[Federal Register Volume 78, Number 245 (Friday, December 20, 2013)]
[Rules and Regulations]
[Pages 77209-77254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28098]



[[Page 77209]]

Vol. 78

Friday,

No. 245

December 20, 2013

Part II





Federal Communications Commission





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47 CFR Part 79





Accessibility of User Interfaces, and Video Programming Guides and 
Menus; Final Rule

Federal Register / Vol. 78 , No. 245 / Friday, December 20, 2013 / 
Rules and Regulations

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket Nos. 12-108, 12-107; FCC 13-138]


Accessibility of User Interfaces, and Video Programming Guides 
and Menus

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 13-138, adopted on October 29, 2013 and released on 
October 31, 2013. The full text of this document is available for 
public inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street 
SW., Room CY-A257, Washington, DC 20554. This document will also be 
available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be 
available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat. The complete text may be purchased from the Commission's copy 
contractor, 445 12th Street SW., Room CY-B402, Washington, DC 20554. 
Alternative formats are available for people with disabilities 
(Braille, large print, electronic files, audio format), by sending an 
email to fcc504@fcc.gov or calling the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Paperwork Reduction Act of 1995 Analysis

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

Summary of the Report and Order

I. Introduction

    1. Pursuant to the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA''), the Report and Order (R&O) adopts 
rules requiring the accessibility of user interfaces on digital 
apparatus and navigation devices used to view video programming. The 
rules we adopt here will effectuate Congress's goals in enacting 
Sections 204 and 205 of the CVAA by: (1) Enabling individuals who are 
blind or visually impaired to more easily access video programming on a 
range of video devices; and (2) enabling consumers who are deaf or hard 
of hearing to more easily activate closed captioning on video devices.
    2. As discussed in Section III below, we delineate the types of 
devices that are covered under Sections 204 and 205 and discuss the 
responsible entities under each section. Specifically, we:
     Conclude that Section 205 of the CVAA applies to 
``navigation devices'' as defined by Sec.  76.1200 of the Commission's 
rules--that is, devices and other equipment used by consumers to access 
multichannel video programming and other services offered over 
multichannel video programming systems.
     Find that under current marketplace and technological 
conditions, consumers generally only access multichannel video 
programming and other services offered over multichannel video 
programming systems through the use of devices that have built-in 
capability to use a conditional access mechanism, and therefore, 
Section 205 only applies to devices manufactured with a CableCARD slot 
or other conditional access technology; this includes devices such as 
set-top boxes, digital cable ready televisions, devices with pre-
installed MVPD applications, and cable modems.
     Conclude that Section 204 of the CVAA applies to all other 
``digital apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound.'' Interpret 
this phrase the same as a comparable phrase in Section 203 was 
interpreted in the IP Closed Captioning Order, but excluding navigation 
devices. Thus, this class of devices includes televisions and computers 
without conditional access capability, mobile devices (such as tablets 
and smartphones) that do not have pre-installed MVPD applications, and 
removable media players.
     Conclude, consistent with the Commission's approach in 
implementing Section 203 in the IP Closed Captioning Order, that 
Section 204 applies to the video players and user interfaces of video 
applications, such as Netflix, Hulu, and Amazon, when such applications 
are pre-installed on digital apparatus by the manufacturer.
     Find that professional and commercial equipment and public 
safety and enterprise equipment are outside the scope of Sections 204 
and 205.
     Defer the compliance deadline by an additional five years 
for display-only monitors and video projectors and devices, such as 
digital cameras, that are subject to the waiver granted in the IP 
Closed Captioning Reconsideration Order.
     Determine that under Section 204, the entities responsible 
for compliance are digital apparatus manufacturers.
     Determine that under Section 205, the entities responsible 
for compliance are MVPDs leasing or selling navigation devices, 
equipment manufacturers of navigation devices that place devices into 
the chain of commerce for sale to

[[Page 77211]]

consumers, and other manufacturers of navigation device hardware and 
software.
     Find that MVPDs and other manufacturers of software 
installed on devices by a device manufacturer that provides on-screen 
text menus and guides for the display or selection of multichannel 
video programming, such as applications offered by MVPDs to view 
multichannel video programming, are responsible for compliance with 
Section 205, including both audible guide and menu accessibility and 
ensuring the software's closed captioning capability can be activated 
through a mechanism reasonably comparable to a button, key, or icon.
    3. As discussed in Section IV below, we specify the accessibility 
obligations of devices covered under Sections 204 and 205. 
Specifically, we:
     Under Section 204, require apparatus designed to receive 
or play back video programming transmitted simultaneously with sound to 
make ``appropriate'' built-in functions (i.e., those used for the 
reception, play back, or display of video programming) accessible to 
individuals who are blind or visually impaired.
    [cir] Conclude that, at this time, the 11 essential functions 
identified by the VPAAC are the ``appropriate'' built-in functions 
under Section 204.
    [cir] Conclude that, if the ``appropriate'' built-in functions are 
accessed through on-screen text menus or other visual indicators built 
in to the apparatus, such functions must be accompanied by audio 
output.
     Under Section 205, require navigation devices to make on-
screen text menus and guides for the display or selection of 
multichannel video programming audibly accessible.
    [cir] Conclude that nine of the 11 essential functions identified 
by the VPAAC are used for the display or selection of video programming 
and must be made audibly accessible on navigation devices under Section 
205 to the extent they are accessed through on-screen text menus and 
guides.
    [cir] Conclude that the remaining two VPAAC functions--power on/off 
and volume adjust/mute--must be made accessible (but not necessarily 
audibly accessible) to individuals who are blind or visually impaired 
on navigation devices under Section 205 because they are controls 
necessary to access covered functions.
     Recognize that a covered apparatus or navigation device 
may not include all of the functions required to be accessible and is 
not required to add any of these functions, but to the extent the 
apparatus or navigation device does include any of these functions, 
they must be made accessible in accordance with our rules.
     Do not adopt technical standards or other technical 
requirements for compliance with the accessibility mandates in Sections 
204 and 205, but apply the definition of ``accessible'' in Sec.  6.3(a) 
of the Commission's rules for guidance on how to make functions 
generally accessible.
     Implement the same rules as in other CVAA contexts for 
determining whether compliance with Section 204 and 205 accessibility 
requirements is ``achievable.''
     Require apparatus covered by Section 204 to provide access 
to closed captioning and video description through a mechanism for each 
that is reasonably comparable to a button, key, or icon.
     Require navigation devices covered by Section 205 to 
provide access to closed captioning (but not, at this time, video 
description) through a mechanism reasonably comparable to a button, 
key, or icon.
    4. As discussed in Section V below, we set forth the compliance 
obligations of entities subject to Section 205 of the CVAA (``covered 
entities'') to provide accessibility ``upon request.'' Specifically, 
we:
     Require a covered entity to provide accessible navigation 
devices to requesting blind or visually impaired individuals ``within a 
reasonable time,'' defined as a time period comparable to the time that 
it takes such entity to provide navigation devices generally to other 
consumers;
     Conclude that a covered entity must permit blind or 
visually impaired consumers to request compliant devices through any 
means that it generally makes available to other consumers that request 
navigation devices;
     Conclude that a manufacturer that provides navigation 
devices at retail to requesting blind or visually impaired consumers 
must make a good faith effort to have retailers make available 
compliant navigation devices to the same extent they make available 
navigation devices to other consumers generally; and
     Conclude that any means that a covered entity employs to 
accept requests for accessible devices may not be more burdensome to 
blind or visually impaired individuals than the means the entity 
employs to provide navigation devices generally to other consumers, 
e.g., if a covered entity establishes a Web site through which blind or 
visually impaired consumers can request accessible devices, such Web 
site must be screen-readable.
     With respect to a covered entity that relies on separate 
equipment or software (``separate solution'') to achieve accessibility 
under Section 205(b)(4) of the CVAA, we:
    [cir] Conclude that a covered entity that relies on a separate 
solution to achieve accessibility is responsible for providing such 
solution to a requesting blind or visually impaired individual;
    [cir] Require that if a non-compliant navigation device has any 
functions that are required to be made accessible pursuant to the rules 
we adopt in the R&O, any separate solution relied upon to achieve 
accessibility must make all of those functions accessible or enable the 
accessibility of those functions;
    [cir] Require that a separate solution be provided in a manner that 
is not more burdensome to requesting blind or visually impaired 
individuals than the manner in which other consumers generally obtain 
navigation devices;
    [cir] Require that a covered entity relying on a separate solution 
must make available such solution ``within a reasonable time,'' defined 
as a period of time comparable to the time in which it generally 
provides navigation devices to consumers who are not blind or visually 
impaired;
    [cir] Conclude that a covered entity that provides separate 
equipment or software may not impose on a requesting blind or visually 
impaired consumer any charges beyond those it has imposed for the non-
compliant navigation device. In cases where an entity provides 
accessibility functionality in only select devices, this constitutes an 
``other solution'' under Section 205(b)(4)(B) for which an entity can 
impose no additional charge. For example, if a covered entity's only 
solution is to provide a sophisticated navigation device (one with 
enhanced features and functions) to a consumer that requests a less 
sophisticated device, it cannot charge the consumer more than the price 
of the less sophisticated device; and
    [cir] Conclude that if a covered entity's chosen manner of 
compliance involves a software solution that must be operated on a 
third-party device (e.g., a laptop, tablet, smart phone) or if 
additional services are required to make use of the device, this manner 
of compliance constitutes an ``other solution'' under Section 
205(b)(4)(B); thus, the covered entity must provide that solution--
i.e., the software, third-party device, and any service needed to use 
the accessibility features--to the requesting individual at no 
additional charge.
     Require a covered entity to ensure that activation 
mechanisms comparable

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to a button, key, or icon for built-in closed captioning are provided 
on all its navigation devices (i.e., such mechanisms are not subject to 
the statutory ``upon request'' language in Section 205).
    5. As discussed in Section VI below, we address a number of other 
issues related to our implementation of Sections 204 and 205. 
Specifically, we:
     Conclude that MVPDs must clearly and conspicuously inform 
consumers about the availability of accessible navigation devices when 
providing information about equipment options in response to a consumer 
inquiry about service, accessibility, or other issues, and also must 
provide such notice on their official Web sites.
     Allow covered entities to require verification of 
eligibility (as an individual who is blind or visually impaired) to the 
extent the covered entity chooses to rely on an accessibility solution 
that involves providing the consumer with sophisticated equipment and/
or services at a price that is lower than that offered to the general 
public.
     Permit Section 204 covered entities to comply with the new 
requirements by alternate means, as provided in the CVAA.
     Adopt procedures for consumer complaints alleging a 
violation of the new requirements.
     Set a three-year compliance deadline by which covered 
entities must generally comply with the requirements of Sections 204 
and 205.
     Set a five-year compliance deadline by which certain mid-
sized and smaller MVPD operators (400,000 or fewer subscribers) and 
small MVPD systems (20,000 or fewer subscribers that are not affiliated 
with an operator serving more than 10 percent of all MVPD subscribers) 
must comply with the requirements of Section 205.
     Decline at this time to adopt a permanent exemption for 
small cable systems of 20,000 or fewer subscribers, as permitted by 
Section 205(b)(2).
    6. In addition, as discussed in Section VII, we eliminate the 
analog closed captioning label requirement in our rules and we 
reorganize Part 79 of our rules to assist readers in browsing and 
locating our accessibility rules.

II. Background

    7. Section 204 of the CVAA, entitled ``User Interfaces on Digital 
Apparatus,'' portions of which were codified as Section 303(aa) of the 
Communications Act of 1934 (``the Act''), directs the Commission to 
require ``if achievable (as defined in section 716) that digital 
apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound'' be built in a 
way so that ``control of appropriate built-in apparatus functions are 
accessible to and usable by individuals who are blind or visually 
impaired.'' 47 U.S.C. 303(aa)(1). Section 204 states that the 
Commission ``may not specify the technical standards, protocols, 
procedures, and other technical requirements for meeting this 
requirement.'' Id. Section 204 also specifies that if ``on-screen text 
menus or other visual indicators built in to the digital apparatus are 
used to access the functions of the apparatus . . . such functions 
shall be accompanied by audio output that is either integrated or 
peripheral to the apparatus'' so that they are accessible to and usable 
by individuals with visual disabilities in real-time. Id. 303(aa)(2). 
Further, Section 204 directs the Commission to require covered digital 
apparatus to ``buil[d] in access to those closed captioning and video 
description features through a mechanism that is reasonably comparable 
to a button, key, or icon designated for activating the closed 
captioning or accessibility features.'' Id. 303(aa)(3). Section 204 
states that ``in applying this subsection the term `apparatus' does not 
include a navigation device, as such term is defined in section 76.1200 
of the Commission's rules.'' \1\ Id. 303(aa)(4).
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    \1\ Section 76.1200 of the Commission's rules defines 
``navigation devices'' to include ``[d]evices such as converter 
boxes, interactive communications equipment, and other equipment 
used by consumers to access multichannel video programming and other 
services offered over multichannel video programming systems.'' 47 
CFR 76.1200(c).
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    8. Section 205 of the CVAA, entitled ``Access to Video Programming 
Guides and Menus Provided on Navigation Devices,'' portions of which 
were codified as Section 303(bb) of the Act, imposes requirements 
relating to ``navigation devices.'' It directs the Commission to 
require, ``if achievable (as defined in section 716), that the on-
screen text menus and guides \2\ provided by navigation devices (as 
such term is defined in section 76.1200 of title 47, Code of Federal 
Regulations) for the display or selection of multichannel video 
programming are audibly accessible in real-time upon request by 
individuals who are blind or visually impaired.'' 47 U.S.C. 303(bb)(1). 
Section 205 states that the Commission ``may not specify the technical 
standards, protocols, procedures, and other technical requirements for 
meeting this requirement.'' Id. Section 205 also directs the Commission 
to require, ``for navigation devices with built-in closed captioning 
capability, that access to that capability through a mechanism is 
reasonably comparable to a button, key, or icon designated for 
activating the closed captioning, or accessibility features.'' Id. 
303(bb)(2).
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    \2\ In this context, we interpret the term ``guides'' to mean 
``video programming guides,'' which is the complete phrase used in 
the title of Section 205. Public Law 111-260, 205.
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    9. The CVAA directed the Chairman of the Commission to establish an 
advisory committee known as the Video Programming Accessibility 
Advisory Committee (``VPAAC''), with representatives from the industry 
and consumer groups. The VPAAC was directed to develop a report 
recommending standards, protocols, and procedures to enable user 
interfaces and video programming guides and menus to be accessible to 
individuals who are blind or visually impaired.\3\ The VPAAC submitted 
its statutorily mandated report addressing user interfaces and video 
programming guides and menus to the Commission on April 9, 2012.\4\ The 
VPAAC Second Report: User Interfaces defined the functional 
requirements needed to implement Sections 204 and 205 of the CVAA, 
including a list of 11 functions that the VPAAC determined are 
essential for making digital apparatus and navigation devices 
accessible to individuals with disabilities. In April 2012, the Media 
Bureau and the Consumer and Governmental Affairs Bureau issued a Public 
Notice seeking comment on the VPAAC Second Report: User Interfaces, and 
the comments and reply comments received in response to the Public 
Notice helped inform the NPRM.\5\ The Commission released the

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NPRM on May 30, 2013.\6\ Sections 204(b) and 205(b) of the CVAA provide 
that ``[w]ithin 18 months after the submission to the Commission of the 
[VPAAC Second Report: User Interfaces], the Commission shall prescribe 
such regulations as are necessary to implement'' Sections 204 and 
205.\7\
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    \3\ Section 201(e)(2) also required the report to include 
information related to the provision of emergency information and 
video description, which is part of a separate Commission rulemaking 
proceeding that addresses Sections 202 and 203 of the CVAA. See 
Accessible Emergency Information, and Apparatus Requirements for 
Emergency Information and Video Description: Implementation of the 
Twenty-First Century Communications and Video Accessibility Act of 
2010; Video Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, MB Docket Nos. 
12-107, 11-43, Report and Order and Further Notice of Proposed 
Rulemaking, 78 FR 31770 (2013) (``Emergency Information/Video 
Description Order'').
    \4\ Second Report of the Video Programming Accessibility 
Advisory Committee on the Twenty-First Century Communications and 
Video Accessibility Act of 2010: User Interfaces, and Video 
Programming and Menus, Apr. 9, 2012, available at http://apps.fcc.gov/ecfs/document/view?id=7021913531 (``VPAAC Second 
Report: User Interfaces'').
    \5\ Public Notice, Media Bureau and Consumer and Governmental 
Affairs Bureau Seek Comment on Second VPAAC Report: User Interfaces, 
and Video Programming Guides and Menus, MB Docket No. 12-108, 27 FCC 
Rcd 4191 (2012).
    \6\ See Accessibility of User Interfaces, and Video Programming 
Guides and Menus, MB Docket No. 12-108, Notice of Proposed 
Rulemaking, 78 FR 36478 (2013) (``NPRM'').
    \7\ As noted, the VPAAC submitted its report to the Commission 
on April 9, 2012. We note that the deadline set forth by statute for 
prescribing regulations, October 9, 2013, fell during a shutdown of 
the Federal government due to a lapse in appropriations, during 
which time the Commission could not conduct normal business 
operations.
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    10. To fulfill these statutory mandates, we adopt the rules 
discussed below. By imposing new requirements with regard to the 
accessibility of user interfaces and video programming guides and 
menus, the regulations adopted herein further the purpose of the CVAA 
to ``update the communications laws to help ensure that individuals 
with disabilities are able to fully utilize communications services and 
equipment and better access video programming.''

III. Scope of Sections 204 and 205 of the CVAA

A. Categories of Devices Covered Under Sections 204 and 205

    11. We conclude, consistent with the text of Sections 204 and 205, 
and the definition of ``navigation devices'' set out in Sec.  76.1200 
of our rules, 47 CFR 76.1200(c), that ``devices such as converter 
boxes, interactive communications equipment, and other equipment used 
by consumers to access multichannel video programming and other 
services offered over multichannel video programming systems'' are 
subject to the requirements of Section 205. As we discuss below, based 
on current marketplace and technological conditions, we interpret the 
term ``navigation devices'' to encompass devices that have built-in 
capability to use a conditional access mechanism in order to access 
MVPD video programming and other services. All other ``digital 
apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound'' that are not 
navigation devices as defined by Sec.  76.1200 of our rules are subject 
to the requirements of Section 204. We also conclude that an individual 
device can be subject to the requirements of Section 204 or Section 205 
depending on its classification as a digital apparatus or navigation 
device, but cannot be subject to the requirements of both sections.
    12. The NPRM set out two general approaches for how the Commission 
might categorize the devices subject to Sections 204 and 205. Under one 
approach, the Commission would apply Section 205 only to the navigation 
devices provided by MVPDs to their subscribers or, in a variation on 
this approach, to MVPD-provided devices and ``to retail set-top boxes 
such as TiVos,'' while applying Section 204 to all other navigation 
devices and digital apparatus. Under the second approach, the 
Commission would apply Section 205 to the full range of devices that 
qualify as ``navigation devices'' as that term is defined in Sec.  
76.1200 of our rules, and Section 204 only to the digital apparatus 
that are not navigation devices.
    13. Several commenters support the MVPD-provided devices approach. 
For example, the American Foundation for the Blind (``AFB''), the 
National Association of the Deaf in conjunction with several consumer 
groups (``NAD/Consumer Groups''), and dozens of individuals with visual 
disabilities express the view that Section 205's provisions should 
apply only to MVPD-provided equipment. These commenters contend that 
such an approach would better effectuate Congress's intent in enacting 
the CVAA by making more devices subject to Section 204's requirements, 
which require accessibility without requiring consumers to request an 
accessible solution. In contrast, other commenters assert that the 
statute gives the Commission no discretion to limit the definition of 
``navigation device'' to only those devices provided by MVPDs and 
requires that any device that meets the definition of navigation device 
under Sec.  76.1200 be covered by Section 205.
    14. Manufacturers and MVPDs have taken the position that the term 
``navigation devices'' is not as wide-ranging as we presumed in the 
NPRM. According to these commenters, the term ``navigation devices'' 
includes all devices that are designed to be used by consumers to 
access multichannel video programming and other services offered over 
multichannel video programming systems using conditional access 
technology; thus, they assert, Section 205 should apply to both MVPD-
provided devices and those retail devices that use conditional access 
to reach MVPD services, consistent with congressional intent.\8\ The 
Consumer Electronics Association (``CEA''), after initially supporting 
a broader interpretation of the term ``navigation devices'' as used in 
Sec.  76.1200, now supports a reading of that term to include only 
``devices that are actually configured to operate as navigation devices 
comparable to MVPD-furnished devices.'' \9\ Verizon takes a similar 
position, arguing that Section 205 should be applied only to 
``traditional'' navigation devices, which Verizon defines as ``set-top 
boxes and related equipment used in the home by consumers to access 
MVPD services'' that are either MVPD-provided or purchased at retail. 
Verizon submits that such an approach is consistent with the language 
of the VPAAC Second Report: User Interfaces and Congressional intent in 
enacting the CVAA. Panasonic Corporation of North America 
(``Panasonic'') suggests, along the same lines as CEA and Verizon, that 
Section 205 should apply only to MVPD-provided or retail equipment 
employing CableCARDs that ``enable a consumer to control the display or 
selection of multichannel video programming.'' Panasonic argues that, 
without the use of a CableCARD, a device cannot provide the ``on screen 
text menus and guides'' which must be made accessible under Section 
205. Several other commenters take no position as to whether Section 
205 should apply to devices other than set-top boxes, but do argue that 
Section 205 should apply not just to MVPD-provided equipment but also 
to comparable equipment sold at retail. The National Cable & 
Telecommunications Association (``NCTA'') also initially took no 
position as to the scope of devices subject to Section 205, but later 
argued that, ``[i]nterpreting `navigation device' so broadly as to 
cover equipment that does not perform the functions of a traditional 
set-top box but simply contains an Internet connection (by which any 
mobile device or any other equipment theoretically could access cable 
broadband service) would stray

[[Page 77214]]

beyond Congress' intent in the CVAA.'' \10\
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    \8\ We note that while AFB and the American Council of the Blind 
(``ACB'') do not agree that Section 205 should apply to set-top 
boxes sold at retail that use conditional access mechanisms to allow 
consumers to access MVPD programming and other services, such as 
TiVo boxes, the approach that we adopt is otherwise consistent with 
AFB and ACB's position in that consumer electronics equipment sold 
at retail that does not use conditional access mechanisms to access 
MVPD programming and other services will be subject to Section 204.
    \9\ CEA states that this position is consistent with an 
agreement that it reached with AFB and ACB, in which CEA stated that 
it ``would be agreeable to the Commission proceeding to apply 
section 205 of the CVAA only to MVPD-provided equipment, as well as 
to equipment that is similar in kind to MVPD-provided equipment 
(i.e., set-top boxes) made available to consumers via retail 
outlets.''
    \10\ NCTA recognized that AFB and CEA could not come to 
agreement on whether non-MVPD provided retail set-top boxes should 
be covered under Section 205, which NCTA presumably still supports.
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    15. Based on our review of the statutory language and the record, 
we conclude that the soundest approach is to follow one of the paths 
suggested in the NPRM by applying Section 205 to all devices that 
qualify as ``navigation devices'' as that term is defined in Sec.  
76.1200 of our rules, and Section 204 only to digital apparatus that 
are not navigation devices. In Sections 204 and 205, the term 
``navigation devices'' is repeatedly modified by the phrase ``as such 
term is defined in [s]ection 76.1200 of the Commission's rules.'' \11\ 
As the NPRM discussed, some elements of Section 205 could be read to 
suggest that Congress meant for Section 205 to apply only to MVPD-
provided equipment, but we find that there is nothing in the statute or 
legislative history expressly indicating that Section 205 should be 
applied only to a particular subset of navigation devices. Although the 
NPRM observed that certain statutory phrases ``appear to presume a 
preexisting relationship between the individual requesting or using the 
device, menu and/or guide and the entity providing it,'' \12\ as 
described in more detail below, we conclude that these statutory 
phrases can also be applied to situations involving no preexisting 
relationship, such as when an individual purchases an accessible device 
at retail.\13\ Had Congress intended for Section 205 to apply only to 
MVPD-provided equipment, as some commenters suggest, we believe that 
Congress would have used different terminology in Sections 204 and 205 
than the phrase ``navigation device'' with a direct citation to Sec.  
76.1200 of our rules. Accordingly, consistent with Congress's repeated 
citations, in multiple sections of the CVAA, to our definition of 
navigation device in Sec.  76.1200, we interpret the term in accordance 
with the definition contained in our rules.\14\
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    \11\ The legislative history provides no additional insight into 
Congress's selection of the term ``navigation devices.''
    \12\ In addition, as NCTA points out, some devices that are sold 
at retail, such as a TiVo, include subscriptions and create a 
relationship between the customer and the device manufacturer.
    \13\ The NPRM also discussed how the phrase ``placing in 
service'' in Section 205(b)(6) might suggest that the provision was 
directed at MVPD-provided equipment. We agree with NCTA that the 
Commission's rules use similar phrasing in other areas ``wholly 
unrelated to MVPD-provided service.'' The NPRM also pointed to the 
fact that Section 205(b)(2) authorizes us to create an exemption for 
cable systems with fewer than 20,000 subscribers as evidence that 
Section 205 applied to MVPDs. While such a statement does suggest 
that Section 205 applies to MVPDs, it does not foreclose the 
Commission from also applying Section 205 to other covered entities, 
such as manufacturers of navigation devices placed into the chain of 
commerce for sale and other navigation device hardware and software 
manufacturers.
    \14\ AFB suggests that the Commission could, through the use of 
a Further Notice of Proposed Rulemaking, revise the definition of 
navigation device ``for the limited purpose of sorting out the 
application of sections 204 and 205.'' We find no compelling reason 
to do so, and therefore decline this request.
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    16. Therefore, consistent with a literal interpretation of the 
statute and in accordance with the Commission's definition of 
navigation device, Section 205 will apply to any device that can be 
``used by consumers to access multichannel video programming and other 
services offered over multichannel video programming systems.'' We 
recognize that this definition uses broad language to describe what 
constitutes ``navigation devices,'' and that in the NPRM we proposed to 
interpret this phrase to cover a broad array of devices. The NPRM also 
sought comment on the correct reading of the term ``navigation 
devices'' as defined under Commission rules.
    17. We have closely examined the arguments made in the record of 
this proceeding and met with representatives of consumer groups and all 
sectors of the industry, and have been persuaded that our understanding 
of the term ``navigation devices'' must be clarified in light of 
intervening marketplace and technological changes. We do not believe 
that the Commission intended the term to encompass every device with 
the ability to access the Internet; nor do we believe that under 
current marketplace and technological conditions such a broad 
definition of navigation devices is reasonable. We also believe that 
Congress, in drafting the CVAA, understood the Commission's definition 
of navigation devices to be narrower, because otherwise the exemption 
in Section 204 for ``navigation devices'' would have largely nullified 
that section.\15\ This is the first time it has been necessary for us 
to delineate more precisely the outer boundaries of the term 
``navigation devices.'' \16\ After consideration of the record on this 
issue, we thus clarify the meaning of the term ``navigation devices,'' 
taking into consideration current marketplace and technological 
conditions, and in a manner that will give meaning and effect to each 
section of the CVAA.
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    \15\ Moreover, as noted in the NPRM, interpreting ``navigation 
devices'' to apply to ``every device with Internet connectivity'' 
would have ``render[ed] meaningless Section 204's statement that 
digital apparatus include `apparatus designed to receive or display 
video programming transmitted in digital format using Internet 
protocol' . . . .''
    \16\ The Commission in 2010 sought comment on the various types 
of devices covered under the term ``navigation devices,'' but has 
not had the occasion to address the issue since then.
---------------------------------------------------------------------------

    18. As noted, Sec.  76.1200 defines navigation devices as ``devices 
such as converter boxes, interactive communications equipment, and 
other equipment used by consumers to access multichannel video 
programming and other services offered over multichannel video 
programming systems.'' The Commission derived this definition from the 
text of Section 629 of the Act, added by the Telecommunications Act of 
1996, which directed the Commission to adopt rules ``to assure the 
commercial availability'' of such devices ``from manufacturers, 
retailers, and other vendors not affiliated with any'' MVPD. When the 
Commission adopted Sec.  76.1200 in 1998, consumers used a wide variety 
of equipment to access multichannel video programming and other 
services. For example, at that time many consumers could connect analog 
``plug and play'' televisions, video cassette recorders (``VCRs''), and 
personal computers directly to the cable and access cable programming 
without the need for a cable set-top box.\17\ Thus, at that time, the 
Commission contemplated that some devices that lack the ability to 
perform conditional access--such as these analog ``plug and play'' 
televisions--were navigation devices. We no longer believe that to be 
the case, given the current state of technology. Nearly all MVPD 
services are encrypted today, and devices that do not perform 
conditional access can access at most a de minimis amount of MVPD 
programming, and that amount is decreasing rapidly, as discussed below. 
Accordingly, we construe the phrase ``used by consumers to access'' in 
the definition of ``navigation devices'' to refer to the access that 
MVPDs control when using conditional access technology as a 
prerequisite to receive MVPD-offered multichannel video programming and 
other services. Indeed, in 2010, the Commission recognized that 
conditional access is an essential part of ``access.''
---------------------------------------------------------------------------

    \17\ That is, subscribers could simply plug the cable into the 
back of their TV sets or other devices; conditional access was 
performed by means of traps installed outside the home. When the 
cable operator granted access to its programming, through the 
removal of a trap, both cable operator-provided set-top boxes and 
retail devices could access the programming. Today, cable operators 
rely on encryption rather than traps to protect themselves from 
theft of service, and encryption requires hardware inside the 
consumer's home to perform the decryption functions.

