Federal Communications Commission FCC 13-45 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of 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 No. 12-107 MB Docket No. 11-43 REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULEMAKING Adopted: April 8, 2013 Released: April 9, 2013 Comment Date: (60 days after date of publication in the Federal Register) Reply Comment Date: (90 days after date of publication in the Federal Register) By the Commission: Commissioners Clyburn, Rosenworcel and Pai issuing separate statements; Commissioner McDowell not participating. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION.................................................................................................................................. 1 II. BACKGROUND.................................................................................................................................... 4 III. SECTION 202 OF THE CVAA............................................................................................................. 7 A. Scope of the Emergency Information Rules .................................................................................... 7 B. Accessible Emergency Information Requirements........................................................................ 10 1. Requirements Applicable to Emergency Information Provided Visually During Non- Newscast Programming........................................................................................................... 11 2. Definition of Emergency Information..................................................................................... 29 C. Responsibilities of Entities Subject to Section 202(a) of the CVAA............................................. 32 D. Compliance Deadlines ................................................................................................................... 37 E. Complaint Procedures.................................................................................................................... 46 IV. SECTION 203 OF THE CVAA........................................................................................................... 48 A. Apparatus Requirements for Emergency Information and Video Description.............................. 49 1. Performance and Display Standards........................................................................................ 50 2. Recording Devices .................................................................................................................. 52 3. Customer Support Services ..................................................................................................... 54 4. Interconnection Mechanisms................................................................................................... 55 5. Issues from 2011 Video Description Order............................................................................. 56 B. Apparatus Subject to Section 203 of the CVAA............................................................................ 60 1. General Scope of the Apparatus Requirements....................................................................... 60 Federal Communications Commission FCC 13-45 2 2. Interpretation of Statutory Terms Incorporated in the Commission’s Apparatus Requirements........................................................................................................................... 63 3. Application of the Apparatus Requirements to Certain Categories of Apparatus................... 70 C. Alternate Means of Compliance .................................................................................................... 75 D. Compliance Deadlines ................................................................................................................... 76 E. Complaint Procedures.................................................................................................................... 78 V. FURTHER NOTICE OF PROPOSED RULEMAKING..................................................................... 80 VI. PROCEDURAL MATTERS................................................................................................................ 87 A. Regulatory Flexibility Act ............................................................................................................. 87 B. Paperwork Reduction Act .............................................................................................................. 89 C. Congressional Review Act............................................................................................................. 91 D. Ex Parte Rules................................................................................................................................ 92 E. Filing Requirements....................................................................................................................... 93 F. Additional Information .................................................................................................................. 96 VII. ORDERING CLAUSES...................................................................................................................... 97 APPENDIX A - List of Commenters APPENDIX B - Final Rules APPENDIX C - Final Regulatory Flexibility Analysis for the Report and Order APPENDIX D - Initial Regulatory Flexibility Analysis for the Further Notice I. INTRODUCTION 1. Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”),1 this Report and Order adopts rules requiring that emergency information2 provided in video programming be made accessible to individuals who are blind or visually impaired and that certain apparatus be capable of delivering video description and emergency information to those individuals. Section 202 of the CVAA directs the Commission to promulgate rules requiring video programming providers, video programming distributors, and program owners3 to convey emergency information in a manner accessible to individuals who are blind or visually impaired.4 The Report and Order implements 1 Pub. L. No. 111-260, 124 Stat. 2751 (2010) (as codified in various sections of 47 U.S.C.). See also Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-265, 124 Stat. 2795 (2010) (making technical corrections to the CVAA). The foregoing are collectively referred to herein as the CVAA. The CVAA was enacted on October 8, 2010. 2 The CVAA directed the Federal Communications Commission (“Commission”) to apply here the definition of “emergency information” found in the Commission’s rules. 47 U.S.C. § 613(g)(1). “Emergency information” is defined in the Commission’s rules as “[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency. Examples of the types of emergencies covered include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.” 47 C.F.R. § 79.2(a)(2). “Critical details include, but are not limited to, specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures, and how to obtain relief assistance.” Note to 47 C.F.R. § 79.2(a)(2). 3 Section 79.1 of the Commission’s rules defines the terms “video programming distributor” and “video programming provider.” 47 C.F.R. §§ 79.1(a)(2)-(3). It does not define the term “program owner.” 4 47 U.S.C. § 613(g)(2). Federal Communications Commission FCC 13-45 3 this mandate by requiring the use of a secondary audio stream5 to convey televised emergency information aurally, when such information is conveyed visually during programming other than newscasts, for example, in an on-screen crawl.6 This requirement, which has widespread industry support, will serve the public interest by ensuring that televised emergency information is accessible to individuals who are blind or visually impaired. Further, as directed by Section 203 of the CVAA, the Report and Order requires certain apparatus that receive, play back, or record video programming to make available video description7 services and accessible emergency information.8 Specifically, as explained in more detail below, the apparatus rules require that certain apparatus make available the secondary audio stream, which is currently used to provide video description and which will be used to provide aural emergency information. The apparatus requirements will benefit individuals who are blind or visually impaired by ensuring that apparatus on which consumers receive, play back, or record video programming are capable of accessing emergency information and video description services. We understand that most apparatus subject to the rules already comply with these requirements. As discussed in Section III below, we adopt emergency information requirements for video programming distributors, video programming providers, and program owners pursuant to Section 202(a) of the CVAA. Specifically, we adopt rules that will: ? Clarify that the new emergency information requirements apply to video programming provided by entities that are already covered by Section 79.2 of the Commission’s rules – i.e., broadcasters, MVPDs, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission; ? Require that covered entities make an aural presentation of emergency information that is provided visually in non-newscast programming available on a secondary audio stream; ? Continue to require the use of an aural tone to precede emergency information on the main program audio, and now also require use of the aural tone to precede emergency information on the secondary audio stream; ? Permit, but do not require, the use of text-to-speech (“TTS”) technologies as a method for providing an aural rendition of emergency information, and impose qualitative requirements if TTS is used; ? Require that emergency information provided aurally on the secondary audio stream be conveyed at least twice in full; ? Require that emergency information supersede all other programming on the secondary audio stream; ? Decline to make any substantive revisions to the current definition of emergency information, but clarify that severe thunderstorms and other severe weather events are included within the current definition; ? Revise the emergency information rule, as required by the statute, to include video programming providers (which includes program owners) as parties responsible for making emergency 5 A secondary audio stream is an audio channel, other than the main program audio channel, that is typically used for foreign language audio and video description. 6 See infra Section III.B.1. 7 “Video description” is defined as “[t]he insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” 47 C.F.R. § 79.3(a)(3). 8 47 U.S.C. §§ 303(u), (z), 330(b). See infra Section IV.A. Federal Communications Commission FCC 13-45 4 information available to individuals who are blind or visually impaired, in addition to already covered video programming distributors, and to allocate responsibilities among covered entities; ? Adopt a compliance deadline of two years from the date of Federal Register publication for compliance with the emergency information rules adopted herein; and ? Grant waivers to The Weather Channel, LLC (“The Weather Channel”) and DIRECTV, LLC (“DIRECTV”) to provide them with additional time and flexibility to come into compliance with the rules adopted herein with regard to the provision of local weather alerts during The Weather Channel’s programming via devices that are not currently capable of providing aural emergency information on a secondary audio stream. 2. As discussed in Section IV below, we adopt apparatus requirements for emergency information and video description pursuant to Section 203 of the CVAA. Specifically, we adopt rules that will: ? Require apparatus designed to receive, play back, or record video programming transmitted simultaneously with sound to make secondary audio streams available, because such streams are the existing mechanism for providing video description and the new mechanism for making emergency information accessible; ? Decline at this time to adopt specific performance and display standards or policies addressing certain issues from the 2011 video description proceeding; ? Permit, but do not require, covered apparatus to contain TTS capability; ? Limit applicability of the apparatus requirements, at this time, to apparatus designed to receive, play back, or record video programming provided by entities subject to Sections 79.2 and 79.3 of our rules; ? Apply the apparatus requirements to removable media players, but not to professional and commercial equipment or display-only monitors; ? Find that the apparatus requirements adopted herein apply to mobile digital television (“mobile DTV”) apparatus because such apparatus make available mobile DTV services, which are provided by television broadcast stations subject to Sections 79.2 and 79.3 of our rules; ? Implement the statutory provision that permits alternate means of compliance; ? Adopt a compliance deadline of two years from the date of Federal Register publication for compliance with the apparatus rules adopted herein; and ? Adopt procedures for complaints alleging violations of the apparatus requirements adopted herein. 3. As discussed in Section V below, we issue a Further Notice of Proposed Rulemaking (“Further Notice”) that: ? Explores whether a multichannel video programming distributor (“MVPD”) service is covered by the emergency information rules adopted herein when an MVPD, as defined in the Commission’s rules, permits its subscribers to access linear video programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices; ? Explores whether an MVPD system must comply with the video description rules when it permits its subscribers to access linear video programming via tablets, laptops, personal computers, smartphones, or similar devices; ? Explores whether the Commission should impose a requirement that broadcast receivers detect and decode audio streams marked for the visually impaired, to ensure that consumers can find and locate those streams; and Federal Communications Commission FCC 13-45 5 ? Explores whether the Commission should require covered entities to provide customer support services and contact information to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams. II. BACKGROUND 4. Section 202 of the CVAA directs the Commission to “identify methods to convey emergency information (as that term is defined in section 79.2 of title 47, Code of Federal Regulations) in a manner accessible to individuals who are blind or visually impaired.”9 Pursuant to this section, the Commission must also “promulgate regulations that require video programming providers and video programming distributors (as those terms are defined in section 79.1 of title 47, Code of Federal Regulations) and program owners to convey such emergency information in a manner accessible to individuals who are blind or visually impaired.”10 In addition, Section 203 of the CVAA directs the Commission to prescribe rules requiring certain apparatus on which consumers receive or play back video programming to have the capability to decode and make available emergency information and video description services in a manner accessible to individuals who are blind or visually impaired, and requiring certain apparatus designed to record video programming to enable the rendering or pass through of video description signals and emergency information.11 5. The CVAA directed the Chairman of the Commission to establish an advisory committee known as the Video Programming Accessibility Advisory Committee (“VPAAC”),12 which was directed to develop a report that identifies performance objectives and recommends technical standards and other necessary regulations for the provision of emergency information and video description.13 The VPAAC’s members include representatives from the industry and from consumer groups, and its recommendations thus reflect, in many cases, a consensus among regulated entities and consumers. The VPAAC submitted its statutorily mandated report addressing video description and emergency information to the Commission on April 9, 2012.14 The Commission released the NPRM in this proceeding in November 2012.15 In the NPRM, the Commission provided detailed background information regarding the 9 47 U.S.C. § 613(g)(1). 10 Id. § 613(g)(2). 11 Id. §§ 303(u)(1), (z)(1). 12 Pub. L. No. 111-260, § 201(a). Although the CVAA refers to this advisory committee as the “Video Programming and Emergency Access Advisory Committee,” the Commission shortened its working name to the “Video Programming Accessibility Advisory Committee” to avoid confusion with the “Emergency Access Advisory Committee” established under Section 106 of the CVAA. 13 Id. § 201(e)(2). Section 201(e)(2) also required the report to include information related to user interfaces and video programming guides and menus, which is part of a separate Commission rulemaking proceeding that addresses Sections 204 and 205 of the CVAA. See Public Notice, Media Bureau and Consumer and Governmental Affairs Bureau Seek Comment on Second VPAAC Report: User Interfaces, and Video Programming Guides and Menus, 27 FCC Rcd 4191 (2012) (“Sections 204 and 205 Public Notice”). 14 See Second Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010, available at http://vpaac.wikispaces.com (“VPAAC Second Report”). The portion of the report that addresses video description is available at http://vpaac.wikispaces.com/file/view/120409+VPAAC+Video+Description+REPORT+AS+SUBMITTED+4-9- 2012.pdf (“VPAAC Second Report: Video Description”). The portion of the report that addresses access to emergency information is available at http://vpaac.wikispaces.com/file/view/120409+VPAAC+Access+to+Emergency+Information+REPORT+AS+SUB MITTED+4-9-2012.pdf (“VPAAC Second Report: Access to Emergency Information”). 15 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, (continued….) Federal Communications Commission FCC 13-45 6 applicable provisions of the CVAA, the VPAAC Second Report, and the current rules applicable to televised emergency information and video description, which we need not repeat here.16 The CVAA requires the Commission to complete its emergency information proceeding within one year of the submission of the VPAAC Second Report and to prescribe the apparatus requirements for video description and emergency information within 18 months of the submission of the VPAAC Second Report.17 6. To fulfill these statutory mandates, we adopt the rules discussed below. These rules impose new requirements with regard to the accessibility of televised emergency information for consumers who are blind or visually impaired, as well as new video description and emergency information requirements with regard to the apparatus consumers use to receive, play back, and record video programming. By ensuring the accessibility of emergency information and the availability of accessible emergency information and video description services, the regulations adopted here 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.”18 III. SECTION 202 OF THE CVAA A. Scope of the Emergency Information Rules 7. At the outset, we determine that the emergency information requirements adopted in this proceeding will apply to video programming19 subject to Section 79.2 of the Commission’s rules that is provided by a covered entity, i.e., video programming provided by television broadcast stations licensed by the Commission,20 MVPDs, and “any other distributor of video programming for residential reception (Continued from previous page) Notice of Proposed Rulemaking, 27 FCC Rcd 14728 (2012) (“NPRM”). In April 2012, the Media Bureau and the Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on the portions of the VPAAC Second Report that address emergency information and video description, and the comments and reply comments received in response to the Public Notice helped inform the NPRM. Public Notice, Media Bureau and Consumer and Governmental Affairs Bureau Seek Comment on Second VPAAC Report: Video Description and Access to Emergency Information, 27 FCC Rcd 4195 (2012). 16 See NPRM, 27 FCC Rcd at 14729-33, ¶¶ 2-5. 17 47 U.S.C. § 613(g); Pub. L. No. 111-260, § 203(d)(2). As noted, the VPAAC submitted its report to the Commission on April 9, 2012. Accordingly, the deadline for the emergency information proceeding is April 9, 2013, and the deadline for prescribing apparatus requirements is October 9, 2013. 18 H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010) (“House Committee Report”); S.Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010) (“Senate Committee Report”). 19 The Commission’s rules state that “the definitions in §§79.1 and 79.3 apply” for purposes of Section 79.2. 47 C.F.R. §§ 79.1(a)(1), 79.2(a)(1), 79.3(a)(4). Section 79.1(a)(1) defines “video programming” as “[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station that is distributed and exhibited for residential use.” Id. § 79.1(a)(1). Section 79.3(a)(4) defines “video programming” as “[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station, but not including consumer-generated media.” Id. § 79.3(a)(4). Although Section 79.2 imposes requirements on covered entities, we find it useful to discuss the scope of the rules in terms of the video programming provided by covered entities, as it is such programming that must be made accessible. We discuss which entities are covered by our revised emergency information requirements in Section III.C herein. See infra Section III.C. 20 This includes video programming offered over mobile DTV apparatus, which is provided by television broadcast stations, a category of “video programming distributors” subject to the emergency information requirements in Section 79.2(b) of our rules. 47 C.F.R. § 79.2(b). See also 47 C.F.R. § 79.1(a)(2) (defining “video programming distributor”). The National Association of Broadcasters (“NAB”) does not dispute that television broadcast stations must comply with the emergency information requirements in Section 79.2 when providing video programming via mobile DTV apparatus. See, e.g., Letter from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal (continued….) Federal Communications Commission FCC 13-45 7 that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.”21 This interpretation is supported by Congress’s reference to television-based definitions of video programming distributors and providers in Section 202 of the CVAA.22 Specifically, in Section 202 of the CVAA, Congress amended Section 713 of the Communications Act of 1934, as amended (the “Communications Act”), to require “video programming providers and video programming distributors (as those terms are defined in section 79.1 of title 47, Code of Federal Regulations) and program owners to convey such emergency information in a manner accessible to individuals who are blind or visually impaired.”23 We believe that our interpretation is a reasonable reading of the statute because reference to definitions in the television closed captioning rule evidences Congress’s intent to apply the emergency information requirements in Section 613(g) of the Communications Act to video programming provided by covered entities.24 8. Although consumer groups urge the Commission to find that the rules extend more broadly to all Internet protocol (“IP”)-delivered video programming,25 other commenters argue that there is nothing in the statute or legislative history indicating that Congress intended to expand the scope of the emergency information rules in this manner.26 In addition, NAB observes that legal, practical, and (Continued from previous page) and Regulatory Affairs, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC, at 1 (Feb. 8, 2013) (“NAB Feb. 8 Ex Parte Letter”) (stating that our rules should afford flexibility to program originators “so that the viewer is able [to] access emergency information” on mobile DTV devices). 21 See 47 C.F.R. § 79.2; NPRM, 27 FCC Rcd at 14734, ¶ 6. As noted above, the Commission’s rules state that for purposes of Section 79.2, “the definitions in §§79.1 and 79.3 apply.” 47 C.F.R. §§ 79.1(a)(2), 79.2(a)(1), 79.3(a)(5). Section 79.1(a)(2) defines a “video programming distributor” as “[a]ny television broadcast station licensed by the Commission and any multichannel video programming distributor as defined in § 76.1000(e) of this chapter, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.” Id. § 79.1(a)(2). See also id. § 79.3(a)(5) (providing a nearly identical definition of “video programming distributor”). In the NPRM, we proposed that the emergency information rules would continue to apply only to television broadcast services and MVPD services. See NPRM, 27 FCC Rcd at 14734, ¶ 6. After further consideration of this issue, however, we believe a better approach is to describe the scope of the emergency information rules more precisely by tracking the language used in our existing rules. Thus, the rules will continue to apply to video programming provided by covered entities, which includes programming provided by broadcasters, MVPDs, and “any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.” 47 C.F.R. § 79.1(a)(2). 22 47 U.S.C. § 613(g)(2) (referencing the definitions of video programming providers and video programming distributors from the television closed captioning rule, 47 C.F.R. § 79.1). See Reply Comments of AT&T Services, Inc. at 2 (“AT&T Reply”). 23 47 U.S.C. § 613(g)(2) (emphasis added). See 47 C.F.R. §§ 79.1(a)(2), (a)(3). 24 Although Section 613(g)(2) also refers to “program owners,” a term that is not defined separately in Section 79.1 of the Commission’s rules, we note that the definition of “video programming provider” in Section 79.1(a)(3) includes “but [is] not limited to broadcast or nonbroadcast television network and the owners of such programming.” 47 U.S.C. § 613(g)(2); 47 C.F.R. § 79.1(a)(3). See infra Section III.C. Thus, we believe our interpretation also is consistent with Congress’s inclusion of “program owners” as responsible parties in Section 202 of the CVAA. 25 See Comments of the American Council of the Blind at 2 (“ACB Comments”); Comments of the Rehabilitation Engineering Research Center on Telecommunications Access et al. at 8 (“Consumer Groups Comments”); Reply Comments of the Rehabilitation Engineering Research Center on Telecommunications Access et al. at 4 (“Consumer Groups Reply”). See also Comments of the Rehabilitation Engineering Research Center for Wireless Technologies at 13-14 (“Wireless RERC Comments”) (recommending that the Commission investigate the technical feasibility of providing emergency information in both aural and visual formats on live, IP-delivered programming). 26 See Comments of the Entertainment Software Association at 1, 3-5 (“ESA Comments”); Comments of the Telecommunications Industry Association at 6 (“TIA Comments”); AT&T Reply at 1-2; Reply Comments of the (continued….) Federal Communications Commission FCC 13-45 8 technological limitations currently preclude a uniform or consistent methodology for Internet-delivered emergency information, and that delivering emergency information via IP raises issues with regard to timeliness and geographic relevance of the information.27 We agree that at the present time, the delivery of emergency information via IP raises issues – both in terms of scope and in terms of practicality – that currently make it difficult to achieve.28 Accordingly, at this time, we find that the emergency information rules do not apply to IP-delivered video programming, such as the programming provided by online video distributors (“OVDs”)29 like Netflix and Hulu.30 We recognize, however, that the nature of the delivery of video programming is evolving, and in the coming years, the Commission may need to consider the regulatory implications associated with new forms of video programming services provided by covered entities. 9. We also adopt the NPRM’s conclusion that the emergency information rule in Section 79.2 applies more broadly than the regulations governing the Emergency Alert System (“EAS”), which are found in Part 11 of our rules.31 The EAS rules contain the technical standards and operational procedures of the EAS, which provides the President with the ability to communicate immediately to the (Continued from previous page) National Association of Broadcasters at 2 (“NAB Reply”). See also Letter from Diane B. Burstein, Vice President and Deputy General Counsel, National Cable & Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, at 2 (Feb. 28, 2013) (“NCTA Feb. 28 Ex Parte Letter”); Letter from Diane B. Burstein, Vice President and Deputy General Counsel, National Cable & Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 11, 2013) (“NCTA Mar. 11 Ex Parte Letter”); Letter from James R. Coltharp, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, at 2 (Feb. 19, 2013) (“Comcast Feb. 19 Ex Parte Letter”); Letter from James R. Coltharp, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, at 1 (Mar. 4, 2013) (“Comcast Mar. 4 Ex Parte Letter”); Letter from James R. Coltharp, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, at 1 (Mar. 15, 2013) (“Comcast Mar. 15 Ex Parte Letter”). We note, however, that Congress charged the VPAAC with reporting and making recommendations to the Commission with respect to the delivery of accessible emergency information and video description using IP. See Pub. L. No. 111-260, §§ 201(e)(2)(B), (C), and (E). 27 NAB Reply at 3 (citing VPAAC Second Report: Access to Emergency Information at 9). 28 We also note that Section 79.2(b)(2) applies the rule “to emergency information primarily intended for distribution to an audience in the geographic area in which the emergency is occurring.” 47 C.F.R. § 79.2(b)(2). Given this geographic limitation, applying the rule broadly to cover all IP-delivered video programming, regardless of location, may not serve a useful purpose for and may cause confusion to viewers in areas with no connection to the location of the emergency. 29 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Fourteenth Report, 27 FCC Rcd 8610, 8612, n. 6 (2012) (“An ‘OVD’ is any entity that offers video content by means of the Internet or other Internet Protocol (IP)-based transmission path provided by a person or entity other than the OVD. An OVD does not include an MVPD inside its MVPD footprint or an MVPD to the extent it is offering online video content as a component of an MVPD subscription to customers whose homes are inside its MVPD footprint.”). 30 There are situations, however, where our emergency information rules do apply to IP-delivered video programming provided by a covered entity. For example, as AT&T explains, although its U-Verse service is an Internet protocol television (“IPTV”) service, AT&T is an MVPD, and, thus, the video programming offered through this service would be subject to the emergency information rules. See AT&T Reply at 2, n. 6. We also note that in the Further Notice we inquire whether an MVPD service is covered by the emergency information rules adopted herein, when an MVPD, as defined in the Commission’s rules, permits its subscribers to access linear video programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices. See infra Section V. At this time, however, we find that the emergency information rules do not apply to video programming available for viewing on an Internet website, even if such programming is provided by a covered entity. See, e.g., NAB Reply at 3-4. 31 See NPRM, 27 FCC Rcd at 14729-30, ¶ 2, n. 8. See also Comments of the National Cable & Telecommunications Association at 6-7 (“NCTA Comments”); VPAAC Second Report: Access to Emergency Information at 3-4. Federal Communications Commission FCC 13-45 9 general public during periods of national emergency, and which may be used to provide the heads of state and local governments, or their designated representatives, with a means of emergency communication with the public in their state or local areas.32 The EAS has its own guidelines and requirements for message content and transmission. In contrast, Section 79.2 applies to televised information about a current emergency affecting the local geographic area, intended to further the protection of life, health, safety, and property.33 We agree with the National Cable & Telecommunications Association (“NCTA”) that the accessibility of televised emergency information required under Section 79.2 is a separate matter from an activation of the EAS as governed by Part 11 of our rules.34 Accordingly, we clarify that the emergency information covered by this proceeding does not include emergency alerts delivered through the EAS, which are subject to separate accessibility requirements requiring the transmission of EAS attention signals and EAS messages in audio and visual formats.35 However, to the extent a broadcaster or other covered entity uses the information provided through EAS or any other source (e.g., information from the National Weather Service) to generate its own crawl conveying emergency information as defined in Section 79.2(a)(2) outside the context of an EAS activation, it must comply with the requirements of Section 79.2. B. Accessible Emergency Information Requirements 10. Section 79.2 of the Commission’s rules requires video programming distributors to make emergency information accessible to individuals “with visual disabilities,” and it contains separate requirements for emergency information that is presented visually during newscasts and for emergency information that is provided visually during programming that is not a newscast.36 With regard to emergency information provided visually during newscasts, we make no changes to the requirement that covered entities make emergency information accessible to persons with visual disabilities by aurally describing such information in the main program audio.37 No commenter indicates a need to revise the existing requirement applicable to emergency information provided visually in a newscast. We agree with NAB and NCTA that there is no need to change this portion of the rule because emergency information conveyed during newscasts is currently required to be accessible to individuals who are blind 32 See 47 C.F.R. § 11.1. 33 See id. §§ 79.2(a)(2), (b)(2). 34 NCTA Comments at 6. See also Letter from Diane B. Burstein, Vice President and Deputy General Counsel, National Cable & Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, at 1 (Jan. 18, 2013) (“NCTA Jan. 18 Ex Parte Letter”); NCTA Feb. 28 Ex Parte Letter at 1; NCTA Mar. 11 Ex Parte Letter at 1. But see Wireless RERC Comments at 8 (arguing that if the Commission imposes new televised emergency information requirements on MVPDs, the requirements should extend to EAS messages because it will simplify compliance and standardize the appearance and accessibility of televised emergency information). The Wireless RERC also argues that participation in EAS should be mandatory, not voluntary. Wireless RERC Comments at 8. This issue is outside the scope of the current proceeding and, thus, we do not address it here. 35 See, e.g., 47 C.F.R. § 11.51; NCTA Comments at 6 (citing 47 C.F.R. §§ 11.51(g), (h)). See also Comments of AT&T Services, Inc. at 3, n. 4 (“AT&T Comments”) (noting that AT&T delivers EAS alerts in aural form). Section 11.51(b) of the Commission’s rules provides that “[p]auses in video programming before EAS message transmission should not cause television receivers to mute EAS audio messages.” 47 C.F.R. § 11.51(b). 36 See 47 C.F.R. §§ 79.2(b)(1)(ii)-(iii). We discuss below changes to the latter portion of the rule addressing emergency information provided visually during non-newscast programming. See infra Section III.B.1. 37 47 C.F.R. § 79.2(b)(1)(ii). See also Implementation of Video Description of Video Programming, Report and Order, 15 FCC Rcd 15230, 15250-51, ¶¶ 49-50 (2000) (“2000 Video Description Order”) (“We envision that affected broadcast stations and MVPDs will aurally describe the emergency information in the main audio as part of their ordinary operations.”). Federal Communications Commission FCC 13-45 10 or visually impaired through the aural presentation in the main program audio stream.38 Thus, the current rule with respect to newscasts satisfies the CVAA’s mandate that our regulations require covered entities to “convey . . . emergency information in a manner accessible to individuals who are blind or visually impaired.”39 While we are not changing the basic requirement that covered entities make emergency information provided in the video portion of a regularly scheduled newscast or newscast that interrupts regular programming accessible to persons with visual disabilities, we are expanding the rule to cover video programming providers (which includes program owners) as responsible parties, in addition to already covered video programming distributors, as required by the statute.40 1. Requirements Applicable to Emergency Information Provided Visually During Non-Newscast Programming 11. We revise the portion of our rule that addresses emergency information provided visually during non-newscast programming to require that covered entities make emergency information accessible to individuals who are blind or visually impaired by aurally describing the emergency information on a secondary audio stream.41 We note that the VPAAC recommended the use of a secondary audio stream to provide accessible emergency information.42 As explained herein, we agree that use of a secondary audio stream is the best means to implement the CVAA’s directive to make emergency information accessible because many covered entities already provide or have the capability to pass through secondary audio streams, and because individuals who are blind or visually impaired have 38 See Comments of the National Association of Broadcasters at 6 (“NAB Comments”) (explaining that no substantive change to this portion of the rule is needed because emergency information conveyed during newscasts is already accessible to individuals who are blind or visually impaired through the aural presentation in the main program audio stream); NCTA Comments at 3 (agreeing that there is no need to revise the requirements governing accessibility of emergency information provided during newscasts and that the focus of this proceeding should be on emergency information provided during non-newscast programming). See also NCTA Feb. 28 Ex Parte Letter at 1; NCTA Mar. 11 Ex Parte Letter at 1. 39 47 U.S.C. § 613(g)(2). In contrast, we revise the current rule applicable to non-newscast programming – which requires that emergency information be accompanied with an aural tone – as discussed herein to ensure that such information is conveyed in a manner accessible to individuals who are blind or visually impaired. See infra Section III.B.1. 40 See infra Section III.C; 47 U.S.C. § 613(g)(2). We also make a non-substantive change to Sections 79.2(b)(2)(i) and 79.2(b)(2)(ii) of the revised rule by replacing the term “persons with visual disabilities,” as reflected in our current rules, with “individuals who are blind or visually impaired,” as reflected in the language used in the CVAA. See infra Appendix B (Final Rules), §§ 79.2(b)(2)(i)-(ii). See also 47 U.S.C. § 613(g). There is no indication in the CVAA that Congress considered there to be a substantive difference between the two phrases, nor do we intend one. We simply make this change to conform the language in our rules to be consistent with the language used in the CVAA. See 47 U.S.C. § 613(g). 41 We also adopt non-substantive edits to our existing emergency information rules to make the meaning more clear. As proposed in the NPRM, we change references in Sections 79.2(b)(2)(i) and 79.2(b)(2)(ii) of the revised rule to “[e]mergency information that is provided in the video portion” to “[e]mergency information that is provided visually.” NPRM, 27 FCC Rcd at 14735, n. 52. See infra Appendix B (Final Rules), §§ 79.2(b)(2)(i)-(ii). No commenter takes issue with this proposed change. Further, in Section 79.2(b)(2)(ii) of the revised rule, we change the phrase “programming that is not a regularly scheduled newscast, or a newscast that interrupts regular programming” to read “programming that is neither a regularly scheduled newscast, nor a newscast that interrupts regular programming.” See infra Appendix B (Final Rules), § 79.2(b)(2)(ii). NAB supports a similar change to the language in this section to clarify that the requirement applies to programming that is neither a regularly scheduled programming, nor a newscast that interrupts regular programming. See NAB Comments at 6. 42 See VPAAC Second Report: Access to Emergency Information at 7, 10-11. Federal Communications Commission FCC 13-45 11 familiarity with accessing this stream for video description services.43 We therefore adopt the VPAAC’s recommendation. Under our current rules, if emergency information is provided in the video portion of programming that is not a regularly scheduled newscast or a newscast that interrupts regular programming, it must be accompanied with an aural tone.44 Although the rules do not specify the parameters of the “aural tone,” under standard industry practice, three high-pitched tones are used to indicate the presence of on-screen emergency information.45 While the aural tone alerts members of the program’s audience who are blind or visually impaired that an emergency situation exists, these individuals must resort to an alternative source, such as the radio, to try to obtain more specific details about the nature and severity of the emergency.46 As a result, individuals who are blind or visually impaired may have inadequate or untimely access to the critical details of an emergency in the local viewing area.47 12. In accordance with the CVAA’s mandate in Section 202, we modify the current rule applicable to emergency information provided visually in programming that is not a newscast to ensure that such information is conveyed in a manner accessible to consumers who are blind or visually impaired. Specifically, if emergency information is provided visually in programming that is neither a regularly scheduled newscast nor a newscast that interrupts regular programming, we require that covered entities also make an aural presentation of this information available on a secondary audio stream.48 We continue to require use of the aural tone as an alerting mechanism on the main program audio, and we also now require use of the aural tone to precede emergency information on the secondary audio stream.49 On the main program audio, the purpose of the aural tone is to alert persons who are blind or visually impaired that visual emergency information is available. On a secondary audio stream, the aural tone has the additional purpose of differentiating audio accompanying the underlying programming from emergency information audio. Under this approach, consumers who are blind or visually impaired would be alerted to the presence of an emergency situation through the aural tone, and would then be able to promptly access the televised emergency information on the secondary audio stream.50 With our new rule, consumers who are blind or visually impaired no longer need to use a source other than the television to obtain the critical details of an emergency.51 13. There is a general consensus in the record among both industry and consumer groups that use of the secondary audio stream is the best method to ensure accessibility of visual emergency 43 See infra ¶ 13. 44 47 C.F.R. § 79.2(b)(1)(iii). 45 VPAAC Second Report: Access to Emergency Information at 3. 46 See id. at 3-4. See also 2000 Video Description Order, 15 FCC Rcd at 15250, ¶ 48; AT&T Comments at 2 (observing that the current rule merely informs individuals who are blind or visually impaired that there is an emergency, but they need to take steps to seek other accessible media). 