Accessibility of User Interfaces, and Video Programming Guides and Menus

Federal RegisterDec 20, 2013

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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

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), the Federal Communications Commission (Commission) adopts rules requiring the accessibility of user interfaces on digital apparatus and video programming guides and menus on navigation devices for individuals with disabilities. These rules will enable individuals who are blind or visually impaired to more easily access video programming on a range of video devices, and will enable consumers who are deaf or hard of hearing to more easily activate closed captioning on video devices.

DATES:

Effective January 21, 2014, except for §§ 79.107(c), 79.108(a)(5), 79.108(c)-(e), and 79.110, which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission will publish a document in the

Federal Register

announcing the effective date for those sections.

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

Report and Order,

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

http://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).

Paperwork Reduction Act of 1995 Analysis

This document contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this

Report and Order

as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,

see

44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. We did not receive any comments specifically addressing this issue. In the present document, we have assessed the effects of the new requirements on small businesses, including those with fewer than 25 employees, in the Final Regulatory Flexibility Analysis (“FRFA”) below.

Summary of the Report and Order

I. Introduction

1. Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), the

Report and Order

(R&O) adopts rules requiring the accessibility of user interfaces on digital apparatus and navigation devices used to view video programming. The rules we adopt here will 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 video devices; and (2) enabling consumers who are deaf or hard of hearing to more easily activate closed captioning on video devices.

2. As discussed in Section III below, we delineate the types of devices that are covered under Sections 204 and 205 and discuss the responsible entities under each section. Specifically, we:

• Conclude that Section 205 of the CVAA applies to “navigation devices” as defined by § 76.1200 of the Commission's rules—that is, devices and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems.

• Find that under current marketplace and technological conditions, consumers generally only access multichannel video programming and other services offered over multichannel video programming systems through the use of devices that have built-in capability to use a conditional access mechanism, and therefore, Section 205 only applies to devices manufactured with a CableCARD slot or other conditional access technology; this includes devices such as set-top boxes, digital cable ready televisions, devices with pre-installed MVPD applications, and cable modems.

• Conclude that Section 204 of the CVAA applies to all other “digital apparatus designed to receive or play back video programming transmitted in digital format simultaneously with sound.” Interpret this phrase the same as a comparable phrase in Section 203 was interpreted in the

IP Closed Captioning Order,

but excluding navigation devices. Thus, this class of devices includes televisions and computers without conditional access capability, mobile devices (such as tablets and smartphones) that do not have pre-installed MVPD applications, and removable media players.

• Conclude, consistent with the Commission's approach in implementing Section 203 in the

IP Closed Captioning Order,

that Section 204 applies to the video players and user interfaces of video applications, such as Netflix, Hulu, and Amazon, when such applications are pre-installed on digital apparatus by the manufacturer.

• Find that professional and commercial equipment and public safety and enterprise equipment are outside the scope of Sections 204 and 205.

• Defer the compliance deadline by an additional five years for display-only monitors and video projectors and devices, such as digital cameras, that are subject to the waiver granted in the

IP Closed Captioning Reconsideration Order.

• Determine that under Section 204, the entities responsible for compliance are digital apparatus manufacturers.

• Determine that under Section 205, the entities responsible for compliance are 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.

• Find that MVPDs and other manufacturers of software installed on devices by a device manufacturer that provides on-screen text menus and guides for the display or selection of multichannel video programming, such as applications offered by MVPDs to view multichannel video programming, are responsible for compliance with Section 205, including both audible guide and menu accessibility and ensuring the software's closed captioning capability can be activated through a mechanism reasonably comparable to a button, key, or icon.

3. As discussed in Section IV below, we specify the accessibility obligations of devices covered under Sections 204 and 205. Specifically, we:

• Under Section 204, require apparatus designed to receive or play back video programming transmitted simultaneously with sound to make “appropriate” built-in functions (

i.e.,

those used for the reception, play back, or display of video programming) accessible to individuals who are blind or visually impaired.

○ Conclude that, at this time, the 11 essential functions identified by the VPAAC are the “appropriate” built-in functions under Section 204.

○ Conclude that, if the “appropriate” built-in functions are accessed through on-screen text menus or other visual indicators built in to the apparatus, such functions must be accompanied by audio output.

• Under Section 205, require navigation devices to make on-screen text menus and guides for the display or selection of multichannel video programming audibly accessible.

○ Conclude that nine of the 11 essential functions identified by the VPAAC are used for the display or selection of video programming and must be made audibly accessible on navigation devices under Section 205 to the extent they are accessed through on-screen text menus and guides.

○ Conclude that the remaining two VPAAC functions—power on/off and volume adjust/mute—must be made accessible (but not necessarily

audibly

accessible) to individuals who are blind or visually impaired on navigation devices under Section 205 because they are controls necessary to access covered functions.

• Recognize that a covered apparatus or navigation device may not include all of the functions required to be accessible and is not required to add any of these functions, but to the extent the apparatus or navigation device

does include

any of these functions, they must be made accessible in accordance with our rules.

• Do not adopt technical standards or other technical requirements for compliance with the accessibility mandates in Sections 204 and 205, but apply the definition of “accessible” in § 6.3(a) of the Commission's rules for guidance on how to make functions generally accessible.

• Implement the same rules as in other CVAA contexts for determining whether compliance with Section 204 and 205 accessibility requirements is “achievable.”

• Require apparatus covered by Section 204 to provide access to closed captioning and video description through a mechanism for each that is reasonably comparable to a button, key, or icon.

• Require navigation devices covered by Section 205 to provide access to closed captioning (but not, at this time, video description) through a mechanism reasonably comparable to a button, key, or icon.

4. As discussed in Section V below, we set forth the compliance obligations of entities subject to Section 205 of the CVAA (“covered entities”) to provide accessibility “upon request.” Specifically, we:

• Require a covered entity to provide accessible navigation devices to requesting blind or visually impaired individuals “within a reasonable time,” defined as a time period comparable to the time that it takes such entity to provide navigation devices generally to other consumers;

• Conclude that a covered entity must permit blind or visually impaired consumers to request compliant devices through any means that it generally makes available to other consumers that request navigation devices;

• Conclude that a manufacturer that provides navigation devices at retail to requesting blind or visually impaired consumers must make a good faith effort to have retailers make available compliant navigation devices to the same extent they make available navigation devices to other consumers generally; and

• Conclude that any means that a covered entity employs to accept requests for accessible devices may not be more burdensome to blind or visually impaired individuals than the means the entity employs to provide navigation devices generally to other consumers,

e.g.,

if a covered entity establishes a Web site through which blind or visually impaired consumers can request accessible devices, such Web site must be screen-readable.

• With respect to a covered entity that relies on separate equipment or software (“separate solution”) to achieve accessibility under Section 205(b)(4) of the CVAA, we:

○ Conclude that a covered entity that relies on a separate solution to achieve accessibility is responsible for providing such solution to a requesting blind or visually impaired individual;

○ Require that if a non-compliant navigation device has any functions that are required to be made accessible pursuant to the rules we adopt in the R&O, any separate solution relied upon to achieve accessibility must make all of those functions accessible or enable the accessibility of those functions;

○ Require that a separate solution be provided in a manner that is not more burdensome to requesting blind or visually impaired individuals than the manner in which other consumers generally obtain navigation devices;

○ Require that a covered entity relying on a separate solution must make available such solution “within a reasonable time,” defined as a period of time comparable to the time in which it generally provides navigation devices to consumers who are not blind or visually impaired;

○ Conclude that a covered entity that provides separate equipment or software may not impose on a requesting blind or visually impaired consumer any charges beyond those it has imposed for the non-compliant navigation device. In cases where an entity provides accessibility functionality in only select devices, this constitutes an “other solution” under Section 205(b)(4)(B) for which an entity can impose no additional charge. For example, if a covered entity's only solution is to provide a sophisticated navigation device (one with enhanced features and functions) to a consumer that requests a less sophisticated device, it cannot charge the consumer more than the price of the less sophisticated device; and

○ Conclude that if a covered entity's chosen manner of compliance involves a software solution that must be operated on a third-party device (

e.g.,

a laptop, tablet, smart phone) or if additional services are required to make use of the device, this manner of compliance constitutes an “other solution” under Section 205(b)(4)(B); thus, the covered entity must provide that solution—

i.e.,

the software, third-party device, and any service needed to use the accessibility features—to the requesting individual at no additional charge.

• Require a covered entity to ensure that activation mechanisms comparable

to a button, key, or icon for built-in closed captioning are provided on all its navigation devices (

i.e.,

such mechanisms are not subject to the statutory “upon request” language in Section 205).

5. As discussed in Section VI below, we address a number of other issues related to our implementation of Sections 204 and 205. Specifically, we:

• Conclude that MVPDs must clearly and conspicuously inform consumers about the availability of accessible navigation devices when providing information about equipment options in response to a consumer inquiry about service, accessibility, or other issues, and also must provide such notice on their official Web sites.

• Allow covered entities to require verification of eligibility (as an individual who is blind or visually impaired) to the extent the covered entity chooses to rely on an accessibility solution that involves providing the consumer with sophisticated equipment and/or services at a price that is lower than that offered to the general public.

• Permit Section 204 covered entities to comply with the new requirements by alternate means, as provided in the CVAA.

• Adopt procedures for consumer complaints alleging a violation of the new requirements.

• Set a three-year compliance deadline by which covered entities must generally comply with the requirements of Sections 204 and 205.

• Set a five-year compliance deadline by which certain mid-sized and smaller MVPD operators (400,000 or fewer subscribers) and small MVPD systems (20,000 or fewer subscribers that are not affiliated with an operator serving more than 10 percent of all MVPD subscribers) must comply with the requirements of Section 205.

• Decline at this time to adopt a permanent exemption for small cable systems of 20,000 or fewer subscribers, as permitted by Section 205(b)(2).

6. In addition, as discussed in Section VII, we eliminate the analog closed captioning label requirement in our rules and we reorganize Part 79 of our rules to assist readers in browsing and locating our accessibility rules.

II. Background

7. Section 204 of the CVAA, entitled “User Interfaces on Digital Apparatus,” portions of which were codified as Section 303(aa) of the Communications Act of 1934 (“the Act”), directs the Commission to require “if achievable (as defined in section 716) that digital apparatus designed to receive or play back video programming transmitted in digital format simultaneously with sound” be built in a way so that “control of appropriate built-in apparatus functions are accessible to and usable by individuals who are blind or visually impaired.” 47 U.S.C. 303(aa)(1). Section 204 states that the Commission “may not specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement.”

Id.

Section 204 also specifies that if “on-screen text menus or other visual indicators built in to the digital apparatus are used to access the functions of the apparatus . . . such functions shall be accompanied by audio output that is either integrated or peripheral to the apparatus” so that they are accessible to and usable by individuals with visual disabilities in real-time.

Id.

303(aa)(2). Further, Section 204 directs the Commission to require covered digital apparatus to “buil[d] in access to those closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.”

Id.

303(aa)(3). Section 204 states that “in applying this subsection the term `apparatus' does not include a navigation device, as such term is defined in section 76.1200 of the Commission's rules.”

Id.

303(aa)(4).

Section 76.1200 of the Commission's rules defines “navigation devices” to include “[d]evices such as converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems.” 47 CFR 76.1200(c).

8. Section 205 of the CVAA, entitled “Access to Video Programming Guides and Menus Provided on Navigation Devices,” portions of which were codified as Section 303(bb) of the Act, imposes requirements relating to “navigation devices.” It directs the Commission to require, “if achievable (as defined in section 716), that the on-screen text menus and guides

provided by navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations) for the display or selection of multichannel video programming are audibly accessible in real-time upon request by individuals who are blind or visually impaired.” 47 U.S.C. 303(bb)(1). Section 205 states that the Commission “may not specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement.”

Id.

Section 205 also directs the Commission to require, “for navigation devices with built-in closed captioning capability, that access to that capability through a mechanism is reasonably comparable to a button, key, or icon designated for activating the closed captioning, or accessibility features.”

Id.

303(bb)(2).

In this context, we interpret the term “guides” to mean “video programming guides,” which is the complete phrase used in the title of Section 205. Public Law 111-260, 205.

9. The CVAA directed the Chairman of the Commission to establish an advisory committee known as the Video Programming Accessibility Advisory Committee (“VPAAC”), with representatives from the industry and consumer groups. The VPAAC was directed to develop a report recommending standards, protocols, and procedures to enable user interfaces and video programming guides and menus to be accessible to individuals who are blind or visually impaired.

The VPAAC submitted its statutorily mandated report addressing user interfaces and video programming guides and menus to the Commission on April 9, 2012.

The

VPAAC Second Report: User Interfaces

defined the functional requirements needed to implement Sections 204 and 205 of the CVAA, including a list of 11 functions that the VPAAC determined are essential for making digital apparatus and navigation devices accessible to individuals with disabilities. In April 2012, the Media Bureau and the Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on the

VPAAC Second Report: User Interfaces,

and the comments and reply comments received in response to the Public Notice helped inform the

NPRM.

The Commission released the

NPRM

on May 30, 2013.

Sections 204(b) and 205(b) of the CVAA provide that “[w]ithin 18 months after the submission to the Commission of the [

VPAAC Second Report: User Interfaces

], the Commission shall prescribe such regulations as are necessary to implement” Sections 204 and 205.

Section 201(e)(2) also required the report to include information related to the provision of emergency information and video description, which is part of a separate Commission rulemaking proceeding that addresses Sections 202 and 203 of the CVAA.

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, 78 FR 31770 (2013) (“

Emergency Information/Video Description Order

”).

Second Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010: User Interfaces, and Video Programming and Menus, Apr. 9, 2012,

available at

http://apps.fcc.gov/ecfs/document/view?id=7021913531

(“

VPAAC Second Report: User Interfaces

”).

Public Notice,

Media Bureau and Consumer and Governmental Affairs Bureau Seek Comment on Second VPAAC Report: User Interfaces, and Video Programming Guides and Menus,

MB Docket No. 12-108, 27 FCC Rcd 4191 (2012).