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[[Page 77215]]

    19. The Commission has recognized that, in the past, most cable 
signals were transmitted in the clear and that subscribers with analog 
``plug and play'' television sets would not need cable set-top boxes to 
view subscribed-to programming. Beginning in the mid-1990's, however, 
cable operators began to upgrade their systems to offer digital cable 
service in addition to analog cable service (hybrid cable service). 
Even more recently, many cable operators have transitioned to more 
efficient all-digital service, freeing up cable spectrum to offer new 
or improved products and services. At each stage of the transition from 
all-analog to all-digital cable service, cable operators have 
increasingly used conditional access to protect more types and tiers of 
programming from unauthorized access. Nearly all MVPD services today 
use some form of conditional access to prevent unauthorized access, and 
encryption of the program signal has proven to be an indispensable 
aspect of controlling access to MVPD services as it ensures that no 
signal can be viewed without digital permissions individually issued by 
the MVPD. The Commission recognized as much in its recent Encryption 
Order, when it observed that ``relaxing the encryption prohibition for 
all-digital systems will have minimal impact on consumers because most 
subscribers do not rely on the clear-QAM tuners in their devices to 
access basic tier signals.'' As of October 2012, when the Commission 
released the Encryption Order permitting cable operators to encrypt the 
basic service tier under certain conditions, few subscribers were 
accessing cable programming without the use of a set-top box. Further, 
subscribers to direct broadcast satellite (``DBS'') and Internet 
protocol television (``IPTV'') operators have never been able to use 
televisions to access service; rather, they must use a set-top box. The 
Commission concluded that allowing all-digital cable operators to 
encrypt the basic service tier served the public interest because it 
would have a de minimis impact on subscribers to these systems,\18\ 
while having significant additional benefits.\19\
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    \18\ This is because all-digital cable operators indicate that 
all of their subscribers have at least one set-top box or retail 
CableCARD device in their homes.
    \19\ We note that since the advent of encryption of the basic 
tier on all-digital cable systems, the Commission has received only 
one complaint from an aggrieved consumer.
---------------------------------------------------------------------------

    20. Therefore, the phrase ``other equipment used by consumers to 
access multichannel video programming and other services offered over 
multichannel video programming systems,'' in today's MVPD market, means 
more than mere passive display made possible through the use of an 
intermediary device. For a consumer to ``use'' a device to ``access'' 
MVPD services, the device must employ some kind of access control to 
``unlock'' the services and make them available for the consumer's use. 
For example, a television set with a CableCARD supports ``conditional 
access'' such that an MVPD can control which channels or services a 
device receives. In contrast, a television without a CableCARD cannot 
access encrypted cable channels without an intermediary device--e.g., a 
set-top box--that controls access to the content; the television can 
merely display the content that the set-top box sends to it. In the 
latter example, the set-top box is a navigation device but the 
television is not because the consumer could not use it to ``access'' 
cable service. As Panasonic states, ``absent the use of a CableCARD, 
the Commission's rules do not ensure the availability of the channel 
information necessary for independent manufacturers to design 
`navigation devices.' ''
    21. Cable operators also control access to their broadband services 
through an authentication scheme similar to that used for video 
services, reinforcing our view that ``navigation devices'' require the 
use of conditional access. The navigation device definition includes 
devices consumers use to access ``other services offered over 
multichannel video programming systems,'' which would include broadband 
data services. Cable modems must be ``initialized''--a process 
involving authentication and registration--before the cable operator 
grants the modem access to the broadband network.\20\ Although an 
Internet Protocol (``IP'')-enabled device may use Internet services by 
connecting through a cable modem, consumers do not use the IP-enabled 
device itself to access the broadband service. Rather, the device uses 
the cable modem to access the Internet. In this example, the cable 
modem is a navigation device, but the IP-enabled device is not.
---------------------------------------------------------------------------

    \20\ For instance, the DOCSIS specifications define a procedure 
for initializing a cable modem that involves authentication and 
registration.
---------------------------------------------------------------------------

    22. Given the widespread and routine practice of cable operators 
controlling access to all of their programming and other services, and 
the fact that DBS operators universally use encryption to control 
access to their programming, we expect that shortly virtually all MVPDs 
will control access to their programming and services through some sort 
of conditional access technology.\21\ Thus, we interpret the term 
``navigation devices'' as encompassing only devices that support 
conditional access to control consumer access to programming and 
services. Based on our interpretation, we find that navigation devices 
subject to Section 205 are those devices manufactured with a CableCARD 
slot, CableCARD's successor technology, or other conditional access 
capabilities.\22\ Thus, the following are navigation devices: digital 
cable ready televisions (i.e., televisions with CableCARD slots), set-
top boxes (including those provided by MVPDs as well as consumer-owned 
CableCARD-ready devices), computers with CableCARD slots, and cable 
modems. The Commission has consistently recognized that these are 
navigation devices throughout the past 15 years since adoption of our 
navigation device rules. Third-party devices with MVPD applications 
that are installed by the device manufacturer are also navigation 
devices because the MVPD application performs conditional access 
functions in a software-based manner that allows consumers to access 
multichannel video

[[Page 77216]]

programming.\23\ Devices that do not contain support for conditional 
access functionality at the time of manufacture will be classified as 
``digital apparatus'' and covered by Section 204.
---------------------------------------------------------------------------

    \21\ It is conceivable that some cable systems will still exist 
three years from now, at the time of our compliance deadline, that 
do not use any encryption; thus, in some cases consumers may still 
be able to plug televisions directly into the cable to receive 
service. As explained, however, we expect such systems to be rare, 
and the subscribers who choose to use such devices without a set-top 
box to be rarer still. Moreover, these systems are likely to be very 
small systems subject to the extended Section 205 compliance date 
that we adopt herein. They are also likely to be analog systems. 
Because television broadcast receivers will no longer be required to 
include analog tuners after September 1, 2015 due to the low power 
television transition to digital television, we believe it is likely 
that many manufacturers will cease including analog reception 
capability in devices sold after that date. Thus, it is unlikely 
that subscribers to all-analog cable systems will use devices 
manufactured after the effective date of these rules to access 
analog cable service. We do not believe it would be reasonable to 
subject retail devices--which are manufactured for nationwide 
distribution--to a set of rules designed for these corner cases. Nor 
would it be appropriate to expect manufacturers to spend their 
resources designing their products based on a technology that we 
expect to be essentially outdated by the time of our compliance 
deadline. Rather, to give manufacturers certainty as to their 
compliance obligations we will uniformly subject only devices using 
conditional access to regulation under Section 205 based on our 
predictive judgment about how the marketplace is developing.
    \22\ We note that in EchoStar Satellite L.L.C. v. FCC, 704 F.3d 
992 (D.C. Cir. 2013) (``EchoStar''), the DC Circuit vacated the 
Commission's CableCARD Order, 68 FR 66728 (2003), which effectively 
vacated the rules adopted in the CableCARD Order, including the 
technical standards for CableCARD (47 CFR 76.602 and 76.640). 
Although the rule requiring reliance on the specific CableCARD 
standard was vacated in EchoStar, given that nearly all cable 
operators use CableCARDs as their means to comply with the 
integration ban, we believe that CableCARD use will continue for the 
foreseeable future.
    \23\ CenturyLink, Inc. states that it ``is not aware of any 
navigation device manufacturers that either pre-install MVPD-
provided mobile applications for accessing MVPD-delivered 
programming or require end users to install such applications after 
sale.'' To eliminate uncertainty in the event that this does happen, 
however, we clarify that such a device would be a navigation device 
under the rules we adopt in the R&O.
---------------------------------------------------------------------------

    23. Our task in implementing Sections 204 and 205 of the CVAA 
requires that we identify for manufacturers which section governs their 
equipment. To give certainty to manufacturers, we conclude it is 
appropriate to take a snapshot view of the equipment at the time the 
manufacturer releases it into the stream of commerce, and to describe 
now, before the devices are designed and manufactured, the parameters 
we will use for determining whether a device is a navigation device. 
Accordingly, for purposes of Sections 204 and 205 of the CVAA, and 
consistent with our application of other provisions of the CVAA,\24\ we 
will look to the device's built-in functionality at the time of 
manufacture to determine whether a device is classified as a 
``navigation device'' for purposes of determining which section of our 
rules will apply. Under this approach, we will not require 
manufacturers to anticipate possible adjustments that a consumer may 
independently make to the equipment after sale (for example, by 
installing an application post-sale).\25\ Looking at the functionality 
that a manufacturer itself has chosen to include in a piece of 
equipment will bring certainty to industry and consumers alike as to 
what obligations apply to particular equipment.
---------------------------------------------------------------------------

    \24\ Classifying a device based on its capabilities at the time 
of manufacture is consistent with our implementation of other CVAA 
provisions.
    \25\ This also addresses the concerns of commenters who contend 
that they cannot ``control the design of third-party devices running 
their apps'' because those commenters can test their applications to 
ensure accessibility on the third-party devices before choosing to 
allow the manufacturers to pre-install the applications.
---------------------------------------------------------------------------

    24. We conclude that the interpretation described above is 
consistent with both the language and the intent of Section 629 of the 
Act and Sec.  76.1200 of our rules. We have discretion to interpret 
statutory language that Congress left undefined, such as the language 
used in Section 629 and echoed in the Commission's definition of 
``navigation devices.'' Neither Congress nor the Commission has 
previously specified what the phrase ``used by consumers to access'' in 
the definition means, and our interpretation, described above, gives 
meaning to the term based on current market and technological 
considerations. Moreover, our interpretation is consistent with the 
other terms in the definition referring to ``converter boxes'' and 
``interactive communications equipment.'' Those terms were also not 
defined by Congress or the Commission, but we believe that the term 
``interactive communications equipment'' is most reasonably interpreted 
to mean equipment used for services such as video-on-demand and 
television-based commerce. Today, unlike at the time Section 629 was 
adopted, these functions are performed by the majority of today's set-
top boxes. The term ``converter box'' refers to simpler equipment, more 
commonplace in 1998, that merely converts signals from the cable 
operator's format to a format that could be received by legacy 
televisions--a function that digital tuning adapters (``DTAs'') and 
similar devices perform today. These interpretations are consistent 
with what the Commission envisioned when first adopting its definition 
of ``navigation devices.'' \26\
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    \26\ This interpretation is consistent with the Commission's 
Seventh Video Competition Report, which stated ``in the last year, 
interactive television (`ITV') services are beginning to be offered 
through cable, satellite, and terrestrial technologies. ITV provides 
or has the potential to provide a wide range of services, including 
video on demand (`VOD'), email, TV-based commerce, Internet access, 
and program-related content, using digital set-top boxes and other 
devices that interface with television receivers. . . .''
---------------------------------------------------------------------------

    25. Our interpretation of the definition of ``navigation devices'' 
is also consistent with the intent of Congress that the scope of the 
term change over time as technology changes. Congress recognized the 
rapidly evolving nature of MVPD and consumer electronics technology. 
The portion of the Conference Report for the 1996 Telecommunications 
Act discussing navigation devices stated that, in implementing Section 
629, the Commission should ``avoid actions which could have the effect 
of freezing technologies and services. . . . Thus, in implementing this 
section, the Commission should take cognizance of the current state of 
the marketplace and consider the results of private standards setting 
activities.'' Similarly, in implementing Section 629, the Commission 
stated: ``We do not believe, however, that our work with respect to 
these issues is complete. The markets involved are in the early stages 
of becoming competitive, and the participants in these markets are on 
the precipice of a change from analog to digital communications. . . . 
Our objective thus is to ensure that the goals of Section 629 are met 
without fixing into law the current state of technology.'' More 
recently, in the AllVid NOI, adopted in 2010, the Commission stated 
that ``[t]raditionally, the Commission and interested parties have 
considered the term navigation devices to include televisions, set-top 
boxes (including DVRs), and home theater computers,'' and sought 
comment on whether ``these devices comprise the universe of navigation 
devices, and if not, what other devices could perform navigation device 
functions.'' The fact that the Commission in 2010 asked about the scope 
of the term ``navigation devices'' underscores that the definitions of 
the terms used in Section 629 and Sec.  76.1200(c) have not been 
definitively fixed and may change over time.\27\
---------------------------------------------------------------------------

    \27\ We also note that the AllVid NOI was adopted only months 
before enactment of the CVAA, which suggests that Congress was aware 
that the definition of ``navigation devices'' was continuing to 
evolve.
---------------------------------------------------------------------------

    26. Our interpretation of ``navigation devices'' is also consistent 
with the language of Sections 204 and 205 as well as Congress's goals 
in enacting them. As compared with our proposal to apply Section 205 
only to MVPD-provided navigation devices, this approach better honors 
the literal meaning of the terms of the provision. At the same time, it 
avoids the perverse outcome that would have resulted from an overly 
broad reading of ``navigation devices'' that would have largely 
nullified Section 204, thwarting Congress's effort to craft different 
requirements for different categories of devices. For example, this 
interpretation gives meaning to the provision that states that Section 
204 applies to certain apparatus, ``including apparatus designed to 
receive or display video programming transmitted in digital format 
using Internet protocol;'' under this approach not all devices that can 
display video programming will be deemed to be navigation devices and 
thus excluded from coverage under Section 204, a result we think would 
be at odds with Congress's intent. Thus, our approach gives meaning and 
effect to both Sections 204 and 205.
    27. Having determined which devices are excluded from coverage 
under Section 204, we conclude that Section 204 will apply to ``digital 
apparatus,'' as defined in that section, that are not used by consumers 
to access multichannel video programming or other services offered over 
multichannel video programming systems, such as televisions and PCs 
without CableCARD

[[Page 77217]]

or other conditional access technology, mobile devices (i.e., tablets 
and smartphones) without MVPD applications pre-installed by the 
manufacturer, and removable media players.\28\ We adopt the NPRM's 
analysis that the references in Sections 204 and 205 to navigation 
devices were ``designed to prevent overlap in coverage between Sections 
204 and 205; that is, a device can be a Section 204 device or Section 
205 device, but not both.'' AFB suggests that a single device may have 
accessibility requirements under both Sections 204 and 205 because a 
device can be both a ``digital apparatus'' and a ``navigation device.'' 
AFB argues that the Commission has taken a similar approach in the past 
when implementing Section 716(f) of the Act, added by Section 104 of 
the CVAA, finding that a device could have obligations under both 
Section 716(f) and Section 255. Other commenters that address the issue 
agree with the NPRM that Sections 204 and 205 are mutually exclusive in 
their coverage of devices. We agree with CEA that the language from 
Section 716(f) that AFB cites in support of its position is 
distinguishable from ``Section 204's clear exclusion of navigation 
devices from its coverage and Section 205's express application to 
navigation devices.'' While Section 205 applies to ``navigation devices 
(as such term is defined in section 76.1200 of title 47, Code of 
Federal Regulations) for the display or selection of multichannel video 
programming,'' Section 204 categorically excludes navigation devices. 
Therefore, it follows that a device cannot be subject to the 
requirements of both Section 204 and 205.
---------------------------------------------------------------------------

    \28\ As we discuss further below, video programming applications 
that are installed by the manufacturer (or those that the 
manufacturer directs consumers to install), such as Netflix, Hulu, 
and Amazon, must also be made accessible under Section 204.
---------------------------------------------------------------------------

    28. Several commenters seek an exemption or waiver from the 
requirements of Sections 204 and 205 for certain classes of equipment 
or otherwise request a determination that certain equipment is outside 
of the scope of Sections 204 and 205. Before discussing these specific 
types of equipment, we note that, unlike in other device-related 
provisions of the CVAA, such as Section 203, Congress did not provide 
the Commission with authority to grant exemptions from or waive the 
statutory requirements imposed by Sections 204 and 205. Accordingly, we 
do not exempt otherwise covered devices from the statutory requirements 
of Sections 204 and 205.
    29. Professional and commercial equipment. We conclude that 
professional and commercial video equipment, including professional 
movie theater projectors and studio-grade video monitors and recorders, 
is not subject to the requirements of Section 204 or 205. As the 
Commission has found in the past, the CVAA is intended to address the 
accessibility needs of individual consumers. Therefore, as the 
Commission found in the IP Closed Captioning Order, professional and 
commercial equipment is outside of the CVAA's scope. Significantly, no 
commenters argue that the Commission's rules should cover this 
equipment. As the Commission did in the IP Closed Captioning Order, we 
note that other federal laws may impose accessibility obligations ``to 
ensure that professional or commercial equipment is accessible to 
employees with disabilities or enables the delivery of accessible 
services.''
    30. Public safety and enterprise equipment. We also find that 
public safety and enterprise equipment is not subject to the 
requirements of either Section 204 or 205. Motorola Solutions, Inc. 
(``Motorola'') requested such a determination, and its request was not 
opposed. Motorola correctly observes that nothing in Sections 204 or 
205 evidences Congressional intent to cover these devices, which are 
not provided to individuals but rather are marketed or sold to ``state 
or local governments, public safety organizations or other enterprise 
customers.'' Therefore, we find that public safety and enterprise 
equipment is outside the scope of Section 204 or 205 of the CVAA.\29\
---------------------------------------------------------------------------

    \29\ This approach is consistent with the Commission's actions 
in the ACS Order.
---------------------------------------------------------------------------

    31. Broadband equipment. We agree with Panasonic that ``general 
purpose broadband equipment,'' such as routers,\30\ does not fall under 
Section 204 or Section 205 because it is not designed to display or 
play back video content and cannot be used by consumers to access MVPD 
services. As we describe above, in the case of Internet service offered 
by MVPDs, the navigation device is the cable modem, as that device is 
the only device consumers use to access the MVPD's Internet service. 
Routers and other equipment that interact with the cable modem are 
outside the scope of Section 205 because consumers do not use that 
equipment to access the MVPD's service. With respect to cable modems, 
although they are navigation devices, we find that because cable modems 
cannot display or select multichannel video programming and do not have 
``built-in closed captioning capability,'' cable modems have no 
compliance obligations under Section 205.
---------------------------------------------------------------------------

    \30\ A router is a device that connects two or more computer 
networks together, such as by connecting a home network to a 
broadband network.
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    32. Removable media players. We reject Panasonic's request that we 
find that removable media players, such as DVD and Blu-ray players, are 
not subject to Section 204.\31\ Removable media players are designed to 
``play back'' video programming simultaneously with sound and Panasonic 
does not appear to dispute this. Instead, Panasonic argues that the 
inclusion in Section 204 of the clause ``including apparatus designed 
to receive or display video programming transmitted in digital format 
using Internet protocol'' signifies that Congress intended the word 
``transmitted'' to mean ``the conveyance of content from a video 
programming provider (e.g. a broadcast) to a receiver or recorder which 
in turn plays back or displays the content to be viewed by a 
consumer.'' Panasonic argues that removable media players do not 
``transmit'' video programming and therefore fall outside the scope of 
Section 204. We disagree with Panasonic's interpretation of Section 
204. In interpreting a similar provision, the Commission found in the 
IP Closed Captioning Order, and recently reiterated in the IP Closed 
Captioning Reconsideration Order, that the word ``transmitted'' is best 
interpreted to ``describe how the video programming is conveyed from 
the device (e.g., DVD player) to the end user . . ., rather than 
describe how the video programming arrived at the device.'' We see no 
reason to deviate from this settled interpretation here. Accordingly, 
because removable media players can ``play back video programming 
transmitted in digital format,'' we find that they are subject to the 
requirements of Section 204.\32\
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    \31\ Panasonic does not argue that removable media players with 
IP connections or tuners should be excluded from coverage. Rather, 
Panasonic argues that removable media players without a tuner or an 
IP network connection are not covered under either Section 204 or 
205.
    \32\ Panasonic also submits that ``[i]n the case of DVD and Blu-
Ray DiscTM players, these devices depend on disc content 
authors to provide audio tags that are included in a disc's menus in 
order to provide audio output for the on-screen text or visual 
indicators. The techniques for authoring accessible media are well 
known and accessible DVDs are widely available in the marketplace. 
For Blu-Ray DiscsTM, the Blu-Ray DiscTM 
Association allows `button sounds' for the creation of accessible 
interactive menus. Therefore, if the Commission finds that 
standalone removable media players are subject to Section 204 (a 
point on which we disagree, as noted above), the Commission should 
recognize that this support for accessible menus in removable media 
already complies with this Section. Removable media players cannot 
support a requirement to enable accessibility of media content menus 
because such menus are not under the control of the equipment 
manufacturer.'' We agree. Section 303(aa)(2) of the Act only applies 
to ``on-screen text menus or other visual indicators built in to the 
digital apparatus.'' 47 U.S.C. 303(aa)(2) (emphasis added). Because 
the menus of the removable media itself (e.g., a Blu-Ray disc) are 
not ``built-in'' to the digital apparatus, the manufacturer of the 
removable media player does not have a compliance obligation under 
Section 204 to make such menus accessible. The manufacturer of the 
removal media player does have an obligation under Section 204 to 
make accessible the ``built-in'' text menus and other visual 
indicators of the removable media player and any other ``appropriate 
built-in apparatus functions.'' Id. 303(aa)(1), (2). This would 
include, for example, making accessible the text menus and other 
visual indicators of video applications, such as Netflix, Hulu, and 
Amazon, when such applications are pre-installed on the removal 
media player by the manufacturer.

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[[Page 77218]]

    33. Display-only monitors and video projectors. We conclude that 
display-only monitors and video projectors qualify as covered digital 
apparatus under Section 204, consistent with the Commission's analysis 
in the IP Closed Captioning Order, because the term ``apparatus'' 
includes ``physical devices capable of displaying video.'' However, as 
discussed below, we will defer the compliance deadline under Section 
204 for a period of five additional years for these devices.\33\
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    \33\ The video projectors that we refer to in this section are 
those available for purchase by individual consumers, not 
professional projectors, such as movie theater projectors, which we 
find are outside the scope of Sections 204 and 205.
---------------------------------------------------------------------------

    34. Panasonic argues that these devices should not be covered by 
Section 204 on the same grounds they argue that removable media players 
should not be covered, and we reject that argument for the same reasons 
described above. CEA argues that under the language of Section 
303(aa)(1) of the Act, a digital apparatus must be able independently 
to ``receive or play back video programming,'' and display-only 
monitors do not have this capability.'' \34\ We adopt the same analysis 
used in the IP Closed Captioning Order, in which the Commission 
determined that a device that is ``capable of displaying video'' is 
``designed to receive or play back video programming'' and thus an 
apparatus under Section 203. We believe that the language in Section 
204, which states that a ``digital apparatus'' is a device ``designed 
to receive or play back video programming,'' language that also is used 
in Section 203, should be interpreted in the same manner as in the IP 
Closed Captioning Order. Thus, because display-only monitors and video 
projectors can display video programming simultaneously with sound, 
such devices fall under Section 204. The Information Technology 
Industry Council (``ITIC'') argues that the Commission should adopt a 
display-only monitor exemption in this proceeding similar to the 
exemption adopted in the IP Closed Captioning Order. However, the 
display-only monitor exemption adopted by the Commission in the IP 
Closed Captioning Order relied on a specific statutory provision 
contained in Section 203 applicable to display-only monitors.\35\ 
Section 204 lacks an analogous provision. We believe the inclusion of 
such an exemption in Section 203 and the omission of such an exemption 
in Section 204 evidences an intent on the part of Congress to include 
display-only monitors under Section 204. Nevertheless, we observe that 
the record lacks evidence that individuals with disabilities rely upon 
display-only monitors and video projectors to watch video programming. 
And, significantly, the requests to exempt display-only monitors and 
video projectors from Section 204 were supported by ACB and AFB and not 
otherwise opposed.
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    \34\ CEA also argues, and we agree, that display-only monitors 
are not navigation devices as they cannot independently access MVPD 
programming or other services and must rely on another device to 
provide access to MVPD programming or other services.
    \35\ The IP Closed Captioning Order did not apply the display-
only monitor exemption to video projectors.
---------------------------------------------------------------------------

    35. Although we do not believe we have the statutory authority 
under Section 204 to exempt display-only monitors and video projectors, 
we will defer the compliance deadline under Section 204 for five 
additional years (eight years after publication of the rules in the 
Federal Register) to allow consumer electronics manufacturers to focus 
on making accessible other devices, such as televisions, that blind and 
visually-impaired consumers commonly use. As discussed further below, 
we believe Congress's omission of a specific compliance deadline under 
Section 204 affords broad discretion to the Commission to establish an 
appropriate deadline.\36\
---------------------------------------------------------------------------

    \36\ The only guidance that Congress provided with respect to 
compliance deadlines in Section 204 is mandating that the section's 
requirements not go into effect for a minimum of 24 months for 
mobile TV devices.
---------------------------------------------------------------------------

    36. Digital cameras and similar equipment subject to waiver under 
the IP Closed Captioning Reconsideration Order. We will also defer 
compliance under Sections 204 for a period of five additional years 
(for a total of eight years after the rules are published in the 
Federal Register) for the devices, such as digital cameras and baby 
monitors, that received a waiver in the IP Closed Captioning 
Reconsideration Order pursuant to the Commission's authority under 
Section 203 of the CVAA.\37\ CEA asks that we ``clarify'' that these 
devices are not subject to the rules adopted under Sections 204 and 205 
and claims that the Commission has ``ample authority'' to use its 
waiver authority under Sec.  1.3, 47 CFR 1.3, or general rulemaking 
authority to exempt this equipment from Section 204 or 205 obligations. 
As we stated earlier, we disagree that we have the authority to provide 
exemptions from the statutory requirements for devices covered under 
Sections 204 and 205. The waiver adopted in the IP Closed Captioning 
Reconsideration Order was pursuant to the explicit statutory waiver 
authority provided under Section 203, and Congress did not provide 
analogous authority in Sections 204 or 205. We find that these devices 
are ``digital apparatus'' under Section 204 because they can be used to 
``receive or play back video programming transmitted in digital format 
simultaneously with sound.'' We note, however, that CEA's request that 
these devices be excluded from coverage under Section 204 is supported 
by ACB and AFB and is not otherwise opposed. We are persuaded that a 
deferral of the compliance deadline is appropriate in this case because 
consumers are unlikely to use these devices to watch video programming 
due to the limited ability of these devices to access video 
programming, the inconvenience of configuring these devices to view 
video programming, and the inefficiency of actually viewing video 
programming on these devices. As noted above with respect to display-
only monitors and video projectors, we believe the focus of

[[Page 77219]]

consumer electronics manufacturers at this time should be on making 
accessible other devices that will provide a greater benefit to 
consumers in the manner envisioned by Congress in enacting the CVAA.
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    \37\ Under its authority pursuant to Section 203, the Commission 
granted waiver for two classes of devices: (1) Devices that are 
primarily designed to capture and display still and/or moving images 
consisting of consumer generated media, or of other images that are 
not video programming as defined under the CVAA and Commission 
rules, and that have limited capability to display video programming 
transmitted simultaneously with sound; and (2) devices that are 
primarily designed to display still images and that have limited 
capability to display video programming transmitted simultaneously 
with sound. The first category includes, for example, digital still 
cameras, digital video cameras, baby monitors, security cameras, 
digital video camera microscopes, digital playback binoculars, and 
digital probes for viewing and playing video of enclosed spaces. The 
second category includes, for example, digital picture frames, but 
not those that are primarily designed to display both still 
photographs and video. We also note that devices with general 
purpose operating systems, such as Android or Windows, that can 
receive content from the Internet and easily display video 
programming transmitted simultaneously with sound, were not subject 
to the waiver granted in the IP Closed Captioning Reconsideration 
Order and similarly will not be subject to the deferred compliance 
deadline provided by the R&O.
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B. Responsibility and Definition of Digital Apparatus Under Section 204

    37. We find that digital apparatus manufacturers have the 
responsibility to comply with Section 204. We also adopt the tentative 
conclusions in the NPRM to interpret the meaning of ``apparatus'' and 
the scope of Section 204 the same way the Commission interpreted the 
scope of Section 203 in the IP Closed Captioning Order, but excluding 
navigation devices that are subject to Section 205.
    38. We find that Section 204 applies to the manufacturers of 
``digital apparatus'' as we define that term below. Section 204 
requires that digital apparatus be designed, developed and fabricated 
in a way that ensures that ``built-in apparatus'' functions are 
accessible. Manufacturers of digital apparatus are uniquely positioned 
to design, develop, and fabricate the built-in functions of the devices 
they manufacture. Furthermore, Section 204, unlike Section 205, does 
not explicitly address responsibility under that section for multiple 
different entities, such as manufacturers of software and manufacturers 
of hardware, suggesting that Congress intended for the requirements of 
Section 204 to apply to one entity. CEA and the individual consumer 
electronics manufacturers that commented do not dispute that they are 
responsible for the accessibility compliance of the digital apparatus 
they manufacture. We adopt the NPRM's tentative conclusion to define 
the term ``digital apparatus'' as used in Section 204 the same way that 
the Commission defined the term ``apparatus'' when implementing Section 
203, but excluding navigation devices that are subject to Section 205, 
as specifically provided in Section 204. Therefore, consistent with the 
analysis in both the IP Closed Captioning Order and the ACS Order, we 
find that the term digital apparatus should be defined to include ``the 
physical device and the video players that manufacturers install into 
the devices they manufacture (whether in the form of hardware, 
software, or a combination of both) before sale, as well as any post-
sale video players that manufacturers direct consumers to install.'' 
\38\ Included in the scope of digital apparatus are the video players 
that manufacturers embed in their devices, video players designed by 
third parties but installed by manufacturers in their devices before 
sale, and video players that manufacturers direct consumers to add to 
the device after sale in order to enable the device to play video.\39\ 
We clarify that this includes the video players that are part of third-
party applications that provide video programming, such as Netflix, 
Hulu, and Amazon, if those applications are pre-installed on digital 
apparatus or manufacturers direct consumers to install such 
applications. We find that Section 204 requires the manufacturer of the 
digital apparatus on which these types of video applications are pre-
installed to ensure that the application's user interfaces are 
accessible. We expect in these instances that the manufacturers of the 
pre-installed video applications will cooperate with the device 
manufacturers to ensure the accessibility of such applications. Not 
included in the definition of a digital apparatus under Section 204 is 
any ``third-party software that is downloaded or otherwise added to the 
device independently by the consumer after sale and that is not 
required by the manufacturer to enable the device to play video.'' \40\
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    \38\ We find that Section 204's inclusion of the term 
``digital'' to modify the term apparatus, a modifier not present in 
Section 203, does not require that we establish a different 
definition for purposes of Section 204, given that all apparatus are 
digital apparatus and no purely analog apparatus are currently being 
manufactured. Indeed, the only two commenters to directly address 
the modifier's inclusion, ACB and NAD/Consumer Groups, agreed that 
the term's inclusion does not require a different implementation of 
Section 204 from that used for Section 203.
    \39\ In addition, if a manufacturer offers updates or upgrades 
to a video player component of a device, it must also ensure that 
those updates or upgrades meet the accessibility requirements of 
Section 204.
    \40\ Consistent with the approach taken in the IP Closed 
Captioning Order and ACS Order, we find that digital apparatus 
manufacturers are also responsible for software upgrades made 
available by the manufacturers for download.
---------------------------------------------------------------------------

    39. Consumer electronics manufacturers and commenters representing 
manufacturers support the Commission's tentative conclusion to adopt 
the same definition of digital apparatus in Section 204 as adopted for 
apparatus in Section 203, while consumer groups representing 
individuals with disabilities urge the Commission to include third-
party software and other methods of viewing video programming, such as 
video players on Web sites, within the scope of Section 204. While we 
are sympathetic to the concerns of the disability community with 
respect to accessibility of third-party software, we do not think that 
it would be reasonable to hold equipment manufacturers responsible for 
software components over which they have no control, nor do we think 
Congress intended that result. Unlike Section 205, which directly 
addresses the responsibility of software manufacturers, Section 204 has 
no such parallel language, and therefore we believe it is more 
appropriate to follow the same approach used in the ACS Order and IP 
Closed Captioning Order.
    40. We also adopt the NPRM's tentative conclusion that the 
inclusion of the phrase ``including apparatus designed to receive or 
display video programming transmitted in digital format using Internet 
protocol,'' a phrase not included in Section 203, should not result in 
a different interpretation of the scope of Section 204. As the NPRM 
stated, we believe this phrase is best interpreted as a clarification 
that Section 204 applies not only to traditional video-programming 
apparatus without IP functionality, such as non-IP enabled televisions, 
but also to devices with IP-functionality, such as ``smart'' TVs, 
tablets, and smartphones. No commenters objected to this tentative 
conclusion.
    41. In addition, we adopt the NPRM's tentative conclusion to 
interpret the term ``designed to,'' as used in Section 204, the same 
way that the Commission interpreted that term in the IP Closed 
Captioning Order. There, the Commission concluded that ``to determine 
whether a device is designed to receive or play back video programming, 
and therefore covered by the statute, we should look to the device's 
functionality, i.e., whether it is capable of receiving or playing back 
video programming.'' The consumer groups support this interpretation, 
but both Panasonic and the Telecommunications Industry Association 
(``TIA'') argue that the design intent of the manufacturer should play 
a role in determining whether devices are covered under Section 204. 
The Commission recently reaffirmed the interpretation of ``designed 
to'' made in the IP Closed Captioning Order and we see no reason to 
deviate from that interpretation here. We believe interpreting the 
phrase ``designed to'' to focus on a device's capability rather than 
the intent of the manufacturer provides more regulatory certainty for 
manufacturers and consumers. Conversely, Panasonic and TIA's 
interpretation could harm consumers by allowing the manufacturer to 
dictate unilaterally whether a device falls within the scope of the 
statute by claiming that they did not intend that a device be used for 
a particular purpose even if it in fact has that capability, which 
could render the

[[Page 77220]]

accessibility requirements of Section 204 effectively voluntary. We do 
not believe that Congress intended to allow manufacturers to evade the 
statutory requirements. No commenters addressed the NPRM's proposal to 
apply to Section 204 the limitation in Section 203 to apparatus 
``manufactured in the United States or imported for use in the United 
States.'' We believe it is appropriate to apply such a limitation to 
Section 204 in our implementing rules to clarify that our rules only 
apply to devices manufactured in the United States or imported for 
domestic use.