47 See VPAAC Second Report: Access to Emergency Information at 7. 48 See id. at 10. 49 See AT&T Comments at 6-7 (recommending that we continue to require the use of an aural tone to notify individuals who are blind or visually impaired that they need to either access the secondary stream for emergency information or seek this information from other sources). 50 NPRM, 27 FCC Rcd at 14735-36, ¶ 9. See VPAAC Second Report: Access to Emergency Information at 10. 51 See Wireless RERC Comments at 12 (arguing that we should “avoid requiring people with vision loss to access an alternate technology to get the same information the sighted get from the television,” as the need to “[s]eek[] complete information through a secondary source will inevitably slow down reaction time” in emergency situations). Federal Communications Commission FCC 13-45 12 information presented during non-newscast programming.52 We agree with AT&T and other commenters that requiring use of a secondary audio stream to carry aural emergency information is “a straightforward and ideal solution” because many covered entities already provide a secondary audio stream for video description or foreign language translation,53 and there are few technical impediments to passing through aural emergency information on a secondary audio stream.54 Moreover, consumers who are blind or visually impaired have familiarity with using the secondary audio stream to access video description.55 14. At this time, we do not require covered entities to provide an audio stream that is dedicated solely to aurally accessible emergency information. MVPD commenters argue that mandating 52 See AT&T Comments at 2, 5 (arguing that use of the secondary audio stream “is a straightforward and ideal solution” to make emergency information accessible); Comments of DIRECTV, LLC at 5 (“DIRECTV Comments”) (“support[ing] the Commission’s approach of employing secondary audio streams that already exist” to provide accessible emergency information); Comments of DISH Network L.L.C. at 3 (“DISH Network Comments”) (arguing that secondary audio streams “could offer a workable method of providing accessible emergency information”); NAB Comments at 5 (supporting use of a secondary audio stream because this approach “is sensible from a technical and practical perspective” and “ensures that viewers benefit by receiving critical crawled information”); NCTA Comments at 4-5 (stating that use of the same audio stream that is used for video description “makes sense for enhancing accessibility at this time”); Wireless RERC Comments at 7 (recommending that emergency information be provided on the secondary audio stream containing video description); Reply Comments of CenturyLink, Inc. at 1-2 (“CenturyLink Reply”) (supporting use of the secondary audio stream to convey emergency information that is displayed visually during non-newscast programming); Reply Comments of Verizon at 2 (“Verizon Reply”) (supporting use of the secondary audio stream and observing that no commenter objected to this proposal); Comcast Feb. 19 Ex Parte Letter at 2 (expressing support for proposal to pass through emergency information in the secondary audio stream); Comcast Mar. 4 Ex Parte Letter at 1 (same); Comcast Mar. 15 Ex Parte Letter at 1 (same). But see Comments of The Weather Channel, LLC at 4-5 (“The Weather Channel Comments”) (while use of a secondary audio stream “may be the quickest and most effective way for many covered entities” to make visual emergency information accessible, the Commission should not impose this requirement on The Weather Channel unless it “is the only reasonable way to achieve compliance with Congress’s goals in the CVAA”). The Weather Channel’s unique concerns are addressed separately in paragraphs 38 through 40 herein. 53 AT&T Comments at 2. Our rules currently require full-power affiliates of the top four national networks located in the top 25 television markets to provide 50 hours per calendar quarter of video-described prime time and/or children’s programming. Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 26 FCC Rcd 11847, 11849, ¶ 4 (2011) (“2011 Video Description Order”). See NPRM, 27 FCC Rcd at 14733, ¶ 5. Full-power affiliates of the top four national networks located in markets 26-60 also will be subject to this requirement beginning July 1, 2015. 2011 Video Description Order, 26 FCC Rcd at 11856, ¶ 16. Given that video description is provided as a secondary audio service, top four broadcast affiliates in the top 60 markets either already have or soon will be required to have a secondary audio stream. 54 See AT&T Comments at 5 (stating that there is no technical impediment to carrying aural emergency information on the secondary audio stream, which “has a proven capability of carrying various types of information”); DIRECTV Comments at 2, 5 (explaining that where DIRECTV already carries a station’s secondary audio stream, it would be “a relatively simple process to transmit any audio emergency information provided to DIRECTV by that station in its secondary audio stream”); NCTA Comments at 4 (noting that cable operators already pass through video description in secondary audio streams, and that a secondary audio stream pass-through requirement for emergency information “would present few technical challenges” for cable operators); NCTA Jan. 18 Ex Parte Letter at 1; NCTA Feb. 28 Ex Parte Letter at 1; NCTA Mar. 11 Ex Parte Letter at 1; Comcast Feb. 19 Ex Parte Letter at 2 (noting that “Comcast today passes through the secondary audio stream for all its cable services”); Comcast Mar. 4 Ex Parte Letter at 1 (same); Comcast Mar. 15 Ex Parte Letter at 1 (same). But see Letter from Barbara S. Esbin, Counsel for American Cable Association, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 7, 2013) (“ACA Mar. 7 Ex Parte Letter”) (explaining that “some cable operators maintaining hybrid digital/analog or all-analog systems who also, or only, deliver broadcast signals in analog may not have equipment that permits the pass-through of [secondary audio streams]”) (footnote omitted). 55 See AT&T Comments at 2; Wireless RERC Comments at 7. Federal Communications Commission FCC 13-45 13 more than two audio streams – one for main audio, one for video description, and one for emergency information – would be costly and, in some cases, would pose technical difficulties.56 We therefore agree with commenters that requiring that stations and operators use a secondary audio stream to provide aural emergency information will allow them to achieve accessibility in a more efficient and cost-effective way.57 Notably, no commenter suggests that we should mandate more than two audio streams. Although additional audio streams are not required, if a covered entity does provide more than two audio streams, we encourage them as a best practice to make aurally accessible emergency information available on the same audio stream that is used to provide video description, because consumers who are blind or visually impaired should have more familiarity with accessing this stream.58 15. While we mandate use of the secondary audio stream to aurally transmit emergency information to consumers, we do not adopt a specific method for providing an aural rendition of textual emergency information on a secondary audio stream. In the NPRM, we asked about the extent to which the Commission should allow the use of text-to-speech (“TTS”) technologies, which automatically generate an audio version of a textual message, and whether such technologies are sufficiently accurate and reliable for rendering an aural translation of emergency information text.59 The record reflects a consensus that the rules should permit the use of TTS because it can be a useful and quick method to perform the text-to-aural translation of emergency information.60 NAB argues that use of TTS should not 56 See AT&T Comments at 5-6 (explaining that passing through more than two audio channels might not be possible if a system is bandwidth constrained and that, for AT&T, such a requirement “would likely result in a visible degradation in video coding quality”); DIRECTV Comments at 4 (noting that neither broadcasters nor MVPDs have unlimited capacity for additional audio channels); DISH Network Comments at 5 (“DBS providers have designed their systems to include only a single secondary audio service. In order for aurally accessible emergency information to be available on a secondary stream, it will need to share the same [secondary audio stream] that is also used for video description (if offered).”) (footnotes omitted); CenturyLink Reply at 1-2 (arguing that existing MVPD infrastructure generally supports no more than one secondary audio stream and, thus, “it would be costly and inefficient to require MVPDs to build a new audio stream to convey emergency information”). In the NPRM, the Commission sought comment on the impact, if any, of the proposals contained in the NPRM on broadcasters’ ability to channel share, which is an option for broadcast television stations that choose to participate in the Commission’s incentive spectrum auction. See NPRM, 27 FCC Rcd at 14736, ¶ 10; Innovation in the Broadcast Television Bands: Allocations, Channel Sharing and Improvements to VHF, Report and Order, 27 FCC Rcd 4616, 4617, ¶ 2 (2012) (“establish[ing] the basic ground rules for sharing of broadcast channels by stations that choose to share a 6 MHz channel with one or more other stations in connection with the incentive auction”); Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Notice of Proposed Rulemaking, 27 FCC Rcd 12357, 12385, ¶ 84 (2012) (stating that the reverse auction of broadcast television spectrum includes three bid options for participants, one of which is “voluntary relinquishment of ‘usage rights in order to share a television channel with another licensee’”) (footnote omitted). Commenters did not address this issue, and we do not expect the requirements adopted herein to have any impact on channel sharing. 57 See AT&T Comments at 5 (arguing that use of the secondary audio stream “recognizes the competing bandwidth demands on MVPDs systems and that requiring a dedicated audio channel for emergency information only would be an inefficient use of limited resources”). 58 See Wireless RERC Comments at 7 (“The Wireless RERC recommends that emergency information should always be provided on the audio stream containing video description . . . because people with vision loss who use [video description] for regular programming would be familiar with accessing this stream.”). 59 NPRM, 27 FCC Rcd at 14737-38, ¶ 12. See also VPAAC Second Report: Access to Emergency Information at 9 (finding that TTS “is a valuable technology for creating aural representation of a text crawl in a timely fashion”). 60 See ACB Comments at 3 (arguing that TTS is “imminently ideal” given “[t]he rapid development of TTS systems along with sophisticated ways of deploying these systems,” “provides the additional advantage of being available in multiple languages,” and will “increase the likelihood” that industry is able to meet implementation deadlines); NAB Comments at 14 (arguing that the rules should permit but not require the use of TTS); Comments of Kelly Pierce at 1-2 (“Pierce Comments”) (noting that TTS “can be a useful means of delivering information”); Wireless (continued….) Federal Communications Commission FCC 13-45 14 be mandated, however, because while TTS may be useful, it may not be the best method to effectively convey emergency information in all circumstances.61 In particular, NAB requests flexibility with regard to use of TTS or other specific technologies for aural translation because broadcasters may face potential technical and operational challenges in implementing TTS, and “there is no one size fits all solution.”62 16. Based on the record, we permit, but do not require, the use of TTS technologies as a method for providing an aural rendition of emergency information, consistent with the Commission’s approach in the EAS context.63 While we do not require the use of TTS, we believe it is necessary to revise our rule to provide qualitative standards for TTS for covered entities that choose to use TTS.64 Specifically, information provided through TTS must be intelligible and must use the correct pronunciation of relevant information to allow consumers to learn about and respond to the emergency, including, but not limited to, the names of shelters, school districts, streets, districts, and proper names noted in the visual information.65 Given the critical and urgent nature of emergency information, we expect covered entities to ensure that the aural version of textual emergency information provided through TTS is as effectively communicated to consumers who are blind or visually impaired as the textual content is conveyed to people who are able to see, and we will entertain consumer complaints about the quality of TTS. 17. Technical Capability Exception. We decline to adopt a technical capability exception to our new rule. Thus, unlike our approach in the 2011 Video Description Order, we require all covered entities that provide visual emergency information that is covered by the rules to get the equipment (Continued from previous page) RERC Comments at 8 (arguing that “[c]overed entities should be allowed to use TTS technology to provide audio description of emergency information” because “[i]n many cases, this is the fastest way to provide the information to the public”). 61 See NAB Comments at 14. 62 NAB Reply at 9-10. See also Letter from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal and Regulatory Affairs, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Jan. 15, 2013) (“NAB Jan. 15 Ex Parte Letter”); Letters from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal and Regulatory Affairs, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 7, 2013) (“NAB Mar. 7 Ex Parte Letters”); Letter from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal and Regulatory Affairs, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 8, 2013) (“NAB Mar. 8 Ex Parte Letter”); The Weather Channel Comments at 6, n. 13 (stating that “designing a text-to-speech solution that would enable full aural renderings of each text crawl” would “create[] technical challenges” for The Weather Channel). 63 As we explained more fully in the NPRM, the Commission determined on reconsideration in a recent proceeding that it would permit, but not require, regulated entities to use TTS to render EAS audio from the text of EAS alerts formatted in the Common Alerting Protocol (“CAP”). See NPRM, 27 FCC Rcd at 14737, ¶ 12, nn. 66-67 (citing Review of the Emergency Alert System, Order on Reconsideration, 27 FCC Rcd 4429, 4432, ¶¶ 7-8 (2012)). See also VPAAC Second Report: Access to Emergency Information at 9 (finding that “the need to generate the audio representation of a crawl in a timely manner outweighs any inconsistencies that might arise from the variations in TTS implementations”). 64 See Pierce Comments at 2 (“The Commission cannot simply offer TTS technology as an option for delivering emergency audio information without also establishing guidelines of the basic parameters of the presentation of the information.”); Wireless RERC Comments at 9 (arguing that we “should require that the TTS technology be of a certain caliber to ensure that the audio information is clear and understandable” and should direct the VPAAC to identify standards for the provision of TTS). We note that the VPAAC’s directives with regard to reporting on video description and emergency information were set forth by Congress. See Pub. L. No. 111-260, §§ 201(e)(2)(A)-(E). 65 See, e.g., Pierce Comments at 2. A covered entity’s de minimis failure to comply with the quality standards will not be treated as a violation of the regulations. Federal Communications Commission FCC 13-45 15 necessary to make a secondary audio stream available by the two-year compliance deadline adopted below.66 The 2011 Video Description Order reinstated a technical capability exception for certain stations and MVPDs that lack the technical capability to pass through video description.67 We inquired in the NPRM whether there are any technical capability concerns that should be taken into account in the context of providing emergency information on a secondary audio stream and, if so, how such technical capability considerations should be addressed in the rules.68 Some commenters support the inclusion of a technical capability exception.69 In particular, NAB requests that the Commission “incorporate a technical capability exception in its rules . . . so that the emergency information requirements do not apply when a station lacks the technical capability necessary to create and transmit the emergency crawl in aural form – that is, on a secondary audio stream.”70 According to NAB, a broadcast station should be considered to have the technical capability to support aural transcription of emergency information if it has the necessary equipment and infrastructure, except for items that would be of minimal cost, similar to the standard set forth in the video description context.71 The American Council of the Blind (“ACB”), on the other hand, argues that there should be more stringent standards for the technical capability exception for emergency information, and that this exception should apply only as an “absolute last resort.”72 We agree with ACB that the importance of providing accessible emergency information to consumers who are blind or visually impaired justifies a more rigorous standard from that adopted in the video description context.73 18. At the same time, however, we note that DISH Network L.L.C. (“DISH Network”) and 66 See infra Section III.D. See also Wireless RERC Comments at 6 (“[T]he Wireless RERC recommends that if the video programming distributor has the technical capability to provide a secondary audio stream for the provision of emergency information then they should be required to utilize their secondary audio stream.”). We note all covered entities may petition for a waiver of these requirements for good cause pursuant to Section 1.3 of our rules. See 47 C.F.R. § 1.3. In particular, we note that broadcast stations in smaller markets that do not have the necessary equipment to provide a secondary audio stream can file a request for waiver of the requirements adopted herein. Given the importance of accessible emergency information, we do not anticipate that waivers will be routinely granted. 67 2011 Video Description Order, 26 FCC Rcd at 11860-62, ¶¶ 23-27. See NPRM, 27 FCC Rcd at 14736, ¶ 10. Under the 2011 Video Description Order, a station or system lacks the technical capability to pass through video description if it does not have “‘virtually all necessary equipment and infrastructure to do so, except for items that would be of minimal cost.’” 2011 Video Description Order, 26 FCC Rcd at 11861, ¶ 27 (footnote omitted). 68 NPRM, 27 FCC Rcd at 14736, ¶ 10. 69 See ACB Comments at 2 (“hesitatingly agree[ing]” that there should be a technical capability exception for television stations that do not have the capability to provide emergency information on a secondary channel); NAB Comments at 12 (arguing that the Commission should “incorporate a technical capability exception in its rules like that adopted in the 2011 Video Description Order”) (footnotes omitted); CenturyLink Reply at 3 (arguing that the technical capability exception in the video description rules should apply to emergency information requirements because some existing infrastructure may not support the use of secondary audio streams). 70 NAB Comments at 12 (footnotes omitted). 71 See id. at 12, n. 27 (citing 2011 Video Description Order, 26 FCC Rcd at 11860, ¶ 23). 72 See ACB Comments at 2 (noting further that the exception should “be accompanied by a rigorous set of requirements for achieving technical capability unless the station or network is financially unable to do so”). 73 This action is consistent with our existing rules requiring visual access to emergency information, without exception, to people who are deaf or hard of hearing. See 47 C.F.R. § 79.2. Unlike our closed captioning rules, which permit certain exemptions, there are no exemptions applicable to our rules governing the provision of accessible emergency information to this same population because of the heightened public interest in ensuring that all viewers can access televised emergency information. See id. §§ 79.1, 79.2. Federal Communications Commission FCC 13-45 16 DIRECTV raise concerns about spot beam capacity, which is a problem unique to direct broadcast satellite (“DBS”) providers. Spot beams allow satellite transmissions to be focused on a specific area within the footprint of the satellite, enabling DBS providers to deliver local channels to precisely defined areas. DIRECTV explains that, while it currently carries the secondary audio stream of affiliates of the four major networks and PBS in the markets where it provides local service, it would not have sufficient capacity on its spot beams if a significant number of additional local stations were to request carriage of their secondary audio channels.74 Similarly, DISH Network states that it “may not have sufficient capacity in its spot beams if large numbers of local broadcast stations launch new [secondary audio] services.”75 The DBS providers indicate that if the Commission imposes a pass-through requirement for all local stations that provide emergency information on a secondary audio stream, capacity constraints would affect their ability to add new local-into-local markets and to comply with their “carry-one, carry- all” obligations.76 They argue that there is no simple remedy for this problem, as DBS providers would have to replace existing satellites or launch additional satellites to expand capacity or would have to curtail other valuable services, such as carriage of local broadcast stations or carriage of stations in HD.77 As such, DIRECTV and DISH Network request that the Commission take into account spot beam capacity constraints in considering an exception for DBS providers from the revised emergency information rule.78 19. We require DBS providers to pass through the secondary audio streams of all stations that provide aural emergency information pursuant to our revised rule.79 Nonetheless, given the technical constraints faced by DBS providers, we recognize DIRECTV and DISH Network may require relief from the requirement to pass through secondary audio streams in specialized circumstances, e.g., for any stations carried in a market where they do not have sufficient spot beam capacity, but we believe our 74 See DIRECTV Comments at 2, 5-7; Letter from William M. Wiltshire, Counsel for DIRECTV, to Marlene H. Dortch, Secretary, FCC, at 1-2 and Attachment at 1 (Jan. 18, 2013) (“DIRECTV/DISH Network Jan. 18 Ex Parte Letter”). 75 See DISH Network Comments at 3. 76 See DIRECTV Comments at 6-7; DISH Network Comments at 4. 77 See, e.g., Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission’s Rules; Implementation of the Satellite Home Viewer Improvement Act of 1999: Local Broadcast Signal Carriage Issues and Retransmission Consent Issues, Second Report and Order, Memorandum Opinion and Order, and Second Further Notice of Proposed Rulemaking, 23 FCC Rcd 5351, 5355-56, 5358-59, ¶¶ 7-8, 10-11 (2008) (“Carriage of DTV Signals Order”); DIRECTV Comments at 7-8, n. 26; DISH Network Comments at 4. 78 Specifically, DIRECTV asks that we adopt a streamlined procedure for granting a waiver of the requirement to pass through a station’s secondary audio stream in a particular market, if the DBS provider certifies that the spot beam serving the relevant market does not have sufficient capacity. See Letter from William M. Wiltshire, Counsel for DIRECTV, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Feb. 7, 2013) (“DIRECTV Feb. 7 Ex Parte Letter”). See also DIRECTV Comments at 7-8. DISH Network argues that “[t]he Commission should establish that, for the purposes of any new rules for accessibility of emergency information, the available capacity on the relevant spot beam should be included, among other things, in the determination of whether a DBS provider has the ‘technical capability’ to carry the [secondary audio channel] of any particular local broadcast station.” DISH Network Comments at 4. See also DIRECTV/DISH Network Jan. 18 Ex Parte Letter, at 2 and Attachment at 2. 79 DISH Network represents that “DBS providers generally have the technical capability to offer secondary audio streams for local broadcast stations that they retransmit,” and DIRECTV represents that it currently passes through the secondary audio streams for the top four network affiliates and PBS in each market and that it “passes through the secondary audio channel of every station that offers it to DIRECTV today.” See DIRECTV Comments at 5-6; DISH Network Comments at 3. See also DIRECTV/DISH Network Jan. 18 Ex Parte Letter, Attachment at 1. Federal Communications Commission FCC 13-45 17 existing waiver process is an appropriate mechanism to address such concerns.80 As we discussed in the NPRM in the context of Section 203 obligations, the House Committee Report accompanying the CVAA recognized that DBS providers may face unique technical challenges, including capacity constraints on spot beams used to deliver local signals, which should be considered when promulgating rules.81 We believe that the general waiver approach, rather than the “streamlined” waiver procedure suggested by DIRECTV,82 appropriately balances DBS capacity limitations with the statutory directive to make televised emergency information accessible to consumers who are blind or visually impaired. We also note that DBS providers are already required to carry stations’ “[s]econdary audio programming” pursuant to the requirements governing satellite carriage of broadcast stations in Section 76.66(j) of the Commission’s rules.83 Thus, if either DBS provider seeks a waiver from the requirement to pass through a station’s secondary audio channel adopted in this proceeding, it will also have to justify a waiver of this portion of Section 76.66(j). This makes our adopting the streamlined waiver procedure proposed by DIRECTV in this proceeding inappropriate because the issue regarding compliance with Section 76.66(j) of our rules has not properly been raised in this, or any, pending proceeding. 20. We recognize that small cable systems, particularly those that are analog-only, may face unique difficulties in complying with the rules adopted herein. Although it did not file comments or reply comments in this proceeding, the American Cable Association (“ACA”) recently submitted an ex parte filing in which it requested that the Commission: (1) “[p]ermit hybrid digital/analog systems that do not have the equipment to pass through the broadcast [secondary audio stream] on their analog service the option of making emergency information accessible to blind or visually impaired customers through that system’s digital service by providing eligible customers with set-top boxes at no charge for up to three analog television sets in their home;” (2) “[p]rovide an exception for all-analog systems that serve 1,000 or fewer subscribers and lack the equipment to pass through broadcast [secondary audio stream];” and (3) “[d]efer for three years application of the emergency information pass-through requirement for all-analog systems with more than 1,000 subscribers.”84 ACA filed a subsequent ex parte letter in which it further 80 47 C.F.R. § 1.3. A certification from the Chief Technical Officer that the spot beam serving the relevant market does not have sufficient capacity to support carriage of the secondary audio would be probative in a request for waiver. See DIRECTV Feb. 7 Ex Parte Letter at 1. 81 See NPRM, 27 FCC Rcd at 14741, ¶ 20 and n. 90 (citing House Committee Report at 31) (“[T]he Committee understands that [DBS] providers may have different technical limitations, such as capacity constraints on spot beams used to deliver local signals, than other [MVPDs]. The Committee intends that the Commission consider these limitations when promulgating regulations and, if necessary, provide some flexibility where technical constraints exist.”). See also DIRECTV Comments at 7; DIRECTV/DISH Network Jan. 18 Ex Parte Letter, Attachment at 1. According to DISH Network, the fact that DBS providers have very limited capacity on the spot beams used to retransmit local broadcast stations has been well-established in Commission proceedings. DISH Network Comments at 3-4 (citing Carriage of DTV Signals Order, 23 FCC Rcd at 5356, 5359). 82 Specifically, DIRECTV “urge[s] the Commission to adopt a streamlined procedure for granting a waiver of any secondary audio carriage requirement in a particular market (including Section 76.66). For example, when a DBS operator concludes that it cannot honor a request to add a new secondary audio stream from a broadcast station, a waiver would be granted if its Chief Technical Officer (or equivalent) certifies that the spot beam serving the relevant market does not have sufficient capacity to support carriage of the secondary audio without compromising the other broadcast signals carried on that beam. The waiver issued in response to such certification would remain in place for one year, subject to extension annually if the DBS operator re-certifies that it continues to have insufficient capacity to support additional secondary audio feeds in that market.” DIRECTV Feb. 7 Ex Parte Letter at 1-2. 83 See 47 C.F.R. § 76.66(j) (“Each television station carried by a satellite carrier, pursuant to this section, shall include in its entirety the primary video, accompanying audio, and closed captioning data contained in line 21 of the vertical blanking interval. . . . Secondary audio programming must also be carried.”). 84 ACA Mar. 7 Ex Parte Letter at 3. Federal Communications Commission FCC 13-45 18 refined its proposals by requesting that the Commission: (1) grant all all-analog systems, regardless of size, that lack the equipment to pass through secondary audio streams, an additional three years following the effective date of the revised emergency information requirements to come into compliance; and (2) address concerns raised with regard to hybrid digital/analog systems that lack the equipment necessary to pass through secondary audio streams on their analog service “by inviting the filing of class waivers on behalf of these systems.”85 Although we are sympathetic to the issues raised by ACA, we do not believe that we have an adequate record upon which to address its proposals in the context of the instant proceeding. In this regard, we note that there are several issues surrounding ACA’s proposals that have not been sufficiently developed. For example, should there be an upper subscriber limit on the hybrid digital/analog systems that are permitted to comply through an alternate means, what notification requirements should we impose on operators of analog systems to ensure their subscribers are aware of the operator’s inability to provide the secondary audio stream, and to the extent that cable operators provide eligible customers with free set-top boxes, how could subscribers certify that they need such an accommodation? Accordingly, we decline to address ACA’s requests at this time, finding that they would be better handled through the existing waiver process in which ACA has an opportunity to further develop its proposals and other interested parties have a sufficient opportunity to comment.86 Should ACA choose to file a subsequent request for waiver or extension of time,87 we delegate authority to the Media Bureau to address such a request.88 Given that the requirements we adopt herein do not take effect for two years, ACA will have sufficient time to seek a waiver in advance of the new requirements taking effect. 21. Alternatives to Use of Secondary Audio Stream. We do not adopt any of the alternative methods for making emergency information accessible to consumers who are blind or visually impaired that were considered but not recommended by the VPAAC, as described in the NPRM.89 There is little 85 Letter from Barbara S. Esbin, Counsel for American Cable Association, to Marlene H. Dortch, Secretary, FCC, at 2-3 (Apr. 2, 2013). 86 See Letters from Barbara S. Esbin, Counsel for American Cable Association, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 22, 2013) (“If the Commission opts to consider relief for operators of smaller cable systems through a waiver process, ACA suggested that the Commission explicitly welcome the filing of such petitions on behalf of similarly situated classes of systems to achieve relief comparable to that currently sought.”). 87 See 47 C.F.R. § 1.3 (Suspension, amendment, or waiver of rules). 88 See also id. §§ 0.61 (providing the Media Bureau with authority to “[p]rocess and act on all . . . waiver requests . . . regarding the areas listed”); 0.283 (“The Chief, Media Bureau, is delegated authority to perform all functions of the Bureau, described in § 0.61. . . .”). 89 See NPRM, 27 FCC Rcd at 14740, ¶ 18. For example, the VPAAC considered but did not recommend alternatives such as: (1) including a shortened audio version of the textual emergency information on the main program audio; or (2) broadcasting a five to ten second audio message on the main program audio after the three aural tones to inform individuals who are blind or visually impaired of a means by which they can access the emergency information, such as a telephone number or radio station. VPAAC Second Report: Access to Emergency Information at 8. According to the VPAAC, these alternatives have disadvantages, including interruption to the main program audio that could be disruptive to viewers and the need for sufficient resources to create and manage the brief audio messages. Id. The VPAAC also considered but did not recommend other alternatives such as “dipping” or lowering the main program audio and playing an aural message over the lowered audio, providing screen reader software or devices on request, enabling users to select and enlarge emergency crawl text, providing guidance for consumers, and using an Internet-based standardized application to filter emergency information by location. See id. at 11-12. The VPAAC determined that these alternatives either did not meet the requirements of the CVAA, relied upon technology or services that are not widely available, or involved additional problems. Id. Federal Communications Commission FCC 13-45 19 support in the record for these proposals.90 Although NAB, NCTA, and The Weather Channel propose that we grant covered entities flexibility in the methods used to convey emergency information in a manner accessible to individuals who are blind or visually impaired,91 we believe that mandating the use of the secondary audio stream to provide an aural representation of visual emergency information is a better approach to provide consistency for the viewing audience, particularly given the overwhelming support in the record for this method.92 22. At this time, the record does not support taking additional steps to address the particular needs of people with both vision and hearing loss. National Public Radio, Inc. (“NPR”) asks the Commission to consider alternative methods of presenting visual emergency information to persons with hearing and visual disabilities, such as use of USB connections on digital televisions to port text of CAP messages to refreshable Braille devices.93 The Rehabilitation Engineering Research Center on Telecommunications Access et al. (“Consumer Groups”) explain that televised emergency information would remain inaccessible to individuals who are blind or visually impaired and deaf or hard of hearing if we mandate use of the secondary audio stream alone to convey emergency information provided in on- screen crawls, and that such a result is contrary to the intent of the CVAA.94 According to Consumer 90 See Pierce Comments at 5 (arguing that the other alternatives identified in the NPRM do not merit further consideration, as they present problems for non-disabled viewers, are not easily delivered, and detract from the meaningful solution proposed by the FCC); The Weather Channel Comments at 7 (stating that it “is not currently aware of . . . an alternative means to deliver more detailed aural alerts”); Verizon Reply at 5 (stating that the Commission should not reconsider alternative methods to convey emergency information that were rejected by the VPAAC). See also Wireless RERC Comments at 12 (arguing that the Commission should not permit any alternatives that require individuals who are blind or visually impaired to seek complete information from a secondary source other than the television). Verizon supports the use of TTS in apparatus as an alternative to use of the secondary audio stream, but observes that technical challenges must be resolved before TTS can be included in set-top boxes. Verizon Reply at 3. For the reasons set forth in Section IV.A.1 herein, we do not require covered apparatus to contain TTS capability. See infra Section IV.A.1. 91 See NAB Comments at 15; NCTA Comments at 5; The Weather Channel Comments at 5; Letter from Jason E. Rademacher, Counsel for The Weather Channel, to Marlene H. Dortch, Secretary, FCC, Attachment at 8 (Jan. 17, 2013) (“The Weather Channel Jan. 17 Ex Parte Letter”). 92 See supra note 52 and accompanying text. But see Wireless RERC Comments at 12 (“Covered entities should be required to use the primary program stream to transmit both the video and audio of an alert if they do not use a secondary audio stream.”). 93 Comments of National Public Radio, Inc. at 3 (“NPR Comments”). See also Consumer Groups Reply at 3 (agreeing with NPR’s proposal, but noting that there would need to be a reliable way to transmit the text of the emergency information to consumers’ televisions). NPR has worked with the Helen Keller National Center in researching mechanisms to provide accessible media to consumers who are blind or visually impaired. See NPR Comments at 4. 94 See Consumer Groups Comments at 3-4; Consumer Groups Reply at 2-3. See also Letter from Blake E. Reid, Counsel to Telecommunications for the Deaf and Hard of Hearing, Inc. (“TDI”), Institute for Public Representation, Georgetown Law, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Jan. 22, 2013) (“Consumer Groups Jan. 22 Ex Parte Letter”); Letter from Blake E. Reid, Counsel to TDI, Institute for Public Representation, Georgetown Law, to Marlene H. Dortch, Secretary, FCC, at 3-4 (Feb. 15, 2013) (“Consumer Groups Feb. 15 Ex Parte Letter”); Letter from Blake E. Reid, Counsel to TDI, Institute for Public Representation, Georgetown Law, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Feb. 27, 2013) (“Consumer Groups Feb. 27 Ex Parte Letter”); Letter from Blake E. Reid, Counsel to TDI, Institute for Public Representation, Georgetown Law, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Mar. 4, 2013) (“Consumer Groups Mar. 4 Ex Parte Letter”); Letter from Blake E. Reid, Counsel to TDI, Institute for Public Representation, Georgetown Law, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Mar. 7, 2013) (“Consumer Groups Mar. 7 Ex Parte Letter”); Letter from Blake E. Reid, Counsel to TDI, Institute for Public Representation, Georgetown Law, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Mar. 11, 2013) (“Consumer Groups Mar. 11 Ex Parte Letter”). Consumer Groups argue that the VPAAC Second Report did not fully consider (continued….) Federal Communications Commission FCC 13-45 20 Groups, this issue can be addressed by requiring the transmission of emergency information in both the secondary audio stream and via closed captions, which would allow persons who are hearing and vision impaired to enlarge the font of the crawl and change the font color.95 Although we recognize the importance of accessibility by individuals who are both blind or visually impaired and deaf or hard of hearing, we agree with NAB that we do not have a sufficient record on these complex issues to resolve them in this proceeding.96 Given the importance of these issues, the Commission will consider in the future what can be done to better serve this community. 23. Content of Emergency Information. We do not require a verbatim aural translation of textual emergency information.97 At the same time, however, we require that the information presented aurally accurately and effectively communicate to consumers who are blind or visually impaired the critical details about a current emergency and how to respond to it to the same extent that this information is conveyed textually, i.e., it must provide the emergency information required under Section 79.2(a)(2).98 We note that this requirement is consistent with the VPAAC’s recommendation on this issue.99 NAB, Kelly Pierce, The Weather Channel, and Verizon agree that the rules should not require a verbatim translation.100 In particular, NAB argues that broadcasters should have editorial discretion in the aural (Continued from previous page) the needs of individuals who are both blind or visually impaired and deaf or hearing impaired. See Consumer Groups Comments at 5. 95 See Consumer Groups Comments at 6-7; Consumer Groups Reply at 3; Consumer Groups Jan. 22 Ex Parte Letter at 2. Consumer Groups argue that there would be no additional burden on apparatus manufacturers beyond the requirements imposed in the IP Closed Captioning Order, and that the burden on video programming distributors would be minimal because they can generate closed captions through an automated process using the same text from the visual crawl or from the text processed through TTS. See Consumer Groups Comments at 7. In contrast, NAB indicates that there would be significant technical complexities involved in providing emergency information through closed captioning, in addition to other issues that would make use of closed captioning for emergency information problematic. See NAB Reply at 7-8 and n. 28. 96 See NAB Reply at 6-7. See also NAB Jan. 15 Ex Parte Letter at 2; Consumer Groups Jan. 22 Ex Parte Letter at 2 (noting “that crafting solutions to make emergency information universally accessible to people with both visual and hearing disabilities is a difficult task that will require careful consideration of the scope of emergency information, the specific technological methods to be utilized, and the allocation of cost and responsibility among various stakeholders”). In addition, we do not address here Consumer Groups’ suggestion that we revise Section 79.2(b)(1)(i) of the current rule to require the use of real-time closed captioning for news programs shown in areas that are outside of the top 25 markets, because this matter is outside the scope of this proceeding and is being addressed in a separate proceeding before the Commission. See Consumer Groups Comments at 6; Closed Captioning of Video Programming, Telecommunications for the Deaf, Inc., Petition for Rulemaking, Notice of Proposed Rulemaking, 20 FCC Rcd 13211 (2005). 97 See NPRM, 27 FCC Rcd at 14738, ¶ 13. 98 See 47 C.F.R. § 79.2(a)(2) and accompanying note. Specifically, emergency information must contain “[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency.” 47 C.F.R. § 79.2(a)(2). 99 VPAAC Second Report: Access to Emergency Information at 10 (“The aural information does not need to be identical to the visual information that appears as a crawl or scroll across the TV screen, but should provide understandable and comprehensive audible content corresponding to the crawl or scroll.”). See also NPRM, 27 FCC Rcd at 14738, ¶ 13. 