See Accessibility of User Interfaces, and Video Programming Guides and Menus,

MB Docket No. 12-108, Notice of Proposed Rulemaking, 78 FR 36478 (2013) (“

NPRM

”).

As noted, the VPAAC submitted its report to the Commission on April 9, 2012. We note that the deadline set forth by statute for prescribing regulations, October 9, 2013, fell during a shutdown of the Federal government due to a lapse in appropriations, during which time the Commission could not conduct normal business operations.

10. To fulfill these statutory mandates, we adopt the rules discussed below. By imposing new requirements with regard to the accessibility of user interfaces and video programming guides and menus, the regulations adopted herein further the purpose of the CVAA to “update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.”

III. Scope of Sections 204 and 205 of the CVAA

A. Categories of Devices Covered Under Sections 204 and 205

11. We conclude, consistent with the text of Sections 204 and 205, and the definition of “navigation devices” set out in § 76.1200 of our rules, 47 CFR 76.1200(c), that “devices such as converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems” are subject to the requirements of Section 205. As we discuss below, based on current marketplace and technological conditions, we interpret the term “navigation devices” to encompass devices that have built-in capability to use a conditional access mechanism in order to access MVPD video programming and other services. All other “digital apparatus designed to receive or play back video programming transmitted in digital format simultaneously with sound” that are not navigation devices as defined by § 76.1200 of our rules are subject to the requirements of Section 204. We also conclude that an individual device can be subject to the requirements of Section 204 or Section 205 depending on its classification as a digital apparatus or navigation device, but cannot be subject to the requirements of both sections.

12. The

NPRM

set out two general approaches for how the Commission might categorize the devices subject to Sections 204 and 205. Under one approach, the Commission would apply Section 205 only to the navigation devices provided by MVPDs to their subscribers or, in a variation on this approach, to MVPD-provided devices and “to retail set-top boxes such as TiVos,” while applying Section 204 to all other navigation devices and digital apparatus. Under the second approach, the Commission would apply Section 205 to the full range of devices that qualify as “navigation devices” as that term is defined in § 76.1200 of our rules, and Section 204 only to the digital apparatus that are not navigation devices.

13. Several commenters support the MVPD-provided devices approach. For example, the American Foundation for the Blind (“AFB”), the National Association of the Deaf in conjunction with several consumer groups (“NAD/Consumer Groups”), and dozens of individuals with visual disabilities express the view that Section 205's provisions should apply only to MVPD-provided equipment. These commenters contend that such an approach would better effectuate Congress's intent in enacting the CVAA by making more devices subject to Section 204's requirements, which require accessibility without requiring consumers to request an accessible solution. In contrast, other commenters assert that the statute gives the Commission no discretion to limit the definition of “navigation device” to only those devices provided by MVPDs and requires that any device that meets the definition of navigation device under § 76.1200 be covered by Section 205.

14. Manufacturers and MVPDs have taken the position that the term “navigation devices” is not as wide-ranging as we presumed in the

NPRM.

According to these commenters, the term “navigation devices” includes all devices that are designed to be used by consumers to access multichannel video programming and other services offered over multichannel video programming systems using conditional access technology; thus, they assert, Section 205 should apply to both MVPD-provided devices and those retail devices that use conditional access to reach MVPD services, consistent with congressional intent.

The Consumer Electronics Association (“CEA”), after initially supporting a broader interpretation of the term “navigation devices” as used in § 76.1200, now supports a reading of that term to include only “devices that are

actually configured

to operate as navigation devices comparable to MVPD-furnished devices.”

Verizon takes a similar position, arguing that Section 205 should be applied only to “traditional” navigation devices, which Verizon defines as “set-top boxes and related equipment used in the home by consumers to access MVPD services” that are either MVPD-provided or purchased at retail. Verizon submits that such an approach is consistent with the language of the

VPAAC Second Report: User Interfaces

and Congressional intent in enacting the CVAA. Panasonic Corporation of North America (“Panasonic”) suggests, along the same lines as CEA and Verizon, that Section 205 should apply only to MVPD-provided or retail equipment employing CableCARDs that “enable a consumer to control the display or selection of multichannel video programming.” Panasonic argues that, without the use of a CableCARD, a device cannot provide the “on screen text menus and guides” which must be made accessible under Section 205. Several other commenters take no position as to whether Section 205 should apply to devices other than set-top boxes, but do argue that Section 205 should apply not just to MVPD-provided equipment but also to comparable equipment sold at retail. The National Cable & Telecommunications Association (“NCTA”) also initially took no position as to the scope of devices subject to Section 205, but later argued that, “[i]nterpreting `navigation device' so broadly as to cover equipment that does not perform the functions of a traditional set-top box but simply contains an Internet connection (by which any mobile device or any other equipment theoretically could access cable broadband service) would stray

beyond Congress' intent in the CVAA.”

We note that while AFB and the American Council of the Blind (“ACB”) do not agree that Section 205 should apply to set-top boxes sold at retail that use conditional access mechanisms to allow consumers to access MVPD programming and other services, such as TiVo boxes, the approach that we adopt is otherwise consistent with AFB and ACB's position in that consumer electronics equipment sold at retail that does not use conditional access mechanisms to access MVPD programming and other services will be subject to Section 204.

CEA states that this position is consistent with an agreement that it reached with AFB and ACB, in which CEA stated that it “would be agreeable to the Commission proceeding to apply section 205 of the CVAA only to MVPD-provided equipment, as well as to equipment that is similar in kind to MVPD-provided equipment (i.e., set-top boxes) made available to consumers via retail outlets.”

NCTA recognized that AFB and CEA could not come to agreement on whether non-MVPD provided retail set-top boxes should be covered under Section 205, which NCTA presumably still supports.

15. Based on our review of the statutory language and the record, we conclude that the soundest approach is to follow one of the paths suggested in the

NPRM

by applying Section 205 to all devices that qualify as “navigation devices” as that term is defined in § 76.1200 of our rules, and Section 204 only to digital apparatus that are not navigation devices. In Sections 204 and 205, the term “navigation devices” is repeatedly modified by the phrase “as such term is defined in [s]ection 76.1200 of the Commission's rules.”

As the

NPRM

discussed, some elements of Section 205 could be read to suggest that Congress meant for Section 205 to apply only to MVPD-provided equipment, but we find that there is nothing in the statute or legislative history expressly indicating that Section 205 should be applied only to a particular subset of navigation devices. Although the

NPRM

observed that certain statutory phrases “appear to presume a preexisting relationship between the individual requesting or using the device, menu and/or guide and the entity providing it,”

as described in more detail below, we conclude that these statutory phrases can also be applied to situations involving no preexisting relationship, such as when an individual purchases an accessible device at retail.

Had Congress intended for Section 205 to apply only to MVPD-provided equipment, as some commenters suggest, we believe that Congress would have used different terminology in Sections 204 and 205 than the phrase “navigation device” with a direct citation to § 76.1200 of our rules. Accordingly, consistent with Congress's repeated citations, in multiple sections of the CVAA, to our definition of navigation device in § 76.1200, we interpret the term in accordance with the definition contained in our rules.

The legislative history provides no additional insight into Congress's selection of the term “navigation devices.”

In addition, as NCTA points out, some devices that are sold at retail, such as a TiVo, include subscriptions and create a relationship between the customer and the device manufacturer.

The

NPRM

also discussed how the phrase “placing in service” in Section 205(b)(6) might suggest that the provision was directed at MVPD-provided equipment. We agree with NCTA that the Commission's rules use similar phrasing in other areas “wholly unrelated to MVPD-provided service.” The

NPRM

also pointed to the fact that Section 205(b)(2) authorizes us to create an exemption for cable systems with fewer than 20,000 subscribers as evidence that Section 205 applied to MVPDs. While such a statement does suggest that Section 205 applies to MVPDs, it does not foreclose the Commission from also applying Section 205 to other covered entities, such as manufacturers of navigation devices placed into the chain of commerce for sale and other navigation device hardware and software manufacturers.

AFB suggests that the Commission could, through the use of a Further Notice of Proposed Rulemaking, revise the definition of navigation device “for the limited purpose of sorting out the application of sections 204 and 205.” We find no compelling reason to do so, and therefore decline this request.

16. Therefore, consistent with a literal interpretation of the statute and in accordance with the Commission's definition of navigation device, Section 205 will apply to any device that can be “used by consumers to access multichannel video programming and other services offered over multichannel video programming systems.” We recognize that this definition uses broad language to describe what constitutes “navigation devices,” and that in the

NPRM

we proposed to interpret this phrase to cover a broad array of devices. The

NPRM

also sought comment on the correct reading of the term “navigation devices” as defined under Commission rules.

17. We have closely examined the arguments made in the record of this proceeding and met with representatives of consumer groups and all sectors of the industry, and have been persuaded that our understanding of the term “navigation devices” must be clarified in light of intervening marketplace and technological changes. We do not believe that the Commission intended the term to encompass every device with the ability to access the Internet; nor do we believe that under current marketplace and technological conditions such a broad definition of navigation devices is reasonable. We also believe that Congress, in drafting the CVAA, understood the Commission's definition of navigation devices to be narrower, because otherwise the exemption in Section 204 for “navigation devices” would have largely nullified that section.

This is the first time it has been necessary for us to delineate more precisely the outer boundaries of the term “navigation devices.”

After consideration of the record on this issue, we thus clarify the meaning of the term “navigation devices,” taking into consideration current marketplace and technological conditions, and in a manner that will give meaning and effect to each section of the CVAA.

Moreover, as noted in the

NPRM,

interpreting “navigation devices” to apply to “every device with Internet connectivity” would have “render[ed] meaningless Section 204's statement that digital apparatus include `apparatus designed to receive or display video programming transmitted in digital format using Internet protocol' . . . .”

The Commission in 2010 sought comment on the various types of devices covered under the term “navigation devices,” but has not had the occasion to address the issue since then.

18. As noted, § 76.1200 defines navigation devices as “devices such as converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems.” The Commission derived this definition from the text of Section 629 of the Act, added by the Telecommunications Act of 1996, which directed the Commission to adopt rules “to assure the commercial availability” of such devices “from manufacturers, retailers, and other vendors not affiliated with any” MVPD. When the Commission adopted § 76.1200 in 1998, consumers used a wide variety of equipment to access multichannel video programming and other services. For example, at that time many consumers could connect analog “plug and play” televisions, video cassette recorders (“VCRs”), and personal computers directly to the cable and access cable programming without the need for a cable set-top box.

Thus, at that time, the Commission contemplated that some devices that lack the ability to perform conditional access—such as these analog “plug and play” televisions—were navigation devices. We no longer believe that to be the case, given the current state of technology. Nearly all MVPD services are encrypted today, and devices that do not perform conditional access can access at most a

de minimis

amount of MVPD programming, and that amount is decreasing rapidly, as discussed below. Accordingly, we construe the phrase “used by consumers to access” in the definition of “navigation devices” to refer to the access that MVPDs control when using conditional access technology as a prerequisite to receive MVPD-offered multichannel video programming and other services. Indeed, in 2010, the Commission recognized that conditional access is an essential part of “access.”

That is, subscribers could simply plug the cable into the back of their TV sets or other devices; conditional access was performed by means of traps installed outside the home. When the cable operator granted access to its programming, through the removal of a trap, both cable operator-provided set-top boxes and retail devices could access the programming. Today, cable operators rely on encryption rather than traps to protect themselves from theft of service, and encryption requires hardware inside the consumer's home to perform the decryption functions.

19. The Commission has recognized that, in the past, most cable signals were transmitted in the clear and that subscribers with analog “plug and play” television sets would not need cable set-top boxes to view subscribed-to programming. Beginning in the mid-1990's, however, cable operators began to upgrade their systems to offer digital cable service in addition to analog cable service (hybrid cable service). Even more recently, many cable operators have transitioned to more efficient all-digital service, freeing up cable spectrum to offer new or improved products and services. At each stage of the transition from all-analog to all-digital cable service, cable operators have increasingly used conditional access to protect more types and tiers of programming from unauthorized access. Nearly all MVPD services today use some form of conditional access to prevent unauthorized access, and encryption of the program signal has proven to be an indispensable aspect of controlling access to MVPD services as it ensures that no signal can be viewed without digital permissions individually issued by the MVPD. The Commission recognized as much in its recent

Encryption Order,

when it observed that “relaxing the encryption prohibition for all-digital systems will have minimal impact on consumers because most subscribers do not rely on the clear-QAM tuners in their devices to access basic tier signals.” As of October 2012, when the Commission released the

Encryption Order

permitting cable operators to encrypt the basic service tier under certain conditions, few subscribers were accessing cable programming without the use of a set-top box. Further, subscribers to direct broadcast satellite (“DBS”) and Internet protocol television (“IPTV”) operators have never been able to use televisions to access service; rather, they must use a set-top box. The Commission concluded that allowing all-digital cable operators to encrypt the basic service tier served the public interest because it would have a

de minimis

impact on subscribers to these systems,

while having significant additional benefits.

This is because all-digital cable operators indicate that all of their subscribers have at least one set-top box or retail CableCARD device in their homes.

We note that since the advent of encryption of the basic tier on all-digital cable systems, the Commission has received only one complaint from an aggrieved consumer.

20. Therefore, the phrase “other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems,” in today's MVPD market, means more than mere passive display made possible through the use of an intermediary device. For a consumer to “use” a device to “access” MVPD services, the device must employ some kind of access control to “unlock” the services and make them available for the consumer's use. For example, a television set with a CableCARD supports “conditional access” such that an MVPD can control which channels or services a device receives. In contrast, a television without a CableCARD cannot access encrypted cable channels without an intermediary device—

e.g.,

a set-top box—that controls access to the content; the television can merely display the content that the set-top box sends to it. In the latter example, the set-top box is a navigation device but the television is not because the consumer could not use it to “access” cable service. As Panasonic states, “absent the use of a CableCARD, the Commission's rules do not ensure the availability of the channel information necessary for independent manufacturers to design `navigation devices.' ”

21. Cable operators also control access to their broadband services through an authentication scheme similar to that used for video services, reinforcing our view that “navigation devices” require the use of conditional access. The navigation device definition includes devices consumers use to access “other services offered over multichannel video programming systems,” which would include broadband data services. Cable modems must be “initialized”—a process involving authentication and registration—before the cable operator grants the modem access to the broadband network.