C. Entities Responsible for Compliance Under Section 205

    42. We conclude that both MVPDs leasing or selling navigation 
devices to their subscribers and equipment manufacturers placing 
navigation devices into the chain of commerce for purchase by consumers 
are responsible for complying with Section 205.\41\ In addition, we 
conclude that Section 205 imposes responsibilities on manufacturers of 
navigation device hardware and software.
---------------------------------------------------------------------------

    \41\ We find that the requirements of Section 205 would also 
apply to MVPDs in situations in which the MVPDs lease or otherwise 
give equipment to customers at no charge.
---------------------------------------------------------------------------

    43. Responsibility Under Section 303(bb)(1) of the Act For Making 
On-Screen Text Menus and Guides Audibly Accessible. Section 303(bb)(1) 
of the Act states, that ``if achievable (as defined in section 716), 
that the on-screen text menus and guides provided by navigation devices 
(as such term is defined in section 76.1200 of title 47, Code of 
Federal Regulations) for the display or selection of multichannel video 
programming are audibly accessible in real-time upon request, except 
that the Commission may not specify the technical standards, protocols, 
procedures, and other technical requirements for meeting this 
requirement[.]'' We find that both MVPDs that provide navigation 
devices to their subscribers and the manufacturers of navigation 
devices, such as retail set-top boxes with CableCARDs (e.g., TiVo 
boxes), that sell such devices to consumers at retail are responsible 
for providing compliant equipment under Section 303(bb)(1) of the 
Act.\42\ Section 205(b)(3) provides that ``[a]n entity shall only be 
responsible for compliance with the requirements added by the section 
with respect to navigation devices that it provides to a requesting 
blind or visually impaired individual.'' Section 205 does not define 
the terms ``provide'' and ``entity'' used in this provision. We believe 
the most reasonable interpretation of the word ``provide'' is to offer 
a navigation device to customers for lease or to place a navigation 
device into the chain of commerce for sale to consumers. It follows 
that the most reasonable interpretation of the word ``entity'' is an 
MVPD providing navigation devices for lease or purchase, and a 
navigation device manufacturer that places its navigation devices into 
the chain of commerce for sale to consumers. No commenters object to 
holding MVPDs and navigation device manufacturers responsible for 
compliance under Section 205,\43\ and commenting MVPDs and 
manufacturers of retail navigation devices appear to accept that they 
have the responsibility to provide compliant devices in accordance with 
the requirements of Section 303(bb)(1) of the Act. We clarify that 
MVPDs bear responsibility under Section 205(b)(3) only for the devices 
they directly provide to customers.\44\ Therefore, an MVPD would not be 
responsible for ensuring the compliance of a device that one of its 
customers procures at retail or through some other means and then uses 
to obtain MVPD service, because the MVPD is not providing that device. 
We note that the navigation device manufacturer would have compliance 
responsibilities under Section 205 in the event the customer purchases 
at retail a CableCARD-compatible set-top box or other device containing 
conditional access functionality for use in obtaining MVPD service.
---------------------------------------------------------------------------

    \42\ We clarify, as requested by the American Cable Association 
(``ACA''), that Section 205 does not apply to a cable channel 
providing program listings, often in the form of a scrolling grid. 
ACA requested clarification that the requirements of Section 205(a) 
do not apply to ``a separate video channel that displays over the 
course of a few minutes the title of the program currently playing 
on each network carried by the system.'' While Section 205 applies 
accessibility requirements to ``the on-screen text menus and guides 
provided by navigation devices,'' see 47 U.S.C. 303(bb)(1), ACA 
explains that the information offered on such a programming channel 
``is provided entirely by equipment in the cable headend, and not by 
any navigation device on the customer's premises that has been 
provided by the cable operator.'' Therefore, a cable channel 
providing program listings is not required to be made accessible by 
Section 205. Similarly, as requested by ACA, we clarify that, to the 
extent that an MVPD does not provide navigation devices to its 
subscribers, it is not directly subject to the requirements of 
Section 205. We note that no party opposed ACA's requests for 
clarification.
    \43\ We note that both AFB and NAD/Consumer Groups generally 
object to including navigation devices other than MVPD-provided 
navigation devices within the scope of Section 205, but would have 
the Commission hold the manufacturers of these non-MVPD-provided 
navigation devices responsible for compliance under Section 204.
    \44\ As we discuss below, MVPDs may also have separate Section 
205 compliance responsibilities pursuant to Section 303(bb)(3)(A) of 
the Act if the MVPD is the manufacturer of navigation device 
hardware or software, including pre-installed MVPD applications.
---------------------------------------------------------------------------

    44. Responsibility Under Section 303(bb)(2) of the Act for 
Providing Ready Access to Captions. Section 303(bb)(2) of the Act 
provides that ``for navigation devices with built-in closed captioning 
capability, [ ] access to that capability through a mechanism is 
reasonably comparable to a button, key, or icon designated for 
activating the closed captioning or accessibility features[.]'' We find 
that both MVPDs that provide navigation devices to their customers 
(either for purchase or lease) and the manufacturers of navigation 
devices that place devices into the chain of commerce for sale to 
consumers are the entities responsible for providing compliant 
equipment--including the mechanism required under Section 303(bb)(2) of 
the Act. No commenters argue that MVPDs and navigation device 
manufacturers should not be held responsible for compliance under 
Section 205 and we believe the most reasonable approach in implementing 
Section 205 is to hold those entities responsible for providing devices 
that comply with both Sections 303(bb)(1) and 303(bb)(2) of the Act as 
these entities are best positioned to ensure that the devices they 
lease or manufacture have a compliant closed captioning activation 
mechanism.
    45. Responsibility of Manufacturers of Navigation Device Hardware 
and Software. In addition to our finding that Section 205 imposes 
responsibilities on MVPDs who lease or sell navigation devices and on 
manufacturers who sell navigation devices at retail, we also find that 
Section 205 imposes responsibility on the manufacturers of navigation 
device hardware and software, even if they are not the entity that 
leases or sells the navigation device to consumers. Section 303(bb)(3) 
of the Act provides that ``with respect to navigation device features 
and functions--(A) delivered in software, the requirements set forth in 
this subsection shall apply to the manufacturer of such software; and 
(B) delivered in hardware, the requirements set forth in this 
subsection shall apply to the manufacturer of such hardware.'' The NPRM 
requested comment on the meaning of this provision. We find that these 
provisions require that manufacturers of navigation device hardware and 
software each have responsibility to ensure that the navigation device 
accessibility features are functional.\45\ For instance, if the

[[Page 77221]]

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

    \45\ Such a responsibility also includes ensuring that any 
updates or upgrades that a manufacturer may offer meet the 
accessibility requirements of Section 205.
---------------------------------------------------------------------------

    46. We agree with Verizon's formulation that this provision should 
be interpreted consistent with other provisions of the CVAA so that the 
Commission has the authority to ``assign entities responsibility for 
compliance in accordance with their roles in any alleged 
noncompliance.'' Therefore, when the Commission receives a complaint 
regarding a violation of Section 205, the Commission will determine 
which entity (or entities), if any, is potentially responsible for the 
violation. The Commission will undertake this effort because it is 
better positioned than individual consumers to determine the 
potentially responsible entity. As discussed above, we find that the 
entity that provides a navigation device to a requesting blind or 
visually impaired individual (whether an MVPD or equipment manufacturer 
that places navigation devices into the chain of commerce) has a 
responsibility to provide that consumer with an accessible device. At 
the same time, we believe that the language of Section 303(bb)(3) of 
the Act requires us to recognize that MVPDs or manufacturers that 
supply navigation devices are not the only entities responsible for 
compliance under Section 205. Rather, there may be some instances in 
which the manufacturer of navigation device hardware or software fails 
to meet its Section 205 compliance responsibility and bears liability 
in addition to, the MVPD or manufacturer supplying the navigation 
device.\46\ We intend to investigate complaints and determine 
violations under Section 205 on a case-by-case basis. In adopting this 
interpretation of Section 205, we emphasize that even if a complaint 
proceeding results in a finding that a violation stems from a failure 
by the manufacturer of hardware or software included in navigation 
devices provided by MVPDs or sold at retail, such a finding would not 
relieve the MVPD or equipment manufacturer that placed the navigation 
device into the chain of commerce of its distinct and separate 
responsibility under Section 205 to ensure that a consumer is provided 
with an accessible device.\47\ Pursuant to the terms of Section 205, we 
have the authority to impose liability on any responsible party (or 
parties) that we find violate Section 205.
---------------------------------------------------------------------------

    \46\ ACB argues that MVPDs should not be able to shift 
responsibility onto manufacturers or software developers under 
Section 205 for the equipment the MVPD distributes. As our 
discussion herein indicates, MVPDs will not be able to shift 
responsibility for providing accessible devices to consumers onto 
navigation software and hardware manufacturers; however 
manufacturers of navigation device hardware and software also have 
compliance responsibilities under Section 205.
    \47\ For example, an MVPD that provided a device to a requesting 
blind or visually impaired subscriber that the MVPD believed was 
accessible but had a hardware or software malfunction that rendered 
the device inaccessible would still be responsible for providing 
that subscriber with a working device that provided accessibility; 
it could not merely point to the hardware or software manufacturer 
and escape liability for its own obligations. Similarly, if a 
hardware or software failure on a retail navigation device occurred 
that rendered the device inaccessible, the manufacturer that placed 
the navigation device into the chain of commerce would have 
responsibility under the Act to ensure that the customer had a 
functioning accessible device. In a situation in which a device is 
classified as a navigation device because it has a pre-installed 
MVPD application, the equipment manufacturer of that navigation 
device is responsible for providing accessible devices to requesting 
blind or visually impaired individuals, and would not be relieved of 
that responsibility by virtue of the fact that the device was not 
compliant as a result of a software problem with the MVPD 
application that caused the application itself to become 
inaccessible. As discussed, in all these instances the entity 
providing the device, the hardware manufacturer, and the software 
manufacturer are all potentially liable for violations of Section 
205. Of course, in many instances, the manufacturer of the hardware 
or software in a given device may be the MVPD or navigation device 
manufacturer itself.
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    47. When a device that would otherwise be a digital apparatus 
becomes a navigation device because the device manufacturer installs an 
application that performs conditional access so that a consumer can 
access multichannel video programming or other services offered over 
multichannel video programming systems (hereinafter collectively 
referred to as ``MVPD applications''), we find that pursuant to Section 
303(bb)(3)(A), Section 205 applies.\48\ Therefore, to the extent that 
an MVPD application makes use of ``text menus and guides'' ``for the 
display or selection of multichannel video programming,'' such text 
menus and guides must be made audibly accessible. In addition, if the 
device on which the MVPD application is installed has built-in closed 
captioning,\49\ the application must have a ``mechanism reasonably 
comparable to a button, key, or icon designated for activating the 
closed captioning.'' \50\ For instance, an application offered by an 
MVPD that enables subscribers to watch multichannel video programming 
on a mobile device that was pre-installed by the mobile device 
manufacturer would need to be made accessible pursuant to the 
requirements of Section 205.\51\
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    \48\ NCTA agrees that when an MVPD application is pre-installed 
on a device, its on-screen text menus and guides must be made 
accessible.
    \49\ After the effective date of the regulations adopted under 
Section 203 of the CVAA in the IP Closed Captioning Order, new 
navigation devices with video players that are capable of 
downloading MVPD-provided applications will generally have built-in 
closed captioning capability. We also note that MVPDs are required 
under the rules adopted by the IP Closed Captioning Order to pass 
through or render closed captioning on MVPD applications. In 
requiring that pre-installed MVPD applications make the closed 
caption activation mechanism accessible, our rules are ensuring that 
Sections 202, 203, and 205 of the CVAA are working in tandem to make 
the captioning both available on the hardware and software and 
easily accessible.
    \50\ NCTA argues that even if MVPD applications are subject to 
Section 205, those applications would not be required to provide a 
closed captioning activation mechanism reasonably comparable to a 
button, key, or icon because Section 303(bb)(2) of the Act only 
applies to ``navigation devices with built-in captioning 
capability'' and MVPD applications downloaded on a third-party 
device are not ``built-in'' to the device. We disagree with NCTA's 
interpretation. Section 303(bb)(3)(A) of the Act applies the 
accessibility requirements of Section 205, including the closed 
captioning activation mechanism requirement, to the manufacturers of 
software to the extent a navigation device's features and functions 
are being delivered in software. The pre-installed MVPD application 
itself need not be considered a navigation device for the 
manufacturers of the application's software to have compliance 
responsibilities under Section 303(bb)(3)(A) of the Act.
    \51\ Similar applications to those offered by MVPDs that use 
text menus and guides for the display or selection of multichannel 
video programming and allow consumers to access multichannel video 
programming and other services, such as the TiVo application for 
smartphones and tablets, would also need to be made accessible under 
Section 205 if such applications were pre-installed by the device 
manufacturer. We are not addressing here other services that provide 
access to video programming, such as Netflix, Hulu, and Amazon, 
though we note pursuant to our Section 204 analysis that these video 
applications must be made accessible under Section 204 if pre-
installed by the digital apparatus manufacturer.
---------------------------------------------------------------------------

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

[[Page 77222]]

manufacturer of . . . hardware'' when ``navigation device features and 
functions'' are ``delivered in hardware.'' If Congress intended the 
only responsible entities under Section 205 to be those that provided 
navigation devices to requesting blind or visually impaired 
individuals, there would have been no need for Congress to include the 
provisions of Section 303(bb)(3) of the Act. We believe our 
interpretation of Section 205 is more reasonable as it gives effect to 
all provisions of the statue.\52\ That is, under our interpretation, 
both the manufacturer of the navigation device and the manufacturer of 
the software application are held responsible for ensuring compliance 
with Section 205's requirements.
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    \52\ Prior to NCTA's October 24, 2013 ex parte letter on this 
issue, NCTA, AFB, and ACB, stated that ``Section 205 grants MVPDs 
maximum flexibility to provide a requesting customer an accessible 
solution and should not be construed to require that MVPD-provided 
apps running on third-party devices must be accessible regardless of 
whether the MVPD provides the customer with another accessible 
solution.'' While we appreciate the industry working to achieve 
consensus with the organizations representing individuals with 
disabilities, we do not believe this agreement represents the 
correct legal interpretation of Section 205. As an initial matter, 
we note that the provisions of Section 205 that grant ``maximum 
flexibility'' to the entity responsible for compliance grant such 
maximum flexibility to ``the entity providing the navigation 
device.'' When an MVPD application is pre-installed on a device by 
that device's manufacturer, the device manufacturer is the ``entity 
providing the navigation'' device and is entitled to the maximum 
flexibility in complying with Section 205, not the MVPD. The MVPD in 
this example, as the manufacturer of the pre-installed application, 
is the manufacturer of a ``navigation device feature and function 
delivered in software.'' Under Section 205, the software 
manufacturer is not given ``maximum flexibility'' to select the 
manner of compliance. Instead, Section 303(bb)(3)(A) of the Act 
simply requires the software manufacturer to make its software 
functionality compliant. In other words, unlike with respect to the 
entity providing the consumer with the navigation device, Section 
205 gives no leeway to the software manufacturer to provide a 
separate solution to comply with the CVAA's requirements. In any 
event, even if the ``maximum flexibility'' provision of Section 205 
were to apply here, it would give the entity flexibility to select 
the ``manner of compliance,'' not to select whether or not to 
comply. Moreover, the fact that an MVPD may provide compliant 
navigation devices to its subscribers that choose to lease or 
purchase such a device from the MVPD, does not relieve the MVPD from 
its potential separate compliance obligation as a software 
manufacturer of a pre-installed MVPD application to make such an 
application accessible. We observe that NCTA's subsequent ex parte 
submissions appear to acknowledge that MVPD applications must be 
made accessible if pre-installed; they argue the responsibility for 
ensuring such accessibility is on the navigation device provider.
---------------------------------------------------------------------------

    49. We note that the entity providing the navigation device with 
the pre-installed MVPD application (which may be an MVPD, but in most 
cases we anticipate will be the equipment manufacturer that placed the 
navigation device into the chain of commerce) will be responsible for 
ensuring the accessibility of on-screen text menus and guides for the 
display or selection of multichannel video programming on its device to 
requesting blind or visually impaired individuals.\53\ In the event 
that the provider of the navigation device and the software 
manufacturer of the MVPD application use an accessibility solution that 
incorporates the accessibility into the application itself, the 
software manufacturer would also have responsibility for compliance 
under Section 303(bb)(3)(A).\54\ In such circumstances, we believe that 
the most reasonable interpretation of Section 303(bb)(3)(A) is to find 
that the MVPD itself is the ``manufacturer'' of its software 
application because under the current marketplace reality, the MVPD has 
exclusive rights to offer such software for use by its subscribers.\55\ 
Therefore, the MVPD, as the software manufacturer, has a responsibility 
under Section 303(bb)(3)(A) of the Act for ensuring that its pre-
installed software applications meet the accessibility requirements of 
Section 205.\56\ Similarly, the hardware manufacturer of the navigation 
device with the pre-installed MVPD application has a responsibility 
under Section 303(bb)(3)(B) of the Act for ensuring that the device's 
hardware allows for the accessibility of the pre-installed MVPD 
application.
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    \53\ Pursuant to the Act, the entity providing the navigation 
device to the consumer is obligated to provide audible accessibility 
of the MVPD application's text menus and guides ``upon request'' to 
individuals who are blind or visually impaired and has the maximum 
flexibility in determining the manner by which the MVPD application 
is made audibly accessible.
    \54\ We find that an MVPD application that allows a consumer to 
access and navigate an MVPD's video programming is delivering 
``navigation device features and functions'' within the meaning of 
Section 303(bb)(3)(A) of the Act because the installation and use of 
applications is a feature or function of a navigation device with 
the MVPD application pre-installed by the device manufacturer. NCTA 
is correct that Section 205 does not require the MVPD application 
itself to provide accessibility; the entity providing the navigation 
device can choose the means by which the text menus and guides of 
the application are made accessible.
    \55\ In the case of a third-party application that offers access 
to multichannel video programming but is not provided by the MVPD, 
such as the TiVo application, the third-party provider of the 
application would be the ``manufacturer'' under Section 205. For 
instance, using the example of TiVo's application referenced above, 
TiVo would be the responsible entity under Section 205.
    \56\ Some MVPD commenters argue that imposing accessibility 
requirements on MVPD applications will stunt the development of this 
type of software as it will require MVPDs to ensure that their 
applications are accessible across numerous platforms. However, 
MVPDs will only have compliance obligations in relation to MVPD 
applications that are pre-installed on devices. In these 
circumstances, the MVPD will have already consented to have its 
application pre-installed, and thus presumably has coordinated with 
the device manufacturer. To the extent that, in certain 
circumstances, an MVPD believes that it will not be ``achievable'' 
to build accessibility into its application as installed on certain 
platforms, it is free to seek a determination that it is not 
``achievable.'' DIRECTV, LLC (``DIRECTV'') argues that it would be 
``grossly unfair'' to require MVPDs to design accessible software 
under Section 205 while other non-MVPD distributors of video 
programming would not be required to provide accessible software 
applications. To the contrary, we find that our approach treats both 
MVPD applications and other video applications similarly. As our 
above discussion of Section 204 explains, pre-installed video 
applications on digital apparatus subject to Section 204 must be 
made accessible similarly to how pre-installed MVPD applications on 
navigation devices must be made accessible under Section 205.
---------------------------------------------------------------------------

    50. While some commenters would have us apply Section 205 to all 
MVPD applications, regardless of whether they are pre-installed by the 
manufacturer of the device or later downloaded by the consumer after 
purchase, at this time, we only impose obligations under Section 205 on 
MVPD applications that are pre-installed on devices. We believe such an 
approach is reasonable because in these instances, the manufacturer 
will only be responsible for ensuring the accessibility of applications 
that it chooses to pre-install on devices. Moreover, MVPDs will have 
consented to such pre-installation and will be well positioned to work 
with manufacturers to ensure the accessibility of pre-installed 
applications. Such an approach is also consistent with the approach 
taken in the IP Closed Captioning Order and ACS Order, where the 
Commission found that the CVAA provisions being implemented in those 
proceedings did not apply to ``third-party software'' the installation 
of which is not controlled or directed by the manufacturer. MVPD 
commenters and CEA argue that Section 205 does not provide the 
Commission with authority to regulate software applications because 
MVPD applications are not ``devices'' or ``equipment'' and therefore do 
not meet the definition of a navigation device under Sec.  76.1200(c) 
of the Commission's rules. However, our conclusion that pre-installed 
MVPD applications must be covered under Section 205 is not predicated 
on MVPD applications themselves being navigation devices,\57\ it is 
predicated on MVPD applications being a ``navigation device feature[ ] 
or function[ ]'' that is ``delivered in software'' under Section 
303(bb)(3)(A) of the Act, which imposes responsibility for compliance 
under Section 205 directly on the manufacturers of navigation device

[[Page 77223]]

software. With respect to MVPD applications that are not pre-installed 
by the device manufacturer, but rather installed by consumers after 
purchase, the record indicates that MVPDs and software application 
manufacturers will face significant technical challenges in ensuring 
that consumer-installed MVPD applications comply with Section 205 on 
all devices.\58\ Given these technological challenges, we believe at 
this time it is not appropriate to impose compliance obligations under 
Section 205 on MVPD applications that are not pre-installed by device 
manufacturers.\59\
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    \57\ Rather, the navigation device is the device that includes 
the pre-installed MVPD application.
    \58\ Commenters that support requiring the accessibility of all 
MVPD applications do not provide countervailing evidence.
    \59\ We will continue to monitor the development of accessible 
technology in this area and will reevaluate whether we should 
require the accessibility of consumer-installed MVPD applications at 
a later date if it appears necessary to ensure access to MVPD 
programming by people who are blind or visually impaired.
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    51. Other Entities. We disagree with AFB that Section 205(b)(3) 
requires that we impose Section 205 requirements on businesses such as 
restaurants and bars because such business make ``navigation devices . 
. . available to their customers'' and therefore ``must provide 
accessible equipment upon the request of a customer who is blind or 
visually impaired.'' We also decline to impose obligations on consumer 
electronics retailers, as AT&T Services, Inc. (``AT&T'') suggests.\60\ 
There is no indication that Congress intended to apply Section 205 to 
any entities other than MVPDs and manufacturers of hardware and 
software included in navigation devices. If Congress had intended to 
extend Section 205's reach to cover retailers or businesses such as 
those in the travel, entertainment, or food industries that purchase or 
lease navigation devices for the use of their customers, we believe it 
would have done so explicitly. As noted above, however, other federal 
laws may impose accessibility obligations on some of the businesses 
that AFB discusses that are not contemplated by the provisions of the 
CVAA.
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    \60\ We also disagree with AFB that a literal interpretation of 
Section 205(b)(3) would require that the Commission impose 
obligations on resellers of used consumer electronics, such as 
Goodwill.
---------------------------------------------------------------------------

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

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

1. Section 204 Requirements for Digital Apparatus
    52. As mandated by Section 204, we adopt rules requiring that 
covered ``digital apparatus'' ``if achievable . . . be designed, 
developed, and fabricated so that control of appropriate built-in 
apparatus functions are accessible to and usable by individuals who are 
blind or visually impaired.'' 47 U.S.C. 303(aa)(1). We also adopt rules 
to ensure that ``if on-screen text menus or other visual indicators 
built in to the digital apparatus are used to access the [appropriate 
built-in] functions of the apparatus . . . such functions shall be 
accompanied by audio output that is either integrated or peripheral to 
the apparatus, so that such menus or indicators are accessible to and 
usable by individuals who are blind or visually impaired in real-
time.'' Id. 303(aa)(2). In the discussion that follows, we set forth 
the compliance requirements for manufacturers of covered apparatus with 
regard to accessibility of appropriate built-in functions and related 
on-screen text menus and visual indicators.
    53. Accessibility of Appropriate Built-In Apparatus Functions. We 
require that covered digital apparatus ``if achievable . . . be 
designed, developed, and fabricated so that control of appropriate 
built-in apparatus functions are accessible to and usable by 
individuals who are blind or visually impaired.'' As discussed more 
thoroughly below, we find that the ``appropriate'' built-in apparatus 
functions are those functions that are used for the reception, play 
back, or display of video programming and that, at this time, those are 
limited to the VPAAC 11 essential functions.\61\ Further, we clarify 
that an apparatus covered by Section 204 is not required to include all 
11 functions if those functions are not otherwise included in the 
device generally. That is, we do not impose an obligation on a 
manufacturer to add any of the 11 functions; rather, we require only 
that those functions that are already included in the device be made 
accessible.
---------------------------------------------------------------------------

    \61\ As described herein, in the VPAAC Second Report: User 
Interfaces, the VPAAC ``define[d] the set of [11] functions 
considered essential to the video consumption experience.''
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    54. In the NPRM, we tentatively concluded that the ``appropriate'' 
functions that must be made accessible under Section 204 include all 
user functions of a covered device, with the exception of diagnostic 
and debugging functions. ACB, Verizon, and the Rehabilitation 
Engineering Research Center for Wireless Technologies (``Wireless 
RERC'') agree that all user functions on a covered device should be 
made accessible.\62\ However, a number of industry commenters explain 
that multipurpose devices include functions unrelated to the display of 
video programming, and they argue that the tentative conclusion is 
overbroad because it encompasses those functions. For example, the 
Entertainment Software Association (``ESA'') argues that the NPRM's 
tentative conclusion ``is broader than needed to achieve the 
accessibility goals behind Sections 204 and 205, which clearly are 
focused on video programming,'' and ``also creates significant 
uncertainty for manufacturers in determining how to handle other device 
functions that are completely unrelated to video programming, such as 
game play features of a game console.'' Other commenters argue that 
imposing accessibility requirements on all user functions of a device 
is contrary to the plain language of the statute, which imposes 
obligations only with respect to ``appropriate built-in apparatus 
functions.'' Upon further consideration of the arguments raised in the 
record, we decline to adopt our tentative conclusion to extend Section 
204 accessibility requirements to all user functions of a device, 
excluding diagnostic and debugging functions. We agree with commenters 
that Congress's use of the term ``appropriate'' as a qualifier 
indicates that it did not intend for the requirements to broadly cover 
user functions that are unrelated to video programming.
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    \62\ ACB and the Wireless RERC disagree with the NPRM's 
tentative conclusion to the extent that it excludes diagnostic and 
debugging functions from accessibility requirements. Although AFB's 
reply comments expressed support for the proposal in the NPRM that 
all functions must be made accessible under Section 204, a later ex 
parte letter that AFB filed jointly with CEA states that the 11 
essential functions identified by the VPAAC are the set of functions 
subject to Section 204 accessibility requirements.
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    55. Instead, we conclude that the ``appropriate'' apparatus 
functions are those functions that are used for the reception, play 
back, or display of video programming. We believe that interpreting 
``appropriate'' user functions to include those related to video 
programming and to exclude those unrelated to video programming is 
consistent with the intent of the CVAA ``to help ensure that 
individuals with disabilities are able to . . . better access video 
programming.'' We also believe that this interpretation of the term 
``appropriate'' is consistent with the scope of Section 204, which 
specifies that covered digital apparatus are those that ``receive'' or 
``play back'' video programming transmitted in digital format 
simultaneously with sound, as well as those that ``receive'' or 
``display'' video programming transmitted in digital format via 
Internet protocol. Commenters including CEA, CTIA--The

[[Page 77224]]

Wireless Association (``CTIA''), ESA, and Panasonic agree that 
``appropriate'' built-in apparatus functions should encompass only 
those functions that relate in some manner to video programming. In 
particular, CEA suggests that ``[b]ecause Section 204 applies 
specifically to digital apparatus designed to receive or play back 
video programming, the functions to be considered `appropriate' are 
limited to those that are necessary for the apparatus to receive or 
play back that programming.'' We are concerned, however, that the 
``necessary for'' formulation put forth by CEA may be construed more 
narrowly than Congress had intended, resulting in the exclusion of some 
appropriate functions that are related to video programming from the 
accessibility requirements of Section 204. We believe that the approach 
more consistent with Congress's intent is to interpret ``appropriate'' 
more broadly as including those functions that are used for the 
reception, play back, or display of video programming. Further, we 
disagree with AT&T's and CEA's contention ``that Congress used the word 
`appropriate' to mean `appropriate for a person who is blind or 
visually impaired' '' and, therefore, ``appropriate'' apparatus 
functions should include only ``those functions that a person who is 
blind or visually impaired would need to use to select or access video 
programming.'' As AFB explains, ``if a control or function is made 
available to all customers generally, there should be a presumption 
that people who are blind or visually impaired, just like all other 
customers, may be expected, and possibly required, to use it.'' We 
agree with AFB that we should presume that any functions used to 
receive, play back, or display video programming would be used by a 
person who is blind or visually impaired and, therefore, there is no 
need to distinguish between video programming functions that would and 
``would not be used by a person with a vision disability'' for purposes 
of determining which functions are ``appropriate'' under Section 204.
    56. We disagree with commenters who suggest that manufacturers 
should have the discretion to determine which functions are 
``appropriate.'' We believe that leaving this determination to the 
discretion of manufacturers will lead to inconsistencies in compliance 
across devices and uncertainty for consumers with regard to which video 
programming functions are required to be accessible on covered 
apparatus. The discretionary framework suggested by these commenters 
could lead to a chaotic retail experience for consumers who could not 
be certain which functions would be accessible on particular devices. 
We also believe that allowing manufacturers to dictate which functions 
are ``appropriate'' is potentially harmful to consumers to the extent 
manufacturers can unilaterally decide not to make certain functions 
accessible to individuals with visual disabilities, even if such 
functions are related to video programming. Given these concerns, we 
believe the suggested approach would be at odds with the intent of the 
CVAA to make the functionality of the apparatus ``accessible to and 
usable by individuals who are blind or visually impaired.'' We find 
that instead of permitting manufacturers to decide which functions on a 
covered device are the ``appropriate'' functions subject to 
accessibility requirements, we will provide clarity to the industry and 
consumers by specifying which user functions we consider to be 
``appropriate'' (i.e., used for the reception, play back, or display of 
video programming).
    57. We find that, at this time, the 11 essential functions 
identified in the VPAAC Second Report: User Interfaces are the 
``appropriate'' built-in apparatus functions used for the reception, 
play back, or display of video programming that must be made accessible 
to individuals who are blind or visually impaired pursuant to Section 
204 if these functions are included in the device. Thus, we decline to 
adopt our tentative conclusion that the VPAAC functions are 
representative, but not an exhaustive list, of the categories of user 
functions on an apparatus that must be made accessible.\63\ We note 
that AFB and CEA agree with limiting the ``appropriate'' functions to 
the VPACC 11 essential functions. In its report, the VPAAC observed 
that ``the CVAA does not define the set of intended functions that must 
be made accessible and usable by individuals with disabilities,'' and, 
thus, as its first task, the VPAAC ``define[d] the set of functions 
considered essential to the video consumption experience,'' as 
``applicable to devices covered under CVAA Section 204 and CVAA Section 
205.'' We recognize that the VPAAC was not specifically instructed to 
determine the ``appropriate'' user functions referred to in Section 204 
of the CVAA, nor are we bound by the VPAAC's recommendations. We attach 
great weight, however, to their findings on this subject, which were 
based on deliberations among industry and consumer representatives. The 
VPAAC defined these ``essential functions'' as the ``set of appropriate 
built-in apparatus functions'' under Section 204. We concur with the 
VPAAC and find that, at this time, the apparatus functions that must be 
made accessible to individuals who are blind or visually impaired if 
they are included in the device \64\ are the following: \65\
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    \63\ The record reflects opposing views with regard to this 
tentative conclusion. ACB, NAD/Consumer Groups, Montgomery County, 
Maryland (``Montgomery County''), Verizon, and the Carl and Ruth 
Shapiro Family National Center for Accessible Media at WGBH 
(``NCAM'') agree with the tentative conclusion. These commenters 
maintain that Congress did not intend for Section 204 to apply to a 
subset of user functions deemed ``essential'' by an advisory 
committee, and that the list of essential functions delineated by 
the VPAAC omits certain video programming-related functions that 
should be made accessible. On the other hand, numerous industry 
commenters argue that the 11 VPAAC functions comprise an exhaustive 
list of apparatus functions that are subject to Section 204 
accessibility requirements, and they emphasize that the VPAAC viewed 
the 11 essential functions as the set of functions that must be made 
accessible under Section 204.
    \64\ Consistent with our analysis in Section III.B above, we 
emphasize that if a third-party video programming application is 
pre-installed by the manufacturer on a covered apparatus (i.e., if 
Netflix is pre-installed on a smart television), any of the 11 VPAAC 
functions that are included in that application must be made 
accessible.
    \65\ ACB and the Wireless RERC argue that diagnostic and 
debugging functions should be subject to accessibility requirements 
because users who are blind or visually impaired may need to make 
use of such functions, for example when receiving technical support 
over the phone. ACB also points out that the technicians who are 
expected to access and utilize diagnostic and debugging functions 
may themselves be blind or visually impaired. Although we understand 
that individuals who are blind or visually impaired may want to 
directly access diagnostic and debugging functions on occasion, the 
record does not demonstrate that there is a broad need for consumers 
to regularly access such functions in order to receive, play back, 
or display video programming. Therefore, at this time, we find that 
that the costs of imposing such a requirement outweigh its limited 
benefit. We also note that the VPAAC did not consider such functions 
to be essential to the video consumption experience.
---------------------------------------------------------------------------

