers of navigation devices and consumers, and multichannel video video description, and from the MVPDs covered by this section may programming distributors (‘‘MVPDs’’) as secondary audio stream back to the comply with the requirements of defined by § 76.1200 of this chapter that main audio). paragraphs (a)(1) through (a)(3) of this lease or sell such devices must ensure (vii) Display Configuration Info. section through the use of software, a that the on-screen text menus and Function that allows the user to display peripheral device, specialized consumer guides provided by navigation devices how user preferences are currently premises equipment, a network-based for the display or selection of configured. service or other solution, and shall have multichannel video programming are (viii) Playback Functions. Function maximum flexibility to select the audibly accessible in real time upon that allows the user to control playback manner of compliance. An entity that request by individuals who are blind or functions (e.g., pause, play, rewind, fast chooses to comply with paragraphs visually impaired. Manufacturers and forward, stop, and record). (a)(1) through (a)(3) of this section

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through the use of separate equipment Commission may dismiss a complaint or Web site format that is accessible to or software must: Commission enforcement action upon a people with disabilities. (i) Ensure that any software, finding that such compliance is not (e) Verification of eligibility. Entities peripheral device, equipment, service or achievable. covered by this section may only require solution relied upon achieves the (2) The petitioner or respondent must consumer verification of eligibility as an accessibility required by this section. If support a petition filed pursuant to individual who is blind or visually a navigation device has any functions paragraph (c)(1) of this section or a impaired to the extent the entity that are required to be made accessible response to a complaint or Commission chooses to rely on an accessibility pursuant to this section, any separate enforcement action with sufficient solution that involves providing the solution must make all of those evidence to demonstrate that consumer with sophisticated equipment functions accessible or enable the compliance with the requirements of and/or services at a price that is lower accessibility of those functions. this section is not ‘‘achievable.’’ than that offered to the general public. (ii) Provide any software, peripheral ‘‘Achievable’’ means with reasonable In this situation, entities covered by this device, equipment, service or solution effort or expense. The Commission will section must allow a consumer to in a manner that is not more consider the following factors when provide a wide array of documentation burdensome to a requesting blind or determining whether compliance with to verify eligibility for the accessibility visually impaired individual than the the requirements of this section is not solution provided. Entities covered by manner in which such entity generally ‘‘achievable’’ under the factors set out in this section that choose to require provides navigation devices to other 47 U.S.C. 617(g): verification of eligibility must comply consumers. (i) The nature and cost of the steps with the requirements of 47 U.S.C. (iii) Provide any software, peripheral needed to meet the requirements of this 338(i)(4)(A) and 47 U.S.C. 631(c)(1) to device, equipment, service or solution at section with respect to the specific protect personal information gathered no additional charge. equipment or service in question; from consumers through their (iv) Provide any software, peripheral (ii) The technical and economic verification procedures. device, equipment, service or solution impact on the operation of the within a reasonable time, defined as a § 79.109 Activating accessibility features. manufacturer or provider and on the (a) Requirements applicable to digital time period comparable to the time that operation of the specific equipment or such entity generally provides apparatus. (1) Manufacturers of digital service in question, including on the apparatus designed to receive or play navigation devices to other consumers. development and deployment of new (8) Manufacturers of navigation back video programming transmitted in communications technologies; devices and MVPDs covered by this digital format simultaneously with (iii) The type of operations of the section shall only be responsible for sound, including apparatus designed to manufacturer or provider; and compliance with the requirements of receive or display video programming (iv) The extent to which the service this section with respect to navigation transmitted in digital format using provider or manufacturer in question devices that such covered entities Internet protocol, with built-in closed- offers accessible services or equipment provide to a requesting blind or visually captioning capability must ensure that containing varying degrees of impaired individual. closed captioning can be activated (b) Compliance deadline. Compliance functionality and features, and offered through a mechanism that is reasonably with the