FCC Gets Serious about CVAA & Disabilities Access Rules Enforcement; Over the Internet Video Streaming Company Agrees to Pay $3.5 Million Fine for Failure to Provide Closed Captioning

On September 29, 2021, the Federal Communications Commission (“FCC” or “Commission” announced that Pluto Inc. (“Pluto”) and its parent company, ViacomCBS Inc. (“ViacomCBS”), entered into a Consent Decree with the FCC, settling the Enforcement Bureau’s investigation of allegations that Pluto and ViacomCBS violated the Commission’s closed captioning rules for video content distributed over the Internet by failing to provide closed captioning on some platforms for its free streaming service, Pluto TV. The Consent Decree requires the companies to pay a $3.5 million “civil penalty,” and to bring Pluto TV into compliance by either (1) adding closed captioning, as required by applicable FCC rules, or (2) discontinue delivering the service through platforms where mandated captioning is not being provided.

The Consent Decree confirms our prediction that the FCC will step up its enforcement of the Twenty-First Century Communications and Video Accessibility Act (“CVAA”) and other accessibility laws under its jurisdiction. We recently reported in our ViaTalk Order Advisory that the Commission issued a citation against an Interconnected Voice over Internet Protocol provider for failing to ensure that subscribers with disabilities have access to the same product support information the company provides to its non-disabled customers, and for neglecting to file the required annual certification for years. Now, less than two months later, the FCC is cracking down on inaccessible video programming and apparatus. These developments beg the question, “Who will be next?”

FCC rules require captioned programs shown on TV in the United States to be captioned whenever they are live-streamed or re-shown on the Internet. As a practical matter, this means that nearly all televised programming that is also shown on-line must be captioned, because subject to very limited, narrow exceptions, 100% of televised programming must be captioned. The Internet captioning rules do not apply to video clips posted to third-party websites and applications, or to “consumer-generated media” (e.g., home videos). The CVAA also requires that computers, mobile devices, smart TVs and connected devices, digital media players, and other equipment and software capable of playing video together with sound decode and pass through captions. Finally, providers must designate a contact for handling consumer complaints concerning closed captioning.

The Enforcement Bureau’s investigation confirmed that Pluto violated the above rules when distributing video programming on numerous platforms used to disseminate Pluto TV. Additionally, the company failed to implement the closed captioning functionality requirements and make contact information available to users in order to submit written closed captioning complaints.  As a result of Pluto’s actions, individuals with hearing disabilities were unable to access closed captioning when viewing Pluto TV over some platforms.

As a direct consequence of its non-compliance, Pluto must now not only pay a hefty fine, but also develop a detailed compliance plan. The company must also file regular reports with the Commission detailing its remedial progress. The FCC will closely monitor the company’s remedial actions over the next three years.

The Pluto TV Consent Decree demonstrates that the FCC takes alleged accessibility and usability violations seriously.

If you are concerned that your covered products or services may not comply with the CVAA or other accessibility laws, or that your products or services lack accessible supporting information or documentation, please contact Michal J. Nowicki, Esq., at (703) 714-1311 or mjn@commlawgroup.com. Being blind himself, Mr. Nowicki has over five years of experience with the CVAA and a strong passion for accessibility. Mr. Nowicki and 3Play Media— a leader in accessibility solutions for online video content —will soon be presenting on video equipment and content accessibility requirements, including closed captioning obligations for both televised broadcasts and online streaming services, as well as operational challenges faced in achieving compliance. Stay tuned for more details.

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