Accessibility of User Interfaces, and Video Programming Guides and Menus; Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description: Implementation of the Twenty- First Century Communications and Video Accessibility Act of 2010, 77074-77087 [2013-28088]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 78, Number 245 (Friday, December 20, 2013)]
[Proposed Rules]
[Pages 77074-77087]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28088]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket Nos. 12-108, 12-107; FCC 13-138]


Accessibility of User Interfaces, and Video Programming Guides 
and Menus; Accessible Emergency Information, and Apparatus Requirements 
for Emergency Information and Video Description: Implementation of the 
Twenty- First Century Communications and Video Accessibility Act of 
2010

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on issues related to rules implementing the 
requirements of the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA''). Specifically, the Commission 
explores whether the Commission should adopt rules to define the term 
``usable'' for purposes of implementing the CVAA. The Commission also 
explores whether the phrase ``accessibility features'' in the 
Communications Act of 1934 (``the Act'') includes user display settings 
for closed captioning and whether those sections can be interpreted to 
require covered entities to ensure that consumers are able to locate 
and control such settings. In addition, the Commission explores whether 
there are possible sources of authority for requiring MVPDs to ensure 
that video programming guides and menus that

[[Page 77075]]

provide channel and program information include high level channel and 
program descriptions and titles, as well as a symbol identifying the 
programs with accessibility options. The Commission also explores 
whether to require manufacturers of apparatus covered by the CVAA to 
provide access to the secondary audio stream used for audible emergency 
information by a mechanism reasonably comparable to a button, key, or 
icon. Furthermore, the Commission explores whether it should impose 
additional notification requirements on MVPDs regarding the 
availability of accessible equipment and, if so, what those 
notification requirements should be. The Commission tentatively 
concludes that equipment manufacturers subject to the CVAA should be 
required pursuant to the CVAA to inform consumers about the 
availability of audibly accessible devices and accessibility solutions.

DATES: Comments are due on or before February 18, 2014; reply comments 
are due on or before March 20, 2014. Written comments on the Paperwork 
Reduction Act proposed information collection requirements must be 
submitted by the public, Office of Management and Budget (OMB), and 
other interested parties on or before February 18, 2014.

ADDRESSES: You may submit comments, identified by MB Docket Nos. 12-
108, 12-107, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Mail: 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.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: (202) 418-
0530 or TTY: (202) 418-0432.

In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act proposed information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via email to PRA@fcc.gov and to Nicholas A. 
Fraser, Office of Management and Budget, via email to Nicholas_A._Fraser@omb.eop.gov or via fax at (202) 395-5167. For detailed 
instructions for submitting comments and additional information on the 
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: Adam Copeland, Adam.Copeland@fcc.gov, 
or Maria Mullarkey, Maria.Mullarkey@fcc.gov, of the Policy Division, 
Media Bureau, (202) 418-2120. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, contact Cathy Williams at (202) 418-2918 or send an 
email to PRA@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking, FCC 13-138, adopted on October 
29, 2013 and released on October 31, 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., Room CY-A257, Washington, DC 20554. 
This document will also be available via ECFS at https://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in 
ASCII, Microsoft Word, 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. Alternative formats are available 
for people with disabilities (Braille, large print, electronic files, 
audio format), by sending an email to fcc504@fcc.gov or calling the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).
    The FNPRM seeks comment on a potential new or revised information 
collection requirement. If the Commission adopts a new or revised 
information collection requirement, the Commission will publish a 
separate document in the Federal Register inviting the public to 
comment on the requirement, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how 
it might ``further reduce the information collection burden for small 
business concerns with fewer than 25 employees.''

Summary of the Further Notice of Proposed Rulemaking

I. Introduction

    1. We issue a Further Notice of Proposed Rulemaking (``FNPRM'') 
that:
     Explores whether the Commission should adopt rules to 
define the term ``usable'' for purposes of implementing Section 204 of 
the CVAA.
     Explores whether the phrase ``accessibility features'' in 
Sections 303(aa)(3) and 303(bb)(2) of the Act includes user display 
settings for closed captioning and whether those sections can be 
interpreted to require covered entities to ensure that consumers are 
able to locate and control such settings;
     Explores whether there are possible sources of authority 
for the Commission to require MVPDs to ensure that video programming 
guides and menus that provide channel and program information include 
high level channel and program descriptions and titles, as well as a 
symbol identifying the programs with accessibility options;
     Explores whether the Commission should require 
manufacturers of apparatus covered by Section 203 of the CVAA to 
provide access to the secondary audio stream used for audible emergency 
information by a mechanism reasonably comparable to a button, key, or 
icon;
     Explores whether the Commission should impose additional 
notification requirements on MVPDs regarding the availability of 
accessible equipment and, if so, what those notification requirements 
should be; and
     Tentatively concludes that equipment manufacturers subject 
to Section 205 should be required pursuant to Section 205(b)(1) to 
inform consumers about the availability of audibly accessible devices 
and accessibility solutions.

II. Further Notice of Proposed Rulemaking

    2. Usability Requirements. We seek comment on whether we should 
adopt rules to define the term ``usable'' for purposes of implementing 
Section 204 of the CVAA. Section 303(aa)(1) of the Act specifies that 
covered apparatus must ``be designed, developed, and fabricated so that 
control of appropriate built-in apparatus functions are accessible to 
and usable by individuals who are blind or visually impaired.'' 
Similarly, Section 303(aa)(2) of the Act specifies that the appropriate 
built-in apparatus functions that are accessed through on-screen text 
menus or other visual indicators ``shall be accompanied by audio output 
that is either integrated or peripheral to the apparatus, so that

[[Page 77076]]