requirements of this section is at differing price points. comparable to a button, key, or icon. required no later than December 20, (d) MVPD notices. Covered MVPDs Digital apparatus do not include 2016; except that compliance with the must notify consumers that navigation navigation devices as defined in requirements of this section is required devices with the required accessibility § 76.1200 of this chapter. no later than December 20, 2018 for the features are available to consumers who (2) Manufacturers of digital apparatus following covered entities: are blind or visually impaired upon designed to receive or play back video (1) MVPD operators with 400,000 or request as follows: programming transmitted in digital fewer subscribers as of year-end 2012; (1) When providing information about format simultaneously with sound, and equipment options in response to a including apparatus designed to receive (2) MVPD systems with 20,000 or consumer inquiry about service, or display video programming fewer subscribers that are not affiliated accessibility, or other issues, MVPDs transmitted in digital format using with an operator serving more than 10 must clearly and conspicuously inform Internet protocol, with built-in video percent of all MVPD subscribers as of consumers about the availability of description capability must ensure that year-end 2012. accessible navigation devices. video description can be activated (c)(1) Achievable. MVPDs and (2) MVPDs must provide notice on through a mechanism that is reasonably manufacturers of navigation device their official Web sites about the comparable to a button, key, or icon. hardware or software: availability of accessible navigation Digital apparatus do not include (i) May file a petition seeking a devices. MVPDs must prominently navigation devices as defined in determination from the Commission, display information about accessible § 76.1200 of this chapter. navigation devices and separate pursuant to § 1.41 of this chapter, that Note 1 to paragraph (a): The term digital compliance with the requirements of solutions on their Web sites in a way apparatus includes the physical device and this section is not achievable, which the that makes such information available to the video player(s) capable of displaying Commission may grant upon a finding all current and potential subscribers. video programming transmitted in digital that such compliance is not achievable, The notice must publicize the format simultaneously with sound that or availability of accessible devices and manufacturers install into the devices they (ii) May raise as a defense to a separate solutions and explain the manufacture before sale, whether in the form complaint or Commission enforcement means for making requests for accessible of hardware, software, or a combination of both, as well as any video players capable of action that a particular navigation equipment and the specific person, displaying video programming in digital device does not comply with the office or entity to whom such requests format transmitted simultaneously with requirements of this section because are to be made. All information required sound that manufacturers direct consumers compliance was not achievable, and the by this section must be provided in a to install after sale. The term software

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includes third-party applications that are pre- Bureau by any reasonable means, such writing to the Commission and the installed on a device by the manufacturer or as the Commission’s online informal complainant within 30 days after receipt that the manufacturer directs consumers to complaint filing system, letter, of the complaint from the Commission. install after sale. facsimile, telephone (voice/TRS/TTY), (5) In response to a complaint, the Note 2 to paragraph (a): This paragraph email, or some other method that would covered entity must file with the best accommodate the complainant’s places no restrictions on the importing, Commission sufficient records and disability. shipping, or sale of digital apparatus documentation to prove that it was (and manufactured before the applicable (2) A complaint should include the compliance deadline for this section. following information: remains) in compliance with the Commission’s rules. Conclusory or (b) Requirements applicable to (i) The complainant’s name, address, and other contact information, such as insufficiently supported assertions of navigation devices. Manufacturers that compliance will not carry the covered place navigation devices, as defined in telephone number and email address; (ii) The name and contact information entity’s burden of proof. If the covered § 76.1200 of this chapter, into the chain of the covered entity; entity admits that it was not, or is not, of commerce for purchase by (iii) Information sufficient to identify in compliance with the Commission’s consumers, and MVPDs that lease or sell the software or digital apparatus/ such navigation devices with built in rules, it must file with the Commission navigation device used; sufficient records and documentation to closed-captioning capability must (iv) The date or dates on which the ensure that closed captioning can be explain the reasons for