     Power On/Off: Function that allows the user to turn the 
device on or off.
     Volume Adjust and Mute: Function that allows the user to 
adjust the volume and to mute or un-mute the volume.
     Channel/Program Selection: Function that allows the user 
to select channels and programs (e.g., via physical numeric or channel 
up/channel down buttons or via on-screen guides and menus).\66\
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    \66\ We interpret this to include, for example, the ability to 
select programs that are available on demand or on a digital video 
recorder (``DVR''), in addition to the ability to select linear 
programming that is available in real-time. We also interpret this 
to include the ability to launch applications that are used for the 
selection and display of video programming.
---------------------------------------------------------------------------

     Display Channel/Program Information: Function that allows 
the

[[Page 77225]]

user to display channel or program information.\67\
---------------------------------------------------------------------------

    \67\ We interpret this to include, for example, the ability to 
display channel and program information for programs that are 
available on demand or on a DVR, in addition to the ability to 
display channel and program information for linear programming that 
is available in real-time.
---------------------------------------------------------------------------

     Configuration--Setup: Function that allows the user to 
access and change configuration or setup options (e.g., configuration 
of video display and audio settings, selection of preferred language 
for on-screen guides or menus, etc.).\68\
---------------------------------------------------------------------------

    \68\ We interpret this to include, for example, the ability to 
change setup options for V-chip and parental controls.
---------------------------------------------------------------------------

     Configuration--CC Control: Function that allows the user 
to enable or disable the display of closed captioning.
     Configuration--CC Options: Function that allows the user 
to modify the display of closed caption data (e.g., configuration of 
the font size, font color, background color, opacity, etc.).
     Configuration--Video Description Control: Function that 
allows the user to enable or disable the output of video description 
(i.e., allows the user to change from the main audio to the secondary 
audio stream that contains video description, and from the secondary 
audio stream back to the main audio).
     Display Configuration Info: Function that allows the user 
to display how user preferences are currently configured.
     Playback Functions: Function that allows the user to 
control playback functions (e.g., pause, play, rewind, fast forward, 
stop, and record).\69\
---------------------------------------------------------------------------

    \69\ We interpret this to include, for example, the ability to 
control playback functions for programs that are available on demand 
or on a DVR, in addition to the ability to control playback 
functions for linear programming that is available in real-time.
---------------------------------------------------------------------------

     Input Selection: Function that allows the user to select 
their preferred input source.
    58. We emphasize that at this time we consider the abovementioned 
functions to be the set of ``appropriate'' functions that are used for 
receiving, playing back, or displaying video programming based on 
current technology, but the Commission may revisit this list if and 
when technology evolves to a point where devices incorporate new user 
functions related to video programming that were not contemplated by 
the VPAAC.\70\ We understand NAD/Consumer Groups' and other commenters' 
concern that ``[a]s technology evolves, we can expect more functions to 
be added to devices and apparatus.'' However, industry commenters argue 
that taking an expansive view of which apparatus functions are subject 
to accessibility requirements beyond the VPAAC 11 functions ``would 
leave apparatus manufacturers guessing what other functions are 
`appropriate,' and will stifle innovation.'' While we do not reach the 
conclusion here that incorporating accessibility features for functions 
other than the VPAAC 11 functions will stifle innovation, and believe, 
based on past experience, that the incorporation of access features in 
some cases can enhance innovation and result in the development of 
improved products for the general public,\71\ we agree that delineating 
the current set of ``appropriate'' functions with some specificity is 
necessary to eliminate uncertainty for manufacturers as they embark on 
designing and developing accessible products. We also believe that such 
an approach is consistent with our determination that decisions about 
what functions are made accessible should not be left to the discretion 
of manufacturers. The approach we implement balances the need to 
provide certainty to manufacturers when they are designing devices with 
the need to ensure that those functions currently used to receive, play 
back, or display video programming are made accessible to individuals 
who are blind or visually impaired, while also recognizing that the 
Commission may need to assess whether future, innovative functions on 
devices used to view video programming are subject to accessibility 
requirements.\72\ We strongly encourage digital apparatus 
manufacturers, when designing innovative new functions, to concurrently 
design such features to be accessible to individuals who are blind or 
visually impaired.
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    \70\ Any such modifications to this list will be made by the 
full Commission.
    \71\ As we have previously noted, in many instances, innovative 
accessibility features are used by people without disabilities. 
Closed captioning, an innovation originally designed to provide 
access to television programming for people who are deaf and hard of 
hearing, is now widely used by the general public in noisy 
locations, such as restaurants, bars, and exercise facilities, as 
well as locations where a quiet environment is preferred, such as 
legislative offices.
    \72\ A number of industry commenters advocate for the adoption 
of a safe harbor for the VPAAC 11 functions. We believe the approach 
we adopt is preferable because it provides more certainty to 
manufacturers and consumers, while allowing the Commission to 
reevaluate whether the set of functions that must be made accessible 
on covered apparatus should be updated to include new functions to 
the extent technology evolves in the future.
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    59. We clarify that an apparatus covered by Section 204 is not 
required to include all 11 functions deemed to be ``appropriate,'' 
understanding that some of these functions may not be provided for any 
users on certain devices. We agree with commenters that Section 204 
``do[es] not mandate the inclusion of any specific functions'' in the 
design of a covered apparatus. However, to the extent that an apparatus 
is designed to include an ``appropriate'' built-in apparatus function, 
such function must be made accessible in accordance with our rules.
    60. As contemplated by the Act, we do not adopt any technical 
standards or other technical requirements for how covered apparatus 
should make the appropriate built-in apparatus functions ``accessible 
to and usable by individuals who are blind or visually impaired.'' We 
believe that Congress's intent is clear, and the Commission is 
prohibited by Section 303(aa)(1) from specifying the technical means by 
which covered entities must meet their accessibility obligations.\73\
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    \73\ Section 303(aa)(1) of the Act states that ``the Commission 
may not specify the technical standards, protocols, procedures, and 
other technical requirements for meeting'' the accessibility and 
usability requirements of this section. 47 U.S.C. 303(aa)(1).
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    61. While we do not adopt rules specifying the technical 
requirements for compliance with the accessibility mandate in Section 
204, we will apply the definition of ``accessible'' in Sec.  6.3(a) of 
the Commission's rules to explain generally what ``accessible'' means 
for those functions that are not specifically required to be audibly 
accessible. To the extent the appropriate built-in apparatus functions 
are accessed through on-screen text menus or other visual indicators 
built in to the apparatus, the statute specifies that they must be made 
audibly accessible, and we find herein that this requirement is self-
implementing. However, if the appropriate built-in apparatus functions 
are not accessed through on-screen text menus or other visual 
indicators built in to the apparatus, they must be made accessible 
generally to individuals who are blind or visually impaired, but need 
not be made audibly accessible. In the NPRM, we asked whether we should 
apply relevant parts of the definition contained in Sec.  6.3(a) of the 
Commission's rules,\74\ 47 CFR 6.3(a), which implements Sections 255 
and 716 of the Act,\75\ to define what ``accessible''

[[Page 77226]]

means for those appropriate built-in apparatus functions that must be 
accessible, but are not specifically required to be audibly accessible 
(e.g., power on/off).\76\ ACB and Montgomery County support applying 
the definition of ``accessible'' in Sec.  6.3(a) to the requirements we 
adopt pursuant to Sections 204 and 205 of the CVAA. Although NCTA and 
DIRECTV oppose using the Sec.  6.3(a) definition of ``accessible'' in 
the context of Section 205 because the on-screen text menus and guides 
covered by Section 205 are specifically required by statute to be made 
audibly accessible, we do not propose to apply the definition in this 
context. To provide some clarity to industry in determining what it 
means to make a function generally accessible to individuals who are 
blind or visually impaired, we apply the following parts of Sec.  
6.3(a) of the Commission's rules to explain that ``accessible'' means:
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    \74\ The relevant parts of the definition include those 
provisions that relate to accessibility for individuals who are 
blind or visually impaired.
    \75\ Section 6.3(a) of the Commission's rules implements Section 
255 of the Act (requiring telecommunications providers and equipment 
manufacturers to make their products ``accessible to and usable by'' 
persons with disabilities), and Sec.  14.21(b) of the Commission's 
rules, which is analogous to Sec.  6.3(a), implements Section 716 of 
the Act (requiring providers of advanced communications services and 
manufacturers of equipment used for such services to make their 
products ``accessible to and usable by'' persons with disabilities). 
47 CFR 6.3(a), 14.21(b).
    \76\ We also inquired whether we should specify how a device 
accepts input from and provides feedback to users with respect to 
such functions. The VPAAC explained that user input refers to ``the 
need for users to be able to locate, identify, and interact with the 
control mechanism for each essential function of the device . . . in 
order to express their intent, for control of playback operations, 
setting preferences, making selections of content of interest, and 
the like,'' and that user feedback should ``not depend on the 
impaired ability.'' Verizon, the only commenter who addresses this 
issue, opposes any specific requirements with regard to user input 
and feedback. Given the concerns raised by Verizon about the 
potential to hinder innovation by mandating the mechanisms for user 
input and feedback, we decline at this time to adopt rules 
specifying user input and feedback requirements.
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    (1) Input, control, and mechanical functions shall be locatable, 
identifiable, and operable in accordance with each of the following, 
assessed independently:
    (i) Operable without vision. Provide at least one mode that does 
not require user vision.
    (ii) Operable with low vision and limited or no hearing. Provide at 
least one mode that permits operation by users with visual acuity 
between 20/70 and 20/200, without relying on audio output.
    (iii) Operable with little or no color perception. Provide at least 
one mode that does not require user color perception.
    62. Accessibility of On-Screen Text Menus or Other Visual 
Indicators Used to Access Appropriate Built-In Apparatus Functions. We 
codify the statutory language in Section 204 that requires ``that if 
on-screen text menus or other visual indicators built in to the digital 
apparatus are used to access the [appropriate built-in] functions of 
the apparatus . . ., such functions shall be accompanied by audio 
output that is either integrated or peripheral to the apparatus, so 
that such menus or indicators are accessible to and usable by 
individuals who are blind or visually impaired in real-time.'' In the 
NPRM, we tentatively concluded that the requirement that on-screen text 
menus or other visual indicators ``be accompanied by audio output'' is 
self-implementing. No commenter addresses this tentative conclusion, 
but Verizon and CTIA argue generally that the obligations imposed by 
Section 204 should be self-implementing. We adopt our tentative 
conclusion and find that this requirement is self-implementing, and 
therefore simply codify this requirement in our rules. Panasonic 
emphasizes that Section 204 applies only to those on-screen text menus 
or visual indicators that are used to access the appropriate built-in 
apparatus functions, and not to all on-screen text menus or visual 
indicators on a device, and that Section 204 permits the audio output 
functionality to be either integrated or peripheral to the device. We 
agree.
2. Section 205 Requirements for Navigation Devices
    63. We codify in our rules the language in Section 303(bb)(1) of 
the Act, which requires ``that the on-screen text menus and guides 
provided by navigation devices . . . for the display or selection of 
multichannel video programming are audibly accessible in real-time upon 
request by individuals who are blind or visually impaired.'' 47 U.S.C. 
303(bb)(1). In the discussion that follows, we set forth the compliance 
requirements for MVPDs and manufacturers with regard to accessibility 
of on-screen text menus and program guides on navigation devices. 
Specifically, we conclude that nine of the 11 VPAAC functions must be 
made audibly accessible on navigation devices because they are accessed 
through on-screen text menus and guides and used for the display or 
selection of multichannel video programming. We further conclude that 
the remaining two VPAAC functions must be made accessible to people who 
are blind or visually impaired because they are controls necessary to 
access covered functions, but that these need not be made audibly 
accessible. In addition, as we did with regard to Section 204, we find 
that the audible accessibility requirement is self-implementing, and 
therefore simply codify this requirement in our rules.
    64. In the NPRM, we tentatively concluded that all user functions 
that are offered via on-screen text menus and guides should be 
accessible on navigation devices covered by Section 205. We also sought 
comment on whether there should be any substantive difference between 
the functions of apparatus that must be accessible under Section 204 as 
opposed to the functions of navigation devices that must be accessible 
under Section 205. With the exception of ACB and AT&T,\77\ commenters 
argue that Congress adopted distinct requirements for apparatus subject 
to Section 204 and navigation devices subject to Section 205. According 
to these commenters, navigation devices subject to Section 205 are 
governed by a more narrow provision that focuses on access to ``on-
screen text menus and guides . . . for the display or selection of 
multichannel video programming,'' whereas Section 204 applies more 
broadly to the ``appropriate built-in functions'' of an apparatus. As 
discussed below, we take these differences into account in our 
analysis. Further, commenters point out that a navigation device may 
include functions unrelated to video programming. Thus, based on the 
record, we no longer believe it is accurate to conclude that all of a 
navigation device's user functions that are activated via text menus 
and guides are used for the display or selection of multichannel video 
programming. Instead, we agree with DIRECTV that we ``must determine 
which functions or categories of functions on a navigation device 
properly relate to the display or selection of multichannel video 
programming.''
---------------------------------------------------------------------------

    \77\ As discussed above, we disagree with ACB's contention that 
Section 205 devices are a subset of Section 204 devices.
---------------------------------------------------------------------------

    65. Thus, we decline to adopt our tentative conclusion that all 
user functions that are offered via on-screen text menus and guides 
should be accessible on navigation devices, and instead find that 
Section 205 requires audible accessibility for those navigation device 
functions that are offered via on-screen text menus and guides and used 
for the display or selection of multichannel video programming, and 
more general accessibility for controls necessary to access those 
covered functions. For the same reasons we expressed in the Section 204 
context, we disagree with DISH Network L.L.C. and EchoStar Technologies 
L.L.C. (``DISH/EchoStar'') that the Commission should ``allow 
manufacturers to determine which functions of particular devices best

[[Page 77227]]

satisfy the requirements of [Section 205 of] the CVAA.'' If a function 
is provided via an on-screen text menu or guide and it is used for the 
display or selection of multichannel video programming, Section 205 
mandates that it must be made audibly accessible. Our rules 
implementing Section 205 will reflect this mandate. Also, consistent 
with our implementation of Section 204, we are not requiring covered 
entities to add any particular functionality offered via an on-screen 
text menu or guide for the display or selection of video programming 
that it had not otherwise included on a navigation device. Rather, we 
require only that the functionality that is already included in the 
device be made accessible.
    66. Given the divergent views in the record, we believe it is 
necessary to specify which functions we consider to be used ``for the 
display or selection of multichannel video programming.'' In the NPRM, 
we asked whether making the VPAAC 11 essential functions accessible on 
navigation devices would achieve Section 205's requirement that on-
screen text menus and guides for the display or selection of 
multichannel video programming be made audibly accessible, and we 
tentatively concluded that the VPAAC 11 functions are representative, 
but not an exhaustive list, of the categories of functions that a 
navigation device must make accessible. Certain MVPD commenters argue 
that, while the VPAAC list may be useful in providing some examples of 
functions that should be made accessible under Section 205, it includes 
functions that are beyond the scope of the accessibility mandate in 
Section 205.
    67. Rather than adopt our tentative conclusion that the entire 
VPAAC list is representative of what functionality is required to be 
accessible pursuant to Section 205, we now identify nine of the 11 
functions on the VPAAC list of essential functions,\78\ as defined in 
paragraph 57 above, as those that are used for the display or selection 
of multichannel video programming and therefore, are required to be 
made audibly accessible on navigation devices under Section 205 if they 
are offered via an on-screen text menu or guide: Channel/Program 
Selection; Display Channel/Program Information; Configuration--Setup; 
Configuration--CC Control; Configuration--CC Options; Configuration--
Video Description Control; Display Configuration Info; Playback 
Functions; and Input Selection.\79\ We believe that all of these 
functions are used for the display of multichannel video programming. 
To be more specific, the functions ``Configuration--Setup'' and 
``Display Configuration Info'' are used to view and change the settings 
for the display of multichannel video programming; the functions 
``Channel/Program Selection'' and ``Display Channel/Program 
Information'' are used to select and display specific channels and 
programs of multichannel video programming; the functions 
``Configuration--CC Control'' and ``Configuration--CC Options'' are 
used to control and configure the captions that are part of the display 
of multichannel video programming; \80\ the function ``Configuration--
Video Description Control'' is used to control the audibly-described 
portions of the display of multichannel video programming; ``Playback 
Functions'' is used to play, pause, fast forward, and rewind 
multichannel video programming that is displayed; and ``Input 
Selection'' is used to select the input that permits the display of 
multichannel video programming. In addition, two of these functions--
``Channel/Program Selection'' and ``Display Channel/Program 
Information''--also are used for the selection of multichannel video 
programming.
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    \78\ We do not include the VPAAC categories of ``Power On/Off'' 
and ``Volume Adjust and Mute'' with the understanding that such 
functions are not typically accessed via on-screen text menus or 
guides, but instead, are functions that are accessed via a physical 
button on the remote control or device. However, we require these 
functions to be generally accessible because they are controls 
necessary to access covered functions.
    \79\ Although we find that these functions are used for the 
display of multichannel video programming and subject to Section 205 
audible accessibility requirements when they are accessed via an on-
screen text menu or guide, we note that to the extent such functions 
are provided by means of a mechanism other than an on-screen text 
menu or guide (e.g., if playback functions are accessed via 
dedicated play, pause, rewind, and fast forward buttons on a remote; 
if closed captioning or video description is activated through a 
dedicated button on a remote, etc.), they are not subject to Section 
205 audible accessibility requirements. However, we strongly 
encourage navigation device manufacturers to design such features to 
be accessible to individuals who are blind or visually impaired.
    \80\ We reject the presumption that a person who is blind or 
visually impaired does not need to access closed captioning features 
and that, therefore, closed captioning features should not be 
subject to Section 205 audible accessibility requirements. For 
example, a person who is both visually impaired and deaf or hard of 
hearing may use the closed captioning control and settings when 
viewing video programming.
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    68. We find unpersuasive the arguments of MVPD commenters for 
excluding certain of these nine functions from the audible 
accessibility requirements of Section 205. NCTA and DISH/EchoStar agree 
that most of the nine functions are accessed by means of on-screen text 
menus or guides for the display or selection of multichannel video 
programming covered by Section 205. NCTA argues that one category, 
``Input Selection,'' is not covered by Section 205 because it ``is 
generally performed by the television set or audio/video receiver'' and 
``is not part of an MVPD's program guide or menu.'' \81\ We note that 
navigation devices covered by Section 205 include not only MVPD-
provided set-top boxes but also CableCARD televisions and other 
navigation devices sold at retail and, therefore, it is appropriate to 
require that the ``Input Selection'' function, when offered via an on-
screen text menu or guide on any navigation device, be made accessible 
under Section 205.\82\ DISH/EchoStar argues that two categories, 
``Configuration--Setup'' and ``Display Configuration Info,'' are not 
covered by Section 205 because they are ``broad, umbrella categories of 
functions'' that ``may not relate to the display or selection of 
multichannel video programming.'' However, a configuration menu that is 
used to view or adjust the display settings for multichannel video 
programming on a navigation device is covered by Section 205, 
regardless of whether it can also be used to view or adjust the display 
settings for features other than multichannel video programming. 
DIRECTV contends that only four of the VPAAC 11 functions are required 
to be accessible under Section 205. We believe that DIRECTV's proposal 
is an inappropriately narrow interpretation of the phrase ``display or 
selection of video programming'' because it excludes five functions 
that we consider to be used for the display of video programming as 
explained in paragraph 67 above.\83\
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    \81\ We note that NCTA does not argue that the input selection 
function is not provided through on-screen text menus or guides, but 
rather that it is not provided at all on MVPD-provided navigation 
devices. As we note above, if a particular function is not included 
on a navigation device, then there is no obligation to add that 
functionality; rather, we require only that the functionality that 
is already included in the device be made accessible.
    \82\ However, when a navigation device accesses the input 
selection for that device or another device through a button on an 
included remote control, there is no obligation to make such a 
button accessible.
    \83\ Specifically, DIRECTV excludes ``Configuration--Setup,'' 
``Configuration--CC Control,'' ``Configuration--CC Options,'' 
``Configuration--Video Description Control,'' and ``Display 
Configuration Info.''
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    69. In the NPRM, we tentatively concluded that the statutory 
requirement that on-screen text menus or guides be audibly accessible 
is self-implementing. No commenter disagrees. Further, Section 
303(bb)(1) of the Act indicates that ``the Commission may not

[[Page 77228]]

specify the technical standards, protocols, procedures, and other 
technical requirements for meeting this requirement.'' Given this 
statutory limitation, we do not adopt any technical standards or other 
requirements for how navigation devices should make covered on-screen 
text menus and guides ``audibly accessible in real-time'' to 
individuals who are blind or visually impaired, and instead find that 
this requirement is self-implementing and codify it in our rules.
    70. DIRECTV, NCTA, and AT&T argue that the Commission should 
clarify that the audible accessibility requirement for text menus and 
guides does not require exactly replicating in audible form the 
complete on-screen text. We conclude that the audible accessibility 
requirement requires consumers to receive the essential information 
from the on-screen text menus and guides that they seek, but we do not 
require that the audible version of an on-screen text menu or guide be 
an exact replication of the text. We recognize that covered entities 
need flexibility in implementing the audible accessibility requirement 
so that they can best respond to the needs of consumers who are blind 
or visually impaired. For example, a consumer may not want the entire 
programming guide made audible but rather may just want to know what 
programming is on a particular channel. Similarly, there may be a need 
to provide relevant information that may not appear as on-screen text 
(for example, a contextual description such as ``displaying rows 10 
through 20 of 100 channels,'' or ``displaying menu 1 of 5 menus''). We 
emphasize, however, that all of the essential information from the on-
screen text menu or guide must be made audibly accessible as requested 
or selected by the consumer.\84\
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    \84\ We expect that covered entities will consult with 
individuals who are blind or visually impaired in their efforts to 
ensure that on-screen text menus and guides are made accessible in a 
manner that effectively meets the accessibility needs of those 
individuals.
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    71. Accessibility of Controls Needed to Access Covered Functions. 
We also conclude that covered entities must make certain functions 
accessible to individuals who are blind or visually impaired because 
they are necessary for individuals who are blind and visually impaired 
to access the audibly accessible on-screen text menus and guides for 
the display or selection of multichannel video programming. 
Specifically, we conclude that ``Power On/Off'' and ``Volume Adjust and 
Mute,'' as defined in paragraph 57 above, must be made accessible 
because they are necessary to make other covered functions of the 
device accessible. If a consumer who is blind or visually impaired 
cannot turn on a navigation device, then the device and all of its 
functionality are rendered inaccessible. And, if a consumer who is 
blind or visually impaired cannot adjust the volume to hear audible 
output, then those functions that are required to be audibly accessible 
under Section 205 are rendered inaccessible.\85\
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    \85\ The ability to control volume for audible output is 
particularly important for individuals who are blind or visually 
impaired and also deaf or hard of hearing.
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    72. We find our authority to require that these two functions be 
made accessible in Section 205(b)(1), Public Law 111-260, 205(b)(1), 
which provides the Commission with authority to ``prescribe such 
regulations as are necessary to implement'' the requirements in Section 
303(bb) of the Act. We find that requiring the power on/off and volume 
adjust/mute functions to be accessible is necessary to ensure that on-
screen text menus and guides for the display or selection of 
multichannel video programming are audibly accessible by individuals 
who are blind or visually impaired, as required by Section 303(bb)(1) 
of the Act. Congress's directive to require audibly accessible guides 
and menus for multichannel video programming on navigation devices 
would be meaningless if individuals who are blind or visually impaired 
are not even able to turn on the device or to adjust the volume. 
However, we do not require that the power on/off and volume controls be 
audibly accessible, so long as covered entities make these functions 
accessible to individuals who are blind or visually impaired, in 
accordance with the definition of ``accessible'' in Sec.  6.3(a) of the 
Commission's rules.
    73. Program Information for PEG Channels. We do not require MVPDs 
to include particular program information in their program guides at 
this time, but we inquire in the FNPRM about Commission authority to 
impose such a requirement. Aside from the comments of public, 
educational, and governmental (``PEG'') programmers, there is little 
discussion in the record about imposing such requirements. In 
particular, there is limited discussion in the record about the costs 
to MVPDs if we adopt this requirement and whether it would be 
technically feasible to require all MVPDs to include program titles and 
other information in their program guides.\86\ Montgomery County, the 
Alliance for Communications Democracy, the Alliance for Community 
Media, and the National Association of Counties et al., along with 
numerous providers of PEG programming from across the country 
(collectively, ``PEG commenters'') advocate for the Commission ``to 
adopt rules that would require video programming guides and menus which 
display channel and program information [to] include, for all channels, 
high level channel and program descriptions and titles, as well as a 
symbol identifying the programs with accessibility options (captioning 
and video description).'' \87\ PEG commenters argue that the level of 
information that is currently provided for PEG channels on MVPD program 
guides is inadequate to satisfy the accessibility goals of the CVAA 
because viewers who are blind or visually impaired are unable to 
determine from the guide what the PEG program options are and whether 
such programs are accessible and, thus, are unable to make meaningful 
video program choices.\88\
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    \86\ The only two industry commenters that respond to the PEG 
issue, NCTA and AT&T, argue that the proposed requirement is beyond 
the scope of the CVAA.
    \87\ In addition, a subset of PEG commenters contend that 
consumers who are blind or visually impaired face unique challenges 
in accessing PEG channels on AT&T's U-Verse system, and they ask the 
Commission to require that AT&T provide its U-Verse subscribers with 
access to PEG programming that is equivalent to the access provided 
to linear commercial programming channels on its system. We note 
that there is a separate Commission proceeding with a record that 
specifically addresses these issues, and the instant proceeding may 
not be the appropriate place to resolve these issues. We also note 
that, pursuant to the rules we adopt herein, AT&T will be required 
to ensure that the on-screen text guides for selecting PEG programs 
on U-Verse are audibly accessible.
    \88\ For this reason, PEG commenters argue that the Commission 
has direct authority under Section 205 of the CVAA to require MVPDs 
to provide more specific content in video programming guides and 
menus, as well as ancillary authority to do so.
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    74. We believe there is not sufficient information in the record to 
require MVPDs to include particular information in program guides. 
Section 205 of the CVAA requires that on-screen text menus and guides 
provided by navigation devices for the display or selection of 
multichannel video programming be made audibly accessible, but it does 
not govern the underlying content in the menus and guides. In other 
words, this section requires that if there is text in a menu or program 
guide on the screen, then that text must be audibly accessible, but it 
does not impose requirements with regard to what substantive 
information must appear in the on-screen text. To the extent a program 
guide lacks adequate information about the title and description of a 
program, this inadequacy affects the ability of all

[[Page 77229]]

subscribers to make meaningful program choices, not just the ability of 
those who are blind or visually impaired to do so. Although we find the 
record insufficient to decide this issue at this time, we seek comment 
in the FNPRM that accompanies the R&O on possible sources of authority 
for requiring MVPDs to include specific information for PEG programming 
in video programming guides and menus, as well as on the technical 
issues and costs for MVPDs to comply with such requirements. We 
recognize the important role of PEG providers in informing the public, 
including those who are blind or visually impaired, on local community 
issues, and we encourage MVPDs to provide more detailed information in 
their program guides for PEG programs where such information is 
provided by PEG providers and where it is technically feasible.
3. Performance Objectives
    75. At this time, we decline to adopt performance objectives to 
evaluate accessibility or compliance with the rules we adopt pursuant 
to Sections 204 and 205. As noted above, Section 303(aa)(1) of the Act 
prohibits the Commission from ``specify[ing] the technical standards, 
protocols, procedures, and other technical requirements for meeting'' 
the accessibility requirements of this section. Section 303(bb)(1) of 
the Act includes a similar restriction. In the NPRM, we inquired 
whether we can adopt specific metrics to evaluate accessibility and 
compliance with Sections 204 and 205, given this limitation. We also 
asked whether there are performance objectives or functional criteria 
that covered entities can look to voluntarily as an aid in meeting 
their Section 204 and 205 accessibility obligations. CTIA cautions that 
``[w]hile guidance from the Commission on what it means to be 
`accessible' may be appropriate and helpful, the rules should not 
contain any particular standards, objectives, or other metrics,'' 
because ``[s]uch `voluntary' standards or performance objectives will 
inevitably become the standards against which covered entities' 
accessibility approaches are judged, and so will serve as de facto 
requirements in contravention of Congress' intent.'' Because we are 
providing guidance on what it means to be ``accessible'' by applying 
the definition in Sec.  6.3(a) of the Commission's rules and because we 
do not wish to impede innovation in the design of accessible apparatus 
by prematurely adopting performance objectives, we decline to adopt any 
voluntary performance objectives, functional criteria, or any other 
specific metrics for accessibility at this time, but we can reconsider 
whether there is a need for voluntary guidelines on accessibility after 
the requirements go into effect. In the meantime, we encourage covered 
entities to engage in the type of voluntary effort envisioned by NCAM, 
which would involve coordination between industry and consumer groups 
on considering ``a set of common and translatable approaches'' to 
accessibility as a means to reduce confusion for consumers and to 
promote commonality across devices. We also note that the VPAAC Second 
Report: User Interfaces describes accessibility criteria agreed upon by 
industry and consumer groups, which may be a helpful reference for 
covered entities as they undertake voluntary efforts to develop 
approaches to accessibility.
4. Achievability
    76. We adopt rules for ``achievability'' that are consistent with 
our implementation of standards for achievability in other CVAA 
contexts. Section 303(aa)(1) of the Act indicates that apparatus 
covered by Section 204 are required to make appropriate built-in 
apparatus functions accessible to and usable by individuals who are 
blind or visually impaired only ``if achievable (as defined in section 
716).'' Similarly, Section 303(bb)(1) requires on-screen text menus and 
guides for the display or selection of multichannel video programming 
on navigation devices covered by Section 205 to be audibly accessible 
by individuals who are blind or visually impaired only ``if achievable 
(as defined in section 716).'' Section 716 of the 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.'' 47 
U.S.C. 617(g).
    77. As proposed in the NPRM, we adopt a flexible approach to 
achievability, consistent with the approach adopted in the Emergency 
Information/Video Description Order, the IP Closed Captioning Order, 
and the ACS Order. When faced with a complaint or enforcement action 
for a violation of the requirements adopted herein pursuant to either 
Section 204 or Section 205 of the CVAA, a covered entity may raise as a 
defense that a particular apparatus or navigation device does not 
comply with the rules because compliance was not achievable under the 
statutory factors. Alternatively, a covered entity may seek a 
determination from the Commission that compliance with all of our rules 
is not achievable before manufacturing or importing the apparatus or 
navigation device. Covered entities that do not make a particular 
apparatus or navigation device accessible, and subsequently claim as a 
defense that it is not achievable for them to do so, bear the burden of 
proof on this defense. Consistent with our implementation of 
achievability in prior CVAA contexts, 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. Commenters 
agree with this approach. 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.\89\ We