100 See NAB Comments at 13 (stating that the emergency information rules need not require verbatim translation of crawls, so long as the information provided is substantially the same); NCTA Comments at 5-6 (arguing that the Commission should require emergency information provided aurally to include only the “critical details,” as defined in the rules); Pierce Comments at 2-4 (citing scientific research to support the finding that “information presented in audio form can and in fact should be different from that presented in visual form”); The Weather Channel (continued….) Federal Communications Commission FCC 13-45 21 transcription of emergency crawls because requiring a verbatim translation could divert broadcasters’ attention from “complete and rapid dissemination of emergency information to policing the exact language in their screen crawls,” and could lead to unnecessarily long aural announcements that may unduly interrupt video description.101 However, ACB and the Rehabilitation Engineering Research Center for Wireless Technologies (“Wireless RERC”) recommend that the emergency information provided aurally be identical to the information that is provided textually to “ensure equivalent access” for consumers who are blind or visually impaired.102 We find persuasive The Weather Channel’s recommendation that “the standard for the aural alert should be the same as the standard for the scroll alert, i.e., both should be required to include the critical details of the emergency and instructions about how to respond.”103 We believe that requiring information presented aurally to accurately and effectively convey the critical details of an emergency and how to respond to it as required by Section 79.2(a)(2) appropriately addresses the concerns set forth by ACB and the Wireless RERC that consumers who are blind or visually impaired have equivalent access to the critical details of emergencies, while at the same time giving stations and MVPDs flexibility to carry out their responsibilities most effectively. We will entertain complaints from consumers that aural descriptions of emergency crawls are inadequate in this regard. 24. In the NPRM, we also asked what requirements should apply to the aural description of visual but non-textual emergency information (e.g., maps or other graphic displays).104 Similar to the approach we adopt for textual emergency information, we find that if visual but non-textual emergency information is shown during non-newscast programming, the aural description of this information must accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency, as set forth in Section 79.2(a)(2).105 We disagree with NAB’s contention that the rules should (Continued from previous page) Comments at 5 (“It should not be required that aural emergency warnings be verbatim recitations of the words contained in the scroll.”); Verizon Reply at 4 (agreeing with NAB that the aural description of an emergency crawl should be required to provide substantially the same information which could be in summary form). See also The Weather Channel Jan. 17 Ex Parte Letter, Attachment at 7; Letter from Jason E. Rademacher, Counsel for The Weather Channel, to Marlene H. Dortch, Secretary, FCC, at 1-3 (Feb. 1, 2013) (“The Weather Channel Feb. 1 Ex Parte Letter”). 101 NAB Comments at 13. 102 See ACB Comments at 3 (arguing further that there may be circumstances in which more context or description in addition to the text of the emergency crawl is needed to fully convey information); Wireless RERC Comments at 10 (arguing further that “[a]bbreviations should not be used because they may impede understanding of the content”). 103 The Weather Channel Comments at 5. 104 NPRM, 27 FCC Rcd at 14738, ¶ 13. 105 ACB suggests that the verbal rendition of information provided in maps, photographs, or other illustrative data should be conveyed meaningfully, using the Department of Justice’s (“DOJ”) “effective communication” standard. ACB Comments at 3. The Wireless RERC argues that covered entities should not exactly replicate non-textual, visual information in the audio, but should use the attributes of alternative text to describe what is being shown consistently with the purpose of the image. Wireless RERC Comments at 10-11 (“For example, if a map of Georgia is shown depicting the direction a storm is moving, and that information is not provided in the text-crawl and simultaneous audio, then the map should be described, noting the areas impacted by the path of the storm. It is not necessary to describe in full, the entire map. . . .”). We believe our approach to require the critical details of non- textual emergency information to be provided is consistent with ACB’s and the Wireless RERC’s proposals because it will ensure that meaningful and useful details are conveyed to consumers. We also find that, as proposed by ACB, our approach is consistent with DOJ’s “effective communication” standard that is applied to state and local governments under Title II of the Americans with Disabilities Act (“ADA”). This ADA standard requires a public entity to “take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). As (continued….) Federal Communications Commission FCC 13-45 22 not impose any requirement for visual but non-textual emergency information to be described aurally because such a requirement could “limit[] the [broadcaster’s] use of such graphic information in order to comply with the rules,” and “could be infeasible if automated TTS is used.”106 The record does not support a finding that it would be overly burdensome for covered entities to provide an aural description of the critical details provided in a graphic display (such as a map) for the purpose of conveying emergency information (e.g., a list of the counties, cities, or other locations affected by the emergency as shown on the map). Further, even if a broadcaster employs TTS technologies, the critical details of the emergency information conveyed in the graphic display can be included in the text that will be converted to speech using such technologies, provided that the description of non-textual emergency information is inserted as text before the TTS conversion takes place. Accordingly, we require that an aural description of such emergency information be provided on the secondary audio stream. 25. We require that emergency information provided aurally on the secondary audio stream be conveyed at least twice in full to ensure that consumers are able to hear all of the information after they switch from the main program audio to the secondary audio stream. Commenter Kelly Pierce explains that “many blind people are tuned to the main audio stream because of its superior audio quality,” and these individuals will need time to switch from the main program audio to the secondary audio stream to obtain emergency information.107 For this reason, Mr. Pierce recommends, and no one opposes, that the Commission require a delay in providing emergency information on the secondary audio stream or, alternatively, require the information to be provided immediately on the secondary audio stream but repeated so that consumers who are blind or visually impaired can hear it at least twice.108 Because there may be individuals who are blind or visually impaired who are already tuned to the secondary audio stream (e.g., for video description), we do not think it is appropriate to impose a delay on airing emergency information on the secondary audio stream. Instead, we believe the better approach is to require covered entities to convey emergency information at least twice on the secondary audio stream so that individuals switching from the main program audio will be able to hear the emergency information in its entirety. To better assist consumers who are blind or visually impaired, we encourage providers of emergency information, in appropriate circumstances and at their discretion, to convey the emergency information more than twice. This would be particularly appropriate during portions of the day when the secondary audio stream is silent or merely duplicates the main program audio, because there would be no potential to disrupt the provision of video-described programming on the secondary audio channel during those times, a concern that was raised generally by NAB,109 and because individuals who are blind or visually impaired can switch from the secondary audio channel to the main program audio if they prefer to hear audio associated with the underlying programming. 26. Priority of Emergency Information. We find that emergency information should be prioritized over all other content on the secondary audio stream. Thus, we revise Section 79.2 to require that aural emergency information supersede all other programming on the secondary audio stream, including video description, foreign language translation, or duplication of the main audio stream.110 (Continued from previous page) noted above, in paragraph 23, we similarly require the emergency information provided aurally to be as accurate and effective as is the emergency information conveyed textually for people who are able to see. See supra ¶ 23. 106 NAB Comments at 13. See also Verizon Reply at 4 (arguing that the Commission should not impose specific requirements for how a map should be aurally communicated, because that determination should be left to the broadcasters). 107 Pierce Comments at 2. 108 Id. 109 See NAB Comments at 7-8, 15. 110 See infra Appendix B (Final Rules), § 79.2(b)(5). See also NPRM, 27 FCC Rcd at 14738-39, ¶ 14. NAB argues “that a video-described program intended to count toward a broadcaster’s quarterly requirement will still count, even (continued….) Federal Communications Commission FCC 13-45 23 Commenters resoundingly support having emergency information take priority over video description or any other content that may be present on the secondary audio stream.111 Currently, the Commission’s rules prohibit emergency information from blocking video description, and they prohibit video description from blocking emergency information provided by means other than video description.112 Because textual emergency information will be conveyed aurally utilizing the same audio stream as used for video description, the VPAAC recommended eliminating the proscription against emergency information blocking video description.113 In accordance with the VPAAC’s recommendation, we delete the proscription against emergency information blocking video description.114 In the NPRM, we proposed to amend Section 79.2(b)(3)(ii) of the current rule to read: “Any video description provided should not block any emergency information.”115 After further consideration of this issue, however, we believe that use of the term “supersede” here is more appropriate than use of the term “block,” because “supersede” more appropriately applies to the insertion and prioritization of aural programming on the secondary audio stream.116 Thus, we require covered entities to ensure that aural emergency information provided in (Continued from previous page) if it is interrupted by an aural conveyance of emergency information that appears in an on-screen crawl.” NAB Comments at 16, n. 41. We agree with NAB. Once a covered entity goes to the expense and effort to comply with our video description rules for a particular program, that program should count toward that entity’s video description total even if the video description is partially or wholly interrupted by aural emergency information. 111 See ACB Comments at 3 (arguing that there is no circumstance in which either video description or alternate language programming should supersede emergency information); AT&T Comments at 3, 6 (arguing that aural emergency information should override all other audio programming on the secondary audio stream, including video description or foreign language); Pierce Comments at 4 (“[I]t is necessary to interrupt any other audio including foreign language translation, a duplicate of the main audio or to play the emergency message when there is normally silence on the secondary audio stream.”); Wireless RERC Comments at 11 (“[T]he Wireless RERC agrees that emergency content in the secondary audio stream should take precedence over video description of regular programming.”); CenturyLink Reply at 1 (arguing that emergency information should take priority over video description and other information that may be provided on the secondary audio stream); Verizon Reply at 4 (agreeing with ACB that aural emergency information should supersede any other content that is on the secondary audio stream, including video description or foreign language content); Letter from the American Council of the Blind and the American Foundation for the Blind, to Marlene H. Dortch, Secretary, FCC, at 1 (Jan. 24, 2013) (“ACB/AFB Jan. 24 Ex Parte Letter”) (“Emergency alerts need to take priority over programming that is described.”). But see NAB Comments at 15 (stating that “a balance will be required to ensure the broadcast of adequate emergency information without unduly interrupting video description”). NAB also states that the rules should be modified “to eliminate the prohibition on emergency information blocking video description.” NAB Comments at 15-16. We agree with the majority of commenters that the provision of emergency information, which is, by definition, “intended to further the protection of life, health, safety, and property,” should be prioritized over video description, which is typically provided for prime-time and children’s programming. 47 C.F.R. §§ 79.2(a)(2), 79.3(b). 112 47 C.F.R. § 79.2(b)(3)(ii). 113 See VPAAC Second Report: Access to Emergency Information at 10-11. See also 47 C.F.R. § 79.3. 114 See VPAAC Second Report: Access to Emergency Information at 10-11. See also NAB Comments at 15-16. 115 NPRM, 27 FCC Rcd at 14738, ¶ 14. See AT&T Comments at 6; NAB Comments at 15-16; Pierce Comments at 4; CenturyLink Reply at 3. The VPAAC recommended that Section 79.2(b)(3)(ii) of the current rule be amended to read: “Any video description provided should not block any emergency information provided by video description or by means other than video description.” VPAAC Second Report: Access to Emergency Information at 11. We proposed in the NPRM to simplify this language as stated above. See NPRM, 27 FCC Rcd at 14738, ¶ 14. 116 In contrast, the term “block,” which refers to an obstruction, is appropriate in the context of closed captioning, where the rules are intended to address the overlap of visually presented information, namely closed captioning and visual emergency information. See 47 C.F.R. § 79.2(b)(3)(i) (stating that “[e]mergency information should not block any closed captioning and any closed captioning should not block any emergency information provided by (continued….) Federal Communications Commission FCC 13-45 24 accordance with Section 79.2(b)(2)(ii) of our revised rule supersedes all other programming on the secondary audio stream, including video description, foreign language translation, or duplication of the main audio stream.117 This change is consistent with the VPAAC’s recommendation and with the record, which support prioritizing emergency information. 27. While we find that emergency information should supersede any other content provided on the secondary audio stream, we do not impose requirements with regard to what should be provided on the secondary audio stream when emergency information is not being provided, aside from our current video description requirements. We note that the VPAAC recommends that covered entities use best efforts to transmit the main program audio on the secondary audio stream when emergency information, video description, or alternate language audio are not present, rather than maintaining a silent channel.118 We agree with this recommendation and find that this approach would enable consumers to tune to the secondary audio stream all of the time, instead of needing to switch back and forth from the main program audio when video description or emergency information is available.119 28. Provision of Customer Support. We do not at this time require covered entities to provide specific customer support services to assist consumers who are blind or visually impaired with accessing emergency information on the secondary audio stream, but we seek further comment on this issue. Although expressly raised in the NPRM,120 there was little comment on this issue. The American Foundation for the Blind (“AFB”) argues in favor of imposing requirements for identification and training of appropriate points of contact to assist with accessing emergency information on the secondary audio stream.121 On the other hand, AT&T argues that covered entities should have the flexibility to educate customers on use of the secondary audio stream,122 and NCTA contends that additional rules in this area (Continued from previous page) means other than closed captioning”). Although we make no substantive changes to Section 79.2(b)(3)(i) of the current rule, we make a minor revision to change “should” to “does,” which is the grammatically appropriate word to use in conjunction with the term “must ensure.” See infra Appendix B (Final Rules), § 79.2(b)(4) (“Video programming distributors must ensure that emergency information does not block any closed captioning and any closed captioning does not block any emergency information provided by means other than closed captioning.”) (emphasis added). 117 See infra Appendix B (Final Rules), § 79.2(b)(5). 118 See VPAAC Second Report: Video Description at 26-27. See also Comments of the Consumer Electronics Association at 3, 11-12 (“CEA Comments”); NAB Comments at 12; Pierce Comments at 5 (asking the Commission to mandate that the main program audio be transmitted on the secondary audio stream when no video description or foreign language translation is present). See, e.g., Letter from Julie M. Kearney, Vice President, Regulatory Affairs, Consumer Electronics Association, to Marlene H. Dortch, Secretary, FCC, Attachment at 2 (Jan. 24, 2013) (“CEA Jan. 24 Ex Parte Letter”). But see NCTA Comments at 13-14 (arguing that the Commission should not mandate that a secondary audio channel will contain main program audio rather than silence because it would freeze innovation and because concerns about difficulties switching between streams may be addressed in the proceeding implementing Section 205 of the CVAA). 119 See NPRM, 27 FCC Rcd at 14742, ¶ 22. 120 See id. at 14737, ¶ 11. 121 See Comments of the American Foundation for the Blind at 3 (“AFB Comments”) (observing that customer support services can be “woefully lacking even in the face of clear requirements,” based on experiences in the Section 255 context). 122 See AT&T Comments at 4, 8-9 (arguing that such flexibility would allow AT&T to develop innovative means of education, such as accessible videos describing the secondary audio stream, without eliminating the option for individuals to contact customer service). See also Pierce Comments at 4 (“The Commission should encourage broadcast stations to inform viewers about the accessible emergency announcements as part of their overall viewer education about how emergency information is communicated to viewers.”). Federal Communications Commission FCC 13-45 25 are unnecessary because “cable operators currently provide customer support for handling video description concerns.”123 Given the lack of detailed comment on this issue, we seek further comment in the attached Further Notice.124 While we do not prescribe specific requirements for customer support services at this time, we believe that customer service representatives of covered entities should be able to answer consumer questions about accessing emergency information. Additionally, in order to make it easier for consumers to communicate directly with covered entities should they so choose, we encourage covered entities to provide a point of contact, as well as other information about how to seek assistance, on their websites and in other informational materials distributed to the public. 2. Definition of Emergency Information 29. We do not make any substantive revisions to the current definition of emergency information. Emergency information is defined in Section 79.2(a)(2) as “[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency.”125 Critical details regarding an emergency “include, but are not limited to, specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures, and how to obtain relief assistance.”126 The definition provides “[e]xamples of the types of emergencies covered,” which “include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.”127 In the NPRM, we asked whether the definition of emergency information should be updated to include additional examples of emergencies.128 Of the two commenters who address this issue, NCTA indicates that the Commission should not expand the definition,129 and NAB proposes narrowing the definition “to strike an appropriate balance” with other services provided on the secondary audio stream.130 Specifically, NAB asks us to apply the definition only to “critically urgent information” and to delete certain categories of emergency information from the list of examples.131 Given that no party favors 123 NCTA Jan. 18 Ex Parte Letter at 2; NCTA Feb. 28 Ex Parte Letter at 2; NCTA Mar. 11 Ex Parte Letter at 2. See also NCTA Comments at 14. 124 See infra Section V. 125 47 C.F.R. § 79.2(a)(2). 126 Note to 47 C.F.R. § 79.2(a)(2). 127 47 C.F.R. § 79.2(a)(2). 128 NPRM, 27 FCC Rcd at 14737, ¶ 11. 129 See NCTA Comments at 6; NCTA Jan. 18 Ex Parte Letter at 1. 130 NAB Comments at 7. 131 See id. at 7-8; NAB Jan. 15 Ex Parte Letter at 2; NAB Mar. 7 Ex Parte Letters at 2; NAB Mar. 8 Ex Parte Letter at 2; Letter from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal and Regulatory Affairs, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 13, 2013) (“NAB Mar. 13 Ex Parte Letter”). Specifically, NAB recommends that we delete “school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather” from the examples of emergency information in Section 79.2(a)(2), because such categories are “helpful, but not critical.” NAB Comments at 7. See also NAB Jan. 15 Ex Parte Letter at 2; NAB Mar. 7 Ex Parte Letters at 2; NAB Mar. 8 Ex Parte Letter at 2; NAB Mar. 13 Ex Parte Letter at 2. NAB argues that such a revision will “ensure that video described programming is not continuously disrupted during significant weather events.” NAB Comments at 7. NAB also asks the Commission to specify that “the emergency crawls to be aurally transcribed under the new rules (continued….) Federal Communications Commission FCC 13-45 26 expanding the definition and because the record presents no compelling reason to expand a definition that has served the public interest for over ten years, we decline to include additional examples in the definition of emergency information. However, we also do not think it is appropriate to narrow the definition in the interest of lessening the impact on other services provided on the secondary audio stream, given the higher priority of emergency information.132 30. We also specifically inquired in the NPRM whether severe thunderstorms are currently considered to be emergencies subject to our rule and, to the extent they are covered, whether they should be added to the list of examples in the rule.133 No commenter addresses this question. While we do not explicitly add severe thunderstorms to the list of examples, we interpret the current definition to include severe thunderstorms and other severe weather events because they are similar to other types of emergencies listed as examples in terms of severity and because these events could threaten life, health, safety, and property.134 31. Although we reject NAB’s recommendation that we modify our current emergency information definition to delete school closings and school bus schedule changes from the list of examples, we revise the requirements applicable to the provision of such information for purposes of the rules adopted in this proceeding. As required by the rule, the visual information regarding school closings and school bus schedule changes aired during non-newscast programming must be made accessible to individuals who are blind or visually impaired (i.e., there must be an aural tone before the crawl on the main program audio, and the information conveyed in the crawl must be preceded by an aural tone and provided aurally on the secondary audio channel), if the school closings and school bus schedule changes result from a current emergency as defined in Section 79.2(a)(2).135 We leave it to the good faith judgment of the broadcaster or other covered entity to decide whether school closings and school bus schedule changes result from a situation that is a current emergency based on its severity and potential to threaten life, health, safety, and property.136 However, given the potential length of information about school closings and school bus schedule changes and therefore its potential to interfere with video description,137 we find that, during a video-described program, covered entities have the option to air a (Continued from previous page) will be generally limited to locally-provided (i.e., licensee-provided) information.” Id. at 8. We do not think it is necessary to adopt NAB’s proposed specification because the rule currently states that Section 79.2 “applies to emergency information primarily intended for distribution to an audience in the geographic area in which the emergency is occurring.” 47 C.F.R. § 79.2(b)(2). 132 See supra ¶ 26. 133 NPRM, 27 FCC Rcd at 14737, ¶ 11. 134 See 2000 Video Description Order, 15 FCC Rcd at 15250, ¶ 49 (explaining that “[t]hese examples are intended to provide guidance as to what is covered by the rule and are not intended to be an exhaustive list”). 135 See 47 C.F.R. § 79.2(a)(2). The VPAAC recognized that “there is less time sensitivity involved in accessing [] information” such as weather-related school closings, but also concluded that “[e]mergency information . . . that is lengthy, concerns threats that are not serious, or does not involve threats to life or property, should be made accessible in audible format whenever possible.” VPAAC Second Report: Access to Emergency Information at 8. 136 We will not sanction broadcasters or other covered entities for a reasonable exercise of their judgment as to whether school closings and school bus schedule changes result from a situation that is a current emergency. 137 See NAB Comments at 7. See also ACB/AFB Jan. 24 Ex Parte Letter at 1 (agreeing that “lengthy alerts such as school closures can impede described content,” and suggesting that “[h]aving one of these types of announcements per hour when there is described content should suffice”). While we agree with the concern about the potential of school closing and bus schedule change information to impede video description, we believe that, given the typical length and duration of these types of announcements, ACB’s and AFB’s suggestion to air this information in full once per hour may still significantly interfere with video description and, thus, may not be a feasible solution. Federal Communications Commission FCC 13-45 27 brief audio message on the secondary audio stream at the start of the crawl indicating that this information will be aired at the conclusion of the video-described programming, and to subsequently provide this information aurally on the secondary audio stream at the conclusion of the video-described programming. C. Responsibilities of Entities Subject to Section 202(a) of the CVAA 32. Congress directed the Commission to “require video programming providers and video programming distributors (as those terms are defined in section 79.1 of title 47, Code of Federal Regulations) and program owners to convey such emergency information in a manner accessible to individuals who are blind or visually impaired.”138 Thus, in the NPRM, we sought comment on definitions of the terms “video programming providers,” “video programming distributors,” and “program owners,” and we inquired about the roles and responsibilities of these various entities.139 We address each of those issues in turn below. 33. Definition of Video Programming Providers and Video Programming Distributors. We apply the current definitions for “video programming distributor” and “video programming provider” in Section 79.1 to the emergency information rule, and we find that it is unnecessary to create a separate definition for “program owner.”140 The emergency information provision in Section 202(a) of the CVAA applies to “video programming provider” and “video programming distributor” “as those terms are defined in [S]ection 79.1” of the Commission’s rules and, accordingly, we need not create new definitions for those terms.141 NAB supports this approach.142 However, Section 202(a) also references “program owners” without defining this term.143 In the NPRM, we explained that the definition of “video programming provider” in Section 79.1 includes but is not limited to a “broadcast or nonbroadcast television network and the owners of such programming.”144 Thus, we asked whether it is necessary to separately define a “program owner” for purposes of our implementing regulations, given that the definition of “video programming provider” in Section 79.1 encompasses program owners.145 No commenter addresses this specific issue. We also sought comment in the NPRM on whether to define a “program owner” consistent with the definition of “video programming owner” adopted in the IP closed 138 47 U.S.C. § 613(g)(2). 139 See NPRM, 27 FCC Rcd at 14739-40, ¶¶ 16-17. 140 Section 79.1 defines a “video programming distributor” as “[a]ny television broadcast station licensed by the Commission and any multichannel video programming distributor as defined in § 76.1000(e) of this chapter, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.” 47 C.F.R. § 79.1(a)(2). We do not need to apply the remainder of the “video programming distributor” definition to the emergency information rule, as that portion is specific to the closed captioning context. See id. (“An entity contracting for program distribution over a video programming distributor that is itself exempt from captioning that programming pursuant to paragraph (e)(9) of this section shall itself be treated as a video programming distributor for purposes of this section. To the extent such video programming is not otherwise exempt from captioning, the entity that contracts for its distribution shall be required to comply with the closed captioning requirements of this section.”). Section 79.1 also defines a “video programming provider” as “[a]ny video programming distributor and any other entity that provides video programming that is intended for distribution to residential households including, but not limited to broadcast or nonbroadcast television network and the owners of such programming.” Id. § 79.1(a)(3). 141 47 U.S.C. § 613(g)(2). 142 NAB Comments at 9. 143 47 U.S.C. § 613(g)(2). 144 47 C.F.R. § 79.1(a)(3) (emphasis added). See NPRM, 27 FCC Rcd at 14739, ¶ 17. 145 See NPRM, 27 FCC Rcd at 14739, ¶ 17. Federal Communications Commission FCC 13-45 28 captioning context.146 NAB argues that the Commission should not impose definitions from the IP closed captioning rules in the emergency information context because “[t]hose definitions are unnecessary and unhelpful here,” because, for example, “a [video programming owner], such as [a] network or a syndicator, would not have any knowledge that a licensee was crawling local emergency information over their programming at the station level.”147 No other commenter addresses this issue. We agree with NAB that is not necessary to use the definition of “video programming owner” from the IP closed captioning rule. The record shows that the entities that typically insert emergency information into crawls are broadcasters, which are already covered as video programming distributors, and that, other than The Weather Channel, which is both a network program owner and video programming provider, program owners do not typically create emergency crawls.148 Because the current definition of “video programming provider” already includes but is “not limited to broadcast or nonbroadcast television network and the owners of such programming,” we interpret this definition to include the owners of any “video programming that is intended for distribution to residential households” by a video programming provider.149 Thus, we see no public interest benefit in creating a separate definition of the term “program owner.” While not separately defined, however, program owners are subject to applicable accessible emergency information requirements, as explained below.150 34. Obligations of Video Programming Providers and Video Programming Distributors. We revise the emergency information rule to include video programming providers as defined in Section 79.1 (which includes program owners) as parties responsible for making emergency information available to individuals who are blind or visually impaired, in addition to already covered video programming distributors. Currently, Section 79.2(b)(1) of our rules provides that video programming distributors must make emergency information accessible to individuals with visual disabilities, but our rules do not currently impose related requirements on video programming providers and program owners.151 However, Section 202 of the CVAA directs us to impose accessible emergency information requirements on video programming providers and program owners, as well as on video programming distributors.152 In the NPRM, we asked for comment on the roles that the various entities listed in Section 202 should play in ensuring that emergency information is conveyed in an accessible manner.153 We further inquired whether video programming distributors should hold primary responsibility, with video programming providers and program owners prohibited from interfering with or hindering the conveyance of accessible emergency information, or whether certain responsibilities should be allocated to each of the entities 146 Specifically, we sought comment in the NPRM on whether to define a “program owner” as “any person or entity that either (i) licenses the video programming to a video programming distributor or provider, as those terms are defined in Section 79.1 of the Commission’s rules; or (ii) acts as the video programming distributor or provider, and also possesses the right to license the video programming to a video programming distributor or provider, as those terms are defined in Section 79.1 of the Commission’s rules.” Id. at 14740, ¶ 17. See also Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 27 FCC Rcd 787, 792, ¶ 7 (2012) (“IP Closed Captioning Order”). 147 NAB Comments at 9. 148 See infra note 156 and accompanying text. 149 47 C.F.R. § 79.1(a)(3) (emphasis added). 150 See infra ¶ 36. 151 See 47 C.F.R. § 79.2(b)(1). 152 47 U.S.C. § 613(g)(2). 153 NPRM, 27 FCC Rcd at 14739, ¶ 16. Federal Communications Commission FCC 13-45 29 specified in Section 202.154 35. The record reflects support for allocating responsibility among each of the entities specified in Section 202.155 A number of commenters emphasize that the allocation of responsibility should be based on the roles that each entity has with regard to making non-newscast emergency information accessible. Specifically, MVPD commenters explain that local broadcasters are the entities that typically create emergency information crawls and scrolls and, therefore, they should be responsible for providing an aural version of this information on the secondary audio stream.156 According to MVPD commenters, because MVPDs typically have no role in creating or managing the content of visual emergency information, they should not be required to produce the information in an aurally accessible format.157 Instead, these commenters suggest that MVPDs should be required to pass through aural emergency information that is provided by broadcasters and other video programming providers and owners.158 This description of the roles of the various entities was not disputed in the record. 36. We conclude that each entity specified in Section 202(a) should be responsible for compliance with the emergency information rule, and we revise the portions of Section 79.2 applicable to accessibility of emergency information for individuals who are blind or visually impaired accordingly to add video programming providers (which includes program owners) and to more clearly specify the obligations of covered entities. First, we find that among video programming distributors and video programming providers, the entity that creates the visual emergency information content and adds it to the programming stream is responsible for providing an aural representation of the information on a secondary audio stream, accompanied by an aural tone.159 Second, we find that video programming 154 Id. 155 See, e.g., AT&T Comments at 3, 7 (arguing that Section 202 obligations should be shared by video programming providers, distributors, and owners); CenturyLink Reply at 3 (agreeing with commenters who support the need for a “shared responsibility” model in which broadcasters and MVPDs have complementary roles in making non- newscast emergency information accessible). See also Consumer Groups Reply at 5 (arguing that the Commission should clarify that the emergency information rules apply to all video programming providers and video programming distributors subject to Section 79.1 of its rules); Consumer Groups Feb. 15 Ex Parte Letter at 3 (same); Consumer Groups Feb. 27 Ex Parte Letter at 2 (same); Consumer Groups Mar. 4 Ex Parte Letter at 2 (same); Consumer Groups Mar. 7 Ex Parte Letter at 2 (same); Consumer Groups Mar. 11 Ex Parte Letter at 2 (same). 156 See AT&T Comments at 3, 7; DIRECTV Comments at 6; DISH Network Comments at 2-3; CenturyLink Reply at 1, 3-4; DIRECTV/DISH Network Jan. 18 Ex Parte Letter, at 1 and Attachment at 1. NAB explains that television broadcasters use their news and editorial judgment in deciding to overlay scrolled information onto programming via “crawls” as needed. NAB Comments at 2. DIRECTV states that it is not aware of any national cable channels or regional sports networks that provide non-aural emergency information on a localized basis, and that DIRECTV does not provide such emergency information itself. DIRECTV Comments at 3, n. 8. But see The Weather Channel Comments at 1-2 (noting that The Weather Channel is a national television network that provides both local and national weather information, including information on severe weather events). 157 See AT&T Comments at 7; DIRECTV Comments at 4; CenturyLink Reply at 4. 158 See AT&T Comments at 3, 8; DIRECTV Comments at 2, 5; DISH Network Comments at 2; CenturyLink Reply at 3-4; Verizon Reply at 2; DIRECTV/DISH Network Jan. 18 Ex Parte Letter, at 1 and Attachment at 1; Comcast Feb. 19 Ex Parte Letter at 2; Comcast Mar. 4 Ex Parte Letter at 1; Comcast Mar. 15 Ex Parte Letter at 1. 159 We do not limit this obligation to video programming providers and program owners as some commenters suggest because local broadcasters who typically create emergency crawls are “video programming distributors” by definition, and because we believe that to the extent an MVPD does create a crawl or other visual graphic conveying local emergency information as defined in Section 79.2 and embeds it in non-newscast programming, it should also be responsible for making the visual emergency information aurally accessible. See AT&T Comments at 3, 7; DIRECTV Comments at 6; DISH Network Comments at 2; CenturyLink Reply at 1, 3-4. Federal Communications Commission FCC 13-45 30 distributors are responsible for ensuring that the aural representation of the emergency information (including the accompanying aural tone) gets passed through to consumers. This will allow us to take enforcement action not only against a non-compliant video programming distributor, but also against a program provider or owner that does not comply with its obligation to make visual emergency information accessible to consumers who are blind or visually impaired.160 We also revise the rule to indicate that both video programming distributors and video programming providers are responsible for ensuring that emergency information supersedes any other programming on a secondary audio channel, with each entity responsible only for its own actions or omissions in this regard. D. Compliance Deadlines 37. We adopt a deadline of two years from the date of Federal Register publication for compliance with the emergency information rules adopted herein. In the NPRM, the Commission inquired as to the appropriate time frame for requiring covered entities to convey emergency information in a secondary audio stream and noted that the VPAAC did not reach agreement as to recommended deadlines.161 Few commenters discuss the appropriate compliance deadline, with ACB suggesting a one year deadline162 and NAB suggesting a phased-in approach ranging from 36 months to 42 months.163 While we note ACB’s explanation that there is an existing infrastructure for providing content via the secondary audio channel,164 we also find that even stations that already use a secondary audio stream may 160 NAB argues that the rules should ensure that broadcasters’ aural emergency messages are not overridden by aural messages provided by an MVPD, and that broadcasters should not be subject to a finding of non-compliance if emergency information provided by the broadcaster is interrupted or overridden by an MVPD carrier. NAB Comments at 16 and n. 43. We believe our rules address these concerns because they assign liability for non- compliance based on each covered entity’s acts or omissions, as explained in paragraph 36. To the extent aural emergency information provided by a broadcaster is interrupted or overridden by aural emergency information provided by another covered entity, the broadcaster can raise this claim as a defense to any complaint or enforcement action. In addition, MVPDs are prohibited from altering a broadcaster’s video feed, and the record indicates that MVPDs do not typically create local emergency information crawls, so we expect this problem to be extremely rare. See supra notes 157-58 and accompanying text; DIRECTV Comments at 4 (citing 17 U.S.C. §§ 111(c)(3), 122(e)). See also 47 C.F.R. §§ 76.62(e)-(f), 76.64(j), 76.92(a). 161 NPRM, 27 FCC Rcd at 14736-37, ¶ 11 and n. 61. See VPAAC Second Report: Access to Emergency Information at 13. 162 ACB Comments at 2. See also ACB/AFB Jan. 24 Ex Parte Letter at 1 (requesting an interim solution in the next 12 months). 163 NAB Comments at 19-20; NAB Reply at 5; NAB Jan. 15 Ex Parte Letter at 1, n. 1; Letter from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal and Regulatory Affairs, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC, at 2 and n. 2 (Jan. 29, 2013) (“NAB Jan. 29 Ex Parte Letter”); NAB Mar. 7 Ex Parte Letters at 1, n. 1; NAB Mar. 8 Ex Parte Letter at 1, n. 1; NAB Mar. 13 Ex Parte Letter at 1, n. 1. Specifically, NAB proposes a 36-month compliance deadline for broadcasters in the top 25 markets that have a secondary audio stream. NAB Comments at 19; NAB Reply at 5; NAB Jan. 15 Ex Parte Letter at 1, n. 1; NAB Mar. 7 Ex Parte Letters at 1, n. 1; NAB Mar. 8 Ex Parte Letter at 1, n. 1; NAB Mar. 13 Ex Parte Letter at 1, n. 1. For broadcasters in the top 25 markets that do not yet have a secondary audio stream, and for broadcasters in smaller markets, NAB proposes a 42-month compliance deadline. NAB Comments at 19-20; NAB Reply at 5; NAB Jan. 15 Ex Parte Letter at 1, n. 1; NAB Mar. 7 Ex Parte Letters at 1, n. 1; NAB Mar. 8 Ex Parte Letter at 1, n. 1; NAB Mar. 13 Ex Parte Letter at 1, n. 1. Further, NAB requests that the Commission provide the Media Bureau with authority to grant extensions of an additional six months to one year for broadcasters outside of the top 25 markets that are unable to meet the deadline. NAB Comments at 20, n. 54; NAB Reply at 5, n. 19. 