Although an Internet Protocol (“IP”)-enabled device may use Internet services by connecting through a cable modem, consumers do not use the IP-enabled device itself to access the broadband service. Rather, the device uses the cable modem to access the Internet. In this example, the cable modem is a navigation device, but the IP-enabled device is not.

For instance, the DOCSIS specifications define a procedure for initializing a cable modem that involves authentication and registration.

22. Given the widespread and routine practice of cable operators controlling access to all of their programming and other services, and the fact that DBS operators universally use encryption to control access to their programming, we expect that shortly virtually all MVPDs will control access to their programming and services through some sort of conditional access technology.

Thus, we interpret the term “navigation devices” as encompassing only devices that support conditional access to control consumer access to programming and services. Based on our interpretation, we find that navigation devices subject to Section 205 are those devices manufactured with a CableCARD slot, CableCARD's successor technology, or other conditional access capabilities.

Thus, the following are navigation devices: digital cable ready televisions (

i.e.,

televisions with CableCARD slots), set-top boxes (including those provided by MVPDs as well as consumer-owned CableCARD-ready devices), computers with CableCARD slots, and cable modems. The Commission has consistently recognized that these are navigation devices throughout the past 15 years since adoption of our navigation device rules. Third-party devices with MVPD applications that are installed by the device manufacturer are also navigation devices because the MVPD application performs conditional access functions in a software-based manner that allows consumers to access multichannel video

programming.

Devices that do not contain support for conditional access functionality at the time of manufacture will be classified as “digital apparatus” and covered by Section 204.

It is conceivable that some cable systems will still exist three years from now, at the time of our compliance deadline, that do not use any encryption; thus, in some cases consumers may still be able to plug televisions directly into the cable to receive service. As explained, however, we expect such systems to be rare, and the subscribers who choose to use such devices without a set-top box to be rarer still. Moreover, these systems are likely to be very small systems subject to the extended Section 205 compliance date that we adopt herein. They are also likely to be analog systems. Because television broadcast receivers will no longer be required to include analog tuners after September 1, 2015 due to the low power television transition to digital television, we believe it is likely that many manufacturers will cease including analog reception capability in devices sold after that date. Thus, it is unlikely that subscribers to all-analog cable systems will use devices manufactured after the effective date of these rules to access analog cable service. We do not believe it would be reasonable to subject retail devices—which are manufactured for nationwide distribution—to a set of rules designed for these corner cases. Nor would it be appropriate to expect manufacturers to spend their resources designing their products based on a technology that we expect to be essentially outdated by the time of our compliance deadline. Rather, to give manufacturers certainty as to their compliance obligations we will uniformly subject only devices using conditional access to regulation under Section 205 based on our predictive judgment about how the marketplace is developing.

We note that in

EchoStar Satellite L.L.C.

FCC,

704 F.3d 992 (D.C. Cir. 2013) (“

EchoStar”

), the DC Circuit vacated the Commission's

CableCARD Order,

68 FR 66728 (2003), which effectively vacated the rules adopted in the

CableCARD Order,

including the technical standards for CableCARD (47 CFR 76.602 and 76.640). Although the rule requiring reliance on the specific CableCARD standard was vacated in

EchoStar,

given that nearly all cable operators use CableCARDs as their means to comply with the integration ban, we believe that CableCARD use will continue for the foreseeable future.

CenturyLink, Inc. states that it “is not aware of any navigation device manufacturers that either pre-install MVPD-provided mobile applications for accessing MVPD-delivered programming or require end users to install such applications after sale.” To eliminate uncertainty in the event that this does happen, however, we clarify that such a device would be a navigation device under the rules we adopt in the R&O.

23. Our task in implementing Sections 204 and 205 of the CVAA requires that we identify for manufacturers which section governs their equipment. To give certainty to manufacturers, we conclude it is appropriate to take a snapshot view of the equipment at the time the manufacturer releases it into the stream of commerce, and to describe now, before the devices are designed and manufactured, the parameters we will use for determining whether a device is a navigation device. Accordingly, for purposes of Sections 204 and 205 of the CVAA, and consistent with our application of other provisions of the CVAA,

we will look to the device's

built-in functionality

at the time of manufacture to determine whether a device is classified as a “navigation device” for purposes of determining which section of our rules will apply. Under this approach, we will not require manufacturers to anticipate possible adjustments that a consumer may independently make to the equipment after sale (for example, by installing an application post-sale).

Looking at the functionality that a manufacturer itself has chosen to include in a piece of equipment will bring certainty to industry and consumers alike as to what obligations apply to particular equipment.

Classifying a device based on its capabilities at the time of manufacture is consistent with our implementation of other CVAA provisions.

This also addresses the concerns of commenters who contend that they cannot “control the design of third-party devices running their apps” because those commenters can test their applications to ensure accessibility on the third-party devices before choosing to allow the manufacturers to pre-install the applications.

24. We conclude that the interpretation described above is consistent with both the language and the intent of Section 629 of the Act and § 76.1200 of our rules. We have discretion to interpret statutory language that Congress left undefined, such as the language used in Section 629 and echoed in the Commission's definition of “navigation devices.” Neither Congress nor the Commission has previously specified what the phrase “used by consumers to access” in the definition means, and our interpretation, described above, gives meaning to the term based on current market and technological considerations. Moreover, our interpretation is consistent with the other terms in the definition referring to “converter boxes” and “interactive communications equipment.” Those terms were also not defined by Congress or the Commission, but we believe that the term “interactive communications equipment” is most reasonably interpreted to mean equipment used for services such as video-on-demand and television-based commerce. Today, unlike at the time Section 629 was adopted, these functions are performed by the majority of today's set-top boxes. The term “converter box” refers to simpler equipment, more commonplace in 1998, that merely converts signals from the cable operator's format to a format that could be received by legacy televisions—a function that digital tuning adapters (“DTAs”) and similar devices perform today. These interpretations are consistent with what the Commission envisioned when first adopting its definition of “navigation devices.”

This interpretation is consistent with the Commission's

Seventh Video Competition Report,

which stated “in the last year, interactive television (`ITV') services are beginning to be offered through cable, satellite, and terrestrial technologies. ITV provides or has the potential to provide a wide range of services, including video on demand (`VOD'), email, TV-based commerce, Internet access, and program-related content, using digital set-top boxes and other devices that interface with television receivers. . . .”

25. Our interpretation of the definition of “navigation devices” is also consistent with the intent of Congress that the scope of the term change over time as technology changes. Congress recognized the rapidly evolving nature of MVPD and consumer electronics technology. The portion of the Conference Report for the 1996 Telecommunications Act discussing navigation devices stated that, in implementing Section 629, the Commission should “avoid actions which could have the effect of freezing technologies and services. . . . Thus, in implementing this section, the Commission should take cognizance of the current state of the marketplace and consider the results of private standards setting activities.” Similarly, in implementing Section 629, the Commission stated: “We do not believe, however, that our work with respect to these issues is complete. The markets involved are in the early stages of becoming competitive, and the participants in these markets are on the precipice of a change from analog to digital communications. . . . Our objective thus is to ensure that the goals of Section 629 are met without fixing into law the current state of technology.” More recently, in the

AllVid NOI,

adopted in 2010, the Commission stated that “[t]raditionally, the Commission and interested parties have considered the term navigation devices to include televisions, set-top boxes (including DVRs), and home theater computers,” and sought comment on whether “these devices comprise the universe of navigation devices, and if not, what other devices could perform navigation device functions.” The fact that the Commission in 2010 asked about the scope of the term “navigation devices” underscores that the definitions of the terms used in Section 629 and § 76.1200(c) have not been definitively fixed and may change over time.

We also note that the

AllVid NOI

was adopted only months before enactment of the CVAA, which suggests that Congress was aware that the definition of “navigation devices” was continuing to evolve.

26. Our interpretation of “navigation devices” is also consistent with the language of Sections 204 and 205 as well as Congress's goals in enacting them. As compared with our proposal to apply Section 205 only to MVPD-provided navigation devices, this approach better honors the literal meaning of the terms of the provision. At the same time, it avoids the perverse outcome that would have resulted from an overly broad reading of “navigation devices” that would have largely nullified Section 204, thwarting Congress's effort to craft different requirements for different categories of devices. For example, this interpretation gives meaning to the provision that states that Section 204 applies to certain apparatus, “including apparatus designed to receive or display video programming transmitted in digital format using Internet protocol;” under this approach not all devices that can display video programming will be deemed to be navigation devices and thus excluded from coverage under Section 204, a result we think would be at odds with Congress's intent. Thus, our approach gives meaning and effect to both Sections 204 and 205.

27. Having determined which devices are excluded from coverage under Section 204, we conclude that Section 204 will apply to “digital apparatus,” as defined in that section, that are not used by consumers to access multichannel video programming or other services offered over multichannel video programming systems, such as televisions and PCs without CableCARD

or other conditional access technology, mobile devices (

i.e.,

tablets and smartphones) without MVPD applications pre-installed by the manufacturer, and removable media players.

We adopt the

NPRM'

s analysis that the references in Sections 204 and 205 to navigation devices were “designed to prevent overlap in coverage between Sections 204 and 205; that is, a device can be a Section 204 device or Section 205 device, but not both.” AFB suggests that a single device may have accessibility requirements under both Sections 204 and 205 because a device can be both a “digital apparatus” and a “navigation device.” AFB argues that the Commission has taken a similar approach in the past when implementing Section 716(f) of the Act, added by Section 104 of the CVAA, finding that a device could have obligations under both Section 716(f) and Section 255. Other commenters that address the issue agree with the

NPRM

that Sections 204 and 205 are mutually exclusive in their coverage of devices. We agree with CEA that the language from Section 716(f) that AFB cites in support of its position is distinguishable from “Section 204's clear exclusion of navigation devices from its coverage and Section 205's express application to navigation devices.” While Section 205 applies to “navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations) for the display or selection of multichannel video programming,” Section 204 categorically excludes navigation devices. Therefore, it follows that a device cannot be subject to the requirements of both Section 204 and 205.

As we discuss further below, video programming applications that are installed by the manufacturer (or those that the manufacturer directs consumers to install), such as Netflix, Hulu, and Amazon, must also be made accessible under Section 204.

28. Several commenters seek an exemption or waiver from the requirements of Sections 204 and 205 for certain classes of equipment or otherwise request a determination that certain equipment is outside of the scope of Sections 204 and 205. Before discussing these specific types of equipment, we note that, unlike in other device-related provisions of the CVAA, such as Section 203, Congress did not provide the Commission with authority to grant exemptions from or waive the statutory requirements imposed by Sections 204 and 205. Accordingly, we do not exempt otherwise covered devices from the statutory requirements of Sections 204 and 205.

29.

Professional and commercial equipment.

We conclude that professional and commercial video equipment, including professional movie theater projectors and studio-grade video monitors and recorders, is not subject to the requirements of Section 204 or 205. As the Commission has found in the past, the CVAA is intended to address the accessibility needs of individual consumers. Therefore, as the Commission found in the

IP Closed Captioning Order,

professional and commercial equipment is outside of the CVAA's scope. Significantly, no commenters argue that the Commission's rules should cover this equipment. As the Commission did in the

IP Closed Captioning Order,

we note that other federal laws may impose accessibility obligations “to ensure that professional or commercial equipment is accessible to employees with disabilities or enables the delivery of accessible services.”

30.

Public safety and enterprise equipment.

We also find that public safety and enterprise equipment is not subject to the requirements of either Section 204 or 205. Motorola Solutions, Inc. (“Motorola”) requested such a determination, and its request was not opposed. Motorola correctly observes that nothing in Sections 204 or 205 evidences Congressional intent to cover these devices, which are not provided to individuals but rather are marketed or sold to “state or local governments, public safety organizations or other enterprise customers.” Therefore, we find that public safety and enterprise equipment is outside the scope of Section 204 or 205 of the CVAA.

This approach is consistent with the Commission's actions in the

ACS Order.

31.

Broadband equipment.

We agree with Panasonic that “general purpose broadband equipment,” such as routers,

does not fall under Section 204 or Section 205 because it is not designed to display or play back video content and cannot be used by consumers to access MVPD services. As we describe above, in the case of Internet service offered by MVPDs, the navigation device is the cable modem, as that device is the only device consumers use to access the MVPD's Internet service. Routers and other equipment that interact with the cable modem are outside the scope of Section 205 because consumers do not use that equipment to access the MVPD's service. With respect to cable modems, although they are navigation devices, we find that because cable modems cannot display or select multichannel video programming and do not have “built-in closed captioning capability,” cable modems have no compliance obligations under Section 205.

A router is a device that connects two or more computer networks together, such as by connecting a home network to a broadband network.

32.

Removable media players.

We reject Panasonic's request that we find that removable media players, such as DVD and Blu-ray players, are not subject to Section 204.

Removable media players are designed to “play back” video programming simultaneously with sound and Panasonic does not appear to dispute this. Instead, Panasonic argues that the inclusion in Section 204 of the clause “including apparatus designed to receive or display video programming transmitted in digital format using Internet protocol” signifies that Congress intended the word “transmitted” to mean “the conveyance of content from a video programming provider (

e.g.

a broadcast) to a receiver or recorder which in turn plays back or displays the content to be viewed by a consumer.” Panasonic argues that removable media players do not “transmit” video programming and therefore fall outside the scope of Section 204. We disagree with Panasonic's interpretation of Section 204. In interpreting a similar provision, the Commission found in the

IP Closed Captioning Order,

and recently reiterated in the

IP Closed Captioning Reconsideration Order,

that the word “transmitted” is best interpreted to “describe how the video programming is conveyed from the device (

e.g.,

DVD player) to the end user . . ., rather than describe how the video programming arrived at the device.” We see no reason to deviate from this settled interpretation here. Accordingly, because removable media players can “play back video programming transmitted in digital format,” we find that they are subject to the requirements of Section 204.

