Accessibility of User Interfaces, and Video Programming Guides and Menus, 36478-36495 [2013-13740]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Proposed Rules]
[Pages 36478-36495]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13740]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 12-108; FCC 13-77]


Accessibility of User Interfaces, and Video Programming Guides 
and Menus

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, we propose new rules to ensure that user 
interfaces, and video programming guides, and menus provided by digital 
apparatus and navigation devices are accessible to people who are blind 
or visually impaired. We also propose new rules to require activation 
of closed captioning and accessibility features via a mechanism that is 
reasonably comparable to a button, key, or icon. Finally, we propose to 
modernize our apparatus rules by eliminating the outdated requirement 
that manufacturers label analog television sets based on whether they 
include a closed-caption decoder and by renaming our rules.

DATES: Submit comments on or before July 15, 2013. Submit reply 
comments on or before August 7, 2013.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Brendan Murray, Brendan.Murray@fcc.gov, or Adam 
Copeland, Adam.Copeland@fcc.gov, of the Media Bureau, Policy Division, 
(202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 13-77, adopted on May 30, 2013 and released 
on May 30, 2013. The full text of this document is available for public 
inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street 
SW., CY-A257, Washington, DC 20554. This document will also be 
available via ECFS (https://www.fcc.gov/cgb/ecfs/). (Documents will be 
available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The 
complete text may be purchased from the Commission's copy contractor, 
445 12th Street SW., Room CY-B402, Washington, DC 20554. To request 
these documents in accessible formats (computer diskettes, large print, 
audio recording, and Braille), send an email to fcc504@fcc.gov or call 
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).

Summary of the Notice of Proposed Rulemaking

    1. With this Notice of Proposed Rulemaking (``NPRM''), we begin our 
implementation of sections 204 and 205 of the Twenty-First Century 
Communications and Video Accessibility Act (``CVAA''). These sections 
generally require that user interfaces on digital apparatus and 
navigation devices used to view video programming be accessible to and 
usable by individuals who are blind or visually impaired. Both of these 
sections

[[Page 36479]]

also require that these devices provide a mechanism that is 
``reasonably comparable to a button, key, or icon designated for 
activating'' certain accessibility features. As set forth below, we 
seek comment on whether to interpret section 205 of the CVAA to apply 
to navigation devices supplied by multichannel video programming 
distributors (``MVPDs'') and section 204 of the CVAA to apply to all 
other ``digital apparatus designed to receive or play back video 
programming transmitted in digital format simultaneously with sound.'' 
Alternatively, we seek comment on whether to interpret section 205 to 
apply to navigation devices, as that term is defined in Sec.  76.1200 
of the Commission's rules, and section 204 to apply to all other 
digital apparatus. Consistent with our statutory mandate, we 
tentatively conclude that the requirement for the appropriate functions 
of the digital apparatus or navigation device to be accessible covers 
all ``user functions'' of such apparatus and devices, and that such 
functions do not include the debugging and diagnostic functions. In 
addition, in accordance with the statute, we do not propose to specify 
the technical standards for making those user functions accessible. 
Consistent with the report of the Video Programming Accessibility 
Advisory Committee (``VPAAC'') that examined this topic, we propose to 
require that the 11 essential functions of an apparatus identified by 
the VPAAC are representative, but not an exhaustive list, of the user 
functions that must be made accessible to and usable by individuals who 
are blind or visually impaired. We also seek comment on whether the 
most effective way to implement the requirement that certain 
accessibility features be activated through a mechanism reasonably 
comparable to a button, key, or icon is to require those features to be 
activated (and deactivated) in a single step. We tentatively conclude 
that we should handle alternate means of compliance and enforcement 
matters in the same way that we implemented those matters in other CVAA 
contexts. We propose deadlines consistent with those that the VPAAC 
proposed. Finally, in addition to our implementation of the CVAA, we 
take this opportunity to modernize our apparatus rules by proposing to 
eliminate the outdated requirement that manufacturers label analog 
television sets based on whether they include a closed-caption decoder 
and rename part 79 of our rules.
    2. Background. Section 204 of the CVAA, entitled ``User Interfaces 
on Digital Apparatus,'' directs the Commission to require ``if 
achievable (as defined in section 716) that digital apparatus designed 
to receive or play back video programming transmitted in digital format 
simultaneously with sound'' be built in a way that makes them 
``accessible to and useable by individuals who are blind or visually 
impaired.'' Section 204 also directs the Commission to require those 
apparatus to ``buil[d] in access to those closed captioning and video 
description features through a mechanism that is reasonably comparable 
to a button, key, or icon designated for activating the closed 
captioning or accessibility features.'' Section 204 also states that 
``in applying this subsection the term `apparatus' does not include a 
navigation device, as such term is defined in Sec.  76.1200 of the 
Commission's rules.''
    3. Section 205 of the CVAA, entitled ``Access to Video Programming 
Guides and Menus Provided on Navigation Devices,'' imposes requirements 
relating to navigation devices. It directs the Commission to require, 
``if achievable (as defined in section 716), that the on-screen text 
menus and guides provided by navigation devices (as such term is 
defined in Sec.  76.1200 of title 47, Code of Federal Regulations) for 
the display or selection of multichannel video programming are audibly 
accessible in real-time upon request by individuals who are blind or 
visually impaired.'' Section 205 also directs the Commission to 
require, ``for navigation devices with built-in closed captioning 
capability, that access to that capability through a mechanism is 
reasonably comparable to a button, key, or icon designated for 
activating the closed captioning, or accessibility features.''
    4. On April 9, 2012, the Video Programming Accessibility Advisory 
Committee (``VPAAC'') released the VPAAC Second Report: User Interfaces 
as directed by section 201(e)(2) of the CVAA. In it, VPAAC Working 
Group 4, which was the working group assigned to recommend ways to 
implement sections 204 and 205 of the CVAA, defined the functional 
requirements needed to carry out those sections. Among other things, 
the VPAAC Second Report: User Interfaces lists 11 criteria that it 
deems essential to make digital apparatus and navigation devices 
accessible. Working Group 4 stated that it sought to develop the 
criteria without hindering innovation or product differentiation, and 
that ``the consumer marketplace [will] identify the optimal 
technologies and implementations.'' The VPAAC Second Report: User 
Interfaces offers some examples of how to achieve the criteria, but 
stated that the examples ``are only meant to clarify the intent of the 
associated functional requirement.'' The VPAAC Second Report: User 
Interfaces also lists ``open issues'' about which Working Group 4 could 
not develop consensus; significantly, the members could not achieve 
consensus on a recommendation for the method of turning closed 
captioning on and off. On April 24, 2012, the Commission released a 
Public Notice seeking comment on the VPAAC Second Report: User 
Interfaces.
    5. Discussion. We organize our discussion of sections 204 and 205 
of the CVAA into the following sections: (A) Scope of Sections 204 and 
205; (B) Functions That Must Be Made Accessible; (C) Activating 
Accessibility Features; (D) Making Navigation Devices Available ``Upon 
Request''; (E) Alternate Means of Compliance; (F) Enforcement; (G) 
Exemption for Small Cable Operators; and (H) Timing. In addition, we 
tentatively conclude that we should eliminate outdated closed 
captioning labeling rules that apply to analog television receivers and 
rename part 79 of our rules.
    6. Scope of Sections 204 and 205. As stated above, sections 204 and 
205 of the CVAA require that accessible user interfaces be included in 
two categories of equipment: ``digital apparatus'' and ``navigation 
devices.'' Specifically, section 204 applies to ``digital apparatus 
designed to receive or play back video programming transmitted in 
digital format simultaneously with sound, including apparatus designed 
to receive or display video programming transmitted in digital format 
using Internet protocol.'' Section 204 states that the ``term 
`apparatus' does not include a navigation device'' as that term is 
defined in Sec.  76.1200 of the Commission's rules. Instead, 
accessibility requirements for ``navigation devices'' are governed by 
the provisions of section 205. Section 76.1200(c) defines ``navigation 
devices'' as devices such as converter boxes, interactive 
communications equipment, and other equipment used by consumers to 
access multichannel video programming and other services offered over 
multichannel video programming systems. Congress' intended meaning of 
the terms ``digital apparatus'' and ``navigation devices,'' as used in 
the context of sections 204 and 205, however, is not entirely clear. We 
discuss below the appropriate scope of sections 204 and 205 and the 
interrelationship between these sections. Our goal is to interpret 
these

[[Page 36480]]

sections in a manner that best effectuates Congressional intent.
    7. Categories of Devices Covered Under Sections 204 and 205. We 
seek comment on whether we should interpret section 205 of the CVAA to 
apply only to navigation devices that are supplied to subscribers by 
their MVPDs and section 204 of the CVAA to apply more broadly, covering 
all other digital apparatus that receive or play back video 
programming. Under this interpretation, equipment provided to MVPD 
subscribers by MVPDs would be covered under section 205, while all 
other digital apparatus, including equipment purchased at retail by a 
consumer to access video programming, would be covered under section 
204. We seek comment on this interpretation.
    8. We note that the statutory language of section 205 could be read 
to apply to navigation devices provided by MVPDs. Significantly, 
section 205 contains numerous provisions that appear to presume a 
preexisting relationship between the individual requesting or using the 
device, menu and/or guide and the entity providing it. For example, 
section 205(b)(3) states that an ``entity shall only be responsible for 
compliance with the requirements [of section 205(a)] with respect to 
navigation devices that it provides to a requesting blind or visually 
impaired individual.'' Likewise, sections 205(b)(4) and (b)(5) discuss 
the obligations of ``the entity providing the navigation device.'' We 
believe that section 205's references to an ``entity'' ``providing'' 
the device, menu or guide in these provisions could reasonably be 
interpreted to mean an MVPD, because in contrast to a consumer 
electronics retailer that offers consumers devices for purchase, an 
MVPD provides devices (typically for lease) to its customers upon 
request. Accordingly, we believe that the Commission could reasonably 
conclude that MVPDs are the entities ``responsible for compliance'' 
with section 205, and the equipment, menus and guides these entities 
provide to their subscribers are what Congress intended to cover under 
section 205.
    9. In addition, section 205(b)(4)(B) states that the entity 
providing the navigation device to the requesting blind or visually 
impaired individual ``shall provide any such software, peripheral 
device, equipment, service, or solution at no additional charge and 
within a reasonable time to such individual.'' This language also 
appears to be directed at MVPDs because the obligations identified in 
this provision--responding to a ``requesting individual'' ``within a 
reasonable time'' and providing a device ``at no additional charge''--
presupposes an existing relationship between the provider and the 
consumer. A consumer enters a retail store or visits a retailer's Web 
site and expects to be able to purchase the products offered 
immediately, and does not expect to get them for free. In contrast, 
when an MVPD subscriber contacts the MVPD to request an accessible 
device, the MVPD must either ship the device or schedule an appointment 
to install it in the subscriber's home. Either of these actions would 
take some amount of time, and Congress could reasonably be understood 
to have sought, through this provision, to ensure that MVPDs would 
fulfill these requests promptly and without greater expense to the 
consumer than if the MVPD were providing inaccessible equipment to the 
consumer.
    10. Moreover, section 205(b)(6), which sets out phase-in periods 
for compliance with these rules, states that the Commission must 
provide ``affected entities'' with at least 3 years ``to begin placing 
in service devices that comply with'' accessibility requirements 
related to on-screen text menus and guides. The phrase ``placing in 
service'' makes sense with respect to devices offered by MVPDs to their 
subscribers; it does not appear to have any applicability to devices 
sold at retail.
    11. Interpreting section 205 to apply only to MVPD-supplied 
navigation devices, menus and guides appears further supported by 
section 205(b)(2), which allows the Commission to ``provide an 
exemption from the regulations [implementing section 205(a)] for cable 
systems serving 20,000 or fewer subscribers.'' Inclusion of this 
specific exemption for cable operators seems to suggest that the 
``affected entities'' referred to in section 205 are MVPDs. That is, if 
this section did not otherwise apply to MVPDs, there would be no need 
for Congress to exempt cable operators from our regulations.
    12. As demonstrated, the statutory language of section 205 could 
reasonably be understood that Congress's aim in this section was to 
apply a specialized set of regulations to navigation devices, menus and 
guides provided by MVPDs to their subscribers. We seek comment on the 
above interpretations of the cited provisions.
    13. We ask that commenters address potential drawbacks associated 
with this interpretation. For example, given that no language in 
section 205 explicitly limits the provision's scope to navigation 
devices supplied by MVPDs, is it permissible for us to interpret the 
statue in this manner? If we do so, how do we give meaning to terms of 
the statute that refer more broadly to ``navigation devices (as such 
term is defined in Sec.  76.1200 of title 47, Code of Federal 
Regulations) for the display or selection of multichannel video 
programming''? Similarly, if we interpret section 205 to only cover 
navigation devices supplied by MVPDs, how do we explain the provisions 
that apply certain requirements set forth in the statute to 
manufacturers of hardware and software?
    14. Moving to section 204, this provision could be reasonably read 
to be directed towards equipment manufacturers. For example, section 
204(a) amends section 303 of the Communications Act by adding language 
requiring that ``Digital apparatus . . . be designed, developed, and 
fabricated'' to be accessible, all terms that would apply to 
manufacturers. In addition, section 204 indicates an intent by Congress 
to cover a broad array of devices: ``Digital apparatus designed to 
receive or play back video programming transmitted in digital format 
simultaneously with sound, including apparatus designed to receive or 
display video programming transmitted in digital format using Internet 
protocol.'' In the IP Closed Captioning Order, the Commission 
interpreted virtually identical statutory language contained in section 
203 of the CVAA (codified in 47 U.S.C. 303(u)(1)), to cover a wide 
array of physical devices such as set-top boxes, PCs, smartphones and 
tablets, as well as integrated software. As noted below, we believe the 
Commission could reasonably conclude that Congress intended the same 
broad meaning to apply in the context of section 204, and we seek 
comment on that interpretation.
    15. The intended scope of sections 204 is muddied, however, by a 
reference in that section to the term ``navigation devices'' as that 
term is defined by Sec.  76.1200 of the Commission's rules. 
Specifically, section 204 states that the ``digital apparatus'' covered 
under that section ``does not include a navigation device, as such term 
is defined in Sec.  76.1200 of the Commission's rules.'' In contrast, 
section 205's requirements expressly apply to ``on-screen text menus 
and guides provided by navigation devices (as such term is defined in 
Sec.  76.1200 of title 47, Code of Federal Regulations).'' Section 
76.1200(c) defines ``navigation devices'' as devices such as converter 
boxes, interactive communications equipment, and other equipment used 
by consumers to access multichannel video programming and other 
services offered over multichannel video programming systems. The 
Commission has