such menus or indicators are accessible to and usable by individuals 
who are blind or visually impaired in real-time.'' In other CVAA 
contexts, the Commission has relied on the definition of ``usable'' in 
Sec.  6.3(1) of our rules, which states that ``[t]he term usable shall 
mean that individuals with disabilities have access to the full 
functionality and documentation for the product, including 
instructions, product information (including accessible feature 
information), documentation, bills and technical support which is 
provided to individuals without disabilities.'' \1\ For example, 
Section 716 of the Act requires providers of advanced communications 
services (``ACS'') (i.e., non-interconnected VoIP service, electronic 
messaging service, and interoperable video conferencing service) and 
manufacturers of equipment used for ACS to make their products 
``accessible to and usable by'' persons with disabilities, and the 
rules implementing these sections adopt the Commission's ``well 
established'' definition of ``usable'' in Sec.  6.3(l).\2\ In addition, 
when implementing Section 718 of the Act, which imposes accessibility 
requirements on service providers and manufacturers with respect to 
Internet browsers on mobile phones, the Commission defined the term 
``usable'' ``as the Commission has previously defined th[is] term[] 
when implementing Sections [716 and 255] of the Act.'' \3\ We seek 
comment on whether we should define the term ``usable'' consistent with 
the definition in Sec.  6.3(l). We also seek comment on the costs and 
benefits of imposing usability requirements on covered entities, 
including small entities.
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    \1\ 47 CFR 6.3(l). The Commission adopted the definition of 
``usable'' in Sec.  6.3(l) of its rules pursuant to Section 255 of 
the Act, which requires telecommunications providers and equipment 
manufacturers to make their products ``accessible to and usable by'' 
persons with disabilities, relying on the U.S. Access Board's 
guidelines. See Implementation of Sections 255 and 251(a)(2) of the 
Communications Act of 1934, as Enacted by the Telecommunications Act 
of 1996: Access to Telecommunications Service, Telecommunications 
Equipment and Customer Premises Equipment by Persons with 
Disabilities, WT Docket No. 96-198, Report and Order and Further 
Notice of Inquiry, 16 FCC Rcd 6417, 6429-30, paras. 21-29 (1999) 
(``Section 255 Order''). The U.S. Access Board is ``an independent 
Federal agency devoted to accessibility for people with disabilities 
[which] . . . develops and maintains design criteria for the built 
environment, transit vehicles, telecommunications equipment, and for 
electronic and information technology.'' Implementation of Sections 
716 and 717 of the Communications Act of 1934, as Enacted by the 
Twenty-First Century Communications and Video Accessibility Act of 
2010, CG Docket Nos. 10-213, 10-145, WT Docket No. 96-198, Report 
and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 
14557, 14563, para. 10, n. 30 (2011) (``ACS Order'').
    \2\ See 47 CFR 14.21(c); ACS Order, 26 FCC Rcd at 14605, para. 
115.
    \3\ Implementation of Sections 716 and 717 of the Communications 
Act of 1934, as Enacted by the Twenty-First Century Communications 
and Video Accessibility Act of 2010, CG Docket Nos. 10-213, 10-145, 
WT Docket No. 96-198, Second Report and Order, 28 FCC Rcd 5957, 
5967, para. 19 (2013) (``ACS Second Report and Order'').
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    3. Further, we seek comment on whether we should impose 
information, documentation, and training requirements consistent with 
the requirements set forth in Sec.  6.11 of our rules for purposes of 
implementing Sections 204 and 205 of the CVAA. Section 6.11 of our 
rules requires manufacturers and service providers to ``ensure access 
to information and documentation it provides to its customers, if 
readily achievable,'' which ``includes user guides, bills, installation 
guides for end-user installable devices, and product support 
communications, regarding both the product in general and the 
accessibility features of the product,'' and it delineates ``other 
readily achievable steps'' that should be taken ``as necessary.'' \4\ 
Section 6.11 also requires manufacturers and service providers to 
include the contact method for obtaining the information required by 
Sec.  6.11(a) in general product information, and to consider certain 
accessibility-related topics when developing or modifying training 
programs.\5\ The Commission previously has adopted information, 
documentation, and training requirements when implementing Sections 716 
and 718 of the Act, which both require that covered products be 
``accessible to and usable by'' individuals with disabilities.\6\ We 
seek comment on whether to adopt analogous requirements pursuant to 
Section 204, which likewise requires that covered apparatus be 
``accessible to and usable by'' individuals with visual disabilities. 
We also seek comment on whether we should impose such information, 
documentation, and training requirements on entities covered by Section 
205, pursuant to our authority to ``prescribe such regulations as are 
necessary to implement'' the requirements of that section.\7\ We seek 
comment on the costs and benefits of imposing information, 
documentation, and training requirements on covered entities, including 
small entities.
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    \4\ 47 CFR 6.11(a).
    \5\ Id. 6.11(b)-(c).
    \6\ See id. 14.20(d); ACS Order, 26 FCC Rcd at 14595-96, para. 
94; ACS Second Report and Order, 28 FCC Rcd at 5969, para. 23.
    \7\ Public Law 111-260, 205(b)(1).
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    4. Mechanism for Activating Other Accessibility Features. We seek 
further comment on whether the phrase ``accessibility features'' in 
Sections 303(aa)(3) and 303(bb)(2) of the Act includes user display 
settings for closed captioning and whether those sections can be 
interpreted to require covered entities to ensure that consumers are 
able to locate and control such settings. In the NPRM, we sought 
comment on whether there are additional ``accessibility features'' that 
Sections 204 and 205 require to be activated via a mechanism similar to 
a button, key, or icon, including closed captioning settings (e.g., 
font, color, and size of captions), and whether such settings should be 
required to be in the first level of a menu. The record reflects 
divergent views on this issue. As discussed in the Report and Order, 
several commenters support a broad interpretation of the term 
``accessibility features'' to include other accessibility settings such 
as closed captioning settings, whereas CEA and other industry 
commenters argue that the phrase ``accessibility features'' ``is not an 
invitation to impose new, and hitherto unspecified, regulatory 
requirements on additional accessibility features.''
    5. We believe there are important public interest considerations in 
favor of ensuring that consumers are able to locate and access user 
display settings for closed captioning. When the Commission adopted 
technical standards for the display of closed captions on digital 
television receivers, it explained that the ``capability to alter 
fonts, sizes, colors, backgrounds and more, can enable a greater number 
of persons who are deaf and hard of hearing to take advantage of closed 
captioning.'' \8\ Noting the limitations of the ``one-size fits all 
approach'' in use by the analog captioning system, the Commission 
concluded that ``[o]nly by requiring decoders to respond to these 
various [display] features can we ensure that closed captioning will be 
accessible for the greatest number of persons who are deaf and hard of 
hearing, and thereby achieve Congress' vision that to the fullest 
extent made possible by technology, people who are deaf or hard of 
hearing have equal access to the television medium.'' \9\ More 
recently, the Commission adopted a recommendation from the VPAAC to 
ensure viewer access to display

[[Page 77077]]

capabilities in video devices that deliver closed captions on programs 
over the Internet.\10\ The Commission explained that access to these 
display capabilities would ensure that consumers viewing such online 
programming would have a captioning experience equivalent to the 
experience provided when the content was aired on television,\11\ and 
further ``noted the `substantial benefits for consumers' that are 
provided when video programming apparatus support user options that 
enable closed caption displays to be customized to suit the needs of 
individual viewers.'' \12\
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    \8\ Closed Captioning Requirements for Digital Television 
Receivers; Closed Captioning and Video Description of Video 
Programming, Implementation of Section 305 of the Telecommunications 
Act of 1996, Video Programming Accessibility, ET Docket No. 99-254, 
MM Docket No. 95-176, Report and Order, 15 FCC Rcd 16788, 16792, 
para. 10 (2000) (``DTV Closed Captioning Order'').
    \9\ Id. at 16793, para. 13.
    \10\ Closed Captioning of Internet Protocol-Delivered Video 
Programming: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, MB Docket No. 
11-154, Report and Order, 27 FCC Rcd 787, 850-54, paras. 109-13 
(2012) (``VIP Closed Captioning Order'').
    \11\ Id. at 852-53, para. 112.
    \12\ Id. at 851, para. 109, citing DTV Closed Captioning Order, 
15 FCC Rcd at 16793, para. 7.
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    6. Notwithstanding these Commission efforts to provide consumers 
with the ability to tailor the display of closed captions to their 
needs, the record in this proceeding reflects the ongoing problems that 
consumers have in finding and controlling these display features.\13\ 
NAD/Consumer Groups reference the ``long and frustrating history of the 
difficulties in accessing closed captioning features on apparatus and 
navigation devices,'' and describe the ``[m]ost infamously difficult'' 
example, in which a cable box must first be turned off in order to 
access the captioning mechanisms through a special menu feature. One 
interpretation of the statute could be that the explicit inclusion of 
the term ``accessibility features'' in Sections 303(aa)(3) and 
303(bb)(2) of the Act by Congress,\14\ which had prior knowledge of 
Commission efforts to provide viewers with the tools to control the 
appearance of closed captions, gives the Commission sufficient 
discretion to require the provision of a mechanism that is reasonably 
comparable to a button, key, or icon designated for accessing caption 
display settings. We seek comment on this interpretation, including the 
costs to covered entities, including small entities, and the benefits 
to consumers of requiring this access. Alternatively, under another 
interpretation of the statute the phrase ``accessibility features'' 
``merely describes an activation mechanism--i.e., a mechanism for 
activating multiple accessibility features--to which the mandated user 
control mechanism for closed captioning . . . may be reasonably 
comparable to satisfy the requirements of the statute.'' Thus, under 
this interpretation, Sections 303(aa)(3) and 303(bb)(2) would not give 
the Commission the authority to require the provision of a mechanism 
that is reasonably comparable to a button, key, or icon designated for 
accessing caption display settings. We seek comment on this 
interpretation.
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    \13\ The technical standards for closed captioning display for 
digital television receivers have been in effect for over a decade. 
See 47 CFR 79.102; DTV Closed Captioning Order, 15 FCC Rcd at 16810, 
para. 66. Similar rules for other apparatus (such as computers and 
tablets) adopted in the IP Closed Captioning Order will begin 
applying to devices manufactured after January 1, 2014. See Closed 
Captioning of Internet Protocol-Delivered Video Programming: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010, MB Docket No. 11-154, Order on 
Reconsideration and Further Notice of Proposed Rulemaking, 28 FCC 
Rcd 8785, 8786, para. 1 (2013) (``IP Closed Captioning 
Reconsideration Order'').
    \14\ 47 U.S.C. 303(aa)(3), 303(bb)(2). Section 303(aa)(3) 
requires digital apparatus covered by Section 204 of the CVAA to 
provide ``built in access to [] 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.'' Id. 303(aa)(3) 
(emphasis added). Similarly, Section 303(bb)(2) requires 
``navigation devices with built-in closed captioning capability'' 
covered by Section 205 of the CVAA to provide ``access to that 
capability through a mechanism [that] is reasonably comparable to a 
button, key, or icon designated for activating the closed 
captioning, or accessibility features.'' Id. 303(bb)(2) (emphasis 
added).
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    7. In addition, to develop the record more fully on this issue, we 
seek comment on how we would implement a requirement to provide an 
activation mechanism reasonably comparable to a button, key, or icon 
with regard to user display settings for closed captioning, which, at 
the present time, typically require users to navigate through multiple 
on-screen text menus to select settings. Specifically, should we 
require, pursuant to Sections 303(aa)(3) and 303(bb)(2) of the Act, 
that covered entities facilitate the ability of viewers to locate and 
control such settings? Would inclusion of closed captioning settings in 
the first level of a menu be one way of achieving compliance with such 
a requirement? Alternatively, should the first level menu include a 
means of generally accessing ``accessibility features,'' which could 
then guide consumers to various features, including the closed 
captioning display settings, as well as any information about built-in 
or the peripheral provision of audible output for on-screen text menus 
(and program guides for 205 navigation devices)? With respect to 
Section 205 of the CVAA, would this approach provide the ``maximum 
flexibility'' to covered entities ``in the selection of means for 
compliance,'' as mandated by the statute? \15\ Should we require 
covered entities to consult with consumer groups to achieve best 
practices to ensure the accessibility of closed captioning settings? 
What time frame would be appropriate for requiring covered entities to 
provide a mechanism reasonably comparable to a button, key, or icon for 
activating the caption display user settings? We ask commenters to 
justify any deadline they propose by explaining what must be done by 
that deadline to comply with the proposed requirement.
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    \15\ Public Law 111-260, 205(b)(5).
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    8. Program Information for PEG Channels. We find in the Report and 
Order above that the record is insufficient to require MVPDs to include 
specific information in video programming guides and menus at this 
time. We seek comment on possible sources of authority for requiring 
MVPDs to ensure that video programming guides and menus that provide 
channel and program information include ``high level channel and 
program descriptions and titles, as well as a symbol identifying the 
programs with accessibility options (captioning and video 
description).'' For example, some commenters state that the Commission 
has direct authority under the CVAA to adopt this requirement. We seek 
comment on that assertion. We also seek comment from industry members 
on any technical issues that MVPDs may face in complying with a 
requirement to include specific information in video programming guides 
and menus, and in particular whether it is technically feasible for 
operators to provide this specific information for PEG or other 
programs. What are the costs that would be incurred by MVPDs, including 
small MVPDs, to comply with such a requirement, and what would be the 
benefits of adopting this requirement? Should such a requirement apply 
to all channels and programs included in a guide or menu, or should it 
apply only to PEG channels and programs?
    9. Accessing Secondary Audio Stream for Emergency Information (MB 
Docket No. 12-107). We seek comment on whether to require manufacturers 
of apparatus covered by Section 203 of the CVAA to provide access to 
the secondary audio stream used for audible emergency information by a 
mechanism reasonably comparable to a button, key, or icon. Section 203 
requires that apparatus designed to receive and play back video 
programming transmitted simultaneously with sound ``have the capability 
to . . . make available emergency information (as that term is

