[Federal Register Volume 78, Number 101 (Friday, May 24, 2013)]
[Rules and Regulations]
[Pages 31769-31799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11577]



[[Page 31769]]

Vol. 78

Friday,

No. 101

May 24, 2013

Part V





Federal Communications Commission





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47 CFR Part 79





 Accessible Emergency Information; Apparatus Requirements for Emergency 
Information and Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010; Rule and 
Proposed Rule

Federal Register / Vol. 78 , No. 101 / Friday, May 24, 2013 / Rules 
and Regulations

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket Nos. 12-107, 11-43; FCC 13-45]


Accessible Emergency Information; Apparatus Requirements for 
Emergency Information and Video Description: Implementation of the 
Twenty-First Century Communications and Video Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: Pursuant to the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA''), the Commission adopts rules 
requiring video programming distributors and video programming 
providers (including program owners) to make televised emergency 
information accessible to individuals who are blind and visually 
impaired. The Commission also adopts rules requiring the manufacturers 
of devices that display video programming to ensure that certain 
apparatus are able to make available video description and accessible 
emergency information.

DATES: Effective June 24, 2013, except for Sec. Sec.  79.105(a), 
79.105(b)(3), and 79.105(b)(4), and revised Sec.  79.2(c), which 
contain information collection requirements that are not effective 
until approved by the Office of Management and Budget. The FCC will 
publish a document in the Federal Register announcing the effective 
date for those sections.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 13-45, adopted on April 8, 2013 and released on April 9, 
2013. The full text of this document is available for public inspection 
and copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street SW., Room CY-A257, 
Washington, DC 20554. This document will also be available via ECFS at 
http://fjallfoss.fcc.gov/ecfs/. Documents will be available 
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The 
complete text may be purchased from the Commission's copy contractor, 
445 12th Street SW., Room CY-B402, Washington, DC 20554. Alternative 
formats are available for people with disabilities (Braille, large 
print, electronic files, audio format), by sending an email to 
fcc504@fcc.gov or calling the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

    This document contains new or modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection requirements contained in this Report and Order 
as required by the Paperwork Reduction Act of 1995, Public Law 104-13. 
In addition, the Commission notes that pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), we previously sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees. We did not receive any 
comments specifically addressing this issue. In the present document, 
we have assessed the effects of the new requirements on small 
businesses, including those with fewer than 25 employees, in the Final 
Regulatory Flexibility Analysis (``FRFA'') below.

Summary of the Report and Order

I. Introduction

    1. Pursuant to the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA''), this Report and Order adopts 
rules requiring that emergency information \1\ 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 
owners to convey emergency information in a manner accessible to 
individuals who are blind or visually impaired. The Report and Order 
implements this mandate by requiring the use of a secondary audio 
stream \2\ to convey televised emergency information aurally, when such 
information is conveyed visually during programming other than 
newscasts, for example, in an on-screen crawl. 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 description \3\ services and accessible emergency 
information. 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

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programming providers, and program owners pursuant to section 202(a) of 
the CVAA. Specifically, we adopt rules that will:
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    \1\ 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 CFR 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 CFR 79.2(a)(2).
    \2\ 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.
    \3\ ``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 
CFR 79.3(a)(3).
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     Clarify that the new emergency information requirements 
apply to video programming provided by entities that are already 
covered by Sec.  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 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 Sec. Sec.  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 Sec. Sec.  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.

II. Background

    3. Section 202 of the CVAA directs the Commission to ``identify 
methods to convey emergency information (as that term is defined in 
[Sec.  ] 79.2 of title 47, Code of Federal Regulations) in a manner 
accessible to individuals who are blind or visually impaired.'' 47 
U.S.C. 613(g)(1). 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 [Sec.  ] 
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.'' 47 U.S.C. 613(g)(2). 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. 47 U.S.C. 303(u)(1), (z)(1).
    4. The CVAA directed the Chairman of the Commission to establish an 
advisory committee known as the Video Programming Accessibility 
Advisory Committee (``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. 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.\4\ The Commission released the NPRM 
in this proceeding in November 2012.\5\ In

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the NPRM, the Commission provided detailed background information 
regarding the 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. 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.\6\
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    \4\ 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+SUBMITTED+4-9-2012.pdf (``VPAAC Second Report: Access to Emergency 
Information'').
    \5\ 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, 77 FR 
70970 (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).
    \6\ 47 U.S.C. 613(g); Public Law 111-260, Sec.  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.
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    5. 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.'' \7\
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    \7\ 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'').
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III. Section 202 of the CVAA

A. Scope of the Emergency Information Rules

    6. At the outset, we determine that the emergency information 
requirements adopted in this proceeding will apply to video programming 
\8\ subject to Sec.  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,\9\ 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.'' \10\ This interpretation is supported 
by Congress's reference to television-based definitions of video 
programming distributors and providers in section 202 of the CVAA. 
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 [Sec.  ] 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.'' 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.\11\
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    \8\ The Commission's rules state that ``the definitions in 
Sec. Sec.  79.1 and 79.3 apply'' for purposes of Sec.  79.2. 47 CFR 
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.'' 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.'' Although Sec.  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.
    \9\ 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 Sec.  79.2(b) of our rules. 47 
CFR 79.2(b). See also 47 CFR 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 Sec.  79.2 
when providing video programming via mobile DTV apparatus.
    \10\ As noted above, the Commission's rules state that for 
purposes of Sec.  79.2, ``the definitions in Sec. Sec.  79.1 and 
79.3 apply.'' 47 CFR 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 Sec.  
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.'' In the NPRM, we proposed that the emergency 
information rules would continue to apply only to television 
broadcast services and MVPD services. 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.''
    \11\ Although section 613(g)(2) also refers to ``program 
owners,'' a term that is not defined separately in Sec.  79.1 of the 
Commission's rules, we note that the definition of ``video 
programming provider'' in Sec.  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 CFR 
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.
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    7. Although consumer groups urge the Commission to find that the 
rules extend more broadly to all Internet protocol (``IP'')-delivered 
video programming, 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. In 
addition, NAB observes that legal, practical, and 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. 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.\12\ 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'') like Netflix and Hulu.\13\ We recognize, 
however,