[[Page 36481]]

interpreted this term to encompass a broad array of ``equipment used to 
access multichannel video programming or services.'' For example, 
televisions, personal computers, cable modems, and VCRs all fall under 
the Commission's navigation devices definition.
    16. Given the broad scope of the term, however, interpreting the 
``navigation devices'' exception in section 204 literally could largely 
nullify section 204. Specifically, nearly all section 204 digital 
apparatus ``designed to receive or play back video programming 
transmitted in digital format'' would also be classified as navigation 
devices under Sec.  76.1200(c) because they can be used ``to access 
multichannel video programming and other services offered over 
multichannel video programming systems.'' If we were to interpret the 
section 204 exemption to exempt all ``navigation devices'' and not just 
those provided by MVPDs, it is possible that the only devices that 
would be covered by section 204 would be removable media players, such 
as DVD and Blu-ray players. This is because any device that has a 
tuner, an audiovisual input, or IP connectivity could be considered a 
navigation device. We seek comment on whether any other digital 
apparatus would be covered by section 204 if we literally applied the 
navigation devices exception contained in that section to all 
navigation devices.
    17. We believe that references in sections 204 and 205 to 
``navigation devices'' can be reasonably interpreted as language 
designed to prevent overlap in coverage between sections 204 and 205; 
that is, a device can be a section 204 device or a section 205 device, 
but not both. We request comment on whether we should interpret section 
205 to cover navigation devices provided by MVPDs and section 204 to 
exclude such devices, but otherwise to broadly cover all ``apparatus 
designed to receive or play back video programming transmitted in 
digital format simultaneously with sound'' as that term is broadly 
described in section 204(a)(1). We believe that this interpretation is 
a reasonable one under the tenet of statutory construction that 
requires statutory language be read in the context of the larger 
statutory scheme. As the DC Circuit has observed, ``[c]ontext serves an 
especially important role in textual analysis of a statute when 
Congress has not expressed itself as unequivocally as might be wished. 
Where, as here, we are charged with understanding the relationship 
between two different provisions within the same statute, we must 
analyze the language of each to make sense of the whole.'' We could 
conclude that Congress intended to carve out of section 204 a subset of 
devices--MVPD-provided navigation devices covered by section 205--from 
the section 204 provision that applies generally to all digital 
apparatus that receives or plays back video. Moreover, interpreting the 
section 204 exception for navigation devices broadly would appear to 
render virtually meaningless section 204's statement that digital 
apparatus include ``apparatus designed to receive or display video 
programming transmitted in digital format using Internet protocol.'' 
This is because we believe that nearly any device that can display 
video programming using Internet protocol could use the Internet 
protocol to access MVPD programming or other services, thereby making 
that device a navigation device under the broad reading of that term. 
We seek comment on this interpretation.
    18. We also find it notable that the National Cable & 
Telecommunications Association (``NCTA''), which is comprised of cable 
operators, presumes that section 205 applies to its members. NCTA notes 
that ``Congress granted cable operators `maximum flexibility' to 
determine the manner of compliance'' with the obligations of section 
205, and NCTA makes no suggestion that this section applies to any 
other entities beyond MVPDs. In recognizing that section 205 applies to 
its members, NCTA acknowledges that cable operators must provide 
accessible equipment for ``blind or visually impaired customers who 
request such a feature or function'' and that ``cable operators must 
provide it free of charge.''
    19. The legislative history on this provision is scant, and offers 
no additional insight into Congress's intent as to the scope of 
sections 204 and 205. Neither does the VPAAC Second Report: User 
Interfaces provide us any guidance on how best to interpret the scope 
of sections 204 and 205. We note, however, that the VPAAC Second 
Report: User Interfaces refers to devices covered by section 205 as 
``set-top boxes,'' suggesting that, at a minimum, they presumed 
Congress did not intend section 205 to cover the broad universe of 
devices covered by Sec.  76.1200 of our rules. We seek comment on our 
analysis. Could section 205 alternatively be interpreted more broadly 
to apply not just to MVPD-provided equipment but also to retail set-top 
boxes such as TiVos? If we were to interpret section 205 to apply also 
to those retail set-top boxes, how would we apply to that equipment the 
many provisions in section 205, analyzed above, that presume the 
complying entity is an MVPD?
    20. Section 205 also includes a provision stating that, with 
respect to navigation device features and functions delivered in 
software, the requirements of section 205 ``shall apply to the 
manufacturer of such software,'' and with respect to navigation device 
features and functions delivered in hardware, the requirements of 
section 205 ``shall apply to the manufacturer of such hardware.'' We 
seek comment on why Congress might have included this provision, how 
this provision should be interpreted, and the applicability of section 
205 to hardware and software manufacturers of navigation device 
features and functions. Does the inclusion of this provision indicate 
that Congress intended that manufacturers of hardware and software 
supplied to MVPDs for subscriber use share responsibility with MVPDs 
for compliance under section 205? If such manufacturers do share 
liability with MVPDs, would such liability be joint and several? Should 
the provision be read only as Congress' recognition that the 
manufacturer of the hardware and/or developer of the software for MVPD-
supplied equipment are often different parties?
    21. Alternatively, we seek comment on whether we should interpret 
the term ``navigation device'' for purposes of sections 204 and 205 
literally. Under a literal interpretation, the term would encompass the 
full array of equipment used to access multichannel video programming 
or services as defined under the Commission's rules regardless of 
whether such equipment is provided by an MVPD. Under this 
interpretation, we would give literal effect to the language of the 
provision contained in section 204 stating that ``the term `apparatus' 
does not include a navigation device, as such term is defined in Sec.  
76.1200 of the Commission's rules'' as well as the language of the 
provision in section 205 defining navigation devices by reference to 
Sec.  76.1200 of the Commission's rules. We note that nowhere in the 
statute does it say that the navigation device carve-out contained in 
section 204 or the term ``navigation devices'' in section 205 applies 
only to navigation devices supplied by MVPDs. Given the potentially 
conflicting interpretations of sections 204 and 205 that we have 
discussed herein, do these statutory provisions have a ``plain'' 
meaning as the courts have used that term?
    22. If we adopted this interpretation, would section 204 apply only 
to small subset of devices-specifically, removable media players, such 
as DVD

[[Page 36482]]

and Blu-ray players? Under this alternative interpretation, would all 
other devices used to view video programming be covered under section 
205? Would a literal reading of the navigation devices exemption in 
section 204 render meaningless other provisions of that section? For 
example, would literally interpreting the section 204 exception for 
navigation devices render meaningless section 204's statement that 
digital apparatus include ``apparatus designed to receive or display 
video programming transmitted in digital format using Internet 
protocol'' because every device with Internet connectivity is a 
navigation device under Commission precedent? In the alternative, 
should we interpret the conjunction ``and'' in Sec.  76.1200(c) to 
require that ``navigation devices'' be used by consumers to access both 
multichannel video programming and other services offered over 
multichannel video programming systems? See 47 CFR 76.1200(c) (defining 
navigation devices to mean devices used by consumers to access 
multichannel video programming and other services offered over 
multichannel video programming systems). Under that interpretation, 
would a cable modem or a device that streams Internet video, but cannot 
be used to access multichannel video programming, be a ``navigation 
device''? How would we reconcile this interpretation with Commission 
precedent?
    23. In addition, we seek comment on what functions, if any, would 
need to be made accessible under section 205 if section 205 applies to 
navigation devices purchased at retail. For example, do smartphones, 
personal computers, and similar equipment that would be covered under 
this section under a broad reading of navigation devices provide on-
screen text menus and guides for the display of multichannel video 
programming? If not, would such devices escape the accessibility 
requirements of sections 204 and 205 altogether? We seek comment on 
this alternative interpretation of the statute. We also seek comment on 
whether the text of the CVAA would permit the Commission to amend its 
definition of ``navigation devices'' so that, for this specific 
purpose, the definition would cover only MVPD-supplied navigation 
devices? In addition, we invite commenters to suggest any other 
interpretation of the statute which would effectuate Congressional 
intent and be consistent with the language contained in sections 204 
and 205 of the CVAA.
    24. Coverage of MVPD-Provided Applications and Other Software. We 
also seek comment on whether the requirements of section 205 apply to 
applications and other software developed by MVPDs to enable their 
subscribers to access their services on third-party devices such as 
tablets, laptops, smartphones, or computers. For example, at least one 
MVPD currently permits subscribers to access its entire package of 
video programming via an application that subscribers can download to 
personal computers, tablets, smartphones, and similar devices. In this 
example, would the MVPD's application qualify as a navigation device 
subject to the requirements of section 205? If not, would it qualify as 
a digital apparatus under section 204? Should the applicability of 
section 205 (or 204) to an MVPD application be impacted by that 
application's ability to fully replicate a subscriber's MVPD service 
versus providing only a subset of programming offerings? We recognize 
that some MVPDs currently enable subscribers to access video 
programming both inside and outside the home (e.g., TV Everywhere 
offerings). Should it matter to our analysis whether the MVPD 
application can be used outside the home? Does it matter whether the 
video programming is being delivered over the MVPD's IP network or 
through a different Internet Service Provider? If we interpret the term 
``navigation devices'' to include retail devices in addition to MVPD-
provided navigation devices, how would we determine which party is 
responsible when a consumer uses an MVPD-provided application on a 
device purchased at retail? What responsibility do manufacturers of 
digital apparatus and navigation devices covered by sections 204 and 
205 have to make such MVPD services accessible?
    25. Definition of Digital Apparatus Under Section 204. Regarding 
section 204, we tentatively conclude that the term ``digital 
apparatus'' as used in that section should be defined similarly to how 
the Commission defined the term ``apparatus'' when implementing the 
closed captioning apparatus requirements of section 203, but excluding 
the navigation devices that are subject to section 205. The descriptive 
language used in sections 203 and 204 is largely parallel. In the IP 
Closed Captioning Order, the Commission concluded that the scope of 
apparatus covered by section 203 should be defined to include ``the 
physical device and the video players that manufacturers install into 
the devices they manufacture (whether in the form of hardware, 
software, or a combination of both) before sale, as well as any video 
players that manufacturers direct consumers to install.'' The 
Commission explained further that ``apparatus'' includes video players 
that manufacturers embed in their devices (``integrated video 
players''), video players designed by third parties but installed by 
manufacturers in their devices before sale, and video players that 
manufacturers require consumers to add to the device after sale in 
order to enable the device to play video.
    26. We seek comment on our tentative conclusion to interpret 
``digital apparatus'' similarly for purposes of section 204. Does the 
terminology or purpose of sections 203 and 204 differ in any material 
respects for the purpose of determining to what extent we should 
interpret the term ``digital apparatus'' to apply to hardware and 
associated software, as described above? Should the fact that section 
204 uses the term ``digital'' to modify apparatus (a modifier not 
present in section 203) have any significance for our analysis? How, as 
a practical matter, does this modifier affect the scope of apparatus 
subject to section 204? For example, are there any devices currently 
being manufactured or marketed that are subject to section 203 but 
should not be subject to section 204 because such devices do not 
receive or display video programming transmitted in a ``digital 
format''?
    27. The VPAAC points out that, in contrast to the ``[s]et-top 
boxes'' covered by section 205, digital apparatus subject to section 
204 ``may have no native capability to decode and display [audiovisual] 
content, but with a suitable downloaded application, such capability 
may be enabled.'' If a digital apparatus requires a downloaded 
application to enable the decoding and display of audiovisual content 
how should that impact our analysis of whether the device is covered by 
section 204?
    28. We tentatively conclude that the inclusion of the phrase 
``including apparatus designed to receive or display video programming 
transmitted in digital format using Internet protocol'' is merely meant 
to clarify that this provision should not be limited to more 
traditional video-programming apparatus without IP functionality such 
as non-IP enabled televisions, and that the fact that this language 
appears in section 204 but not section 203 should not result in a 
different interpretation of the scope of section 204. We seek comment 
on this tentative conclusion.