Panasonic does not argue that removable media players with IP connections or tuners should be excluded from coverage. Rather, Panasonic argues that removable media players without a tuner or an IP network connection are not covered under either Section 204 or 205.

Panasonic also submits that “[i]n the case of DVD and Blu-Ray Disc

players, these devices depend on disc content authors to provide audio tags that are included in a disc's menus in order to provide audio output for the on-screen text or visual indicators. The techniques for authoring accessible media are well known and accessible DVDs are widely available in the marketplace. For Blu-Ray Discs

, the Blu-Ray Disc

Association allows `button sounds' for the creation of accessible interactive menus. Therefore, if the Commission finds that standalone removable media players are subject to Section 204 (a point on which we disagree, as noted above), the Commission should recognize that this support for accessible menus in

removable media already complies with this Section. Removable media players cannot support a requirement to enable accessibility of media content menus because such menus are not under the control of the equipment manufacturer.” We agree. Section 303(aa)(2) of the Act only applies to “on-screen text menus or other visual indicators

built in to

the digital apparatus.” 47 U.S.C. 303(aa)(2) (emphasis added). Because the menus of the removable media itself (

e.g.,

a Blu-Ray disc) are not “built-in” to the digital apparatus, the manufacturer of the removable media player does not have a compliance obligation under Section 204 to make such menus accessible. The manufacturer of the removal media player does have an obligation under Section 204 to make accessible the “built-in” text menus and other visual indicators of the removable media player and any other “appropriate built-in apparatus functions.”

Id.

303(aa)(1), (2). This would include, for example, making accessible the text menus and other visual indicators of video applications, such as Netflix, Hulu, and Amazon, when such applications are pre-installed on the removal media player by the manufacturer.

33.

Display-only monitors and video projectors.

We conclude that display-only monitors and video projectors qualify as covered digital apparatus under Section 204, consistent with the Commission's analysis in the

IP Closed Captioning Order,

because the term “apparatus” includes “physical devices capable of displaying video.” However, as discussed below, we will defer the compliance deadline under Section 204 for a period of five additional years for these devices.

The video projectors that we refer to in this section are those available for purchase by individual consumers, not professional projectors, such as movie theater projectors, which we find are outside the scope of Sections 204 and 205.

34. Panasonic argues that these devices should not be covered by Section 204 on the same grounds they argue that removable media players should not be covered, and we reject that argument for the same reasons described above. CEA argues that under the language of Section 303(aa)(1) of the Act, a digital apparatus must be able independently to “receive or play back video programming,” and display-only monitors do not have this capability.”

We adopt the same analysis used in the

IP Closed Captioning Order,

in which the Commission determined that a device that is “capable of displaying video” is “designed to receive or play back video programming” and thus an apparatus under Section 203. We believe that the language in Section 204, which states that a “digital apparatus” is a device “designed to receive or play back video programming,” language that also is used in Section 203, should be interpreted in the same manner as in the

IP Closed Captioning Order.

Thus, because display-only monitors and video projectors can display video programming simultaneously with sound, such devices fall under Section 204. The Information Technology Industry Council (“ITIC”) argues that the Commission should adopt a display-only monitor exemption in this proceeding similar to the exemption adopted in the

IP Closed Captioning Order.

However, the display-only monitor exemption adopted by the Commission in the

IP Closed Captioning Order

relied on a specific statutory provision contained in Section 203 applicable to display-only monitors.

Section 204 lacks an analogous provision. We believe the inclusion of such an exemption in Section 203 and the omission of such an exemption in Section 204 evidences an intent on the part of Congress to include display-only monitors under Section 204. Nevertheless, we observe that the record lacks evidence that individuals with disabilities rely upon display-only monitors and video projectors to watch video programming. And, significantly, the requests to exempt display-only monitors and video projectors from Section 204 were supported by ACB and AFB and not otherwise opposed.

CEA also argues, and we agree, that display-only monitors are not navigation devices as they cannot independently access MVPD programming or other services and must rely on another device to provide access to MVPD programming or other services.

The

IP Closed Captioning Order

did not apply the display-only monitor exemption to video projectors.

35. Although we do not believe we have the statutory authority under Section 204 to exempt display-only monitors and video projectors, we will defer the compliance deadline under Section 204 for five additional years (eight years after publication of the rules in the

Federal Register

) to allow consumer electronics manufacturers to focus on making accessible other devices, such as televisions, that blind and visually-impaired consumers commonly use. As discussed further below, we believe Congress's omission of a specific compliance deadline under Section 204 affords broad discretion to the Commission to establish an appropriate deadline.

The only guidance that Congress provided with respect to compliance deadlines in Section 204 is mandating that the section's requirements not go into effect for a minimum of 24 months for mobile TV devices.

36.

Digital cameras and similar equipment subject to waiver under the IP Closed Captioning Reconsideration Order.

We will also defer compliance under Sections 204 for a period of five additional years (for a total of eight years after the rules are published in the

Federal Register

) for the devices, such as digital cameras and baby monitors, that received a waiver in the

IP Closed Captioning Reconsideration Order

pursuant to the Commission's authority under Section 203 of the CVAA.

CEA asks that we “clarify” that these devices are not subject to the rules adopted under Sections 204 and 205 and claims that the Commission has “ample authority” to use its waiver authority under § 1.3, 47 CFR 1.3, or general rulemaking authority to exempt this equipment from Section 204 or 205 obligations. As we stated earlier, we disagree that we have the authority to provide exemptions from the statutory requirements for devices covered under Sections 204 and 205. The waiver adopted in the

IP Closed Captioning Reconsideration Order

was pursuant to the explicit statutory waiver authority provided under Section 203, and Congress did not provide analogous authority in Sections 204 or 205. We find that these devices are “digital apparatus” under Section 204 because they can be used to “receive or play back video programming transmitted in digital format simultaneously with sound.” We note, however, that CEA's request that these devices be excluded from coverage under Section 204 is supported by ACB and AFB and is not otherwise opposed. We are persuaded that a deferral of the compliance deadline is appropriate in this case because consumers are unlikely to use these devices to watch video programming due to the limited ability of these devices to access video programming, the inconvenience of configuring these devices to view video programming, and the inefficiency of actually viewing video programming on these devices. As noted above with respect to display-only monitors and video projectors, we believe the focus of

consumer electronics manufacturers at this time should be on making accessible other devices that will provide a greater benefit to consumers in the manner envisioned by Congress in enacting the CVAA.

Under its authority pursuant to Section 203, the Commission granted waiver for two classes of devices: (1) Devices that are primarily designed to capture and display still and/or moving images consisting of consumer generated media, or of other images that are not video programming as defined under the CVAA and Commission rules, and that have limited capability to display video programming transmitted simultaneously with sound; and (2) devices that are primarily designed to display still images and that have limited capability to display video programming transmitted simultaneously with sound. The first category includes, for example, digital still cameras, digital video cameras, baby monitors, security cameras, digital video camera microscopes, digital playback binoculars, and digital probes for viewing and playing video of enclosed spaces. The second category includes, for example, digital picture frames, but not those that are primarily designed to display both still photographs

and

video. We also note that devices with general purpose operating systems, such as Android or Windows, that can receive content from the Internet and easily display video programming transmitted simultaneously with sound, were not subject to the waiver granted in the

IP Closed Captioning Reconsideration Order

and similarly will not be subject to the deferred compliance deadline provided by the R&O.

B. Responsibility and Definition of Digital Apparatus Under Section 204

37. We find that digital apparatus manufacturers have the responsibility to comply with Section 204. We also adopt the tentative conclusions in the

NPRM

to interpret the meaning of “apparatus” and the scope of Section 204 the same way the Commission interpreted the scope of Section 203 in the

IP Closed Captioning Order,

but excluding navigation devices that are subject to Section 205.

38. We find that Section 204 applies to the manufacturers of “digital apparatus” as we define that term below. Section 204 requires that digital apparatus be designed, developed and fabricated in a way that ensures that “built-in apparatus” functions are accessible. Manufacturers of digital apparatus are uniquely positioned to design, develop, and fabricate the built-in functions of the devices they manufacture. Furthermore, Section 204, unlike Section 205, does not explicitly address responsibility under that section for multiple different entities, such as manufacturers of software and manufacturers of hardware, suggesting that Congress intended for the requirements of Section 204 to apply to one entity. CEA and the individual consumer electronics manufacturers that commented do not dispute that they are responsible for the accessibility compliance of the digital apparatus they manufacture. We adopt the

NPRM'

s tentative conclusion to define the term “digital apparatus” as used in Section 204 the same way that the Commission defined the term “apparatus” when implementing Section 203, but excluding navigation devices that are subject to Section 205, as specifically provided in Section 204. Therefore, consistent with the analysis in both the

IP Closed Captioning Order

and the

ACS Order,

we find that the term digital apparatus should be defined to include “the physical device and the video players that manufacturers install into the devices they manufacture (whether in the form of hardware, software, or a combination of both) before sale, as well as any post-sale video players that manufacturers direct consumers to install.”

Included in the scope of digital apparatus are the video players that manufacturers embed in their devices, video players designed by third parties but installed by manufacturers in their devices before sale, and video players that manufacturers direct consumers to add to the device after sale in order to enable the device to play video.

We clarify that this includes the video players that are part of third-party applications that provide video programming, such as Netflix, Hulu, and Amazon, if those applications are pre-installed on digital apparatus or manufacturers direct consumers to install such applications. We find that Section 204 requires the manufacturer of the digital apparatus on which these types of video applications are pre-installed to ensure that the application's user interfaces are accessible. We expect in these instances that the manufacturers of the pre-installed video applications will cooperate with the device manufacturers to ensure the accessibility of such applications. Not included in the definition of a digital apparatus under Section 204 is any “third-party software that is downloaded or otherwise added to the device independently by the consumer after sale and that is not required by the manufacturer to enable the device to play video.”

We find that Section 204's inclusion of the term “digital” to modify the term apparatus, a modifier not present in Section 203, does not require that we establish a different definition for purposes of Section 204, given that all apparatus are digital apparatus and no purely analog apparatus are currently being manufactured. Indeed, the only two commenters to directly address the modifier's inclusion, ACB and NAD/Consumer Groups, agreed that the term's inclusion does not require a different implementation of Section 204 from that used for Section 203.

In addition, if a manufacturer offers updates or upgrades to a video player component of a device, it must also ensure that those updates or upgrades meet the accessibility requirements of Section 204.

Consistent with the approach taken in the

IP Closed Captioning Order

and

ACS Order,

we find that digital apparatus manufacturers are also responsible for software upgrades made available by the manufacturers for download.

39. Consumer electronics manufacturers and commenters representing manufacturers support the Commission's tentative conclusion to adopt the same definition of digital apparatus in Section 204 as adopted for apparatus in Section 203, while consumer groups representing individuals with disabilities urge the Commission to include third-party software and other methods of viewing video programming, such as video players on Web sites, within the scope of Section 204. While we are sympathetic to the concerns of the disability community with respect to accessibility of third-party software, we do not think that it would be reasonable to hold equipment manufacturers responsible for software components over which they have no control, nor do we think Congress intended that result. Unlike Section 205, which directly addresses the responsibility of software manufacturers, Section 204 has no such parallel language, and therefore we believe it is more appropriate to follow the same approach used in the

ACS Order

and

IP Closed Captioning Order.

40. We also adopt the

NPRM'

s tentative conclusion that the inclusion of the phrase “including apparatus designed to receive or display video programming transmitted in digital format using Internet protocol,” a phrase not included in Section 203, should not result in a different interpretation of the scope of Section 204. As the

NPRM

stated, we believe this phrase is best interpreted as a clarification that Section 204 applies not only to traditional video-programming apparatus without IP functionality, such as non-IP enabled televisions, but also to devices with IP-functionality, such as “smart” TVs, tablets, and smartphones. No commenters objected to this tentative conclusion.

41. In addition, we adopt the

NPRM'

s tentative conclusion to interpret the term “designed to,” as used in Section 204, the same way that the Commission interpreted that term in the

IP Closed Captioning Order.

There, the Commission concluded that “to determine whether a device is designed to receive or play back video programming, and therefore covered by the statute, we should look to the device's functionality,

i.e.,

whether it is capable of receiving or playing back video programming.” The consumer groups support this interpretation, but both Panasonic and the Telecommunications Industry Association (“TIA”) argue that the design intent of the manufacturer should play a role in determining whether devices are covered under Section 204. The Commission recently reaffirmed the interpretation of “designed to” made in the

IP Closed Captioning Order

and we see no reason to deviate from that interpretation here. We believe interpreting the phrase “designed to” to focus on a device's capability rather than the intent of the manufacturer provides more regulatory certainty for manufacturers and consumers. Conversely, Panasonic and TIA's interpretation could harm consumers by allowing the manufacturer to dictate unilaterally whether a device falls within the scope of the statute by claiming that they did not intend that a device be used for a particular purpose even if it in fact has that capability, which could render the

accessibility requirements of Section 204 effectively voluntary. We do not believe that Congress intended to allow manufacturers to evade the statutory requirements. No commenters addressed the

NPRM'

s proposal to apply to Section 204 the limitation in Section 203 to apparatus “manufactured in the United States or imported for use in the United States.” We believe it is appropriate to apply such a limitation to Section 204 in our implementing rules to clarify that our rules only apply to devices manufactured in the United States or imported for domestic use.

C. Entities Responsible for Compliance Under Section 205

42. We conclude that both MVPDs leasing or selling navigation devices to their subscribers and equipment manufacturers placing navigation devices into the chain of commerce for purchase by consumers are responsible for complying with Section 205.

In addition, we conclude that Section 205 imposes responsibilities on manufacturers of navigation device hardware and software.

We find that the requirements of Section 205 would also apply to MVPDs in situations in which the MVPDs lease or otherwise give equipment to customers at no charge.

43.

Responsibility Under Section 303(bb)(1) of the Act For Making On-Screen Text Menus and Guides Audibly Accessible.