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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.
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    \12\ We also note that Sec.  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 CFR 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.
    \13\ 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. We also note that in the Further Notice 
of Proposed Rulemaking (``FNPRM'') adopted with the Report and Order 
and published elsewhere in this publication, 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. At this time, however, we find that 
the emergency information rules do not apply to video programming 
available for viewing on an Internet Web site, even if such 
programming is provided by a covered entity.
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    8. We also adopt the NPRM's conclusion that the emergency 
information rule in Sec.  79.2 applies more broadly than the 
regulations governing the Emergency Alert System (``EAS''), which are 
found in Part 11 of our rules. 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 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. The EAS has its own guidelines 
and requirements for message content and transmission. In contrast, 
Sec.  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. We agree with the National Cable 
& Telecommunications Association (``NCTA'') that the accessibility of 
televised emergency information required under Sec.  79.2 is a separate 
matter from an activation of the EAS as governed by Part 11 of our 
rules. 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. 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 
Sec.  79.2(a)(2) outside the context of an EAS activation, it must 
comply with the requirements of Sec.  79.2.

B. Accessible Emergency Information Requirements

    9. 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. 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. 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 or visually 
impaired through the aural presentation in the main program audio 
stream. 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.'' \14\ 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.\15\
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    \14\ 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.
    \15\ See infra Section III.C; 47 U.S.C. 613(g)(2). We also make 
a non-substantive change to Sec. Sec.  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. 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.
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1. Requirements Applicable to Emergency Information Provided Visually 
During Non-Newscast Programming
    10. 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.\16\ We note that 
the VPAAC recommended the use of a secondary audio stream to provide 
accessible emergency information. 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 familiarity with accessing this stream for video 
description services. 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. 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. 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. As a result, individuals who 
are blind or visually impaired may have inadequate or untimely access 
to the critical details

[[Page 31774]]

of an emergency in the local viewing area.
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    \16\ 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 Sec. Sec.  
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.'' No commenter 
takes issue with this proposed change. Further, in Sec.  
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.'' 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.
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    11. 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. 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. 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. 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.
    12. 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 information 
presented during non-newscast programming. 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, and there are 
few technical impediments to passing through aural emergency 
information on a secondary audio stream. Moreover, consumers who are 
blind or visually impaired have familiarity with using the secondary 
audio stream to access video description.
    13. 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 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.\17\ 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. 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.
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    \17\ 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 Innovation in the Broadcast 
Television Bands: Allocations, Channel Sharing and Improvements to 
VHF, Report and Order, 77 FR 30423 (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, para., 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.
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    14. 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. 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. NAB argues that use of TTS should not be mandated, 
however, because while TTS may be useful, it may not be the best method 
to effectively convey emergency information in all circumstances. 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.''
    15. 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. 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. 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.\18\ 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.
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    \18\ A covered entity's de minimis failure to comply with the 
quality standards will not be treated as a violation of the 
regulations.
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    16. 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 necessary to make a secondary audio stream available 
by the two-year compliance deadline adopted below.\19\

[[Page 31775]]

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. 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. Some commenters 
support the inclusion of a technical capability exception. 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.'' 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. 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.'' 
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.\20\
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    \19\ We note all covered entities may petition for a waiver of 
these requirements for good cause pursuant to Sec.  1.3 of our 
rules. See 47 CFR 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.
    \20\ 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 CFR 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.
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    17. At the same time, however, we note that DISH Network L.L.C. 
(``DISH Network'') and 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. 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.'' 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. 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. 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.\21\
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    \21\ 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. 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.''
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    18. We require DBS providers to pass through the secondary audio 
streams of all stations that provide aural emergency information 
pursuant to our revised rule.\22\ 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 existing waiver process is an 
appropriate mechanism to address such concerns.\23\ 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. We believe that the general waiver approach, rather 
than the ``streamlined'' waiver procedure suggested by DIRECTV,\24\ 
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 Sec.  76.66(j) of the Commission's rules. 
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 
Sec.  76.66(j). This makes our adopting the streamlined waiver 
procedure proposed by DIRECTV in this proceeding inappropriate because 
the issue regarding compliance with Sec.  76.66(j) of our rules has not 
properly been raised in this, or any, pending proceeding.
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    \22\ 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.''
    \23\ 47 CFR 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.
    \24\ 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 [Sec.  ] 
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.''
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    19. 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

[[Page 31776]]

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.'' ACA filed a subsequent ex parte letter in which it 
further 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.'' 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. Should ACA choose to 
file a subsequent request for waiver or extension of time, we delegate 
authority to the Media Bureau to address such a request. 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.
    20. 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.\25\ There is little support in the record for these proposals. 
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, 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.
---------------------------------------------------------------------------