164 ACB Comments at 2. See also ACB/AFB Jan. 24 Ex Parte Letter at 1. But see NAB Reply at 4-5 (explaining that the infrastructure does not currently exist for secondary audio “merely because the first phase of implementing video description has commenced,” which Congress recognized by providing a “multiyear ramp-up requirement for secondary audio service when it established the market based statutory deadlines for video description”) (footnote (continued….) Federal Communications Commission FCC 13-45 31 find it necessary to take a number of steps to achieve compliance, such as: (1) implementing software that transfers crawls into text that can be synthesized into audio; (2) integrating the software with the station’s computer system; and (3) testing the system.165 However, we find that 36 months is an unnecessarily long period of time to achieve these steps, given that in prior proceedings we have found that software and product development, along with time for testing and implementation, are achievable within a two year period.166 Accordingly, based on our review of the record, we conclude that a compliance deadline of two years after Federal Register publication is reasonable. We decline to implement a phased-in approach with a later deadline for stations that do not currently have a secondary audio stream, because we expect such stations to work concurrently to establish their secondary audio streams and to take other necessary steps towards compliance. 38. The Weather Channel Waiver for Emergency Information on Cable Systems. The Weather Channel expresses unique concerns regarding the compliance deadline. The Weather Channel is a nationally distributed programming network that provides not only national weather information, but also localized weather information, including breaking weather news and alerts, to its subscribers nationwide, which makes it a video programming provider covered by the revised emergency information rule.167 To ensure that viewers are able to see locally relevant weather information on cable systems, including information on severe weather emergencies, The Weather Channel has deployed thousands of its “WeatherSTAR” devices168 in cable headends throughout the country, with six different generations of these devices in service.169 While the most recent models are capable of providing emergency (Continued from previous page) omitted); Letter from David J. Wittenstein, Counsel for The Weather Channel, to Marlene H. Dortch, Secretary, FCC, at 1 (Jan. 16, 2013) (expressing support for NAB’s comments regarding the time necessary to comply with the proposed rules); DIRECTV Feb. 7 Ex Parte Letter at 1. 165 See NAB Reply at 4 (“[T]he Commission’s chosen method for implementing the CVAA requires the specification, development, manufacturing, acquisition, testing and deployment of entirely new hardware and software in the broadcast plant.”). But see ACB/AFB Jan. 24 Ex Parte Letter at 1 (rejecting broadcasters’ claim that emergency alerts are created as images, not text and, therefore, that a device to translate those images to TTS must be created). Contrary to the suggestion of ACB and AFB, the record indicates that broadcasters currently use graphics machines to generate on-screen crawls and will need to work with vendors to develop an interface solution that will translate graphics into text. See, e.g., NAB Jan. 29 Ex Parte Letter at 1; NAB Mar. 7 Ex Parte Letters at 1- 2, and Attachment; NAB Mar. 8 Ex Parte Letter at 1-2, and Attachment; NAB Mar. 13 Ex Parte Letter at 1-2, and Attachment. However, we note that at least one entity already has developed software that turns characters input as an image into text. See Letter from Larry Goldberg, Director, Carl and Ruth Shapiro Family National Center for Accessible Media (“NCAM”), to Marlene H. Dortch, Secretary, FCC, at 1-2 and Attachment (Jan. 18, 2013) (“NCAM Jan. 18 Ex Parte Letter”). 166 See, e.g., IP Closed Captioning Order, 27 FCC Rcd at 859, ¶ 122 and n. 495 (“As the Commission has repeatedly determined, manufacturers generally require approximately two years to design, develop, test, manufacture, and make available for sale new products.”). See also NCAM Jan. 18 Ex Parte Letter, at 1-2 and Attachment (noting that NCAM has “developed procedures for enabling real-time conversion of on-screen text into speech output,” “worked with broadcast stations to make this data available via the secondary audio program,” developed “methods for linking text with graphics, and for exporting text to speech synthesizers,” and developed “prototype software utilities that import data from a professional broadcast generator . . . then extract, transform and prepare it . . . for speech output”). 167 The Weather Channel Comments at 1-2. The Weather Channel also operates Weatherscan, a 24-hour all-local weather network. Id. at 1. 168 The Weather Channel transmits local weather information for the entire country in a single, satellite-delivered data stream, and its WeatherSTAR device “filters the national satellite data stream and permits only geographically relevant information to be delivered to each viewer.” Id. at 2, n. 3. 169 See id. at 2, 4; The Weather Channel Jan. 17 Ex Parte Letter, Attachment at 2, 5. Federal Communications Commission FCC 13-45 32 information aurally, none is currently capable of using a secondary audio stream to do so.170 The Weather Channel estimates that it would need at least 30 months to comply with the requirements adopted herein for cable systems.171 39. We grant The Weather Channel a six-month waiver beyond our established compliance deadline of the requirement to provide aural emergency information on a secondary audio stream when local emergency information is provided visually during The Weather Channel’s programming on cable systems.172 Thus, The Weather Channel will have 30 months to comply with this requirement. We conclude that there is good cause to support this waiver because The Weather Channel will need to upgrade or replace all of its WeatherSTAR devices to provide emergency information aurally on a secondary stream, as required herein.173 As a condition of the waiver, however, we require that as of the general two-year compliance deadline, The Weather Channel must provide its local emergency information on cable systems in a manner that is accessible to individuals who are blind or visually impaired on devices that are capable of providing aural alerts, but it need not use the secondary audio channel to do so prior to the end of the waiver period.174 40. We also grant The Weather Channel a six-month waiver beyond the general compliance deadline from our rule requiring covered entities to provide all of the critical details of an emergency that are included in the text when it provides local emergency information visually on cable systems. During the six-month waiver period, The Weather Channel will be permitted instead to provide a limited aural announcement about the emergency that is reported.175 We conclude that there is good cause to support this temporary waiver because, as The Weather Channel explains, if it is required to provide an aural announcement on its main programming that includes all of the critical details of an emergency and how to respond, this “would lead to the complete disruption of TWC programming – often for hours at a time 170 See The Weather Channel Comments at 4; The Weather Channel Feb. 1 Ex Parte Letter at 1 (stating that WeatherSTAR devices “currently lack the capability of generating aural vocalizations of TWC’s visual crawl alerts on a secondary audio programming channel”). The Weather Channel indicates that approximately 12 percent of WeatherSTARs could be upgraded to implement a secondary audio channel, while the remaining 88 percent of devices would need to be replaced to implement a secondary audio channel, at an estimated cost of at least $14 million, which is largely non-recoverable. The Weather Channel Comments at 4-5. See also The Weather Channel Jan. 17 Ex Parte Letter, Attachment at 7; The Weather Channel Feb. 1 Ex Parte Letter at 1. 171 The Weather Channel Comments at 6-7. See also id. at 7-8 (“In some cases, a brief extension may be warranted to ensure that the new requirements are implemented in a measured, reasonable way that does not compromise service for all viewers as the cost for expanding access.”) (footnote omitted); The Weather Channel Feb. 1 Ex Parte Letter at 4-5. But see The Weather Channel Jan. 17 Ex Parte Letter, Attachment at 8 (indicating that “The Weather Channel needs 18-24 months to identify and fully implement a solution”). 172 47 C.F.R. § 1.3. 173 Id.; The Weather Channel Comments at 6-7. See also Implementation of Video Description of Video Programming, Waiver Order, 16 FCC Rcd 19784 (2001) (granting a limited waiver of the aural tone requirement in Section 79.2 to MVPDs that receive emergency information warnings from The Weather Channel via its Weather Star III and Weather Star Jr. computers). 174 The Weather Channel asks for flexibility in how it will make emergency information accessible to individuals who are blind or visually impaired. See The Weather Channel Comments at 5; The Weather Channel Jan. 17 Ex Parte Letter at 8 (“The Weather Channel needs to be able to provide a . . . solution that does not necessarily utilize the [secondary audio] channel. . . .”); The Weather Channel Feb. 1 Ex Parte Letter at 5. 175 See The Weather Channel Comments at 6 (stating that “[a]t this time, TWC’s most advanced WeatherSTARs already are capable of providing aural alerts along with on-screen scrolls, but these alerts are very limited, and certainly are not verbatim duplications of the on-screen scroll alert”); The Weather Channel Feb. 1 Ex Parte Letter at 3. Federal Communications Commission FCC 13-45 33 – during many alerts.”176 At the end of the waiver period,177 we require The Weather Channel to be fully compliant with the emergency information rules adopted herein for all of its programming on cable systems. 41. DIRECTV Waiver for Emergency Information from The Weather Channel. We also grant DIRECTV a 12-month waiver of the requirement to provide aural emergency information when local emergency information is provided visually during The Weather Channel’s programming on DIRECTV systems, as well as a waiver of the following requirements on DIRECTV’s systems: (1) providing aural emergency information on a secondary audio channel; (2) providing all of the critical details of an emergency that are included in the text; and (3) providing audio functionality on all set-top boxes.178 The record indicates that DIRECTV faces its own unique challenges to making The Weather Channel’s localized weather information aurally accessible to DIRECTV’s customers, and that use of a secondary audio stream to provide detailed emergency information in the DIRECTV context is not feasible. We believe that these challenges justify additional time for implementation. Currently, DIRECTV has an “interactive application through which it . . . provides visual emergency information to subscribers as they watch The Weather Channel.”179 DIRECTV’s application “enables the set-top box to pull localized alerts from the national Weather Channel feed for the zip code provided by the subscriber,” but currently, “there is no audio accompanying this information.”180 DIRECTV explains that it needs a waiver for several reasons. First, if the Commission requires DIRECTV to make The Weather Channel’s localized information available on the secondary audio stream, DIRECTV says that it would “face considerable 176 The Weather Channel Feb. 1 Ex Parte Letter at 2 (“If TWC were required to provide verbatim vocalizations of these messages whenever they appear as crawls, TWC’s main programming could be interrupted for hours at a time, potentially interfering with actual live coverage of the emergency at hand.”). 177 The waivers will expire 30 months from the date of Federal Register publication. 178 The waiver applies only to DIRECTV and not to DISH Network because DIRECTV “provides visual emergency information to subscribers as they watch The Weather Channel” as a linear program provided by DIRECTV. Letter from William M. Wiltshire, Counsel for DIRECTV, LLC, to Marlene H. Dortch, Secretary, FCC, at 1 (Mar. 7, 2013) (“DIRECTV/DISH Network Mar. 7 Ex Parte Letter”). Subscribers are able to do this by accessing an interactive application via their remote control. Letter from William M. Wiltshire, Counsel for DIRECTV, LLC, to Marlene H. Dortch, Secretary, FCC, at 2 (Feb. 22, 2013) (“DIRECTV Feb. 22 Ex Parte Letter”). In contrast, DISH Network does not currently provide visual emergency alerts to subscribers that watch The Weather Channel via DISH Network’s linear programming. Instead it “offers a standalone application for The Weather Channel, which is accessible in the interactive features of select DISH set-top box models with a broadband Internet connection” that “is not integrated with The Weather Channel linear TV channel.” DIRECTV/DISH Network Mar. 7 Ex Parte Letter at 1. Thus, DISH Network is not providing visual emergency information during The Weather Channel’s video programming that would make it subject to the emergency information requirements adopted herein. Additionally, while in the cable context discussed above we grant a waiver to The Weather Channel because of the additional time necessary for it to provide localized emergency information via the secondary audio stream, here we grant a waiver to DIRECTV and not The Weather Channel because, as DIRECTV explains, “The Weather Channel does not itself include any textual emergency alert information that would be subject to the rules,” and “[i]t is only the applications provided by the[ DBS] distributors that make such alerts available at all.” Id. at 2. 179 Id. at 1. See also The Weather Channel Jan. 17 Ex Parte Letter, Attachment at 6-7. The Weather Channel states that DBS providers “have not traditionally provided access to their application data API.” Id. at 7. See also The Weather Channel Feb. 1 Ex Parte Letter at 5. 180 DIRECTV Feb. 22 Ex Parte Letter at 1-2. When DIRECTV subscribers are tuned to The Weather Channel, local weather alerts for the viewing area are “presented as a visual weather alert banner at the top of the screen,” accompanied by three aural tones, along with a visual direction to press the red button on the handheld remote to access an alert page with additional detail related to the weather conditions in the area. Id. See also DIRECTV/DISH Network Mar. 7 Ex Parte Letter at 1-2. Federal Communications Commission FCC 13-45 34 challenges” because it “transmits national cable channel[s] on a nationwide satellite beam.”181 Second, DIRECTV states that it would need three years to “enable a majority of its set-top boxes with . . . emergency audio capability.”182 Third, DIRECTV reports that this functionality cannot be implemented on all DIRECTV set-top boxes.183 Fourth, while it is possible to add audio messages to many of its set- top boxes to capture the nature of local weather emergencies presented visually on The Weather Channel, DIRECTV explains that those audio messages cannot be as detailed as the emergency information that is presented visually because “constraints imposed by the bandwidth available in the satellite network and processing power in the set-top box, as well as the potential lack of a broadband connection to the subscriber’s home, limit the amount of information that can be presented aurally.”184 42. For the various reasons enumerated by DIRECTV, we grant DIRECTV a 12-month waiver beyond our established compliance deadline of the requirement to provide an aural presentation of local emergency information that is provided visually during The Weather Channel’s programming on DIRECTV systems, so that DIRECTV has the extra time it needs to enable audio functionality in its set- top boxes.185 This waiver will extend until the date 36 months from Federal Register publication. We believe that there is good cause to permit DIRECTV an additional year beyond the general compliance deadline to comply with the requirement to provide an aural presentation of The Weather Channel’s local emergency information because its current set-top boxes are not capable of providing aural emergency information. DIRECTV states that it will take three years to enable audio functionality in certain set-top boxes because adding such functionality “require[s] a new design to deliver the necessary audio files, as well as additional satellite bandwidth . . . .”186 For these reasons, we find a temporary waiver warranted. We note, however, that we may revoke or modify this waiver if circumstances change such that the waiver is no longer in the public interest. 43. We also grant DIRECTV a waiver of the requirement to provide aural emergency information on a secondary audio channel and the requirement to provide all of the critical details of an emergency that are included in the text when local emergency information is provided visually during The Weather Channel’s programming on DIRECTV systems. We are persuaded that national cable channels are carried on a nationwide satellite beam, not on localized spot beams, and thus, carriage of localized audio streams for The Weather Channel is not feasible on DIRECTV systems.187 At a minimum, consistent with DIRECTV’s proposal, we require the aural version of the emergency 181 DIRECTV Feb. 22 Ex Parte Letter at 1. 182 Id. at 3. 183 Id. For example, emergency audio functionality cannot be implemented on set-top boxes used for standard definition services. Id. 184 DIRECTV/DISH Network Mar. 7 Ex Parte Letter at 1. DIRECTV proposes to pre-load audio messages in many of its set-top boxes that will “capture the nature of the weather emergency.” DIRECTV Feb. 22 Ex Parte Letter at 2. This approach would involve the capability to provide only a very brief audio message with limited details about the emergency (e.g., “A tornado watch is in effect for your area”), and would not include more specific information about the location or times of the emergency. Id. DIRECTV argues that more specific locational information is unnecessary because the on-screen alert will only be picked up by set-top boxes in the zip codes affected by the emergency. Id. 185 Id. at 2-3. 186 Id. at 3. 187 Id. at 1. As noted above, DISH Network is not providing visual emergency information during The Weather Channel’s video programming that would make it subject to the emergency information requirements adopted herein and, therefore, it does not need a waiver of the requirement to provide an aural presentation of visual emergency information on a secondary audio stream. Federal Communications Commission FCC 13-45 35 information that DIRECTV provides to capture the nature of the emergency (e.g., “A tornado watch is in effect for your area”), and we require DIRECTV to provide that aural version to viewers whose set-top boxes are associated with zip codes in the affected area. We note that local weather alerts generated by The Weather Channel’s application are provided only to subscribers in the zip codes affected by the emergency and, thus, all subscribers, including subscribers who are blind or visually impaired, would know that the emergency is taking place in the local viewing area.188 We recognize that, as a technical matter, it is not feasible for DIRECTV to provide more specific information such as individual localities affected and times of the emergency, because, as DIRECTV explains, currently “the satellite capacity and other resources necessary to convey that additional information . . . would be prohibitive.”189 44. Finally, we grant DIRECTV a waiver with respect to the set-top box models on which it is not able to implement audio functionality for emergency information.190 In this regard, however, we condition such relief by requiring DIRECTV to provide, upon request and at no additional cost to customers who are blind or visually impaired, a set-top box model that is capable of providing aural emergency information. DIRECTV may require reasonable documentation of disability as a condition to providing the box at no additional cost.191 45. Thus, as of the date 36 months from Federal Register publication, DIRECTV must provide an aural presentation of visual emergency information displayed on The Weather Channel. DIRECTV is not required to use the secondary audio channel to provide an aural presentation of visual emergency information displayed on The Weather Channel, and it may use limited aural messages, in accordance with its proposal. Additionally, as explained above, DIRECTV need not provide this functionality on all of its set-top boxes, but it must provide at no additional cost to customers who are blind or visually impaired a set-top box model that is capable of providing the aural emergency information. In granting this waiver, we are guided by Congress’s directive to consider the unique technical challenges faced by DBS providers when promulgating rules.192 We believe that the costs of requiring DIRECTV to comply fully with these rules would outweigh the benefits. As DIRECTV has mentioned, if it “finds that it cannot comply with requirements imposed in this proceeding, it may have to discontinue [The Weather Channel] application.”193 We believe that DIRECTV is providing a critical service to its subscribers and we want to ensure that our regulations do not impede its ability to continue offering these localized emergency alerts. At the same time, we note that we may revoke or modify these waivers if circumstances change such that the waivers are no longer in the public interest.194 188 Id. at 1-2. See also Letter from William M. Wiltshire, Counsel for DIRECTV, LLC, to Marlene H. Dortch, Secretary, FCC, at 1 (Feb. 28, 2013). 189 DIRECTV Feb. 22 Ex Parte Letter at 2. See also DIRECTV/DISH Network Mar. 7 Ex Parte Letter at 1. 190 DIRECTV Feb. 22 Ex Parte Letter at 3. 191 For example, we believe that documentation from any professional or service provider (e.g., a social worker) with direct knowledge of the individual’s disability would be reasonable. See, e.g., Implementation of the Twenty- First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Report and Order, 26 FCC Rcd 5640, 5653-54, ¶¶ 31-32 (2011) (“requiring individuals seeking equipment under the NDBEDP to provide verification from any practicing professional that has direct knowledge of the individual’s disability,” who “must be able to attest to the individual’s disability”). 192 See House Committee Report at 31; supra note 81 and accompanying text. 193 DIRECTV/DISH Network Mar. 7 Ex Parte Letter at 2. 194 It is possible that the Commission could adopt requirements in its implementation of Sections 204 and 205 of the CVAA that supersede the terms of this waiver. In that case, DIRECTV must comply with the rules adopted pursuant to these sections. For example, Section 205 of the CVAA directs the Commission to require that on-screen text menus and guides for the display or selection of multichannel video programming on navigation devices (continued….) Federal Communications Commission FCC 13-45 36 E. Complaint Procedures 46. We revise the complaint procedures for emergency information contained in Section 79.2(c) of the Commission’s rules to include video programming providers, to indicate that the complaint should be transmitted to the Consumer and Governmental Affairs Bureau, and to add the Commission’s online informal complaint filing system as a method of transmitting a complaint to the Commission.195 In the NPRM, the Commission asked if its proposal to amend the emergency information requirements in Section 79.2 of the Commission’s rules necessitates changes to the existing complaint procedures.196 No commenter addresses this issue. Because we are revising the rule to include video programming providers as responsible parties,197 we revise Section 79.2(c) to indicate that complaints can be filed against video programming providers, as well as video programming distributors. 47. Pursuant to the revised rule, a complaint alleging a violation of this section may be transmitted to the Consumer and Governmental Affairs Bureau by any reasonable means, such as the Commission’s online informal complaint filing system, letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording, and Braille, or some other method that would best accommodate the complainant’s disability.198 The complaint should include the name of the video programming distributor or the video programming provider against whom the complaint is alleged, the date and time of the omission of emergency information, and the type of emergency.199 The Commission will notify the video programming distributor or the video programming provider of the complaint, and the distributor or the provider will reply to the complaint within 30 days.200 IV. SECTION 203 OF THE CVAA 48. Section 203 of the CVAA directs the Commission to impose certain emergency information and video description requirements on apparatus designed to receive, play back, or record video programming transmitted simultaneously with sound.201 The Commission must prescribe these requirements by October 9, 2013.202 The Section 203 regulations we adopt must include “any technical standards, protocols, and procedures needed for the transmission of” video description and emergency information.203 Below we set forth requirements for apparatus pertaining to emergency information and video description, and we specify what apparatus are subject to these obligations. Our Section 203 discussion is focused on the availability of secondary audio streams because that is both the existing (Continued from previous page) provided by MVPDs to their subscribers “are audibly accessible in real-time upon request by individuals who are blind or visually impaired.” 47 U.S.C. § 303(bb)(1). The CVAA provides that, with respect to this requirement, the Commission shall provide affected entities with “not less than 3 years after the adoption of such regulations to begin placing in service devices that comply with the requirements.” Pub. L. No. 111-260, § 205(b)(6)(A)(ii). 195 47 C.F.R. § 79.2(c). The Consumer and Governmental Affairs Bureau reserves the discretion to refer complaints that reveal a pattern of noncompliance to the Commission’s Enforcement Bureau. 196 NPRM, 27 FCC Rcd at 14739, ¶ 15. 197 See supra Section III.C. 198 Infra Appendix B (Final Rules), § 79.2(c). 199 Id. 200 Id. 201 47 U.S.C. §§ 303(u), (z), 330(b). 202 Pub. L. No. 111-260, § 203(d). See supra Section II. 203 Pub. L. No. 111-260, § 203(d). Federal Communications Commission FCC 13-45 37 mechanism for providing video description and the mechanism adopted herein for making emergency information accessible. Given our understanding that most covered apparatus already make secondary audio streams available today, we do not expect the apparatus rules to impose undue hardship on equipment manufacturers.204 A. Apparatus Requirements for Emergency Information and Video Description 49. We codify language comparable to that found in Section 203 of the CVAA to explain what covered apparatus must do to comply with the emergency information and video description requirements. Specifically, we require all “apparatus designed to receive or play back video programming transmitted simultaneously with sound, if such apparatus is manufactured in the United States or imported for use in the United States and uses a picture screen of any size,” to “have the capability to decode and make available” the secondary audio stream, which will facilitate the following services: (1) “the transmission and delivery of video description services as required by” our video description rule; and (2) “emergency information (as that term is defined in [our emergency information rule, Section 79.2 of this Part]) in a manner that is accessible to individuals who are blind or visually impaired.”205 It is our understanding that most apparatus subject to the rules already comply with these requirements.206 In the discussion that follows, we discuss more specifically the compliance requirements for manufacturers of covered apparatus to ensure that video description services and emergency information provided via a secondary audio stream are available and accessible to individuals who are blind or visually impaired. 1. Performance and Display Standards 50. Section 203 of the CVAA directs the Commission to “provide performance and display standards for . . . the transmission and delivery of video description services, and the conveyance of emergency information . . . .”207 In accordance with the statutory language discussed above, our rules will require covered apparatus to decode and make available the secondary audio stream, in a manner that enables consumers to select the stream used for the transmission and delivery of emergency information and video description services.208 Accordingly, covered apparatus must take any steps necessary to decode the secondary audio stream used in the provision of these services. We agree with commenters that, at this time, more specific technical standards might hinder innovation in the marketplace as 204 See also infra Section IV.B.2 (discussing the technical feasibility and achievability limitations to the apparatus requirements). 205 47 U.S.C. § 303(u)(1). We note that the regulatory text adopted herein includes certain minor modifications from that proposed in the NPRM, in an effort to better correspond to the statutory language. See infra Appendix B (Final Rules), § 79.105(a). 206 See, e.g., NCTA Comments at 11 (“customers today can receive video description provided by broadcast stations and cable networks in a second audio stream on equipment supplied by cable operators”) (citing VPAAC Second Report: Video Description at 13-14); CEA Jan. 24 Ex Parte Letter at 2 (“most DVD players support multiple audio streams”); DIRECTV/DISH Network Jan. 18 Ex Parte Letter at 1 (“Because both DIRECTV and DISH Network carry the secondary audio feed of many broadcasters across the country, they will be able to implement a regime that uses such feeds virtually seamlessly for those stations.”); Comcast Mar. 4 Ex Parte Letter at 1 (“We noted that Comcast today passes through the secondary audio stream for all its cable services and supports access to secondary audio in its set-top boxes.”); Comcast Mar. 15 Ex Parte Letter at 1 (same). 207 47 U.S.C. § 330(b). 208 Proposals regarding accessible user interfaces are outside the scope of this proceeding; they will be covered by the forthcoming proceeding implementing Sections 204 and 205 of the CVAA. See Consumer Groups Reply at 4; Verizon Reply at 2-3; Sections 204 and 205 Public Notice. Federal Communications Commission FCC 13-45 38 manufacturers develop improved means of decoding and making available the secondary audio stream.209 Our record-based understanding210 that most covered apparatus already enable customers to access the secondary audio stream, in the absence of any specific requirement, demonstrates that specific, as opposed to general, performance and display standards are not currently needed.211 As the Consumer Electronics Association (“CEA”) notes, declining to adopt specific performance and display standards here is consistent with the ACS Order, in which the Commission adopted general performance objectives instead of more specific criteria.212 51. We do not require apparatus to contain any TTS capability at this time, although we do not prohibit manufacturers from including TTS capability in an apparatus.213 In the NPRM, we sought comment on whether apparatus should have the capability to make textual emergency information audible through the use of TTS.214 Commenters strongly object to imposing such a requirement on apparatus because compliance would be costly, and because requiring apparatus itself to convert a text crawl into audio through the use of TTS would change the device from having a passive role of passing through information to having an active role of creating the oral emergency message from the text version.215 209 See CEA Comments at 10-11; ESA Comments at 5-6; Reply Comments of the Consumer Electronics Association at 5 (“CEA Reply”); Reply Comments of CTIA-The Wireless Association at 2 (“CTIA Reply”); CEA Jan. 24 Ex Parte Letter at 2; Letters from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Feb. 1, 2013) (“CEA Feb. 1 Ex Parte Letters”); Letters from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Feb. 8, 2013) (“CEA Feb. 8 Ex Parte Letters”). See also NCTA Comments at 7 (“Section 203 . . . was not meant to be another provision by which the Commission could impose new obligations – technical or otherwise – on cable operators’ provision of video description”) (footnote omitted); TIA Comments at 6, 10-11 (stating that any required “specific capabilities” should allow maximum flexibility, and proposing that the Commission adopt industry-developed technical standards as safe harbors for compliance but not specifying what those standards should include). One commenter argues that the Commission should establish basic quality standards for the provision of video description. See Pierce Comments at 5. However, the issue of quality standards for video description is outside the scope of this proceeding. In any event, the Commission “will invite comments on the quality of video description when we conduct the inquiry that will inform our first report to Congress under the CVAA.” 2011 Video Description Order, 26 FCC Rcd at 11871, ¶ 50. 210 See supra note 206. 211 See, e.g., NCTA Comments at 2, 8. 212 Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 14557, 14647-48, ¶¶ 211-12 (2011) (“ACS Order”); CEA Comments at 10; CEA Reply at 5. 213 In the context of the requirements adopted pursuant to Section 202 of the CVAA, we provide qualitative standards for TTS for covered entities that choose to use TTS. See supra Section III.B.1. We do not impose such qualitative standards on TTS contained in apparatus unless entities subject to the emergency information requirements adopted herein pursuant to Section 202 of the CVAA rely on TTS in apparatus to meet their obligations. For example, a cable operator might rely on TTS capability in the set-top box to convert emergency text into aural format. In such situations, the qualitative standards for TTS set forth in revised Section 79.2 of our rules will apply to an entity’s use of the TTS capability in the apparatus. See infra Appendix B (Final Rules), § 79.2(b)(2)(ii). This approach is supported by the fact that it is the entities subject to Section 79.2 of our rules who are obligated to create the aural version of the emergency information, and not the apparatus. 214 NPRM, 27 FCC Rcd at 14741-42, ¶ 20. 215 See AT&T Comments at 3-4, 9; CEA Comments at 3, 11; ESA Comments at 6-7; NCTA Comments at 9; TIA Comments at 6; CEA Reply at 6; CTIA Reply at 2, 7-8; Verizon Reply at 4. Certain of these commenters also argue that TTS may not yet be sufficiently reliable. See AT&T Comments at 4, 9; CEA Comments at 3, 11; TIA Comments at 6; CEA Reply at 5. Federal Communications Commission FCC 13-45 39 Based on these comments, we find that the costs of requiring apparatus manufacturers to include TTS capability would outweigh the benefits, given that other entities are already required to ensure that emergency information is converted from text format to an aural format. Although we do not, at this time, require apparatus to contain any TTS capability, we may revisit this issue in the future if circumstances evolve such that requiring TTS capability in the apparatus would be a preferable approach. 2. Recording Devices 52. Similar to our treatment of apparatus that receive or play back video programming, as discussed above, we codify language comparable to that found in Section 203 of the CVAA to explain what recording devices must do to comply with the emergency information and video description requirements. Specifically, we require all “apparatus designed to record video programming transmitted simultaneously with sound, if such apparatus is manufactured in the United States or imported for use in the United States,” to enable the presentation or the pass through of the secondary audio stream, which will facilitate the provision of “video description signals, and emergency information (as that term is defined in [Section 79.2 of this Part]) such that viewers are able to activate and de-activate the . . . video description as the video programming is played back on a picture screen of any size.”216 In the NPRM, the Commission asked what specifically it should require of recording devices to “enable the rendering or the pass through of” video description and emergency information.217 In compliance with the statutory directive, we require that recording devices store the secondary audio stream along with the recorded video, such that a consumer may switch between the main program audio and the secondary audio stream when viewing recorded video programming.218 The fact that most modern recording devices already record programming with the secondary audio stream demonstrates that this requirement is not burdensome, and that more specific standards are not currently needed.219 ACB states that the Commission “should require manufacturers who develop devices which record video programming to record the described content along with the nondescribed stream,” and “that the manufacturers must allow the user to choose whether to record the described content via accessible means.”220 We understand ACB’s concern to be ensuring that the secondary audio stream is accessible to consumers who record video programming. Because in modern recording devices the recording of the secondary audio stream 216 47 U.S.C. § 303(z)(1). ACB supports recording device requirements. See ACB Comments at 3. Although the NPRM proposed rule language that would have required recording devices to “enable the rendering or the pass through of video description signals and emergency information,” we note that the term “rendering” is generally inapplicable to audio, and thus we substitute the term “presentation.” See NPRM, 27 FCC Rcd at 14755. 217 NPRM, 27 FCC Rcd at 14742, ¶ 21. 218 See Pierce Comments at 5. 219 See CEA Comments at 11 (“CEA believes that most modern recording devices already have the ability to store both main program audio and secondary stream audio when capturing video programs, which obviates the need for specific regulations.”); NCTA Comments at 9 (“When a cable customer elects to record a particular program on an operator-supplied DVR, the DVR records both the primary and secondary audio streams embedded in that program.”); CEA Reply at 6; Verizon Reply at 4-5. We disagree, however, with arguments that the Commission need not prescribe any recording device requirements because of current compliance. See CEA Comments at 3, 11; CEA Reply at 6; Verizon Reply at 4-5 (“Moreover, as NCTA notes, there is no need to adopt rules for recording devices to enable rendering or pass through of video description and emergency information, as operator supplied DVRs record both the primary and secondary audio streams embedded in that program giving the customer [the] ability [to] choose to view/listen to the descriptive and emergency information.”) (footnote omitted). The CVAA directs the Commission to impose requirements on recording devices, and such requirements will ensure that devices will continue to operate as needed to comply with the statute. 220 ACB Comments at 3. Federal Communications Commission FCC 13-45 40 occurs automatically,221 it is unnecessary to require that consumers be permitted to choose whether to record a secondary audio stream. 53. In the NPRM, the Commission asked how the rules relating to emergency information should apply to recording devices, given that emergency information is, by its nature, extremely time sensitive.222 Under the rules adopted herein, all covered apparatus must make available the secondary audio stream, which is used for both video description and emergency information; thus, there would be no practical impact if we were to say that recording devices are not required to record and make available emergency information carried on a secondary audio stream. Although ACB would prefer that recording devices record video description instead of emergency information,223 we find that such an approach would not be possible given that the apparatus does not play any role in deciding the content of the secondary stream, which may contain emergency information that has overridden video description.224 Additionally, we find that consumers may play back recorded programming moments after it was first shown on television, and thus, emergency information may still be relevant.225 The Entertainment Software Association (“ESA”) notes potential harm of emergency information appearing during recorded programming because “a casual observer of recorded programming may be misled or confused by information that is no longer current or relevant.”226 On balance, we find that it is preferable to ensure that consumers have access to recorded emergency information that may still be relevant, rather than attempting to avoid the seemingly attenuated possibility that a casual observer may not realize that the programming is recorded and could be misled by outdated emergency information. 3. Customer Support Services 54. We do not at this time require MVPDs that provide set-top boxes and manufacturers of other covered apparatus to provide specific customer support services to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams to access video description and accessible emergency information, but we seek further comment on this issue below. Although expressly raised in the NPRM,227 there was little comment on this issue. As in the context of customer support services pursuant to Section 202 of the CVAA, AT&T argues that covered entities should have the flexibility to educate customers on the use of the secondary audio stream,228 and NCTA contends that additional rules in this area are unnecessary because “cable operators currently provide 221 See, e.g., NCTA Comments at 9 (“When a cable customer elects to record a particular program on an operator- supplied DVR, the DVR records both the primary and secondary audio streams embedded in that program.”). 222 NPRM, 27 FCC Rcd at 14742, ¶ 21. 223 See ACB Comments at 4. 224 See Letter from Diane B. Burstein, Vice President and Deputy General Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, at 2 (Feb. 6, 2013) (“We also clarified that when a cable customer elects to record a particular broadcast program on an operator-supplied DVR, the DVR records the primary and secondary audio stream as it is transmitted by the broadcast station. Thus, if a broadcaster is transmitting emergency information in the secondary audio stream in lieu of video description, the emergency information will be recorded.”) (footnote omitted). 225 See Pierce Comments at 5; Consumer Groups Reply at 13. See also infra Section IV.B.3 (discussing applicability of the apparatus requirements to removable media players). 226 ESA Comments at 5, n. 14. 227 See NPRM, 27 FCC Rcd at 14744-45, ¶ 28. 