Comments Sought by FCC for Accessibility Requirements for Closed Captioning Settings for Video Apparatus: Now is the Time for Your Company to Weigh In

On January 10, 2022, the Federal Communications Commission (“FCC” or “Commission”) Media Bureau released a Public Notice reviving a stalled rulemaking proceeding to clarify disability access requirements for closed captioning display settings for digital apparatus, to ensure consumers with hearing loss can fully enjoy video programming.

The proposed rules, if adopted, would clarify how manufacturers of covered apparatus and Multichannel Video Programming Distributors (“MVPDs”) must make closed captioning display settings readily accessible to the deaf and hard of hearing. Comments are due by February 17, 2022, and the deadline for filing reply comments is March 4, 2022.

This so-called “refresh” of the record in the closed captioning settings proceeding is yet another indicator of the Commission’s strong commitment to making communications and video accessible to people with disabilities. It is also an excellent opportunity for covered entities to not only inform FCC decision makers on the current state of relevant closed captioning technology, but also to shape the future evolution of access to closed captioning by everyone who benefits from it: not just individuals who require it due to hearing loss.

Background

In 1990, Congress passed the Television Decoder Circuitry Act (“TDCA”), which initially required analog television receivers with picture screens of at least 13 inches to have built-in decoder circuitry designed to display closed captions transmitted with video programming.

In 2000, the FCC extended TDCA requirements to digital television receivers, and the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) further expanded closed captioning equipment compatibility to “digital apparatus,” which is broadly defined to include any equipment designed to receive or play back video together with sound, including computers, smartphones, tablets, and smart TVs. Digital apparatus also includes third-party video players and video streaming applications preinstalled by the manufacturer of devices through which such video services are accessed.

The FCC’s closed captioning rules require that apparatus allow users to change the presentation, color, opacity, size, and font of captions; caption background color and opacity; character edge attributes; and caption window color. However, the rules do not currently mandate how such features are to be accessed on covered apparatus.

The Pending Captioning Display Settings Rulemaking

In 2015, the FCC sought comment on proposed rules that would require manufacturers and MVPDs to make captioning user settings readily accessible to people with disabilities, but final rules were never adopted. Meanwhile, consumers and disability rights advocacy organizations have reported various ongoing concerns relating to accessing and adjusting captioning settings.

To ensure the FCC has current information, the Media Bureau now invites comments on the scope of the Commission’s legal authority to extend the TDCA to all apparatus and the means by which the Commission would implement a requirement that consumers be able to readily access user display settings for closed captioning.

Commenters are further encouraged to provide new or additional information about the current state of the availability of hardware and software solutions designed to facilitate the activation and customization of closed captioning, and its ease of use. For example, the FCC is specifically interested in updates on the extent to which manufacturers and MVPDs make caption display settings accessible via mechanisms reasonably comparable to a button, key, or icon, such as a button on the remote or access through the first level of a menu.

If you would like assistance with filing comments in the pending captioning display settings rulemaking, or if you have questions about your company’s responsibilities under the TDCA, CVAA, or other accessibility laws, please contact Michal J. Nowicki, Esq., at (703) 714-1311 or mjn@commlawgroup.com.

Being blind himself, Mr. Nowicki has extensive personal and professional experience with video accessibility laws. Even before joining the CommLaw Group in 2019, he worked closely with Comcast and DirecTV to help them make their offerings fully accessible to customers with disabilities.

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