    \25\ 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.
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    21. 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 Common 
Alerting Protocol (``CAP'') messages to refreshable Braille devices. 
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. According to Consumer 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.\26\ 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.\27\ Given the importance of these issues, the 
Commission will consider in the future what can be done to better serve 
this community.
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    \26\ 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. 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.
    \27\ In addition, we do not address here Consumer Groups' 
suggestion that we revise Sec.  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 Closed 
Captioning of Video Programming, Telecommunications for the Deaf, 
Inc., Petition for Rulemaking, Notice of Proposed Rulemaking, 70 FR 
56150 (2005).
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    22. Content of Emergency Information. We do not require a verbatim 
aural translation of textual emergency information. 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 Sec.  79.2(a)(2).\28\ We note that this requirement is consistent 
with the VPAAC's recommendation on this issue. NAB, Kelly Pierce, The 
Weather Channel, and Verizon agree that the

[[Page 31777]]

rules should not require a verbatim translation. In particular, NAB 
argues that broadcasters should have editorial discretion in the aural 
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. 
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. 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.'' 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 Sec.  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.
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    \28\ 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 CFR 79.2(a)(2).
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    23. 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). 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 Sec.  79.2(a)(2).\29\ 
We disagree with NAB's contention that the rules should 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.'' 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.
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    \29\ 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. 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. 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 CFR 35.160(a)(1). As noted above, 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.
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    24. 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. 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. 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, 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.
    25. Priority of Emergency Information. We find that emergency 
information should be prioritized over all other content on the 
secondary audio stream. Thus, we revise Sec.  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.\30\ Commenters 
resoundingly support having emergency information take priority over 
video description or any other content that may be present on the 
secondary audio

[[Page 31778]]

stream.\31\ 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. 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. In accordance with 
the VPAAC's recommendation, we delete the proscription against 
emergency information blocking video description. In the NPRM, we 
proposed to amend Sec.  79.2(b)(3)(ii) of the current rule to read: 
``Any video description provided should not block any emergency 
information.'' 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.\32\ Thus, we require covered 
entities to ensure that aural emergency information provided in 
accordance with Sec.  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. This change is consistent with the VPAAC's recommendation 
and with the record, which support prioritizing emergency information.
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    \30\ NAB argues ``that a video-described program intended to 
count toward a broadcaster's quarterly requirement will still count, 
even if it is interrupted by an aural conveyance of emergency 
information that appears in an on-screen crawl.'' 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.
    \31\ 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 CFR 
79.2(a)(2), 79.3(b).
    \32\ 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 CFR 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 
means other than closed captioning''). Although we make no 
substantive changes to Sec.  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), Sec.  
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).
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    26. 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. 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.
    27. 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, 
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. On 
the other hand, AT&T argues that covered entities should have the 
flexibility to educate customers on use of the secondary audio stream, 
and NCTA contends that additional rules in this area are unnecessary 
because ``cable operators currently provide customer support for 
handling video description concerns.'' Given the lack of detailed 
comment on this issue, we seek further comment in the FNPRM. 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 Web 
sites and in other informational materials distributed to the public.
2. Definition of Emergency Information
    28. We do not make any substantive revisions to the current 
definition of emergency information. Emergency information is defined 
in Sec.  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.'' 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.'' 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.'' In the NPRM, we 
asked whether the definition of emergency information should be updated 
to include additional examples of emergencies. Of the two commenters 
who address this issue, NCTA indicates that the Commission should not 
expand the definition, and NAB proposes narrowing the definition ``to 
strike an appropriate balance'' with other services provided on the 
secondary audio stream. 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.\33\ Given that no party favors 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

[[Page 31779]]

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.
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    \33\ 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 Sec.  
79.2(a)(2), because such categories are ``helpful, but not 
critical.'' NAB argues that such a revision will ``ensure that video 
described programming is not continuously disrupted during 
significant weather events.'' NAB also asks the Commission to 
specify that ``the emergency crawls to be aurally transcribed under 
the new rules will be generally limited to locally-provided (i.e., 
licensee-provided) information.'' We do not think it is necessary to 
adopt NAB's proposed specification because the rule currently states 
that Sec.  79.2 ``applies to emergency information primarily 
intended for distribution to an audience in the geographic area in 
which the emergency is occurring.'' 47 CFR 79.2(b)(2).
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    29. 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. 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.
    30. 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 Sec.  79.2(a)(2). 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.\34\ However, given the 
potential length of information about school closings and school bus 
schedule changes and therefore its potential to interfere with video 
description,\35\ we find that, during a video-described program, 
covered entities have the option to air a 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.
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    \34\ 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.
    \35\ 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.
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C. Responsibilities of Entities Subject to Section 202(a) of the CVAA

    31. Congress directed the Commission to ``require video programming 
providers and video programming distributors (as those terms are 
defined in [Sec.  ] 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.'' 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. We address each of those 
issues in turn below.
    32. Definition of Video Programming Providers and Video Programming 
Distributors. We apply the current definitions for ``video programming 
distributor'' and ``video programming provider'' in Sec.  79.1 to the 
emergency information rule, and we find that it is unnecessary to 
create a separate definition for ``program owner.'' \36\ 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'' Sec.  79.1 of the Commission's rules and, 
accordingly, we need not create new definitions for those terms. NAB 
supports this approach. However, section 202(a) also references 
``program owners'' without defining this term. In the NPRM, we 
explained that the definition of ``video programming provider'' in 
Sec.  79.1 includes but is not limited to a ``broadcast or nonbroadcast 
television network and the owners of such programming.'' 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 Sec.  79.1 encompasses program 
owners. 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 captioning context. 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.'' 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. 
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.\37\ 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.
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    \36\ 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 Sec.  
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 CFR 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. 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).
    \37\ 47 CFR 79.1(a)(3) (emphasis added).
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    33. Obligations of Video Programming Providers and Video 
Programming Distributors. We revise the emergency information rule to 
include video