[[Page 77230]]

remind parties that the achievability limitation is applicable to 
Sections 303(aa)(1) and 303(bb)(1) of the Act.
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    \89\ Panasonic urges the Commission to ``recognize that products 
are positioned at differing features and price points which may 
influence the achievability of accessibility features.'' We note 
that, pursuant to the fourth statutory factor, the Commission must 
consider ``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'' and weigh this consideration equally with 
the other three factors. 47 U.S.C. 617(g). In interpreting this 
factor, the Commission has found that ``[a] covered entit[y] 
generally need not consider what is achievable with respect to every 
product, if the entity offers consumers with the full range of 
disabilities meaningful choices through a range of accessible 
products with varying degrees of functionality and features, at 
differing price points.'' Montgomery County asserts that all classes 
of devices should have accessibility features and that ``[t]here is 
no basis for requiring only a subset of available devices [to] have 
the accessibility features.'' To the extent Montgomery County is 
arguing that all models of navigation devices must be made 
accessible, we believe that requiring a covered entity to make all 
models of navigation devices accessible would be at odds with 
Congress's intent in adopting the fourth factor of the achievability 
test, provided that the covered entity offers a full range of 
functionality within a line of products as well as a full range of 
prices within the product line, if achievable.
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B. Activating Accessibility Features Through a Mechanism Reasonably 
Comparable to a Button, Key, or Icon

1. Reasonably Comparable Requirement
    78. We codify in our rules the language in Sections 303(aa)(3) and 
303(bb)(2) of the Act, which provides that certain accessibility 
features must be accessible through a mechanism reasonably comparable 
to a button, key, or icon. Specifically, Section 303(aa)(3) requires 
digital apparatus covered by Section 204 of the CVAA to provide ``built 
in access to [ ] closed captioning and video description features 
through a mechanism that is reasonably comparable to a button, key, or 
icon designated for activating the closed captioning or accessibility 
features.'' 47 U.S.C. 303(aa)(3). Similarly, Section 303(bb)(2) 
requires ``navigation devices with built-in closed captioning 
capability'' covered by Section 205 of the CVAA to provide ``access to 
that capability through a mechanism [that] is reasonably comparable to 
a button, key, or icon designated for activating the closed captioning, 
or accessibility features.'' Id. 303(bb)(2). In the discussion that 
follows, we provide guidance to covered entities with regard to which 
activation mechanisms are ``reasonably comparable to a button, key, or 
icon.'' In determining whether an activation mechanism is reasonably 
comparable to a button, key, or icon, we will consider the simplicity 
and ease of use of the mechanism.
    79. Based on the record, we decline to adopt our proposal to 
require that closed captioning or video description features be 
activated in a single step. In the NPRM, we explained that such a 
requirement would allow users to activate the closed captioning or 
video description immediately in a single step just as a button, key, 
or icon can be pressed or clicked in a single step. Commenters 
generally oppose a single step requirement. NAD/Consumer Groups believe 
that the single step proposal is too vague because it does not specify 
from where the single step is permitted. Other commenters argue that a 
single step requirement would hinder innovation, observing that there 
are other useful activation mechanisms (e.g., voice or gesture control) 
that may be reasonably comparable to a button, key, or icon and 
relatively simple for consumers to use, but would not satisfy a single 
step mandate.\90\ Commenters also emphasize that Section 204 permits 
``alternate means of compliance,'' while Section 205 gives entities 
that provide navigation devices subject to that section ``maximum 
flexibility in the selection of means for compliance with [S]ection 
303(bb)(2) of the [Act],'' and that requiring a single step contravenes 
the flexibility that Congress intended for covered entities. Given the 
concerns raised in the record about its potential to inhibit simplified 
and innovative solutions, we decline to adopt a single step 
requirement. We are mindful of the need to ensure that covered entities 
can continue to develop innovative compliance solutions, without being 
precluded from using a particular technology to achieve an activation 
mechanism that is ``reasonably comparable to a button, key, or icon.''
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    \90\ CEA also explains that imposing a single step requirement 
would pose a unique hardship for touchscreen devices, which 
typically have a small number of buttons.
---------------------------------------------------------------------------

    80. Although we codify the statutory language that requires a 
mechanism reasonably comparable to a button, key, or icon to activate 
certain accessibility features and reject a single step requirement, we 
believe it is useful to provide guidance to covered entities as to what 
``reasonably comparable to a button, key, or icon'' means.\91\ In 
determining whether an activation mechanism is reasonably comparable to 
a button, key, or icon, the Commission will consider the simplicity and 
ease of use of the mechanism. We believe this approach is consistent 
with Congress's intent ``to ensure ready access to these features by 
persons with disabilities,'' while still giving covered entities the 
flexibility contemplated by the statute. To provide some clarity to 
covered entities, we provide some examples of mechanisms that we 
consider to be and consider not to be reasonably comparable to a 
button, key, or icon. For example, we believe that compliant mechanisms 
include, but are not limited to, the following: a dedicated button,\92\ 
key, or icon; voice commands; gestures; and a single step activation 
from the same location as the volume controls. In contrast, for 
example, we find that having to turn off the device in order to access 
the closed captioning activation mechanism through another menu is not 
a mechanism that is reasonably comparable to a button, key, or icon.
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    \91\ We note that the VPAAC did not reach consensus on what the 
phrase ``reasonably comparable to a button, key, or icon'' means, 
and the discussion of this issue in the VPAAC Second Report: User 
Interfaces reflects the disparate views of industry and consumer 
groups as to the meaning of this phrase that are evident in the 
record of this proceeding.
    \92\ In the NPRM, we asked how the ``reasonably comparable'' 
requirement should apply with respect to programmable universal 
remotes that can be programmed with different features. NAD/Consumer 
Groups argue that use of programmable buttons that can be programmed 
for activation of closed captioning is ``completely at odds with the 
plain language of Sections 204 and 205 of the CVAA, which do not 
permit an apparatus to be delivered to the user without a fully 
realized mechanism comparable to a button, key, or icon able to 
activate or deactiv[ate] closed captions.'' While we recognize that 
the process of programming buttons on a remote control may not be 
simple and straightforward, particularly for an individual with 
disabilities, we believe that once a button is programmed for closed 
captioning or video description activation, it offers a mechanism 
that has the equivalent simplicity and ease of use as a dedicated 
physical button. Thus, we find that a button on a remote control 
that can be programmed as a dedicated activation mechanism for 
closed captioning or video description satisfies the ``reasonably 
comparable to a button, key, or icon'' requirement if the covered 
entities who choose to rely on this mechanism to satisfy their 
statutory obligation either ensure that the remote can be programmed 
in a simple, straightforward manner by an individual with 
disabilities, or provide customer support at the consumer's home to 
assist with programming the remote.
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    81. Consistent with the statute's ``reasonably comparable'' and 
``maximum flexibility'' provisions, we do not require covered entities 
to use a specific mechanism to satisfy the requirements of Sections 
303(aa)(3) and 303(bb)(2) of the Act. For example, if Congress had 
intended for the only permissible activation mechanism to be a button, 
or a key, or an icon, as some advocate,\93\ we expect that Congress 
would have expressly stated this. Instead, Congress required a 
mechanism ``reasonably comparable to a button, key, or icon'' \94\ and, 
with respect to Section 205, gave providers and manufacturers of 
navigation devices ``maximum flexibility in the selection of means for 
compliance.'' For the same reason, we disagree with NAD/Consumer Groups 
that we should ``require the closed captioning control to be activated 
in a single action from all of the same locations from which the

[[Page 77231]]

volume can be adjusted in a single action, or if the apparatus lacks a 
volume control, from all of the same locations where the apparatus's 
other primary controls, such as play/pause or fast-forward and rewind 
buttons, are located.'' \95\ The statute does not require that the 
mechanism be activated from the same location as the volume controls or 
other primary controls, and, with respect to Section 205, such a 
requirement would be inconsistent with the ``maximum flexibility'' 
granted to covered entities in determining the means of compliance.\96\
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    \93\ Although Sections 204 and 205 do not require dedicated 
physical buttons, keys, or icons, these are examples of mechanisms 
that would satisfy Sections 204 and 205.
    \94\ CEA, DISH/EchoStar, DIRECTV, and Rovi suggest that ``[w]hen 
dedicated physical buttons are used to control volume and/or channel 
selection, the controls for access to closed captions . . . must 
also be reasonably comparable to physical buttons, comparable in 
accessibility to those provided for control of volume or channel 
selection.'' We do not think that requiring a mechanism to be 
``reasonably comparable to physical buttons'' if physical buttons 
are used for volume and channel selection differs in a meaningful 
way from the general requirement that activation mechanisms must be 
``reasonably comparable to a button, key, or icon;'' in both 
instances, a physical button is not required. And, if an activation 
mechanism for closed captioning or video description is ``comparable 
in accessibility'' to the volume and channel selection controls, 
that may be an indication that it is simple and easy to use, but is 
not necessarily determinative.
    \95\ Although Sections 204 and 205 do not require an activation 
in a single action from the same location as the volume controls, we 
believe this is an example of a mechanism that would satisfy 
Sections 204 and 205.
    \96\ We note NCAM's caution that ``quite often hearing and 
sighted users are just as frustrated by poor user interface design, 
so reliance on an `equivalence' requirement could result in 
captioning and video description controls that are just as 
frustrating, just equally so with every other user.''
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    82. We also reject the notion put forth by CEA that ``reasonably 
comparably to a button, key, or icon'' means that a person with 
disabilities can access the covered accessibility features in the same 
or a similar number of steps as a person without disabilities. Such an 
interpretation would lead to results that are wholly inconsistent with 
the intent of the statute to ensure that persons with disabilities have 
not only access but ``ready'' access to the features that make video 
programming accessible to them. For example, under this approach, a 
mechanism that requires a person with disabilities to take ten steps to 
activate closed captioning would be permissible, as long as it also 
takes a person without disabilities ten steps to activate closed 
captioning. Such an approach is clearly inconsistent with Congress's 
intent in enacting Sections 204 and 205. For similar reasons, we find 
unpersuasive DISH/EchoStar's assertion that ``the Commission should 
interpret `reasonably comparable' to mean the same number of steps 
required to access other core features of a device (e.g., for set-top 
boxes, the display and selection of programming).'' By DISH/EchoStar's 
own admission, ``[t]he core features and number of steps may vary'' 
even ``among devices designed by a single manufacturer,'' and DISH/
EchoStar's explanation of what constitutes a ``core feature'' is vague; 
thus, such a standard would not ensure that individuals with 
disabilities have ``ready'' access to closed captioning and video 
description features, as Congress intended.
2. Accessibility Features Covered by Sections 204 and 205
    83. Section 204 Requirements. Section 303(aa)(3) of the Act 
requires covered digital apparatus to provide ``built in access to [ ] 
closed captioning and video description features through a mechanism 
that is reasonably comparable to a button, key, or icon designated for 
activating the closed captioning or accessibility features.'' We 
conclude that the statutory language is clear that closed captioning 
and video description on apparatus covered by Section 204 must have an 
activation mechanism that is reasonably comparable to a button, key, or 
icon. No commenter disagrees.
    84. Section 205 Requirements. Section 303(bb)(2) of the Act 
requires ``navigation devices with built-in closed captioning 
capability'' to provide ``access to that capability through a mechanism 
[that] is reasonably comparable to a button, key, or icon designated 
for activating the closed captioning, or accessibility features.'' We 
conclude that Section 303(bb)(2) clearly applies to activation of 
closed captioning on navigation devices covered by Section 205. No 
commenter disagrees. With regard to video description, in the NPRM, we 
noted that Section 205 includes a similar requirement for a mechanism 
reasonably comparable to a button, key, or icon as in Section 204, but 
that the provision in Section 205 explicitly references only closed 
captioning capability; video description is not expressly mentioned. 
ACB, Montgomery County, and Rovi Corporation (``Rovi'') believe that we 
should require a mechanism reasonably comparable to a button, key, or 
icon to activate video description in navigation devices covered by 
Section 205. In particular, Montgomery County argues that requiring a 
mechanism reasonably comparable to a button, key, or icon to activate 
video description is a ``reasonable interpretation[ ], consistent with 
the goals of the CVAA,'' and Rovi asserts that ``the Commission should 
reasonably interpret `or accessibility features' in Section 205 as 
including video description.'' Other commenters disagree, arguing that 
the literal language of the statute makes clear that Congress did not 
intend for Section 205 to apply to any features other than closed 
captioning. CEA and other commenters further argue that the phrase 
``accessibility features'' ``merely describes an activation mechanism--
i.e., a mechanism for activating multiple accessibility features--to 
which the mandated user control mechanism for closed captioning . . . 
may be reasonably comparable to satisfy the requirements of the 
statute,'' and that it does not encompass video description. Based on 
the record, at this time, we do not require Section 205 navigation 
devices to provide an activation mechanism that is reasonably 
comparable to a button, key, or icon for video description because we 
believe we are constrained by Congress's omission of video description 
in Section 205, but we inquire in the FNPRM whether the secondary audio 
stream for audible emergency information (which is also used for video 
description) must be activated through a mechanism reasonably 
comparable to a button, key, or icon pursuant to Section 203 of the 
CVAA.\97\ However, we strongly encourage manufacturers and providers of 
navigation devices to provide a simple and easy means to access video 
description for consumers who are blind or visually impaired.
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    \97\ Section 203 of the CVAA requires that apparatus designed to 
receive or play back video programming transmitted simultaneously 
with sound ``have the capability to . . . make available emergency 
information (as that term is defined in section 79.2 of the 
Commission's regulations [ ]) in a manner that is accessible to 
individuals who are blind or visually impaired.'' 47 U.S.C. 
303(u)(1)(C).
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    85. Other Accessibility Features. At this time, the record does not 
support requiring accessibility features other than closed captioning 
(for Section 204 and Section 205 devices) and video description (for 
Section 204 devices) to be activated by a mechanism reasonably 
comparable to a button, key, or icon. In the NPRM, we sought comment on 
whether there are additional ``accessibility features'' that Sections 
204 and 205 require to be activated via a mechanism similar to a 
button, key, or icon. For example, we asked whether ``accessibility 
features'' includes activation of the audible output of on-screen text 
menus or guides and related settings (e.g., volume, speed, and 
verbosity), and whether it includes closed captioning settings (e.g., 
font, color, and size of captions), and whether such settings should be 
required to be in the first level of a menu. Montgomery County, NAD/
Consumer Groups, and Dorothy L. Walt support a broad interpretation of 
the term ``accessibility features'' to include other accessibility 
settings. CEA and other industry commenters argue that the phrase 
``accessibility features'' ``is not an invitation to impose new, and 
hitherto unspecified, regulatory requirements on additional 
accessibility features besides closed captioning and video description 
(in Section 204) and closed captioning (in Section 205).'' Because the 
record

[[Page 77232]]

does not fully address how accessibility features that involve the 
selection of settings on a menu (as opposed to simply activating and 
deactivating the feature) can be ``activated'' through a mechanism 
reasonably comparable to a button, key, or icon, we do not adopt 
requirements for additional accessibility features at this time. 
However, we inquire in the FNPRM whether we should impose such 
requirements and, if so, how such requirements could be implemented. In 
addition, we strongly encourage covered entities, when designing their 
devices, to provide a simple and easy means to access accessibility 
settings for persons with disabilities.

V. Obligation of Covered Entities To Provide Accessibility Under 
Section 205

A. Obligation To Provide Accessibility Upon Request Under Section 
303(bb)(1)

    86. In this section, we discuss the respective obligations of MVPDs 
and manufacturers of navigation devices pursuant to Section 205(a) of 
the CVAA, which adds Section 303(bb)(1) to the Act, to provide 
navigation devices with audibly accessible on-screen text menus and 
guides ``upon request'' to individuals who are blind or visually 
impaired.\98\ In the NPRM, the Commission sought comment on how Section 
205 should be implemented if it were to conclude that retail navigation 
devices come within the scope of that provision. The Commission also 
inquired how it should implement Section 205 requirements if it were to 
conclude that Section 205 applied to entities other than MVPDs. As 
discussed below, we conclude that when the covered entity is an MVPD 
that leases or sells navigation devices to subscribers, the obligation 
to provide compliant navigation devices ``upon request'' requires that 
such MVPD permit blind or visually impaired subscribers to request 
compliant devices through any means made available generally to other 
subscribers requesting navigation devices. Similarly, when the covered 
entity is a manufacturer of navigation devices, we conclude that such 
manufacturer can comply with its Section 303(bb)(1) obligation to 
provide compliant navigation devices ``upon request'' by offering such 
devices through the same means that it generally uses to provide 
navigation devices to other consumers (i.e., via retail outlets or by 
providing such devices directly to requesting consumers). We also 
conclude that, as part of its Section 303(bb)(1) obligation, a 
manufacturer that relies on retailers to fulfill requests from blind or 
visually impaired consumers must make a good faith effort to have such 
retailers make available compliant navigation devices to the same 
extent they make available navigation devices to other consumers 
generally. We also conclude that the obligation in Section 303(bb)(1) 
of the Act to provide compliant navigation devices ``upon request'' 
requires covered entities to provide such accessibility within a 
reasonable time and in a manner that is not more burdensome to 
requesting blind or visually impaired individuals than is required for 
other consumers generally to obtain navigation devices.\99\
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    \98\ 47 U.S.C. 303(bb)(1). See also Public Law 111-260, 
205(b)(3) (``to a requesting blind or visually impaired 
individual''), 205(b)(4)(A) and (B) (``to the requesting blind or 
visually impaired individual''). As discussed above, we have 
determined that the entities principally responsible for compliance 
with Section 205 are MVPDs that lease or sell navigation devices and 
manufacturers of navigation devices.
    \99\ However, under certain limited circumstances, an MVPD may 
require verification that the consumer is blind or visually 
impaired.
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    87. MVPDs. Section 205 of the CVAA directs the Commission to 
require, among other things, that on-screen text menus and guides be 
made accessible in real time ``upon request'' and states that ``[a]n 
entity shall only be responsible for compliance with the requirements 
added by this section with respect to navigation devices that it 
provides to a requesting blind or visually impaired individual.'' 
Section 205 does not define the phrase ``upon request'' or otherwise 
indicate what Congress envisioned in imposing this obligation.\100\ 
When the covered entity is an MVPD that leases or sells navigation 
devices to subscribers, we conclude that such MVPD must permit blind or 
visually impaired subscribers to request compliant devices through any 
means that it generally makes available to other subscribers requesting 
navigation devices in order to satisfy its statutory obligation to 
provide such devices ``upon request.'' For example, if an MVPD 
generally allows subscribers to order equipment by means of a phone 
call, email, in-person request or via the MVPD Web site, it must allow 
blind or visually impaired subscribers to request accessible devices by 
those means as well. We emphasize, however, that although we agree with 
parties that covered entities should have discretion to select the 
means or processes by which consumers can make requests, an MVPD must 
permit blind or visually impaired subscribers to make requests at least 
through those means it has established for accepting requests for 
navigation devices from other consumers. In addition, the means for 
accepting requests for devices compliant with Section 303(bb)(1) must 
not be more burdensome to blind or visually impaired subscribers than 
the means that the MVPD makes available to other consumers. For 
example, if an MVPD accepts requests for non-compliant navigation 
devices through a telephone number, the MVPD's customer service 
representatives must be prepared to handle requests for accessible 
devices in the same manner. In this regard, we note that an MVPD would 
not satisfy its obligation to provide Section 303(bb)(1)-compliant 
navigation devices ``upon request'' by, for example, requiring a blind 
or visually impaired consumer to make requests for accessible devices 
in person if it accepted requests for other navigation devices by 
phone. Likewise, if an MVPD establishes a Web site through which blind 
or visually impaired subscribers can request accessible devices, such 
Web site must be screen readable or otherwise allow the subscriber to 
request the device as seamlessly as could other consumers requesting 
navigation devices.
---------------------------------------------------------------------------

    \100\ In the NPRM, the Commission sought comment on ``whether a 
`request' could take any form (e.g., a phone call, an email, or a 
request made in-person).''
---------------------------------------------------------------------------

    88. In the NPRM, the Commission interpreted Section 205 to require 
covered entities ``to provide accessible navigation devices to 
requesting subscribers `within a reasonable time.' '' We affirm the 
Commission's interpretation and conclude that the ``upon request'' 
obligation contained in Section 303(bb)(1) of the Act requires covered 
entities to provide compliant navigation devices within a reasonable 
time. Although Section 303(bb)(1) contains no express requirement that 
accessibility be provided ``within a reasonable time,'' we believe that 
requiring covered entities to provide compliant navigation devices in a 
timely fashion is implicit in the phrase ``upon request,'' and is 
necessary to implement the requirements of Section 205. Public Law 111-
260, 205(b)(1). We also find that requiring the timely provision of 
accessible devices is consistent with the overriding objectives of the 
CVAA and advances the public interest because delay in providing such 
devices would undermine the goal of the CVAA ``to increase the access 
of persons with disabilities to modern communications.'' Several 
parties support this interpretation,\101\ and no

[[Page 77233]]

party has asserted that navigation devices compliant with Section 
303(bb)(1) should not be provided within a reasonable time.
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    \101\ We decline to require that compliant devices be provided 
within a specified time period, as advocated by Montgomery County, 
but will revisit this decision if we find that covered entities are 
failing to provide such devices in a timely fashion. Because the 
benchmark for compliance with the ``reasonable time'' requirement is 
the amount of time in which an MVPD typically provides navigation 
devices to consumers who are not blind or visually impaired, the 
issue of whether an MVPD has met this requirement will necessarily 
be MVPD-specific.
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    89. To comply with its obligation to provide Section 303(bb)(1)-
compliant devices ``within a reasonable time,'' we conclude that an 
MVPD must provide such devices to requesting blind or visually impaired 
consumers within a time period comparable to the time that the MVPD's 
other subscribers generally receive navigation devices from the MVPD. 
Absent such a requirement, an MVPD might choose not to order compliant 
devices in advance of a request, but rather to leave the requesting 
individual waiting while the MVPD seeks a compliant solution, a result 
that would be contrary to what Congress intended by requiring that 
compliant devices be provided ``upon request.'' The Commission may 
consider a variety of factors in assessing whether an MVPD has provided 
an accessible navigation device within a time period equivalent to the 
period in which it typically provides navigation devices to subscribers 
who are not blind or visually impaired. As DISH/EchoStar notes, for 
example, factors that the Commission might consider include the amount 
of time necessary to schedule a truck roll, identify and deploy a 
specialist, or take any other action that is part of the process for 
providing any device to any customer.
    90. Manufacturers. When the covered entity is a manufacturer of 
navigation devices, we conclude that, in order to satisfy its 
obligation to provide Section 303(bb)(1)-compliant navigation devices 
``upon request,'' the manufacturer must make available such devices to 
blind or visually impaired individuals through the same means that it 
generally provides navigation devices to other consumers (i.e., via 
retailers or by providing such devices directly to requesting 
consumers).\102\ For example, in cases where a manufacturer makes 
available navigation devices at retail, it can comply with its 
obligation to provide Section 303(bb)(1)-compliant devices ``upon 
request'' by offering accessible devices (e.g., at retail stores, the 
Internet) in the same way that it generally makes available other 
navigation devices. Similarly, where a manufacturer has established 
means for accepting and fulfilling consumer requests for navigation 
devices directly (e.g., through a telephone number or email address), 
we require that it make available those means to blind or visually 
impaired consumers who may wish to request navigation devices compliant 
with Section 303(bb)(1). As we concluded with respect to MVPDs above, 
any means that a manufacturer employs to accept requests for accessible 
devices must not be more burdensome to blind or visually impaired 
individuals than the means made available to other consumers for 
requesting navigation devices generally.
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    \102\ We encourage manufacturers that make their accessible 
navigation devices available through retail stores to meet their 
Section 303(bb)(1) obligations, to also employ mechanisms that 
facilitate the provision of accessible devices to blind or visually 
impaired consumers, such as establishing a telephone number and/or 
an accessible Internet presence through which a consumer can find 
accessible devices at retail stores near them.
---------------------------------------------------------------------------

    91. The phrase ``upon request'' in Section 303(bb)(1) does not lend 
itself to ready application to manufacturers because, in contrast to 
MVPDs, which lease equipment directly to their subscribers, 
manufacturers often sell their products through retail outlets. For 
this reason, we interpret the phrase ``upon request'' with respect to 
situations involving manufacturers in a manner consistent with the 
statutory scheme and Congress's intent in the CVAA to ``help ensure 
that individuals with disabilities are able to fully utilize 
communications services and equipment and better access video 
programming,'' while at the same time recognizing the way in which the 
retail supply chain works. Consumers have made clear in the record that 
they prefer to be able to obtain accessible devices ``off the shelf'' 
at retail stores. We conclude, therefore, that a manufacturer's Section 
303(bb)(1) obligations require that it make a good faith effort to have 
retailers make available compliant devices to the same extent as 
navigation devices made available to other consumers generally. Because 
we do not wish to implement Section 303(bb)(1) in a way that intrudes 
unduly on manufacturers' business practices and find no basis in the 
record for doing so, we decline at this time to prescribe detailed 
rules governing manufacturers' agreements with retailers. Should we 
find after the compliance date for these rules that navigation device 
manufacturers' good faith obligations or efforts are not resulting in 
compliant devices being available through retailers, however, we will 
revisit this decision in the future.
    92. We also emphasize that the obligation to provide compliant 
devices ``upon request'' rests with the manufacturer, not the retailer. 
Thus, it is incumbent on the manufacturer to make a good faith effort 
for accessible devices to be available at retail to blind or visually 
impaired consumers to the same extent that navigation devices are made 
available to other consumers generally. In cases where a manufacturer 
satisfies its ``upon request'' obligation by providing accessible 
devices directly to blind or visually impaired consumers, the means 
made available for accepting such requests (e.g., a telephone number, 
email address, and/or Web site, whether or not dedicated for this 
purpose) may be no more burdensome to a requesting blind or visually 
impaired consumer than is obtaining navigation devices generally for 
other consumers. Based on the record, we believe that implementing 
Section 303(bb)(1) in the manner set forth above will address the needs 
and expectations of consumers who are blind or visually impaired while 
permitting manufacturers to discharge their Section 303(bb)(1) duties 
in a way that is consistent with their existing processes. Finally, we 
conclude that manufacturers must provide Section 303(bb)(1)-compliant 
devices to requesting blind or visually impaired consumers ``within a 
reasonable time.'' Manufacturers can satisfy this requirement by 
providing such devices in a time period comparable to the time in which 
they provide navigation devices to other consumers (whether through 
retail outlets or directly to consumers).

B. Obligation of Covered Entities Complying With Section 303(bb)(1) 
Through the Use of Separate Equipment or Software

    93. In this section, we find that under Section 205(b)(4) of the 
CVAA, a covered entity that chooses to comply with the requirements of 
Section 303(bb)(1) of the Act through the use of a separate solution 
must provide such solution to the requesting blind or visually impaired 
individual; ensure that any separate solution relied upon provides 
accessibility in accordance with Section 303(bb)(1) and its 
implementing rules; and provide such solution within a reasonable time 
and at no additional charge. We also adopt our tentative conclusion in 
the NPRM and find that if a navigation device has any functions that 
are required to be made accessible pursuant to the rules we adopt in 
the R&O, any separate solution relied upon to achieve accessibility 
must make all of those functions accessible or enable the accessibility 
of those functions. In addition, any separate solution relied upon to 
achieve accessibility must be provided in a manner that is not more 
burdensome to

[[Page 77234]]

requesting blind or visually impaired individuals than the manner in 
which a covered entity generally provides navigation devices to other 
consumers.
    94. Section 205(b)(4)(A) permits a covered entity to comply with 
Section 303(bb)(1) of the Act through the use of software, a peripheral 
device, specialized consumer premises equipment, a network-based 
service or other solution. Public Law 111-260, 205(b)(4)(A). Section 
205(b)(4)(B) further provides that:

If an entity complies with [S]ection 303(bb)(1) of the . . . Act . . 
. [through the use of separate equipment or software], the entity 
providing the navigation device to the requesting blind or visually 
impaired individual shall provide any such software, peripheral 
device, equipment, service, or solution at no additional charge and 
within a reasonable time to such individual and shall ensure that 
such software, device, equipment, service or solution provides the 
access required by such regulations.