Section 303(bb)(1) of the Act states, that “if achievable (as defined in section 716), that the on-screen text menus and guides provided by navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations) for the display or selection of multichannel video programming are audibly accessible in real-time upon request, except that the Commission may not specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement[.]” We find that both MVPDs that provide navigation devices to their subscribers and the manufacturers of navigation devices, such as retail set-top boxes with CableCARDs (

e.g.,

TiVo boxes), that sell such devices to consumers at retail are responsible for providing compliant equipment under Section 303(bb)(1) of the Act.

Section 205(b)(3) provides that “[a]n entity shall only be responsible for compliance with the requirements added by the section with respect to navigation devices that it provides to a requesting blind or visually impaired individual.” Section 205 does not define the terms “provide” and “entity” used in this provision. We believe the most reasonable interpretation of the word “provide” is to offer a navigation device to customers for lease or to place a navigation device into the chain of commerce for sale to consumers. It follows that the most reasonable interpretation of the word “entity” is an MVPD providing navigation devices for lease or purchase, and a navigation device manufacturer that places its navigation devices into the chain of commerce for sale to consumers. No commenters object to holding MVPDs and navigation device manufacturers responsible for compliance under Section 205,

and commenting MVPDs and manufacturers of retail navigation devices appear to accept that they have the responsibility to provide compliant devices in accordance with the requirements of Section 303(bb)(1) of the Act. We clarify that MVPDs bear responsibility under Section 205(b)(3) only for the devices they directly provide to customers.

Therefore, an MVPD would not be responsible for ensuring the compliance of a device that one of its customers procures at retail or through some other means and then uses to obtain MVPD service, because the MVPD is not providing that device. We note that the navigation device manufacturer would have compliance responsibilities under Section 205 in the event the customer purchases at retail a CableCARD-compatible set-top box or other device containing conditional access functionality for use in obtaining MVPD service.

We clarify, as requested by the American Cable Association (“ACA”), that Section 205 does not apply to a cable channel providing program listings, often in the form of a scrolling grid. ACA requested clarification that the requirements of Section 205(a) do not apply to “a separate video channel that displays over the course of a few minutes the title of the program currently playing on each network carried by the system.” While Section 205 applies accessibility requirements to “the on-screen text menus and guides

provided by navigation devices,

”

see

47 U.S.C. 303(bb)(1), ACA explains that the information offered on such a programming channel “is provided entirely by equipment in the cable headend, and not by any navigation device on the customer's premises that has been provided by the cable operator.” Therefore, a cable channel providing program listings is not required to be made accessible by Section 205. Similarly, as requested by ACA, we clarify that, to the extent that an MVPD does not provide navigation devices to its subscribers, it is not directly subject to the requirements of Section 205. We note that no party opposed ACA's requests for clarification.

We note that both AFB and NAD/Consumer Groups generally object to including navigation devices other than MVPD-provided navigation devices within the scope of Section 205, but would have the Commission hold the manufacturers of these non-MVPD-provided navigation devices responsible for compliance under Section 204.

As we discuss below, MVPDs may also have separate Section 205 compliance responsibilities pursuant to Section 303(bb)(3)(A) of the Act if the MVPD is the manufacturer of navigation device hardware or software, including pre-installed MVPD applications.

44.

Responsibility Under Section 303(bb)(2) of the Act for Providing Ready

Access to Captions.

Section 303(bb)(2) of the Act provides that “for navigation devices with built-in closed captioning capability, [ ] access to that capability through a mechanism is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features[.]” We find that both MVPDs that provide navigation devices to their customers (either for purchase or lease) and the manufacturers of navigation devices that place devices into the chain of commerce for sale to consumers are the entities responsible for providing compliant equipment—including the mechanism required under Section 303(bb)(2) of the Act. No commenters argue that MVPDs and navigation device manufacturers should not be held responsible for compliance under Section 205 and we believe the most reasonable approach in implementing Section 205 is to hold those entities responsible for providing devices that comply with both Sections 303(bb)(1) and 303(bb)(2) of the Act as these entities are best positioned to ensure that the devices they lease or manufacture have a compliant closed captioning activation mechanism.

45.

Responsibility of Manufacturers of Navigation Device Hardware and Software.

In addition to our finding that Section 205 imposes responsibilities on MVPDs who lease or sell navigation devices and on manufacturers who sell navigation devices at retail, we also find that Section 205 imposes responsibility on the manufacturers of navigation device hardware and software, even if they are not the entity that leases or sells the navigation device to consumers. Section 303(bb)(3) of the Act provides that “with respect to navigation device features and functions—(A) delivered in software, the requirements set forth in this subsection shall apply to the manufacturer of such software; and (B) delivered in hardware, the requirements set forth in this subsection shall apply to the manufacturer of such hardware.” The

NPRM

requested comment on the meaning of this provision. We find that these provisions require that manufacturers of navigation device hardware and software each have responsibility to ensure that the navigation device accessibility features are functional.

For instance, if the

navigation device uses a hardware-based solution to enable accessibility, the manufacturer of the navigation device's hardware has responsibility for ensuring that solution works correctly.

Such a responsibility also includes ensuring that any updates or upgrades that a manufacturer

may offer meet the accessibility requirements of Section 205.

46. We agree with Verizon's formulation that this provision should be interpreted consistent with other provisions of the CVAA so that the Commission has the authority to “assign entities responsibility for compliance in accordance with their roles in any alleged noncompliance.” Therefore, when the Commission receives a complaint regarding a violation of Section 205, the Commission will determine which entity (or entities), if any, is potentially responsible for the violation. The Commission will undertake this effort because it is better positioned than individual consumers to determine the potentially responsible entity. As discussed above, we find that the entity that provides a navigation device to a requesting blind or visually impaired individual (whether an MVPD or equipment manufacturer that places navigation devices into the chain of commerce) has a responsibility to provide that consumer with an accessible device. At the same time, we believe that the language of Section 303(bb)(3) of the Act requires us to recognize that MVPDs or manufacturers that supply navigation devices are not the only entities responsible for compliance under Section 205. Rather, there may be some instances in which the manufacturer of navigation device hardware or software fails to meet its Section 205 compliance responsibility and bears liability in addition to, the MVPD or manufacturer supplying the navigation device.

We intend to investigate complaints and determine violations under Section 205 on a case-by-case basis. In adopting this interpretation of Section 205, we emphasize that even if a complaint proceeding results in a finding that a violation stems from a failure by the manufacturer of hardware or software included in navigation devices provided by MVPDs or sold at retail, such a finding would not relieve the MVPD or equipment manufacturer that placed the navigation device into the chain of commerce of its distinct and separate responsibility under Section 205 to ensure that a consumer is provided with an accessible device.

Pursuant to the terms of Section 205, we have the authority to impose liability on any responsible party (or parties) that we find violate Section 205.

ACB argues that MVPDs should not be able to shift responsibility onto manufacturers or software developers under Section 205 for the equipment the MVPD distributes. As our discussion herein indicates, MVPDs will not be able to shift responsibility for providing accessible devices to consumers onto navigation software and hardware manufacturers; however manufacturers of navigation device hardware and software also have compliance responsibilities under Section 205.

For example, an MVPD that provided a device to a requesting blind or visually impaired subscriber that the MVPD believed was accessible but had a hardware or software malfunction that rendered the device inaccessible would still be responsible for providing that subscriber with a working device that provided accessibility; it could not merely point to the hardware or software manufacturer and escape liability for its own obligations. Similarly, if a hardware or software failure on a retail navigation device occurred that rendered the device inaccessible, the manufacturer that placed the navigation device into the chain of commerce would have responsibility under the Act to ensure that the customer had a functioning accessible device. In a situation in which a device is classified as a navigation device because it has a pre-installed MVPD application, the equipment manufacturer of that navigation device is responsible for providing accessible devices to requesting blind or visually impaired individuals, and would not be relieved of that responsibility by virtue of the fact that the device was not compliant as a result of a software problem with the MVPD application that caused the application itself to become inaccessible. As discussed, in all these instances the entity providing the device, the hardware manufacturer, and the software manufacturer are all potentially liable for violations of Section 205. Of course, in many instances, the manufacturer of the hardware or software in a given device may be the MVPD or navigation device manufacturer itself.

47. When a device that would otherwise be a digital apparatus becomes a navigation device because the device manufacturer installs an application that performs conditional access so that a consumer can access multichannel video programming or other services offered over multichannel video programming systems (hereinafter collectively referred to as “MVPD applications”), we find that pursuant to Section 303(bb)(3)(A), Section 205 applies.

Therefore, to the extent that an MVPD application makes use of “text menus and guides” “for the display or selection of multichannel video programming,” such text menus and guides must be made audibly accessible. In addition, if the device on which the MVPD application is installed has built-in closed captioning,

the application must have a “mechanism reasonably comparable to a button, key, or icon designated for activating the closed captioning.”

For instance, an application offered by an MVPD that enables subscribers to watch multichannel video programming on a mobile device that was pre-installed by the mobile device manufacturer would need to be made accessible pursuant to the requirements of Section 205.

NCTA agrees that when an MVPD application is pre-installed on a device, its on-screen text menus and guides must be made accessible.

After the effective date of the regulations adopted under Section 203 of the CVAA in the

IP Closed Captioning Order,

new navigation devices with video players that are capable of downloading MVPD-provided applications will generally have built-in closed captioning capability. We also note that MVPDs are required under the rules adopted by the

IP Closed Captioning Order

to pass through or render closed captioning on MVPD applications. In requiring that pre-installed MVPD applications make the closed caption activation mechanism accessible, our rules are ensuring that Sections 202, 203, and 205 of the CVAA are working in tandem to make the captioning both available on the hardware and software and easily accessible.

NCTA argues that even if MVPD applications are subject to Section 205, those applications would not be required to provide a closed captioning activation mechanism reasonably comparable to a button, key, or icon because Section 303(bb)(2) of the Act only applies to “navigation devices with

built-in captioning capability”

and MVPD applications downloaded on a third-party device are not “built-in” to the device. We disagree with NCTA's interpretation. Section 303(bb)(3)(A) of the Act applies the accessibility requirements of Section 205, including the closed captioning activation mechanism requirement, to the manufacturers of software to the extent a navigation device's features and functions are being delivered in software. The pre-installed MVPD application itself need not be considered a navigation device for the manufacturers of the application's software to have compliance responsibilities under Section 303(bb)(3)(A) of the Act.

Similar applications to those offered by MVPDs that use text menus and guides for the display or selection of multichannel video programming and allow consumers to access multichannel video programming and other services, such as the TiVo application for smartphones and tablets, would also need to be made accessible under Section 205 if such applications were pre-installed by the device manufacturer. We are not addressing here other services that provide access to video programming, such as Netflix, Hulu, and Amazon, though we note pursuant to our Section 204 analysis that these video applications must be made accessible under Section 204 if pre-installed by the digital apparatus manufacturer.

48. NCTA argues that “if a non-MVPD provides a navigation device to a consumer (even if pre-loaded at sale with an MVPD app), the non-MVPD would be responsible for providing a requesting consumer with an audibly accessible on-screen text menu or guide.” As discussed above, we agree that the non-MVPD manufacturer in this scenario is responsible for complying with Section 205(b)(3) by providing an accessible navigation device to a requesting blind or visually impaired individual. We do not agree, however, that this precludes the Commission from holding MVPDs responsible under Section 205 for the accessibility of pre-installed MVPD applications' on-screen text menus and guides. We believe such a reading of Section 205 would render meaningless Section 303(bb)(3) of the Act, which explicitly states that “the requirements of this subsection shall apply to the manufacturer of . . . software” when “navigation device features and functions” are “delivered in software” and “shall apply to the

manufacturer of . . . hardware” when “navigation device features and functions” are “delivered in hardware.” If Congress intended the only responsible entities under Section 205 to be those that provided navigation devices to requesting blind or visually impaired individuals, there would have been no need for Congress to include the provisions of Section 303(bb)(3) of the Act. We believe our interpretation of Section 205 is more reasonable as it gives effect to all provisions of the statue.

That is, under our interpretation, both the manufacturer of the navigation device and the manufacturer of the software application are held responsible for ensuring compliance with Section 205's requirements.

Prior to NCTA's October 24, 2013

ex parte

letter on this issue, NCTA, AFB, and ACB, stated that “Section 205 grants MVPDs maximum flexibility to provide a requesting customer an accessible solution and should not be construed to require that MVPD-provided apps running on third-party devices must be accessible regardless of whether the MVPD provides the customer with another accessible solution.” While we appreciate the industry working to achieve consensus with the organizations representing individuals with disabilities, we do not believe this agreement represents the correct legal interpretation of Section 205. As an initial matter, we note that the provisions of Section 205 that grant “maximum flexibility” to the entity responsible for compliance grant such maximum flexibility to “the entity providing the navigation device.” When an MVPD application is pre-installed on a device by that device's manufacturer, the device manufacturer is the “entity providing the navigation” device and is entitled to the maximum flexibility in complying with Section 205, not the MVPD. The MVPD in this example, as the manufacturer of the pre-installed application, is the manufacturer of a “navigation device feature and function delivered in software.” Under Section 205, the software manufacturer is not given “maximum flexibility” to select the manner of compliance. Instead, Section 303(bb)(3)(A) of the Act simply requires the software manufacturer to make its software functionality compliant. In other words, unlike with respect to the entity providing the consumer with the navigation device, Section 205 gives no leeway to the software manufacturer to provide a separate solution to comply with the CVAA's requirements. In any event, even if the “maximum flexibility” provision of Section 205 were to apply here, it would give the entity flexibility to select the “manner of compliance,” not to select whether or not to comply. Moreover, the fact that an MVPD may provide compliant navigation devices to its subscribers that choose to lease or purchase such a device from the MVPD, does not relieve the MVPD from its potential separate compliance obligation as a software manufacturer of a pre-installed MVPD application to make such an application accessible. We observe that NCTA's subsequent

ex parte

submissions appear to acknowledge that MVPD applications must be made accessible if pre-installed; they argue the responsibility for ensuring such accessibility is on the navigation device provider.