[[Page 31780]]

programming providers as defined in Sec.  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, 
Sec.  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. 
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. 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. 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 specified in section 202.
    34. The record reflects support for allocating responsibility among 
each of the entities specified in section 202. 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. 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. 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. This description of the roles of the 
various entities was not disputed in the record.
    35. 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 Sec.  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.\38\ Second, we 
find that 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. 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.\39\ 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.
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    \38\ 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 Sec.  
79.2 and embeds it in non-newscast programming, it should also be 
responsible for making the visual emergency information aurally 
accessible.
    \39\ 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. We 
believe our rules address these concerns because they assign 
liability for non-compliance based on each covered entity's acts or 
omissions. 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.
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D. Compliance Deadlines

    36. 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. Few 
commenters discuss the appropriate compliance deadline, with ACB 
suggesting a one year deadline and NAB suggesting a phased-in approach 
ranging from 36 months to 42 months. While we note ACB's explanation 
that there is an existing infrastructure for providing content via the 
secondary audio channel, we also find that even stations that already 
use a secondary audio stream may 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.\40\ 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. 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.
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    \40\ 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. However, we note that at least one entity already has 
developed software that turns characters input as an image into 
text.
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    37. 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

[[Page 31781]]

provider covered by the revised emergency information rule. 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'' devices 
\41\ in cable headends throughout the country, with six different 
generations of these devices in service. While the most recent models 
are capable of providing emergency information aurally, none is 
currently capable of using a secondary audio stream to do so.\42\ The 
Weather Channel estimates that it would need at least 30 months to 
comply with the requirements adopted herein for cable systems.
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    \41\ 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.''
    \42\ 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.
---------------------------------------------------------------------------

    38. 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.\43\ 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. 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.
---------------------------------------------------------------------------

    \43\ 47 CFR 1.3.
---------------------------------------------------------------------------

    39. 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. 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--during many alerts.'' At the 
end of the waiver period,\44\ we require The Weather Channel to be 
fully compliant with the emergency information rules adopted herein for 
all of its programming on cable systems.
---------------------------------------------------------------------------

    \44\ The waivers will expire 30 months from the date of Federal 
Register publication.
---------------------------------------------------------------------------

    40. 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.\45\ 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.'' 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.'' \46\ 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 
challenges'' because it ``transmits national cable channel[s] on a 
nationwide satellite beam.'' Second, DIRECTV states that it would need 
three years to ``enable a majority of its set-top boxes with . . . 
emergency audio capability.'' Third, DIRECTV reports that this 
functionality cannot be implemented on all DIRECTV set-top boxes. 
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.'' \47\
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    \45\ 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. Subscribers are able to do this by accessing an 
interactive application via their remote control. 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.'' 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.''
    \46\ 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.
    \47\ DIRECTV proposes to pre-load audio messages in many of its 
set-top boxes that will ``capture the nature of the weather 
emergency.'' 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. 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.
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    41. For the various reasons enumerated by DIRECTV, we grant DIRECTV 
a 12-month waiver beyond

[[Page 31782]]

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. 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 . . . .'' 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.
    42. 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.\48\ At a minimum, consistent with 
DIRECTV's proposal, we require the aural version of the emergency 
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. 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.''
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    \48\ 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.
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    43. 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. 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.\49\
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    \49\ 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, 76 FR 26641, 26642-43, 
para., 7 (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'').
---------------------------------------------------------------------------

    44. 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. 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.'' 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.\50\
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    \50\ 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 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.'' Public Law 111-260, Sec.  205(b)(6)(A)(ii).
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E. Complaint Procedures

    45. We revise the complaint procedures for emergency information 
contained in Sec.  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.\51\ In the NPRM, the 
Commission asked if its proposal to amend the emergency information 
requirements in Sec.  79.2 of the Commission's rules necessitates 
changes to the existing complaint procedures. No commenter addresses 
this issue. Because we are revising the rule to include video 
programming providers as responsible parties, we revise Sec.  79.2(c) 
to indicate that complaints can be filed against video programming 
providers, as well as video programming distributors.
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    \51\ The Consumer and Governmental Affairs Bureau reserves the 
discretion to refer complaints that reveal a pattern of 
noncompliance to the Commission's Enforcement Bureau.
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    46. 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 email, audio-cassette recording, 
and Braille, or some other method that would best accommodate

[[Page 31783]]

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.

IV. Section 203 of the CVAA

    47. 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. The Commission must prescribe 
these requirements by October 9, 2013. The section 203 regulations we 
adopt must include ``any technical standards, protocols, and procedures 
needed for the transmission of'' video description and emergency 
information. 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 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.

A. Apparatus Requirements for Emergency Information and Video 
Description

    48. 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, Sec.  79.2 of this Part]) 
in a manner that is accessible to individuals who are blind or visually 
impaired.'' \52\ It is our understanding that most apparatus subject to 
the rules already comply with these requirements. 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.
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    \52\ 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.
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1. Performance and Display Standards
    49. 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. . . .'' 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.\53\ 
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 manufacturers 
develop improved means of decoding and making available the secondary 
audio stream. Our record-based understanding 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. 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.\54\
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    \53\ 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.
    \54\ 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, 76 FR 82354 (2011) (``ACS 
Order'').
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    50. 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.\55\ In the NPRM, we sought comment on 
whether apparatus should have the capability to make textual emergency 
information audible through the use of TTS. 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. 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.
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    \55\ 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. 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 Sec.  79.2 of our rules will apply to an entity's 
use of the TTS capability in the apparatus. This approach is 
supported by the fact that it is the entities subject to Sec.  79.2 
of our rules who are obligated to create the aural version of the 
emergency information, and not the apparatus.
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2. Recording Devices
    51. 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