[[Page 36483]]

    29. We also tentatively conclude that we should interpret the term 
``designed to'' as used in section 204 the same way that the Commission 
interpreted it in the IP Closed Captioning Order. There, the Commission 
rejected the argument that we should evaluate whether a device is 
covered by focusing on the original design or intent of the 
manufacturer of the apparatus. The Commission concluded instead that 
``to determine whether a device is designed to receive or play back 
video programming, and therefore covered by the statute, we should look 
to the device's functionality, i.e. whether it is capable of receiving 
or playing back video programming.'' The Commission stated that this 
bright-line standard, based on the device's capability, will provide 
more certainty for manufacturers. It also stated that, ``to the extent 
a device is built with a video player, it would be reasonable to 
conclude that viewing video programming is one of the intended uses of 
the device,'' and that ``[f]rom a consumer perspective, it would also 
be reasonable to expect that a device with a video player would be 
capable of displaying captions.'' We seek comment on our proposal. In 
addition, although section 204 does not contain the limitation in 
section 203 to apparatus ``manufactured in the United States or 
imported for use in the United States,'' we propose applying that same 
limitation for purposes of our regulations. We seek comment on this 
proposal as well.
    30. Functions That Must Be Made Accessible: Functions Required by 
Section 204. Section 204 directs the Commission to require that digital 
apparatus ``be designed, developed, and fabricated so that control of 
appropriate built-in apparatus functions'' is ``accessible to and 
usable by individuals who are blind or visually impaired,'' and ``that 
if on-screen text menus or other visual indicators built into the 
digital apparatus are used to access the [appropriate built-in 
apparatus functions], such functions shall be accompanied by audio 
output . . . so that such menus or indicators are accessible to and 
usable by individuals who are blind or visually impaired in real-
time.'' We tentatively conclude that the ``appropriate'' functions that 
must be made accessible under section 204 include all user functions of 
the device, but that such user functions do not include the debugging/
diagnostic functions. We exclude the debugging/diagnostic functions as 
it is our understanding those functions are typically accessed by 
technicians and repair specialists and are not intended for consumer 
use. We seek comment on whether our understanding is correct or whether 
debugging/diagnostic functions should also be made accessible.
    31. As to which functions constitute the user functions of the 
apparatus other than debugging/diagnostic functions, we look to the 
VPAAC Second Report: User Interfaces. This report identified 11 
``essential functions,'' which VPAAC Working Group 4 defined as ``the 
set of appropriate built-in apparatus functions'' referred to in 
section 204. The 11 essential functions identified in the VPAAC Second 
Report: User Interfaces are: (1) Power on/off; (2) volume adjust and 
mute; (3) channel and program selection; (4) channel and program 
information; (5) configuration--setup; (6) configuration--closed 
captioning control; (7) configuration--closed captioning options; (8) 
configuration--video description control; (9) display configuration 
info; (10) playback functions; and (11) input selection. Most of these 
are fairly self-evident, and the VPAAC Second Report: User Interfaces 
provides additional information to describe them. The VPAAC explains 
that each of these functions requires ``user input'' and ``user 
feedback.'' User input refers to how the user would activate the 
function (for example, the power button for a device). User feedback 
refers to how the user can surmise that the device or apparatus 
recognized and carried out the command. The VPAAC Second Report: User 
Interfaces recommends that user input be readily identifiable, and that 
user feedback be readily accessible. We seek comment on the list and 
the VPAAC's explanations of these functions. We specifically seek 
comment on the meaning of the ninth essential function, ``display 
configuration info.'' How does this essential function differ from 
``Configuration--setup''? We also invite commenters to define these 
terms more specifically if they believe that the VPAAC Second Report: 
User Interfaces's descriptions do not provide adequate guidance to 
manufacturers.
    32. We tentatively conclude that the VPAAC Second Report: User 
Interfaces's 11 essential functions are representative, but not an 
exhaustive list, of the categories of user functions of an apparatus, 
and therefore are examples of ``appropriate built-in apparatus 
functions'' as that term is used in section 204 of the CVAA. We do not 
believe that Congress intended to limit the accessibility of digital 
apparatus and navigation devices to the ``essential'' features and 
functions, or to some but not to all features and functions that are 
typically accessed by and readily made available for consumers to use. 
In other words, we believe that the term ``appropriate'' can be 
interpreted to distinguish between the diagnostic, debugging, ``service 
mode'' functions and the user functions that consumers can access and 
use. We seek comment on our tentative conclusion. At the same time, we 
seek comment on whether there are any other functions that are not 
included in the 11 essential functions listed in the VPAAC Second 
Report: User Interfaces, such as V-Chip and other parental controls, 
that may provide additional guidance to manufacturers. If any commenter 
believes that any of the 11 essential functions do not represent 
appropriate functions that must be accessible, that commenter should 
identify and provide specific examples of those inappropriate 
functions. Is there a mechanism that we can establish in this 
proceeding to ensure that as new digital apparatus functions become 
available to consumers, they are also made accessible? Should we assume 
that any newly developed non-debugging/diagnostic functions are 
``appropriate'' under the statute and should be made accessible unless 
a manufacturer receives a finding from the Commission to the contrary, 
or should we allow manufacturers to argue in defense to a complaint 
that a function was not made accessible because it was not an 
``appropriate function'' under the statute?
    33. Section 204 applies to apparatus ``designed to receive or play 
back video programming transmitted in digital format simultaneously 
with sound, including apparatus designed to receive or display video 
programming transmitted in digital format using Internet protocol.'' We 
seek comment on the extent to which apparatus manufacturers will need 
channel and program information (or other information necessary to 
select programming) from third-party video programming distributors 
(``VPDs'') to meet section 204's requirement that ``on-screen text 
menus or other visual indicators built in to the digital apparatus'' be 
``accompanied by audio that is either integrated or peripheral to the 
apparatus.'' That is, if the apparatus is built to display visual 
information provided by a third party, does the apparatus need to make 
that information accessible? For example, if an Internet-connected TV 
includes a Netflix application, should we require that application to 
be accessible? Should we require that third-party applications that

[[Page 36484]]

a consumer might download and install be accessible? Who is responsible 
for that accessibility? In implementing other sections of the CVAA, the 
Commission applied its rules to integrated software and to third-party 
applications that the manufacturer requires to be downloaded, but not 
other third-party applications that a customer downloads and installs. 
We tentatively conclude that we should take the same approach here, and 
we seek comment on that tentative conclusion. If commenters disagree, 
they should explain how the manufacturer can obtain the necessary 
information, such as guide data, from the VPD to make such information 
accessible to a user who is blind or visually impaired and whether the 
Commission has the authority to require a VPD to make this information 
accessible or pass through the necessary information to an apparatus. 
With respect to apparatus that are not provided by the MVPD but access 
MVPD services, does 47 U.S.C. 303(bb)(3) or any other provision of the 
Communications Act provide the Commission with the authority to require 
channel and program information to be made available to apparatus? As 
we discuss above in section III.A.2, we seek comment on whether MVPDs 
are responsible for the applications that they develop; what 
responsibilities does an MVPD have to make channel and program 
information available to a third-party application (for example, on a 
retail CableCARD device)?
    34. In addition to the requirements related to accessibility of 
``on-screen text menus or other visual indicators,'' section 204 also 
directs us to adopt regulations requiring that digital apparatus ``be 
designed, developed, and fabricated so that control of appropriate 
built-in apparatus functions are accessible'' to people who are blind 
or visually impaired. Of the 11 functions identified in the VPAAC 
Second Report: User Interfaces, only ``power on/off'' seems to be 
accessed other than through on-screen guides and menus, and we believe 
that other buttons on an apparatus that are not on-screen text menus or 
other visual indicators must also be made accessible. We seek comment 
on any other meaning of this phrase; that is, what functions of digital 
apparatus do people access in a manner other than through on-screen 
guides and menus? Does the inclusion of this provision in section 204, 
but not in section 205, suggest that digital apparatus are subject to 
additional requirements not applicable to navigation devices?
    35. Functions Required by Section 205. Section 205 of the CVAA 
directs the Commission to require that ``on-screen text menus and 
guides provided by navigation devices . . . for the display or 
selection of multichannel video programming are audibly accessible in 
real-time upon request.'' We seek comment on whether, as a legal or 
policy matter, there should be any substantive differences between the 
specific functions of apparatus that are required to be made accessible 
under section 204 as opposed to the specific functions of navigation 
devices that are required to be accessible under section 205. We 
tentatively conclude that all of the user functions that are offered 
via on-screen text menus and guides should be accessible for navigation 
devices. Although we recognize that sections 204 and 205 use slightly 
different language (section 205's accessibility requirement applies to 
on-screen text menus and guides only), we believe that all of a 
navigation device's user functions are activated via text menus and 
guides for the display or selection of multichannel video programming. 
We seek comment on our tentative conclusion.
    36. We tentatively conclude that the VPAAC Second Report: User 
Interfaces's 11 essential functions are representative, but not an 
exhaustive list, of the categories of functions that a navigation 
device must make accessible. The VPAAC Second Report: User Interfaces 
stated that the ``essential functions,'' are ``applicable to devices 
covered under CVAA section 204 and CVAA section 205.'' We seek comment 
on whether requiring navigation devices to make the 11 essential 
functions identified by the VPAAC accessible would achieve section 
205's requirement that ``on-screen text menus and guides provided by 
navigation devices . . . for the display or selection of multichannel 
video programming are audibly accessible in real-time upon request.'' 
We seek comment on whether there are any other on-screen text menus or 
guides provided for the display or selection of programming that are 
not included in the 11 listed in the VPAAC Second Report: User 
Interfaces, such as V-Chip and other parental controls, that may 
provide additional guidance to covered entities. As we asked in the 
section 204 discussion above, if any commenter believes that any of the 
11 essential functions do not represent on-screen text menus or guides 
that must be accessible, that commenter should identify and provide 
specific examples of those inappropriate functions. Is there a 
mechanism that we can establish in the proceeding to ensure that as new 
methods used to display or select multichannel video programming become 
available, they are also made accessible? Should we assume that any 
newly developed ``on-screen text menus and guides provided by 
navigation devices'' are covered under the statute and should be made 
accessible unless the Commission finds to the contrary, or should we 
allow covered entities to argue in defense to a complaint that a menu 
or guide was not made accessible because it was not ``for the display 
or selection of multichannel video programming'' under the statute? 
Does section 205 provide us authority to require that MVPDs provide 
programming description information in programming guides for local 
programs and channels for the purpose of promoting accessibility?
    37. User Input and Feedback. The VPAAC Second Report: User 
Interfaces suggests that user input and feedback should be both visual 
and non-visual for all essential functions. We agree that this is a 
vital aspect of making essential functions accessible to individuals 
who are blind or visually impaired, and note that a device can accept 
input and provide non-visual feedback audibly or through touch. 
Sections 204 and 205 require, respectively, that ``on-screen text 
menus'' (and guides, in the case of section 205) be ``accompanied by 
audio output'' and ``audibly accessible in real-time.'' We tentatively 
conclude that those feedback requirements are self-implementing. With 
respect to other functions of an apparatus, we seek comment on whether 
we should apply the guidance contained in Sec.  6.3(a) of our rules 
(which implements sections 255 and 716 of the CVAA), to explain that 
``accessible'' means: (a) Input, control, and mechanical functions 
shall be locatable, identifiable, and operable in accordance with each 
of the following, assessed independently: Operable without vision. 
Provide at least one mode that does not require user vision, operable 
with low vision and limited or no hearing. Provide at least one mode 
that permits operation by users with visual acuity between 20/70 and 
20/200, without relying on audio output, and operable with little or no 
color perception. Provide at least one mode that does not require user 
color perception; and (b) all information necessary to operate and use 
the product, including but not limited to, text, static or dynamic 
images, icons, labels, sounds, or incidental operating cues, comply 
with each of the following, assessed independently: Availability of 
visual information. Provide visual information through at least one 
mode