[[Page 77078]]

defined in Sec.  79.2 of the Commission's regulations []) in a manner 
that is accessible to individuals who are blind or visually impaired.'' 
\16\ In the Emergency Information/Video Description Order, we adopted 
rules implementing Section 202 of the CVAA that require video 
programming distributors, video programming providers, and program 
owners to convey televised emergency information aurally in a secondary 
audio stream, when such information is conveyed visually during 
programming other than newscasts, for example, in an on-screen 
crawl.\17\ We also adopted rules implementing Section 203 of the CVAA 
that ``require covered apparatus to decode and make available the 
secondary audio stream, in a manner that enables consumers to select 
the stream used for the transmission and delivery of emergency 
information.'' \18\ The record in this proceeding reflects the 
experiences of numerous individuals who are blind or visually impaired 
who currently are unable to get to the secondary audio stream to access 
video described programming because the mechanism for switching from 
the main program audio to the secondary audio stream is buried in on-
screen menus that are not accessible to them. While it is important 
that consumers who are blind or visually impaired be able to access the 
video description services that make video programming accessible to 
them, it is even more critical that consumers who are blind or visually 
impaired be able to access the audible emergency information that will 
be required to be provided via the secondary audio stream.
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    \16\ 47 U.S.C. 303(u)(1)(C). Section 203 also requires covered 
apparatus to ``have the capability to . . . make available the 
transmission and delivery of video description services.'' Id. 
303(u)(1)(B).
    \17\ See Accessible Emergency Information, and Apparatus 
Requirements for Emergency Information and Video Description: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010; Video Description: Implementation of the 
Twenty-First Century Communications and Video Accessibility Act of 
2010, MB Docket Nos. 12-107, 11-43, Report and Order and Further 
Notice of Proposed Rulemaking, 28 FCC Rcd 4871, 4881, para. 12 
(2013) (``Emergency Information/Video Description Order'').
    \18\ Id. at 4907, para. 50.
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    10. Section 303(u)(1)(C) requires covered apparatus to ``make 
available emergency information . . . in a manner that is accessible to 
individuals who are blind or visually impaired.'' \19\ Because of the 
critically urgent nature of emergency information, which is defined in 
our rules as ``[i]nformation, about a current emergency, that is 
intended to further the protection of life, health, safety, and 
property,'' \20\ we believe that individuals who are blind or visually 
impaired should be able to access the secondary audio stream to obtain 
audible emergency information in a simple, straightforward, and timely 
manner. Does Section 303(u)(1)(C) of the Act give the Commission 
authority to require that access to the secondary audio stream for 
audible emergency information on apparatus covered by Section 203 be 
available in a simple, straightforward, and timely manner, such as 
through a mechanism that is reasonably comparable to a button, key, or 
icon? Or, is the Commission's authority to impose such a requirement 
limited to the Section 204 or 205 context? For example, because 
Congress specifically required a mechanism reasonably comparable to a 
button, key, or icon in Sections 204 and 205 but did not do so in 
Section 203, does the statute restrict the Commission from imposing 
such a requirement in the Section 203 context? We also seek comment on 
the costs and benefits of imposing these requirements on covered 
entities, including small entities.
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    \19\ 47 U.S.C. 303(u)(1)(C).
    \20\ 47 CFR 79.2(a)(2).
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    11. We invite input on how we would implement a requirement that 
entities covered by Section 203 of the CVAA provide access to the 
secondary audio stream used for audible emergency information by a 
mechanism reasonably comparable to a button, key, or icon. What time 
frame would be appropriate for requiring covered entities to provide a 
mechanism reasonably comparable to a button, key, or icon for accessing 
the secondary audio stream? Should the deadline be consistent with the 
deadline for compliance with Section 203 apparatus requirements that we 
adopted in the Emergency Information/Video Description Order? \21\ Or 
would device manufacturers need additional time to come into 
compliance? We ask commenters to justify any deadline they propose by 
explaining what must be done by that deadline to comply with the 
proposed requirement. We also seek comment on the costs to 
manufacturers, including those that are small entities, and the 
benefits to consumers of requiring access to the secondary audio stream 
used for audible emergency information by a mechanism reasonably 
comparable to a button, key, or icon.
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    \21\ See Emergency Information/Video Description Order, 28 FCC 
Rcd at 4923, para. 76 (imposing a deadline of two years from the 
date of Federal Register publication for compliance with the 
emergency information and video description apparatus requirements 
of Section 203 adopted therein; the compliance deadline is May 26, 
2015).
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    12. Additional MVPD Notice. The accompanying Report and Order 
concludes that MVPDs subject to Section 205 must inform their 
subscribers about the availability of audibly accessible devices and 
accessibility solutions pursuant to Section 205(b)(1). Specifically, we 
require that, when providing information about equipment options in 
response to a consumer inquiry about service, accessibility, or other 
issues, MVPDs must clearly and conspicuously inform consumers about the 
availability of accessible navigation devices. We also require that 
MVPDs provide notice on their official Web sites about the availability 
of accessible navigation devices. We seek comment on whether we should 
impose additional notification requirements on MVPDs and, if so, what 
those notification requirements should be. Should we require annual 
notices to all subscribers, as proposed by Montgomery County? \22\ 
Should MVPDs be required to include this information on or with every 
monthly bill? Are there other methods by which we should require MVPDs 
to publicize information about their audibly accessible devices and 
accessibility solutions? For example, should MVPDs be required to 
notify consumers about the availability of accessible devices or 
accessibility solutions in marketing efforts, through their customer 
service centers and phone systems, or by other means? If so, describe 
what those measures should be and the costs and benefits associated 
with such measures to covered entities, including small entities. To 
what extent should voluntary notification efforts by covered MVPDs 
obviate the need for additional requirements?
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    \22\ If so, should the annual requirement be limited to no more 
than five years after the rules become effective? Should the notices 
occur more frequently than annually, such as on a monthly or 
quarterly basis?
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    13. We seek specific comment from individuals who are blind or 
visually impaired about the types of MVPD notices that would most 
effectively communicate information about the availability of audibly 
accessible devices and accessibility solutions. We also seek comment 
about whether MVPD notification requirements are necessary to inform 
consumers about the availability of devices with an accessible 
activation mechanism for built-in closed captioning and, if so, what 
those notification requirements should be. We seek specific comment 
from individuals who are deaf or hard of hearing about the types of 
notices that