[[Page 31784]]

provision of ``video description signals, and emergency information (as 
that term is defined in [Sec.  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.'' 
\56\ 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. 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. 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.\57\ 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.'' 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 occurs 
automatically, it is unnecessary to require that consumers be permitted 
to choose whether to record a secondary audio stream.
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    \56\ 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.''
    \57\ We disagree, however, with arguments that the Commission 
need not prescribe any recording device requirements because of 
current compliance. 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.
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    52. 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. 
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, 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. 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. 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.'' 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
    53. 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. Although expressly raised in the 
NPRM, 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, and NCTA contends 
that additional rules in this area are unnecessary because ``cable 
operators currently provide customer support for handling video 
description concerns.'' Given the lack of detailed comment on this 
issue, we seek further comment in the FNPRM. 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 Web sites and 
in other informational materials distributed to the public.
4. Interconnection Mechanisms
    54. 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.'' 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. 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.'' 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
    55. 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 FNPRM.
    56. First, the NPRM sought comment on whether the Commission should 
impose a requirement that broadcast

[[Page 31785]]

receivers detect and decode tracks marked for the ``visually 
impaired.'' 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.\58\ The Commission also cited 
comments indicating that many legacy televisions may be compatible only 
with audio streams tagged as ``complete main'' (``CM''). 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. 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. 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 
FNPRM. 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, and we expect voluntary standards setting bodies to explore how 
best to impose a consistent tagging scheme.
---------------------------------------------------------------------------

    \58\ See Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Report 
and Order, 76 FR 55585 (2011) (``2011 Video Description Order''). 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.
---------------------------------------------------------------------------

    57. 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. 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. 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.\59\ We agree, and 
thus we do not address this issue here.
---------------------------------------------------------------------------

    \59\ Some commenters also discuss the issue of making surround 
sound available on the secondary audio stream. One commenter 
supports such a requirement. Others explain that capacity 
constraints would lead to difficulty in providing two full surround 
sound audio streams.
---------------------------------------------------------------------------

    58. 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. In 
the 2011 Video Description Order, the Commission noted that such 
limitations may prevent some viewers from accessing a third audio 
channel, even if a video programming distributor provides such a 
channel. CEA and NAB explain that we should not address these equipment 
limitations in this proceeding, particularly given the statutory 
deadlines imposed by the CVAA.\60\ 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.'' 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. 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.
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    \60\ Other commenters also object to Commission-mandated 
technical standards with respect to the provision of multiple audio 
services.
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B. Apparatus Subject to Section 203 of the CVAA

1. General Scope of the Apparatus Requirements
    59. 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 Sec.  79.2) and 
our existing video description rules (as set forth in Sec.  79.3).\61\ 
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.'' 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. 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 Sec.  79.1 of its rules, which includes more 
than just broadcasters and MVPDs. 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.'' 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

[[Page 31786]]

is subject to the jurisdiction of the Commission.''
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    \61\ See 47 CFR 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 
Sec. Sec.  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. 
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 Web 
site, 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 FNPRM 
poses additional questions about applicability of the requirements 
adopted herein to mobile devices. As explained herein, the apparatus 
requirements adopted herein apply to mobile DTV apparatus.
---------------------------------------------------------------------------

    60. We disagree with Consumer Groups' contention that the apparatus 
rules should apply as broadly here as they did in the IP closed 
captioning proceeding.\62\ 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.'' However, given the current scope of 
Sec. Sec.  79.2 and 79.3 of our rules, 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 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 Sec. Sec.  79.2 and 79.3 of our rules, i.e., video 
programming provided by entities subject to those rules.\63\
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    \62\ We find unpersuasive Consumer Groups' claim that ``the fact 
that programming is not required to be made accessible under 
[s]ection 202 or other law does not excuse apparatus manufacturers 
from their obligations to render accessibility information pursuant 
to [s]ection 203(a).'' 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 Closed 
Captioning of Internet Protocol-Delivered Video Programming: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Report and Order, 77 FR 46632 (2012) 
(``IP Closed Captioning Order''). 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.
    \63\ 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. 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.
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    61. 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. 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.'' As in its petition for reconsideration of the IP Closed 
Captioning Order, 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.\64\ 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.'' \65\ 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.'' \66\ We 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.
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    \64\ 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).
    \65\ 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 Petition for Reconsideration of the Consumer 
Electronics Association, MB Docket No. 11-154, at 8 (filed Apr. 30, 
2012) (``CEA Recon. Petition''). 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.
    \66\ 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 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. 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.
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2. Interpretation of Statutory Terms Incorporated in the Commission's 
Apparatus Requirements
    62. 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.
    63. 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.'' 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. 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. 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. We disagree, because such 
an approach would allow the manufacturer unilaterally to dictate 
whether an apparatus falls within the

[[Page 31787]]

scope of the rules, which could harm consumers by making compliance 
with the apparatus emergency information and video description 
requirements effectively voluntary. 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.
    64. 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.'' 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. 
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. 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.
    65. 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.'' 
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. We further 
proposed that it would not be sufficient to show that compliance is 
merely difficult. 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. 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. 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 to file a request for a ruling under 
Sec.  1.41 of the Commission's rules as to technical infeasibility 
before manufacturing or importing the product.
    66. 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. 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).'' \67\ 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.''
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    \67\ 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 [s]ection 203(b) and 
therefore'' are subject to the requirements that the CVAA imposes on 
recording devices.
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    67. 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. We also proposed to model the 
scope of the achievability exception on the IP Closed Captioning Order. 
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. 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. When faced with a complaint for a violation of the 
requirements adopted herein pursuant to section 203 of the 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. 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. 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.
    68. 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. 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