[[Page 36485]]

in auditory form, and availability of visual information for low vision 
users. Provide visual information through at least one mode to users 
with visual acuity between 20/70 and 20/200 without relying on audio.
    Do we need to specify how a device accepts input or provides 
feedback to individuals who are blind or visually impaired with respect 
to the other functions of an apparatus, or will applying this guidance 
make the device accessible? We seek comment on whether the functions 
other than ``on-screen text menus'' can be made accessible in any way; 
that is, if the functions of the remote are made accessible in some 
way, does the remote itself need to be accessible? We also seek comment 
on any other user input and feedback suggestions.
    38. Technical Standards. The CVAA states that the ``Commission may 
not specify the technical standards, protocols, procedures, and other 
technical requirements for meeting'' the requirement to make 
appropriate digital apparatus functions accessible to individuals who 
are blind or visually impaired. Given this limitation on our authority, 
we seek comment on how the Commission can ensure that the rules it 
adopts in this proceeding are properly implemented. We seek comment on 
specific metrics that the Commission can use to evaluate accessibility 
and compliance with our implementation of sections 204 and 205 of the 
CVAA. Are there performance objectives or functional criteria that 
covered entities can look to voluntarily as an aid in meeting these 
obligations? We also seek comment on any other steps the Commission can 
take to promote accessibility in light of the statutory limitations.
    39. Achievability. Both sections 204 and 205 of the CVAA state that 
we should make our rules regarding the accessibility of user 
interfaces, guides, and menus effective only ``if achievable (as 
defined in section 716).'' According to section 716(g) of the 
Communications Act, ``achievable'' means:

with reasonable effort or expense, as determined by the Commission. In 
determining whether the requirements of a provision are achievable, the 
Commission shall consider the following factors:
    (1) The nature and cost of the steps needed to meet the 
requirements of this section with respect to the specific equipment or 
service in question.
    (2) The technical and economic impact on the operation of the 
manufacturer or provider and on the operation of the specific equipment 
or service in question, including on the development and deployment of 
new communications technologies.
    (3) The type of operations of the manufacturer or provider.
    (4) The extent to which the service provider or manufacturer in 
question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.

As the Commission has done in other contexts implementing the CVAA, we 
tentatively conclude that we will weigh each of the four factors 
equally and evaluate achievability on a case-by-case basis. In the 
event of a complaint over a possible violation of our rules under 
sections 204 or 205, a covered entity may raise as a defense that a 
particular apparatus or navigation device does not comply with the 
rules because compliance was not achievable under the statutory 
factors. Alternatively, a covered entity may seek a determination from 
the Commission before manufacturing or importing the apparatus or 
navigation device as to whether compliance with all of our rules is 
achievable. In evaluating evidence offered to prove that compliance was 
not achievable, the Commission will be informed by the analysis in the 
ACS Order. We seek comment on our tentative conclusion.
    40. Separate Equipment or Software. We seek comment on the 
directive in section 205 that our regulations ``shall permit but not 
require the entity providing the navigation device to the requesting 
blind or visually impaired individual to comply with [the on-screen 
text menu and guide accessibility requirements] through that entity's 
use of software, a peripheral device, specialized consumer premises 
equipment, a network-based service or other solution, and shall provide 
the maximum flexibility to select the manner of compliance.'' Section 
205 provides further that ``the entity providing the navigation device 
to the requesting blind or visually impaired individual shall provide 
any such software, peripheral device, equipment, service, or solution 
at no additional charge and within a reasonable time to such individual 
and shall ensure that such software, device, equipment, service, or 
solution provides the access required by such regulations.'' We 
tentatively conclude that this solution must achieve the same functions 
as a built-in accessibility solution and must be provided by the entity 
providing the navigation device, rather than requiring the customer to 
seek out such a solution from a third party. We seek comment on these 
tentative conclusions. We also seek comment on how to define what is 
``a reasonable time'' to give a requesting subscriber accessible 
equipment. We tentatively conclude that the other requirements in this 
provision are self-implementing, and we seek comment on our tentative 
conclusion.
    41. Activating Accessibility Features (Comparable to a Button, Key, 
or Icon). In this section, we seek comment on the mechanism that the 
Commission must establish for consumers to activate the accessibility 
features of an apparatus or navigation device.
    42. Activating Closed Captioning and Video Description Features: 
Closed Captioning. Sections 204 and 205 both direct the Commission to 
require certain apparatus and navigation devices with built-in closed 
captioning capability to provide access to closed captioning features 
``through a mechanism that is reasonably comparable to a button, key, 
or icon designated for activating the closed captioning or 
accessibility features.'' Working Group 4 did not reach consensus on 
what the phrase ``reasonably comparable to a button, key, or icon'' 
means, but it provided the different language proposed by ``consumer 
representatives'' and ``proposed by NCTA (and endorsed by CEA and its 
member companies).'' Consumer representatives proposed that the VPAAC 
Second Report: User Interfaces recommend a closed captioning button 
when a dedicated physical button was used to control volume and/or 
channel selection, while NCTA, with CEA, proposed requiring only a 
mechanism ``reasonably comparable to physical buttons'' in those 
situations.
    43. We seek comment on whether the most effective way to implement 
the requirement in sections 204 and 205 that closed captioning be 
activated through a mechanism reasonably comparable to a button, key, 
or icon would be to require the closed captioning feature to be 
activated in a single step. That is, users would be able to activate 
closed captioning features on an MVPD-provided navigation device or 
other digital apparatus immediately in a single step just as a button, 
key, or icon can be pressed or clicked in a single step. We believe 
that this single-step proposal is consistent with section 204 and 205's 
language describing ``a mechanism that is reasonably comparable to a 
button, key, or icon,'' and consistent with Congress's intent ``to 
ensure ready access to these features by persons with disabilities.'' 
In addition, a single-step requirement is future-proofed in that it 
does not require that any particular technology be used

[[Page 36486]]

to enable accessibility, providing entities subject to section 204 and 
205 the flexibility to continue to develop innovative compliance 
solutions. We seek comment on this concept, and on what constitutes a 
single step. Alternatively, is the best solution to require that 
``[w]hen dedicated physical buttons are used to control volume and/or 
channel selection, the controls for access to closed captions (or video 
description) must also be dedicated physical buttons, comparable in 
location to those provided for control of volume or channel 
selection,'' as mentioned in the VPAAC Second Report: User Interfaces? 
For example, if volume on a particular device is controlled through the 
use of a dedicated button, should we require that closed captioning on 
that device be activated through the use of a dedicated button as well 
because it is a comparable function? What if the device does not have 
volume control through the use of a dedicated button or has no volume 
control at all? How would the proposal by consumer representatives 
mentioned in the VPAAC Second Report: User Interfaces operate in this 
context? Should the Commission impose different activation mechanisms 
on different types of apparatus? Should the Commission require that the 
closed captioning feature also be deactivated in a single step?
    44. We ask commenters to set forth the costs and benefits of our 
proposal as well as the costs and benefits of any other proposals. 
Commenters should describe with specificity how their proposals would 
be considered ``reasonably comparable to a button, key or icon.'' 
Further, we seek comment on whether we should require covered entities 
to seek a Commission finding that a mechanism other than button, key, 
or icon is reasonably comparable to those mechanisms before building it 
into an apparatus or navigation device, or could they make that showing 
as a defense to a complaint? How should our regulations apply with 
respect to programmable universal remotes that can be programmed with 
different features?
    45. Video Description. Section 204 explicitly requires certain 
apparatus to provide access to closed captioning and video description 
features through a mechanism reasonably comparable to a button, key or 
icon. Section 205 includes a similar requirement for a mechanism 
reasonably comparable to a button, key, or icon, but explicitly 
references only closed captioning capability; video description is not 
mentioned. Section 205 does state, however, that the mechanism ``should 
be reasonably comparable to a button, key, or icon designated for 
activating the closed captioning, or accessibility features.'' Despite 
the fact that section 205 does not use the term ``video description'' 
is it reasonable for us to interpret ``accessibility features'' in 
section 205 to encompass video description? For example, does the 
phrase ``accessibility features'' in section 205 reference capabilities 
that the mechanism required by section 205 must be able to access? Or 
is the term merely descriptive of the mechanism to which the mandated 
mechanism must be reasonably comparable? Video description is an 
essential accessibility feature. Therefore, would it be incongruous to 
require other digital apparatus to offer an activation mechanism for 
video description, but not navigation devices? We note in this regard 
that our video description rules currently apply to broadcasters and 
MVPDs. Thus, if accessibility requirements did not extend to video 
description in navigation devices then the requirements will not apply 
to devices used to access a large portion of video described 
programming. Given this, may we interpret the term ``accessibility 
features'' as used in section 205(b)(5) to include, at a minimum, video 
description? How, if at all, is such an interpretation impacted by the 
heading in section 205 that is titled ``User Controls for Closed 
Captioning''?
    46. We also seek comment on whether sections 204 and 205 require 
single-step activation of video description as we propose to require 
for closed captioning. We seek comment on whether a solution may be 
different for closed captioning and video description. We believe that 
the single-step approach is particularly appropriate for video 
description, given that following screen prompts (even on a device 
compliant with the accessibility rules we propose in this NPRM) can be 
challenging for individuals who are blind or visually impaired. We seek 
comment on whether sections 204 and 205 require single-step activation 
of video description. We also seek comment on whether the fact that 
video description is not specifically mentioned in section 205 means 
that there should be a different activation mechanism for video 
description for navigation devices.
    47. Activating Other Accessibility Features. We seek comment on the 
phrase ``accessibility features.'' Are there additional ``accessibility 
features'' besides closed captioning and video description that 
sections 204 and 205 require be activated via a mechanism similar to a 
button, key, or icon? Or is the term merely descriptive of the 
mechanism to which the mandated mechanism must be reasonably comparable 
and does not outline the capabilities that the mandated mechanism must 
itself access? To the extent that Congress contemplated additional 
``accessibility features,'' did it intend to include access to 
secondary audio programming for accessible emergency information as 
well as video description? In addition, should ``accessibility 
features'' include the activation of the audible output of on-screen 
text menus or guides required by sections 204 and 205? If so, should we 
adopt the same single-step mechanism requirement to make these features 
accessible, or would it be permissible under the statute to use 
different methods depending on the feature involved?
    48. We also seek comment on whether the term ``accessibility 
features'' in sections 204 and 205 includes accessibility settings 
(such as font, color, and size of captions or, in the case of audible 
output of on-screen text menus or guides, settings such as volume, 
speed, and verbosity) as these settings enable consumers to make 
practical use of the closed captioning and audible output. We seek 
comment on how these settings must be made available. The NAD 
criticizes devices that require ``the user [to] navigate a maze of many 
choices before reaching the closed captioning settings.'' Would a 
requirement that accessibility settings be in the first level of a menu 
of a digital apparatus or navigation device address this concern? By 
``first level of a menu,'' we mean that ``accessibility features,'' 
such as closed captions, video description and emergency information 
made available on the secondary audio stream, and audible output of on-
screen text menus or guides, would be one of the choices on an initial 
menu screen; consumers would not need to navigate through a sub-menu to 
gain access to the menu of accessibility features and settings. Would 
that concept still achieve accessibility for video description given 
that screen prompts (even on a device compliant with the visual 
impairment accessibility rules we propose in this NPRM) can be 
challenging for individuals who are blind or visually impaired? We 
invite any other proposals that would make access to accessibility 
features easier for consumers and ask commenters to set forth the costs 
and benefits of any such proposals. We also seek comment on any other 
issues related to the activation of accessibility features, including 
how any adopted regulations should apply