228 See AT&T Comments at 4, 8-9 (urging a flexible approach that would permit manufacturers to determine how to educate consumers on the use of the secondary audio stream). Federal Communications Commission FCC 13-45 41 customer support for handling video description concerns.”229 Given the lack of detailed comment on this issue, we seek further comment in the attached Further Notice.230 While we do not prescribe specific customer service requirements on manufacturers or MVPDs at this time, we believe that manufacturers’ and MVPDs’ customer service representatives should be able to answer consumer questions about accessing the secondary audio stream with respect to the devices each supports. Additionally, in order to make it easier for consumers to communicate directly with covered entities should they so choose, we encourage covered entities to provide a point of contact, as well as other information about how to seek assistance, on their websites and in other informational materials distributed to the public. 4. Interconnection Mechanisms 55. The CVAA directs the Commission to require that “interconnection mechanisms and standards for digital video source devices are available to carry from the source device to the consumer equipment the information necessary . . . to make encoded video description and emergency information audible.”231 In the NPRM, we sought comment on our understanding that devices already use interconnection mechanisms that make available audio provided via a secondary audio stream, and that no further steps would be needed to implement this requirement.232 NCTA, the only commenter that addresses this issue, states that no further steps are needed to implement this statutory provision because “[o]perator-supplied set-top boxes already use interconnection mechanisms that make available audio provided via the secondary audio stream.”233 We find that we need not require apparatus, including operator-supplied set-top boxes, to do more than that. In order to fulfill the interconnection mechanism provision of the CVAA and to provide clarity to the industry, however, we adopt a rule that states that covered apparatus must use interconnection mechanisms that make available the audio provided via the secondary audio stream. In doing so, it is our expectation, based on the record, that apparatus manufacturers will not need to take any additional steps to comply with this rule. 5. Issues from 2011 Video Description Order 56. In the NPRM, the Commission sought comment on three issues that arose in the 2011 video description proceeding. These issues pertain to equipment features that present challenges for video programming distributors and consumers. For the reasons discussed below, we decline to address these issues at this time, although we seek further comment on the first issue in the Further Notice. 57. First, the NPRM sought comment on whether the Commission should impose a requirement that broadcast receivers detect and decode tracks marked for the “visually impaired.”234 The issue arose in the 2011 Video Description Order, when the Commission observed that viewers with digital television sets, as well as other viewers, may be unable to find and activate an audio stream tagged as “visually impaired” (“VI”), which is the tag used for video description as dictated by the digital television standard, which is known as the ATSC standard.235 The Commission also cited comments 229 NCTA Jan. 18 Ex Parte Letter at 2; NCTA Feb. 28 Ex Parte Letter at 2; NCTA Mar. 11 Ex Parte Letter at 2. See also NCTA Comments at 14. AFB supports customer service requirements for covered entities, but it does not explain whether this would pertain to entities covered by Section 203 of the CVAA as well as those covered by Section 202. See AFB Comments at 3. 230 See infra Section V. 231 47 U.S.C. § 303(z)(2). 232 NPRM, 27 FCC Rcd at 14742, ¶ 23. 233 NCTA Comments at 10. 234 NPRM, 27 FCC Rcd at 14742-43, ¶ 24. 235 See 2011 Video Description Order, 26 FCC Rcd at 11863, ¶ 30. A tag, in this context, refers to the metadata accompanying an audio stream that signals to the receiving device what type of audio stream it is. Federal Communications Commission FCC 13-45 42 indicating that many legacy televisions may be compatible only with audio streams tagged as “complete main” (“CM”).236 Further, it has been reported that some television receivers do not properly handle two audio tracks if they are both identified as “English,” and thus to ensure compatibility, broadcasters often tag the video description stream as a foreign language, even though the content of the stream is video description. As a result of the tagging issues described above, consumers may find it difficult to identify and select audio streams containing video description. In the 2011 video description proceeding, the Commission decided that this issue would be better addressed in a later proceeding.237 CEA and NAB argue that we should not address the issue of tagging and decoding of secondary audio streams in this proceeding, particularly given the statutory deadlines imposed by the CVAA.238 We recognize that this is an important issue, but we also recognize that we currently lack a detailed record on these very technical matters. Accordingly, we seek comment on this issue in the Further Notice below.239 In the interim we expect local broadcasters to coordinate with manufacturers to ensure that consumers can easily access video description and emergency information provided on a secondary audio stream,240 and we expect voluntary standards setting bodies to explore how best to impose a consistent tagging scheme. 58. Second, the NPRM sought input on the comment of Dolby Laboratories, Inc. in the 2011 video description proceeding that the audio experience for individuals accessing video-described programming could be enhanced if devices supported a “receiver-mix” technology that would enable the device to combine the full surround sound main audio with video description.241 Commenters specifically object to the “receiver-mix” proposal, claiming that it is inconsistent with the current digital television standard and has been considered and rejected by the industry.242 Further, CEA and NAB explain that we should not address the “receiver-mix” issue in this proceeding, particularly given the statutory deadlines imposed by the CVAA.243 We agree, and thus we do not address this issue here. 59. Third, the NPRM asked if and how the Commission should address equipment limitations that may discourage video programming distributors from providing more than one additional audio channel.244 In the 2011 Video Description Order, the Commission noted that such limitations may 236 2011 Video Description Order, 26 FCC Rcd at 11863, n. 131. 237 Id. at 11863, ¶ 31 and n. 133. 238 CEA Comments at 4, 14; NAB Comments at 17; CEA Reply at 7; CEA Jan. 24 Ex Parte Letter at 2; CEA Feb. 1 Ex Parte Letters at 2; CEA Feb. 8 Ex Parte Letters at 2. 239 See infra Section V. 240 See NCTA Comments at 12; NAB Reply at 9. 241 See 2011 Video Description Order, 26 FCC Rcd at 11872, n. 208; Comments of Dolby Laboratories, Inc., MB Docket No. 11-43, at 3 (filed Apr. 28, 2011); NPRM, 27 FCC Rcd at 14743, ¶ 25. 242 See CEA Comments at 15 (“The specifications for mixing the narrative audio track with the regular audio track in the receiver were removed in the 2010 revision of the ATSC Digital TV Standard, A/53, and consequently the standard no longer specifies the capability of providing a receiver-mix.”); NAB Comments at 18, n. 50 (“Further, as the Commission noted in the 2011 Video Description Order, the Commission’s rules prohibit it from preemptively incorporating changes to a third party standard, which would appear to be required to adopt Dolby’s ‘receiver-mix’ proposal.”); Verizon Reply at 7 (“The concept of mixing the narrative audio track with the regular audio track in the receiver has been considered and rejected by the industry.”). 243 CEA Comments at 4, 14; NAB Comments at 17-18; CEA Reply at 7; CEA Jan. 24 Ex Parte Letter at 2; CEA Feb. 1 Ex Parte Letters at 2; CEA Feb. 8 Ex Parte Letters at 2. Some commenters also discuss the issue of making surround sound available on the secondary audio stream. One commenter supports such a requirement. See Pierce Comments at 5. Others explain that capacity constraints would lead to difficulty in providing two full surround sound audio streams. See DIRECTV Comments at 8, n. 27; NAB Comments at 18. 244 NPRM, 27 FCC Rcd at 14743-44, ¶ 26. Federal Communications Commission FCC 13-45 43 prevent some viewers from accessing a third audio channel, even if a video programming distributor provides such a channel.245 CEA and NAB explain that we should not address these equipment limitations in this proceeding, particularly given the statutory deadlines imposed by the CVAA.246 We agree that we should not at this time address equipment limitations that may prevent consumers from accessing a third audio channel. In the NPRM, the Commission asked specifically whether it should address this problem by mandating compliance with what is known as “CEA-CEB21,” Recommended Practice for Selection and Presentation of DTV Audio, a bulletin that “provides recommendations to manufacturers to facilitate user setup of audio features in the receiver without professional assistance.”247 CEA explains that CEA-CEB21 is a recommended practice with no normative requirements, and that it is not designed for use as a rule for which compliance is enforced.248 Accordingly, we do not impose CEA- CEB21 as a required compliance standard. We expect the industry to continue its work to develop products that are capable of delivering multiple ancillary audio streams. B. Apparatus Subject to Section 203 of the CVAA 1. General Scope of the Apparatus Requirements 60. The rules adopted in this proceeding pursuant to Section 203 of the CVAA apply only to apparatus designed to receive, play back, or record video programming provided by the entities subject to our existing emergency information rules (as set forth in Section 79.2) and our existing video description rules (as set forth in Section 79.3).249 In the NPRM, the Commission proposed to apply the video description and emergency information requirements adopted pursuant to Section 203 of the CVAA only to apparatus designed to receive, play back, or record “television broadcast services or MVPD services.”250 Several commenters support the proposal to limit the apparatus requirements adopted herein to apparatus designed to receive, play back, or record television broadcast services or MVPD services.251 245 2011 Video Description Order, 26 FCC Rcd at 11864, ¶ 32. 246 CEA Comments at 4, 14; NAB Comments at 17-18; CEA Reply at 7; CEA Jan. 24 Ex Parte Letter at 2; CEA Feb. 1 Ex Parte Letters at 2; CEA Feb. 8 Ex Parte Letters at 2. Other commenters also object to Commission- mandated technical standards with respect to the provision of multiple audio services. See ESA Comments at 6 and n. 17; NCTA Comments at 12-13 (explaining that the cable system architecture today only supports two channels, and providing an additional stream would be “a significant and costly undertaking”); Verizon Reply at 7 (agreeing with NCTA that providing multiple simultaneous ancillary audio services would be a costly undertaking). 247 CEA-CEB21, Recommended Practice for Selection and Presentation of DTV Audio, June 2011, available at http://www.ce.org/Standards/Standard-Listings/R4-3-Television-Data-Systems-Subcommittee/CEA-CEB21.aspx. 248 CEA Comments at 15. 249 See 47 C.F.R. §§ 79.2, 79.3. Both rules apply to television broadcast stations, MVPDs, and “any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.” See id. §§ 79.1(a)(2), 79.2(a)(1), 79.3(a)(5). Although Sections 79.2 and 79.3 impose requirements on covered entities, we find it more useful in some instances to discuss the scope of the rules in terms of the video programming provided by covered entities, as it is such programming that must be provided aurally. See also supra Section III.A. We clarify that at this time, the apparatus requirements adopted herein are not triggered by an apparatus receiving, playing back, or recording video programming available for viewing on an Internet website, even if such programming is provided by a covered entity. We also clarify that at this time, the apparatus requirements adopted herein do not apply to mobile devices that do not include receivers used to access television broadcast or MVPD services. The Further Notice poses additional questions about applicability of the requirements adopted herein to mobile devices. See infra Section V. As explained infra paragraph 74, the apparatus requirements adopted herein apply to mobile DTV apparatus. 250 See NPRM, 27 FCC Rcd at 14745-46, ¶ 30. 251 See CEA Comments at 4; ESA Comments at 1; NCTA Comments at 15; TIA Comments at 2, 7; CEA Reply at 3- 4; CTIA Reply at 2-3, 5; Verizon Reply at 5. Federal Communications Commission FCC 13-45 44 Consumer Groups, however, point out that the CVAA directs the Commission to impose emergency information requirements on video programming providers and distributors as defined in Section 79.1 of its rules, which includes more than just broadcasters and MVPDs.252 Upon further consideration, we find no basis to deviate from our existing definition, and we agree with the Consumer Groups that we should not exclude from coverage video programming provided by the third category of video programming distributors, which is “any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.”253 We thus conclude that it is more appropriate to extend the rules adopted in this proceeding pursuant to Section 203 of the CVAA to apparatus designed to receive, play back, or record video programming provided by broadcasters, MVPDs, and “any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.” 61. We disagree with Consumer Groups’ contention that the apparatus rules should apply as broadly here as they did in the IP closed captioning proceeding.254 We note that the CVAA does not define the term “apparatus.” Thus, we must give meaning to the term in a manner that best effectuates the intent of Congress and the purposes of the statute. We recognize that the CVAA’s legislative history indicated Congress’ intent to “ensure[] that devices consumers use to view video programming are able to . . . decode, and make available the transmission of video description services, and decode and make available emergency information.”255 However, given the current scope of Sections 79.2 and 79.3 of our rules,256 we decline at this time to adopt rules to encompass apparatus that are not designed to receive, play back, or record video programming provided by entities subject to our existing emergency information and video description rules. Such a limitation is reasonable because it ensures that consumers are able to use apparatus to access a secondary audio stream that relays programming that includes 252 See Consumer Groups Reply at 5-6 (explaining that the definition of “video programming distributor” includes television broadcast stations, MVPDs, and “any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission,” and that the definition of “video programming provider” includes video programming distributors as well as “any other entity that provides video programming that is intended for distribution to residential households including, but not limited to broadcast or nonbroadcast television network and the owners of such programming”); Consumer Groups Feb. 27 Ex Parte Letter at 2; Consumer Groups Mar. 4 Ex Parte Letter at 2; Consumer Groups Mar. 7 Ex Parte Letter at 2; Consumer Groups Mar. 11 Ex Parte Letter at 2; 47 C.F.R. §§ 79.1(a)(2)-(3). 253 See 47 C.F.R. §§ 79.1(a)(2), 79.3(a)(5). 254 See Consumer Groups Reply at 8, 10. See also Consumer Groups Feb. 27 Ex Parte Letter at 2; Consumer Groups Mar. 4 Ex Parte Letter at 2; Consumer Groups Mar. 7 Ex Parte Letter at 2; Consumer Groups Mar. 11 Ex Parte Letter at 2. We find unpersuasive Consumer Groups’ claim that “the fact that programming is not required to be made accessible under Section 202 or other law does not excuse apparatus manufacturers from their obligations to render accessibility information pursuant to Section 203(a).” See Consumer Groups Reply at 11. Consumer Groups cite specifically to the Commission’s decision in the IP Closed Captioning Order to extend the apparatus requirements to DVD players, even though the DVDs themselves may not be required to include captions. See id. See also IP Closed Captioning Order, 27 FCC Rcd at 845-46, ¶ 99. In the IP Closed Captioning Order, the Commission explained that the CVAA explicitly required coverage of apparatus that play back, but do not receive, video programming transmitted simultaneously with sound, such as DVD players. See id. 255 Senate Committee Report at 14; House Committee Report at 30. 256 See 47 C.F.R. §§ 79.2(a)(1) (applying the definitions of 47 C.F.R. §§ 79.1 and 79.3 to the emergency information rules); 79.1(a)(2) (defining “video programming distributor” to include “[a]ny television broadcast station licensed by the Commission and any multichannel video programming distributor as defined in § 76.1000(e) of this chapter, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission”); 79.3(a)(5) (defining “video programming distributor” to include the same categories). Federal Communications Commission FCC 13-45 45 emergency information and video description yet, at the same time, ensures that we avoid placing undue and unnecessary burdens on industry. Accordingly, the apparatus requirements adopted herein are triggered only when the apparatus is designed to receive, play back, or record video programming that is subject to Sections 79.2 and 79.3 of our rules, i.e., video programming provided by entities subject to those rules.257 62. We interpret the term “apparatus” to include the physical devices designed to receive, play back, or record video programming transmitted simultaneously with sound, as well as software integrated in those covered devices.258 The NPRM proposed to define apparatus subject to the emergency information and video description requirements to include “the physical device and the video players that manufacturers install into the devices they manufacture before sale, whether in the form of hardware, software, or a combination of both, as well as any video players that manufacturers direct consumers to install after sale.”259 As in its petition for reconsideration of the IP Closed Captioning Order,260 CEA argues that we should use the term “video programming player” in lieu of the term “video player” because the inclusion of “video players” in the definition of “apparatus” exceeds the scope of Section 203 of the CVAA by failing to limit its scope to video players designed to receive or play back “video programming,” as that term is defined in the CVAA.261 We find that, substituting the term “video programming player” for “video player,” as CEA requests, would not appear to provide any further clarity, as we are not aware of any commonly accepted definition of “video programming player.”262 Nonetheless, to address CEA’s argument that our rules should not reach apparatus that only display video that does not constitute “video programming,” and to make the language of the rules more consistent with the statute, we revise the proposal in the NPRM by replacing references to “video players” with “video player(s) capable of displaying video programming transmitted simultaneously with sound.”263 We 257 The Wireless RERC requests that the Commission investigate, via Public Notice or Notice of Inquiry, the technical feasibility of providing aural and visual emergency information on live IP-delivered video programming, including methods for identifying whether the viewing apparatus is within the geographic location of the emergency situation. Wireless RERC Comments at 13-14. CTIA-The Wireless Association (“CTIA”) responds that the Wireless RERC’s proposal that the Commission investigate and require the inclusion of emergency information in live, IP-delivered video programming is beyond the scope of the CVAA. CTIA Reply at 7. 258 See NPRM, 27 FCC Rcd at 14746, ¶ 31; IP Closed Captioning Order, 27 FCC Rcd at 839-40, ¶ 93. As explained above, in this context, unlike the closed captioning context, we limit the scope of the apparatus requirements to apparatus designed to receive, play back, or record video programming provided by entities subject to Sections 79.2 and 79.3 of our rules. 259 NPRM, 27 FCC Rcd at 14754-55. 260 Petition for Reconsideration of the Consumer Electronics Association, MB Docket No. 11-154, at 3-8 (filed Apr. 30, 2012) (“CEA Recon. Petition”). 261 CEA Comments at 6-8; CEA Reply at 5. The CVAA defines “video programming” as “programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media.” 47 U.S.C. § 613(h)(2). 262 We note that in another proceeding, CEA has proposed that we define “video programming player” as “a component, application, or system that is specifically intended by the manufacturer to enable access to video programming, not video in general.” See CEA Recon. Petition at 8. See also CEA Comments at 8; CEA Reply at 4- 5; Reply Comments of the Telecommunications Industry Association at 2-3 (“TIA Reply”) (supporting CEA’s proposal). The definition relies upon a consideration of the manufacturers’ intent, which we find to be inappropriate here, as discussed below, since it would allow a manufacturer unilaterally to decide whether an apparatus falls within the scope of the rules. See infra Section IV.B.2. 263 As in the IP Closed Captioning Order, the apparatus rules adopted herein cover manufacturer-provided updates and upgrades to devices; thus, a device that originally did not include a video player capable of displaying video (continued….) Federal Communications Commission FCC 13-45 46 believe that by limiting the scope of our rules to video players that are capable of displaying “video programming transmitted simultaneously with sound,” we will address CEA’s fundamental concern that our definition of “apparatus” should be consistent with the CVAA.264 2. Interpretation of Statutory Terms Incorporated in the Commission’s Apparatus Requirements 63. Below we interpret certain statutory terms incorporated in the Commission’s apparatus requirements. Each of these interpretations is adopted as proposed in the NPRM, and each is consistent with the approach taken in the IP Closed Captioning Order.265 64. Designed to Receive, Play Back, or Record Video Programming. Under the CVAA, the emergency information and video description requirements apply to “apparatus designed to receive or play back video programming transmitted simultaneously with sound,” and to “apparatus designed to record video programming transmitted simultaneously with sound.”266 In the NPRM, we proposed to consider an apparatus to be “designed to” receive, play back, or record video programming transmitted simultaneously with sound if it is sold with, or updated by the manufacturer to add, an integrated video player capable of displaying video programming.267 We adopt our proposed definition of “designed to.” In determining whether a device falls within this definition, we will look to the functionality of the device (i.e., whether it is capable of receiving or playing back video programming), rather than the subjective intent of the manufacturer (i.e., the manufacturer’s intent when it designed the apparatus), to determine if the device is designed to receive, play back, or record video programming.268 CEA argues here, as in its petition for reconsideration of the IP Closed Captioning Order, that the Commission instead should consider the manufacturer’s intent in determining what an apparatus was “designed to” accomplish.269 We disagree, because such an approach would allow the manufacturer unilaterally to dictate whether an apparatus falls within the scope of the rules, which could harm consumers by making compliance with the apparatus emergency information and video description requirements effectively voluntary.270 As the Commission stated in the IP Closed Captioning Order, we are persuaded that adopting a bright-line standard based on the device’s capability will provide more certainty for manufacturers.271 (Continued from previous page) programming transmitted simultaneously with sound, but that the manufacturer requires the consumer to update or upgrade to enable video reception or play-back, will be covered by our rules, and our rules equally cover updates or upgrades to existing video players. See IP Closed Captioning Order, 27 FCC Rcd at 842, n. 376. We would not, however, hold manufacturers liable for failure to comply with the apparatus requirements adopted herein for devices manipulated or modified by consumers in the aftermarket. See id. 264 See CEA Comments at 6-7; CEA Reply at 4-5; 47 U.S.C. §§ 303(u)(1), (z)(1). 265 Consumer Groups encourage the Commission to adopt apparatus rules consistent with those adopted in the IP Closed Captioning Order. Consumer Groups Jan. 22 Ex Parte Letter at 3. 266 47 U.S.C. §§ 303(u)(1), (z)(1). 267 See NPRM, 27 FCC Rcd at 14746, ¶ 32; IP Closed Captioning Order, 27 FCC Rcd at 842, ¶ 95 (“Our decision to cover ‘integrated video players’ is consistent with the statutory language of Section 203 of the CVAA which covers those apparatus ‘designed to receive or play back video programming transmitted simultaneously with sound.’”) (footnote omitted). A “video player” is the means by which an apparatus actually displays video. 268 See IP Closed Captioning Order, 27 FCC Rcd at 842, ¶ 95. 269 CEA Comments at 7; CEA Recon. Petition at 5-8. See also TIA Reply at 2. 270 Consumer Groups agree that we should not consider the manufacturer’s intent in determining what an apparatus was “designed to” accomplish. See Consumer Groups Reply at 16-17; Consumer Groups Feb. 15 Ex Parte Letter at 3. 271 NPRM, 27 FCC Rcd at 842, ¶ 95. Federal Communications Commission FCC 13-45 47 65. Uses a picture screen of any size. Section 203 of the CVAA applies to apparatus designed to receive or play back video programming “if such apparatus . . . uses a picture screen of any size.”272 In the NPRM, we proposed interpreting this phrase to mean that the apparatus works in conjunction with a picture screen, which is the approach that the Commission adopted in the IP closed captioning proceeding.273 Commenters did not discuss this issue, and we see no reason to deviate from the well-reasoned approach adopted in the IP Closed Captioning Order regarding the same statutory provision. We consider an apparatus to use a picture screen of any size if the apparatus works in conjunction with a picture screen.274 Thus, apparatus that “use[] a picture screen of any size” include not only devices that have a built-in screen, but also devices that are designed to work in conjunction with a screen, such as set-top boxes, game consoles, personal computers, and other receiving or play back devices separated from a screen.275 66. Technically feasible. The requirements of Section 203 of the CVAA pertaining to apparatus designed to receive or play back video programming apply only to the extent they are “technically feasible.”276 In the NPRM, we proposed to consider compliance with the apparatus requirements to be technically infeasible if a manufacturer shows that changes to the design of the apparatus to incorporate the required capabilities are not physically or technically possible.277 We further proposed that it would not be sufficient to show that compliance is merely difficult.278 These proposals mirrored the approach adopted in the IP closed captioning context. As explained in that context, because neither the statute nor the legislative history provides guidance as to the meaning of “technical feasibility,” the Commission is obligated to interpret the term to best effectuate the purpose of the statute.279 In the IP Closed Captioning Order, the Commission looked to prior Commission interpretations of the phrase “technically feasible” and other similar terms in the context of accessibility for people with disabilities, which similarly relied on whether incorporation of the capability was physically and technically possible.280 Commenters did not discuss this issue, and we see no reason to deviate from the reasoned approach adopted in the IP Closed Captioning Order to the same statutory provision. Accordingly, we adopt the proposed interpretation of the meaning of “technically feasible.” Given our understanding that most covered apparatus already make secondary audio streams available today, we expect that covered apparatus will only rarely be able to demonstrate that it would be physically or technically impossible to change the design of the apparatus to incorporate the required capabilities. Consistent with the IP Closed Captioning Order, we permit parties to raise technical infeasibility as a defense when faced with a complaint alleging a violation of the apparatus requirements adopted herein, or 272 See 47 U.S.C. § 303(u)(1). 273 NPRM, 27 FCC Rcd at 14746-47, ¶¶ 32-33; IP Closed Captioning Order, 27 FCC Rcd at 842-43, ¶ 96. 274 See NPRM, 27 FCC Rcd at 14746, ¶ 32; IP Closed Captioning Order, 27 FCC Rcd at 842, ¶ 96 (“reject[ing] the argument that Section 203 applies only to devices that include screens, as neither the statute nor the legislative history compels such a narrow construction”) (footnote omitted). 275 See NPRM, 27 FCC Rcd at 14746, ¶ 32; IP Closed Captioning Order, 27 FCC Rcd at 842-43, ¶ 96. 276 47 U.S.C. § 303(u). 277 NPRM, 27 FCC Rcd at 14746-47, ¶¶ 32-33. 278 See id. at 14746, ¶ 32; IP Closed Captioning Order, 27 FCC Rcd at 844, ¶ 98. 279 IP Closed Captioning Order, 27 FCC Rcd at 843-45, ¶¶ 97-98. 280 Id. at 843, ¶ 97. Federal Communications Commission FCC 13-45 48 to file a request for a ruling under Section 1.41 of the Commission’s rules as to technical infeasibility before manufacturing or importing the product.281 67. Achievability. Section 203 provides that apparatus “that use a picture screen that is less than 13 inches in size” must meet the requirements of that section only if “achievable,” as that word is defined in Section 716 of the Communications Act.282 Section 203 also provides that “apparatus designed to record video programming transmitted simultaneously with sound” are only required to comply with the emergency information and video description requirements “if achievable (as defined in section 716).”283 Section 716 of the Communications Act defines “achievable” as “with reasonable effort or expense, as determined by the Commission,” and it directs the Commission to consider the following factors in determining whether the requirements of a provision are achievable: “(1) The nature and cost of the steps needed to meet the requirements of this section with respect to the specific equipment or service in question. (2) The technical and economic impact on the operation of the manufacturer or provider and on the operation of the specific equipment or service in question, including on the development and deployment of new communications technologies. (3) The type of operations of the manufacturer or provider. (4) The extent to which the service provider or manufacturer in question offers accessible services or equipment containing varying degrees of functionality and features, and offered at differing price points.”284 68. In the NPRM, we proposed a flexible approach to achievability, consistent with that adopted in the IP Closed Captioning Order and in the ACS Order, pursuant to which a manufacturer may raise achievability as a defense to a complaint alleging a violation of Section 203, or it may seek a determination of achievability from the Commission before manufacturing or importing the apparatus.285 We also proposed to model the scope of the achievability exception on the IP Closed Captioning Order.286 The only commenter that provides a substantive discussion of achievability urges the Commission to provide manufacturers maximum flexibility in meeting the requirements of the CVAA, and to consider only the four statutory factors in making a determination of achievability.287 As in the IP Closed Captioning Order and the ACS Order, we find that it is appropriate to weigh each of the four statutory factors equally, and that achievability should be evaluated on a case-by-case basis.288 When faced with a complaint for a violation of the requirements adopted herein pursuant to Section 203 of the 281 See NPRM, 27 FCC Rcd at 14747, ¶ 33 and n. 120; IP Closed Captioning Order, 27 FCC Rcd at 845, ¶ 98. See also 47 C.F.R. § 1.41 (permitting parties to file informal requests for Commission action, based on a clear and concise showing of the facts relied on and relief sought, among other requirements). 282 47 U.S.C. § 303(u)(2)(A) (stating that “apparatus described in [Section 303(u)(1)] that use a picture screen that is less than 13 inches in size [must] meet the requirements of [these regulations] only if the requirements of such subparagraphs are achievable (as defined in section 716)”). 283 Id. § 303(z)(1) (requiring that “if achievable (as defined in section 716), apparatus designed to record video programming transmitted simultaneously with sound, . . . enable the rendering or the pass through of . . . video description signals, and emergency information . . . .”). As in the IP Closed Captioning Order, here “we expect identifying apparatus designed to record to be straightforward,” and “when devices such as DVD, Blu-ray, and other removable media recording devices are capable of recording video programming, they also qualify as recording devices under Section 203(b) and therefore” are subject to the requirements that the CVAA imposes on recording devices. IP Closed Captioning Order, 27 FCC Rcd at 854, ¶ 114. 284 47 U.S.C. § 617(g). 285 NPRM, 27 FCC Rcd at 14748, ¶ 36. 286 Id. 287 TIA Comments at 5. 288 IP Closed Captioning Order, 27 FCC Rcd at 848, ¶ 105; ACS Order, 26 FCC Rcd at 14608, ¶¶ 122-23. Federal Communications Commission FCC 13-45 49 CVAA, a manufacturer may raise as a defense that a particular apparatus does not comply with the rules because compliance was not achievable under the statutory factors. Alternatively, a manufacturer may seek a determination from the Commission that compliance with all of our rules is not achievable before manufacturing or importing the apparatus.289 In evaluating evidence offered to prove that compliance is not achievable, we will be informed by the analysis in the ACS Order, in which the Commission provided a detailed explanation of each of the four statutory factors.290 We remind parties that the achievability limitation is applicable only with regard to apparatus using screens less than 13 inches in size and to recording devices. 69. Purpose-Based Waivers. As we proposed in the NPRM, we will address on a case-by- case basis any requests for waivers of the requirements adopted herein for apparatus designed to receive or play back video programming.291 Section 203 of the CVAA permits the Commission to waive the Section 203 requirements for any apparatus or class of apparatus that is “primarily designed for activities other than receiving or playing back video programming transmitted simultaneously with sound,” or “for equipment designed for multiple purposes, capable of receiving or playing video programming transmitted simultaneously with sound but whose essential utility is derived from other purposes.”292 The CVAA does not define “primarily designed,” nor does it define “essential utility” except to state that it may be derived from more than one purpose.293 According to the legislative history of the CVAA, a waiver pursuant to the “primarily designed” provision is available “where, for instance, a consumer typically purchases a product for a primary purpose other than viewing video programming, and access to such programming is provided on an incidental basis.”294 We received little comment on purpose-based waivers. We will address any requests for waiver of the apparatus requirements adopted herein on a case- by-case basis, and waivers will be available prospectively for manufacturers seeking certainty prior to the sale of a device.295 We expect that over time, Commission precedent in this area will prove instructive to both manufacturers and consumers. As in the ACS Order,296 our evaluation of requests for a purpose- based waiver also will involve consideration of the Commission’s general waiver standard, which requires good cause and a showing that particular facts make compliance inconsistent with the public interest.297 We find that this approach is particularly appropriate here, where waiver requests may impact accessibility and in particular accessibility of emergency information. Although we do not intend to prejudge any waiver requests that we might receive, we will consider the strong public interest in 289 See NPRM, 27 FCC Rcd at 14747-49, ¶¶ 35-36; IP Closed Captioning Order, 27 FCC Rcd at 848-49, ¶ 105. See also 47 C.F.R. § 1.41 (permitting parties to file informal requests for Commission action, based on a clear and concise showing of the facts relied on and relief sought, among other requirements). 290 See ACS Order, 26 FCC Rcd at 14607-19, ¶¶ 119-48. See also IP Closed Captioning Order, 27 FCC Rcd at 849, ¶ 105. 291 See NPRM, 27 FCC Rcd at 14748-49, ¶¶ 35-36; IP Closed Captioning Order, 27 FCC Rcd at 849, ¶ 106. 292 47 U.S.C. § 303(u)(2)(C). 293 See id. 294 House Committee Report at 30; Senate Committee Report at 14. See also IP Closed Captioning Order, 27 FCC Rcd at 849, ¶ 106. 295 See 47 C.F.R. § 1.41. See also TIA Comments at 3, 9-10 (explaining that the availability of prospective categorical waivers would provide certainty and encourage innovation). 296 ACS Order, 26 FCC Rcd at 14637, ¶ 188. 297 See NPRM, 27 FCC Rcd at 14749, n. 133 (citing 47 C.F.R. § 1.3). See also AFB Comments at 2. Federal Communications Commission FCC 13-45 50 accessible emergency information when evaluating a manufacturer’s request for waiver of compliance with the requirements adopted in this proceeding.298 3. Application of the Apparatus Requirements to Certain Categories of Apparatus 70. Below we explain the application of the apparatus requirements adopted herein to certain categories of apparatus. Application of the requirements to each category of apparatus is adopted as proposed in the NPRM, and each is consistent with the approach taken in the IP Closed Captioning Order. 71. Removable media players. We adopt our proposal in the NPRM not to exclude removable media play back apparatus, such as DVD and Blu-ray players, from the scope of the new requirements.299 Consumer Groups support the coverage of removable media play back apparatus, which they maintain would be consistent with the CVAA and the IP Closed Captioning Order.300 Based on the record, we believe that imposing emergency information and video description requirements on removable media players will require only minimal, if any, action on the part of manufacturers, because most removable media players, such as DVD and Blu-ray players, already support the secondary audio stream that the rules adopted herein require them to support.301 Additionally, the apparatus rules adopted herein focus on the availability of the secondary audio stream, and the apparatus itself is agnostic as to the content of that stream. That is, an apparatus will carry the stream regardless of whether that stream contains video description, emergency information, or something else. CEA argues that we should interpret the CVAA not to apply to removable media players the apparatus rules adopted herein.302 Specifically, CEA asserts that the CVAA applies to apparatus designed to receive, play back, or record video programming “transmitted simultaneously with sound,” and that the term “transmitted” describes “how a signal is conveyed or sent over a distance via wire or radio between two different devices or parties,” which would exclude from coverage removable media players.303 We disagree with CEA’s interpretation of the term “transmitted.” Instead we reaffirm our interpretation in the IP Closed Captioning Order that the term “apparatus” covers devices that receive, play back, or record video 298 See AFB Comments at 2-3. We note that one consumer commenter objects to any waivers based on primary purpose or essential utility. Reply Comments of Faith Young at 1. We reject this argument because these waivers are statutorily-based. 299 See NPRM, 27 FCC Rcd at 14747, ¶ 34 and n. 121; IP Closed Captioning Order, 27 FCC Rcd at 845-46, ¶ 99. 300 Consumer Groups Reply at 14-15; Consumer Groups Feb. 15 Ex Parte Letter at 3; Consumer Groups Feb. 27 Ex Parte Letter at 4; Consumer Groups Mar. 4 Ex Parte Letter at 4; Consumer Groups Mar. 7 Ex Parte Letter at 4; Consumer Groups Mar. 11 Ex Parte Letter at 4. 301 See CEA Jan. 24 Ex Parte Letter at 2 (“[M]ost DVD players support multiple audio streams. A user with visual impairment has at least two options on every DVD player for discs based on the DVD Forum A/V formats—cycling through the available audio tracks, or going to the DVD’s setup menu provided by the DVD author and selecting the audio track for those with visual impairments on that menu.”); Letter from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 15, 2013) (“CEA Mar. 15 Ex Parte Letter”); Letter from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 2 (Mar. 21, 2013). 302 CEA argues similarly in its petition for reconsideration of the IP Closed Captioning Order that the Commission should not apply the closed captioning apparatus requirements to removable media players. CEA Recon. Petition at 8-18 (arguing that the Commission should not treat “removable media players” as apparatus covered by the closed captioning rules because doing so would exceed the scope of the CVAA). The CEA Recon. Petition is pending Commission action. 303 CEA Comments at 9 (emphasis in original). See also Letter from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 5-6 (Feb. 26, 2013). Federal Communications Commission FCC 13-45 51 programming “transmitted simultaneously with sound,” where “transmitted” describes how the video programming is conveyed from the device (e.g., DVD player) to the end user (simultaneously with sound).304 We further note that, although the CVAA and the Commission’s rules do not require removable media itself to contain emergency information and video description,305 the fact that an increasing number of DVDs contain video description further demonstrates the merit in requiring removable media players to facilitate the secondary audio stream on which the video description is provided.306 72. Professional and commercial equipment. We adopt our proposal to exclude commercial video equipment, including professional movie theater projectors and similar types of professional equipment, from the Section 203 rules adopted herein.307 Notably, no commenter objects to this proposal. Congress intended the Commission’s regulations to cover apparatus that are used by consumers.308 Because a typical consumer would not view video programming via professional or commercial equipment, such equipment is beyond the scope of Section 203’s accessibility requirements discussed herein. We note, however, that other federal laws may impose accessibility obligations to ensure that 304 IP Closed Captioning Order, 27 FCC Rcd at 845-46, ¶ 99. But see CEA Comments at 8-9. As the Commission explained in the IP Closed Captioning Order, “The phrase ‘or play back’ in Section 203 makes clear that Congress no longer intended to only cover devices that receive programming. Section 203 expands the prior statutory mandate to include not only apparatus that ‘receive’ programming, but also apparatus designed to ‘play back’ programming, whether or not such apparatus is also capable of receiving the programming . . . . We think the better interpretation of the word ‘transmitted’ in this context is that Congress’s substitution of the words ‘television pictures broadcast…’ with the corresponding words ‘video programming transmitted…,’ while retaining the phrase ‘simultaneously with sound,’ was intended to expand the scope of the statute beyond devices that receive broadcast television without narrowing the statute’s prior coverage.” IP Closed Captioning Order, 27 FCC Rcd at 845, ¶ 99. 