[[Page 31788]]

multiple purposes, capable of receiving or playing video programming 
transmitted simultaneously with sound but whose essential utility is 
derived from other purposes.'' 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. 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.'' 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. We expect that over time, Commission precedent in 
this area will prove instructive to both manufacturers and consumers. 
As in the ACS Order, 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. 
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 accessible emergency information when 
evaluating a manufacturer's request for waiver of compliance with the 
requirements adopted in this proceeding.\68\
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    \68\ We note that one consumer commenter objects to any waivers 
based on primary purpose or essential utility. We reject this 
argument because these waivers are statutorily-based.
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3. Application of the Apparatus Requirements to Certain Categories of 
Apparatus
    69. 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.
    70. 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. 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. 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. 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. 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. 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 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). 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,\69\ 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.\70\
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    \69\ 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 through 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).
    \70\ 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. 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. 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.
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    71. 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. Notably, no commenter objects to 
this proposal. Congress intended the Commission's regulations to cover 
apparatus that are used by consumers. 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 professional 
or commercial equipment is accessible to employees with disabilities 
\71\ or enables the delivery of accessible services.\72\
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    \71\ 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 through 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.
    \72\ See, for example, Part A of Title II and Title III of the 
ADA. 42 U.S.C. 12131 through 12134, 12181 through 12189.
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    72. 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)].'' 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

[[Page 31789]]

exemption. 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 Sec.  1.41 of the Commission's rules.
    73. 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 Sec. Sec.  79.2 
and 79.3 of our rules. 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.'' 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. 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.

C. Alternate Means of Compliance

    74. We implement a similar approach to alternate means of 
compliance to the approach we adopted in the IP Closed Captioning 
Order. 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. 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. We received very little comment on our 
implementation of this provision. 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 Sec.  1.41 of our rules. 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. 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

    75. 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, nor did the VPAAC recommend a 
compliance deadline. The NPRM sought comment on an appropriate deadline 
and we received comments from ACB and some industry commenters on this 
issue. While ACB supports a compliance deadline of no more than 18 
months, there is widespread industry support for a deadline of two 
years from the date of Federal Register publication. 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. 
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.
    76. 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. In the present proceeding, CEA similarly 
argues that the Commission should add explanatory notes to Sec. Sec.  
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. We find that this approach would be consistent with the 
Commission's past practices regarding similar equipment deadlines. 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. 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

[[Page 31790]]

address such situations would impose compliance costs with little 
practical benefit. For these reasons, we add explanatory notes to 
Sec. Sec.  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

    77. 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.\73\ As proposed in the NPRM and consistent with the apparatus 
complaint procedures adopted in the IP Closed Captioning Order, 
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; \74\ (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 
Bureau \75\ by any reasonable means, such as the Commission's online 
informal complaint filing system,\76\ letter in writing or Braille, 
facsimile transmission, telephone (voice/TRS/TTY), email, or some other 
method that would best accommodate the complainant's disability. Given 
that the population intended to benefit from the rules adopted herein 
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.
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    \73\ 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. 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.
    \74\ 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.
    \75\ The Consumer and Governmental Affairs Bureau reserves the 
discretion to refer complaints that reveal a pattern of 
noncompliance to the Commission's Enforcement Bureau.
    \76\ Kelly Pierce asserts that the word limit for electronically 
filed consumer complaints is ``completely inadequate.'' 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.
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    78. 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 Web 
site.\77\
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    \77\ 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. 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.
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V. Procedural Matters

A. Final Regulatory Flexibility Analysis

    79. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\78\ an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rulemaking in 
this proceeding.\79\ 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.\80\
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    \78\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 through 612, 
has been amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (``SBREFA''), Public Law 104-121, Title II, 110 
Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract 
With America Advancement Act of 1996 (``CWAAA'').
    \79\ 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, 77 FR 
70970 (2012) (``NPRM'').
    \80\ See 5 U.S.C. 604.
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1. Need for, and Objectives of, the Report and Order
    80. Pursuant to the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA''), the Report and Order adopts rules 
requiring that emergency information 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 owners to convey 
emergency information in a manner accessible to individuals who are 
blind or visually impaired. The Report and Order implements this 
mandate by requiring the use of a secondary audio stream to convey 
televised emergency information aurally, when such information is 
conveyed visually during programming other than newscasts, for example, 
in an on-screen crawl. 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 description services 
and accessible emergency information. 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

[[Page 31791]]

video description services. We understand that most apparatus subject 
to the rules already comply with these requirements.
    81. 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 
Sec.  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
     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.
    82. 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 Sec. Sec.  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 Sec. Sec.  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.
2. Legal Basis
    83. The authority for the action taken in this rulemaking is 
contained in the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Public Law 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.
3. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    84. No comments were filed in response to the IRFA.
4. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    85. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted in the Report and Order.\81\ The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \82\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\83\ 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'').\84\
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    \81\ 5 U.S.C. 603(b)(3).
    \82\ Id. 601(6).
    \83\ 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.''
    \84\ 15 U.S.C. 632.
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    86. 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.'' The SBA has developed a small business size standard 
for this category, which is: All such firms having 1,500 or fewer 
employees. Census data for 2007 shows that there