[[Page 36487]]

with respect to programmable universal remotes.
    49. Maximum Flexibility. Section 205 also states that the 
Commission's rules should permit the entity providing the navigation 
device ``maximum flexibility in the selection of means for compliance'' 
with the mechanism for making accessibility features accessible. In its 
comments, NCTA asserts that ``the plain language [of the CVAA] shows 
that Congress did not require cable operators and other MVPDs to 
include closed captioning buttons on their remote controls.'' It is 
unclear from NCTA's comments, however, how it proposes that MVPDs 
comply with the requirement that accessibility features be made 
accessible. Although we recognize that Congress intended to afford 
covered entities ``maximum flexibility'' in complying with our rules, 
we do not interpret this term to mean that covered entities have 
unlimited discretion in determining how to fulfill the purposes of the 
statute. To interpret their ``flexibility'' in such a manner could 
potentially undermine the very intent of section 205, which is to 
ensure that navigation devices are accessible to individuals with 
disabilities. In any event, we seek comment on whether our single-step 
activation proposal with regard to closed captioning and video 
description provides the flexibility contemplated by the statute. What 
other mechanism is reasonably comparable to a button, key, or icon that 
would satisfy this requirement where a navigation device is provided 
with a remote control? We seek comment on how the Commission can 
interpret ``maximum flexibility'' with regard to activation mechanisms 
and yet still effectuate the goals of the statute.
    50. Making Accessible Devices Available ``Upon Request''. Section 
205 directs us to require that guides and menus be made accessible 
``upon request,'' and states that, ``[a]n entity shall only be 
responsible for compliance with the requirements added by this section 
with respect to navigation devices that it provides to a requesting 
blind or visually impaired individual.'' We interpret this section to 
require covered entities to provide accessible navigation devices to 
requesting subscribers ``within a reasonable time.'' We also interpret 
section 205's ``upon request'' language to apply to on-screen text menu 
and guide accessibility. Does this language also apply to the 
requirement that closed captioning and other accessibility features be 
activated via a mechanism that is reasonably comparable to a button, 
key, or icon?
    51. We note that section 205(b)(3) states that an ``entity shall 
only be responsible for compliance with the requirements added by this 
section with respect to the navigation devices that it provides to a 
requesting blind or visually impaired individual.'' We seek comment on 
how this provision should be read in conjunction with the requirement 
in section 303(bb)(2) that pertains to accessing closed captioning 
capabilities. Does section 205(b)(3) of the CVAA apply to section 
303(bb)(2) of the Communications Act? A literal interpretation of 
section 205(b)(3) would require that compliant closed captioning 
mechanisms need only be made available to requesting individuals who 
are blind or visually impaired. However, we note that this 
interpretation would lead to anomalous results as it is individuals who 
are deaf or hard of hearing who typically use closed captioning rather 
than individuals who are blind or visually impaired. Moreover, both 
section 205(a), creating the requirement for on-screen text menus and 
guides for the display or selection of multichannel video programming 
to be audibly accessible, as well as section 205(b)(4)(B), describing 
the provision of software and other solutions for making navigation 
devices accessible, only make reference to people who are blind and 
visually impaired with respect to requests that will be made under this 
section. Does the fact that these two sections focus on making 
navigation devices accessible to people with vision disabilities and do 
not reference people who are deaf and hard of hearing provide 
permissible justification for not making requests a pre-requisite to 
providing ``a mechanism [that is] reasonably comparable to a button, 
key, or icon designated for activating the closed captioning, or 
accessibility features'' required under section 303(bb)(2) of the 
Communications Act? In other words, was it Congress's intent for 
responsible entities to include the closed captioning mechanism on all 
applicable devices?
    52. Alternatively, does the word ``responsibility'' in section 
205(b)(3) of the CVAA mean liability for money damages? Under that 
reading, could the Commission order a covered entity to comply with 
section 205(b)(3) but only impose a forfeiture if a blind or visually 
impaired individual has requested access to the closed-captioning 
capability? Or is section 205(b)(3) of the CVAA designed to shield an 
entity from liability for equipment they did not distribute (e.g., if a 
consumer purchases a navigation device at retail, the consumer's MVPD 
is not responsible for the accessibility of that device)?
    53. We also seek comment on whether a ``request'' could take any 
form (e.g., a phone call, an email, or a request made in-person). How 
can we ensure that MVPDs have a sufficient supply of accessible 
equipment in inventory to meet anticipated demand for accessible 
devices? We also seek comment on whether we should require MVPDs to 
notify their subscribers in braille or other accessible format that 
accessible devices are available upon request, and if so, how MVPDs 
should notify their subscribers (e.g., bill inserts). In addition to, 
or instead of, requiring MVPDs to notify subscribers, what other 
procedures could we adopt to ensure that individuals who are blind or 
visually impaired know that they can request an accessible navigation 
device? We further seek comment on whether section 205 requires MVPDs 
to provide accessible versions of all the classes of navigation devices 
they make available to subscribers, so that subscribers seeking 
accessibility features can choose among various price points and 
features. How would this provision apply to retail navigation devices 
if we conclude that retail navigation devices fall under the scope of 
section 205? Finally, to the extent that section 205 applies more 
broadly to other entities besides MVPDs, we seek comment on how these 
requirements should be implemented.
    54. Alternate Means of Compliance. Section 204 of the CVAA states 
that an entity may meet the requirements of section 204(a) ``through 
alternate means than those prescribed by'' the regulations that we 
adopt. In implementing a similar provision in section 203 of the CVAA, 
the Commission has allowed parties either to (i) request a Commission 
determination that the proposed alternate means satisfies the statutory 
requirements through a request pursuant to Sec.  1.41 of our rules; or 
(ii) claim in defense to a complaint or enforcement action that the 
Commission should determine that the party's actions were permissible 
alternate means of compliance. We tentatively conclude to adopt this 
approach in the instant proceeding. In addition, as the Commission has 
done in other contexts, rather than specify what may constitute a 
permissible ``alternate means,'' we tentatively conclude that we will 
address any specific requests from manufacturers when they are 
presented to us.
    55. Enforcement. We tentatively conclude that we should adopt the 
same complaint filing procedures that the Commission adopted in the IP-
closed captioning context. Those procedures (i) require complainants to 
file within 60 days after experiencing a problem; (ii) allow 
complainants to file their

[[Page 36488]]

complaints either with the Commission or with the entity responsible 
for the problem; (iii) provide the entity 30 days to respond to the 
complaint; (iv) do not specify a time frame within which the Commission 
must act on complaints; (v) follow the Commission's flexible, case-by-
case forfeiture approach governed by Sec.  1.80(b)(6) of our rules; 
(vi) specify the information that the complaints must include as set 
forth below; and (vii) require covered entities to make contact 
information available to end users for the receipt and handling of 
written complaints. Such complaints should include: (a) The 
complainant's name, postal address, and other contact information, such 
as telephone number or email address; (b) the name and contact 
information, such as postal address, of the apparatus or navigation 
device manufacturer or provider; (c) information sufficient to identify 
the software or device used; (d) the date or dates on which the 
complainant purchased, acquired, or used, or tried to purchase, 
acquire, or use the apparatus or navigation device; (e) a statement of 
facts sufficient to show that the manufacturer or provider has violated 
or is violating the Commission's rules; (f) the specific relief or 
satisfaction sought by the complainant; (g) the complainant's preferred 
format or method of response to the complaint; and (h) if a section 205 
complaint, the date that the complainant made an accessibility request 
and the person or entity to whom that request was directed. We also 
propose that a complaint alleging a violation of the apparatus or 
navigation device rules that we adopt in this proceeding may be 
transmitted to the Consumer and Governmental Affairs Bureau by any 
reasonable means, such as the Commission's online informal complaint 
filing system, letter in writing or Braille, facsimile transmission, 
telephone (voice/TRS/TTY), email, or some other method that would best 
accommodate the complainant's disability. Because our rules are 
intended to make apparatus and guides accessible to individuals who are 
blind or visually impaired, we propose that if a complainant calls the 
Commission for assistance in preparing a complaint, Commission staff 
will document the complaint in writing for the consumer and such 
communication will be deemed to be a written complaint. We also propose 
that the Commission will forward such complaints, as appropriate, to 
the named manufacturer or provider for its response, as well as to any 
other entity that Commission staff determines may be involved, and that 
the Commission be permitted to request additional information from any 
relevant parties when, in the estimation of Commission staff, such 
information is needed to investigate the complaint or adjudicate 
potential violations of Commission rules. Finally, we seek comment on 
whether any revisions to FCC Form 2000C, the disability access 
complaint form are necessary, and if so, what revisions are needed?
    56. Exemption for Small Cable Operators. Section 205 states that 
the Commission ``may provide an exemption from the regulations for 
cable systems serving 20,000 or fewer subscribers.'' We note that the 
use of ``may'' suggests that adoption of such an exemption is 
discretionary. Should the Commission adopt such an exemption? What 
would be the costs and benefits of permitting this exemption? 
Commenters should address the factors the Commission should consider in 
determining whether this exemption is appropriate. To the extent we do 
adopt such an exemption, what alternatives would subscribers with 
disabilities have in the areas that are served by MVPDs that are 
subject to the exemption? Instead of exempting such small cable systems 
completely, would it be appropriate to provide them more time with 
which to comply with the regulations? How should we interpret this 
provision if we require entities besides MVPDs to comply with the 
requirements of section 205?
    57. Timing. Section 205 of the CVAA provides that with respect to 
the navigation device rules we adopt that require a mechanism 
comparable to a button, key, or icon, ``[t]he Commission shall provide 
affected entities with not less than 2 years after the adoption of such 
regulations to begin placing in service devices that comply with the 
requirements.'' The CVAA also provides that with respect to the 
navigation device accessibility rules that we adopt, we shall provide 
affected entities with ``not less than 3 years after the adoption of 
such regulations to begin placing in service devices that comply with 
the requirements.'' The VPAAC recommends that we adopt these minimum 
phase-in periods, but that they run from the date of publication of the 
regulations in the Federal Register, rather than from the date of 
adoption. We tentatively conclude that we should adopt the VPAAC's 
recommendation because the recommendation was developed via consensus 
with support from the industry that should have an understanding of how 
long the development process for these devices will take. If commenters 
advocate a longer phase-in period, they should provide a detailed 
justification for why more time is necessary.
    58. Section 204 does not provide a phased-in requirement with 
respect to digital apparatus, other than that a ``digital apparatus 
designed and manufactured to receive or play back the Advanced 
Television System Committee's Mobile DTV Standards A/153 shall not be 
required to meet the requirements of the regulations'' adopted under 
section 204 until at least two years after the date the final rules are 
published in the Federal Register. The VPAAC Second Report: User 
Interfaces suggests that the Commission make its rules regarding 
digital apparatus effective two years after publication of final rules 
in the Federal Register, consistent with the time frame given for 
compliance with both the ACS and IP closed captioning rules adopted 
pursuant to the CVAA. We tentatively conclude that we should adopt this 
recommendation because the recommendation was developed via consensus 
with support from the industry that should have an understanding of how 
long the development process for these devices will take. Commenters 
advocating longer phase-in periods for the various components of the 
section 204 rules or for any class of apparatus should provide a 
detailed justification for why more time is necessary.
    59. Elimination of Analog Closed Captioning Labeling Requirement 
and Renaming Part 79. Finally, although this is not mandated by the 
CVAA, we take the opportunity to seek comment on a proposal to update 
our closed captioning apparatus rules. We tentatively conclude that we 
should remove the requirement that manufacturers label analog 
television receivers based on whether they contain an analog closed 
captioning decoder, as well as the requirement that manufacturers 
include information in the television's user manual if the receiver 
implements only a subset of the analog closed captioning functionality. 
We find that this rule is no longer necessary. Our regulations required 
that by March 1, 2007, all televisions contain a digital television 
receiver and, by extension, a digital closed captioning decoder. Thus, 
all television receivers being sold today are required to implement the 
features of digital closed captioning, which are more extensive than 
the features required for analog closed captioning. We believe that 
there are no televisions being manufactured in or imported into the 
United States today that implement only a subset of the analog closed 
captioning functionality. Therefore, we do not see