305 When multimedia, including video programming, is used for the provision of services covered by other disability law, such as educational services, the covered entity must ensure that those services are accessible. See generally 42 U.S.C. §§ 12181-12189 (Title III of the ADA). See also http://www.dcmp.org (under a grant from the U.S. Department of Education, the Described and Captioned Media Program describes and captions multimedia for use by K-12 students). 306 See, e.g., Media Access Group at WGBH, http://main.wgbh.org/wgbh/pages/mag/dvsondvd.html (last visited Feb. 8, 2013). But see CEA Comments at 8. We note that the NPRM sought comment on whether we should require only video description, and not emergency information, to be accessible via removable media players. NPRM, 27 FCC Rcd at 14747, ¶ 34. We find that it is unnecessary for us to distinguish between video description and emergency information requirements with respect to the secondary audio capabilities of apparatus, including removable media players, because it makes no difference to the apparatus capabilities whether the stream contains emergency information or video description. Further, not all emergency information needs to be viewed immediately to be of any use, for example, emergency information about a severe storm may include information about shelter locations that may remain relevant for a number of days. See also supra Section IV.A.2 (discussing application of the apparatus requirements to recording devices). But see CEA Comments at 8, 9 n. 28 (arguing that emergency information will not be relevant when consumers play back video programming on removable media players); TIA Comments at 7 (noting potential harm from outdated emergency information). We find that the consumer will know that he or she is watching programming on a removable media player after its initial airing, and should be able to make a determination as to whether any steps are needed in response to recorded emergency information, thus mitigating any harm resulting from the provision of emergency information via removable media players. 307 See NPRM, 27 FCC Rcd at 14747, ¶ 34; IP Closed Captioning Order, 27 FCC Rcd at 846-47, ¶ 101. 308 See House Committee Report at 30 (explaining that Section 203(a) is meant to “ensure[] that devices consumers use to view video programming are able to . . . decode, and make available the transmission of video description services, and decode and make available emergency information”) (emphasis added); Senate Committee Report at 14 (same). Federal Communications Commission FCC 13-45 52 professional or commercial equipment is accessible to employees with disabilities309 or enables the delivery of accessible services.310 73. Display-only monitors. Section 203 of the CVAA provides that “any apparatus or class of apparatus that are display-only video monitors with no playback capability are exempt from the requirements [of Section 303(u)(1)].”311 We find that the exemption for display-only video monitors is self-explanatory and thus we incorporate the language of the statutory provision directly into our rules. We also provide that a manufacturer may make a request for a Commission determination as to whether its apparatus qualifies for this exemption.312 We note that no commenters address this issue. A manufacturer may make a request for a Commission determination as to whether its device qualifies for the display-only monitor exemption pursuant to Section 1.41 of the Commission’s rules.313 74. Mobile DTV. We find that the apparatus requirements adopted herein apply to mobile DTV apparatus because such apparatus make available video programming through mobile DTV services, which are provided by television broadcast stations subject to Sections 79.2 and 79.3 of our rules.314 NAB does not dispute that the apparatus requirements apply to mobile DTV apparatus; however, it argues that the Commission “should not dictate transmission standards in the rapidly evolving mobile environment,” but instead “should afford flexibility to ensure that program originators and equipment manufacturers are able to decode and integrate additional audio information.”315 We are concerned that allowing mobile DTV broadcasters to provide aural emergency information by means other than the secondary audio stream would not be effective because manufacturers may not include functionality for an alternate approach in their apparatus, and thus emergency information may be inaccessible to consumers. Additionally, we note that that the few mobile DTV devices currently on the market already support multiple audio streams. This demonstrates that support of the secondary audio stream is technically possible and may be the most appropriate means of providing emergency information and video description on mobile DTV apparatus.316 While we apply the same video description and emergency information requirements to mobile DTV apparatus as to other covered apparatus, to the extent that broadcasters find it preferable to use something besides a secondary audio stream to provide emergency information via mobile DTV, the Commission may consider waiver requests if supported by both broadcasters and manufacturers.317 309 Title I of the ADA requires private and state and local government employers with more than 15 employees to provide reasonable accommodations to applicants and employees with disabilities. See 42 U.S.C. §§ 12111-12117. A similar obligation applies to the federal government with respect to all federal employees with disabilities under Section 501 of the Rehabilitation Act. 29 U.S.C. § 791. 310 See, for example, Part A of Title II and Title III of the ADA. 42 U.S.C. §§ 12131-12134, 12181-12189. 311 47 U.S.C. § 303(u)(2)(B). 312 NPRM, 27 FCC Rcd at 14748-49, ¶ 36; IP Closed Captioning Order, 27 FCC Rcd at 850, ¶ 108. 313 See 47 C.F.R. § 1.41 (informal requests for Commission action). 314 Mobile DTV apparatus receive programming from broadcasters, generally a copy of the broadcaster’s primary video stream, over a portion of the broadcaster’s primary video spectrum which has been reallocated for this purpose. See Mobile Content Venture at www.dyle.tv/mcv/overview. 315 See Letter from Ann West Bobeck, Senior VP and Deputy General Counsel, Legal and Regulatory Affairs, NAB, to Marlene H. Dortch, Secretary, FCC, at 1 (Feb. 19, 2013). See also NAB Feb. 8 Ex Parte Letter at 1. 316 See Letter from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, at 2 (Feb. 13, 2013). 317 See 47 C.F.R. § 1.3. Federal Communications Commission FCC 13-45 53 C. Alternate Means of Compliance 75. We implement a similar approach to alternate means of compliance to the approach we adopted in the IP Closed Captioning Order.318 Pursuant to Section 203 of the CVAA, an entity may meet the emergency information and video description requirements “through alternate means than those” adopted herein.319 In the NPRM, we sought comment on our proposal to implement the same approach to alternate means of compliance that we adopted in the IP Closed Captioning Order, and we asked whether we should instead impose certain standards that any permissible alternate means must meet, given the nature of emergency information.320 We received very little comment on our implementation of this provision.321 As proposed in the NPRM, we adopt a similar approach to the one adopted in the IP Closed Captioning Order, i.e., rather than specifying what may constitute a permissible alternate means, we will address specific requests from parties subject to the new rules on a case-by-case basis. Unlike the approach taken in the IP Closed Captioning Order, however, we will only permit an entity that seeks to use an “alternate means” to comply with the apparatus requirements adopted herein to request a Commission determination that the proposed alternate means satisfies the statutory requirements through a request pursuant to Section 1.41 of our rules.322 We will not permit an entity to claim in defense to a complaint or enforcement action that the Commission should determine that the party’s actions were a permissible alternate means of compliance.323 We find that this is the best approach, given the uniquely heightened public interest in emergency information, and the importance of ensuring that consumers know how they can use their apparatus to obtain emergency information provided via the secondary audio stream. Moreover, we believe few manufacturers should need to avail themselves of alternate means of compliance because most covered apparatus already make secondary audio streams available today. We also believe that the burden, if any, on such manufacturers is outweighed by the uniquely heightened public interest in emergency information, and that it will be beneficial to manufacturers to know in advance, before manufacturing a product, that their product will comply with Commission requirements. D. Compliance Deadlines 76. We conclude that two years from the date of Federal Register publication is the appropriate deadline by which device manufacturers must comply with the emergency information and video description requirements of Section 203 of the CVAA, as implemented herein. The CVAA does not specify the time frame by which the Section 203 requirements must become effective,324 nor did the VPAAC recommend a compliance deadline. The NPRM sought comment on an appropriate deadline and 318 NPRM, 27 FCC Rcd 14749, ¶ 37; IP Closed Captioning Order, 27 FCC Rcd at 858-59, ¶ 121. 319 “An entity may meet the requirements of sections 303(u), 303(z), and 330(b) of the Communications Act of 1934 through alternate means than those prescribed by regulations pursuant to subsection (d) if the requirements of those sections are met, as determined by the Commission.” Pub. L. No. 111-260, § 203(e). 320 NPRM, 27 FCC Rcd at 14749, ¶ 37. 321 See NAB Comments at 15 (“While certain potential benefits may be unattainable in the present, the Commission should allow television broadcasters, MVPD providers and device manufacturers the flexibility to explore using emerging technologies or other methods as an alternate means of making emergency information accessible to the widest possible audiences.”); Wireless RERC Comments at 14 (“The Wireless RERC encourages industry to examine methods that may be more seamless, expedient and accessible. However, before employing the use of an ‘alternate means’ we recommend a requirement that the Commission approve its use to assure the technology is compliant with disability access rules.”). 322 47 C.F.R. § 1.41. 323 See Wireless RERC Comments at 14 (recommending that the Commission approve any alternate means before a manufacturer employs the use of such means “to assure the technology is compliant with disability access rules”). 324 See Pub. L. No. 111-260, § 203(d). Federal Communications Commission FCC 13-45 54 we received comments from ACB and some industry commenters on this issue. While ACB supports a compliance deadline of no more than 18 months,325 there is widespread industry support for a deadline of two years from the date of Federal Register publication.326 The secondary audio stream is currently used for video description, and pursuant to this Report and Order it will be used for aural emergency information as well. Because televisions and navigation devices have long included the ability to access secondary audio streams, we do not expect any further action will need to be taken by manufacturers of most apparatus subject to the rules to come into compliance. We find that a two-year compliance deadline is nevertheless appropriate, as it will coincide with the Section 202 emergency information deadline discussed above, and it is logical to require the use of the secondary audio stream to provide emergency information by the same date that the apparatus requirements pertaining to the secondary audio stream become effective.327 A two-year compliance deadline is also consistent with the precedent from the Commission’s implementation of other recent apparatus requirements, which were based upon the time generally needed to implement apparatus modifications.328 77. We clarify that the compliance deadline refers only to the date of manufacture. In its petition for reconsideration of the IP Closed Captioning Order, CEA requests that the deadline for compliance with the IP closed captioning rules should be interpreted to refer only to the date of manufacture.329 In the present proceeding, CEA similarly argues that the Commission should add explanatory notes to Sections 79.105(a) and 79.106(a) stating that the new obligations in those provisions “place no restriction on the importing, shipping or sale of apparatus that were manufactured before” the deadline for compliance with the apparatus requirements for emergency information and video description.330 We find that this approach would be consistent with the Commission’s past practices regarding similar equipment deadlines.331 The Consumer Groups assert that the proposal to consider only the date of manufacture risks consumer confusion because consumers would not know whether the products they purchase are accessible.332 We find that a compliance deadline based on the date of importation or the date of sale would be inappropriate, given that the manufacturer often does not control the date of importation or sale. Further, because of the brief intervals between the date of manufacture and the date of importation, a labeling requirement to address such situations would impose compliance 325 ACB Comments at 2-3. 326 CEA Comments at 3, 13; ESA Comments at 7; TIA Comments at 2, 8-9; CEA Reply at 7-8; Verizon Reply at 3, 7; CEA Jan. 24 Ex Parte Letter at 2; CEA Feb. 1 Ex Parte Letters at 2; CEA Feb. 8 Ex Parte Letters at 2; CEA Mar. 15 Ex Parte Letter at 2. 327 See supra Section III.D. 328 See, e.g., IP Closed Captioning Order, 27 FCC Rcd at 859, ¶ 122. See also CEA Comments at 13; ESA Comments at 7; CEA Reply at 8; Verizon Reply at 7-8. 329 See CEA Recon. Petition at 19-20. 330 CEA Comments at 12; CEA Jan. 24 Ex Parte Letter at 2; CEA Feb. 1 Ex Parte Letters at 2; CEA Feb. 8 Ex Parte Letters at 2. 331 See, e.g., Notes to 47 C.F.R. §§ 15.120(a), 79.101(a)(1), 79.102(a)(1), (2). See also CEA Comments at 12-13. 332 Consumer Groups Reply at 18 (proposing that the Commission clarify that the compliance deadline does not only refer to the date of manufacture, or require manufacturers to conspicuously label products with information regarding their accessibility features). See also Consumer Groups Feb. 15 Ex Parte Letter at 3 (proposing that the Commission set a compliance deadline based on the date of sale, or require labeling for noncompliant products); Consumer Groups Feb. 27 Ex Parte Letter at 4 (same); Consumer Groups Mar. 4 Ex Parte Letter at 4 (same); Consumer Groups Mar. 7 Ex Parte Letter at 4 (same); Consumer Groups Mar. 11 Ex Parte Letter at 4 (same). Federal Communications Commission FCC 13-45 55 costs with little practical benefit.333 For these reasons, we add explanatory notes to Sections 79.105(a) and 79.106(a) of our rules to clarify that those rules place no restrictions on the importing, shipping, or sale of apparatus that were manufactured before the compliance deadline. E. Complaint Procedures 78. We adopt the procedures proposed in the NPRM for the filing of complaints alleging violations of the Commission’s rules requiring apparatus designed to receive, play back, or record video programming to make available emergency information and video description services.334 As proposed in the NPRM and consistent with the apparatus complaint procedures adopted in the IP Closed Captioning Order,335 complaints alleging a violation of the apparatus rules related to emergency information and video description should include: (a) the name, postal address, and other contact information, such as telephone number or email address, of the complainant; (b) the name and contact information, such as postal address, of the apparatus manufacturer or provider;336 (c) information sufficient to identify the software or device used to view or to attempt to view video programming with video description or emergency information; (d) the date or dates on which the complainant purchased, acquired, or used, or tried to purchase, acquire, or use the apparatus to view video programming with video description or emergency information; (e) a statement of facts sufficient to show that the manufacturer or provider has violated or is violating the Commission’s rules; (f) the specific relief or satisfaction sought by the complainant; and (g) the complainant’s preferred format or method of response to the complaint. A complaint alleging a violation of the Section 203 apparatus requirements adopted herein may be transmitted to the Consumer and Governmental Affairs Bureau337 by any reasonable means, such as the Commission’s online informal complaint filing system,338 letter in writing or Braille, facsimile transmission, telephone (voice/TRS/TTY), e-mail,339 or some other method that would best accommodate the complainant’s disability. Given that the population intended to benefit from the rules adopted herein 333 In the IP closed captioning proceeding, CEA explains that “there typically is only a short lag time between manufacture and importation of any given apparatus. Depending on the equipment type and the place of manufacture, the length of this lag time varies from two to three days for truck shipments to the United States to about two to three weeks for shipments by sea.” See Letters from Julie M. Kearney, Vice President, Regulatory Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 11-154, at 3 (July 12, 2012). 334 NPRM, 27 FCC Rcd at 14745, ¶ 29. The record contains little discussion of the proposed apparatus complaint procedures, and we see no reason to deviate from the procedures proposed in the NPRM. We reject Verizon’s proposal that, if the Commission believes an informal complaint process is necessary, it should require complainants to confirm that they first attempted to resolve the matter directly with the manufacturer or provider. Verizon Reply at 8. We did not adopt such a requirement in the IP Closed Captioning Order, also implementing Section 203 of the CVAA, and we see no need to do so here, where consumers may have difficulty identifying the manufacturer or provider. 335 IP Closed Captioning Order, 27 FCC Rcd at 859-60, ¶ 123. 336 We do not expect consumers to locate the names and addresses of manufacturers in all instances. For example, if a consumer uses a set-top box provided by its MVPD, then the consumer may indicate the MVPD’s name and contact information. See also Pierce Comments at 6. 337 The Consumer and Governmental Affairs Bureau reserves the discretion to refer complaints that reveal a pattern of noncompliance to the Commission’s Enforcement Bureau. 338 Kelly Pierce asserts that the word limit for electronically filed consumer complaints is “completely inadequate.” Pierce Comments at 6. Although this issue is outside the scope of this proceeding, we take note of it and will consider its merits in future updates to the electronic consumer complaint system. 339 See id. (requesting that the Commission permit e-mail filing so that blind individuals can easily and independently file complaints). Federal Communications Commission FCC 13-45 56 will be blind or visually impaired, we also note that, if a complainant calls the Commission for assistance in preparing a complaint, Commission staff will document the complaint in writing for the consumer. 79. The Commission will forward complaints, as appropriate, to the named manufacturer or provider for its response, as well as to any other entity that Commission staff determines may be involved. The Commission may request additional information from any relevant parties when, in the estimation of Commission staff, such information is needed to investigate the complaint or to adjudicate potential violations of Commission rules. After the apparatus rules adopted in this Report and Order become effective, the Consumer and Governmental Affairs Bureau will release a consumer advisory with instructions on how to file complaints in various formats, including via the Commission’s website.340 V. FURTHER NOTICE OF PROPOSED RULEMAKING 80. Provision of linear programming to mobile and other devices. We seek comment on whether, when an MVPD, as defined in the Commission’s rules,341 permits its subscribers to access linear video programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices, it is acting as a “video programming distributor”342 that is providing “video programming”343 and is covered by the emergency information rules adopted herein.344 We also seek comment on whether, under this approach, an MVPD should be required to ensure that any application or plug-in345 that it provides to the consumer to access this programming is capable of making the emergency information audible on a secondary audio stream. For example, Cablevision currently permits consumers to access its entire package of video programming, including broadcast channels that contain emergency information, via tablets, laptops, smartphones, and similar devices.346 Should 340 As it did in the IP Closed Captioning Order, the Commission further directs the Consumer and Governmental Affairs Bureau to revise the existing complaint form for disability access complaints (Form 2000C) in accordance with this Report and Order, to facilitate the filing of complaints alleging violations of the apparatus requirements adopted herein. See IP Closed Captioning Order, 27 FCC Rcd at 860, n. 503. Should the apparatus rules adopted in this Report and Order become effective before the revised Form 2000C is available to consumers, apparatus complaints may be filed in the interim by any reasonable means, as explained above. 341 The Commission’s rules define an MVPD as “an entity engaged in the business of making available for purchase, by subscribers or customers, multiple channels of video programming.” See 47 C.F.R. § 76.1000(e). 342 See id. § 79.1(a)(2) (defining “video programming distributor” to include any television broadcast station, MVPD, and “any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission”). 343 See id. § 79.1(a)(1) (defining “video programming” to mean “[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station that is distributed and exhibited for residential use”). 344 We do not believe it is necessary to reach the question of whether this service is provided by an MVPD or an “other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission,” as both are covered entities. Id. § 79.1(a)(2). We note that our inquiry is based on the specific definitions contained in Section 79.1 of the Commission’s rules and thus is limited to application of the emergency information requirements in the CVAA, 47 U.S.C. § 613(g), and should not be read to imply a classification of these services for any other purpose. We seek comment on this issue. 345 A “plug-in” is defined as “[a] program of data that enhances, or adds to, the operation of a (usually larger) parent program.” See H. Newton, Newton’s Telecom Dictionary 642 (20th ed. 2004). 346 Cablevision delivers programming both to traditional set-top boxes and to IP devices using “its secure and proprietary Advanced Digital Cable television network to deliver cable programming to customers for viewing on the Optimum App for iPad [and other devices] and content is not delivered over the Internet. . . . Customers do not need to have Internet access to use the Optimum App for iPad.” See Cablevision’s New Optimum App Delivers the Full Cable Television Experience to an iPad in the Home, Apr. 2, 2011, available at (continued….) Federal Communications Commission FCC 13-45 57 Cablevision be required to ensure that any emergency information contained in the programming it makes available on tablets and other devices is audible by means of a secondary stream? We recognize that some MVPDs currently enable subscribers to access linear video programming inside the home as well as outside the home (e.g., TV Everywhere offerings). Should our rules apply to both situations – irrespective of where the subscriber may physically be when accessing the programming? Does it matter whether the emergency content is being delivered over the MVPD’s IP network or over the Internet? 81. At the same time, we seek comment on whether instead of placing obligations on MVPDs to make the emergency information accessible on the types of devices described above, it should be the obligation of the apparatus manufacturer, under Section 203, to ensure that the devices are capable of receiving the secondary audio stream.347 Or, do both the MVPD and the manufacturer have a role in facilitating the provision of the secondary audio stream on these types of devices? 82. What technological hurdles, if any, prevent or impede the delivery of the secondary audio service on mobile devices and personal computers? How much time is necessary for MVPDs and/or manufacturers to come into compliance and ensure that consumers can access the secondary audio stream on a mobile device or personal computer? 83. Provision of video description services on mobile or other devices. We note that the Commission’s existing video description rules currently apply to “MVPD systems.”348 Specifically, MVPD systems that serve 50,000 or more subscribers must provide 50 hours of video description per calendar quarter during prime time or children’s programming on each of the top five national nonbroadcast networks that they carry on those systems.349 Further, MVPD systems of any size must pass through video description provided by a broadcast station or nonbroadcast network, if the channel on which the MVPD distributes the programming has the technical capability necessary to pass through the video description and if that technology is not being used for another purpose related to the programming.350 In discussions with industry in the context of the current proceeding, it has come to our attention that the pass-through obligations of an MVPD system may not be clear to the extent that the MVPD allows subscribers to access “video programming”351 via tablets, laptops, personal computers, smartphones, or similar devices. To provide additional clarity on this issue, we seek comment on whether an MVPD system must comply with the video description rules when it permits its subscribers to access linear video programming via tablets, laptops, personal computers, smartphones, or similar devices. Because video description is provided using secondary audio streams, we seek comment on whether an (Continued from previous page) http://www.prnewswire.com/news-releases/cablevisions-new-optimum-app-delivers-the-full-cable-television- experience-to-an-ipad-in-the-home-119117379.html. 347 See CEA Mar. 15 Ex Parte Letter at 2 (“To the extent that devices interact with video delivered via [IP], they are not covered by the new apparatus rules to be adopted pursuant to the [NPRM], and manufacturers of these devices should not be responsible for video programming applications developed by third parties.”) (footnote omitted). 348 47 C.F.R. §§ 79.3(b)(4)-(5). 349 Id. § 79.3(b)(4). See also 2011 Video Description Order, 26 FCC Rcd at 11849-50, ¶ 4. The top five national nonbroadcast networks must reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under the video description rules. 47 C.F.R. § 79.3(b)(4). See also 2011 Video Description Order, 26 FCC Rcd at 11854-55, ¶¶ 12-15. For purposes of the rule, the top five nonbroadcast networks are USA, the Disney Channel, TNT, Nickelodeon, and TBS. 2011 Video Description Order, 26 FCC Rcd at 11854, ¶ 12. 350 47 C.F.R. §§ 79.3(b)(5)(i)-(ii). See also 2011 Video Description Order, 26 FCC Rcd at 11850, ¶ 4. 351 See 47 C.F.R. § 79.3(a)(4) (defining “video programming” as “[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station, but not including consumer- generated media”). Federal Communications Commission FCC 13-45 58 MVPD must ensure that any application or plug-in that it provides to the consumer to access linear video programming is capable of providing or passing through video description on a secondary audio stream, regardless of the type of device (e.g., tablets, laptops, personal computers, smartphones) the consumer uses to access such programming. How, if at all, should we apply in this context the technical capability exception to the video description requirements, pursuant to which the pass-through requirement does not apply when an MVPD lacks the technical capability necessary to pass through video description?352 What obligations, if any, fall on the manufacturers to ensure that these devices are capable of receiving the secondary audio stream, pursuant to Section 203 of the CVAA?353 84. We also seek comment on whether additional time is needed for MVPDs and/or manufacturers to comply with the video description rules for linear video programming services provided via tablets, laptops, personal computers, smartphones, or similar devices. We note, for example, that the Commission in the 2011 Video Description Order gave mobile DTV additional time for compliance.354 Should the same timeframe apply for both emergency information and video description purposes? We note that, as a technical matter, once the secondary audio stream is received by a device, that stream can be made available regardless of whether it is used for emergency information or video description. 85. Tagging of the secondary audio stream. As explained above, we are concerned that some consumers may be unable to find and activate an audio stream tagged as “visually impaired” (“VI”), which is the label dictated by the digital television standard, and that the audio stream used for video description must be labeled as “complete main” (“CM”) instead.355 Further, it has been reported that some television receivers do not properly handle two audio tracks identified as English, and thus to ensure compatibility, broadcasters often tag the video description stream as a foreign language, even though the content of the stream is video description. Although the NPRM sought comment on this issue,356 the record is not yet sufficiently detailed for us to address these very technical matters. We recognize that broadcasters and MVPDs have not yet developed a solution pursuant to which tagging the video description stream as VI, to help consumers locate the stream, would be compatible with accessing the secondary audio stream on all equipment, including older equipment. In the absence of an industry solution to this problem, should the Commission mandate that the video description stream include a particular tag, and that all apparatus subject to the rules adopted herein enable consumers to access a video description stream with that tag? If so, is the “visually impaired” (“VI”) tag the one that the Commission should mandate? What would broadcasters and manufacturers need to do to comply with such a requirement? What deadline should the Commission impose by which broadcasters and manufacturers must comply with any such requirement? How can the Commission ensure that such a requirement does not affect consumers who have not upgraded their equipment? How can we minimize any confusion or cost to such consumers, and specifically, how can we mitigate the need for consumers to purchase new equipment to take advantage of the tagging requirements discussed herein? What other steps should the Commission take to ensure that the content of the secondary audio stream is properly tagged, for example so that a video description stream is tagged as video description and not as foreign 352 See 2011 Video Description Order, 26 FCC Rcd at 11860, ¶ 23. 353 See 47 U.S.C. §§ 303(u)(1), (z)(1) (imposing video description requirements on apparatus designed to receive, play back, or record video programming). 354 See 2011 Video Description Order, 26 FCC Rcd at 11875, ¶ 57 (“Given the nascency of this service, and the fact that requiring pass-through of video description with Mobile DTV broadcasts would have little benefit to consumers at this time, we agree with NAB that it is appropriate to delay the effectiveness of these rules.”). 355 See supra Section IV.A.5. In that section we explain that in this context, a “tag” refers to the metadata accompanying an audio stream that signals to the receiving device what type of audio stream it is. 356 NPRM, 27 FCC Rcd at 14742-43, ¶ 24. Federal Communications Commission FCC 13-45 59 language audio? We also invite comment on any other issues relevant to this portion of the Further Notice. 86. Customer support services. As explained above, although we request, but do not at this time require, that entities subject to the requirements adopted herein pursuant to Sections 202 and 203 of the CVAA provide dedicated customer support services to assist consumers who are blind or visually impaired with accessing the secondary audio stream, we seek further comment on this issue.357 Should the Commission require covered entities to provide customer support services that are specifically designed to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams? Should customer support services consist of a dedicated telephone number, an accessible chat feature on the covered entity’s website, or a different means by which regulated entities should provide customer support? How should such a requirement apply to manufacturers, which may not maintain an ongoing direct-to-consumer relationship? Should the Commission adopt contact information requirements comparable to those applicable to the television closed captioning rules, to require covered entities to make available contact information for the receipt and handling of immediate emergency information or video description complaints or concerns during a program’s progress, and for the receipt and handling of written emergency information or video description complaints that do not raise immediate issues?358 What contact information should the Commission require of entities subject to the requirements adopted herein, and how should that information be made available to consumers?359 Instead of following the model of the television closed captioning rules, should we adopt contact information requirements comparable to those applicable to the IP closed captioning rules?360 Are there other ways by which entities subject to the requirements adopted herein can best provide assistance to consumers who are blind or visually impaired with accessing the secondary audio stream? Finally, we invite comment on any additional issues relevant to this portion of the Further Notice. VI. PROCEDURAL MATTERS A. Regulatory Flexibility Act 87. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),361 the Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) relating to this Report and Order in MB Docket No. 12-107. The FRFA is set forth in Appendix C. 88. Initial Regulatory Flexibility Analysis. As required by the RFA, the Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”) relating to the Further Notice. The IRFA is attached to this Report and Order and Further Notice of Proposed Rulemaking as Appendix D. 357 See supra Sections III.B.1, IV.A.3. 358 See 47 C.F.R. § 79.1(i)(1)-(2). 359 See id. § 79.1(i)(3) (requiring television video programming distributors to file the contact information described in that section with the Commission, and to notify the Commission each time there is a change in any of the required information). 360 See id. § 79.4(c)(2)(iii). 361 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (“CWAAA”). Federal Communications Commission FCC 13-45 60 B. Paperwork Reduction Act 89. The Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13.362 The requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the information collection requirements contained in this proceeding. The Commission will publish a separate document in the Federal Register at a later date seeking these comments. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. § 3506(c)(4), we seek specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. 90. The Further Notice may result in new or revised information collection requirements. If the Commission adopts any new or revised information collection requirement, the Commission will publish a notice in the Federal Register inviting the public to comment on the requirement, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. §§ 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. § 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” C. Congressional Review Act 91. The Commission will send a copy of the Report and Order in MB Docket No. 12-107 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A). D. Ex Parte Rules 92. Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules.363 Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed 362 Information collection requirements include: (1) the filing and processing of complaints alleging violations of the Commission’s rules pertaining to accessible emergency information, pursuant to revised Section 79.2(c); (2) the filing and processing of complaints alleging violations of the Commission’s apparatus requirements for emergency information and video description; (3) the filing and processing of requests for waiver of the apparatus requirements on the basis of technical feasibility, pursuant to Section 79.105(a); (4) the filing and processing of requests for waiver of the apparatus requirements on the basis of achievability, pursuant to Section 79.105(b)(3); (5) the filing and processing of requests for a purpose-based waiver of the apparatus requirements, pursuant to Section 79.105(b)(4); and (6) the submission and review of consumer eligibility information pertaining to the waiver granted to DIRECTV with respect to the provision of aural emergency information during The Weather Channel’s programming on all set-top boxes. 363 47 C.F.R. §§ 1.1200 et seq. Federal Communications Commission FCC 13-45 61 consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. E. Filing Requirements 93. Comments and Replies. Pursuant to Sections 1.415 and 1.419 of the Commission’s rules, 47 C.F.R. §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). ? Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/. ? Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. ? All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. ? Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. ? U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington, DC 20554. 94. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, S.W., CY-A257, Washington, D.C., 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. 95. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the FCC’s Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). F. Additional Information 96. For additional information on this proceeding, contact Diana Sokolow, Diana.Sokolow@fcc.gov, or Maria Mullarkey, Maria.Mullarkey@fcc.gov, of the Media Bureau, Policy Division, (202) 418-2120. Federal Communications Commission FCC 13-45 62 VII. ORDERING CLAUSES 97. Accordingly, IT IS ORDERED that, pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and the authority found in Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303, 330(b), 613, and 617, this Report and Order and Further Notice of Proposed Rulemaking IS ADOPTED, effective thirty (30) days after the date of publication in the Federal Register, except for Sections 79.105(a), 79.105(b)(3), and 79.105(b)(4), and revised Section 79.2(c), which shall become effective upon announcement in the Federal Register of OMB approval and an effective date of the rules. 98. IT IS ORDERED that, pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and the authority found in Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303, 330(b), 613, and 617, the Commission’s rules ARE HEREBY AMENDED as set forth in Appendix B. 99. IT IS FURTHER ORDERED that we delegate authority to the Media Bureau and the Consumer and Governmental Affairs Bureau to consider all requests for declaratory rulings pursuant to Section 1.2 of the Commission’s rules, 47 C.F.R. § 1.2, all waiver requests pursuant to Sections 1.3 or 79.105(b)(4) of the Commission’s rules, 47 C.F.R. §§ 1.3, 79.105(b)(4), and all informal requests for Commission action pursuant to Section 1.41 of the Commission’s rules, 47 C.F.R. § 1.41, filed under these rules and pursuant to Sections 202 and 203 of the CVAA as discussed herein. 100. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order and Further Notice of Proposed Rulemaking in MB Docket No. 12-107, including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 101. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this Report and Order and Further Notice of Proposed Rulemaking in MB Docket No. 12-107 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A). FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary Federal Communications Commission FCC 13-45 63 APPENDIX A List of Commenters Comments filed in MB Docket No. 12-107 American Council of the Blind (ACB) American Foundation for the Blind (AFB) AT&T Services, Inc. Consumer Electronics Association (CEA) DIRECTV, LLC DISH Network L.L.C. Entertainment Software Association (ESA) National Association of Broadcasters (NAB) National Cable & Telecommunications Association (NCTA) National Public Radio, Inc. (NPR) Pierce, Kelly Rehabilitation Engineering Research Center on Telecommunications Access and Consumer Groups (Consumer Groups)1 Rehabilitation Engineering Research Center for Wireless Technologies (Wireless RERC) Telecommunications Industry Association (TIA) The Weather Channel, LLC Reply Comments filed in MB Docket No. 12-107 AT&T Services, Inc. CenturyLink, Inc. Consumer Electronics Association (CEA) CTIA-The Wireless Association (CTIA) Groupo Communications LLC National Association of Broadcasters (NAB) Rehabilitation Engineering Research Center on Telecommunications Access and Consumer Groups (Consumer Groups)2 Telecommunications Industry Association (TIA) Verizon Young, Faith 1 This comment was filed by: Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI); American Association of the Deaf-Blind (AADB); National Association of the Deaf (NAD); and Rehabilitation Engineering Research Center on Telecommunications Access. 2 This reply comment was filed by: Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI); American Association of the Deaf-Blind (AADB); National Association of the Deaf (NAD); Deaf and Hard of Hearing Consumer Advocacy Center (DHHCAN); Hearing Loss Association of America (HLAA); Association of Late- Deafened Adults (ALDA); Cerebral Palsy and Deaf Organization (CPADO); and Rehabilitation Engineering Research Center on Telecommunications Access). Federal Communications Commission FCC 13-45 64 APPENDIX B Final Rules The Federal Communications Commission amends Part 79 of Title 47 of the Code of Federal Regulations (CFR) as follows: PART 79 – Closed Captioning and Video Description of Video Programming. 1. The authority citation for Part 79 will continue to read as follows: AUTHORITY: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 330, 544a, 613, 617. 