The Commission's rules implementing Section 303(bb)(1) of the Act must 
provide such entity ``maximum flexibility to select the manner of 
compliance.'' Thus, although a covered entity may choose to comply with 
its Section 303(bb)(1) obligations by building in accessibility to its 
navigation devices, the statute does not mandate that it do so.
1. Provision of Separate Equipment or Software That Ensures 
Accessibility
    95. Based on the language of Section 205(b)(4), we adopt the 
Commission's tentative conclusion and require that an MVPD or 
navigation device manufacturer that complies with its Section 
303(bb)(1) obligations through the use of separate equipment or 
software is responsible for providing such equipment or software to the 
requesting individual who is blind or visually-impaired. Specifically, 
Section 205(b)(4)(B) states that ``the entity providing the navigation 
device . . . shall provide any such software, peripheral device, 
equipment, service or solution'' to the requesting blind or visually 
impaired individual. In addition, Section 205(b)(4)(B) states that 
``the entity providing the navigation device . . . shall ensure that 
such software, device, equipment, service or solution provides the 
access required by such regulations.'' We interpret this language to 
mean that the obligation to provide an effective accessibility solution 
under Section 205(b)(4) rests with the entity that provides the 
navigation device to the requesting blind or visually impaired 
consumer, even in cases where such entity relies on a retailer to 
provide accessible devices to requesting consumers. This interpretation 
finds considerable support in the record, and no party has asserted 
that a covered entity relying on a separate solution to achieve 
accessibility is not responsible for providing such solution to a 
requesting blind or visually impaired consumer. Pursuant to our 
authority in Section 205(b)(1) to prescribe regulations necessary to 
implement the requirements in Section 205(a), we further conclude that 
any separate solution relied upon to achieve accessibility must be 
provided in a manner that is not more burdensome to requesting blind or 
visually impaired individuals than the manner in which other consumers 
obtain navigation devices.\103\ For example, a covered entity could not 
subject requesting blind or visually impaired consumers to installation 
processes that were more cumbersome than those imposed on other 
consumers for navigation devices, or require blind or visually impaired 
consumers to install a separate solution without technical or 
logistical support, if it provided such support to other 
consumers.\104\
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    \103\ A manufacturer could meet its obligation by ensuring that 
a separate solution was made available to requesting blind or 
visually impaired consumers at the point of sale.
    \104\ However, when a covered entity relies on separate software 
to achieve accessibility, the obligation to provide the separate 
solution under Section 205(b)(4) requires the covered entity to 
assist blind or visually impaired consumers in downloading the 
software or to ensure that instructions for downloading software 
themselves are accessible.
---------------------------------------------------------------------------

    96. We also find, consistent with our tentative conclusion in the 
NPRM, that if a non-compliant navigation device has any functions that 
are required to be made accessible pursuant to the rules we adopt in 
the R&O, any separate solution relied upon to achieve accessibility 
must make all of those functions accessible or enable the accessibility 
of those functions. Consistent with the text of Section 205(b)(4)(B), 
we conclude that regardless of whether an entity chooses to satisfy its 
accessibility obligations through a built-in solution or separate 
equipment or software, any solution chosen must ensure accessibility as 
required by Section 303(bb)(1) of the Act and our implementing rules, 
if achievable. To achieve Congress's intended goals in Section 205, it 
is irrelevant whether an entity provides accessibility through the use 
of a built-in or separate solution; any solution chosen must ensure 
that all of the functions required to be made accessible are, in fact, 
accessible. There is no support in the record for the suggestion that 
this requirement will inhibit innovation or hamper the provision of 
interim solutions as suggested by two commenters. Moreover, a separate 
solution that does not make the covered functionality accessible (or 
enable the accessibility of the functions) would not comply with 
Section 205(b)(4)'s requirement that ``the entity providing the 
navigation device to the requesting blind or visually impaired 
individual . . . ensure that [a separate solution] provides the access 
required by [the Commission's] regulations [implementing Section 205(a) 
of the CVAA].''
2. Provision of Separate Equipment or Software ``Within a Reasonable 
Time''
    97. Rather than specify a time frame in which a covered entity 
providing a separate accessibility solution under Section 205(b)(4) 
must make that separate solution available, we require it to do so 
within a time that is comparable to the time it provides navigation 
devices to consumers who are not blind or visually impaired. Section 
205(b)(4)(B) of the CVAA expressly requires that an entity that 
complies with Section 303(bb)(1) of the Act through the use of separate 
equipment or software must provide such equipment or software ``within 
a reasonable time.'' \105\ We interpret this provision in the same 
manner that we implement the Section 303(bb)(1) obligation of covered 
entities to provide compliant navigation devices ``upon request.'' In 
particular, we conclude that a ``reasonable time'' is comparable to the 
time that a covered entity provides navigation devices generally to 
consumers who are not blind or visually impaired.
---------------------------------------------------------------------------

    \105\ The Commission sought comment in the NPRM on what 
constitutes a ``reasonable time'' in which to give a requesting 
subscriber an accessible separate solution.
---------------------------------------------------------------------------

3. Provision of Separate Equipment or Software ``At No Additional 
Charge''
    98. We find that the phrase ``no additional charge'' means that a 
covered entity that provides separate equipment or software under 
Section 205(b)(4)(B) may not impose on a requesting blind or visually 
impaired individual any charges beyond those it has imposed for a non-
compliant navigation device. Section 205(b)(4)(B) of the CVAA provides 
that an entity complying with Section 303(bb)(1) of the Act through the 
use of separate equipment or software must provide such equipment or 
software ``at no additional charge.'' Public Law 111-260, 205(b)(4)(B). 
In the NPRM, the Commission tentatively

[[Page 77235]]

concluded that this requirement was self-implementing, and sought 
comment on that tentative conclusion.
    99. DISH/EchoStar suggests that the Commission has discretion to 
interpret the phrase ``no additional charge'' to permit a covered 
entity ``to pass through any wholesale costs associated with procuring 
such equipment.'' We disagree with DISH/EchoStar and conclude that a 
covered entity may not impose on a requesting blind or visually 
impaired consumer the wholesale cost of providing separate equipment or 
software that is relied upon to achieve accessibility.\106\ We note 
that the language in Section 205(b)(4)(B) is different from analogous 
provisions in Section 716 of the Act, which state that entities covered 
by Section 716 may satisfy their accessibility obligations through the 
use of ``third party applications, peripheral devices, software, 
hardware or customer premises equipment that is available to the 
consumer at nominal cost and that individuals with disabilities can 
access.'' Given the differing language of Section 205(b)(4)(B) of the 
CVAA and Sections 716(a)(1)(B) and 716(b)(2)(B) of the Act, we conclude 
that, although in other CVAA contexts it intended to allow entities to 
recover ``nominal costs,'' Congress expressly declared that entities 
opting to comply with Section 303(bb)(1) of the Act by means of 
separate equipment or software must provide such equipment or software 
to requesting blind or visually impaired individuals ``at no additional 
charge.'' Accordingly, we implement Section 205(b)(4)(B) to give effect 
to that express declaration. We note that our interpretation of Section 
205(b)(4)(B) would not prevent a covered entity from recovering the 
costs of providing separate solutions by passing such costs through to 
its entire subscriber base.
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    \106\ Further, to the extent that the sole solution a covered 
entity chooses to make available for a given non-compliant device 
provides accessibility beyond the requirements of Section 303(bb)(1) 
of the Act, the covered entity may not impose any additional charge 
for that enhanced accessibility. If, however, a covered entity makes 
more than one separate solution available to consumers, we agree 
with DISH/EchoStar that the entity may impose reasonable charges if 
the consumer requests a solution with enhanced functionality.
---------------------------------------------------------------------------

    100. Section 205(b)(4)(A) permits covered entities ``maximum 
flexibility'' to select the manner in which they intend to comply with 
their obligation to make on-screen text menus and guides audibly 
accessible. In addition, under Section 205(b)(3), a covered entity is 
only responsible for compliance with this requirement with respect to 
navigation devices ``that it provides to a requesting blind or visually 
impaired individual.'' We interpret these provisions, taken together, 
to mean that a covered entity may choose to satisfy its accessibility 
obligations by making all of its navigation devices, subject to the 
achievability defense, accessible and available to requesting blind or 
visually impaired individuals,\107\ or instead may choose to provide 
these individuals with ``software, a peripheral device, specialized 
consumer premises equipment, a network-based service or other 
solution'' at no additional charge. One permissible ``other solution'' 
available to covered entities would be to make accessible only high-end 
navigation devices (e.g., those with sophisticated features), but to 
make these devices available to requesting individuals who are blind or 
visually impaired without requiring them to pay an additional charge 
simply to obtain the accessibility features. This is consistent with 
Section 205(b)(4)(B), which precludes the entity from imposing any 
additional charges for an ``other solution'' on an individual 
requesting accessibility under Section 205. That is, if the only 
accessible devices a covered entity makes available are among the more 
expensive devices being offered by that entity because of their 
sophisticated features, and a blind consumer requests an accessible 
lower-end device, then the entity must provide the accessible device at 
the lower price.\108\
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    \107\ Given the fact that under Section 205 covered entities 
need only provide navigation devices with audibly accessible on-
screen text menus and guides to requesting blind or visually 
impaired individuals, they will be free to provide non-compliant 
devices to other customers. This provision does not relieve them, 
however, of the obligation to make accessible devices with ``varying 
degrees of functionality and features, and offered at differing 
price points'' available to requesting blind or visually impaired 
individuals, unless, as discussed below, they opt for a separate 
solution under Section 205(b)(4).
    \108\ As discussed below, covered entities choosing this 
approach to compliance may require reasonable verification of 
disability.
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    101. For example, suppose an MVPD offers two models of set-top 
boxes for lease at $5 and $10 a month, but chooses to make only the $10 
box accessible as it is permitted to do under the analysis set out 
above. If a blind or visually impaired subscriber requests an 
accessible version of the lower end box, the MVPD would have to lease 
that subscriber the $10 box at no more than the $5 rate. Similarly, if 
a retail navigation device manufacturer makes navigation devices that 
cost $200 and $300, and elects not to make the $200 device accessible 
but rather to designate the more sophisticated $300 device as the 
accessibility solution for that less sophisticated device, the 
manufacturer cannot charge a requesting blind or visually impaired 
individual more than $200 for that device.\109\ In either case, this 
outcome is reasonable because the covered entity has chosen to comply 
with its obligations by providing accessibility through only one 
expensive, feature-rich device when it could have avoided providing a 
higher-end box at no additional charge by offering a range of 
accessible devices at differing price points.\110\
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    \109\ Although some MVPDs could take the approach of providing 
subscribers more expensive set-top boxes at no additional charge, no 
retail manufacturers have suggested on the record that they intend 
to take this approach to complying with the statute. Given that 
retail device manufacturers often sell to consumers through 
intermediary retail partners, we recognize that if they opt for this 
compliance solution they may face challenges in ensuring that 
requesting blind or visually impaired consumers receive a compliant 
solution at no additional charge. We expect manufacturers opting for 
this approach to devise a mechanism for such consumers to request 
and receive such solutions at no additional charge.
    \110\ In cases in which a consumer files a complaint with the 
Commission alleging that a covered entity has violated the ``no 
additional charge'' requirement in Section 205(b)(4)(B), such entity 
will bear the burden of demonstrating that it has imposed no charges 
beyond the cost of the non-compliant navigation device being 
replaced.
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    102. We agree with parties asserting that, if a covered entity's 
compliance solution depends upon software that can only be operated by 
means of a third-party device such as a laptop, tablet, or smart phone, 
the covered entity cannot rely on the consumer to own or acquire such a 
device or the services needed to download or use the additional 
software (such as Internet access service). Although Section 
205(b)(4)(A) affords covered entities ``maximum flexibility'' to select 
the manner of compliance with regard to separate solutions, Section 
205(b)(4)(B) also requires that such entities provide that manner of 
compliance ``at no additional charge.'' Accordingly, if a covered 
entity's chosen manner of compliance involves a software solution that 
must be operated on a third-party device (e.g., a laptop, tablet, smart 
phone) or if additional services are required to make use of the 
device, we find that this manner of compliance constitutes an ``other 
solution'' under Section 205(b)(4)(B); thus, the covered entity must 
provide that solution--i.e., both the software and the third-party 
device, as well as the service to use the accessible navigation 
features--to the requesting individual at no additional charge.

[[Page 77236]]

C. Activation Mechanisms for Closed Captioning Under Section 205

    103. Based on the language and design of Section 205, we agree with 
parties asserting that a covered entity must provide a compliant 
mechanism to activate closed captioning pursuant to Section 303(bb)(2) 
of the Act irrespective of whether such entity has received a 
``request'' for such mechanism from a ``blind or visually impaired 
individual.'' That is, covered entities must ensure that all of their 
navigation devices with built-in closed captioning capability provide a 
mechanism reasonably comparable to a button, key or icon to activate 
closed captioning. Although there is an ambiguity in the statute 
resulting from the uncertain relationship between new Section 
303(bb)(2) of the Act and Section 205(b)(3) of the CVAA, we conclude 
that this is the most reasonable interpretation of Section 205. Section 
303(bb)(2) of the Act requires ``for navigation devices with built-in 
closed captioning capability,'' access to that capability must be 
provided ``through a mechanism that is reasonably comparable to a 
button, key or icon designated for activating the closed captioning, or 
accessibility features. . . .'' 47 U.S.C. 303(bb)(2). Section 205(b)(3) 
of the CVAA states that an ``entity shall only be responsible for 
compliance with the requirements added by this section with respect to 
navigation devices that it provides to a requesting blind or visually 
impaired individual.'' Public Law 111-260, 205(b)(3). It is unclear 
whether Section 205(b)(3) applies only to the requirements of Section 
205 designed to afford accessibility of devices to individuals who are 
blind or visually impaired, i.e., those required by Section 303(bb)(1) 
of the Act, or also to the closed captioning requirements in Section 
303(bb)(2) of the Act. If Section 205(b)(3) of the CVAA were read as 
applying to the closed captioning requirements, that would mean the 
closed captioning activation mechanism would be provided only at the 
request of blind or visually impaired individuals, a group of consumers 
who would generally have far less need for a closed captioning feature 
(closed captioning being useless to someone who is blind), and not at 
the request of deaf or hard of hearing consumers for whom closed 
captioning is essential for understanding a program's content. We do 
not believe that Congress intended such an absurd result. When 
``charged with understanding the relationship between two different 
provisions within the same statute, we must analyze the language of 
each to make sense of the whole.'' Attempting to make sense of these 
provisions, the Commission sought comment in the NPRM on how Section 
205(b)(3) of the CVAA should be read in conjunction with Section 
303(bb)(2) of the Act.\111\ The Commission also inquired whether the 
fact that Section 303(bb)(1) of the Act and Section 205(b)(4)(B) of the 
CVAA focus on making navigation devices accessible to people with 
vision disabilities, and do not reference people who are deaf or hard 
of hearing, means that requests were not meant to be a pre-requisite to 
providing accessible activation mechanisms for closed captioning under 
Section 303(bb)(2) of the Act. The Commission asked whether it was 
Congress's intent that covered entities include the mechanism to make 
closed captioning easily accessible on all devices with built-in closed 
captioning.
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    \111\ Section 205(b)(3) of the CVAA provides that ``[a]n entity 
shall only be responsible for compliance with the requirements added 
by this section with respect to navigation devices that it provides 
to a requesting blind or visually impaired individual.'' Public Law 
111-260, 205(b)(3).
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    104. We find that the statutory text and purpose support the 
interpretation that covered entities must ensure that all of their 
navigation devices with built-in closed captioning capability provide a 
mechanism to activate closed captioning that is reasonably comparable 
to a button, key, or icon. Section 303(bb)(2) of the Act requires a 
compliant activation mechanism for navigation devices with built-in 
closed captioning. The ``upon request'' language does not appear 
anywhere in that section. As discussed above, the terms ``request'' and 
``requesting'' are used in Section 205 of the CVAA only in connection 
with individuals who are blind or visually impaired. We believe the 
absence of the ``upon request'' language in Section 303(bb)(2) of the 
Act, and the inclusion of such language in Section 303(bb)(1) of the 
Act, is most reasonably read as indicating that Congress intended the 
closed captioning activation mechanism to be included on all devices 
with built-in closed captioning capability, and not just provided to 
individuals who request them, as Congress provided with respect to 
audibly accessible on-screen text menus and guides.
    105. Our interpretation of the obligations imposed by Section 
303(bb)(2) of the Act is further supported by the language and 
structure of Section 205(b)(4) of the CVAA, which governs compliance 
with Section 303(bb)(1) of the Act through ``separate equipment or 
software,'' and Section 205(b)(5) of the CVAA, which governs the 
provision of devices with closed captioning pursuant to Section 
303(bb)(2) of the Act. Sections 205(b)(4)(A) and (B) of the CVAA give a 
covered entity flexibility in complying with the requirements of 
Section 303(bb)(1) of the Act by allowing the entity to provide audibly 
accessible on-screen text menus and guides to ``requesting blind or 
visually impaired'' individuals through separate equipment or software. 
By contrast, Section 205(b)(5) of the CVAA, which relates to compliance 
with the requirements of Section 303(bb)(2) of the Act (closed 
captioning activation mechanism), references neither a ``request'' nor 
any limitation on the kinds of individuals entitled to receive 
accessible activation mechanisms for closed captioning. Moreover, 
Section 205(b) of the CVAA does not permit entities to provide the 
closed captioning mechanism through separate equipment or software. We 
find that the inclusion of the ``requesting'' language in 303(bb)(1) of 
the Act and 205(b)(4) of the CVAA, and the omission of such language in 
303(bb)(2) of the Act and 205(b)(5) of the CVAA, and the flexibility 
afforded to entities to provide on-screen menus and guides but not 
closed captioning activation mechanisms through separate equipment or 
software, further supports our conclusion that Congress did not intend 
to limit the provision of the closed captioning activation mechanism to 
individuals who request them, as it did with audibly accessible on-
screen text menus and guides. Rather, it intended that the closed 
captioning mechanism be universally available.
    106. The absence in Section 303(bb)(2) of the Act of the phrase 
``if achievable'' (which is included in Section 303(bb)(1) of the Act) 
further confirms our conclusion that Congress intended to impose on 
covered entities an unqualified obligation to ensure that all 
navigation devices with built-in closed captioning capability provide 
access to such capability through a mechanism ``reasonably comparable 
to a button, key or icon.'' That is, in contrast to the conditional 
requirements of Section 303(bb)(1) of the Act--entities must provide 
audibly accessible on-screen menus and guides to requesting blind or 
visually impaired individuals only ``if achievable''--Congress made the 
requirements of Section 303(bb)(2) of the Act unconditional. Thus, the 
closed captioning activation mechanism must be provided without regard 
to an ``achievability'' condition and cannot be provided through 
separate equipment or software. We believe requiring

[[Page 77237]]

activation mechanisms for closed captioning to be universally provided 
makes sense from a practical standpoint as well. Because both the CVAA 
and other statutes have made closed captioning a universal design 
feature, we find it reasonable to interpret Section 303(bb)(2) of the 
Act as ensuring that compliant activation mechanisms for built-in 
closed captioning be universally available as well.
    107. We observe that Section 205(b)(3) of the CVAA provides that 
``[a]n entity shall only be responsible for compliance with the 
requirements added by this section with respect to navigation devices 
that it provides to a requesting blind or visually impaired 
individual.'' Some commenters have argued that under this provision, a 
covered entity is responsible for providing a closed captioning 
activation mechanism only to requesting individuals who are blind or 
visually impaired. We reject this argument. Commenters' proffered 
interpretation is based on an overly broad reading of the phrase ``the 
requirements added by this section;'' they contend that ``this 
section'' references Section 205 of the CVAA in its entirety. This 
reading, however, ignores the qualifier ``with respect to navigation 
devices that it provides to a requesting blind or visually impaired 
individual.'' That is, by its terms, Section 205(b)(3) of the CVAA 
limits an entity's compliance responsibility to devices provided to 
requesting individuals, but only ``with respect to navigation devices 
that it provides to a requesting blind or visually impaired 
individual.'' In other words, Section 205(b)(3) of the CVAA applies 
only with regard to those devices provided pursuant to Section 
303(bb)(1) of the Act (audibly accessible on-screen text menus and 
guides provided on navigation devices ``upon request by individuals who 
are blind or visually impaired'').\112\ It does not apply to the closed 
captioning activation mechanism covered under Section 303(bb)(2) of the 
Act, which says nothing about requesting blind or visually impaired 
individuals. We believe our interpretation is the most sensible reading 
of Section 205(b)(3) of the CVAA in context. If we were to construe 
that provision as limiting a covered entity's obligation to comply with 
Section 303(bb)(2) of the Act to only those cases in which a blind or 
visually impaired individual requests the closed captioning activation 
device, such a reading would deny improvements in closed captioning 
accessibility to those consumers who need and utilize it most, i.e., 
individuals who are deaf and hard of hearing, and make this feature 
accessible only to individuals who generally have far less of a need 
for it. We do not believe Congress intended such a nonsensical result, 
and we believe that the foregoing analysis of the language of the 
various provisions of Section 205 of the CVAA and how they fit together 
in context confirms that. For the reasons discussed above, we interpret 
Section 303(bb)(2) of the Act as requiring covered entities to include 
compliant closed captioning activation mechanisms on all navigation 
devices with built-in closed captioning capability.\113\


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    \112\ For example, under Section 205(b)(3), an MVPD would be 
responsible for compliance with the audibly accessible requirement 
in Section 303(bb)(1) only with regard to devices it supplies to the 
requesting individual; it would not be responsible for compliance 
with regard to a device an individual purchased at retail.
    \113\ Our decision is consistent with the requirement in Section 
205(b)(5) of the CVAA that our rules ``permit the entity providing 
the navigation device maximum flexibility in the selection of means 
for compliance with Section 303(bb)(2). . . .'' Public Law 111-260, 
205(b)(5). We interpret the phrase ``selection of means for 
compliance'' to refer to the selection of the mechanism that is 
``reasonably comparable to a button, key, or icon.'' Our decision 
thus does not restrict a covered entity's flexibility to choose the 
mechanism by which it will meet this requirement.
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VI. Other Issues

A. Alternate Means of Compliance

    108. Section 204 of the CVAA states that an entity may meet the 
requirements of Section 303(aa) of the Act ``through alternate means 
than those prescribed by'' the regulations that we adopt herein if the 
requirements of Section 303(aa) of the Act are met, as determined by 
the Commission. Public Law 111-260, 204(c). We adopt our proposal in 
the NPRM to implement the same approach to alternate means of 
compliance that the Commission adopted in the IP Closed Captioning 
Order, which implemented a similar provision in Section 203 of the 
CVAA. We note that the commenters on this issue generally support our 
proposal. Under our approach, rather than specifying what may 
constitute a permissible alternate means of compliance, we will address 
any specific requests from parties subject to the new rules on a case-
by-case basis when they are presented to us. Should an entity seek to 
use an ``alternate means'' to comply with the applicable requirements, 
that entity may either: (i) request a Commission determination that the 
proposed alternate means of compliance satisfies the statutory 
requirements pursuant to Sec.  1.41 of our rules; or (ii) claim in 
defense to a complaint or enforcement action that the Commission should 
determine that the party's actions were permissible alternate means of 
compliance.\114\ We note that covered entities that claim in defense to 
a complaint or enforcement action that their actions were a permissible 
alternate means of compliance bear the burden of proof on this defense. 
We delegate authority to the Media Bureau and the Consumer and 
Governmental Affairs Bureau, as we did in the IP Closed Captioning 
Order and other contexts, to consider all requests for a declaratory 
ruling regarding an alternate means of compliance.
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    \114\ We note that this approach slightly differs from the 
approach recently adopted in the Emergency Information/Video 
Description Order. Under that approach, a covered entity that seeks 
to use an ``alternate means'' to comply with the Section 203 
emergency information and video description apparatus requirements 
must request and receive a Commission determination that the 
proposed alternate means satisfies the statutory requirements 
through a request pursuant to Sec.  1.41 of our rules before using 
such alternate means of compliance. The covered entity is not 
permitted 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. The Commission explained 
that it was deviating from the approach implemented in the IP Closed 
Captioning Order because of 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.
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    109. We reject DISH/EchoStar's proposal to set a 90-day time limit 
for Bureau action on requests for a declaratory ruling that a proposed 
alternate means of compliance satisfies the statutory requirements. 
While we believe the Bureaus can act expeditiously on such requests, we 
conclude that the potentially complex nature of proposals for alternate 
means of compliance that may need to be evaluated makes it inadvisable 
to adopt binding time frames.

B. Compliance Deadlines

    110. We set a compliance deadline of three (3) years from the date 
the R&O is published in the Federal Register by which covered entities 
must comply with the requirements of Sections 204 and 205. Section 204 
does not specify the time frame by which digital apparatus must comply 
with the requirements for accessible user interfaces and programming 
guides. However, Section 204(d) states that ``[a] digital apparatus 
designed and manufactured to receive or play back the Advanced 
Television Systems Committee's Mobile DTV Standards A/153 shall not be 
required to meet the

[[Page 77238]]

requirements of the regulations [adopted under Section 204] for a 
period of not less than 24 months after the date on which the final 
regulations are published in the Federal Register.'' Section 205 sets 
forth a phase-in period of not less than two years from the date of 
adoption of rules by which navigation devices must comply with the 
requirements for a mechanism reasonably comparable to a button, key, or 
icon for closed captioning or accessibility features,\115\ and not less 
than three years by which navigation devices must comply with the 
requirements for accessible on-screen text menus and guides for the 
display or selection of video programming.\116\ With respect to Section 
204, the VPAAC recommends that the industry be given not less than two 
years after publication of the regulations in the Federal Register to 
come into compliance, consistent with the time frame adopted in both 
the ACS Order and the IP Closed Captioning Order. With respect to 
Section 205, the VPAAC recommends that we adopt the minimum phase-in 
periods described in the statute, but suggests that they should run 
from the date of publication of the rules in the Federal Register, 
rather than from the date of adoption, consistent with its 
recommendation in the Section 204 context. The NPRM tentatively 
concluded to adopt the VPAAC's recommendations. Some commenters support 
the NPRM's proposal, while others advocate a ``uniform'' three-year 
compliance deadline for implementing all new rules under Sections 204 
and 205.
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    \115\ Section 205 provides that ``[t]he Commission shall provide 
affected entities with not less than 2 years after the adoption of 
such regulations to begin placing in service devices that comply 
with the requirements of Section 303(bb)(2) of the Communications 
Act.''
    \116\ Section 205 provides that ``[t]he 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 of Section 303(bb)(1) of the Communications 
Act.''
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    111. We are persuaded by industry commenters that a uniform three-
year phase-in period for compliance with Sections 204 and 205 will 
simplify implementation and enforcement of these provisions. We 
recognize that the Commission has generally afforded manufacturers two 
years to comply with accessibility requirements under the CVAA.\117\ 
However, we agree with industry commenters that a common deadline will 
afford covered entities the flexibility to adopt similar accessibility 
solutions for Sections 204 and 205 equipment. CEA explains that 
``covered digital apparatus and navigation devices may rely on the same 
third-party solutions to meet the applicable accessibility 
requirements'' and that such ``solutions would likely become available 
for both digital apparatus and navigation devices around the same 
time.'' Industry commenters also explain that a common deadline would 
avoid uncertainty as to ``when particular video programming features of 
a new, multipurpose or hybrid product'' must comply. Finally, CEA 
asserts that, ``due to the timing of the product development cycle, 
especially for TVs,'' a uniform deadline ``will greatly simplify the 
development of accessible solutions for apparatus covered by Section 
204 without significantly delaying the introduction of accessible 
devices.'' \118\ In addition, we believe more time is appropriate for 
covered entities to provide an accessible activation mechanism for 
built-in closed captioning because of our decision herein that this 
requirement applies to all navigation devices (irrespective of whether 
it has received a request from a consumer) and is not subject to the 
``achievability'' limitation. We also expect that having a common 
deadline for an accessible activation mechanism for built-in closed 
captioning and audibly accessible on-screen text menus and guides will 
allow covered entities to design devices that incorporate all of these 
required accessibility features, which should reduce consumer confusion 
about the accessibility of device features. We note that, while NAD/
Consumer Groups endorsed the VPAAC timing recommendations, they did not 
otherwise respond to industry's request for a uniform three-year phase-
in period. We agree with industry commenters that the benefits of a 
simplified, uniform compliance deadline outweigh any inconvenience that 
may be caused to consumers. Although the compliance deadline is three 
years away, we expect manufacturers to take accessibility into 
consideration as early as possible during the design process for new 
and existing equipment and to begin taking steps to bring accessible 
equipment to consumers as required by our rules.
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    \117\ The Commission has repeatedly determined that 
manufacturers generally require approximately two years to design, 
develop, test, manufacture, and make available for sale new 
products.
    \118\ CEA explains that new TV models are usually introduced in 
the spring, meaning that adoption of a 3-year compliance deadline 
that will go into effect in the fourth quarter of 2016 will lead to 
devices being introduced the previous spring, and thus amount to 
``an effective phase-in period of only about two and a half years.'' 
ESA states that the extra time may allow manufacturers ``to roll out 
accessibility solutions across product lines contemporaneously, 
which in turn may foster investment and innovation in improved 
accessibility technologies.''
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    112. We clarify that the compliance deadlines adopted herein refer 
only to the date of manufacture, consistent with the IP Closed 
Captioning Reconsideration Order and the Emergency Information/Video 
Description Order. As explained in those orders, this approach is 
consistent with the Commission's past practices regarding similar 
equipment deadlines, and a compliance deadline based on the date of 
importation or the date of sale would be unworkable in most 
circumstances, given that the manufacturer often does not control the 
date of importation or sale.
    113. Delayed Compliance for Mid-sized and Smaller MVPDs. We set a 
later compliance deadline of five (5) years from the date the R&O is 
published in the Federal Register by which certain mid-sized and 
smaller MVPD operators and small MVPD systems must comply with the 
requirements of Section 205. Specifically, this later deadline will 
apply to:
     MVPD operators with 400,000 or fewer subscribers (i.e., 
MVPD operators other than the top 14); \119\ and
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    \119\ See NCTA, Industry Data, Top 25 Multichannel Video Service 
Customers (2012), http://www.ncta.com/industry-data (visited Aug. 
28, 2013) (showing the number of subscribers for each of the top 25 
MVPDs, based on 2012 data). We will rely on this data for our 
purposes here.
---------------------------------------------------------------------------

     MVPD systems with 20,000 or fewer subscribers that are not 
affiliated with an operator serving more than 10 percent of all MVPD 
subscribers (i.e., 10.1 million \120\).
---------------------------------------------------------------------------

    \120\ At the end of 2011, there were approximately 101.0 million 
MVPD subscribers. We will use this 101.0 million total MVPD 
subscribers approximation for our purposes here, although we 
recognize that the total may now be slightly less. See NCTA, 
Industry Data (2012), http://www.ncta.com/industry-data (visited 
Aug. 28, 2013). In any case, our definition of a small MVPD system 
will exclude systems affiliated with one of the top four MVPDs--
Comcast, DIRECTV, DISH Network, and Time Warner Cable, all of which 
have more than 10.1 million subscribers.
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    In addition, we will review the marketplace after the three-year 
compliance deadline for larger MVPDs to determine whether this five-
year delayed compliance deadline should be retained or extended (in 
whole or in part). Once we reach the three-year compliance deadline for 
larger operators, we believe we will be better positioned to assess 
whether mid-sized and/or smaller operators will be able to comply 
within another two years. We delegate authority to the Media Bureau to 
initiate this review.
    114. As discussed above, Section 205 sets forth minimum compliance 
phase-in periods (i.e., ``not less than'' two/

[[Page 77239]]

three years). Therefore, Section 205 provides the Commission with the 
discretion to set later deadlines if deemed appropriate. MVPD 
commenters ask that we use this discretion to afford mid-sized and 
smaller MVPD operators and small MVPD systems with more time to comply 
with Section 205. We agree with MVPD commenters that a longer phase-in 
is appropriate for certain mid-sized and smaller MVPD operators and 
small MVPD systems. We recognize that smaller operators generally lack 
the market power and resources to drive independently the development 
of MVPD headend or customer premises equipment. NCTA explains that 
smaller operators ``typically rely on the research and development 
efforts of the larger operators prior to deploying new equipment and 
services to their customers.'' Thus, it is the large cable operators 
that generally dictate equipment features to manufacturers and commonly 
get priority in the delivery of that equipment. We also agree with NCTA 
that ``small systems have a smaller customer base across which to 
spread costs.'' \121\ We recognize that delayed compliance may mean 
fewer accessibility choices for subscribers to smaller systems with 
disabilities in the near term, particularly in rural areas. However, we 
agree with NCTA that this concern will be mitigated by the presence of 
other accessibility options available in the marketplace when the rules 
take effect. As NCTA notes, most consumers should have access to 
satellite service, and subscribers to cable systems that are eligible 
for delayed compliance will be able to obtain navigation devices at 
retail that will be subject to the Section 205 audible accessibility 
requirement. Therefore, we believe providing some relief to mid-sized 
and smaller operators is reasonable and consistent with congressional 
intent to allow the Commission to establish reasonable compliance 
deadlines.
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    \121\ However, as discussed below, we recognize that small 
systems that are part of a larger, multiple-cable-system network are 
able to spread even very high costs over large numbers of 
subscribers, easing the upgrade cost burden even in systems with 
small numbers of subscribers. Therefore, we exclude from our later 
compliance deadline any system affiliated with an operator serving 
more than 10.1 million subscribers.
---------------------------------------------------------------------------