[[Page 36489]]

the need to require the labeling of television receivers that include 
analog tuners, nor do we see the need to maintain the requirement that 
user manuals indicate if a device does not support all of the aspects 
of the analog closed captioning standard. We seek comment on this 
analysis and on our proposal to eliminate the analog labeling 
requirement.
    60. Second, we propose to rename part 79 of the Commission's rules 
to better organize our rules. With the proposed addition of the user 
interface rules outlined above, part 79 has expanded in scope beyond 
closed captioning and video description of broadcast and MVPD 
programming to more broadly encompass the accessibility of video 
programming, of which closed captioning and video description are a 
part. Therefore, we propose to rename part 79 to the more general, 
``Accessibility of Video Programming.'' Additionally, we believe that 
dividing part 79 into two subparts-one that includes rules that apply 
to video programming owners, providers, and distributors, and one that 
includes rules that apply to apparatus-will help readers browse our 
rules. Therefore, we propose to establish a subpart A, entitled ``Video 
Programming Owners, Distributors, and Providers,'' to contain those 
rules regarding the provision of various services, and a subpart B, 
``Apparatus,'' to contain those rules pertaining to devices and other 
equipment used to receive, play back, or record video programming. We 
seek comment on these proposed changes.
    61. Procedural Matters. The proceeding this Notice initiates shall 
be treated as a ``permit-but-disclose'' proceeding in accordance with 
the Commission's ex parte rules. Persons making ex parte presentations 
must file a copy of any written presentation or a memorandum 
summarizing any oral presentation within two business days after the 
presentation (unless a different deadline applicable to the Sunshine 
period applies). Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentation must (1) list all 
persons attending or otherwise participating in the meeting at which 
the ex parte presentation was made, and (2) summarize all data 
presented and arguments made during the presentation. If the 
presentation consisted in whole or in part of the presentation of data 
or arguments already reflected in the presenter's written comments, 
memoranda or other filings in the proceeding, the presenter may provide 
citations to such data or arguments in his or her prior comments, 
memoranda, or other filings (specifying the relevant page and/or 
paragraph numbers where such data or arguments can be found) in lieu of 
summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with Sec.  1.1206(b). 
In proceedings governed by Sec.  1.49(f) or for which the Commission 
has made available a method of electronic filing, written ex parte 
presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic 
comment filing system available for that proceeding, and must be filed 
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). 
Participants in this proceeding should familiarize themselves with the 
Commission's ex parte rules.
    62. Initial Regulatory Flexibility Analysis. The Regulatory 
Flexibility Act of 1980, as amended (``RFA''), requires that a 
regulatory flexibility analysis be prepared for notice and comment rule 
making proceedings, unless the agency certifies that ``the rule will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
    63. With respect to this Notice, an Initial Regulatory Flexibility 
Analysis (``IRFA'') is below. Written public comments are requested in 
the IFRA, and must be filed in accordance with the same filing 
deadlines as comments on the Notice, with a distinct heading 
designating them as responses to the IRFA. The Commission will send a 
copy of this Notice, including the IRFA, in a report to Congress 
pursuant to the Congressional Review Act. In addition, a copy of this 
Notice and the IRFA will be sent to the Chief Counsel for Advocacy of 
the SBA, and will be published in the Federal Register.
    64. Paperwork Reduction Act Analysis. This document contains 
proposed new and modified information collection requirements. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collection requirements 
contained in this document, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), we seek specific comment on how we might ``further reduce 
the information collection burden for small business concerns with 
fewer than 25 employees.''
    65. Comment Filing Procedures. Pursuant to Sec. Sec.  1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments and reply comments on or before the dates 
indicated on the first page of this document. Comments may be filed 
using the Commission's Electronic Comment Filing System (ECFS). See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(1998). Electronic Filers: Comments may be filed electronically using 
the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/. 
Paper Filers: Parties who choose to file by paper must file an original 
and one copy of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, filers must submit 
two additional copies for each additional docket or rulemaking number. 
Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission. All hand-
delivered or messenger-delivered paper filings for the Commission's 
Secretary must be delivered to FCC Headquarters at 445 12th St. SW., 
Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 
7:00 p.m. All hand deliveries must be held together with rubber bands 
or fasteners. Any envelopes and boxes must be disposed of before 
entering the building. Commercial overnight mail (other than U.S. 
Postal Service Express Mail and Priority Mail) must be sent to 9300 
East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service 
first-class, Express, and Priority mail must be addressed to 445 12th 
Street SW., Washington, DC 20554. People with Disabilities: To request 
materials in accessible formats for people with disabilities (braille, 
large print, electronic files, audio format), send an email to 
fcc504@fcc.gov or call the

[[Page 36490]]

Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    66. Additional Information: For additional information on this 
proceeding, please contact Brendan Murray of the Media Bureau, Policy 
Division, Brendan.Murray@fcc.gov, (202) 418-1573, or Adam Copeland of 
the Media Bureau, Policy Division, Adam.Copeland@fcc.gov, (202) 418-
1037.
    67. Ordering Clause. Accordingly, IT IS ORDERED that, pursuant to 
the authority contained in sections 1, 4(i), 4(j), 303(r), 303(aa), and 
303(bb) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i), 154(j), 303(r), 303(aa), and 303(bb), and sections 204 and 205 
of the Twenty-First Century Communications and Video Accessibility Act, 
Pub. L. 111-260, sections 204 and 205, this Notice of Proposed 
Rulemaking IS ADOPTED.
    68. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
significant economic impact on small entities by the policies and rules 
proposed in the Notice of Proposed Rulemaking (``NPRM''). Written 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments provided on the first page of the NPRM. The Commission will 
send a copy of the NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (``SBA''). In addition, 
the NPRM and IRFA (or summaries thereof) will be published in the 
Federal Register.
    69. Need for, and Objectives of, the Proposed Rule Changes. The 
Federal Communications Commission (``Commission'') seeks comment in 
this NPRM on how to implement sections 204 and 205 of the Twenty-First 
Century Communications and Video Accessibility Act of 2010 (``CVAA''). 
These sections generally require the Commission to adopt rules to 
require digital apparatus and navigation device user interfaces used to 
view video programming be accessible to and usable by individuals who 
are blind or visually impaired. Specifically, section 204 directs the 
Commission to require that ``appropriate built-in apparatus functions'' 
be made accessible to blind people. Section 205 directs the Commission 
to require that ``on-screen text menus and guides provided by 
navigation devices'' be made accessible. The Commission seeks comment 
on the types of devices covered by sections 204 and 205. Both of these 
sections also require that these devices provide a mechanism that is 
``reasonably comparable to a button, key, or icon designated for 
activating'' closed captioning, video description, and accessibility 
features. The NPRM tentatively concludes that: (1) The requirement for 
the appropriate functions of the digital apparatus or navigation device 
to be accessible covers all ``user functions'' of such apparatus and 
devices, and that such functions do not include the debugging and 
diagnostic functions; (2) The Commission should not specify the 
technical standards for making those user functions accessible, 
consistent with the statute; (3) The Commission should handle alternate 
means of compliance and enforcement matters in the same way that the 
Commission implemented those matters in other CVAA contexts; and (4) 
The deadlines for compliance with these rules should be consistent with 
those proposed by a working group that focused on this topic. The 
Commission also seeks comment the most effective way to implement the 
requirement that closed captioning, video description, and 
accessibility features be activated through a mechanism reasonably 
comparable to a button, key, or icon is to require those features to be 
activated (and deactivated) in a single step; on how to interpret 
section 205's direction that accessible navigation devices shall be 
provided ``upon request;'' on how to handle complaints and enforce the 
rules adopted pursuant to sections 204 and 205 of the CVAA; and on 
whether to adopt an exemption from regulations adopted under section 
205 with respect to cable systems that serve 20,000 or fewer 
subscribers. Finally, in addition to the implementation of the CVAA, 
the NPRM proposes to modernize the Commission's apparatus rules by 
eliminating the outdated requirement that manufacturers label analog 
television sets based on whether they include a closed-caption decoder 
and rename part 79 of the Commission's rules. The Commission seeks 
comment on all of these tentative conclusions and issues.
    70. Our goal in this proceeding is to enable disabled people to use 
their digital video devices more easily. The proposed revisions to our 
rules will help fulfill the purpose of the CVAA to ``update the 
communications laws to help ensure that individuals with disabilities 
are able to fully utilize communications services and equipment and 
better access video programming.''
    71. Legal Basis. The proposed action is authorized pursuant to the 
Twenty-First Century Communications and Video Accessibility Act of 
2010, Pub. L. 111-260, 124 Stat. 2751, and the authority found in 
sections 4(i), 4(j), 303(u) and (z), 330(b), and 713(g), of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(u) and (z), 330(b), and 613(g).
    72. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply. The RFA directs agencies to 
provide a description of, and where feasible, an estimate of the number 
of small entities that may be affected by the proposed rules, if 
adopted. The RFA generally defines the term ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA. Below, we provide a 
description of such small entities, as well as an estimate of the 
number of such small entities, where feasible.
    73. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
``Wired Telecommunications Carriers,'' which is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: all such firms having 1,500 or fewer 
employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. Thus, under this category and the associated small business 
size standard, the majority of such firms can be considered small.
    74. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide.