[[Page 77079]]

would most effectively communicate this information.
    14. Equipment Manufacturer Notice. We tentatively conclude that 
equipment manufacturers subject to Section 205 should be required 
pursuant to Section 205(b)(1) to inform consumers about the 
availability of audibly accessible devices and accessibility solutions. 
We propose that equipment manufacturers must prominently display 
accessibility information on their official Web sites, such as a 
through a link on their home pages. Similar to our requirement on 
MVPDs, such notices must publicize the availability of accessible 
devices and solutions and convey ``the means for making requests for 
accessible equipment and the specific person, office or entity to whom 
such requests are to be made.'' In addition, we seek comment on whether 
we need to impose additional notification requirements on equipment 
manufacturers subject to Section 205 and, if so, what those 
notification requirements should be. Should manufacturers also be 
required to notify consumers about the availability of audibly 
accessible devices or accessibility solutions in marketing efforts, 
through their customer service centers and phone systems, or by other 
means? If so, describe what those measures should be and the costs and 
benefits associated with those measures to covered entities, including 
small entities.
    15. If manufacturers choose to make available Section 303(bb)(1)-
compliant devices or solutions at retail in the same way they make 
available other navigation devices in order to satisfy the ``upon 
request'' requirement in Section 205, should we require them to notify 
consumers at the point of sale that audibly accessible devices or 
accessibility solutions are available to consumers with disabilities to 
purchase or request. What should be the form of such a notice 
requirement? For example, do we need to impose a labeling requirement 
to identify Section 303(bb)(1) audibly accessible devices, or can 
manufacturers otherwise ensure adequate information to consumers at the 
point of sale about which devices contain the required accessibility 
features? To what extent should voluntary notification efforts by 
covered equipment manufacturers obviate the need for any specific 
notice requirements? We seek comment on the costs and benefits 
associated with such requirements on covered entities, including small 
entities. We seek specific comment from individuals who are blind or 
visually impaired about the types of equipment manufacturer notices 
that would most effectively communicate information about the 
availability of audibly accessible devices and accessibility solutions. 
We also seek comment about whether equipment manufacturer notification 
requirements are necessary to inform consumers about the availability 
of devices with an accessible activation mechanism for built-in closed 
captioning and, if so, what those notification requirements should be. 
We seek specific comment from individuals who are deaf or hard of 
hearing about the types of notices that would most effectively 
communicate this information.
    16. We seek comment on whether we need to impose notification 
requirements on equipment manufacturers subject to Section 204 to 
ensure consumers with disabilities are informed about which products 
contain the required accessibility features and which ones lack such 
features. To the extent we should adopt any notification requirements, 
we ask parties to describe what those notification requirements should 
be and the costs and benefits associated with any such requirements to 
covered entities, including small entities. Similar to our proposal for 
Section 205 covered equipment manufacturers, should we require Section 
204 covered equipment manufacturers to display accessibility 
information on their official Web sites prominently, such as a through 
a link on their home pages? Such information might include a point of 
contact, as well as other information about how to seek assistance 
about accessibility issues or concerns. Should we require that customer 
service representatives of covered entities be able to answer consumer 
questions about which products contain the required accessibility 
features and which ones lack such features? How can manufacturers 
ensure that consumers are provided with accessibility information at 
the point of sale? For example, do we need to impose a labeling 
requirement to identify accessible digital apparatus, or can 
manufacturers otherwise ensure adequate information to consumers at the 
point of sale about which apparatus contain the required accessibility 
features? To what extent should voluntary notification efforts by 
covered equipment manufacturers obviate the need for any specific 
notice requirements? We seek specific comment from individuals who are 
blind or visually impaired and who are deaf or hard of hearing about 
the types of notices that would most effectively communicate this 
information.

III. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    17. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\23\ 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 FNPRM. 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 as specified in the FNPRM. The 
Commission will send a copy of the FNPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration 
(``SBA'').\24\ In addition, the FNPRM and this IRFA (or summaries 
thereof) will be published in the Federal Register.\25\
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    \23\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 857 
(1996).
    \24\ See 5 U.S.C. 603(a).
    \25\ See id.
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1. Need for, and Objectives of, the Proposed Rule Changes
    18. The FNPRM seeks comment on several issues relating to 
implementation of Sections 204 and 205 of the Twenty-First Century 
Communications and Video Accessibility Act of 2010 (``CVAA''). In 
general, these provisions direct the Commission to adopt rules 
requiring that 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 or visually impaired 
people. Section 205 directs the Commission to require that ``on-screen 
text menus and guides provided by navigation devices'' be made 
accessible upon request by blind or visually impaired individuals. Both 
of these provisions also require that covered devices provide a 
mechanism that is ``reasonably comparable to a button, key, or icon 
designated for activating'' closed captioning, video description, and 
accessibility features. In the FNPRM, the Commission also seeks comment 
on whether Section 203 of the CVAA provides the agency with authority 
to require apparatus covered by that provision to make the secondary 
audio stream used for audible emergency information accessible

[[Page 77080]]

through a mechanism reasonably comparable to a button, key, or icon.
    19. The Report and Order accompanying the FNPRM adopts rules 
requiring the accessibility of user interfaces on digital apparatus and 
navigation devices used to view video programming. The rules adopted in 
the Report and Order effectuate Congress's goals in enacting Sections 
204 and 205 of the CVAA by: (1) enabling individuals who are blind or 
visually impaired to more easily access video programming on a range of 
devices; and (2) enabling consumers who are deaf or hard of hearing to 
more easily activate closed captioning on video programming devices. By 
imposing requirements with regard to the accessibility of user 
interfaces and video programming guides and menus, the rules adopted in 
the Report and Order advance Congress's objective in 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.'' \26\ In the FNPRM, the 
Commission seeks comment on the adoption of targeted additional rules 
to implement Sections 204 and 205 of the CVAA, as discussed in Section 
D below.
---------------------------------------------------------------------------

    \26\ H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010); 
S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010).
---------------------------------------------------------------------------

2. Legal Basis
    20. The proposed action is authorized pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority contained in sections 4(i), 
4(j), 303(aa), 303(bb), 303(r), 303(u), and 716(g) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(aa), 303(bb), 303(r), 303(u), 617(g).
3. Description and Estimate of the Number of Small Entities to Which 
the Proposals Will Apply
    21. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted in the Report and Order.\27\ The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \28\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\29\ 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.\30\ Small entities that are directly affected 
by the rules adopted in the Report and Order and proposed in the FNPRM 
include manufacturers of digital apparatus, MVPDs leasing or selling 
navigation devices, equipment manufacturers of navigation devices that 
place devices into the chain of commerce for sale to consumers, and 
other manufacturers of navigation device hardware and software.
---------------------------------------------------------------------------

    \27\ 5 U.S.C. 603(b)(3).
    \28\ Id. 601(6).
    \29\ Id. 601(3) (incorporating by reference the definition of 
``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \30\ 15 U.S.C. 632.
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    22. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers, which was developed for small 
wireline businesses. This category is defined as follows: ``This 
industry comprises establishments primarily engaged in operating and/or 
providing access to transmission facilities and infrastructure that 
they own and/or lease for the transmission of voice, data, text, sound, 
and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including VoIP 
services; wired (cable) audio and video programming distribution; and 
wired broadband Internet services.''\31\ The SBA has developed a small 
business size standard for this category, which is: all such businesses 
having 1,500 or fewer employees.\32\ Census data for 2007 shows that 
there were 31,996 establishments that operated that year.\33\ Of this 
total, 30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees.\34\ Therefore, under this 
size standard, we estimate that the majority of businesses can be 
considered small entities.
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    \31\ U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers'' (partial definition) at https://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this 
category are: Broadband Internet service providers (e.g., cable, 
DSL); local telephone carriers (wired); cable television 
distribution services; long-distance telephone carriers (wired); 
closed circuit television (``CCTV'') services; VoIP service 
providers, using own operated wired telecommunications 
infrastructure; direct-to-home satellite system (``DTH'') services; 
telecommunications carriers (wired); satellite television 
distribution systems; and multichannel multipoint distribution 
services (``MMDS'').
    \32\ 13 CFR 121.201; 2012 NAICS code 517110.
    \33\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \34\ Id.
---------------------------------------------------------------------------

    23. 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.\35\ Industry data 
shows that there were 1,141 cable companies at the end of June 
2012.\36\ Of this total, all but 10 incumbent cable companies are small 
under this size standard.\37\ In addition, under the Commission's rate 
regulation rules, a ``small system'' is a cable system serving 15,000 
or fewer subscribers.\38\ Current Commission records show 4,945

[[Page 77081]]

cable systems nationwide.\39\ Of this total, 4,380 cable systems have 
less than 20,000 subscribers, and 565 systems have 20,000 subscribers 
or more, based on the same records. Thus, under this standard, we 
estimate that most cable systems are small.
---------------------------------------------------------------------------