49. We note that the entity providing the navigation device with the pre-installed MVPD application (which may be an MVPD, but in most cases we anticipate will be the equipment manufacturer that placed the navigation device into the chain of commerce) will be responsible for ensuring the accessibility of on-screen text menus and guides for the display or selection of multichannel video programming on its device to requesting blind or visually impaired individuals.

In the event that the provider of the navigation device and the software manufacturer of the MVPD application use an accessibility solution that incorporates the accessibility into the application itself, the software manufacturer would also have responsibility for compliance under Section 303(bb)(3)(A).

In such circumstances, we believe that the most reasonable interpretation of Section 303(bb)(3)(A) is to find that the MVPD itself is the “manufacturer” of its software application because under the current marketplace reality, the MVPD has exclusive rights to offer such software for use by its subscribers.

Therefore, the MVPD, as the software manufacturer, has a responsibility under Section 303(bb)(3)(A) of the Act for ensuring that its pre-installed software applications meet the accessibility requirements of Section 205.

Similarly, the hardware manufacturer of the navigation device with the pre-installed MVPD application has a responsibility under Section 303(bb)(3)(B) of the Act for ensuring that the device's hardware allows for the accessibility of the pre-installed MVPD application.

Pursuant to the Act, the entity providing the navigation device to the consumer is obligated to provide audible accessibility of the MVPD application's text menus and guides “upon request” to individuals who are blind or visually impaired and has the maximum flexibility in determining the manner by which the MVPD application is made audibly accessible.

We find that an MVPD application that allows a consumer to access and navigate an MVPD's video programming is delivering “navigation device features and functions” within the meaning of Section 303(bb)(3)(A) of the Act because the installation and use of applications is a feature or function of a navigation device with the MVPD application pre-installed by the device manufacturer. NCTA is correct that Section 205 does not require the MVPD application itself to provide accessibility; the entity providing the navigation device can choose the means by which the text menus and guides of the application are made accessible.

In the case of a third-party application that offers access to multichannel video programming but is not provided by the MVPD, such as the TiVo application, the third-party provider of the application would be the “manufacturer” under Section 205. For instance, using the example of TiVo's application referenced above, TiVo would be the responsible entity under Section 205.

Some MVPD commenters argue that imposing accessibility requirements on MVPD applications will stunt the development of this type of software as it will require MVPDs to ensure that their applications are accessible across numerous platforms. However, MVPDs will only have compliance obligations in relation to MVPD applications that are pre-installed on devices. In these circumstances, the MVPD will have already consented to have its application pre-installed, and thus presumably has coordinated with the device manufacturer. To the extent that, in certain circumstances, an MVPD believes that it will not be “achievable” to build accessibility into its application as installed on certain platforms, it is free to seek a determination that it is not “achievable.” DIRECTV, LLC (“DIRECTV”) argues that it would be “grossly unfair” to require MVPDs to design accessible software under Section 205 while other non-MVPD distributors of video programming would not be required to provide accessible software applications. To the contrary, we find that our approach treats both MVPD applications and other video applications similarly. As our above discussion of Section 204 explains, pre-installed video applications on digital apparatus subject to Section 204 must be made accessible similarly to how pre-installed MVPD applications on navigation devices must be made accessible under Section 205.

50. While some commenters would have us apply Section 205 to all MVPD applications, regardless of whether they are pre-installed by the manufacturer of the device or later downloaded by the consumer after purchase, at this time, we only impose obligations under Section 205 on MVPD applications that are pre-installed on devices. We believe such an approach is reasonable because in these instances, the manufacturer will only be responsible for ensuring the accessibility of applications that it chooses to pre-install on devices. Moreover, MVPDs will have consented to such pre-installation and will be well positioned to work with manufacturers to ensure the accessibility of pre-installed applications. Such an approach is also consistent with the approach taken in the

IP Closed Captioning Order

and

ACS Order,

where the Commission found that the CVAA provisions being implemented in those proceedings did not apply to “third-party software” the installation of which is not controlled or directed by the manufacturer. MVPD commenters and CEA argue that Section 205 does not provide the Commission with authority to regulate software applications because MVPD applications are not “devices” or “equipment” and therefore do not meet the definition of a navigation device under § 76.1200(c) of the Commission's rules. However, our conclusion that pre-installed MVPD applications must be covered under Section 205 is not predicated on MVPD applications themselves being navigation devices,

it is predicated on MVPD applications being a “navigation device feature[ ] or function[ ]” that is “delivered in software” under Section 303(bb)(3)(A) of the Act, which imposes responsibility for compliance under Section 205 directly on the manufacturers of navigation device

software. With respect to MVPD applications that are not pre-installed by the device manufacturer, but rather installed by consumers after purchase, the record indicates that MVPDs and software application manufacturers will face significant technical challenges in ensuring that consumer-installed MVPD applications comply with Section 205 on all devices.

Given these technological challenges, we believe at this time it is not appropriate to impose compliance obligations under Section 205 on MVPD applications that are not pre-installed by device manufacturers.

Rather, the navigation device is the device that includes the pre-installed MVPD application.

Commenters that support requiring the accessibility of all MVPD applications do not provide countervailing evidence.

We will continue to monitor the development of accessible technology in this area and will reevaluate whether we should require the accessibility of consumer-installed MVPD applications at a later date if it appears necessary to ensure access to MVPD programming by people who are blind or visually impaired.

51.

Other Entities.

We disagree with AFB that Section 205(b)(3) requires that we impose Section 205 requirements on businesses such as restaurants and bars because such business make “navigation devices . . . available to their customers” and therefore “must provide accessible equipment upon the request of a customer who is blind or visually impaired.” We also decline to impose obligations on consumer electronics retailers, as AT&T Services, Inc. (“AT&T”) suggests.

There is no indication that Congress intended to apply Section 205 to any entities other than MVPDs and manufacturers of hardware and software included in navigation devices. If Congress had intended to extend Section 205's reach to cover retailers or businesses such as those in the travel, entertainment, or food industries that purchase or lease navigation devices for the use of their customers, we believe it would have done so explicitly. As noted above, however, other federal laws may impose accessibility obligations on some of the businesses that AFB discusses that are not contemplated by the provisions of the CVAA.

We also disagree with AFB that a literal interpretation of Section 205(b)(3) would require that the Commission impose obligations on resellers of used consumer electronics, such as Goodwill.

IV. Accessibility Requirements of Sections 204 and 205 of the CVAA

A. Functions That Must Be Made Accessible Under Sections 204 and 205

1. Section 204 Requirements for Digital Apparatus

52. As mandated by Section 204, we adopt rules requiring that covered “digital apparatus” “if achievable . . . 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.” 47 U.S.C. 303(aa)(1). We also adopt rules to ensure that “if on-screen text menus or other visual indicators built in to the digital apparatus are used to access the [appropriate built-in] functions of the apparatus . . . such functions shall be accompanied by audio output that is either integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and usable by individuals who are blind or visually impaired in real-time.”

Id.

303(aa)(2). In the discussion that follows, we set forth the compliance requirements for manufacturers of covered apparatus with regard to accessibility of appropriate built-in functions and related on-screen text menus and visual indicators.

53.

Accessibility of Appropriate Built-In Apparatus Functions.

We require that covered digital apparatus “if achievable . . . 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.” As discussed more thoroughly below, we find that the “appropriate” built-in apparatus functions are those functions that are used for the reception, play back, or display of video programming and that, at this time, those are limited to the VPAAC 11 essential functions.

Further, we clarify that an apparatus covered by Section 204 is not required to include all 11 functions if those functions are not otherwise included in the device generally. That is, we do not impose an obligation on a manufacturer to add any of the 11 functions; rather, we require only that those functions that are already included in the device be made accessible.

As described herein, in the

VPAAC Second Report: User Interfaces,

the VPAAC “define[d] the set of [11] functions considered essential to the video consumption experience.”

54. In the

NPRM,

we tentatively concluded that the “appropriate” functions that must be made accessible under Section 204 include

all

user functions of a covered device, with the exception of diagnostic and debugging functions. ACB, Verizon, and the Rehabilitation Engineering Research Center for Wireless Technologies (“Wireless RERC”) agree that all user functions on a covered device should be made accessible.

However, a number of industry commenters explain that multipurpose devices include functions unrelated to the display of video programming, and they argue that the tentative conclusion is overbroad because it encompasses those functions. For example, the Entertainment Software Association (“ESA”) argues that the

NPRM'

s tentative conclusion “is broader than needed to achieve the accessibility goals behind Sections 204 and 205, which clearly are focused on video programming,” and “also creates significant uncertainty for manufacturers in determining how to handle other device functions that are completely unrelated to video programming, such as game play features of a game console.” Other commenters argue that imposing accessibility requirements on all user functions of a device is contrary to the plain language of the statute, which imposes obligations only with respect to “appropriate built-in apparatus functions.” Upon further consideration of the arguments raised in the record, we decline to adopt our tentative conclusion to extend Section 204 accessibility requirements to all user functions of a device, excluding diagnostic and debugging functions. We agree with commenters that Congress's use of the term “appropriate” as a qualifier indicates that it did not intend for the requirements to broadly cover user functions that are unrelated to video programming.

ACB and the Wireless RERC disagree with the

NPRM'

s tentative conclusion to the extent that it excludes diagnostic and debugging functions from accessibility requirements. Although AFB's reply comments expressed support for the proposal in the

NPRM

that all functions must be made accessible under Section 204, a later

ex parte

letter that AFB filed jointly with CEA states that the 11 essential functions identified by the VPAAC are the set of functions subject to Section 204 accessibility requirements.

55. Instead, we conclude that the “appropriate” apparatus functions are those functions that are used for the reception, play back, or display of video programming. We believe that interpreting “appropriate” user functions to include those related to video programming and to exclude those unrelated to video programming is consistent with the intent of the CVAA “to help ensure that individuals with disabilities are able to . . . better access video programming.” We also believe that this interpretation of the term “appropriate” is consistent with the scope of Section 204, which specifies that covered digital apparatus are those that “receive” or “play back” video programming transmitted in digital format simultaneously with sound, as well as those that “receive” or “display” video programming transmitted in digital format via Internet protocol. Commenters including CEA, CTIA—The

Wireless Association (“CTIA”), ESA, and Panasonic agree that “appropriate” built-in apparatus functions should encompass only those functions that relate in some manner to video programming. In particular, CEA suggests that “[b]ecause Section 204 applies specifically to digital apparatus designed to receive or play back video programming, the functions to be considered `appropriate' are limited to those that are

necessary for

the apparatus to receive or play back that programming.” We are concerned, however, that the “necessary for” formulation put forth by CEA may be construed more narrowly than Congress had intended, resulting in the exclusion of some appropriate functions that are related to video programming from the accessibility requirements of Section 204. We believe that the approach more consistent with Congress's intent is to interpret “appropriate” more broadly as including those functions that are used for the reception, play back, or display of video programming. Further, we disagree with AT&T's and CEA's contention “that Congress used the word `appropriate' to mean `appropriate for a person who is blind or visually impaired' ” and, therefore, “appropriate” apparatus functions should include only “those functions that a person who is blind or visually impaired would need to use to select or access video programming.” As AFB explains, “if a control or function is made available to all customers generally, there should be a presumption that people who are blind or visually impaired, just like all other customers, may be expected, and possibly required, to use it.” We agree with AFB that we should presume that any functions used to receive, play back, or display video programming would be used by a person who is blind or visually impaired and, therefore, there is no need to distinguish between video programming functions that would and “would not be used by a person with a vision disability” for purposes of determining which functions are “appropriate” under Section 204.

56. We disagree with commenters who suggest that manufacturers should have the discretion to determine which functions are “appropriate.” We believe that leaving this determination to the discretion of manufacturers will lead to inconsistencies in compliance across devices and uncertainty for consumers with regard to which video programming functions are required to be accessible on covered apparatus. The discretionary framework suggested by these commenters could lead to a chaotic retail experience for consumers who could not be certain which functions would be accessible on particular devices. We also believe that allowing manufacturers to dictate which functions are “appropriate” is potentially harmful to consumers to the extent manufacturers can unilaterally decide not to make certain functions accessible to individuals with visual disabilities, even if such functions are related to video programming. Given these concerns, we believe the suggested approach would be at odds with the intent of the CVAA to make the functionality of the apparatus “accessible to and usable by individuals who are blind or visually impaired.” We find that instead of permitting manufacturers to decide which functions on a covered device are the “appropriate” functions subject to accessibility requirements, we will provide clarity to the industry and consumers by specifying which user functions we consider to be “appropriate” (

i.e.,

used for the reception, play back, or display of video programming).

57. We find that, at this time, the 11 essential functions identified in the

VPAAC Second Report: User Interfaces

are the “appropriate” built-in apparatus functions used for the reception, play back, or display of video programming that must be made accessible to individuals who are blind or visually impaired pursuant to Section 204 if these functions are included in the device. Thus, we decline to adopt our tentative conclusion that the VPAAC functions are representative, but not an exhaustive list, of the categories of user functions on an apparatus that must be made accessible.

We note that AFB and CEA agree with limiting the “appropriate” functions to the VPACC 11 essential functions. In its report, the VPAAC observed that “the CVAA does not define the set of intended functions that must be made accessible and usable by individuals with disabilities,” and, thus, as its first task, the VPAAC “define[d] the set of functions considered essential to the video consumption experience,” as “applicable to devices covered under CVAA Section 204 and CVAA Section 205.” We recognize that the VPAAC was not specifically instructed to determine the “appropriate” user functions referred to in Section 204 of the CVAA, nor are we bound by the VPAAC's recommendations. We attach great weight, however, to their findings on this subject, which were based on deliberations among industry and consumer representatives. The VPAAC defined these “essential functions” as the “

set

of appropriate built-in apparatus functions” under Section 204. We concur with the VPAAC and find that, at this time, the apparatus functions that must be made accessible to individuals who are blind or visually impaired if they are included in the device

are the following:

The record reflects opposing views with regard to this tentative conclusion. ACB, NAD/Consumer Groups, Montgomery County, Maryland (“Montgomery County”), Verizon, and the Carl and Ruth Shapiro Family National Center for Accessible Media at WGBH (“NCAM”) agree with the tentative conclusion. These commenters maintain that Congress did not intend for Section 204 to apply to a subset of user functions deemed “essential” by an advisory committee, and that the list of essential functions delineated by the VPAAC omits certain video programming-related functions that should be made accessible. On the other hand, numerous industry commenters argue that the 11 VPAAC functions comprise an exhaustive list of apparatus functions that are subject to Section 204 accessibility requirements, and they emphasize that the VPAAC viewed the 11 essential functions as the set of functions that must be made accessible under Section 204.