its complainant purchased, acquired, or noncompliance, show what remedial activated through a mechanism that is used, or tried to purchase, acquire, or reasonably comparable to a button, key, steps it has taken or will take, and show use the digital apparatus/navigation why such steps have been or will be or icon. device; sufficient to remediate the problem. Note 1 to paragraph (b): In determining (v) A statement of facts sufficient to whether a particular device is considered a show that the covered entity has (6) The Commission will review all ‘‘navigation device’’ subject to the violated, or is violating, the relevant information provided by the requirements of this section, the Commission Commission’s rules; complainant and the covered entity, as will look to the device’s built-in functionality (vi) The specific relief or satisfaction well as any additional information the at the time of manufacture. sought by the complainant; Commission deems relevant from its Note 2 to paragraph (b): This paragraph (vii) The complainant’s preferred files or public sources. The Commission places no restrictions on the importing, format or method of response to the may request additional information shipping, or sale of navigation devices complaint; and from any relevant parties when, in the manufactured before the applicable (viii) If a complaint pursuant to estimation of Commission staff, such compliance deadline for this section. § 79.108, the date that the complainant information is needed to investigate the requested an accessible navigation (c) Compliance deadline. Compliance complaint or adjudicate potential device and the person or entity to whom with the requirements of this section is violations of Commission rules. When required no later than December 20, that request was directed. (3) If a complaint is filed first with the the Commission requests additional 2016; except that compliance with the Commission, the Commission will information, parties to which such requirements of this section is required forward a complaint satisfying the above requests are addressed must provide the no later than December 20, 2018 for the requirements to the named covered requested information in the manner following covered entities: (1) MVPD entity for its response, as well as to any and within the time period the operators with 400,000 or fewer other entity that Commission staff Commission specifies. subscribers as of year-end 2012; and (2) determines may be involved. The MVPD systems with 20,000 or fewer (7) If the Commission finds that a covered entity or entities must respond subscribers that are not affiliated with covered entity has violated the in writing to the Commission and the an operator serving more than 10 requirements of §§ 79.107, 79.108, or complainant within 30 days after receipt percent of all MVPD subscribers as of 79.109, it may employ the full range of of the complaint from the Commission. year-end 2012. sanctions and remedies available under (4) If a complaint is filed first with the the Communications Act of 1934, as covered entity, the covered entity must § 79.110 Complaint procedures for user amended, against any or all of the interfaces, menus and guides, and respond in writing to the complainant violators. activating accessibility features on digital within 30 days after receipt of a apparatus and navigation devices. complaint. If the covered entity fails to (b) Contact information. A covered (a) Complaints concerning an alleged respond to the complainant within 30 entity must make contact information violation of the requirements of days, or the response does not satisfy available for the receipt and handling of §§ 79.107, 79.108, or 79.109 must be the consumer, the complainant may file complaints. The contact information filed in accordance with this section. the complaint with the Commission required must include the name of a For purposes of this section, a covered within 30 days after the time allotted for person with primary responsibility for entity is the entity or entities the covered entity to respond. If the accessibility compliance issues. This responsible for compliance with consumer subsequently files the contact information must also include §§ 79.107, 79.108, or 79.109. complaint with the Commission (after that person’s title or office, telephone (1) Complaints must be filed with the filing with the covered entity) and the number, fax number, postal mailing Commission or with the covered entity complaint satisfies the above address, and email address. A covered within 60 days after the date the requirements in paragraph 2 of this entity must keep this information complainant experiences a problem section, the Commission will forward current and update it within 10 business relating to compliance with the the complaint to the named covered days of any change. requirements of §§ 79.107, 79.108, or entity for its response, as well as to any 79.109. A complaint filed with the other entity that Commission staff [FR Doc. 2013–28098 Filed 12–19–13; 8:45 am] Commission may be transmitted to the determines may be involved. The BILLING CODE 6712–01–P Consumer and Governmental Affairs covered entity must then respond in

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