    \35\ 47 CFR 76.901(e). The Commission determined that this size 
standard equates approximately to a size standard of $100 million or 
less in annual revenues. Implementation of Sections of the Cable 
Television Consumer Protection And Competition Act of 1992: Rate 
Regulation, MM Docket No. 92-266, MM Docket No. 93-215, Sixth Report 
and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 
7408 (1995).
    \36\ NCTA, Industry Data, Number of Cable Operating Companies 
(June 2012), https://www.ncta.com/Statistics.aspx (visited Sept. 28, 
2012). Depending upon the number of homes and the size of the 
geographic area served, cable operators use one or more cable 
systems to provide video service. See Annual Assessment of the 
Status of Competition in the Market for Delivery of Video 
Programming, MB Docket No. 12-203, Fifteenth Report, 28 FCC Rcd 
10496,10505-06 para. 24 (2013) (``15th Annual Competition Report'').
    \37\ See SNL Kagan, ``Top Cable MSOs--12/12 Q''; available at 
https://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2012Q4&sortcol=subscribersbasic&sortorder=desc. We note that, when applied to an MVPD operator, under this size 
standard (i.e., 400,000 or fewer subscribers) all but 14 MVPD 
operators would be considered small. See NCTA, Industry Data, Top 25 
Multichannel Video Service Customers (2012), https://www.ncta.com/industry-data (visited Aug. 30, 2013). The Commission applied this 
size standard to MVPD operators in its implementation of the CALM 
Act. See Implementation of the Commercial Advertisement Loudness 
Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, 26 FCC 
Rcd 17222, 17245-46, para. 37 (2011) (``CALM Act Report and Order'') 
(defining a smaller MVPD operator as one serving 400,000 or fewer 
subscribers nationwide, as of December 31, 2011).
    \38\ 47 CFR 76.901(c).
    \39\ The number of active, registered cable systems comes from 
the Commission's Cable Operations and Licensing System (COALS) 
database on Aug. 28, 2013. A cable system is a physical system 
integrated to a principal headend.
---------------------------------------------------------------------------

    24. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, also contains a size standard 
for small cable system operators, which is ``a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 1 
percent of all subscribers in the United States and is not affiliated 
with any entity or entities whose gross annual revenues in the 
aggregate exceed $250,000,000.'' \40\ There are approximately 56.4 
million incumbent cable video subscribers in the United States 
today.\41\ Accordingly, an operator serving fewer than 564,000 
subscribers shall be deemed a small operator, if its annual revenues, 
when combined with the total annual revenues of all its affiliates, do 
not exceed $250 million in the aggregate.\42\ Based on available data, 
we find that all but 10 incumbent cable operators are small under this 
size standard.\43\ 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.\44\ 
Although it seems certain that some of these cable system operators are 
affiliated with entities whose gross annual revenues exceed 
$250,000,000, we are unable at this time to estimate with greater 
precision the number of cable system operators that would qualify as 
small cable operators under the definition in the Communications Act.
---------------------------------------------------------------------------

    \40\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.
    \41\ See NCTA, Industry Data, Cable Video Customers (2012), 
https://www.ncta.com/industry-data (visited Aug. 30, 2013).
    \42\ 47 CFR 76.901(f); see Public Notice, FCC Announces New 
Subscriber Count for the Definition of Small Cable Operator, DA 01-
158 (Cable Services Bureau, Jan. 24, 2001).
    \43\ See NCTA, Industry Data, Top 25 Multichannel Video Service 
Customers (2012), https://www.ncta.com/industry-data (visited Aug. 
30, 2013).
    \44\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's 
finding that the operator does not qualify as a small cable operator 
pursuant to Sec.  76.901(f) of the Commission's rules. See 47 CFR 
76.901(f).
---------------------------------------------------------------------------

    25. 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,\45\ which was developed for small wireline businesses. Under 
this category, the SBA deems a wireline business to be small if it has 
1,500 or fewer employees.\46\ Census data for 2007 shows that there 
were 31,996 establishments that operated that year.\47\ Of this total, 
30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees.\48\ Therefore, under this 
size standard, the majority of such businesses can be considered small. 
However, the data we have available as a basis for estimating the 
number of such small entities were gathered under a superseded SBA 
small business size standard formerly titled ``Cable and Other Program 
Distribution.'' The definition of Cable and Other Program Distribution 
provided that a small entity is one with $12.5 million or less in 
annual receipts.\49\ Currently, only two entities provide DBS service, 
which requires a great investment of capital for operation: DIRECTV and 
DISH Network.\50\ Each currently offer subscription services. DIRECTV 
and DISH Network each report annual revenues that are in excess of the 
threshold for a small business. Because DBS service requires 
significant capital, we believe it is unlikely that a small entity as 
defined by the SBA would have the financial wherewithal to become a DBS 
service provider.
---------------------------------------------------------------------------

    \45\ See 13 CFR 121.201; 2012 NAICS code 517110. This category 
of Wired Telecommunications Carriers is defined as follows: ``This 
industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single 
technology or a combination of technologies. Establishments in this 
industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet 
services. By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.'' (Emphasis added 
to text relevant to satellite services.) U.S. Census Bureau, 2012 
NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at 
https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \46\ 13 CFR 121.201; 2012 NAICS code 517110.
    \47\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \48\ Id.
    \49\ 13 CFR 121.201; NAICS code 517510 (2002).
    \50\ See 15th Annual Competition Report, 28 FCC Rcd at 10507 
para. 27. As of June 2012, DIRECTV is the largest DBS operator and 
the second largest MVPD in the United States, serving approximately 
19.9 million subscribers. DISH Network is the second largest DBS 
operator and the third largest MVPD, serving approximately 14.1 
million subscribers. Id. at paras. 27, 110-11.
---------------------------------------------------------------------------

    26. Satellite Master Antenna Television (SMATV) Systems, also known 
as Private Cable Operators (PCOs). SMATV systems or PCOs are video 
distribution facilities that use closed transmission paths without 
using any public right-of-way. They acquire video programming and 
distribute it via terrestrial wiring in urban and suburban multiple 
dwelling units such as apartments and condominiums, and commercial 
multiple tenant units such as hotels and office buildings. SMATV 
systems or PCOs are now included in the SBA's broad economic census 
category, Wired Telecommunications Carriers,\51\ which was developed 
for small wireline businesses. Under this category, the SBA deems a 
wireline business to be small if it has 1,500 or fewer employees.\52\ 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year.\53\ Of this total, 30,178 establishments had fewer 
than 100 employees, and 1,818 establishments had 100 or more 
employees.\54\ Therefore, under this size standard, the majority of 
such businesses can be considered small.
---------------------------------------------------------------------------

    \51\ See 13 CFR 121.201; 2012 NAICS code 517110. This category 
of Wired Telecommunications Carriers is defined as follows: ``This 
industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single 
technology or a combination of technologies. Establishments in this 
industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet 
services. By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.'' (Emphasis added 
to text relevant to satellite services.) U.S. Census Bureau, 2012 
NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at 
https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \52\ 13 CFR 121.201; 2012 NAICS code 517110.
    \53\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \54\ Id.
---------------------------------------------------------------------------

    27. Home Satellite Dish (HSD) Service. HSD or the large dish 
segment

[[Page 77082]]

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.\55\ The SBA has developed a small business size standard for 
this category, which is: all such businesses having 1,500 or fewer 
employees.\56\ Census data for 2007 shows that there were 31,996 
establishments that operated that year.\57\ Of this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees.\58\ Therefore, under this size standard, we 
estimate that the majority of businesses can be considered small 
entities.
---------------------------------------------------------------------------