Consistent with our analysis in Section III.B above, we emphasize that if a third-party video programming application is pre-installed by the manufacturer on a covered apparatus (

i.e.,

if Netflix is pre-installed on a smart television), any of the 11 VPAAC functions that are included in that application must be made accessible.

ACB and the Wireless RERC argue that diagnostic and debugging functions should be subject to accessibility requirements because users who are blind or visually impaired may need to make use of such functions, for example when receiving technical support over the phone. ACB also points out that the technicians who are expected to access and utilize diagnostic and debugging functions may themselves be blind or visually impaired. Although we understand that individuals who are blind or visually impaired may want to directly access diagnostic and debugging functions on occasion, the record does not demonstrate that there is a broad need for consumers to regularly access such functions in order to receive, play back, or display video programming. Therefore, at this time, we find that that the costs of imposing such a requirement outweigh its limited benefit. We also note that the VPAAC did not consider such functions to be essential to the video consumption experience.

•

Power On/Off:

Function that allows the user to turn the device on or off.

•

Volume Adjust and Mute:

Function that allows the user to adjust the volume and to mute or un-mute the volume.

•

Channel/Program Selection:

Function that allows the user to select channels and programs (

e.g.,

via physical numeric or channel up/channel down buttons or via on-screen guides and menus).

We interpret this to include, for example, the ability to select programs that are available on demand or on a digital video recorder (“DVR”), in addition to the ability to select linear programming that is available in real-time. We also interpret this to include the ability to launch applications that are used for the selection and display of video programming.

•

Display Channel/Program Information:

Function that allows the

user to display channel or program information.

We interpret this to include, for example, the ability to display channel and program information for programs that are available on demand or on a DVR, in addition to the ability to display channel and program information for linear programming that is available in real-time.

•

Configuration—Setup:

Function that allows the user to access and change configuration or setup options (

e.g.,

configuration of video display and audio settings, selection of preferred language for on-screen guides or menus, etc.).

We interpret this to include, for example, the ability to change setup options for V-chip and parental controls.

•

Configuration—CC Control:

Function that allows the user to enable or disable the display of closed captioning.

•

Configuration—CC Options:

Function that allows the user to modify the display of closed caption data (

e.g.,

configuration of the font size, font color, background color, opacity, etc.).

•

Configuration—Video Description Control:

Function that allows the user to enable or disable the output of video description (

i.e.,

allows the user to change from the main audio to the secondary audio stream that contains video description, and from the secondary audio stream back to the main audio).

•

Display Configuration Info:

Function that allows the user to display how user preferences are currently configured.

•

Playback Functions:

Function that allows the user to control playback functions (

e.g.,

pause, play, rewind, fast forward, stop, and record).

We interpret this to include, for example, the ability to control playback functions for programs that are available on demand or on a DVR, in addition to the ability to control playback functions for linear programming that is available in real-time.

•

Input Selection:

Function that allows the user to select their preferred input source.

58. We emphasize that at this time we consider the abovementioned functions to be the set of “appropriate” functions that are used for receiving, playing back, or displaying video programming based on current technology, but the Commission may revisit this list if and when technology evolves to a point where devices incorporate new user functions related to video programming that were not contemplated by the VPAAC.

We understand NAD/Consumer Groups' and other commenters' concern that “[a]s technology evolves, we can expect more functions to be added to devices and apparatus.” However, industry commenters argue that taking an expansive view of which apparatus functions are subject to accessibility requirements beyond the VPAAC 11 functions “would leave apparatus manufacturers guessing what other functions are `appropriate,' and will stifle innovation.” While we do not reach the conclusion here that incorporating accessibility features for functions other than the VPAAC 11 functions will stifle innovation, and believe, based on past experience, that the incorporation of access features in some cases can enhance innovation and result in the development of improved products for the general public,

we agree that delineating the current set of “appropriate” functions with some specificity is necessary to eliminate uncertainty for manufacturers as they embark on designing and developing accessible products. We also believe that such an approach is consistent with our determination that decisions about what functions are made accessible should not be left to the discretion of manufacturers. The approach we implement balances the need to provide certainty to manufacturers when they are designing devices with the need to ensure that those functions currently used to receive, play back, or display video programming are made accessible to individuals who are blind or visually impaired, while also recognizing that the Commission may need to assess whether future, innovative functions on devices used to view video programming are subject to accessibility requirements.

We strongly encourage digital apparatus manufacturers, when designing innovative new functions, to concurrently design such features to be accessible to individuals who are blind or visually impaired.

Any such modifications to this list will be made by the full Commission.

As we have previously noted, in many instances, innovative accessibility features are used by people without disabilities. Closed captioning, an innovation originally designed to provide access to television programming for people who are deaf and hard of hearing, is now widely used by the general public in noisy locations, such as restaurants, bars, and exercise facilities, as well as locations where a quiet environment is preferred, such as legislative offices.

A number of industry commenters advocate for the adoption of a safe harbor for the VPAAC 11 functions. We believe the approach we adopt is preferable because it provides more certainty to manufacturers and consumers, while allowing the Commission to reevaluate whether the set of functions that must be made accessible on covered apparatus should be updated to include new functions to the extent technology evolves in the future.

59. We clarify that an apparatus covered by Section 204 is not required to

include

all 11 functions deemed to be “appropriate,” understanding that some of these functions may not be provided for any users on certain devices. We agree with commenters that Section 204 “do[es] not mandate the inclusion of any specific functions” in the design of a covered apparatus. However, to the extent that an apparatus is designed to include an “appropriate” built-in apparatus function, such function must be made accessible in accordance with our rules.

60. As contemplated by the Act, we do not adopt any technical standards or other technical requirements for how covered apparatus should make the appropriate built-in apparatus functions “accessible to and usable by individuals who are blind or visually impaired.” We believe that Congress's intent is clear, and the Commission is prohibited by Section 303(aa)(1) from specifying the technical means by which covered entities must meet their accessibility obligations.

Section 303(aa)(1) of the Act states that “the Commission may not specify the technical standards, protocols, procedures, and other technical requirements for meeting” the accessibility and usability requirements of this section. 47 U.S.C. 303(aa)(1).

61. While we do not adopt rules specifying the technical requirements for compliance with the accessibility mandate in Section 204, we will apply the definition of “accessible” in § 6.3(a) of the Commission's rules to explain generally what “accessible” means for those functions that are not specifically required to be audibly accessible. To the extent the appropriate built-in apparatus functions are accessed through on-screen text menus or other visual indicators built in to the apparatus, the statute specifies that they must be made audibly accessible, and we find herein that this requirement is self-implementing. However, if the appropriate built-in apparatus functions are

not

accessed through on-screen text menus or other visual indicators built in to the apparatus, they must be made accessible generally to individuals who are blind or visually impaired, but need not be made audibly accessible. In the

NPRM,

we asked whether we should apply relevant parts of the definition contained in § 6.3(a) of the Commission's rules,

47 CFR 6.3(a), which implements Sections 255 and 716 of the Act,

to define what “accessible”

means for those appropriate built-in apparatus functions that must be accessible, but are not specifically required to be audibly accessible (

e.g.,

power on/off).

ACB and Montgomery County support applying the definition of “accessible” in § 6.3(a) to the requirements we adopt pursuant to Sections 204 and 205 of the CVAA. Although NCTA and DIRECTV oppose using the § 6.3(a) definition of “accessible” in the context of Section 205 because the on-screen text menus and guides covered by Section 205 are specifically required by statute to be made audibly accessible, we do not propose to apply the definition in this context. To provide some clarity to industry in determining what it means to make a function generally accessible to individuals who are blind or visually impaired, we apply the following parts of § 6.3(a) of the Commission's rules to explain that “accessible” means:

The relevant parts of the definition include those provisions that relate to accessibility for individuals who are blind or visually impaired.

Section 6.3(a) of the Commission's rules implements Section 255 of the Act (requiring telecommunications providers and equipment manufacturers to make their products “accessible to and usable by” persons with disabilities), and § 14.21(b) of the Commission's rules, which is analogous to § 6.3(a), implements Section 716 of the

Act (requiring providers of advanced communications services and manufacturers of equipment used for such services to make their products “accessible to and usable by” persons with disabilities). 47 CFR 6.3(a), 14.21(b).

We also inquired whether we should specify how a device accepts input from and provides feedback to users with respect to such functions. The VPAAC explained that user input refers to “the need for users to be able to locate, identify, and interact with the control mechanism for each essential function of the device . . . in order to express their intent, for control of playback operations, setting preferences, making selections of content of interest, and the like,” and that user feedback should “not depend on the impaired ability.” Verizon, the only commenter who addresses this issue, opposes any specific requirements with regard to user input and feedback. Given the concerns raised by Verizon about the potential to hinder innovation by mandating the mechanisms for user input and feedback, we decline at this time to adopt rules specifying user input and feedback requirements.

(1) Input, control, and mechanical functions shall be locatable, identifiable, and operable in accordance with each of the following, assessed independently:

(i) Operable without vision. Provide at least one mode that does not require user vision.

(ii) Operable with low vision and limited or no hearing. Provide at least one mode that permits operation by users with visual acuity between 20/70 and 20/200, without relying on audio output.

(iii) Operable with little or no color perception. Provide at least one mode that does not require user color perception.

62.

Accessibility of On-Screen Text Menus or Other Visual Indicators Used to Access Appropriate Built-In Apparatus Functions.

We codify the statutory language in Section 204 that requires “that if on-screen text menus or other visual indicators built in to the digital apparatus are used to access the [appropriate built-in] functions of the apparatus . . ., such functions shall be accompanied by audio output that is either integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and usable by individuals who are blind or visually impaired in real-time.” In the

NPRM,

we tentatively concluded that the requirement that on-screen text menus or other visual indicators “be accompanied by audio output” is self-implementing. No commenter addresses this tentative conclusion, but Verizon and CTIA argue generally that the obligations imposed by Section 204 should be self-implementing. We adopt our tentative conclusion and find that this requirement is self-implementing, and therefore simply codify this requirement in our rules. Panasonic emphasizes that Section 204 applies only to those on-screen text menus or visual indicators that are used to access the appropriate built-in apparatus functions, and not to all on-screen text menus or visual indicators on a device, and that Section 204 permits the audio output functionality to be either integrated or peripheral to the device. We agree.

2. Section 205 Requirements for Navigation Devices

63. We codify in our rules the language in Section 303(bb)(1) of the Act, which requires “that the on-screen text menus and guides provided by navigation devices . . . for the display or selection of multichannel video programming are audibly accessible in real-time upon request by individuals who are blind or visually impaired.” 47 U.S.C. 303(bb)(1). In the discussion that follows, we set forth the compliance requirements for MVPDs and manufacturers with regard to accessibility of on-screen text menus and program guides on navigation devices. Specifically, we conclude that nine of the 11 VPAAC functions must be made audibly accessible on navigation devices because they are accessed through on-screen text menus and guides and used for the display or selection of multichannel video programming. We further conclude that the remaining two VPAAC functions must be made accessible to people who are blind or visually impaired because they are controls necessary to access covered functions, but that these need not be made

audibly

accessible. In addition, as we did with regard to Section 204, we find that the audible accessibility requirement is self-implementing, and therefore simply codify this requirement in our rules.

64. In the

NPRM,

we tentatively concluded that all user functions that are offered via on-screen text menus and guides should be accessible on navigation devices covered by Section 205. We also sought comment on whether there should be any substantive difference between the functions of apparatus that must be accessible under Section 204 as opposed to the functions of navigation devices that must be accessible under Section 205. With the exception of ACB and AT&T,

commenters argue that Congress adopted distinct requirements for apparatus subject to Section 204 and navigation devices subject to Section 205. According to these commenters, navigation devices subject to Section 205 are governed by a more narrow provision that focuses on access to “on-screen text menus and guides . . . for the display or selection of multichannel video programming,” whereas Section 204 applies more broadly to the “appropriate built-in functions” of an apparatus. As discussed below, we take these differences into account in our analysis. Further, commenters point out that a navigation device may include functions unrelated to video programming. Thus, based on the record, we no longer believe it is accurate to conclude that all of a navigation device's user functions that are activated via text menus and guides are used for the display or selection of multichannel video programming. Instead, we agree with DIRECTV that we “must determine which functions or categories of functions on a navigation device properly relate to the display or selection of multichannel video programming.”

As discussed above, we disagree with ACB's contention that Section 205 devices are a subset of Section 204 devices.

65. Thus, we decline to adopt our tentative conclusion that

all

user functions that are offered via on-screen text menus and guides should be accessible on navigation devices, and instead find that Section 205 requires audible accessibility for those navigation device functions that are offered via on-screen text menus and guides and used

for the display or selection of multichannel video programming,

and more general accessibility for controls necessary to access those covered functions. For the same reasons we expressed in the Section 204 context, we disagree with DISH Network L.L.C. and EchoStar Technologies L.L.C. (“DISH/EchoStar”) that the Commission should “allow manufacturers to determine which functions of particular devices best

satisfy the requirements of [Section 205 of] the CVAA.” If a function is provided via an on-screen text menu or guide and it is used for the display or selection of multichannel video programming, Section 205 mandates that it must be made audibly accessible. Our rules implementing Section 205 will reflect this mandate. Also, consistent with our implementation of Section 204, we are not requiring covered entities to add any particular functionality offered via an on-screen text menu or guide for the display or selection of video programming that it had not otherwise included on a navigation device. Rather, we require only that the functionality that is already included in the device be made accessible.