    115. However, cognizant of Congress's desire that consumers with 
disabilities gain better access to video programming without undue 
delay, we limit the delay in compliance for mid-sized and smaller 
operators to two years. In addition to seeking a permanent exemption 
for all small cable systems serving 20,000 or fewer subscribers, 
industry commenters ask us to provide an indefinite extension to all 
but the largest operators and to review the marketplace after the 
three-year phase-in to determine whether accessibility is 
``achievable'' for smaller operators.\122\ We decline to provide an 
indefinite extension, and agree with the Consumer Groups that there is 
no reason to assume that smaller operators or small systems will never 
be able to achieve compliance. Therefore, first, we limit our extension 
to two additional years, rather than providing an indefinite extension 
of time. We believe that an open-ended extension of time is unnecessary 
and would undermine the goals of the statute.\123\ Nevertheless, as 
noted above, we will review the marketplace in three years to consider 
whether the five-year delayed compliance deadline should be retained or 
extended (in whole or in part).
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    \122\ As explained below, we decline this request, but consider 
it for purposes of affording a delayed compliance deadline to most 
small systems.
    \123\ Moreover, to the extent MVPDs can demonstrate that 
compliance is not ``achievable,'' they have recourse under the 
statute. We remind covered entities that do not make their products 
or services accessible and claim as a defense that it is not 
achievable for them to do so, that they bear the burden of proof on 
this defense.
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    116. Second, we decline to extend the compliance deadline for any 
operator smaller than the six largest incumbent cable operators, as 
requested by NCTA,\124\ or to extend the compliance deadline for any 
small system affiliated with an operator serving more than 10 percent 
of all MVPD subscribers. Under NCTA's approach, all MVPDs except 
Comcast, DIRECTV, DISH Network, Time Warner Cable, Verizon, Cox, AT&T, 
Charter, Cablevision, and Bright House would receive an extension of 
time to comply, and small systems owned by the two largest operators 
would never have to comply. NCTA has provided no evidence to suggest 
that it would be too burdensome for all MVPDs included within this 
broad category to comply.\125\ Instead, we provide relief to MVPD 
operators with 400,000 or fewer subscribers (i.e., MVPD operators other 
than the top 14) and MVPD systems with 20,000 or fewer subscribers that 
are not affiliated with an operator serving more than 10 percent of all 
MVPD subscribers. We base our decision allowing a deferred compliance 
deadline for MVPDs with 400,000 or fewer subscribers on the 
Commission's definition of ``small'' cable company in 47 CFR 
76.901(e).\126\ In addition, the Commission has recognized that small 
systems may be part of larger, multiple-cable-system, networks, 
potentially allowing even very high costs to be spread over large 
numbers of subscribers. Therefore, while we generally provide relief to 
MVPD systems with 20,000 or fewer subscribers, we exclude from this 
relief those systems that are affiliated with an operator serving more 
than 10 percent of

[[Page 77240]]

all MVPD subscribers.\127\ Accordingly, we find that affording an extra 
two years for covered entities meeting these size standards to comply 
with the requirements of Section 205 will ease burdens on smaller 
operators, while minimizing any adverse impact on consumers.\128\
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    \124\ NCTA points to the BST Encryption Order to support this 
size standard. In the BST Encryption Order, the Commission required 
only the six largest incumbent cable operators to adopt a solution 
that would make basic service tier channels available to consumers 
on third-party provided IP-enabled clear QAM devices. Notably, the 
Commission found it unnecessary to extend the additional equipment 
requirement to smaller cable operators because ``only a small number 
of consumers rely on IP-enabled devices to access the basic tier'' 
and therefore the Commission expected ``this particular 
compatibility problem to be extremely limited in scope.'' In the 
instant accessibility context, however, the need for accessibility 
solutions is far greater and much more certain, as evidenced by the 
CVAA's enactment.
    \125\ Three cable operators with more than 400,000 subscribers 
and fewer than 2 million subscribers argue that each would have 
difficulty complying in a timely manner because larger operators get 
priority in the delivery of equipment. We note that Suddenlink has a 
partnership with TiVo, which is independently subject to these 
accessibility requirements as a manufacturer of navigation devices 
sold at retail. See Suddenlink Communications, ``Suddenlink & TiVo 
Announce Strategic Distribution Agreement'' (press release), July 8, 
2010, available at http://static.suddenlink.synacor.com/ul/pdf/pr/pr_07_08_10.pdf. We also note that Suddenlink and Cable One each 
primarily rely on user interfaces provided by Rovi, and WOW! 
primarily relies on user interfaces provided by Cisco. See Rovi 
Corporation, ``Rovi Announces New Guide Agreement with Suddenlink'' 
(press release), June 15, 2011, available at http://www.rovicorp.com/company/newscenter/pressreleases/1434_15354.htm. 
To the extent Rovi and Cisco will continue to supply electronic 
program guides also to larger operators, they will have to undertake 
the research and development to make these guides accessible by the 
compliance deadline for larger operators. At this time, therefore, 
it is premature for us to conclude that these operators will be 
unable to meet the requirements of Section 205 in three years. 
Nevertheless, Suddenlink, Cable One and WOW!, like other covered 
entities, may seek an extension of the compliance deadline if they 
determine they need additional time to comply and can provide 
evidence to support that request. We will entertain individual 
requests for a limited extension of time to comply for operators 
with more than 400,000 subscribers and fewer than 2 million 
subscribers, if a requesting operator can demonstrate that it 
attempted in good faith to obtain a compliant accessible solution by 
the three-year deadline, but that it could not feasibly procure such 
a solution by the deadline. Such a showing must include a detailed 
factual statement describing the steps the operator has taken to 
comply with the requirements of Section 205, an estimate of how long 
it will take the operator to comply, supported by appropriate 
documentation (e.g., letters to and from equipment suppliers), and a 
corroborating affidavit by an officer or director of the operator, 
pursuant to Sec.  1.16 of the rules, 47 CFR 1.16. We delegate 
authority to the Media Bureau to consider such requests.
    \126\ In addition, in the CALM Act Report and Order, we used the 
400,000 subscriber threshold to define a smaller operator, excusing 
such operators with 400,000 or fewer subscribers from having to 
perform annual spot checks.
    \127\ Under this approach, systems affiliated with Comcast, 
DIRECTV, DISH Network, and Time Warner Cable would be excluded from 
the definition of a small system.
    \128\ We estimate that our longer phase-in period for smaller 
operators and small systems would apply to approximately 7 percent 
(or 7 million) of all MVPD subscribers. Of course, subscribers 
seeking an accessibility solution would account for an even smaller 
subset of these MVPD subscribers. Our estimate is based on industry 
data indicating that the 14 largest MVPD operators (i.e., those 
operators serving more than 400,000 subscribers) accounted for 
approximately 95 million of the approximately 101 million MVPD 
subscribers, meaning approximately 6 million subscribers may 
potentially be affected. See NCTA, Industry Data (2012), http://www.ncta.com/industry-data (visited Aug. 28, 2013). Based on our 
Form 325 data, we estimate that MVPD systems with 20,000 or fewer 
subscribers which are not affiliated with an operator serving more 
than 10 percent of all MVPD subscribers account for less than 1 
million subscribers, thus adding an additional 1 million subscribers 
to our estimate of the pool of potential subscribers that may be 
affected.
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    117. Section 205 states that the Commission ``may provide an 
exemption from the regulations for cable systems serving 20,000 or 
fewer subscribers.'' As noted in the NPRM, use of the word ``may'' in 
this provision suggests that adoption of such an exemption is in the 
Commission's discretion. MVPD commenters advocate that we afford this 
exemption, while consumer groups oppose it. We decline at this time to 
adopt a permanent exemption for small cable systems with 20,000 or 
fewer subscribers, as permitted by Section 205(b)(2). However, all 
small cable systems other than those affiliated with an operator 
serving more than 10.1 million subscribers\129\ will benefit from the 
longer phase-in deadline described above.
---------------------------------------------------------------------------

    \129\ Since few systems with 20,000 or fewer subscribers are 
affiliated with an operator serving more than 10.1 million 
subscribers, almost all of these small systems will be able to take 
advantage of the deferred compliance deadline.
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    118. We find that the record does not support a permanent 
exemption. We agree with the Consumer Groups that MVPDs, regardless of 
size, should provide access to accessible equipment if doing so is 
achievable. Whereas the uncertainty surrounding how covered small 
entities will comply makes it reasonable to afford a later compliance 
deadline, it also means it would be premature to assume that small 
cable systems will never be able to comply with the requirements of 
Section 205.\130\
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    \130\ If the delayed compliance deadline proves insufficient to 
allow small systems to implement an affordable solution, we may 
consider requests for a further extension on an individual or 
industry-wide basis. We delegate authority to the Media Bureau to 
consider such requests.
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C. Complaint Procedures

    119. We adopt the NPRM's proposal to use the same procedures for 
the filing of consumer complaints alleging violations of the 
Commission's rules requiring accessibility of user interfaces and video 
programming guides and menus that the Commission adopted in the IP-
closed captioning context. Commenters on this issue generally support 
our proposal; however, NCTA seeks certain modifications to these 
procedures. As explained below, we reject NCTA's proposed 
modifications. Accordingly, we establish the following procedures for 
the filing of consumer complaints alleging violations of the 
Commission's rules requiring accessibility of user interfaces and video 
programming guides and menus: (i) Require complainants to file within 
60 days after experiencing a problem; (ii) allow complainants to file 
their complaints either with the Commission or with the covered entity 
responsible for the problem; (iii) provide the entity 30 days to 
respond to the complaint; (iv) do not specify a time frame within which 
the Commission must act on complaints; (v) follow the Commission's 
flexible, case-by-case forfeiture approach governed by Sec.  1.80(b)(6) 
of our rules; (vi) specify the information that the complaints must 
include; and (vii) require covered entities to make contact information 
available to end users for the receipt and handling of written 
complaints.
    120. Timing of Complaints. We adopt the NPRM's proposal to require 
complainants to file within 60 days after experiencing a problem. The 
Commission will accept a consumer's allegations as to the timeliness of 
a complaint as true, unless a covered entity demonstrates otherwise.
    121. Option to File Complaints with the Commission or with the 
Covered Entity. We adopt the NPRM's proposal to allow complainants to 
file their complaints either with the Commission or with the covered 
entity (e.g., manufacturer or MVPD) responsible for the problem. We 
disagree with NCTA that consumers should be required to first attempt 
to resolve disputes with covered entities before filing a complaint 
with the Commission.\131\ We previously had such a requirement for 
television closed captioning complaints, but that process proved 
problematic for many consumers who often were not sure whom to contact 
with their complaint. As a result, we revised our television closed 
captioning complaint procedures to allow complaints to be first filed 
with the Commission and have adopted this revised procedure in 
subsequent contexts, such as the IP-closed captioning rules.\132\ 
Accordingly, as the Commission did in the IP-closed captioning rules, 
we will create a process for complainants to file their complaints 
either with the Commission or with the covered entity responsible for 
the problem.
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    \131\ NCTA points to our video description rules, 47 CFR 
79.3(e)(vi), which require consumers to certify that they 
``attempted in good faith to resolve the dispute'' with the covered 
entity before filing a complaint with the Commission. The CVAA, 
however, required the Commission to reinstate the video description 
rules previously adopted in 2000. Our rule permitting a complainant 
to file either with the Commission or the covered entity is 
consistent with our rules in the other video programming 
accessibility contexts, such as closed captioning and emergency 
information.
    \132\ We did not require that consumers file first with covered 
entities in the IP Closed Captioning Order and we see no need to do 
so here, where consumers may have difficulty identifying the 
apparatus or navigation device manufacturer or provider. We are not 
persuaded by NCTA's assertion that ``there is no such difficulty in 
the instant proceeding.'' There may still be confusion about who is 
the responsible apparatus or navigation device manufacturer or 
provider in some situations, and allowing consumers to file directly 
with the Commission will provide a more expedient solution. 
Moreover, because there may be situations where consumers will know 
their MVPD service provider is responsible, our approach permits the 
filing of complaints directly with the MVPD service provider.
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    122. Consumers who file their complaints first with the Commission 
may name a covered entity in their complaints. The Commission will 
forward such complaints, as appropriate, to the named covered entity 
for its response, as well as to any other entity that Commission staff 
determines may be involved, and 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 adjudicate potential violations of Commission rules.
    123. If a complaint is filed first with a covered entity, our rules 
will require the covered entity to respond in writing to the 
complainant within thirty (30) days after receipt of a complaint. If a 
covered entity fails to respond to the complainant within thirty (30) 
days, or the response does not satisfy the consumer, the complainant 
may file the complaint with the Commission within thirty (30) days 
after the time allotted for the covered entity to respond. If the

[[Page 77241]]

consumer files the complaint with the Commission (after filing with the 
covered entity), the Commission will forward the complaint to the named 
covered entity, as well as to any other covered entity that Commission 
staff determines may be involved. If the Commission is aware that a 
complaint has been filed simultaneously with the Commission and the 
covered entity, the Commission may allow the process involving the 
covered entity and the consumer to reach its conclusion before moving 
forward with its complaint procedures, in the interest of efficiency.
    124. If a consumer names a covered entity in its complaint, but the 
Commission determines that its investigation should be directed against 
another covered entity, the Commission will forward the complaint to 
that covered entity without requiring any further action by the 
consumer. In addition, if a covered entity receives a complaint from 
the Commission that it believes the Commission should have directed to 
a different covered entity, the covered entity may say so in its 
response to the complaint. In such instances, however, the covered 
entity's response should also indicate the identity and contact 
information of the covered entity to which the complaint should be 
directed, if known.
    125. Complaint Response Time. We adopt the NPRM's proposal to 
require covered entities to respond in writing to the Commission and 
the complainant within 30 days after receipt of a complaint from the 
Commission. In response to a complaint, a covered entity must file with 
the Commission sufficient records and documentation to prove that it 
was (and remains) in compliance with the Commission's rules. Conclusory 
or insufficiently supported assertions of compliance will not meet a 
covered entity's burden of proof. If the covered entity admits that it 
was not, or is not, in compliance with the Commission's rules, it must 
file with the Commission sufficient records and documentation to 
explain the reasons for its noncompliance, show what remedial steps it 
has taken or will take, and show why such steps have been or will be 
sufficient to remediate the problem.
    126. Resolution of Complaints. We adopt the NPRM's proposal not to 
specify a time frame within which the Commission must act on 
complaints. No such time frame exists for IP closed captioning 
complaints. In evaluating a complaint, the Commission will review all 
relevant information provided by the complainant and the subject 
entity, as well as any additional information the Commission deems 
relevant from its files or public sources. When the Commission requests 
additional information, parties to which such requests are addressed 
must provide the requested information in the manner and within the 
time period the Commission specifies.
    127. Sanctions or Remedies. We adopt the NPRM's proposal to follow 
the Commission's flexible, case-by-case approach to fashioning 
sanctions and remedies governed by Sec.  1.80 of our rules. We will 
adjudicate complaints on the merits and may employ the full range of 
sanctions and remedies available to the Commission under the Act.
    128. Content of Complaints. We adopt the NPRM's proposal to specify 
the information that the complaints should include. Consistent with the 
Commission's approach in the IP closed captioning context, complaints 
should include the following information: (a) The complainant's name, 
address, and other contact information, such as telephone number and 
email address; (b) the name and contact information of the covered 
entity; (c) information sufficient to identify the software or device 
used; (d) the date or dates on which the complainant purchased, 
acquired, or used, or tried to purchase, acquire, or use the apparatus 
or navigation device; (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; (g) the complainant's preferred format or method of 
response to the complaint; and (h) if a Section 205 complaint, the date 
that the complainant requested an accessible navigation device and the 
person or entity to whom that request was directed. Complaints alleging 
a violation of the apparatus or navigation device rules that we adopt 
in this proceeding may be transmitted to the Consumer and Governmental 
Affairs Bureau \133\ by any reasonable means, such as the Commission's 
online informal complaint filing system, letter, facsimile 
transmission, telephone (voice/TRS/TTY), email, or some other method 
that would best accommodate the complainant's disability. Because some 
of the rules we are adopting are intended to make apparatus or 
navigation devices accessible to individuals who are blind or visually 
impaired, and therefore complainants may themselves be blind or 
visually impaired, 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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    \133\ 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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    129. Contact Information. We adopt the NPRM's proposal to require 
covered entities to make contact information available to consumers for 
the receipt and handling of complaints. We disagree with NCTA that the 
Commission should not require the availability of specific contact 
information. Given that we will permit consumers to file their 
complaints directly with a covered entity, we think it is important 
that consumers have the information necessary to contact the covered 
entity. Although we do not specify how covered entities must provide 
contact information for the receipt and handling of consumer 
complaints, we encourage them to include this information with the 
other accessibility information they must post on their official Web 
site.\134\ We expect that covered entities will prominently display 
their contact information in a way that makes it available and 
accessible to all consumers of their products and services. We 
emphasize that such notice should be provided in a location that is 
conspicuous to consumers and accessible to those who are blind or 
visually impaired. Consistent with the IP closed captioning rules, we 
will require covered entities to make available and accessible the 
contact information of a person with primary responsibility for 
accessibility compliance issues. Covered entities must provide that 
person's name and title or office, telephone number, fax number, postal 
mailing address, and email address. Covered entities must keep this 
information current and update it within 10 business days of any 
change.
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    \134\ As discussed below, we require MVPDs to notify their 
subscribers about the availability of accessible devices through 
notice on their official Web sites, and encourage manufacturers to 
do the same.
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    130. Revisions to Form 2000C. We direct the Consumer and 
Governmental Affairs Bureau to revise the existing complaint form for 
disability access complaints (Form 2000C) in accordance with the R&O, 
to facilitate the filing of complaints. In the NPRM, the Commission 
asked if it should revise the existing complaint form for disability 
access complaints (Form 2000C) and, if so, what changes should be made. 
Consumer groups state that the form needs to be updated to accommodate 
complaints related to the accessibility of user interfaces, and video 
programming guides and menus. We agree, and direct

[[Page 77242]]

the Bureau to make any changes necessary to facilitate the filing of 
complaints pursuant to the rules we adopt herein.\135\
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    \135\ Should the complaint filing rules adopted in the R&O 
become effective before the revised Form 2000C is available to 
consumers, complaints may be filed in the interim by fax, mail, or 
email.
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D. Verification of Eligibility

    131. As a general matter, we will not allow covered entities to 
require consumer verification of eligibility as an individual who is 
blind or visually impaired prior to the provision of accessible 
equipment.\136\ There is consensus in the record, however, that 
verification of eligibility should be permitted in certain limited 
situations.\137\ We will allow covered entities to verify that a 
consumer requesting an accessible navigation device or accessibility 
solution pursuant to Section 205 is eligible for such equipment when 
the covered entity chooses to rely on an accessibility solution that 
involves providing the consumer with sophisticated equipment and/or 
services at a price that is lower than that offered to the general 
public because the entity is relying on this solution to meet its 
accessibility obligations under Section 205. NCTA, AFB, and ACB agree 
that MVPDs may establish reasonable verification eligibility 
procedures`` only . . . in situations where an MVPD is providing the 
customer with an accessible solution that he or she would otherwise not 
be entitled to receive under his or her existing level of service and 
associated equipment.'' For example, NCTA, AFB, and ACB state that ``an 
MVPD might seek proof of eligibility in situations where it is 
providing an accessible on-screen text menu or guide via a set-top box 
different from (and more advanced than) the equipment that the customer 
is currently using to access MVPD service, or where an MVPD offers a 
separate accessibility solution, such as a tablet with an accessible 
app.'' \138\ We understand that in these situations there may be 
sufficient risk of fraud or abuse by individuals who are not blind or 
visually impaired to warrant allowing verification of eligibility.\139\ 
With respect to proof of eligibility, covered entities must allow a 
consumer to provide a wide array of documentation to verify eligibility 
for the accessibility solution provided.\140\ In addition, they must 
protect personal information gathered from consumers through their 
verification procedures. We note that MVPDs have a statutory obligation 
pursuant to Sections 338(i)(4)(A) and 631(c)(1) of the Act to protect 
personal information gathered from subscribers. 47 U.S.C. 338(i)(4)(A), 
551(c)(1). We believe the privacy protections required by these 
provisions will adequately address our concerns about consumer privacy, 
because they generally forbid disclosure of personally identifiable 
information regarding subscribers without prior consent and require 
necessary actions to prevent unauthorized access to information by a 
person other than the subscriber. We therefore find it appropriate for 
manufacturers that choose to require consumer verification of 
eligibility to also comply with the requirements of Sections 
338(i)(4)(A) and 631(c)(1) of the Act to protect personal information 
gathered from consumers through their verification procedures.\141\ We 
find that it is equally important that manufacturers protect the 
privacy of consumers to the same extent as MVPDs, given the personal 
nature of the eligibility information required and that the same 
confidentiality concerns are at issue. We also believe that 
establishing verification and privacy requirements for manufacturers 
consistent with those that apply to MVPDs will benefit consumers by 
creating one uniform standard with which regulated entities must 
comply. In determining which verification procedures to adopt to verify 
the consumers' eligibility to receive the device, we strongly encourage 
covered entities to consult with people who are blind and visually 
impaired to ensure that whatever processes they adopt are not 
burdensome on consumers. Similarly, while we do not require it, we 
encourage a covered entity to seek a determination from the Commission 
as to whether its proposed verification procedures would be burdensome 
to consumers before implementing such procedures.\142\ Except in the 
limited situations in which verification is permitted (as discussed 
above), we require that covered entities accept all requests for an 
accessible navigation device or accessibility solution from consumers 
who self-identify (disclose) that they are blind or visually impaired 
for the purpose of obtaining an accessible navigation device or 
accessibility solution ``upon request'' pursuant to Section 205.\143\
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    \136\ We note that verification of eligibility is not at issue 
for consumers who are deaf or hard of hearing seeking an accessible 
closed captioning mechanism because, as discussed above, covered 
entities must ensure that all of their navigation devices with 
built-in closed captioning capability provide a mechanism to 
activate closed captioning.
    \137\ Consumer groups had previously opposed industry's requests 
to require verification of disabilities. MVPDs favored permitting 
verification procedures.
    \138\ A manufacturer could impose a verification requirement in 
the analogous situation in which, in fulfillment of its Section 205 
obligations, it provides an accessible retail navigation device 
different from (and more advanced than) a less sophisticated, non-
compliant navigation device that the customer preferred to purchase, 
but at the same price as the less sophisticated device.
    \139\ This is consistent with other accessibility contexts in 
which we permitted reasonable verification eligibility procedures 
because of a significant risk of fraud or abuse.
    \140\ For example, we would consider as reasonable eligibility 
requirements that accommodate a wide array of methods for consumers 
to document eligibility, including, but not limited to: proof of 
participation in a nationally-established program for individuals 
who are blind or visually impaired, such as the Commission's 
National Deaf-Blind Equipment Distribution Program or the National 
Library Service's talking books program; or documentation from any 
professional or service provider with direct knowledge of the 
individual's disability, such as a social worker, case worker, 
counselor, teacher, school superintendent, professional librarian, 
doctor, ophthalmologist, optometrist, or registered nurse.
    \141\ We note that the requirements in Sections 338(i) and 631 
of the Act to protect personal information are identical so 
manufacturers need only refer to one of these provisions for their 
requirements.
    \142\ Any such requests should follow the procedures for an 
informal request for Commission action pursuant to Sec.  1.41 of our 
rules. 47 CFR 1.41. We delegate authority to the Chief of the 
Consumer and Governmental Affairs Bureau to make these 
determinations.
    \143\ This is consistent with other accessibility contexts, such 
as implementation of Sections 255, 716, and 718 of the 
Communications Act, in which the potential for fraud or abuse was 
not raised as an issue.
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E. Notification to Consumers

    132. We conclude that MVPDs must notify consumers that navigation 
devices with the required accessibility features are available to 
consumers who are blind or visually impaired ``upon request'' to the 
extent discussed below. Section 205(b)(1) gives the Commission 
authority to ``prescribe such regulations as are necessary to 
implement'' the requirements that ``on-screen text menus and guides 
provided by navigation devices . . . for the display or selection of 
multichannel video programming are audibly accessible in real-time upon 
request by individuals who are blind or visually impaired.'' Public Law 
111-260, 205(b)(1). In the NPRM, we sought comment on whether to 
require MVPDs to notify their subscribers, in an accessible format, 
that accessible devices are available upon request. Consumer groups 
favor notice requirements, while industry commenters oppose such 
requirements.
    133. We believe consumer notification is an essential part of a 
covered entity's obligation to make audibly accessible devices (or 
separate solutions, such as software, peripheral devices, specialized 
consumer premises equipment, a network-based service, or other

[[Page 77243]]

solution) available to consumers who are blind or visually impaired 
``upon request.'' \144\ Indeed, the ability to purchase or request an 
audibly accessible device or accessibility solution means little if 
consumers are unaware of its existence and availability. Certainly, the 
Commission will do its part to inform consumers about the availability 
of audibly accessible devices upon request, but we believe such efforts 
are no substitute for consumers getting information directly from 
service providers. Accordingly, we establish two notification rules 
requiring MVPDs to notify consumers that navigation devices with the 
required accessibility features are available to consumers who are 
blind or visually impaired upon request. First, when providing 
information about equipment options in response to a consumer inquiry 
about service, accessibility, or other issues, MVPDs must clearly and 
conspicuously inform consumers about the availability of accessible 
navigation devices. Although we do not require a specific means for 
satisfying this notice requirement, we find that the MVPD could provide 
this required notice by instructing their customer service 
representatives to provide this information orally to consumers calling 
the MVPD's customer service line.\145\ Second, MVPDs must provide 
notice on their official Web sites about the availability of accessible 
navigation devices. MVPDs must prominently display accessibility 
information on their Web sites in a way that makes it available (and in 
an accessible format) to all current and potential customers of their 
products and services. For example, we agree with DIRECTV that 
providing notice through a link on the home page would be appropriate. 
Also, while we do not specify the content of these notifications, we 
agree with Consumer Groups that the notices must publicize the 
availability of accessible devices and solutions and convey ``the means 
for making requests for accessible equipment and the specific person, 
office or entity to whom such requests are to be made.'' In the 
accompanying FNPRM, we seek comment on whether additional notification 
requirements on MVPDs are necessary and, if so, what those requirements 
should be.
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    \144\ Notice to consumers about the availability of accessible 
devices takes on even more importance given that covered entities 
may be subject to different compliance deadlines and may have 
different equipment roll-out schedules.
    \145\ We note that customer service representatives are not 
required to repeat this required notice to a repeat caller about the 
same inquiry.
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    134. At this time, we do not impose any notification requirements 
on equipment manufacturers. We find the record is insufficient 
regarding the scope of what such obligations, if any, should be. 
However, we encourage equipment manufacturers to publicize information 
about their accessible devices and accessibility solutions through 
information on their Web sites, in marketing efforts, and through their 
retailers. In the accompanying FNPRM, we seek comment on whether and 
how equipment manufacturers should notify consumers about the 
availability of accessible devices.

VII. Elimination of Analog Closed Captioning Labeling Requirement and 
Renaming Part 79

    135. Although this is not mandated by the CVAA, we adopt the NPRM's 
tentative conclusion to eliminate the analog closed captioning labeling 
requirements from our rules. That is, we will eliminate the requirement 
that manufacturers label analog television receivers based on whether 
they contain an analog closed captioning decoder and the requirement 
that manufacturers include information in a television's user manual if 
the receiver implements only a subset of the analog closed captioning 
functionality. See 47 CFR 79.101(m). As we explained in the NPRM, we 
find that these requirements are no longer necessary. As of March 1, 
2007, our rules require that all televisions contain a digital 
television receiver, and, by extension, a digital closed captioning 
decoder. CEA and NAD/Consumer Groups, the only two commenters who 
addressed our tentative conclusion to eliminate the analog closed 
captioning labeling requirements, both agree that the requirements are 
unnecessary because all television receivers that are currently sold 
are required to support the features of digital closed captioning, 
which are more extensive than those of analog closed captioning. Given 
that it appears that no televisions are being manufactured in or 
imported into the United States today that implement only a subset of 
the analog closed captioning functionality, we believe that it is no 
longer appropriate to continue requiring the labeling of television 
receivers that include analog tuners or the requirement that user 
manuals indicate if a device does not support all of the aspects of the 
analog closed captioning standard.
    136. We also adopt our proposal to rename Part 79 and divide Part 
79 into two subparts; the first subpart includes rules applying to 
video programming owners, providers, and distributors and the second 
subpart includes rules that apply to apparatus manufacturers. CEA and 
NAD/Consumer Groups were the only commenters to address our proposed 
renaming and reorganization and both expressed support for the idea. We 
agree with CEA that our proposed reorganization of Part 79 will assist 
readers in browsing and locating our accessibility rules. We therefore 
rename Part 79 of the Commission's rules ``Accessibility of Video 
Programming'' and divide it into two subparts, Subpart A, entitled 
``Video Programming Owners, Distributors, and Providers,'' which will 
contain those rules regarding the provision of various services, and 
Subpart B, ``Apparatus,'' which will contain those rules pertaining to 
devices and other equipment used to receive, play back, or record video 
programming. In taking this action, we clarify that the renaming and 
reorganization of Part 79 is purely procedural in nature and does not 
affect any of the underlying substance of the rules.