[[Page 31792]]

were 31,996 establishments that operated that year. Of those 31,996, 
1,818 operated with more than 100 employees, and 30,178 operated with 
fewer than 100 employees. Thus, under this category and the associated 
small business size standard, the majority of such firms can be 
considered small.
    87. 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. Industry data 
indicate that all but ten cable operators nationwide are small under 
this size standard. In addition, under the Commission's rules, a 
``small system'' is a cable system serving 15,000 or fewer subscribers. 
Industry data indicate that, of 6,101 systems nationwide, 4,410 systems 
have under 10,000 subscribers, and an additional 258 systems have 
10,000-19,999 subscribers. Thus, under this standard, most cable 
systems are small.
    88. 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.'' 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. Industry 
data indicate that all but nine cable operators nationwide are small 
under this subscriber size standard. 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, and therefore we are unable to estimate more 
accurately the number of cable system operators that would qualify as 
small under this size standard.
    89. 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.'' The SBA has created the 
following small business size standard for Television Broadcasting 
firms: Those having $14 million or less in annual receipts. The 
Commission has estimated the number of licensed commercial television 
stations to be 1,387. 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. We therefore estimate that the majority of commercial 
television broadcasters are small entities.
    90. We note, however, that in assessing whether a business concern 
qualifies as small under the above definition, business (control) 
affiliations 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 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.
    91. In addition, the Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 396. 
These stations are non-profit, and therefore considered to be small 
entities.
    92. 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,'' 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. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. 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). Each currently offers subscription services. DIRECTV and 
EchoStar 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.
    93. 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 annual 
receipts, under SBA rules. The second has a size standard of $25 
million or less in annual receipts.
    94. 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.'' Census Bureau data for 2007 show that 607 
Satellite Telecommunications establishments operated for that entire 
year. Of this total, 533 establishments had annual receipts of under 
$10 million or less, and 74 establishments had receipts of $10 million 
or more. Consequently, the Commission estimates that the majority of 
Satellite Telecommunications firms are small entities that might be 
affected by our action.
    95. 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.'' For this category, 
Census Bureau data for 2007 shows that there were a total of 2,639 
establishments that operated for the entire year. 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. 
Consequently, the Commission estimates that a majority of All Other 
Telecommunications

[[Page 31793]]

establishments are small entities that might be affected by our action.
    96. 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,'' 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. Census data 
for 2007 shows that there were 31,996 establishments that operated that 
year. Of those 31,996, 1,818 operated with more than 100 employees, and 
30,178 operated with fewer than 100 employees. Thus, under this 
category and the associated small business size standard, the majority 
of such firms can be considered small.
    97. 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.'' The SBA has developed a small business 
size standard for this category, which is: All such firms having 1,500 
or fewer employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. Thus, under this category and the associated small business 
size standard, the majority of such firms can be considered small.
    98. 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)). 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. 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. 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. 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. Auction 86 concluded in 2009 
with the sale of 61 licenses. 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.
    99. 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.'' 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. For these services, the Commission uses the SBA small 
business size standard for Wired Telecommunications Carriers, which is 
1,500 or fewer employees. Census data for 2007 shows that there were 
31,996 establishments that operated that year. Of those 31,996, 1,818 
operated with more than 100 employees, and 30,178 operated with fewer 
than 100 employees. 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. 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.
    100. Fixed Microwave Services. Microwave services include common 
carrier, private-operational fixed, and broadcast auxiliary radio 
services. They also include the Local Multipoint Distribution Service 
(LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz 
Service, where licensees can choose between common carrier and non-
common carrier status. 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

[[Page 31794]]

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. Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. For the category of ``Wireless 
Telecommunications Carriers (except Satellite),'' Census data for 2007 
show that there were 11,163 firms that operated for the entire year. Of 
this total, 10,791 firms had employment of 999 or fewer employees and 
372 had employment of 1,000 employees or more. 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.
    101. 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. The OVS framework provides opportunities for the 
distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services, OVS falls within 
the SBA small business size standard covering cable services, which is 
``Wired Telecommunications Carriers.'' The SBA has developed a small 
business size standard for this category, which is: All such firms 
having 1,500 or fewer employees. Census data for 2007 shows that there 
were 31,996 establishments that operated that year. Of those 31,996, 
1,818 operated with more than 100 employees, and 30,178 operated with 
fewer than 100 employees. 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. 
Broadband service providers (``BSPs'') are currently the only 
significant holders of OVS certifications or local OVS franchises. 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.
    102. 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.'' 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. 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. Of that number, 462 operated with annual 
revenues of $9,999,999 million dollars or less, and 197 operated with 
annual revenues of 10 million or more. Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small.
    103. 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.'' 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. 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.
    104. 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. Census data for 
2007 shows that there were 31,996 establishments that operated that 
year. Of those 31,996, 1,818 operated with more than 100 employees, and 
30,178 operated with fewer than 100 employees. Thus, under this 
category and the associated small business size standard, the majority 
of such firms can be considered small.
    105. 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. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of those 31,996, 1,818 operated with more than 100 
employees, and 30,178 operated with fewer than 100 employees. 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.
    106. 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.'' 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. 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. 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. Thus, under this 
category and associated small business size standard,