    \55\ See 13 CFR 121.201; 2012 NAICS code 517110. This category 
of Wired Telecommunications Carriers is defined in part as follows: 
``This industry comprises establishments primarily engaged in 
operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single 
technology or a combination of technologies. Establishments in this 
industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet 
services.'' U.S. Census Bureau, 2012 NAICS Definitions, ``517110 
Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \56\ 13 CFR 121.201; 2012 NAICS code 517110.
    \57\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \58\ Id.
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    28. Open Video Services. The open video system (OVS) framework was 
established in 1996, and is one of four statutorily recognized options 
for the provision of video programming services by local exchange 
carriers.\59\ The OVS framework provides opportunities for the 
distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services,\60\ OVS falls 
within the SBA small business size standard covering cable services, 
which is Wired Telecommunications Carriers.\61\ The SBA has developed a 
small business size standard for this category, which is: all such 
businesses having 1,500 or fewer employees.\62\ Census data for 2007 
shows that there were 31,996 establishments that operated that 
year.\63\ Of this total, 30,178 establishments had fewer than 100 
employees, and 1,818 establishments had 100 or more employees.\64\ 
Therefore, under this size standard, we estimate that the majority of 
businesses can be considered small entities. In addition, we note that 
the Commission has certified some OVS operators, with some now 
providing service.\65\ Broadband service providers (``BSPs'') are 
currently the only significant holders of OVS certifications or local 
OVS franchises.\66\ The Commission does not have financial or 
employment information regarding the entities authorized to provide 
OVS, some of which may not yet be operational. Thus, again, at least 
some of the OVS operators may qualify as small entities.
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    \59\ 47 U.S.C. 571(a)(3)-(4). See Annual Assessment of the 
Status of Competition in the Market for the Delivery of Video 
Programming, MB Docket No. 06-189, Thirteenth Annual Report, 24 FCC 
Rcd 542, 606, para. 135 (2009) (``Thirteenth Annual Cable 
Competition Report'').
    \60\ See 47 U.S.C. 573.
    \61\ See 13 CFR 121.201; 2012 NAICS code 517110. This category 
of Wired Telecommunications Carriers is defined in part as follows: 
``This industry comprises establishments primarily engaged in 
operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single 
technology or a combination of technologies. Establishments in this 
industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet 
services.'' U.S. Census Bureau, 2012 NAICS Definitions, ``517110 
Wired Telecommunications Carriers'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \62\ 13 CFR 121.201; 2012 NAICS code 517110.
    \63\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \64\ Id.
    \65\ A list of OVS certifications may be found at https://www.fcc.gov/mb/ovs/csovscer.html.
    \66\ See Thirteenth Annual Cable Competition Report, 24 FCC Rcd 
at 606-07, para. 135. BSPs are newer businesses that are building 
state-of-the-art, facilities-based networks to provide video, voice, 
and data services over a single network.
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    29. Wireless cable systems--Broadband Radio Service and Educational 
Broadband Service. Wireless cable systems use the Broadband Radio 
Service (BRS) \67\ and Educational Broadband Service (EBS) \68\ to 
transmit video programming to subscribers. In connection with the 1996 
BRS auction, the Commission established a small business size standard 
as an entity that had annual average gross revenues of no more than $40 
million in the previous three calendar years.\69\ 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.\70\ 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.\71\ 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

[[Page 77083]]

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.\72\ Auction 86 concluded in 2009 with the sale of 61 licenses.\73\ 
Of the 10 winning bidders, two bidders that claimed small business 
status won four licenses; one bidder that claimed very small business 
status won three licenses; and two bidders that claimed entrepreneur 
status won six licenses.
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    \67\ BRS was previously referred to as Multipoint Distribution 
Service (MDS) and Multichannel Multipoint Distribution Service 
(MMDS). See Amendment of Parts 21 and 74 of the Commission's Rules 
with Regard to Filing Procedures in the Multipoint Distribution 
Service and in the Instructional Television Fixed Service and 
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, 
Report and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995).
    \68\ EBS was previously referred to as the Instructional 
Television Fixed Service (ITFS). See id.
    \69\ 47 CFR 21.961(b)(1).
    \70\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of Section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard of 1,500 or fewer employees.
    \71\ Auction of Broadband Radio Service (BRS) Licenses, 
Scheduled for October 27, 2009, Notice and Filing Requirements, 
Minimum Opening Bids, Upfront Payments, and Other Procedures for 
Auction 86, Public Notice, 24 FCC Rcd 8277 (2009).
    \72\ Id. at 8296.
    \73\ Auction of Broadband Radio Service Licenses Closes, Winning 
Bidders Announced for Auction 86, Down Payments Due November 23, 
2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny 
Period, Public Notice, 24 FCC Rcd 13572 (2009).
---------------------------------------------------------------------------

    30. In addition, the SBA's placement of Cable Television 
Distribution Services in the category of Wired Telecommunications 
Carriers is applicable to cable-based Educational Broadcasting 
Services. Since 2007, these services have been defined within the broad 
economic census category of Wired Telecommunications Carriers, which 
was developed for small wireline businesses. This category is defined 
as follows: ``This industry comprises establishments primarily engaged 
in operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services; wired (cable) audio and video programming 
distribution; and wired broadband Internet services.'' \74\ The SBA has 
developed a small business size standard for this category, which is: 
all such businesses having 1,500 or fewer employees.\75\ Census data 
for 2007 shows that there were 31,996 establishments that operated that 
year.\76\ Of this total, 30,178 establishments had fewer than 100 
employees, and 1,818 establishments had 100 or more employees.\77\ 
Therefore, under this size standard, we estimate that the majority of 
businesses can be considered small entities. In addition to Census 
data, the Commission's internal records indicate that as of September 
2012, there are 2,241 active EBS licenses.\78\ 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.\79\
---------------------------------------------------------------------------

    \74\ U.S. Census Bureau, 2012 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers'' (partial definition) at https://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this 
category are: broadband Internet service providers (e.g., cable, 
DSL); local telephone carriers (wired); cable television 
distribution services; long-distance telephone carriers (wired); 
closed circuit television (``CCTV'') services; VoIP service 
providers, using own operated wired telecommunications 
infrastructure; direct-to-home satellite system (``DTH'') services; 
telecommunications carriers (wired); satellite television 
distribution systems; and multichannel multipoint distribution 
services (``MMDS'').
    \75\ 13 CFR 121.201; 2012 NAICS code 517110.
    \76\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \77\ Id.
    \78\ https://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp.
    \79\ The term ``small entity'' within SBREFA applies to small 
organizations (non-profits) and to small governmental jurisdictions 
(cities, counties, towns, townships, villages, school districts, and 
special districts with populations of less than 50,000). 5 U.S.C. 
601(4)-(6).
---------------------------------------------------------------------------

    31. Incumbent Local Exchange Carriers (ILECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. ILECs are included 
in the SBA's economic census category, Wired Telecommunications 
Carriers.\80\ Under this category, the SBA deems a wireline business to 
be small if it has 1,500 or fewer employees.\81\ Census data for 2007 
shows that there were 31,996 establishments that operated that 
year.\82\ Of this total, 30,178 establishments had fewer than 100 
employees, and 1,818 establishments had 100 or more employees.\83\ 
Therefore, under this size standard, the majority of such businesses 
can be considered small.
---------------------------------------------------------------------------

    \80\ See 13 CFR 121.201; 2012 NAICS code 517110. This category 
of Wired Telecommunications Carriers is defined as follows: ``This 
industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single 
technology or a combination of technologies. Establishments in this 
industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet 
services. By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.'' (Emphasis added 
to text relevant to satellite services.) U.S. Census Bureau, 2012 
NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at 
https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \81\ 13 CFR 121.201; 2012 NAICS code 517110.
    \82\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \83\ Id.
---------------------------------------------------------------------------

    32. 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.'' \84\ 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.\85\ 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.
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    \84\ 15 U.S.C. 632.
    \85\ Letter from Jere W. Glover, Chief Counsel for Advocacy, 
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small 
Business Act contains a definition of ``small-business concern,'' 
which the RFA incorporates into its own definition of ``small 
business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 
601(3) (RFA). SBA regulations interpret ``small business concern'' 
to include the concept of dominance on a national basis. See 13 CFR 
121.102(b).
---------------------------------------------------------------------------

    33. Competitive Local Exchange Carriers (CLECs), Competitive Access 
Providers (CAPs), Shared-Tenant Service Providers, and Other Local 
Service Providers. Neither the Commission nor the SBA has developed a 
small business size standard specifically for these service providers. 
These entities are included in the SBA's economic census category, 
Wired Telecommunications Carriers.\86\ Under

[[Page 77084]]

this category, the SBA deems a wireline business to be small if it has 
1,500 or fewer employees.\87\ Census data for 2007 shows that there 
were 31,996 establishments that operated that year.\88\ Of this total, 
30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees.\89\ Therefore, under this 
size standard, the majority of such businesses can be considered small.
---------------------------------------------------------------------------

    \86\ See 13 CFR 121.201; 2012 NAICS code 517110. This category 
of Wired Telecommunications Carriers is defined as follows: ``This 
industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single 
technology or a combination of technologies. Establishments in this 
industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired 
telephony services, including VoIP services; wired (cable) audio and 
video programming distribution; and wired broadband Internet 
services. By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.'' (Emphasis added 
to text relevant to satellite services.) U.S. Census Bureau, 2012 
NAICS Definitions, ``517110 Wired Telecommunications Carriers'' at 
https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \87\ 13 CFR 121.201; 2012 NAICS code 517110.
    \88\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Information: Subject Series--Estab 
and Firm Size: Employment Size of Establishments for the United 
States: 2007--2007 Economic Census,'' NAICS code 517110, Table 
EC0751SSSZ2; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \89\ Id.
---------------------------------------------------------------------------