[[Page 36491]]

Industry data indicate that, of 1,076 cable operators nationwide, all 
but eleven are small under this size standard. In addition, under the 
Commission's rules, a ``small system'' is a cable system serving 15,000 
or fewer subscribers. Industry data indicate that, of 6,635 systems 
nationwide, 5,802 systems have under 10,000 subscribers, and an 
additional 302 systems have 10,000-19,999 subscribers. Thus, under this 
second size standard, most cable systems are small.
    75. Cable System Operators. The Communications Act of 1934, as 
amended, also contains a size standard for small cable system 
operators, which is ``a cable operator that, directly or through an 
affiliate, serves in the aggregate fewer than 1 percent of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has determined that an operator serving 
fewer than 677,000 subscribers shall be deemed a small operator if its 
annual revenues, when combined with the total annual revenues of all 
its affiliates, do not exceed $250 million in the aggregate. Industry 
data indicate that all but nine cable operators nationwide are small 
under this subscriber size standard. We note that the Commission 
neither requests nor collects information on whether cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250 million, and therefore we are unable to estimate more 
accurately the number of cable system operators that would qualify as 
small under this size standard.
    76. Television Broadcasting. This Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound. These establishments operate television 
broadcasting studios and facilities for the programming and 
transmission of programs to the public.'' The SBA has created the 
following small business size standard for Television Broadcasting 
firms: those having $14 million or less in annual receipts. The 
Commission has estimated the number of licensed commercial television 
stations to be 1,387. In addition, according to Commission staff review 
of the BIA Advisory Services, LLC's Media Access Pro Television 
Database on March 28, 2012, about 950 of an estimated 1,300 commercial 
television stations (or approximately 73 percent) had revenues of $14 
million or less. We therefore estimate that the majority of commercial 
television broadcasters are small entities.
    77. We note, however, that in assessing whether a business concern 
qualifies as small under the above definition, business (control) 
affiliations must be included. Our estimate, therefore, likely 
overstates the number of small entities that might be affected by our 
action because the revenue figure on which it is based does not include 
or aggregate revenues from affiliated companies. In addition, an 
element of the definition of ``small business'' is that the entity not 
be dominant in its field of operation. We are unable at this time to 
define or quantify the criteria that would establish whether a specific 
television station is dominant in its field of operation. Accordingly, 
the estimate of small businesses to which rules may apply does not 
exclude any television station from the definition of a small business 
on this basis and is therefore possibly over-inclusive to that extent.
    78. In addition, the Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 396. 
These stations are non-profit, and therefore considered to be small 
entities.
    79. Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS, by exception, is now included in the 
SBA's broad economic census category, ``Wired Telecommunications 
Carriers,'' which was developed for small wireline firms. Under this 
category, the SBA deems a wireline business to be small if it has 1,500 
or fewer employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. Thus, under this category and the associated small business 
size standard, the majority of such firms can be considered small. 
Currently, only two entities provide DBS service, which requires a 
great investment of capital for operation: DIRECTV and EchoStar 
Communications Corporation (``EchoStar'') (marketed as the DISH 
Network). Each currently offers subscription services. DIRECTV and 
EchoStar each report annual revenues that are in excess of the 
threshold for a small business. Because DBS service requires 
significant capital, we believe it is unlikely that a small entity as 
defined by the SBA would have the financial wherewithal to become a DBS 
service provider.
    80. Satellite Telecommunications Providers. Two economic census 
categories address the satellite industry. The first category has a 
small business size standard of $15 million or less in average annual 
receipts, under SBA rules. The second has a size standard of $25 
million or less in annual receipts.
    81. The category of ``Satellite Telecommunications'' ``comprises 
establishments primarily engaged in providing telecommunications 
services to other establishments in the telecommunications and 
broadcasting industries by forwarding and receiving communications 
signals via a system of satellites or reselling satellite 
telecommunications.'' Census Bureau data for 2007 show that 607 
Satellite Telecommunications establishments operated for that entire 
year. Of this total, 533 establishments had annual receipts of under 
$10 million or less, and 74 establishments had receipts of $10 million 
or more. Consequently, the Commission estimates that the majority of 
Satellite Telecommunications firms are small entities that might be 
affected by our action.
    82. The second category, i.e., ``All Other Telecommunications,'' 
comprises ``establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or voice over Internet 
protocol (VoIP) services via client-supplied telecommunications 
connections are also included in this industry.'' For this category, 
Census data for 2007 shows that there were a total of 2,639 
establishments that operated for the entire year. Of those 2,639 
establishments, 2,333 operated with annual receipts of less than $10 
million and 306 with annual receipts of $10 million or more. 
Consequently, the Commission estimates that a majority of All Other 
Telecommunications establishments are small entities that might be 
affected by our action.
    83. Satellite Master Antenna Television (SMATV) Systems, also known 
as Private Cable Operators (PCOs). SMATV systems or PCOs are video 
distribution facilities that use closed transmission paths without 
using any public right-of-way. They acquire video programming and 
distribute it via terrestrial wiring in urban and suburban multiple 
dwelling units such as apartments and condominiums, and

[[Page 36492]]

commercial multiple tenant units such as hotels and office buildings. 
SMATV systems or PCOs are now included in the SBA's broad economic 
census category, ``Wired Telecommunications Carriers,'' which was 
developed for small wireline firms. Under this category, the SBA deems 
a wireline business to be small if it has 1,500 or fewer employees. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of those 31,996, 1,818 operated with more than 100 
employees, and 30,178 operated with fewer than 100 employees. Thus, 
under this category and the associated small business size standard, 
the majority of such firms can be considered small.
    84. Home Satellite Dish (``HSD'') Service. HSD or the large dish 
segment of the satellite industry is the original satellite-to-home 
service offered to consumers, and involves the home reception of 
signals transmitted by satellites operating generally in the C-band 
frequency. Unlike DBS, which uses small dishes, HSD antennas are 
between four and eight feet in diameter and can receive a wide range of 
unscrambled (free) programming and scrambled programming purchased from 
program packagers that are licensed to facilitate subscribers' receipt 
of video programming. Because HSD provides subscription services, HSD 
falls within the SBA-recognized definition of ``Wired 
Telecommunications Carriers.'' The SBA has developed a small business 
size standard for this category, which is: all such firms having 1,500 
or fewer employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. Thus, under this category and the associated small business 
size standard, the majority of such firms can be considered small.
    85. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)). In 
connection with the 1996 BRS auction, the Commission established a 
small business size standard as an entity that had annual average gross 
revenues of no more than $40 million in the previous three calendar 
years. The BRS auctions resulted in 67 successful bidders obtaining 
licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 
auction winners, 61 met the definition of a small business. BRS also 
includes licensees of stations authorized prior to the auction. At this 
time, we estimate that of the 61 small business BRS auction winners, 48 
remain small business licensees. In addition to the 48 small businesses 
that hold BTA authorizations, there are approximately 392 incumbent BRS 
licensees that are considered small entities. After adding the number 
of small business auction licensees to the number of incumbent 
licensees not already counted, we find that there are currently 
approximately 440 BRS licensees that are defined as small businesses 
under either the SBA or the Commission's rules. In 2009, the Commission 
conducted Auction 86, the sale of 78 licenses in the BRS areas. The 
Commission offered three levels of bidding credits: (i) a bidder with 
attributed average annual gross revenues that exceed $15 million and do 
not exceed $40 million for the preceding three years (small business) 
received a 15 percent discount on its winning bid; (ii) a bidder with 
attributed average annual gross revenues that exceed $3 million and do 
not exceed $15 million for the preceding three years (very small 
business) received a 25 percent discount on its winning bid; and (iii) 
a bidder with attributed average annual gross revenues that do not 
exceed $3 million for the preceding three years (entrepreneur) received 
a 35 percent discount on its winning bid. Auction 86 concluded in 2009 
with the sale of 61 licenses. Of the ten winning bidders, two bidders 
that claimed small business status won four licenses; one bidder that 
claimed very small business status won three licenses; and two bidders 
that claimed entrepreneur status won six licenses.
    86. In addition, the SBA's placement of Cable Television 
Distribution Services in the category of Wired Telecommunications 
Carriers is applicable to cable-based Educational Broadcasting 
Services. Since 2007, ``Wired Telecommunications Carriers'' have been 
defined as follows: ``This industry comprises establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies.'' Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services; wired (cable) audio and video programming 
distribution; and wired broadband Internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry. For these services, the Commission uses the SBA small 
business size standard for Wired Telecommunications Carriers, which is 
1,500 or fewer employees. Census data for 2007 shows that there were 
31,996 establishments that operated that year. Of those 31,996, 1,818 
operated with more than 100 employees, and 30,178 operated with fewer 
than 100 employees. Thus, under this category and the associated small 
business size standard, the majority of such firms can be considered 
small. In addition to Census data, the Commission's internal records 
indicate that as of September 2012, there are 2,241 active EBS 
licenses. The Commission estimates that of these 2,241 licenses, the 
majority are held by non-profit educational institutions and school 
districts, which are by statute defined as small businesses.
    87. Fixed Microwave Services. Microwave services include common 
carrier, private-operational fixed, and broadcast auxiliary radio 
services. They also include the Local Multipoint Distribution Service 
(LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz 
Service, where licensees can choose between common carrier and non-
common carrier status. At present, there are approximately 31,428 
common carrier fixed licensees and 79,732 private operational-fixed 
licensees and broadcast auxiliary radio licensees in the microwave 
services. There are approximately 120 LMDS licensees, three DEMS 
licensees, and three 24 GHz licensees. The Commission has not yet 
defined a small business with respect to microwave services. For 
purposes of the IRFA, we will use the SBA's definition applicable to 
Wireless Telecommunications Carriers (except satellite)--i.e., an 
entity with no more than 1,500 persons. Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. For the category of ``Wireless 
Telecommunications Carriers (except Satellite),'' Census data for 2007 
show

[[Page 36493]]

that there were 11,163 firms that operated for the entire year. Of this 
total, 10,791 firms had employment of 999 or fewer employees and 372 
had employment of 1,000 employees or more. Thus, under this category 
and the associated small business size standard, the majority of firms 
can be considered small. We note that the number of firms does not 
necessarily track the number of licensees. We estimate that virtually 
all of the Fixed Microwave licensees (excluding broadcast auxiliary 
licensees) would qualify as small entities under the SBA definition.
    88. Open Video Systems. The open video system (``OVS'') framework 
was established in 1996, and is one of four statutorily recognized 
options for the provision of video programming services by local 
exchange carriers. The OVS framework provides opportunities for the 
distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services, OVS falls within 
the SBA small business size standard covering cable services, which is 
``Wired Telecommunications Carriers.'' The SBA has developed a small 
business size standard for this category, which is: all such firms 
having 1,500 or fewer employees. Census data for 2007 shows that there 
were 31,996 establishments that operated that year. Of those 31,996, 
1,818 operated with more than 100 employees, and 30,178 operated with 
fewer than 100 employees. Thus, under this category and the associated 
small business size standard, the majority of such firms can be 
considered small. In addition, we note that the Commission has 
certified some OVS operators, with some now providing service. 
Broadband service providers (``BSPs'') are currently the only 
significant holders of OVS certifications or local OVS franchises. The 
Commission does not have financial or employment information regarding 
the entities authorized to provide OVS, some of which may not yet be 
operational. Thus, at least some of the OVS operators may qualify as 
small entities.
    89. Cable and Other Subscription Programming. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in operating studios and facilities 
for the broadcasting of programs on a subscription or fee basis. These 
establishments produce programming in their own facilities or acquire 
programming from external sources. The programming material is usually 
delivered to a third party, such as cable systems or direct-to-home 
satellite systems, for transmission to viewers.'' The SBA has developed 
a small business size standard for this category, which is: all such 
firms having $15 million dollars or less in annual revenues. To gauge 
small business prevalence in the Cable and Other Subscription 
Programming industries, the Commission relies on data currently 
available from the U.S. Census for the year 2007. Census Bureau data 
for 2007 show that there were 659 establishments in this category that 
operated for the entire year. Of that number, 462 operated with annual 
revenues of $9,999,999 million dollars or less. 197 operated with 
annual revenues of 10 million or more. Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small.
    90. Small Incumbent Local Exchange Carriers. We have included small 
incumbent local exchange carriers in this present RFA analysis. A 
``small business'' under the RFA is one that, inter alia, meets the 
pertinent small business size standard (e.g., a telephone 
communications business having 1,500 or fewer employees), and ``is not 
dominant in its field of operation.'' The SBA's Office of Advocacy 
contends that, for RFA purposes, small incumbent local exchange 
carriers are not dominant in their field of operation because any such 
dominance is not ``national'' in scope. We have therefore included 
small incumbent local exchange carriers in this RFA analysis, although 
we emphasize that this RFA action has no effect on Commission analyses 
and determinations in other, non-RFA contexts.
    91. Incumbent Local Exchange Carriers (``LECs''). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The appropriate 
size standard under SBA rules is for the category ``Wired 
Telecommunications Carriers.'' Under that size standard, such a 
business is small if it has 1,500 or fewer employees. Census data for 
2007 shows that there were 31,996 establishments that operated that 
year. Of those 31,996, 1,818 operated with more than 100 employees, and 
30,178 operated with fewer than 100 employees. Thus, under this 
category and the associated small business size standard, the majority 
of such firms can be considered small.
    92. Competitive Local Exchange Carriers, Competitive Access 
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other 
Local Service Providers.'' Neither the Commission nor the SBA has 
developed a small business size standard specifically for these service 
providers. The appropriate size standard under SBA rules is for the 
category ``Wired Telecommunications Carriers.'' Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of those 31,996, 1,818 operated with more than 100 
employees, and 30,178 operated with fewer than 100 employees. Thus, 
under this category and the associated small business size standard, 
the majority of such firms can be considered small. Consequently, the 
Commission estimates that most providers of competitive local exchange 
service, competitive access providers, ``Shared-Tenant Service 
Providers,'' and ``Other Local Service Providers'' are small entities.
    93. Motion Picture and Video Production. The Census Bureau defines 
this category as follows: This industry comprises establishments 
primarily engaged in producing, or producing and distributing motion 
pictures, videos, television programs, or television commercials. We 
note that firms in this category may be engaged in various industries, 
including cable programming. Specific figures are not available 
regarding how many of these firms produce and/or distribute programming 
for cable television. The SBA has developed a small business size 
standard for this category, which is: all such firms having $29.5 
million dollars or less in annual revenues. To gauge small business 
prevalence in the Motion Picture and Video Production industries, the 
Commission relies on data currently available from the U.S. Census for 
the year 2007. Census Bureau data for 2007, which now supersede data 
from the 2002 Census, show that there were 9,095 firms in this category 
that operated for the entire year. Of these, 8,995 had annual receipts 
of $24,999,999 or less, and 100 had annual receipts ranging from not 
less than $25,000,000 to $100,000,000 or more. Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small.
    94. Motion Picture and Video Distribution. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in acquiring distribution rights and 
distributing film and video productions to motion picture theaters, 
television networks and stations, and exhibitors.'' We note that firms 
in this category may be engaged in various industries, including cable 
programming. Specific figures are not available regarding how many of 
these