[[Page 31795]]

the majority of firms can be considered small.
    107. 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.'' 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. 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. 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. Thus, under this category and associated small 
business size standard, the majority of firms can be considered small.
    108. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' 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. Of those 919 establishments, 771 operated with 99 or 
fewer employees, and 148 operated with 100 or more employees. Thus, 
under that size standard, the majority of establishments can be 
considered small.
    109. 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. Data contained 
in the 2007 Economic Census indicate that 491 establishments in this 
category operated for part or all of the entire year. Of those 491 
establishments, 456 operated with 99 or fewer employees, and 35 
operated with 100 or more employees. Thus, under the applicable size 
standard, a majority of manufacturers of audio and video equipment may 
be considered small.
5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    110. 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. The Report and 
Order also imposes certain apparatus requirements for emergency 
information and video description.
    111. 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 Sec.  1.3 of the 
Commission's rules. DBS operators may petition for a waiver of the 
emergency information requirements pursuant to Sec.  1.3 of the 
Commission's rules if they have insufficient spot beam capacity. The 
Report and Order also adopts procedures for complaints alleging a 
violation of the emergency information rules.
    112. 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 
Sec.  1.41 of the Commission's rules before manufacturing or importing 
the product. 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. 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. Further, a covered 
entity that seeks to use an ``alternate means'' to comply with the 
apparatus requirements may file a request pursuant to Sec.  1.41 of the 
Commission's rules for a determination that the proposed alternate 
means satisfies the statutory requirements. The Report and Order also 
adopts procedures for complaints alleging a violation of the emergency 
information and video description apparatus rules.
6. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered
    113. 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.\85\ The NPRM invited comment on issues that had the potential 
to have significant impact on some small entities.
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    \85\ 5 U.S.C. 603(c)(1) through (c)(4).
---------------------------------------------------------------------------

    114. 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. For example, the

[[Page 31796]]

Commission considered alternatives that were considered but not 
recommended by the Video Programming Accessibility Advisory Committee 
(``VPAAC''), 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. 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. 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. 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. 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 Sec.  1.3 of the Commission's rules. 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.
    115. 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. 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. 
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 Sec.  1.41 of the Commission's rules for a 
determination that the proposed alternate means satisfies the statutory 
requirements, and the Commission will consider such requests on a case-
by-case basis. Individual entities, including smaller entities, may 
benefit from these provisions.
    116. 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.''
7. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    117. None.
8. Report to Congress
    118. 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.\86\ 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.\87\
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    \86\ See 5 U.S.C. 801(a)(1)(A).
    \87\ See id. 604(b).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    119. The Report and Order contains new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(``PRA''), Public Law 104-13.\88\ 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.
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    \88\ 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 Sec.  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 Sec.  79.105(a); (4) 
the filing and processing of requests for waiver of the apparatus 
requirements on the basis of achievability, pursuant to Sec.  
79.105(b)(3); (5) the filing and processing of requests for a 
purpose-based waiver of the apparatus requirements, pursuant to 
Sec.  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.
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C. Congressional Review Act

    120. 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

    121. Permit-But-Disclose. This proceeding shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other

[[Page 31797]]

filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with 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. Additional Information

    122. 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.

VI. Ordering Clauses

    123. Accordingly, it is ordered that, pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority found in sections 4(i), 
4(j), 303, 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 Sec. Sec.  79.105(a), 79.105(b)(3), and 
79.105(b)(4), and revised Sec.  79.2(c), which shall become effective 
upon announcement in the Federal Register of OMB approval and an 
effective date of the rules.
    124. It is ordered that, pursuant to the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Public Law 111-260, 
124 Stat. 2751, and the authority found in sections 4(i), 4(j), 303, 
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.
    125. It is further ordered that we delegate authority to the Media 
Bureau and the Consumer and Governmental Affairs Bureau to consider all 
requests for declaratory rulings pursuant to Sec.  1.2 of the 
Commission's rules, 47 CFR 1.2, all waiver requests pursuant to 
Sec. Sec.  1.3 or 79.105(b)(4) of the Commission's rules, 47 CFR 1.3, 
79.105(b)(4), and all informal requests for Commission action pursuant 
to Sec.  1.41 of the Commission's rules, 47 CFR 1.41, filed under these 
rules and pursuant to sections 202 and 203 of the CVAA as discussed 
herein.
    126. 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.
    127. 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).

List of Subjects in 47 CFR Part 79

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

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 79 as follows:

PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO 
PROGRAMMING

0
1. The authority citation for part 79 continues to read as follows:

    Authority:  47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
330, 544a, 613, 617.


0
2. Amend Sec.  79.2 by revising paragraphs (b)(1) through (3), adding 
paragraphs (b)(4) and (5), and revising paragraph (c) to read as 
follows:


Sec.  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 Sec.  79.1.
    (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 May 26, 2015, 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.
    (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

[[Page 31798]]

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 paragraph (b)(2)(ii) of this section 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 email, 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.

0
3. Add Sec.  79.105 to read as follows:


Sec.  79.105  Video description and emergency information accessibility 
requirements for all apparatus.

    (a) Effective May 26, 2015, all apparatus that is designed to 
receive or play back video programming transmitted simultaneously with 
sound that is provided by entities subject to Sec. Sec.  79.2 and 79.3, 
is manufactured in the United States or imported for use in the United 
States, and 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 Sec.  79.3; and
    (2) Emergency information (as that term is defined in Sec.  79.2) 
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 May 26, 2015.

    (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.
    (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 Sec.  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.

0
4. Add Sec.  79.106 to read as follows:


Sec.  79.106  Video description and emergency information accessibility 
requirements for recording devices.

    (a) Effective May 26, 2015, all apparatus that is designed to 
record video programming transmitted simultaneously with sound that is 
provided by entities subject to Sec. Sec.  79.2 and 79.3 and 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 Sec.  
79.105(b)(3).

    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 May 26, 2015.

    (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 Sec.  79.2) such that 
viewers are able to activate and de-activate the video description as 
the video

[[Page 31799]]

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 Sec.  79.105(c).

[FR Doc. 2013-11577 Filed 5-23-13; 8:45 am]
BILLING CODE 6712-01-P