    34. 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.'' \90\ The SBA has developed a small business 
size standard for this category, which is: all such businesses having 
750 or fewer employees.\91\ Census data for 2007 shows that there were 
939 establishments that operated for part or all of the entire 
year.\92\ Of those, 912 operated with fewer than 500 employees, and 27 
operated with 500 or more employees.\93\ Therefore, under this size 
standard, the majority of such establishments can be considered small.
---------------------------------------------------------------------------

    \90\ U.S. Census Bureau, 2012 NAICS Definitions, ``334220 Radio 
and Television Broadcasting and Wireless Communications Equipment 
Manufacturing'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \91\ 13 CFR 121.201; 2012 NAICS code 334220.
    \92\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Manufacturing: Summary Series: 
General Summary: Industry Statistics for Subsectors and Industries 
by Employment Size: 2007--2007 Economic Census,'' NAICS code 334220, 
Table EC0731SG3; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \93\ Id.
---------------------------------------------------------------------------

    35. Audio and Video Equipment Manufacturing. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in manufacturing electronic audio and 
video equipment for home entertainment, motor vehicles, and public 
address and musical instrument amplification. Examples of products made 
by these establishments are video cassette recorders, televisions, 
stereo equipment, speaker systems, household-type video cameras, 
jukeboxes, and amplifiers for musical instruments and public address 
systems.'' \94\ The SBA has developed a small business size standard 
for this category, which is: all such businesses having 750 or fewer 
employees.\95\ Census data for 2007 shows that there were 492 
establishments in this category operated for part or all of the entire 
year.\96\ Of those, 488 operated with fewer than 500 employees, and 
four operated with 500 or more employees.\97\ Therefore, under this 
size standard, the majority of such establishments can be considered 
small.
---------------------------------------------------------------------------

    \94\ U.S. Census Bureau, 2012 NAICS Definitions, ``334310 Audio 
and Video Equipment Manufacturing'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \95\ 13 CFR 121.201; 2012 NAICS code 334310.
    \96\ U.S. Census Bureau, 2007 Economic Census. See U.S. Census 
Bureau, American FactFinder, ``Manufacturing: Summary Series: 
General Summary: Industry Statistics for Subsectors and Industries 
by Employment Size: 2007--2007 Economic Census,'' NAICS code 334310, 
Table EC0731SG3; available at https://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
    \97\ Id.
---------------------------------------------------------------------------

4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    36. In the accompanying Report and Order, the Commission adopted 
rules establishing the general regulatory framework applicable to 
entities subject to Sections 204 and 205 of the CVAA. The Commission, 
in the FNPRM, proposes a few additional rules to address possible gaps 
in coverage of rules adopted in the Report and Order. In this section, 
we describe the reporting, recordkeeping, and other compliance 
requirements proposed in the FNPRM and consider whether small entities 
are affected disproportionately by any such requirements.
    37. Recordkeeping Requirements. The FNPRM proposes certain 
recordkeeping requirements that would be applicable to covered small 
entities. In particular, the FNPRM:
     Proposes to implement the requirement that covered 
apparatus make appropriate built-in functions ``usable by'' individuals 
who are blind or visually impaired, by defining the term ``usable,'' 
and by adopting information, documentation, and training requirements 
that are analogous to rules the Commission has adopted in other CVAA 
contexts;
     seeks comment on whether to adopt additional consumer 
notification requirements for MVPDs, and what those requirements should 
be;
     tentatively concludes that equipment manufacturers subject 
to Section 205 should be required to inform consumers about the 
availability of accessible devices and accessibility solutions, 
proposes that equipment manufacturers must prominently display 
accessibility information on their official Web site, and seeks comment 
on whether additional notification requirements are necessary and, if 
so, what those requirements should be; and
     requests comment on whether to impose notification 
requirements on equipment manufacturers subject to Section 204 to 
ensure consumers with disabilities are informed about which products 
contain the required accessibility features and which ones lack such 
features.
    38. Other Compliance Requirements. The FNPRM proposes other 
compliance requirements that would be applicable to covered small 
entities. In particular, the FNPRM:
     Seeks comment on whether the phrase ``accessibility 
features'' in Sections 303(aa)(3) and 303(bb)(2) of the Act includes 
user display settings for closed captioning, whether those sections can 
be interpreted to require covered entities to ensure that consumers are 
able to locate and control such settings, and how the Commission would 
implement a requirement to provide an activation mechanism reasonably 
comparable to a button, key or icon with regard to user display 
settings for closed captioning;
     seeks comment on whether to require manufacturers of 
apparatus covered by Section 203 of the CVAA to provide access to the 
secondary audio stream used for audible emergency information by a 
mechanism reasonably comparable to a button, key, or icon, and how to 
implement such a requirement.
    39. Because no commenter provided specific information quantifying 
the costs and administrative burdens associated with the rules adopted 
in the accompanying Report and Order, we cannot precisely estimate the 
impact of the rules proposed in the FNPRM on small entities. As 
discussed in Section E infra, however, Sections 204 and 205 of the CVAA 
afford covered entities maximum flexibility in the means and manner of 
complying with the statute

[[Page 77085]]

and its implementing rules, including those proposed in the FNPRM. In 
addition, entities subject to Sections 203, 204 and 205 need not comply 
with certain accessibility requirements if they are able to demonstrate 
to the Commission that compliance is not achievable.\98\
---------------------------------------------------------------------------

    \98\ See 47 U.S.C. 303(u)(2) (requiring that certain apparatus 
comply with accessibility requirements in Section 303(u)(1) of the 
Act only ``if achievable''); 47 U.S.C. 303(aa)(1) (requiring, among 
other things, that certain digital apparatus be designed, developed, 
and fabricated so that control of appropriate built-in functions are 
accessible to and usable by individuals who are blind or visually 
impaired ``if achievable''); 303(bb)(1) (requiring, among other 
things, that certain on-screen text menus and guides be audibly 
accessible in real time ``if achievable'').
---------------------------------------------------------------------------

    40. Based on the record of this proceeding, MVPDs, in particular, 
have expressed concern regarding the potential for the rules adopted in 
accompanying Report and Order to place a disproportionate economic 
impact on smaller MVPDs. In particular, NCTA and NTCA have asserted 
that the rules proposed in the Notice of Proposed Rulemaking likely 
would affect small companies to a greater extent than large companies. 
Thus, while the economic impact of the rules on small entities is not 
quantifiable at this time, based on the general assertions of these 
parties, it appears likely that the proposed rules, if adopted, would 
affect small MVPDs disproportionately. As a result, the Commission in 
Section E below considers alternatives that have the potential to 
minimize the economic effect of its proposed rules on small entities, 
consistent with Congress's mandates in Sections 203, 204 and 205.\99\
---------------------------------------------------------------------------

    \99\ We note that SBA filed comments in response to the initial 
IRFA in this proceeding expressing concerns regarding the IRFA's 
compliance with the RFA. In view of SBA's concerns, we discuss in 
greater detail in this IRFA the potential disproportionate impact on 
small entities of the rules proposed in the FNPRM, as well as 
discussing the impact of the final rules on such entities.
---------------------------------------------------------------------------

5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered
    41. 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 and 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.\100\
---------------------------------------------------------------------------

    \100\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

    42. Similar to the rules promulgated in the accompanying Report and 
Order, the rules proposed in the FNPRM, if adopted, could have a 
significant economic impact on a substantial number of small 
entities.\101\ Although the proposals in the FNPRM stem from the 
Congressional mandates set forth in Sections 203, 204 and 205 of the 
CVAA, the Commission has considered whether any alternatives exist that 
would allow it to minimize the economic impact of such proposals (if 
adopted) on small entities. As discussed below, Sections 203, 204 and 
205 of the CVAA each contain provisions that allow the Commission to 
tailor its rules, as necessary, to small entities for whom compliance 
with such rules is economically burdensome.
---------------------------------------------------------------------------

    \101\ In the FNPRM, the Commission seeks comment on the impact 
of its proposed rules on small entities.
---------------------------------------------------------------------------

    43. First, an entity (including a small entity) subject to Sections 
203, 204 and 205 can avoid compliance with certain accessibility 
requirements if it is able to demonstrate to the Commission that such 
compliance is not ``achievable'' (i.e., cannot be accomplished with 
reasonable effort or expense). In the accompanying Report and Order, 
the Commission adopted procedures enabling it to determine that a 
particular entity, including a small entity, need not comply with the 
accessibility requirements in Sections 204 and 205 where such entity 
has made this showing.\102\ These procedures will allow the Commission 
to address the impact of the rules on individual entities, including 
smaller entities, on a case-by-case basis, and to modify application of 
its rules to accommodate individual circumstances, thereby potentially 
reducing the costs of compliance for such entities. We note that two of 
the four statutory factors that the Commission must consider in 
assessing achievability are particularly relevant to small entities: 
(i) the nature and cost of the steps needed to meet the requirements, 
and (ii) the technical and economic impact on the entity's operations. 
Thus, with respect to certain proposed rules that derive from Sections 
203, 204 or 205 of the CVAA, a small entity may be able to avoid 
compliance in cases where it can demonstrate that compliance is not 
achievable.
---------------------------------------------------------------------------