2. Amend § 79.2 by revising paragraphs (b) and (c) to read as follows: § 79.2 Accessibility of programming providing emergency information. * * * * * (b) * * * (1) Video programming distributors must make emergency information, as defined in paragraph (a) of this section, that is provided in the audio portion of the programming accessible to persons with hearing disabilities by using a method of closed captioning or by using a method of visual presentation, as described in § 79.1 of this part. (2) Video programming distributors and video programming providers must make emergency information, as defined in paragraph (a) of this section, accessible as follows: (i) Emergency information that is provided visually during a regularly scheduled newscast, or newscast that interrupts regular programming, must be made accessible to individuals who are blind or visually impaired; and (ii) Emergency information that is provided visually during programming that is neither a regularly scheduled newscast, nor a newscast that interrupts regular programming, must be accompanied with an aural tone, and beginning [INSERT DATE TWO YEARS AFTER FEDERAL REGISTER PUBLICATION] must be made accessible to individuals who are blind or visually impaired through the use of a secondary audio stream to provide the emergency information aurally. Emergency information provided aurally on the secondary audio stream must be preceded by an aural tone and must be conveyed in full at least twice. Emergency information provided through use of text-to-speech (“TTS”) technologies must be intelligible and must use the correct pronunciation of relevant information to allow consumers to learn about and respond to the emergency, including, but not limited to, the names of shelters, school districts, streets, districts, and proper names noted in the visual information. The video programming distributor or video programming provider that creates the visual emergency information content and adds it to the programming stream is responsible for providing an aural representation of the information on a secondary audio stream, accompanied by an aural tone. Video programming distributors are responsible for ensuring that the aural representation of the emergency information (including the accompanying aural tone) gets passed through to consumers. (3) This rule applies to emergency information primarily intended for distribution to an audience in the geographic area in which the emergency is occurring. Federal Communications Commission FCC 13-45 65 (4) Video programming distributors must ensure that emergency information does not block any closed captioning and any closed captioning does not block any emergency information provided by means other than closed captioning. (5) Video programming distributors and video programming providers must ensure that aural emergency information provided in accordance with § 79.2(b)(2)(ii) supersedes all other programming on the secondary audio stream, including video description, foreign language translation, or duplication of the main audio stream, with each entity responsible only for its own actions or omissions in this regard. (c) Complaint procedures. A complaint alleging a violation of this section may be transmitted to the Consumer and Governmental Affairs Bureau by any reasonable means, such as the Commission’s online informal complaint filing system, letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e- mail, audio-cassette recording, and Braille, or some other method that would best accommodate the complainant’s disability. The complaint should include the name of the video programming distributor or the video programming provider against whom the complaint is alleged, the date and time of the omission of emergency information, and the type of emergency. The Commission will notify the video programming distributor or the video programming provider of the complaint, and the distributor or the provider will reply to the complaint within 30 days. 3. Add § 79.105 to read as follows: § 79.105 Video description and emergency information accessibility requirements for all apparatus. (a) Effective [INSERT DATE TWO YEARS AFTER FEDERAL REGISTER PUBLICATION], all apparatus that (i) is designed to receive or play back video programming transmitted simultaneously with sound that is provided by entities subject to §§ 79.2 and 79.3 of this Part, (ii) is manufactured in the United States or imported for use in the United States, and (iii) uses a picture screen of any size, must have the capability to decode and make available the secondary audio stream if technically feasible, unless otherwise provided in this section, which will facilitate the following services: (1) The transmission and delivery of video description services as required by § 79.3 of this Part; and (2) Emergency information (as that term is defined in § 79.2 of this Part) in a manner that is accessible to individuals who are blind or visually impaired. Note 1 to paragraph (a): Apparatus includes the physical device and the video player(s) capable of displaying video programming transmitted simultaneously with sound that manufacturers install into the devices they manufacture before sale, whether in the form of hardware, software, or a combination of both, as well as any video players capable of displaying video programming transmitted simultaneously with sound that manufacturers direct consumers to install after sale. Note 2 to paragraph (a): This paragraph places no restrictions on the importing, shipping, or sale of apparatus that were manufactured before [INSERT DATE TWO YEARS AFTER FEDERAL REGISTER PUBLICATION]. (b) Exempt apparatus. (1) Display-only monitors. Apparatus or class of apparatus that are display-only video monitors with no playback capability are not required to comply with the provisions of this section. (2) Professional or commercial equipment. Apparatus or class of apparatus that are professional or commercial equipment not typically used by the public are not required to comply with the provisions of this section. Federal Communications Commission FCC 13-45 66 (3)(i) Achievable. Apparatus that use a picture screen of less than 13 inches in size must comply with the provisions of this section only if doing so is achievable as defined in this section. Manufacturers of apparatus that use a picture screen of less than 13 inches in size may petition the Commission for a full or partial exemption from the video description and emergency information requirements of this section pursuant to § 1.41 of this chapter, which the Commission may grant upon a finding that the requirements of this section are not achievable, or may assert that such apparatus is fully or partially exempt as a response to a complaint, which the Commission may dismiss upon a finding that the requirements of this section are not achievable. (ii) The petitioner or respondent must support a petition for exemption or a response to a complaint with sufficient evidence to demonstrate that compliance with the requirements of this section is not “achievable” where “achievable” means with reasonable effort or expense. The Commission will consider the following factors when determining whether the requirements of this section are not “achievable:” (A) The nature and cost of the steps needed to meet the requirements of this section with respect to the specific equipment or service in question; (B) The technical and economic impact on the operation of the manufacturer or provider and on the operation of the specific equipment or service in question, including on the development and deployment of new communications technologies; (C) The type of operations of the manufacturer or provider; and (D) The extent to which the service provider or manufacturer in question offers accessible services or equipment containing varying degrees of functionality and features, and offered at differing price points. (4) Waiver. Manufacturers of apparatus may petition the Commission for a full or partial waiver of the requirements of this section, which the Commission may grant upon a finding that the apparatus meets one of the following provisions: (i) The apparatus is primarily designed for activities other than receiving or playing back video programming transmitted simultaneously with sound; or (ii) The apparatus is designed for multiple purposes, capable of receiving or playing back video programming transmitted simultaneously with sound but whose essential utility is derived from other purposes. (c) Interconnection. Covered apparatus shall use interconnection mechanisms that make available the audio provided via a secondary audio stream. 4. Add § 79.106 to read as follows: § 79.106 Video description and emergency information accessibility requirements for recording devices. (a) Effective [INSERT DATE TWO YEARS AFTER FEDERAL REGISTER PUBLICATION], all apparatus that (i) is designed to record video programming transmitted simultaneously with sound that is provided by entities subject to §§ 79.2 and 79.3 of this Part, and (ii) is manufactured in the United States or imported for use in the United States, must comply with the provisions of this section except that apparatus must only do so if it is achievable as defined in § 79.105(b)(3). Federal Communications Commission FCC 13-45 67 Note 1 to paragraph (a): Apparatus includes the physical device and the video player(s) capable of displaying video programming transmitted simultaneously with sound that manufacturers install into the devices they manufacture before sale, whether in the form of hardware, software, or a combination of both, as well as any video players capable of displaying video programming transmitted simultaneously with sound that manufacturers direct consumers to install after sale. Note 2 to paragraph (a): This paragraph places no restrictions on the importing, shipping, or sale of apparatus that were manufactured before [INSERT DATE TWO YEARS AFTER FEDERAL REGISTER PUBLICATION]. (b) All apparatus subject to this section must enable the presentation or the pass through of the secondary audio stream, which will facilitate the provision of video description signals and emergency information (as that term is defined in § 79.2 of this Part) such that viewers are able to activate and de-activate the video description as the video programming is played back on a picture screen of any size. (c) All apparatus subject to this section must comply with the interconnection mechanism requirements in § 79.105(c). Federal Communications Commission FCC 13-45 68 APPENDIX C Final Regulatory Flexibility Analysis for the Report and Order 1. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),1 an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rulemaking in this proceeding.2 The Federal Communications Commission (“Commission”) sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.3 A. Need for, and Objectives of, the Report and Order 2. Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”),4 the Report and Order adopts rules requiring that emergency information5 provided in video programming be made accessible to individuals who are blind or visually impaired and that certain apparatus be capable of delivering video description and emergency information to those individuals. Section 202 of the CVAA directs the Commission to promulgate rules requiring video programming providers, video programming distributors, and program owners6 to convey emergency information in a manner accessible to individuals who are blind or visually impaired.7 The Report and Order implements this mandate by requiring the use of a secondary audio stream8 to convey televised emergency information aurally, when such information is conveyed visually during programming other than 1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract With America Advancement Act of 1996 (“CWAAA”). 2 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, Notice of Proposed Rulemaking, 27 FCC Rcd 14728 (2012) (“NPRM”). 3 See 5 U.S.C. § 604. 4 Pub. L. No. 111-260, 124 Stat. 2751 (2010) (as codified in various sections of 47 U.S.C.). See also Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-265, 124 Stat. 2795 (2010) (making technical corrections to the CVAA). The foregoing are collectively referred to herein as the CVAA. The CVAA was enacted on October 8, 2010. 5 The CVAA directed the Commission to apply here the definition of “emergency information” found in the Commission’s rules. 47 U.S.C. § 613(g)(1). “Emergency information” is defined in the Commission’s rules as “[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency. Examples of the types of emergencies covered include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.” 47 C.F.R. § 79.2(a)(2). “Critical details include, but are not limited to, specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures, and how to obtain relief assistance.” Note to 47 C.F.R. § 79.2(a)(2). 6 Section 79.1 of the Commission’s rules defines the terms “video programming distributor” and “video programming provider.” 47 C.F.R. §§ 79.1(a)(2)-(3). It does not define the term “program owner.” 7 47 U.S.C. § 613(g)(2). 8 A secondary audio stream is an audio channel, other than the main program audio channel, that is typically used for foreign language audio and video description. Federal Communications Commission FCC 13-45 69 newscasts, for example, in an on-screen crawl.9 This requirement, which has widespread industry support, will serve the public interest by ensuring that televised emergency information is accessible to individuals who are blind or visually impaired. Further, as directed by Section 203 of the CVAA, the Report and Order requires certain apparatus that receive, play back, or record video programming to make available video description10 services and accessible emergency information.11 Specifically, the apparatus rules require that certain apparatus make available the secondary audio stream, which is currently used to provide video description and which will be used to provide aural emergency information. The apparatus requirements will benefit individuals who are blind or visually impaired by ensuring that apparatus on which consumers receive, play back, or record video programming are capable of accessing emergency information and video description services. We understand that most apparatus subject to the rules already comply with these requirements. 3. As discussed in Section III of the Report and Order, we adopt emergency information requirements for video programming distributors, video programming providers, and program owners pursuant to Section 202(a) of the CVAA. Specifically, we adopt rules that will: ? Clarify that the new emergency information requirements apply to video programming provided by entities that are covered by Section 79.2 of the Commission's rules – i.e., broadcasters, MVPDs, and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission; ? Require that covered entities make an aural presentation of emergency information that is provided visually in non-newscast programming available on a secondary audio stream; ? Continue to require the use of an aural tone to precede emergency information on the main program audio, and now also require use of the aural tone to precede emergency information on the secondary audio stream; ? Permit, but do not require, the use of text-to-speech (“TTS”) technologies as a method for providing an aural rendition of emergency information, and impose qualitative requirements if TTS is used; ? Require that emergency information provided aurally on the secondary audio stream be conveyed at least twice in full; ? Require that emergency information supersede all other programming on the secondary audio stream; ? Decline to make any substantive revisions to the current definition of emergency information, but clarify that severe thunderstorms and other severe weather events are included within the current definition; ? Revise the emergency information rule, as required by the statute, to include video programming providers (which includes program owners) as parties responsible for making emergency information available to individuals who are blind or visually impaired, in addition to already covered video programming distributors, and to allocate responsibilities among covered entities; ? Adopt a compliance deadline of two years from the date of Federal Register publication for compliance with the emergency information rules adopted in the Report and Order; and 9 See Report and Order Section III.B.1. 10 “Video description” is defined as “[t]he insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” 47 C.F.R. § 79.3(a)(3). 11 47 U.S.C. §§ 303(u), (z), 330(b). See Report and Order Section IV.A. Federal Communications Commission FCC 13-45 70 ? Grant waivers to The Weather Channel, LLC (“The Weather Channel”) and DIRECTV, LLC (“DIRECTV”) to provide them with additional time and flexibility to come into compliance with the rules adopted herein with regard to the provision of local weather alerts during The Weather Channel’s programming via devices that are not currently capable of providing aural emergency information on a secondary audio stream. 4. As discussed in Section IV of the Report and Order, we adopt apparatus requirements for emergency information and video description pursuant to Section 203 of the CVAA. Specifically, we adopt rules that will: ? Require apparatus designed to receive, play back, or record video programming transmitted simultaneously with sound to make secondary audio streams available, because such streams are the existing mechanism for providing video description and the new mechanism for making emergency information accessible; ? Decline at this time to adopt specific performance and display standards or policies addressing certain issues from the 2011 video description proceeding; ? Permit, but do not require, covered apparatus to contain TTS capability; ? Limit applicability of the apparatus requirements, at this time, to apparatus designed to receive, play back, or record video programming provided by entities subject to Sections 79.2 and 79.3 of our rules; ? Apply the apparatus requirements to removable media players, but not to professional and commercial equipment or display-only monitors; ? Find that the apparatus requirements adopted in the Report and Order apply to mobile digital television (“mobile DTV”) apparatus because such apparatus make available mobile DTV services, which are provided by television broadcast stations subject to Sections 79.2 and 79.3 of our rules; ? Implement the statutory provision that permits alternate means of compliance; ? Adopt a compliance deadline of two years from the date of Federal Register publication for compliance with the apparatus rules adopted in the Report and Order; and ? Adopt procedures for complaints alleging violations of the apparatus requirements adopted in the Report and Order. B. Legal Basis 5. The authority for the action taken in this rulemaking is contained in the Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303, 330(b), 613, and 617. C. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 6. No comments were filed in response to the IRFA. D. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 7. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted in the Report and Federal Communications Commission FCC 13-45 71 Order.12 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”13 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.14 A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).15 8. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of “Wired Telecommunications Carriers,” which is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”16 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees.17 Census data for 2007 shows that there were 31,996 establishments that operated that year.18 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.19 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 9. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission’s rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide.20 Industry data indicate that all but ten cable operators nationwide are small under this size standard.21 In addition, under the Commission’s rules, a “small system” is a cable system serving 15,000 or fewer subscribers.22 Industry data indicate that, of 6,101 systems nationwide, 4,410 systems have under 10,000 subscribers, and an 12 5 U.S.C. § 603(b)(3). 13 Id. § 601(6). 14 Id. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 15 15 U.S.C. § 632. 16 U.S. Census Bureau, 2007 NAICS Definitions, 517110 Wired Telecommunications Carriers. 17 13 C.F.R. § 121.201; 2007 NAICS code 517110. 18 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 19 See id. 20 47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995). 21 See BROADCASTING & CABLE YEARBOOK 2010 at C-2 (2009) (data current as of Dec. 2008). 22 47 C.F.R. § 76.901(c). Federal Communications Commission FCC 13-45 72 additional 258 systems have 10,000-19,999 subscribers.23 Thus, under this standard, most cable systems are small. 10. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”24 The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.25 Industry data indicate that all but nine cable operators nationwide are small under this subscriber size standard.26 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million,27 and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 11. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.”28 The SBA has created the following small business size standard for Television Broadcasting firms: those having $14 million or less in annual receipts.29 The Commission has estimated the number of licensed commercial television stations to be 1,387.30 In addition, according to Commission staff review of the BIA Advisory Services, LLC’s Media Access Pro Television Database on March 28, 2012, about 950 of an estimated 1,300 commercial television stations (or approximately 73 percent) had revenues of $14 million or less.31 We therefore estimate that the majority of commercial television broadcasters are small entities. 12. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations32 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on 23 See TELEVISION & CABLE FACTBOOK 2009 at F-2 (2009) (data current as of Oct. 2008). The data do not include 957 systems for which classifying data were not available. 24 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn. 1-3. 25 47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001). 26 See BROADCASTING & CABLE YEARBOOK 2010 at C-2 (2009) (data current as of Dec. 2008). 27 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of the Commission’s rules. See 47 C.F.R. § 76.901(f). 28 U.S. Census Bureau, 2007 NAICS Definitions, “515120 Television Broadcasting,” http://www.census.gov./cgi- bin/sssd/naics/naicsrch?code=515120&search=2007. 29 13 C.F.R. § 121.201; NAICS code 515120. 30 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-311837A1.pdf. 31 We recognize that BIA’s estimate differs slightly from the FCC total given supra. 32 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.” 13 C.F.R. § 21.103(a)(1). Federal Communications Commission FCC 13-45 73 which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent. 13. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.33 These stations are non-profit, and therefore considered to be small entities.34 14. Direct Broadcast Satellite (“DBS”) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber’s location. DBS, by exception, is now included in the SBA’s broad economic census category, “Wired Telecommunications Carriers,”35 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.36 Census data for 2007 shows that there were 31,996 establishments that operated that year.37 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.38 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and EchoStar Communications Corporation (“EchoStar”) (marketed as the DISH Network).39 Each currently offers subscription services. DIRECTV40 and EchoStar41 each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider. 15. Satellite Telecommunications Providers. Two economic census categories address the satellite industry. The first category has a small business size standard of $15 million or less in average 33 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012, http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0106/DOC-311837A1.pdf. 34 See generally 5 U.S.C. §§ 601(4), (6). 35 See 13 C.F.R. § 121.201, 2007 NAICS code 517110. The 2007 NAICS definition of the category of “Wired Telecommunications Carriers” is in paragraph 8, above. 36 13 C.F.R. § 121.201; 2007 NAICS code 517110. 37 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 38 See id. 39 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Thirteenth Annual Report, 24 FCC Rcd 542, 580, ¶ 74 (2009) (“13th Annual Report”). We note that, in 2007, EchoStar purchased the licenses of Dominion Video Satellite, Inc. (“Dominion”) (marketed as Sky Angel). See Public Notice, “Policy Branch Information; Actions Taken,” Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007). 40 As of June 2006, DIRECTV is the largest DBS operator and the second largest MVPD, serving an estimated 16.20% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3. 41 As of June 2006, DISH Network is the second largest DBS operator and the third largest MVPD, serving an estimated 13.01% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3. As of June 2006, Dominion served fewer than 500,000 subscribers, which may now be receiving “Sky Angel” service from DISH Network. See id. at 581, ¶ 76. Federal Communications Commission FCC 13-45 74 annual receipts, under SBA rules.42 The second has a size standard of $25 million or less in annual receipts.43 16. The category of “Satellite Telecommunications” “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”44 Census Bureau data for 2007 show that 607 Satellite Telecommunications establishments operated for that entire year.45 Of this total, 533 establishments had annual receipts of under $10 million or less, and 74 establishments had receipts of $10 million or more.46 Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 17. The second category, i.e., “All Other Telecommunications,” comprises “establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.”47 For this category, Census Bureau data for 2007 shows that there were a total of 2,639 establishments that operated for the entire year.48 Of those 2,639 establishments, 2,333 operated with annual receipts of less than $10 million and 306 with annual receipts of $10 million or more.49 Consequently, the Commission estimates that a majority of All Other Telecommunications establishments are small entities that might be affected by our action. 18. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA’s broad economic census category, “Wired Telecommunications Carriers,”50 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.51 Census data for 2007 42 13 C.F.R. § 121.201; NAICS code 517410. 43 13 C.F.R. § 121.201; NAICS code 517919. 44 U.S. Census Bureau, 2007 NAICS Definitions, “517410 Satellite Telecommunications,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=517410&search=2007. 45 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ1&pro dType=table. 46 See id. 47 U.S. Census Bureau, 2007 NAICS Definitions, “517919 All Other Telecommunications,” http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search. 48 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&pro dType=table. 49 See id. 50 13 C.F.R. § 121.201; 2007 NAICS code 517110. 51 See id. Federal Communications Commission FCC 13-45 75 shows that there were 31,996 establishments that operated that year.52 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.53 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 19. Home Satellite Dish (“HSD”) Service. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled (free) programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers’ receipt of video programming. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of “Wired Telecommunications Carriers.”54 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees.55 Census data for 2007 shows that there were 31,996 establishments that operated that year.56 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.57 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 20. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).58 In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years.59 The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.60 52 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 53 See id. 54 13 C.F.R. § 121.201; 2007 NAICS code 517110. 55 See id. 56 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 57 See id. 58 Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act—Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10 FCC Rcd 9589, 9593, ¶ 7 (1995). 59 47 C.F.R. § 21.961(b)(1). 60 47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, the applicable standard is SBA’s small business size standard of 1,500 or fewer employees. Federal Communications Commission FCC 13-45 76 After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission’s rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas.61 The Commission offered three levels of bidding credits: (i) a bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid.62 Auction 86 concluded in 2009 with the sale of 61 licenses.63 Of the ten winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses. 21. In addition, the SBA’s placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, “Wired Telecommunications Carriers” have been defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”64 Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.65 For these services, the Commission uses the SBA small business size standard for Wired Telecommunications Carriers, which is 1,500 or fewer employees.66 Census data for 2007 shows that there were 31,996 establishments that operated that year.67 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.68 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. In addition to Census data, the Commission’s internal records indicate that as of September 2012, there are 2,241 active EBS licenses.69 61 Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, Public Notice, 24 FCC Rcd 8277 (2009). 62 Id. at 8296. 63 Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, Public Notice, 24 FCC Rcd 13572 (2009). 64 13 C.F.R. § 121.201; 2007 NAICS code 517110. 65 Id. 66 See id. 67 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 68 See id. 69 http://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp. Federal Communications Commission FCC 13-45 77 The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.70 22. Fixed Microwave Services. Microwave services include common carrier,71 private- operational fixed,72 and broadcast auxiliary radio services.73 They also include the Local Multipoint Distribution Service (LMDS),74 the Digital Electronic Message Service (DEMS),75 and the 24 GHz Service,76 where licensees can choose between common carrier and non-common carrier status.77 At present, there are approximately 31,428 common carrier fixed licensees and 79,732 private operational- fixed licensees and broadcast auxiliary radio licensees in the microwave services. There are approximately 120 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The Commission has not yet defined a small business with respect to microwave services. For purposes of the IRFA, we will use the SBA’s definition applicable to Wireless Telecommunications Carriers (except satellite)—i.e., an entity with no more than 1,500 persons.78 Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.79 For the category of “Wireless Telecommunications Carriers (except Satellite),”80 Census data for 2007 show that there were 11,163 firms that operated for the entire year.81 Of this total, 10,791 firms had employment of 999 or fewer employees and 372 had employment of 1,000 employees or more.82 Thus, under this category and the associated small business size standard, the majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. 70 The term “small entity” within SBREFA applies to small organizations (non-profits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. §§ 601(4)-(6). 71 See 47 C.F.R. Part 101, Subparts C and I. 72 See 47 C.F.R. Part 101, Subparts C and H. 73 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules. See 47 C.F.R. Part 74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay signals from a remote location back to the studio. 74 See 47 C.F.R. Part 101, Subpart L. 75 See 47 C.F.R. Part 101, Subpart G. 76 See id. 77 See 47 C.F.R. §§ 101.533, 101.1017. 78 13 C.F.R. § 121.201; 2007 NAICS code 517210. 79 See id. The now-superseded, pre-2007 C.F.R. citations were 13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS). 80 13 C.F.R. § 121.201; NAICS code 517210. 81 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. Available Census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 82 See id. Federal Communications Commission FCC 13-45 78 23. Open Video Systems. The open video system (“OVS”) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers.83 The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services,84 OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.”85 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees.86 Census data for 2007 shows that there were 31,996 establishments that operated that year.87 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.88 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. In addition, we note that the Commission has certified some OVS operators, with some now providing service.89 Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises.90 The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, at least some of the OVS operators may qualify as small entities. 24. Cable and Other Subscription Programming. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers.”91 The SBA has developed a small business size standard for this category, which is: all such firms having $15 million dollars or less in annual revenues.92 To gauge small business prevalence in the Cable and Other Subscription Programming industries, the Commission relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007 show that there were 659 establishments in this category that operated for the entire year.93 Of that number, 462 operated with annual revenues of $9,999,999 million dollars or less,94 and 197 operated with annual revenues of 10 83 47 U.S.C. § 571(a)(3)-(4). See 13th Annual Report, 24 FCC Rcd at 606, ¶ 135. 84 See 47 U.S.C. § 573. 85 U.S. Census Bureau, 2007 NAICS Definitions, http://www.census.gov./cgi-bin/sssd/naics/naicsrch. 86 13 C.F.R. § 121.201; 2007 NAICS code 517110. 87 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 88 See id. 89 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html. 90 See 13th Annual Report, 24 FCC Rcd at 606-07, ¶ 135. BSPs are newer firms that are building state-of-the-art, facilities-based networks to provide video, voice, and data services over a single network. 91 U.S. Census Bureau, 2007 NAICS Definitions, “515210 Cable and Other Subscription Programming,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch. 92 13 C.F.R. § 121.201; 2007 NAICS code 515210. 93 See http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ1&prod Type=table. 94 Id. Federal Communications Commission FCC 13-45 79 million or more.95 Thus, under this category and associated small business size standard, the majority of firms can be considered small. 25. Small Incumbent Local Exchange Carriers. We have included small incumbent local exchange carriers in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.”96 The SBA’s Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope.97 We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. 26. Incumbent Local Exchange Carriers (“LECs”). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category “Wired Telecommunications Carriers.” Under that size standard, such a business is small if it has 1,500 or fewer employees.98 Census data for 2007 shows that there were 31,996 establishments that operated that year.99 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.100 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 27. Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared- Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category “Wired Telecommunications Carriers.” Under that size standard, such a business is small if it has 1,500 or fewer employees.101 Census data for 2007 shows that there were 31,996 establishments that operated that year.102 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.103 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities. 95 Id. 96 15 U.S.C. § 632. 97 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into its own definition of “small business.” See 15 U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. See 13 C.F.R. § 121.102(b). 98 13 C.F.R. § 121.201; 2007 NAICS code 517110. 99 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 100 See id. 101 13 C.F.R. § 121.201; 2007 NAICS code 517110. 102 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pr odType=table. 103 See id. Federal Communications Commission FCC 13-45 80 28. Motion Picture and Video Production. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in producing, or producing and distributing motion pictures, videos, television programs, or television commercials.”104 We note that firms in this category may be engaged in various industries, including cable programming. Specific figures are not available regarding how many of these firms produce and/or distribute programming for cable television. The SBA has developed a small business size standard for this category, which is: all such firms having $29.5 million dollars or less in annual revenues.105 To gauge small business prevalence in the Motion Picture and Video Production industries, the Commission relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 9,095 firms in this category that operated for the entire year.106 Of these, 8,995 had annual receipts of $24,999,999 or less, and 100 had annual receipts ranging from not less than $25,000,000 to $100,000,000 or more.107 Thus, under this category and associated small business size standard, the majority of firms can be considered small. 29. Motion Picture and Video Distribution. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in acquiring distribution rights and distributing film and video productions to motion picture theaters, television networks and stations, and exhibitors.”108 We note that firms in this category may be engaged in various industries, including cable programming. Specific figures are not available regarding how many of these firms produce and/or distribute programming for cable television. The SBA has developed a small business size standard for this category, which is: all such firms having $29.5 million dollars or less in annual revenues.109 To gauge small business prevalence in the Motion Picture and Video Distribution industries, the Commission relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 450 firms in this category that operated for the entire year.110 Of these, 434 had annual receipts of $24,999,999 or less, and 16 had annual receipts ranging from not less than $25,000,000 to $100,000,000 or more.111 Thus, under this category and associated small business size standard, the majority of firms can be considered small. 30. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile 104 U.S. Census Bureau, 2007 NAICS Definitions, “512110 Motion Picture and Video Production,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=512110&search=2007. 105 13 C.F.R. § 121.201; 2007 NAICS code 512110. 106 See http://www.census.gov/econ/industry/ec07/a51211.htm (Subject Series: Establishment and Firm Size (national) – Table 4: Revenue Size of Firms for the U.S). 107 See id. 108 See U.S. Census Bureau, 2007 NAICS Definitions, “512120 Motion Picture and Video Distribution,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=512120&search=2007. 109 13 C.F.R. § 121.201; 2007 NAICS code 512120. 110 See http://www.census.gov/econ/industry/ec07/a51212.htm (Subject Series: Establishment and Firm Size (national) – Table 4: Revenue Size of Firms for the U.S). 111 See id. Federal Communications Commission FCC 13-45 81 communications equipment, and radio and television studio and broadcasting equipment.”112 The SBA has developed a small business size standard for “Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing,” which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were 919 establishments that operated for part or all of the entire year.113 Of those 919 establishments, 771 operated with 99 or fewer employees, and 148 operated with 100 or more employees.114 Thus, under that size standard, the majority of establishments can be considered small. 31. Audio and Video Equipment Manufacturing. The SBA has classified the manufacturing of audio and video equipment under in NAICS Codes classification scheme as an industry in which a manufacturer is small if it has less than 750 employees.115 Data contained in the 2007 Economic Census indicate that 491 establishments in this category operated for part or all of the entire year.116 Of those 491 establishments, 456 operated with 99 or fewer employees, and 35 operated with 100 or more employees.117 Thus, under the applicable size standard, a majority of manufacturers of audio and video equipment may be considered small. E. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 32. Certain rule changes discussed in the Report and Order would affect reporting, recordkeeping, or other compliance requirements. In general, the Report and Order satisfies the requirements of Section 202(a) of the CVAA with regard to making emergency information accessible to persons who are blind or visually impaired by mandating the use of a secondary audio stream to provide the emergency information aurally and concurrently with the emergency information being conveyed visually during non-newscast programming.118 The Report and Order also imposes certain apparatus requirements for emergency information and video description.119 33. With regard to the emergency information requirements, there are certain provisions that would require covered entities to make a filing and, thus, to make and keep records of the filing. Specifically, the Report and Order provides that parties may petition for waiver of these requirements for good cause pursuant to Section 1.3 of the Commission’s rules.120 DBS operators may petition for a waiver of the emergency information requirements pursuant to Section 1.3 of the Commission’s rules if 112 See 13 C.F.R § 121.201; U.S. Census Bureau, 2007 NAICS Definitions, “334220 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing,” http://www.census.gov./cgi- bin/sssd/naics/naicsrch?code=334220&search=2007. 113 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodTy pe=table. 114 See id. 115 See 13 C.F.R § 121.201; U.S. Census Bureau, 2007 NAICS Definitions, “334310 Audio and Video Equipment Manufacturing,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=334310&search=2007. 116 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodTy pe=table. 117 See id. 118 Report and Order Section III.B.1. 119 Id. Section IV.A. 120 Id. Section III.B.1. Federal Communications Commission FCC 13-45 82 they have insufficient spot beam capacity.121 The Report and Order also adopts procedures for complaints alleging a violation of the emergency information rules.122 34. With regard to the apparatus requirements, there are certain provisions that would require covered entities to make a filing and, thus, to make and keep records of the filing. Specifically, the Report and Order permits parties to raise technical infeasibility as a defense to a complaint or, alternatively, to file a request for a ruling under Section 1.41 of the Commission’s rules before manufacturing or importing the product.123 Similarly, the Report and Order permits parties to raise achievability as a defense to a complaint alleging a violation of Section 203, or to seek a determination of achievability from the Commission before manufacturing or importing the apparatus.124 Pursuant to the Report and Order, a party may request a Commission determination of whether its apparatus is an exempt display-only video monitor, may request a waiver of the requirements for mobile digital television (“mobile DTV”), and may prospectively request a purpose-based waiver, which will be addressed on a case-by-case basis.125 Further, a covered entity that seeks to use an “alternate means” to comply with the apparatus requirements may file a request pursuant to Section 1.41 of the Commission’s rules for a determination that the proposed alternate means satisfies the statutory requirements.126 The Report and Order also adopts procedures for complaints alleging a violation of the emergency information and video description apparatus rules.127 F. Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 35. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.128 The NPRM invited comment on issues that had the potential to have significant impact on some small entities.129 36. These rules in certain instances may have a significant economic impact on some small entities. Although alternatives to minimize economic impact have been considered, we emphasize that our action is governed by the congressional mandate contained in Sections 202(a) and 203 of the CVAA. Specifically, the Report and Order declines to adopt alternative methods to make televised emergency information accessible to blind and visually impaired persons given the overwhelming support in the record for use of a secondary audio stream to achieve accessibility.130 For example, the Commission 121 Id. 122 Id. Section III.E. 123 Id. Section IV.B.2. 124 Id. 125 Id. Sections IV.B.2, IV.B.3. 126 Id. Section IV.C. 127 Id. Section IV.E. 128 5 U.S.C. § 603(c)(1)-(c)(4). 129 See NPRM, 27 FCC Rcd at 14756, Appendix B, ¶ 1. 130 Report and Order Section III.B.1. Federal Communications Commission FCC 13-45 83 considered alternatives that were considered but not recommended by the Video Programming Accessibility Advisory Committee (“VPAAC”),131 such as: (1) including a shortened audio version of the textual emergency information on the main program audio; or (2) broadcasting a five to ten second audio message on the main program audio after the three aural tones to inform individuals who are blind or visually impaired of a means by which they can access the emergency information, such as a telephone number or radio station.132 According to the VPAAC, these alternatives have disadvantages, including interruption to the main program audio that could be disruptive to viewers and the need for sufficient resources to create and manage the brief audio messages, and no commenters supported these proposals.133 The Commission also considered other alternatives that were considered but not recommended by the VPAAC such as “dipping” or lowering the main program audio and playing an aural message over the lowered audio, providing screen reader software or devices on request, enabling users to select and enlarge emergency crawl text, providing guidance for consumers, and using an Internet-based standardized application to filter emergency information by location.134 The VPAAC determined that these alternatives either did not meet the requirements of the CVAA, relied upon technology or services that are not widely available, or involved additional problems, and no commenters supported these proposals.135 Given the importance of providing accessible emergency information to blind and visually impaired consumers, the Report and Order also declines to create an exception from the requirements of the revised emergency information rule based on technical capability, but parties, including small entities, may petition for a waiver for good cause pursuant to Section 1.3 of the Commission’s rules.136 We note that many covered entities, including small entities, already provide or have the capability to pass through secondary audio streams, such that any economic impact will be minimized. 37. With regard to apparatus requirements, the Report and Order adopts procedures enabling the Commission to grant exemptions to the rules pursuant to Section 203 of the CVAA, where a petitioner has shown that compliance is not achievable (i.e., cannot be accomplished with reasonable effort or expense) or is not technically feasible.137 This exemption process will allow the Commission to address the impact of the rules on individual entities, including smaller entities, and to modify the application of the rules to accommodate individual circumstances. This will reduce the costs of compliance for these entities. As an additional means of reducing the costs of compliance, the Report and Order provides that parties may use alternate means of compliance to the rules adopted pursuant to Section 203 of the CVAA.138 Under this approach, the Commission will permit an entity that seeks to use an “alternate means” to comply with the apparatus requirements to file a request pursuant to Section 1.41 of the Commission’s rules for a determination that the proposed alternate means satisfies the statutory 131 The CVAA directed the Chairman of the Commission to establish an advisory committee known as the VPAAC, which was directed to develop a report that identifies performance objectives and recommends technical standards and other necessary regulations for the provision of emergency information and video description. Pub. L. No. 111- 260, § 201(a). 132 Report and Order Section III.B.1. 133 Id. 134 Id. 135 Id. 136 Id. 137 Id. Section IV.B.2. 138 Id. Section IV.C. Federal Communications Commission FCC 13-45 84 requirements, and the Commission will consider such requests on a case-by-case basis.139 Individual entities, including smaller entities, may benefit from these provisions. 38. Overall, we believe we have appropriately considered both the interests of individuals who are blind and visually impaired and the interests of the entities who will be subject to the rules, including those that are smaller entities, consistent with Congress’ goal to “update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.”140 G. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules 39. None. H. Report to Congress 40. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act.141 In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. The Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register.142 139 Id. 140 H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010); S.Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010). 141 See 5 U.S.C. § 801(a)(1)(A). 142 See id. § 604(b). Federal Communications Commission FCC 13-45 85 APPENDIX D Initial Regulatory Flexibility Analysis for the Further Notice 1. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),1 the Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) concerning the possible significant economic impact on small entities by the policies and rules proposed in the Further Notice of Proposed Rulemaking (“Further Notice”). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the item. The Commission will send a copy of the Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).2 In addition, the Further Notice and IRFA (or summaries thereof) will be published in the Federal Register.3 A. Need for, and Objectives of, the Proposed Rule Changes 2. The Further Notice4: ? Explores whether a multichannel video programming distributor (“MVPD”) service is covered by the emergency information rules adopted herein when an MVPD, as defined in the Commission’s rules, permits its subscribers to access linear video programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices; ? Explores whether an MVPD system must comply with the video description rules when it permits its subscribers to access linear video programming via tablets, laptops, personal computers, smartphones, or similar devices; ? Explores whether the Commission should impose a requirement that broadcast receivers detect and decode audio streams marked for the visually impaired, to ensure that consumers can find and locate those streams; and ? Explores whether the Commission should require covered entities to provide customer support services and contact information to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams. B. Legal Basis 3. The proposed action is authorized pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303, 330(b), 613, and 617. C. Description and Estimate of the Number of Small Entities to Which the Proposals Will Apply 4. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules if adopted.5 The RFA 1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract With America Advancement Act of 1996 (“CWAAA”). 2 See 5 U.S.C. § 603(a). 3 See id. 4 See Further Notice. Federal Communications Commission FCC 13-45 86 generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”6 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.7 A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).8 5. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of “Wired Telecommunications Carriers,” which is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”9 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees.10 Census data for 2007 shows that there were 31,996 establishments that operated that year.11 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.12 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 6. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission’s rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide.13 Industry data indicate that all but ten cable operators nationwide are small under this size standard.14 In addition, under the Commission’s rules, a “small system” is a cable system serving 15,000 or fewer subscribers.15 Industry data indicate that, of 6,101 systems nationwide, 4,410 systems have under 10,000 subscribers, and an (Continued from previous page) 5 5 U.S.C. § 603(b)(3). 6 Id. § 601(6). 7 Id. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 8 15 U.S.C. § 632. 9 U.S. Census Bureau, 2007 NAICS Definitions, 517110 Wired Telecommunications Carriers. 10 13 C.F.R. § 121.201; 2007 NAICS code 517110. 11 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 12 See id. 13 47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995). 14 See BROADCASTING & CABLE YEARBOOK 2010 at C-2 (2009) (data current as of Dec. 2008). 15 47 C.F.R. § 76.901(c). Federal Communications Commission FCC 13-45 87 additional 258 systems have 10,000-19,999 subscribers.16 Thus, under this standard, most cable systems are small. 7. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”17 The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.18 Industry data indicate that all but nine cable operators nationwide are small under this subscriber size standard.19 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million,20 and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 8. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.”21 The SBA has created the following small business size standard for Television Broadcasting firms: those having $14 million or less in annual receipts.22 The Commission has estimated the number of licensed commercial television stations to be 1,387.23 In addition, according to Commission staff review of the BIA Advisory Services, LLC’s Media Access Pro Television Database on March 28, 2012, about 950 of an estimated 1,300 commercial television stations (or approximately 73 percent) had revenues of $14 million or less.24 We therefore estimate that the majority of commercial television broadcasters are small entities. 9. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations25 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on 16 See TELEVISION & CABLE FACTBOOK 2009 at F-2 (2009) (data current as of Oct. 2008). The data do not include 957 systems for which classifying data were not available. 17 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn. 1-3. 18 47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001). 19 See BROADCASTING & CABLE YEARBOOK 2010 at C-2 (2009) (data current as of Dec. 2008). 20 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of the Commission’s rules. See 47 C.F.R. § 76.901(f). 21 U.S. Census Bureau, 2007 NAICS Definitions, “515120 Television Broadcasting,” http://www.census.gov./cgi- bin/sssd/naics/naicsrch?code=515120&search=2007. 22 13 C.F.R. § 121.201; NAICS code 515120. 23 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-311837A1.pdf. 24 We recognize that BIA’s estimate differs slightly from the FCC total given supra. 25 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.” 13 C.F.R. § 21.103(a)(1). Federal Communications Commission FCC 13-45 88 which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent. 10. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.26 These stations are non-profit, and therefore considered to be small entities.27 11. Direct Broadcast Satellite (“DBS”) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber’s location. DBS, by exception, is now included in the SBA’s broad economic census category, “Wired Telecommunications Carriers,”28 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.29 Census data for 2007 shows that there were 31,996 establishments that operated that year.30 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.31 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and EchoStar Communications Corporation (“EchoStar”) (marketed as the DISH Network).32 Each currently offers subscription services. DIRECTV33 and EchoStar34 each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider. 12. Satellite Telecommunications Providers. Two economic census categories address the satellite industry. The first category has a small business size standard of $15 million or less in average 26 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012, http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0106/DOC-311837A1.pdf. 27 See generally 5 U.S.C. §§ 601(4), (6). 28 See 13 C.F.R. § 121.201; 2007 NAICS code 517110. The 2007 NAICS definition of the category of “Wired Telecommunications Carriers” is in paragraph 5, above. 29 13 C.F.R. § 121.201; 2007 NAICS code 517110. 30 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 31 See id. 32 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Thirteenth Annual Report, 24 FCC Rcd 542, 580, ¶ 74 (2009) (“13th Annual Report”). We note that, in 2007, EchoStar purchased the licenses of Dominion Video Satellite, Inc. (“Dominion”) (marketed as Sky Angel). See Public Notice, “Policy Branch Information; Actions Taken,” Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007). 33 As of June 2006, DIRECTV is the largest DBS operator and the second largest MVPD, serving an estimated 16.20% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3. 34 As of June 2006, DISH Network is the second largest DBS operator and the third largest MVPD, serving an estimated 13.01% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3. As of June 2006, Dominion served fewer than 500,000 subscribers, which may now be receiving “Sky Angel” service from DISH Network. See id. at 581, ¶ 76. Federal Communications Commission FCC 13-45 89 annual receipts, under SBA rules.35 The second has a size standard of $25 million or less in annual receipts.36 13. The category of “Satellite Telecommunications” “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”37 Census Bureau data for 2007 show that 607 Satellite Telecommunications establishments operated for that entire year.38 Of this total, 533 establishments had annual receipts of under $10 million or less, and 74 establishments had receipts of $10 million or more.39 Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 14. The second category, i.e., “All Other Telecommunications,” comprises “establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.”40 For this category, Census Bureau data for 2007 shows that there were a total of 2,639 establishments that operated for the entire year.41 Of those 2,639 establishments, 2,333 operated with annual receipts of less than $10 million and 306 with annual receipts of $10 million or more.42 Consequently, the Commission estimates that a majority of All Other Telecommunications establishments are small entities that might be affected by our action. 15. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA’s broad economic census category, “Wired Telecommunications Carriers,”43 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.44 Census data for 2007 35 13 C.F.R. § 121.201; NAICS code 517410. 36 13 C.F.R. § 121.201; NAICS code 517919. 37 U.S. Census Bureau, 2007 NAICS Definitions, “517410 Satellite Telecommunications,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=517410&search=2007. 38 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ1&pro dType=table. 39 See id. 40 U.S. Census Bureau, 2007 NAICS Definitions, “517919 All Other Telecommunications,” http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search. 41 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&pro dType=table. 42 See id. 43 13 C.F.R. § 121.201; 2007 NAICS code 517110. 44 See id. Federal Communications Commission FCC 13-45 90 shows that there were 31,996 establishments that operated that year.45 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.46 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 16. Home Satellite Dish (“HSD”) Service. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled (free) programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers’ receipt of video programming. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of “Wired Telecommunications Carriers.”47 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees.48 Census data for 2007 shows that there were 31,996 establishments that operated that year.49 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.50 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 17. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).51 In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years.52 The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.53 45 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 46 See id. 47 13 C.F.R. § 121.201; 2007 NAICS code 517110. 48 See id. 49 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 50 See id. 51 Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act—Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10 FCC Rcd 9589, 9593, ¶ 7 (1995). 52 47 C.F.R. § 21.961(b)(1). 53 47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, the applicable standard is SBA’s small business size standard of 1,500 or fewer employees. Federal Communications Commission FCC 13-45 91 After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission’s rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas.54 The Commission offered three levels of bidding credits: (i) a bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid.55 Auction 86 concluded in 2009 with the sale of 61 licenses.56 Of the ten winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses. 18. In addition, the SBA’s placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, “Wired Telecommunications Carriers” have been defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”57 Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.58 For these services, the Commission uses the SBA small business size standard for Wired Telecommunications Carriers, which is 1,500 or fewer employees.59 Census data for 2007 shows that there were 31,996 establishments that operated that year.60 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.61 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. In addition to Census data, the Commission’s internal records indicate that as of September 2012, there are 2,241 active EBS licenses.62 54 Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, Public Notice, 24 FCC Rcd 8277 (2009). 55 Id. at 8296. 56 Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, Public Notice, 24 FCC Rcd 13572 (2009). 57 13 C.F.R. § 121.201; 2007 NAICS code 517110. 58 Id. 59 See id. 60 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 61 See id. 62 http://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp. Federal Communications Commission FCC 13-45 92 The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.63 19. Fixed Microwave Services. Microwave services include common carrier,64 private- operational fixed,65 and broadcast auxiliary radio services.66 They also include the Local Multipoint Distribution Service (LMDS),67 the Digital Electronic Message Service (DEMS),68 and the 24 GHz Service,69 where licensees can choose between common carrier and non-common carrier status.70 At present, there are approximately 31,428 common carrier fixed licensees and 79,732 private operational- fixed licensees and broadcast auxiliary radio licensees in the microwave services. There are approximately 120 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The Commission has not yet defined a small business with respect to microwave services. For purposes of the IRFA, we will use the SBA’s definition applicable to Wireless Telecommunications Carriers (except satellite)—i.e., an entity with no more than 1,500 persons.71 Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.72 For the category of “Wireless Telecommunications Carriers (except Satellite),”73 Census data for 2007 show that there were 11,163 firms that operated for the entire year.74 Of this total, 10,791 firms had employment of 999 or fewer employees and 372 had employment of 1,000 employees or more.75 Thus, under this category and the associated small business size standard, the majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. 63 The term “small entity” within SBREFA applies to small organizations (non-profits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. §§ 601(4)-(6). 64 See 47 C.F.R. Part 101, Subparts C and I. 65 See 47 C.F.R. Part 101, Subparts C and H. 66 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules. See 47 C.F.R. Part 74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay signals from a remote location back to the studio. 67 See 47 C.F.R. Part 101, Subpart L. 68 See 47 C.F.R. Part 101, Subpart G. 69 See id. 70 See 47 C.F.R. §§ 101.533, 101.1017. 71 13 C.F.R. § 121.201; 2007 NAICS code 517210. 72 See id. The now-superseded, pre-2007 C.F.R. citations were 13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS). 73 13 C.F.R. § 121.201; NAICS code 517210. 74 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. Available Census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 75 See id. Federal Communications Commission FCC 13-45 93 20. Open Video Systems. The open video system (“OVS”) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers.76 The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services,77 OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.”78 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees.79 Census data for 2007 shows that there were 31,996 establishments that operated that year.80 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.81 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. In addition, we note that the Commission has certified some OVS operators, with some now providing service.82 Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises.83 The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, at least some of the OVS operators may qualify as small entities. 21. Cable and Other Subscription Programming. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers.”84 The SBA has developed a small business size standard for this category, which is: all such firms having $15 million dollars or less in annual revenues.85 To gauge small business prevalence in the Cable and Other Subscription Programming industries, the Commission relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007 show that there were 659 establishments in this category that operated for the entire year.86 Of that number, 462 operated with annual revenues of $9,999,999 million dollars or less,87 and 197 operated with annual revenues of 10 76 47 U.S.C. § 571(a)(3)-(4). See 13th Annual Report, 24 FCC Rcd at 606, ¶ 135. 77 See 47 U.S.C. § 573. 78 U.S. Census Bureau, 2007 NAICS Definitions, http://www.census.gov./cgi-bin/sssd/naics/naicsrch. 79 13 C.F.R. § 121.201; 2007 NAICS code 517110. 80 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 81 See id. 82 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html. 83 See 13th Annual Report, 24 FCC Rcd at 606-07, ¶ 135. BSPs are newer firms that are building state-of-the-art, facilities-based networks to provide video, voice, and data services over a single network. 84 U.S. Census Bureau, 2007 NAICS Definitions, “515210 Cable and Other Subscription Programming,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch. 85 13 C.F.R. § 121.201; 2007 NAICS code 515210. 86 See http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ1&prod Type=table. 87 Id. Federal Communications Commission FCC 13-45 94 million or more.88 Thus, under this category and associated small business size standard, the majority of firms can be considered small. 22. Small Incumbent Local Exchange Carriers. We have included small incumbent local exchange carriers in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.”89 The SBA’s Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope.90 We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. 23. Incumbent Local Exchange Carriers (“LECs”). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category “Wired Telecommunications Carriers.” Under that size standard, such a business is small if it has 1,500 or fewer employees.91 Census data for 2007 shows that there were 31,996 establishments that operated that year.92 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.93 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. 24. Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared- Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category “Wired Telecommunications Carriers.” Under that size standard, such a business is small if it has 1,500 or fewer employees.94 Census data for 2007 shows that there were 31,996 establishments that operated that year.95 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.96 Thus, under this category and the associated small business size standard, the majority of such firms can be considered small. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities. 88 Id. 89 15 U.S.C. § 632. 90 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into its own definition of “small business.” See 15 U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. See 13 C.F.R. § 121.102(b). 91 13 C.F.R. § 121.201; 2007 NAICS code 517110. 92 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 93 See id. 94 13 C.F.R. § 121.201; 2007 NAICS code 517110. 95 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro dType=table. 96 See id. Federal Communications Commission FCC 13-45 95 25. Motion Picture and Video Production. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in producing, or producing and distributing motion pictures, videos, television programs, or television commercials.”97 We note that firms in this category may be engaged in various industries, including cable programming. Specific figures are not available regarding how many of these firms produce and/or distribute programming for cable television. The SBA has developed a small business size standard for this category, which is: all such firms having $29.5 million dollars or less in annual revenues.98 To gauge small business prevalence in the Motion Picture and Video Production industries, the Commission relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 9,095 firms in this category that operated for the entire year.99 Of these, 8,995 had annual receipts of $24,999,999 or less, and 100 had annual receipts ranging from not less than $25,000,000 to $100,000,000 or more.100 Thus, under this category and associated small business size standard, the majority of firms can be considered small. 26. Motion Picture and Video Distribution. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in acquiring distribution rights and distributing film and video productions to motion picture theaters, television networks and stations, and exhibitors.”101 We note that firms in this category may be engaged in various industries, including cable programming. Specific figures are not available regarding how many of these firms produce and/or distribute programming for cable television. The SBA has developed a small business size standard for this category, which is: all such firms having $29.5 million dollars or less in annual revenues.102 To gauge small business prevalence in the Motion Picture and Video Distribution industries, the Commission relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 450 firms in this category that operated for the entire year.103 Of these, 434 had annual receipts of $24,999,999 or less, and 16 had annual receipts ranging from not less than $25,000,000 to $100,000,000 or more.104 Thus, under this category and associated small business size standard, the majority of firms can be considered small. 27. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile 97 U.S. Census Bureau, 2007 NAICS Definitions, “512110 Motion Picture and Video Production,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=512110&search=2007. 98 13 C.F.R. § 121.201; 2007 NAICS code 512110. 99 See http://www.census.gov/econ/industry/ec07/a51211.htm (Subject Series: Establishment and Firm Size (national) – Table 4: Revenue Size of Firms for the U.S). 100 See id. 101 See U.S. Census Bureau, 2007 NAICS Definitions, “512120 Motion Picture and Video Distribution,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=512120&search=2007. 102 13 C.F.R. § 121.201; 2007 NAICS code 512120. 103 See http://www.census.gov/econ/industry/ec07/a51212.htm (Subject Series: Establishment and Firm Size (national) – Table 4: Revenue Size of Firms for the U.S). 104 See id. Federal Communications Commission FCC 13-45 96 communications equipment, and radio and television studio and broadcasting equipment.”105 The SBA has developed a small business size standard for “Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing,” which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were 919 establishments that operated for part or all of the entire year.106 Of those 919 establishments, 771 operated with 99 or fewer employees, and 148 operated with 100 or more employees.107 Thus, under that size standard, the majority of establishments can be considered small. 28. Audio and Video Equipment Manufacturing. The SBA has classified the manufacturing of audio and video equipment under in NAICS Codes classification scheme as an industry in which a manufacturer is small if it has less than 750 employees.108 Data contained in the 2007 Economic Census indicate that 491 establishments in this category operated for part or all of the entire year.109 Of those 491 establishments, 456 operated with 99 or fewer employees, and 35 operated with 100 or more employees.110 Thus, under the applicable size standard, a majority of manufacturers of audio and video equipment may be considered small. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 29. Certain proposals discussed in the Further Notice would affect reporting, recordkeeping, or other compliance requirements. 30. The Further Notice inquires whether, when an MVPD, as defined in the Commission’s rules, permits its subscribers to access linear video programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices, this service is covered by the emergency information rules adopted in the Report and Order.111 An MVPD may seek a waiver of the emergency information requirements for good cause pursuant to Section 1.3 of the Commission’s rules.112 An MVPD may also be required to respond to complaints alleging a violation of the emergency information rules and the emergency information and video description apparatus rules.113 31. The Further Notice also considers whether covered entities should provide customer support services that are specifically designed to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams.114 If the Commission adopts rules requiring the 105 See 13 C.F.R § 121.201; U.S. Census Bureau, 2007 NAICS Definitions, “334220 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing,” http://www.census.gov./cgi- bin/sssd/naics/naicsrch?code=334220&search=2007. 106 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodTy pe=table. 107 See id. 108 See 13 C.F.R § 121.201; U.S. Census Bureau, 2007 NAICS Definitions, “334310 Audio and Video Equipment Manufacturing,” http://www.census.gov./cgi-bin/sssd/naics/naicsrch?code=334310&search=2007. 109 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodTy pe=table. 110 See id. 111 See Further Notice. 112 See Report and Order Section III.B.1. 113 Id. Sections III.E, IV.E. 114 See Further Notice. Federal Communications Commission FCC 13-45 97 provision of such customer support services, covered entities may be required to keep records. For example, covered entities may be required to make available contact information for the receipt and handling of immediate emergency information or video description complaints or concerns during a program’s progress, and for the receipt and handling of written emergency information or video description complaints that do not raise immediate issues.115 E. Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 32. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.116 33. First, the Further Notice seeks comment on whether an MVPD service is covered by the emergency information rules adopted in the Report and Order when an MVPD, as defined in the Commission’s rules, permits its subscribers to access linear video programming that contains emergency information via tablets, laptops, personal computers, smartphones, or similar devices.117 The Further Notice considers whether there are technological hurdles, if any, that will prevent or impede the delivery of the secondary audio service on mobile devices and personal computers, and whether obligations should be shared between MVPDs and apparatus manufacturers.118 These considerations will allow the Commission to consider the impact of the requirements on covered entities, including smaller entities. 34. Second, the Further Notice seeks comment on whether an MVPD system must comply with the video description rules when it permits its subscribers to access linear video programming via tablets, laptops, personal computers, smartphones, or similar devices.119 We note that an MVPD is exempt from the pass-through requirement under the video description rules if it does not have the technical capability necessary to pass through the video description.120 Thus, this exemption is available to small entities that will face more than minimal costs to comply with the pass-through requirement. 35. Third, the Further Notice considers whether the Commission should impose a requirement that broadcast receivers detect and decode audio streams marked for the visually impaired, to ensure that consumers can find and locate those streams.121 The Further Notice considers the steps broadcasters and manufacturers would need to take to comply with such a requirement, and whether there are any other steps the Commission should take to ensure that the content of the secondary audio stream is 115 Id. 116 5 U.S.C. § 603(c)(1)-(c)(4). 117 See Further Notice. 118 Id. 119 Id. 120 Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 26 FCC Rcd 11847, 11860-62, ¶¶ 23-27 (2011). 121 See Further Notice. Federal Communications Commission FCC 13-45 98 properly tagged.122 These considerations will allow the Commission to address alternatives that can potentially minimize the burden and costs of compliance for covered entities, including smaller entities. 36. Fourth, the Further Notice considers whether the Commission should require covered entities to provide customer support services and contact information to assist consumers who are blind or visually impaired to navigate between the main and secondary audio streams.123 The Further Notice considers alternatives for the provision of customer support services, including whether such services should consist of a dedicated telephone number, an accessible chat feature on the covered entity’s website, or a different means by which regulated entities should provide customer support.124 The Further Notice also considers whether the Commission should require covered entities to make available contact information for the receipt and handling of immediate emergency information or video description complaints or concerns during a program’s progress, and for the receipt and handling of written emergency information or video description complaints that do not raise immediate issues, as in the television closed captioning context, or whether it should instead adopt contact information requirements comparable to those applicable to the IP closed captioning rules.125 Further, the Further Notice considers whether there other ways by which entities subject to the emergency information and apparatus requirements can best provide assistance to consumers who are blind or visually impaired with accessing the secondary audio stream.126 These considerations will allow the Commission to address alternatives that can potentially minimize the burden and costs of compliance for covered entities, including smaller entities. F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules 37. None. 122 Id. 123 Id. 124 Id. 125 Id. 126 Id. Federal Communications Commission FCC 13-45 99 STATEMENT OF COMMISSIONER MIGNON L. CLYBURN Re: 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, MB Docket No. 12-107; Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket No. 11-43 As we continue to meet our deadlines and objectives in implementing the 21st Century Communications and Video Accessibility Act, I once again applaud the staff of the FCC and our industry counterparts for yet another win. For far too long, Americans who are blind or visually impaired were at a severe disadvantage when it came to accessing and responding to emergency notifications transmitted over the television airwaves. But because of today’s action, those alerts previously delivered in a visual-only configuration will now also be made available in an audio format. Ensuring that the video equipment used by those who are blind and visually impaired is fully capable of transporting timely and important messages is critical, and I’m also extremely pleased that we have completed another significant step in our video description rulemakings. Federal Communications Commission FCC 13-45 100 STATEMENT OF COMMISSIONER JESSICA ROSENWORCEL Re: 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, MB Docket No. 12-107; Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket No. 11-43 Today the Commission takes another important step in implementing the groundbreaking Twenty-First Century Communications and Video Accessibility Act of 2010. When a tornado strikes, a chemical spill happens, or another disaster threatens, broadcasters are often the first to provide critical information to the public. They break into programming to broadcast warnings or run text crawls with important information during television shows. This dedication to their local communities is to be applauded and supported. But for the more than 21 million Americans who are blind or visually-impaired, access to televised emergency information is frequently curtailed. When the aural tone signifying emergency information is not followed with details accessible to this population, such individuals must go in search of a radio or another alternative to learn about the details of an event. We can and should do better for millions of people with disabilities in this country. That is why I am pleased to support today's Report and Order and Further Notice of Proposed Rulemaking, which requires that an aural presentation of emergency information that is provided visually in non-newscast programming be made available on a secondary audio stream. Americans who are blind or visually-impaired will be able to get access to and act upon important information without delay. Going forward, as technology advances and consumers access programming in new ways, we should make sure that public safety and access for people with disabilities remain a priority. As we continue to implement the Twenty-First Century Communications and Video Accessibility Act of 2010, I look forward to working with all stakeholders to expand access to communications technologies and opportunities across the nation. I appreciate the cooperation and hard work of the providers and distributors of video programming and applaud the tireless advocacy of the many champions in the disability community. Federal Communications Commission FCC 13-45 101 STATEMENT OF COMMISSIONER AJIT PAI Re: 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, MB Docket No. 12-107; Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket No. 11-43 It is a Commission priority to make a broad range of information accessible to individuals with disabilities, and emergency information is the most critical because it can make the difference between life and death. The steps we take today to make emergency information more accessible to those who are blind or visually impaired continue our implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010. I am therefore pleased to support this item. Three points, however, deserve further comment. First, we leave for another day the question of whether to grant waivers to small cable systems that lack the equipment to pass through emergency information on secondary audio streams for analog channels. I hope that the Media Bureau will look favorably upon such waiver requests; otherwise, there is a real risk that many small cable systems will shut down rather than bear the cost of complying with our rules. Such an outcome would be especially unfortunate for those living in rural America, including those who are blind or visually impaired. Second, my vote today should not be interpreted as an endorsement of the scope of the apparatus requirements set forth in our rules. In this item, we interpret Section 303(u)(1) of the Communications Act in the same manner as did the Commission in the IP Closed Captioning Order. Such consistency makes sense since the same statutory language should not mean one thing in the closed captioning context and another thing in the emergency information and video description context.1 That having been said, a petition for reconsideration of the IP Closed Captioning Order remains pending at the Commission that addresses whether removable media players are covered by Section 303(u)(1) and whether we should look only to a device’s capabilities to determine whether it falls within the scope of that statutory provision.2 I believe that petition for reconsideration is the appropriate vehicle for reassessing the scope of the apparatus requirements and, especially since I was not serving at the Commission at the time of the IP Closed Captioning Order, I will approach it with an open mind. Additionally, we should rule on that petition sooner rather than later. Third, I am pleased that the Further Notice of Proposed Rulemaking does not reach any tentative conclusions about how our emergency information rules apply where an MVPD permits subscribers to access linear video programming via devices such as tablets and smartphones. Any such tentative conclusions would have been premature. I look forward to reviewing the record that will be compiled on this difficult issue over the next few months. 1 Cf. Clark v. Martinez, 543 U.S. 371, 378 (2005) (“To give these same words a different meaning for each category would be to invent a statute rather than interpret one.”). 2 Petition for Reconsideration of the Consumer Electronics Association, MB Docket No. 11-154 (filed Apr. 30, 2012).