66. Given the divergent views in the record, we believe it is necessary to specify which functions we consider to be used “for the display or selection of multichannel video programming.” In the

NPRM,

we asked whether making the VPAAC 11 essential functions accessible on navigation devices would achieve Section 205's requirement that on-screen text menus and guides for the display or selection of multichannel video programming be made audibly accessible, and we tentatively concluded that the VPAAC 11 functions are representative, but not an exhaustive list, of the categories of functions that a navigation device must make accessible. Certain MVPD commenters argue that, while the VPAAC list may be useful in providing some examples of functions that should be made accessible under Section 205, it includes functions that are beyond the scope of the accessibility mandate in Section 205.

67. Rather than adopt our tentative conclusion that the entire VPAAC list is representative of what functionality is required to be accessible pursuant to Section 205, we now identify nine of the 11 functions on the VPAAC list of essential functions,

as defined in paragraph 57 above, as those that are used for the display or selection of multichannel video programming and therefore, are required to be made audibly accessible on navigation devices under Section 205 if they are offered via an on-screen text menu or guide: Channel/Program Selection; Display Channel/Program Information; Configuration—Setup; Configuration—CC Control; Configuration—CC Options; Configuration—Video Description Control; Display Configuration Info; Playback Functions; and Input Selection.

We believe that all of these functions are used for the

display

of multichannel video programming. To be more specific, the functions “Configuration—Setup” and “Display Configuration Info” are used to view and change the settings for the display of multichannel video programming; the functions “Channel/Program Selection” and “Display Channel/Program Information” are used to select and display specific channels and programs of multichannel video programming; the functions “Configuration—CC Control” and “Configuration—CC Options” are used to control and configure the captions that are part of the display of multichannel video programming;

the function “Configuration—Video Description Control” is used to control the audibly-described portions of the display of multichannel video programming; “Playback Functions” is used to play, pause, fast forward, and rewind multichannel video programming that is displayed; and “Input Selection” is used to select the input that permits the display of multichannel video programming. In addition, two of these functions—“Channel/Program Selection” and “Display Channel/Program Information”—also are used for the

selection

of multichannel video programming.

We do not include the VPAAC categories of “Power On/Off” and “Volume Adjust and Mute” with the understanding that such functions are not typically accessed via on-screen text menus or guides, but instead, are functions that are accessed via a physical button on the remote control or device. However, we require these functions to be generally accessible because they are controls necessary to access covered functions.

Although we find that these functions are used for the display of multichannel video programming and subject to Section 205 audible accessibility requirements when they are accessed via an on-screen text menu or guide, we note that to the extent such functions are provided by means of a mechanism other than an on-screen text menu or guide (

e.g.,

if playback functions are accessed via dedicated play, pause, rewind, and fast forward buttons on a remote; if closed captioning or video description is activated through a dedicated button on a remote, etc.), they are not subject to Section 205 audible accessibility requirements. However, we strongly encourage navigation device manufacturers to design such features to be accessible to individuals who are blind or visually impaired.

We reject the presumption that a person who is blind or visually impaired does not need to access closed captioning features and that, therefore, closed captioning features should not be subject to Section 205 audible accessibility requirements. For example, a person who is both visually impaired and deaf or hard of hearing may use the closed captioning control and settings when viewing video programming.

68. We find unpersuasive the arguments of MVPD commenters for excluding certain of these nine functions from the audible accessibility requirements of Section 205. NCTA and DISH/EchoStar agree that most of the nine functions are accessed by means of on-screen text menus or guides for the display or selection of multichannel video programming covered by Section 205. NCTA argues that one category, “Input Selection,” is not covered by Section 205 because it “is generally performed by the television set or audio/video receiver” and “is not part of an MVPD's program guide or menu.”

We note that navigation devices covered by Section 205 include not only MVPD-provided set-top boxes but also CableCARD televisions and other navigation devices sold at retail and, therefore, it is appropriate to require that the “Input Selection” function, when offered via an on-screen text menu or guide on any navigation device, be made accessible under Section 205.

DISH/EchoStar argues that two categories, “Configuration—Setup” and “Display Configuration Info,” are not covered by Section 205 because they are “broad, umbrella categories of functions” that “may not relate to the display or selection of multichannel video programming.” However, a configuration menu that is used to view or adjust the display settings for multichannel video programming on a navigation device is covered by Section 205, regardless of whether it can

also

be used to view or adjust the display settings for features other than multichannel video programming. DIRECTV contends that only four of the VPAAC 11 functions are required to be accessible under Section 205. We believe that DIRECTV's proposal is an inappropriately narrow interpretation of the phrase “display or selection of video programming” because it excludes five functions that we consider to be used for the display of video programming as explained in paragraph 67 above.

We note that NCTA does not argue that the input selection function is not provided through on-screen text menus or guides, but rather that it is not provided at all on MVPD-provided navigation devices. As we note above, if a particular function is not included on a navigation device, then there is no obligation to add that functionality; rather, we require only that the functionality that is already included in the device be made accessible.

However, when a navigation device accesses the input selection for that device or another device through a button on an included remote control, there is no obligation to make such a button accessible.

Specifically, DIRECTV excludes “Configuration—Setup,” “Configuration—CC Control,” “Configuration—CC Options,” “Configuration—Video Description Control,” and “Display Configuration Info.”

69. In the

NPRM,

we tentatively concluded that the statutory requirement that on-screen text menus or guides be audibly accessible is self-implementing. No commenter disagrees. Further, Section 303(bb)(1) of the Act indicates that “the Commission may not

specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement.” Given this statutory limitation, we do not adopt any technical standards or other requirements for how navigation devices should make covered on-screen text menus and guides “audibly accessible in real-time” to individuals who are blind or visually impaired, and instead find that this requirement is self-implementing and codify it in our rules.

70. DIRECTV, NCTA, and AT&T argue that the Commission should clarify that the audible accessibility requirement for text menus and guides does not require exactly replicating in audible form the complete on-screen text. We conclude that the audible accessibility requirement requires consumers to receive the essential information from the on-screen text menus and guides that they seek, but we do not require that the audible version of an on-screen text menu or guide be an exact replication of the text. We recognize that covered entities need flexibility in implementing the audible accessibility requirement so that they can best respond to the needs of consumers who are blind or visually impaired. For example, a consumer may not want the entire programming guide made audible but rather may just want to know what programming is on a particular channel. Similarly, there may be a need to provide relevant information that may not appear as on-screen text (for example, a contextual description such as “displaying rows 10 through 20 of 100 channels,” or “displaying menu 1 of 5 menus”). We emphasize, however, that all of the essential information from the on-screen text menu or guide must be made audibly accessible as requested or selected by the consumer.

We expect that covered entities will consult with individuals who are blind or visually impaired in their efforts to ensure that on-screen text menus and guides are made accessible in a manner that effectively meets the accessibility needs of those individuals.

71.

Accessibility of Controls Needed to Access Covered Functions.

We also conclude that covered entities must make certain functions accessible to individuals who are blind or visually impaired because they are necessary for individuals who are blind and visually impaired to access the audibly accessible on-screen text menus and guides for the display or selection of multichannel video programming. Specifically, we conclude that “Power On/Off” and “Volume Adjust and Mute,” as defined in paragraph 57 above, must be made accessible because they are necessary to make other covered functions of the device accessible. If a consumer who is blind or visually impaired cannot turn on a navigation device, then the device and all of its functionality are rendered inaccessible. And, if a consumer who is blind or visually impaired cannot adjust the volume to hear audible output, then those functions that are required to be audibly accessible under Section 205 are rendered inaccessible.

The ability to control volume for audible output is particularly important for individuals who are blind or visually impaired and also deaf or hard of hearing.

72. We find our authority to require that these two functions be made accessible in Section 205(b)(1), Public Law 111-260, 205(b)(1), which provides the Commission with authority to “prescribe such regulations as are necessary to implement” the requirements in Section 303(bb) of the Act. We find that requiring the power on/off and volume adjust/mute functions to be accessible is

necessary

to ensure that on-screen text menus and guides for the display or selection of multichannel video programming are audibly accessible by individuals who are blind or visually impaired, as required by Section 303(bb)(1) of the Act. Congress's directive to require audibly accessible guides and menus for multichannel video programming on navigation devices would be meaningless if individuals who are blind or visually impaired are not even able to turn on the device or to adjust the volume. However, we do not require that the power on/off and volume controls be

audibly

accessible, so long as covered entities make these functions accessible to individuals who are blind or visually impaired, in accordance with the definition of “accessible” in § 6.3(a) of the Commission's rules.

73.

Program Information for PEG Channels.

We do not require MVPDs to include particular program information in their program guides at this time, but we inquire in the

FNPRM

about Commission authority to impose such a requirement. Aside from the comments of public, educational, and governmental (“PEG”) programmers, there is little discussion in the record about imposing such requirements. In particular, there is limited discussion in the record about the costs to MVPDs if we adopt this requirement and whether it would be technically feasible to require all MVPDs to include program titles and other information in their program guides.

Montgomery County, the Alliance for Communications Democracy, the Alliance for Community Media, and the National Association of Counties

et al.,

along with numerous providers of PEG programming from across the country (collectively, “PEG commenters”) advocate for the Commission “to adopt rules that would require video programming guides and menus which display channel and program information [to] include, for all channels, high level channel and program descriptions and titles, as well as a symbol identifying the programs with accessibility options (captioning and video description).”

PEG commenters argue that the level of information that is currently provided for PEG channels on MVPD program guides is inadequate to satisfy the accessibility goals of the CVAA because viewers who are blind or visually impaired are unable to determine from the guide what the PEG program options are and whether such programs are accessible and, thus, are unable to make meaningful video program choices.

The only two industry commenters that respond to the PEG issue, NCTA and AT&T, argue that the proposed requirement is beyond the scope of the CVAA.

In addition, a subset of PEG commenters contend that consumers who are blind or visually impaired face unique challenges in accessing PEG channels on AT&T's U-Verse system, and they ask the Commission to require that AT&T provide its U-Verse subscribers with access to PEG programming that is equivalent to the access provided to linear commercial programming channels on its system. We note that there is a separate Commission proceeding with a record that specifically addresses these issues, and the instant proceeding may not be the appropriate place to resolve these issues. We also note that, pursuant to the rules we adopt herein, AT&T will be required to ensure that the on-screen text guides for selecting PEG programs on U-Verse are audibly accessible.

For this reason, PEG commenters argue that the Commission has direct authority under Section 205 of the CVAA to require MVPDs to provide more specific content in video programming guides and menus, as well as ancillary authority to do so.

74. We believe there is not sufficient information in the record to require MVPDs to include particular information in program guides. Section 205 of the CVAA requires that on-screen text menus and guides provided by navigation devices for the display or selection of multichannel video programming be made audibly accessible, but it does not govern the underlying content in the menus and guides. In other words, this section requires that

there is text in a menu or program guide on the screen, then

that text

must be audibly accessible, but it does not impose requirements with regard to what substantive information must appear in the on-screen text. To the extent a program guide lacks adequate information about the title and description of a program, this inadequacy affects the ability of all

subscribers to make meaningful program choices, not just the ability of those who are blind or visually impaired to do so. Although we find the record insufficient to decide this issue at this time, we seek comment in the

FNPRM

that accompanies the R&O on possible sources of authority for requiring MVPDs to include specific information for PEG programming in video programming guides and menus, as well as on the technical issues and costs for MVPDs to comply with such requirements. We recognize the important role of PEG providers in informing the public, including those who are blind or visually impaired, on local community issues, and we encourage MVPDs to provide more detailed information in their program guides for PEG programs where such information is provided by PEG providers and where it is technically feasible.

3. Performance Objectives

75. At this time, we decline to adopt performance objectives to evaluate accessibility or compliance with the rules we adopt pursuant to Sections 204 and 205. As noted above, Section 303(aa)(1) of the Act prohibits the Commission from “specify[ing] the technical standards, protocols, procedures, and other technical requirements for meeting” the accessibility requirements of this section. Section 303(bb)(1) of the Act includes a similar restriction. In the

NPRM,

we inquired whether we can adopt specific metrics to evaluate accessibility and compliance with Sections 204 and 205, given this limitation. We also asked whether there are performance objectives or functional criteria that covered entities can look to voluntarily as an aid in meeting their Section 204 and 205 accessibility obligations. CTIA cautions that “[w]hile guidance from the Commission on what it means to be `accessible' may be appropriate and helpful, the rules should not contain any particular standards, objectives, or other metrics,” because “[s]uch `voluntary' standards or performance objectives will inevitably become the standards against which covered entities' accessibility approaches are judged, and so will serve as

de facto

requirements in contravention of Congress' intent.” Because we are providing guidance on what it means to be “accessible” by applying the definition in § 6.3(a) of the Commission's rules and because we do not wish to impede innovation in the design of accessible apparatus by prematurely adopting performance objectives, we decline to adopt any voluntary performance objectives, functional criteria, or any other specific metrics for accessibility at this time, but we can reconsider whether there is a need for voluntary guidelines on accessibility after the requirements go into effect. In the meantime, we encourage covered entities to engage in the type of voluntary effort envisioned by NCAM, which would involve coordination between industry and consumer groups on considering “a set of common and translatable approaches” to accessibility as a means to reduce confusion for consumers and to promote commonality across devices. We also note that the

VPAAC Second Report: User Interfaces

describes accessibility criteria agreed upon by industry and consumer groups, which may be a helpful reference for covered entities as they undertake voluntary efforts to develop approaches to accessibility.

4. Achievability

76. We adopt rules for “achievability” that are consistent with our implementation of standards for achievability in other CVAA contexts. Section 303(aa)(1) of the Act indicates that apparatus covered by Section 204 are required to make appropriate built-in apparatus functions accessible to and usable by individuals who are blind or visually impaired only “if achievable (as defined in section 716).” Similarly, Section 303(bb)(1) requires on-screen text menus and guides for the display or selection of multichannel video programming on navigation devices covered by Section 205 to be audibly accessible by individuals who ar

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