[[Page 36494]]

firms produce and/or distribute programming for cable television. The 
SBA has developed a small business size standard for this category, 
which is: all such firms having $29.5 million dollars or less in annual 
revenues. To gauge small business prevalence in the Motion Picture and 
Video Distribution industries, the Commission relies on data currently 
available from the U.S. Census for the year 2007. Census Bureau data 
for 2007, which now supersede data from the 2002 Census, show that 
there were 450 firms in this category that operated for the entire 
year. Of these, 434 had annual receipts of $24,999,999 or less, and 16 
had annual receipts ranging from not less than $25,000,000 to 
$100,000,000 or more. Thus, under this category and associated small 
business size standard, the majority of firms can be considered small.
    95. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: all such firms having 
750 or fewer employees. According to Census Bureau data for 2007, there 
were 919 establishments that operated for part or all of the entire 
year. Of those 919 establishments, 771 operated with 99 or fewer 
employees, and 148 operated with 100 or more employees. Thus, under 
that size standard, the majority of establishments can be considered 
small.
    96. Audio and Video Equipment Manufacturing. The SBA has classified 
the manufacturing of audio and video equipment under in NAICS Codes 
classification scheme as an industry in which a manufacturer is small 
if it has less than 750 employees. Data contained in the 2007 Economic 
Census indicate that 491 establishments in this category operated for 
part or all of the entire year. Of those 491 establishments, 456 
operated with 99 or fewer employees, and 35 operated with 100 or more 
employees. Thus, under the applicable size standard, a majority of 
manufacturers of audio and video equipment may be considered small.
    97. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. One proposed rule change discussed in the NPRM 
would affect reporting, recordkeeping, or other compliance 
requirements. This proposed rule change would eliminate the outdated 
requirement that manufacturers of analog television sets label devices 
with a notice about closed captioning features.
    98. Steps Taken to Minimize Significant Impact on Small Entities 
and Significant Alternatives Considered. The RFA requires an agency to 
describe any significant alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): (1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.
    99. We emphasize at the outset that, although alternatives to 
minimize economic impact on small businesses (such as the possible 
exemption from section 205 regulations for cable systems that serve 
20,000 or fewer subscribers) have been and are being considered as part 
of this proceeding, our proposals are governed by the congressional 
mandate contained in sections 204 and 205 of the CVAA. The NPRM seeks 
comment on whether any alternatives to the proposed rules exist, and 
gives small entities wide latitude in the specific steps it will use to 
meet the rules-in other words, the proposed rules are entirely 
performance, rather than design, focused. Individual entities, 
including smaller entities, may benefit from this provision because our 
proposed rules will do not specify how any entity must achieve 
accessibility, but rather encourage all entities (include small 
entities) to be creative and develop cost-effective methods to achieve 
accessibility.
    100. Overall, in proposing rules governing accessible digital 
apparatus and navigation devices, we believe that we have appropriately 
considered both the interests of individuals who are blind, visually 
impaired, deaf, or hard of hearing and the interests of the entities 
who will be subject to the rules, including those that are smaller 
entities. Our proposed rules are consistent with Congress' goal of 
``updat[ing] the communications laws to help ensure that individuals 
with disabilities are able to fully utilize communications services and 
equipment and better access video programming.'' In seeking to achieve 
that Congressional goal, our proposed rules will not require small 
businesses to conform to any standard, and allow them to use any less 
expensive ``alternative means of compliance'' for cost savings. 
Moreover, elimination of the labeling requirement is another step that 
the Commission proposes to reduce costs for small businesses.
    101. Federal Rules that May Duplicate, Overlap, or Conflict with 
the Proposed Rule. None.

List of Subjects in 47 CFR Part 79

    Television, Individuals with disabilities.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 79 as follows:

PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING

0
1. The authority citation for part 79 continues to read as follows:

    Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
330, 544a, 613, 617.

0
2. Revise the part heading for part 79 to read as set forth above.
0
3. Designate Sec. Sec.  79.1 through 79.4 as subpart A to part 79, and 
add a heading for subpart A to read as follows:

Subpart A--Video Programming Owners, Providers, and Distributors

0
4. Designate Sec. Sec.  79.100 through 79.106 as subpart B to part 79, 
and add a heading for subpart B to read as follows:

Subpart B--Apparatus

0
5. Remove and reserve paragraph (m) in Sec.  79.101.
0
6. Add Sec. Sec.  79.107 through 79.109 to subpart B to part 79 to read 
as follows:


Sec.  79.107.  User interfaces and guides on digital apparatus.

    (a) Effective [DATE TO BE DETERMINED IN FINAL RULE], manufacturers 
of digital apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound, including 
apparatus designed to receive

[[Page 36495]]

or display video programming transmitted in digital format using 
Internet protocol, shall design, develop, and fabricate those digital 
apparatus so that control of appropriate built-in apparatus functions 
are accessible to and usable by individuals who are blind or visually 
impaired. For the purpose of this section, the term apparatus does not 
include a navigation device, as such term is defined in Sec.  76.1200 
of this chapter [that is provided by an MVPD to a subscriber].
    (b) This section shall be effective for any apparatus manufactured 
after the effective date in the United States or outside of the United 
States and imported for use in the United States, except that apparatus 
must only do so if it is achievable as defined in Sec.  79.105(c).
    (c)(1) Achievable. Manufacturers of apparatus may petition the 
Commission for a full or partial exemption from the user interface 
requirements of this section pursuant to Sec.  1.41 of this chapter, 
which the Commission may grant upon a finding that the requirements of 
this section are not achievable, or may assert that such apparatus is 
fully or partially exempt as a response to a complaint, which the 
Commission may dismiss upon a finding that the requirements of this 
section are not achievable.
    (2) The petitioner or respondent must support a petition for 
exemption or a response to a complaint with sufficient evidence to 
demonstrate that compliance with the requirements of this section is 
not ``achievable'' where ``achievable'' means with reasonable effort or 
expense. The Commission will consider the following factors when 
determining whether the requirements of this section are not 
``achievable:''
    (i) The nature and cost of the steps needed to meet the 
requirements of this section with respect to the specific equipment or 
service in question;
    (ii) The technical and economic impact on the operation of the 
manufacturer or provider and on the operation of the specific equipment 
or service in question, including on the development and deployment of 
new communications technologies;
    (iii) The type of operations of the manufacturer or provider; and
    (iv) The extent to which the service provider or manufacturer in 
question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.


Sec.  79.108.  User interfaces and guides on navigation devices.

    (a)(1) Effective [DATE TO BE DETERMINED IN FINAL RULE], 
manufacturers of navigation devices (as defined by Sec.  76.1200 of 
this chapter) [provided by MVPDs to their subscribers] and the MVPDs 
that provide those devices shall ensure that the on-screen text menus 
and guides provided for the display or selection of multichannel video 
programming are audibly accessible in real-time upon request by 
individuals who are blind or visually impaired. MVPDs [and other 
covered entities] may comply with this requirement through the use of 
software, a peripheral device, specialized consumer premises equipment, 
a network-based service or other solution, and shall have maximum 
flexibility to select the manner of compliance.
    (2) With respect to navigation device features and functions
    (i) Delivered in software, the requirements set forth in this rule 
shall apply to the manufacturer of such software; and
    (ii) Delivered in hardware, the requirements set forth in this rule 
shall apply to the manufacturer of such hardware.
    (b) This section shall be effective for any apparatus manufactured 
after the effective date in the United States or outside of the United 
States and imported for use in the United States, except that the 
navigation device must only do so if it is achievable as defined in 
Sec.  79.108(c)(2).
    (c)(1) Achievable. Manufacturers of navigation devices may petition 
the Commission for a full or partial exemption from the accessibility 
requirements of this section pursuant to Sec.  1.41 of this chapter, 
which the Commission may grant upon a finding that the requirements of 
this section are not achievable, or may assert that such navigation 
device is fully or partially exempt as a response to a complaint, which 
the Commission may dismiss upon a finding that the requirements of this 
section are not achievable.
    (2) The petitioner or respondent must support a petition for 
exemption or a response to a complaint with sufficient evidence to 
demonstrate that compliance with the requirements of this section is 
not ``achievable'' where ``achievable'' means with reasonable effort or 
expense. The Commission will consider the following factors when 
determining whether the requirements of this section are not 
``achievable:''
    (i) The nature and cost of the steps needed to meet the 
requirements of this section with respect to the specific equipment or 
service in question;
    (ii) The technical and economic impact on the operation of the 
manufacturer or provider and on the operation of the specific equipment 
or service in question, including on the development and deployment of 
new communications technologies;
    (iii) The type of operations of the manufacturer or provider; and
    (iv) The extent to which the service provider or manufacturer in 
question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.


Sec.  79.109  Activating accessibility features.

    (a) Effective [DATE TO BE DETERMINED IN FINAL RULE], manufacturers 
of digital apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound (including 
apparatus designed to receive or display video programming transmitted 
in digital format using Internet protocol) and navigation devices (as 
defined by Sec.  76.1200 of this chapter) with built-in closed-
captioning capability shall ensure that closed captioning features are 
available through a method that is reasonably comparable to a button, 
key, or icon.
    (b) Effective [DATE TO BE DETERMINED IN FINAL RULE], manufacturers 
of digital apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound (including 
apparatus designed to receive or display video programming transmitted 
in digital format using Internet protocol) with built-in video 
description capability shall ensure that video description features are 
available through a method that is reasonably comparable to a button, 
key, or icon.
    (c) This section shall be effective for any apparatus manufactured 
after the effective date in the United States or outside of the United 
States and imported for use in the United States.

Federal Communications Commission.

Marlene H. Dortch,

Secretary, Office of the Secretary, Office of Managing Director.

[FR Doc. 2013-13740 Filed 6-17-13; 8:45 am]
BILLING CODE 6712-01-P