    \102\ Achievability is determined through a four factor analysis 
that examines: (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; and (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. 47 U.S.C. 617(g). Through this 
analysis, an otherwise covered entity can demonstrate that 
accessibility is not achievable.
---------------------------------------------------------------------------

    44. In addition, with respect to rules proposed in the FNPRM that 
have their statutory basis in Section 204 of the CVAA (e.g., proposal 
to define the term ``usable'' and to adopt information, documentation, 
and training requirements analogous to rules the Commission has adopted 
in other CVAA contexts), we note that entities covered by Section 
204(a), including small entities, can pursue alternate means of 
complying with the requirements of that provision. As set forth in the 
accompanying Report and Order, the Commission will permit an entity 
that seeks to use an alternate means of compliance to file a request 
pursuant to Sec.  1.41 of the Commission's rules for a determination 
that the proposed alternate means of compliance satisfies the relevant 
requirements, or to 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. The Commission will 
evaluate such filings on a case-by-case basis. Similarly, entities 
covered by Section 205 of the CVAA can satisfy their accessibility 
obligations through the use of built-in or separate solutions and are 
given ``maximum flexibility to select the manner of compliance'' with 
Section 303(bb)(1) of the Act, as well as ``maximum flexibility in the 
selection of the means for compliance with Section 303(bb)(2)'' of the 
Act.\103\ Individual entities, including small entities, can take 
advantage of the flexibility afforded by these provisions.
---------------------------------------------------------------------------

    \103\ See Public Law 111-260, 205(b)(4)(A), 205(b)(5).
---------------------------------------------------------------------------

    45. With respect to the proposal in the FNPRM to require apparatus 
covered by Section 203 to make the secondary audio stream used for 
audible emergency information accessible through a mechanism reasonably 
comparable to a button, key, or icon, we note that if the Commission 
were to adopt this requirement, entities covered by Section 203, 
including small entities, potentially can benefit from provisions in 
Section 203 that impose certain accessibility requirements only where

[[Page 77086]]

``achievable'' or ``technically feasible.''\104\
---------------------------------------------------------------------------

    \104\ See 47 U.S.C. 303(u)(1), (2).
---------------------------------------------------------------------------

    46. Finally, in the accompanying Report and Order, the Commission 
adopted rules that defer compliance with the requirements of Section 
205 by two years for certain mid-sized and smaller MVPD operators and 
small MVPD systems. In particular, the Commission afforded certain mid-
sized and smaller MVPD operators (i.e., those with 400,000 or fewer 
subscribers) and small MVPD systems (i.e., those with 20,000 or fewer 
subscribers that are not affiliated with an operator serving more than 
10 percent of all MVPD subscribers) more time to comply with the 
requirements of Section 205. This type of delayed compliance schedule 
can help to minimize the economic impact of any requirements adopted 
pursuant to the FNPRM and address any disproportionate impact of such 
requirements on small entities. In addition, we note that, if the 
delayed compliance deadline proves insufficient to allow small systems 
to implement an affordable solution, the Commission may consider 
requests for a further extension on an individual or industry-wide 
basis.
    47. Based on these considerations, we believe that, in proposing 
additional rules in the FNPRM, we have appropriately considered both 
the interests of blind or visually impaired individuals and the 
interests of the entities who will be subject to the rules, including 
those that are smaller entities, consistent with Congress' goal 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.'' \105\
---------------------------------------------------------------------------

    \105\ H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010); 
S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010).
---------------------------------------------------------------------------

6. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules
    48. None.

B. Paperwork Reduction Act

    49. The FNPRM may result in new or revised information collection 
requirements. If the Commission adopts any new or revised information 
collection requirement, the Commission will publish a notice in the 
Federal Register inviting the public to comment on the requirement, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 
U.S.C. 3501-3520). In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission seeks specific comment on how it might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''

C. Ex Parte Rules

    50. Permit-But-Disclose. This proceeding 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.

D. Filing Requirements

    51. Comments and Replies. 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.
    52. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street SW., CY-A257, Washington, 
DC, 20554. These documents will also be available via ECFS. Documents 
will be available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.
    53. 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 FCC's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).

[[Page 77087]]

E. Additional Information

    54. For additional information on this proceeding, contact Adam 
Copeland, Adam.Copeland@fcc.gov, or Maria Mullarkey, 
Maria.Mullarkey@fcc.gov, of the Media Bureau, Policy Division, (202) 
418-2120.

IV. Ordering Clauses

    55. Accordingly, it is ordered that, pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority found in sections 4(i), 
4(j), 303(r), 303(u), 303(aa), 303(bb), and 716(g) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(r), 303(u), 303(aa), 303(bb), and 617(g), the Report and Order and 
Further Notice of Proposed Rulemaking is adopted, effective January 21, 
2014, except for 47 CFR 79.107(c), 79.108(a)(5), 79.108(c)-(e), and 
79.110, which shall become effective upon announcement in the Federal 
Register of OMB approval and an effective date of the rules.
    56. It is ordered that, pursuant to the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Public Law 111-260, 
124 Stat. 2751, and the authority found in sections 4(i), 4(j), 303(r), 
303(aa), 303(bb), and 716(g) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 154(j), 303(r), 303(aa), 303(bb), and 
617(g), the Commission's rules are hereby amended as set forth in 
Appendix B.
    57. It is further ordered that we delegate authority to the Media 
Bureau and the Consumer and Governmental Affairs Bureau to consider all 
requests for declaratory rulings pursuant to Sec.  1.2 of the 
Commission's rules, 47 CFR 1.2, all waiver requests pursuant to Sec.  
1.3 of the Commission's rules, 47 CFR 1.3, and all informal requests 
for Commission action pursuant to Sec.  1.41 of the Commission's rules, 
47 CFR 1.41, filed under these rules and pursuant to Sections 204 and 
205 of the CVAA as discussed herein.
    58. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Report and Order and Further Notice of Proposed Rulemaking 
in MB Docket No. 12-108, including the Final Regulatory Flexibility 
Analysis and the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    59. It is further ordered that the Commission shall send a copy of 
the Report and Order and Further Notice of Proposed Rulemaking in MB 
Docket No. 12-108 in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 79

    Cable television operators, Communications equipment, Multichannel 
video programming distributors (MVPDs), Satellite television service 
providers.

Federal Communications Commission.
Sheryl D. Todd,
Deputy Secretary.
    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. Section 79.108 is amended by revising paragraph (d) to read as 
follows:


Sec.  79.108  Video programming guides and menus provided by navigation 
devices.

* * * * *
    (d)(1) MVPD notices. Covered MVPDs must notify consumers that 
navigation devices with the required accessibility features are 
available to consumers who are blind or visually impaired upon request 
as follows:
    (i) When providing information about equipment options in response 
to a consumer inquiry about service, accessibility, or other issues, 
MVPDs must clearly and conspicuously inform consumers about the 
availability of accessible navigation devices.
    (ii) MVPDs must provide notice on their official Web sites about 
the availability of accessible navigation devices. MVPDs must 
prominently display information about accessible navigation devices and 
separate solutions on their Web sites in a way that makes such 
information available to all current and potential subscribers. The 
notice must publicize the availability of accessible devices and 
separate solutions and explain the means for making requests for 
accessible equipment and the specific person, office or entity to whom 
such requests are to be made. All information required by this section 
must be provided in a Web site format that is accessible to people with 
disabilities.
    (2) Navigation device manufacturer notices. Navigation device 
manufacturers must notify consumers that navigation devices with the 
required accessibility features are available to consumers who are 
blind or visually impaired upon request as follows: A navigation device 
manufacturer must provide notice on its official Web site about the 
availability of accessible navigation devices. A navigation device 
manufacturer must prominently display information about accessible 
navigation devices and solutions on its Web site in a way that makes 
such information available to all current and potential consumers. The 
notice must publicize the availability of accessible devices and 
solutions and explain the means for making requests for accessible 
equipment and the specific person, office or entity to whom such 
requests are to be made. All information required by this section must 
be provided in a Web site format that is accessible to people with 
disabilities.
* * * * *
[FR Doc. 2013-28088 Filed 12-19-13; 8:45 am]
BILLING CODE 6712-01-P