VIII. Procedural Matters

A. Final Regulatory Flexibility Analysis

    137. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\146\ an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rulemaking in 
this proceeding.\147\ 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.\148\

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    \146\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (``SBREFA''), 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'').
    \147\ See Accessibility of User Interfaces, and Video 
Programming Guides and Menus, MB Docket No. 12-108, Notice of 
Proposed Rulemaking, 28 FCC Rcd 8506 (2013) (``NPRM'').
    \148\ See 5 U.S.C. 604.
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1. Need for, and Objectives of, the Report and Order
    138. Pursuant to the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA''), the R&O adopts rules requiring 
the accessibility of user interfaces on digital apparatus and 
navigation devices used to view video programming for individuals with 
disabilities. The rules we adopt here will effectuate Congress's goals 
in enacting Sections 204 and 205

[[Page 77244]]

of the CVAA by: (1) Enabling individuals who are blind or visually 
impaired to more easily access video programming on a range of video 
devices; and (2) enabling consumers who are deaf or hard of hearing to 
more easily activate closed captioning on video devices. Specifically, 
and as discussed more thoroughly below, the rules require that digital 
apparatus subject to Section 204 make appropriate built-in apparatus 
functions (i.e., the functions used to receive, play back, and display 
video programming) accessible to individuals who are blind or visually 
impaired. The rules also require that navigation devices subject to 
Section 205 make on-screen text menus and guides used for the display 
or selection of multichannel video programming audibly accessible, and 
that they make the controls used to access covered functions (i.e., 
power on/off, volume adjust/mute) accessible to individuals who are 
blind or visually impaired. Covered entities must also provide a 
mechanism reasonably comparable to a button, key, or icon for accessing 
certain accessibility features. By imposing new requirements with 
regard to the accessibility of user interfaces and video programming 
guides and menus, the regulations adopted herein further the purpose of 
the CVAA to ``update the communications laws to help ensure that 
individuals with disabilities are able to fully utilize communications 
services and equipment and better access video programming.''
    139. Legal Basis. 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(aa), 303(bb), and 716(g) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(aa), 303(bb), and 617(g).
2. Summary of Significant Issues Raised in Response to the IRFA
    140. Summary of Significant Issues Raised by Public Comments. No 
public comments were filed in response to the IRFA.
    141. Response to Comments filed by the Small Business 
Administration. The Small Business Administration (``SBA'') Office of 
Advocacy filed an ex parte letter in MB Docket No. 12-108, in which it 
forwarded the concerns of small multichannel video programming 
distributors (``MVPDs''), including those affiliated with rural local 
exchange carriers, ``regarding the potential for the proposed rule to 
place a disproportionate economic impact on small MVPDs,'' and in which 
it recommended that the Commission exempt small MVPDs serving fewer 
than 20,000 subscribers from the proposed rule and adopt a delayed 
compliance schedule for all small MVPDs. SBA also shared concerns 
regarding compliance with the RFA in the IRFA, which we address in this 
FRFA by providing a discussion of the potential disproportionate impact 
of the final rules on small entities, as well as steps taken to 
mitigate those impacts.
3. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    142. 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 R&O.\149\ The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \150\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\151\ 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 SBA.\152\ Small entities that are directly affected 
by the rules adopted in the R&O include manufacturers of digital 
apparatus, MVPDs leasing or selling navigation devices, equipment 
manufacturers of navigation devices that place devices into the chain 
of commerce for sale to consumers, and other manufacturers of 
navigation device hardware and software.
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    \149\ 5 U.S.C. 603(b)(3).
    \150\ Id. 601(6).
    \151\ 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.''
    \152\ 15 U.S.C. 632.
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    143. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers, which was developed for small 
wireline businesses. This category 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. 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.'' The SBA has developed a small 
business size standard for this category, which is: all such businesses 
having 1,500 or fewer employees. Census data for 2007 shows that there 
were 31,996 establishments that operated that year. Of this total, 
30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees. Therefore, under this size 
standard, we estimate that the majority of businesses can be considered 
small entities.
    144. 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 
shows that there were 1,141 cable companies at the end of June 2012. Of 
this total, all but 10 incumbent cable companies are small under this 
size standard. In addition, under the Commission's rate regulation 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers. Current Commission records show 4,945 cable systems 
nationwide. Of this total, 4,380 cable systems have less than 20,000 
subscribers, and 565 systems have 20,000 subscribers or more, based on 
the same records. Thus, under this standard, we estimate that most 
cable systems are small.
    145. Cable System Operators (Telecom Act Standard). 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.'' There are approximately 56.4 million 
incumbent cable video subscribers in the United States today. 
Accordingly, an operator serving fewer than 564,000 subscribers shall 
be deemed a small operator, if its annual revenues, when

[[Page 77245]]

combined with the total annual revenues of all its affiliates, do not 
exceed $250 million in the aggregate. Based on available data, we find 
that all but 10 incumbent cable operators are small under this 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. Although it 
seems certain that some of these cable system operators are affiliated 
with entities whose gross annual revenues exceed $250,000,000, we are 
unable at this time to estimate with greater precision the number of 
cable system operators that would qualify as small cable operators 
under the definition in the Communications Act.
    146. 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 businesses. 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 this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees. Therefore, under this size standard, the 
majority of such businesses can be considered small. However, the data 
we have available as a basis for estimating the number of such small 
entities were gathered under a superseded SBA small business size 
standard formerly titled ``Cable and Other Program Distribution.'' The 
definition of Cable and Other Program Distribution provided that a 
small entity is one with $12.5 million or less in annual receipts. 
Currently, only two entities provide DBS service, which requires a 
great investment of capital for operation: DIRECTV and DISH Network. 
Each currently offer subscription services. DIRECTV and DISH Network 
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.
    147. 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 businesses. 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 this total, 30,178 establishments had fewer than 
100 employees, and 1,818 establishments had 100 or more employees. 
Therefore, under this size standard, the majority of such businesses 
can be considered small.
    148. 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 businesses having 1,500 or fewer 
employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees. Therefore, under this size standard, we 
estimate that the majority of businesses can be considered small 
entities.
    149. Open Video Services. 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 businesses having 
1,500 or fewer employees. Census data for 2007 shows that there were 
31,996 establishments that operated that year. Of this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees. Therefore, under this size standard, we 
estimate that the majority of businesses can be considered small 
entities. 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, again, 
at least some of the OVS operators may qualify as small entities.
    150. Wireless cable systems--Broadband Radio Service and 
Educational Broadband Service. Wireless cable systems use the Broadband 
Radio Service (BRS) and Educational Broadband Service (EBS) to transmit 
video programming to subscribers. 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

[[Page 77246]]

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 10 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.
    151. 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, these services have been defined within the broad 
economic census category of Wired Telecommunications Carriers, which 
was developed for small wireline businesses. This category 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. 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.'' The SBA has 
developed a small business size standard for this category, which is: 
all such businesses having 1,500 or fewer employees. Census data for 
2007 shows that there were 31,996 establishments that operated that 
year. Of this total, 30,178 establishments had fewer than 100 
employees, and 1,818 establishments had 100 or more employees. 
Therefore, under this size standard, we estimate that the majority of 
businesses can be considered small entities. 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.
    152. Incumbent Local Exchange Carriers (ILECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. ILECs are included 
in the SBA's economic census category, Wired Telecommunications 
Carriers. 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 this 
total, 30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees. Therefore, under this size 
standard, the majority of such businesses can be considered small.
    153. 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.
    154. Competitive Local Exchange Carriers (CLECs), 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. These entities are included in the SBA's economic census 
category, Wired Telecommunications Carriers. 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 this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees. Therefore, under this size standard, the 
majority of such businesses can be considered small.
    155. 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 this category, which is: all such businesses having 750 or 
fewer employees. Census data for 2007 shows that there were 939 
establishments that operated for part or all of the entire year. Of 
those, 912 operated with fewer than 500 employees, and 27 operated with 
500 or more employees. Therefore, under this size standard, the 
majority of such establishments can be considered small.
    156. Audio and Video Equipment Manufacturing. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in manufacturing electronic audio and 
video equipment for home entertainment, motor vehicles, and public 
address and musical instrument amplification. Examples of products made 
by these establishments are video cassette recorders, televisions, 
stereo equipment, speaker systems, household-type video cameras, 
jukeboxes, and amplifiers for musical instruments and public address 
systems.'' The SBA has developed a small business size standard for 
this category, which is: all such businesses having 750 or fewer 
employees. Census data for 2007 shows that there were 492 
establishments in this category operated for part or all of the entire 
year. Of those, 488 operated with fewer than 500 employees, and four 
operated with 500 or more employees. Therefore, under this size 
standard, the majority of such establishments can be considered small.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    157. In this section, we describe the reporting, recordkeeping, and 
other compliance requirements adopted in the R&O and consider whether 
small entities are affected disproportionately by these requirements.
    158. Reporting Requirements. The R&O does not adopt reporting 
requirements.

[[Page 77247]]

    159. Recordkeeping Requirements. The R&O adopts certain 
recordkeeping requirements, which are applicable to covered small 
entities. Specifically, the following provisions will require covered 
entities to make a filing and, thus, to make and keep records of the 
filing:
     Achievability--The R&O implements rules for determining 
whether compliance with Section 204 and 205 accessibility requirements 
is ``achievable.'' When faced with a complaint or enforcement action 
for a violation of the requirements adopted herein pursuant to either 
Section 204 or Section 205 of the CVAA, a covered entity may raise as a 
defense that a particular apparatus or navigation device does not 
comply with the rules because compliance was not achievable under the 
statutory factors.\153\ Alternatively, a covered entity may seek a 
determination from the Commission that compliance with all of our rules 
is not achievable before manufacturing or importing the apparatus or 
navigation device.
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    \153\ Achievability is determined through a four factor analysis 
that examines: ``(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.'' Through this analysis, an 
otherwise covered entity can demonstrate that accessibility is not 
achievable.
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     Alternate Means of Compliance--The R&O permits entities 
covered by Section 204 to comply with the requirements adopted pursuant 
to that section by alternate means. A covered entity seeking to use an 
alternate means of compliance with Section 204 may either: (i) request 
a Commission determination that the proposed alternate means satisfies 
the statutory requirements through a request pursuant to Sec.  1.41 of 
the Commission's rules; or (ii) claim in defense to a complaint or 
enforcement action that the Commission should determine that the 
party's actions were permissible alternate means of compliance.
     Complaint Procedures--The R&O adopts procedures for 
consumer complaints alleging a violation of the Commission's rules 
requiring accessibility of user interfaces and video programming guides 
and menus. These procedures allow complainants to file their complaints 
either with the Commission or with the covered entity responsible for 
the problem and provide the covered entity 30 days to respond in 
writing to the complaint. In response to a complaint, a covered entity 
must file with the Commission sufficient records and documentation to 
prove that it was (and remains) in compliance with the Commission's 
rules. The procedures also require covered entities to make contact 
information available to consumers for the receipt and handling of 
written complaints.\154\
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    \154\ Covered entities are encouraged to include this 
information with the other accessibility information they must post 
on their official Web site and are expected to prominently display 
their contact information in a way that makes it available and 
accessible to all consumers of their products and services. The R&O 
emphasizes that such notice should be provided in a location that is 
conspicuous to consumers and accessible to those who are blind or 
visually impaired, and requires covered entities to make available 
and accessible the contact information of a person with primary 
responsibility for accessibility compliance issues. Covered entities 
must provide that person's name and title or office, telephone 
number, fax number, postal mailing address, and email address. 
Covered entities must keep this information current and update it 
within 10 business days of any change.
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     Notification Requirements--The R&O requires MVPDs to 
notify consumers that navigation devices with the required 
accessibility features are available to consumers who are blind or 
visually impaired ``upon request.'' Specifically, MVPDs must clearly 
and conspicuously inform consumers about the availability of accessible 
navigation devices when providing information about equipment options 
in response to a consumer inquiry about service, accessibility, or 
other issues \155\ and also must provide notice about the availability 
of accessible navigation devices on their official Web site, such as a 
through a link on their home page. The notices must publicize the 
availability of accessible devices and solutions and convey the means 
for making requests for accessible equipment and the specific person, 
office or entity to whom such requests are to be made.
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    \155\ The R&O does not require a specific means of notification 
for these notices.
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     Verification Requirements--The R&O allows covered entities 
to require verification of eligibility (as an individual who is blind 
or visually impaired) to the extent the covered entity chooses to rely 
on an accessibility solution that involves providing the consumer with 
sophisticated equipment and/or services at a price that is lower than 
that offered to the general public. With respect to proof of 
eligibility, covered entities must allow a consumer to provide a wide 
array of documentation to verify eligibility for the accessibility 
solution provided.\156\ In addition, they must protect personal 
information gathered from consumers through their verification 
procedures.
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    \156\ In order to ensure that fulfilling such verification 
requests and the processes needed to verify the consumer's 
eligibility to receive the device will not be burdensome to 
consumers, the R&O strongly encourages covered entities to consult 
with people who are blind and visually impaired. In addition, 
although not required, the R&O encourages a covered entity to seek a 
determination from the Commission's Consumer and Governmental 
Affairs Bureau as to whether its proposed verification procedures 
would be burdensome to consumers before implementing such 
procedures.
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    160. Other Compliance Requirements. Under Section 204, the entities 
responsible for compliance are digital apparatus manufacturers. Under 
Section 205, the entities responsible for compliance are MVPDs leasing 
or selling navigation devices, equipment manufacturers of navigation 
devices that place devices into the chain of commerce for sale to 
consumers, and other manufacturers of navigation device hardware and 
software. The R&O adopts the following compliance requirements, which 
are applicable to covered small entities:
     Requires apparatus covered by Section 204--i.e., digital 
apparatus designed to receive or play back video programming 
transmitted simultaneously with sound--to make ``appropriate'' built-in 
functions (i.e., those used for the reception, play back, or display of 
video programming) accessible to individuals who are blind or visually 
impaired. At this time, the ``appropriate'' built-in functions under 
Section 204 are limited to the 11 essential functions identified by the 
Video Programming Accessibility Advisory Committee (``VPAAC''), an 
advisory committee comprised of industry and consumer groups 
established by the Chairman of the Commission pursuant to the CVAA.
     Requires navigation devices covered by Section 205 to make 
on-screen text menus and guides for the display or selection of 
multichannel video programming audibly accessible. Nine of the 11 
essential functions identified by the VPAAC are used for the display or 
selection of video programming and must be made audibly accessible on 
navigation devices to the extent they are accessed through on-screen 
text menus and guides. In addition, two functions (power on/off and 
volume adjust/mute) must be made accessible (but not necessarily 
audibly accessible) because they are controls necessary to access 
covered functions.
     Requires apparatus covered by Section 204 to provide 
access to closed

[[Page 77248]]

captioning and video description through a mechanism for each that is 
reasonably comparable to a button, key, or icon, and requires 
navigation devices covered by Section 205 to provide access to closed 
captioning through a mechanism reasonably comparable to a button, key, 
or icon. With regard to Section 205, covered entities must ensure that 
mechanisms reasonably comparable to a button, key, or icon for 
activating closed captioning are provided on all their navigation 
devices (i.e., such mechanisms are not subject to the ``upon request'' 
language in Section 205).
     Requires entities covered by Section 205 to provide 
accessible navigation devices to requesting blind or visually impaired 
individuals ``within a reasonable time,'' defined as a time period 
comparable to the time it takes such entity to provide navigation 
devices generally to other consumers.
     Requires entities covered by Section 205 to permit 
consumers who are blind or visually impaired to request compliant 
devices through any means that they generally make available to other 
consumers that request navigation devices.
     Requires a manufacturer that provides navigation devices 
at retail to requesting blind or visually impaired consumers to make a 
good faith effort to have retailers make available compliant navigation 
devices to the same extent they make available navigation devices to 
other consumers generally.
     Requires entities covered by Section 205 to ensure that 
any means they employ to accept requests for accessible devices are not 
more burdensome to blind or visually impaired individuals than the 
means they employ to provide navigation devices generally to other 
consumers.
     Requires entities covered by Section 205 that rely on 
separate equipment or software (``separate solution'') to achieve 
accessibility under Section 205(b)(4) to provide such solution to a 
requesting individual who is blind or visually impaired. In addition, 
the R&O:
    [cir] Requires that if a non-compliant navigation device has any 
functions that are required to be made accessible pursuant to the rules 
we adopt in the R&O, any separate solution relied upon to achieve 
accessibility must make all of those functions accessible or enable the 
accessibility of those functions;
    [cir] Requires that a separate solution be provided in a manner 
that is not more burdensome to requesting blind or visually impaired 
individuals than the manner in which other consumers generally obtain 
navigation devices;
    [cir] Requires that a covered entity relying on a separate solution 
must make available such solution ``within a reasonable time,'' defined 
as a period of time comparable to the time in which it generally 
provides navigation devices to consumers who are not blind or visually 
impaired;
    [cir] Concludes that a covered entity that provides separate 
equipment or software may not impose on a requesting consumer who is 
blind or visually impaired any charges beyond those it has imposed for 
the non-compliant navigation device. In cases where an entity provides 
accessibility functionality in only select devices, this constitutes an 
``other solution'' under Section 205(b)(4)(B) for which an entity can 
impose no additional charge. For example, if a covered entity's only 
solution is to provide a sophisticated navigation device (one with 
enhanced features and functions) to a consumer that requests a less 
sophisticated device, it cannot charge the consumer more than the price 
of the less sophisticated device; and
    [cir] Concludes that if a covered entity's chosen manner of 
compliance involves a software solution that must be operated on a 
third-party device (e.g., a laptop, tablet, smart phone) or if 
additional services are required to make use of the device, this manner 
of compliance constitutes an ``other solution'' under Section 
205(b)(4)(B); thus, the covered entity must provide that solution--
i.e., the software, third-party device, and any service needed to use 
the accessibility features--to the requesting individual at no 
additional charge.
     Sets a three-year compliance deadline by which covered 
entities must generally comply with the requirements of Sections 204 
and 205, and sets a five-year compliance deadline by which certain mid-
sized and smaller MVPD operators and small MVPD systems must comply 
with the requirements of Section 205.
    161. Potential for disproportionate impact on small entities. As 
required by Sections 204 and 205 of the CVAA, the rules require covered 
entities, such as equipment manufacturers and MVPD service providers, 
to ensure that user interfaces and video programming guides on digital 
apparatus and navigation devices used to view video programming are 
accessible to consumers with disabilities (unless doing such is not 
achievable). Neither the statute nor the rules mandate a specific means 
of compliance. Indeed, Sections 204 and 205 of the CVAA restrict the 
Commission from specifying the technical standards, protocols, 
procedures, and other technical requirements for meeting the 
accessibility requirements of those sections. In addition, entities 
covered by Section 205 of the CVAA have ``maximum flexibility to select 
the manner of compliance'' with Section 303(bb)(1) of the Act, as well 
as ``maximum flexibility in the selection of the means for compliance 
with Section 303(bb)(2)'' of the Act. Entities covered by Section 204 
may build in accessibility on digital apparatus or they can use 
alternate means to comply with the accessibility requirements of that 
section. Entities covered by Section 205 may build in solutions to make 
navigation devices accessible or they may use separate solutions (such 
as software, peripheral devices, specialized consumer premises 
equipment, a network-based service, or other solution) to ensure 
accessibility. No commenter provided information concerning the costs 
and administrative burdens associated with the R&O's compliance 
requirements. Although the record does not contain specific information 
about the costs of compliance, covered entities have flexibility to 
choose the most cost-effective solution possible, and we anticipate 
that some solutions may be considerably less costly than others. For 
example, MVPDs may be able to purchase an accessible navigation device 
(e.g., TiVo) and provide it to a requesting customer who is blind or 
visually impaired to satisfy their accessibility obligations, which may 
be significantly less costly than having to develop a built-in solution 
and make corresponding changes to their headend facility. As discussed 
below, MVPD commenters said they do not know how they will comply, only 
that they expect that, whatever means is used, the costs will likely be 
greater for smaller entities than for larger ones.
    162. In the record of this proceeding, MVPDs, in particular, have 
expressed concern regarding the potential for the proposed rule to 
place a disproportionate economic impact on smaller MVPDs. Industry 
commenters, such as NCTA and NTCA, state that the proposed rules may 
have greater impacts on smaller companies than larger ones, and that 
``[s]maller cable operators do not have the financial wherewithal to 
develop these solutions on their own and typically rely on the research 
and development efforts of the larger operators prior to deploying new 
equipment and services to their customers.'' ACA states that 
``compliance with the accessible user guide requirements within a 
three-year

[[Page 77249]]

timeframe will be challenging for all but the very largest MVPDs 
because there is substantial uncertainty about how accessibility 
requirements will be implemented, what technologies and equipment will 
be available for operators to meet them, and when they will be made 
commercially available.'' Regardless of the solution ultimately 
employed, MVPDs explain that, because of their relatively diminished 
purchasing power, small MVPDs will likely face higher prices than large 
MVPDs for technology solutions developed to meet the statute's 
accessibility requirements. Therefore, while the economic impacts of 
the rules are uncertain at this time, it seems likely that the rules 
may disproportionately impact small MVPDs. As a result, the Commission 
takes steps to minimize this impact on small entities (see discussion 
below), consistent with the statutory mandate.
    163. We note that it would be premature to undertake the formal 
cost-of-compliance analysis required by Section D of the RFA because 
the flexibility granted to covered entities in accordance with Sections 
204 and 205 of the CVAA permits a wide array of means of compliance 
with varied costs, the Commission does not yet know how covered 
entities will choose to comply with the accessibility requirements, and 
more concrete financial data based on experience is not available 
because the rules have not yet gone into effect.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered
    164. 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.\157\ The NPRM invited comment on issues that had the 
potential to have significant impact on some small entities.
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    \157\ 5 U.S.C. 603(c)(1)-(c)(4).
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    165. The rules adopted in the R&O may have a significant economic 
impact in some cases, and that impact may affect a substantial number 
of small entities. Although the Commission has considered alternatives 
where possible, as directed by the RFA, to minimize economic impact on 
small entities, we emphasize that our action is governed by the 
congressional mandate contained in Sections 204 and 205 of the CVAA.
    166. In formulating the final rules, however, the Commission has 
considered alternatives to minimize the economic impact on small 
entities. As discussed below, covered entities (including small 
entities) may avoid potentially economically burdensome compliance with 
certain requirements if accessibility is not ``achievable'' and are 
afforded flexibility with respect to the means of compliance. In 
addition, based on the record in the proceeding, certain mid-sized and 
smaller MVPD operators (i.e., those with 400,000 or fewer subscribers) 
and small MVPD systems (i.e., those with 20,000 or fewer subscribers 
that are not affiliated with an operator serving more than 10 percent 
of all MVPD subscribers) are afforded more time to comply with the 
requirements of Section 205.
    167. With regard to the accessibility requirements adopted pursuant 
to Sections 303(aa)(1) and 303(bb)(1) of the Act, the R&O adopts 
procedures enabling the Commission to grant exemptions to the rules 
where a petitioner has shown that compliance is not achievable (i.e., 
cannot be accomplished with reasonable effort or expense). This process 
will allow the Commission to address the impact of the rules on 
individual entities, including smaller entities, on a case-by-case 
basis and to modify the application of the rules to accommodate 
individual circumstances, which can reduce the costs of compliance for 
these entities. We note that two of the four statutory factors that the 
Commission will consider in determining achievability are particularly 
relevant to small entities: the nature and cost of the steps needed to 
meet the requirements, and the technical and economic impact on the 
entity's operations.
    168. As an additional means of reducing the costs of compliance, 
the R&O provides that entities covered by Section 204 of the CVAA may 
use alternate means of compliance for the rules adopted pursuant to 
this section. Under this approach, the Commission will permit an entity 
that seeks to use an alternate means of compliance to file a request 
pursuant to Sec.  1.41 of the Commission's rules for a determination 
that the proposed alternate means of compliance satisfies the 
requirements, or to claim in defense to a complaint or enforcement 
action that the Commission should determine that the party's actions 
were permissible alternate means of compliance. The Commission will 
evaluate these filings on a case-by-case basis. In addition, entities 
covered by Section 205 of the CVAA have ``maximum flexibility to select 
the manner of compliance'' with Section 303(bb)(1) of the Act, as well 
as ``maximum flexibility in the selection of the means for compliance 
with Section 303(bb)(2)'' of the Act. Individual entities, including 
small entities, can benefit from the flexibility provided by these 
provisions.
    169. Finally, in response to industry's request, the Commission 
adopted a two-year delay in compliance with the requirements of Section 
205 for certain mid-sized and smaller MVPD operators and small MVPD 
systems. Specifically, the later deadline will apply to: (1) MVPD 
operators with 400,000 or fewer subscribers; and (2) MVPD systems with 
20,000 or fewer subscribers that are not affiliated with an operator 
serving more than 10 percent of all MVPD subscribers. The delayed 
compliance deadline (which will be five (5) years from the date the R&O 
is published in the Federal Register) for such smaller entities will 
help minimize the economic impact of Section 205's requirements and 
addresses the potential for disproportionate impact discussed above.
    170. We note that the Commission also considered, but declined at 
this time to grant, a permanent exemption for small cable systems with 
20,000 or fewer subscribers, as permitted by Section 205(b)(2). 
However, all small cable systems other than those affiliated with an 
operator serving more than 10.1 million subscribers will benefit from 
the delayed compliance deadline described above. In addition, we note 
that, if the delayed compliance deadline proves insufficient to allow 
small systems to implement an affordable solution, the Commission may 
consider requests for a further extension on an individual or industry-
wide basis. Whereas the uncertainty surrounding how covered small 
entities will comply makes it reasonable to afford a later compliance 
deadline, it also means it would be premature to assume that small 
cable systems will never be able to comply with the requirements of 
Section 205.
    171. Overall, we believe we have appropriately considered both the 
interests of individuals with disabilities 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

[[Page 77250]]

services and equipment and better access video programming.''
6. Report to Congress
    172. The Commission will send a copy of the R&O, including this 
FRFA, in a report to be sent to Congress pursuant to the Congressional 
Review Act.\158\ In addition, the Commission will send a copy of the 
R&O, including this FRFA, to the Chief Counsel for Advocacy of the SBA. 
The R&O and FRFA (or summaries thereof) will also be published in the 
Federal Register.\159\
---------------------------------------------------------------------------

    \158\ See 5 U.S.C. 801(a)(1)(A).
    \159\ See id. 604(b).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    173. The R&O contains new and modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. 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 (SBPRA), 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.

C. Congressional Review Act

    174. The Commission will send a copy of the R&O in MB Docket No. 
12-108 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

    175. 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 
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 Sec.  1.1206(b). In proceedings governed by 
Sec.  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

    176. For additional information on this proceeding, contact Adam 
Copeland, Adam.Copeland@fcc.gov, or Maria Mullarkey, 
Maria.Mullarkey@fcc.gov, of the Media Bureau, Policy Division, (202) 
418-2120.

IX. Ordering Clauses

    177. 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(r), 303(u), 303(aa), 303(bb), and 716(g) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(r), 303(u), 303(aa), 303(bb), and 617(g), the Report and Order and 
Further Notice of Proposed Rulemaking is adopted, effective January 21, 
2014, except for 47 CFR 79.107(c), 79.108(a)(5), 79.108(c)-(e), and 
79.110, which shall become effective upon announcement in the Federal 
Register of OMB approval and an effective date of the rules.
    178. 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(r), 
303(aa), 303(bb), and 716(g) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 154(j), 303(r), 303(aa), 303(bb), and 
617(g), the Commission's rules are hereby amended as set forth in 
Appendix B.
    179. 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.  
1.3 of the Commission's rules, 47 CFR 1.3, 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 204 and 
205 of the CVAA as discussed herein.
    180. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Report and Order and Further Notice of Proposed Rulemaking 
in MB Docket No. 12-108, including the Final Regulatory Flexibility 
Analysis and the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    181. It is further ordered that the Commission shall send a copy of 
the Report and Order and Further Notice of Proposed Rulemaking in MB 
Docket No. 12-108 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.

Federal Communications Commission.
Sheryl D. Todd,
Deputy Secretary.

    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. Revise the heading to part 79 to read as set forth above.


[[Page 77251]]



0
3. Designate Sec. Sec.  79.100 through 79.106 as Subpart A under the 
following heading:

Subpart A--Video Programming Owners, Providers, and Distributors

* * * * *


Sec.  79.101  [Amended]


0
4. In Sec.  79.101, remove and reserve paragraph (m).


0
5. Revise Sec.  79.103 section heading to read as follows:


Sec.  79.103  Closed caption decoder requirements for apparatus.

* * * * *


0
6. Add Subpart B to part 79 consisting of Sec. Sec.  79.107 through 
79.110 to read as follows:
Subpart B--Apparatus
Sec.
79.107 User interfaces provided by digital apparatus.
79.108 Video programming guides and menus provided by navigation 
devices.
79.109 Activating accessibility features.
79.110 Complaint procedures for user interfaces, menus and guides, 
and activating accessibility features on digital apparatus and 
navigation devices.

Subpart B--Apparatus


Sec.  79.107  User interfaces provided by digital apparatus.

    (a)(1) A manufacturer of digital apparatus manufactured in or 
imported for use in the United States and designed to receive or play 
back video programming transmitted in digital format simultaneously 
with sound, including apparatus designed to receive or display video 
programming transmitted in digital format using Internet protocol, must 
ensure that digital apparatus be designed, developed, and fabricated so 
that control of appropriate built-in functions included in the digital 
apparatus are accessible to and usable by individuals who are blind or 
visually impaired. Digital apparatus do not include navigation devices 
as defined in Sec.  76.1200 of this chapter. Manufacturers must comply 
with the provisions of this section only if achievable as defined in 
Sec.  79.107(c)(2).

    Note 1 to paragraph (a)(1): The term digital apparatus as used 
in this section includes the physical device and the video player(s) 
capable of displaying video programming transmitted in digital 
format 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 in digital format 
transmitted simultaneously with sound that manufacturers direct 
consumers to install after sale. The term software includes third-
party applications that are pre-installed on a device by the 
manufacturer or that the manufacturer directs consumers to install 
after sale.


    Note 2 to paragraph (a)(1): This paragraph places no 
restrictions on the importing, shipping, or sale of digital 
apparatus manufactured before the applicable compliance deadline for 
this section.

    (2) If on-screen text menus or other visual indicators built in to 
the digital apparatus are used to access the appropriate built-in 
apparatus functions, manufacturers of the digital apparatus must ensure 
that those functions are accompanied by audio output that is either 
integrated or peripheral to the digital apparatus, so that such menus 
or indicators are accessible to and usable by individuals who are blind 
or visually impaired in real time.
    (3) For appropriate built-in digital apparatus functions that are 
not accessed through on screen text menus or other visual indicators, 
i.e., those that are not required to be accompanied by audio output in 
accordance with paragraph (a)(2) of this section, manufacturers of 
digital apparatus must make such functions accessible to individuals 
who are blind or visually impaired by ensuring that the input, control, 
and mechanical functions are locatable, identifiable, and operable in 
accordance with each of the following, assessed independently:
    (i) Operable without vision. The digital apparatus must provide at 
least one mode that does not require user vision.
    (ii) Operable with low vision and limited or no hearing. The 
digital apparatus must provide at least one mode that permits operation 
by users with visual acuity between 20/70 and 20/200, without relying 
on audio output.
    (iii) Operable with little or no color perception. The digital 
apparatus must provide at least one mode that does not require user 
color perception.
    (4) Appropriate built-in apparatus functions are those functions 
that are used for receiving, playing back, or displaying video 
programming, and include the following functions:
    (i) Power On/Off. Function that allows the user to turn the device 
on or off.
    (ii) Volume Adjust and Mute. Function that allows the user to 
adjust the volume and to mute or un-mute the volume.
    (iii) Channel/Program Selection. Function that allows the user to 
select channels and programs (e.g., via physical numeric or channel up/
channel down buttons or via on screen guides and menus).
    (iv) Display Channel/Program Information. Function that allows the 
user to display channel or program information.
    (v) Configuration--Setup. Function that allows the user to access 
and change configuration or setup options (e.g., configuration of video 
display and audio settings, selection of preferred language for 
onscreen guides or menus, etc.).
    (vi) Configuration--CC Control. Function that allows the user to 
enable or disable the display of closed captioning.
    (vii) Configuration--CC Options. Function that allows the user to 
modify the display of closed caption data (e.g., configuration of the 
font size, font color, background color, opacity, etc.).
    (viii) Configuration--Video Description Control. Function that 
allows the user to enable or disable the output of video description 
(i.e., allows the user to change from the main audio to the secondary 
audio stream that contains video description, and from the secondary 
audio stream back to the main audio).
    (ix) Display Configuration Info. Function that allows the user to 
display how user preferences are currently configured.
    (x) Playback Functions. Function that allows the user to control 
playback functions (e.g., pause, play, rewind, fast forward, stop, and 
record).
    (xi) Input Selection. Function that allows the user to select their 
preferred input source.
    (b) Compliance deadline. Compliance with the requirements of this 
section is required no later than December 20, 2016; except that 
compliance with the requirements of this section is required no later 
than December 20, 2021 for the following digital apparatus:
    (1) Display-only monitors and video projectors;
    (2) Devices that are primarily designed to capture and display 
still and/or moving images consisting of consumer generated media, or 
of other images that are not video programming as defined under Sec.  
79.4(a)(1) of this part, and that have limited capability to display 
video programming transmitted simultaneously with sound; and
    (3) Devices that are primarily designed to display still images and 
that have limited capability to display video programming transmitted 
simultaneously with sound.
    (c)(1) Achievable. Manufacturers of digital apparatus:

[[Page 77252]]

    (i) May file a petition seeking a determination from the 
Commission, pursuant to Sec.  1.41 of this chapter, that compliance 
with the requirements of this section is not achievable, which the 
Commission may grant upon a finding that such compliance is not 
achievable, or
    (ii) May raise as a defense to a complaint or Commission 
enforcement action that a particular digital apparatus does not comply 
with the requirements of this section because compliance was not 
achievable, and the Commission may dismiss a complaint or Commission 
enforcement action upon a finding that such compliance is not 
achievable.
    (2) The petitioner or respondent must support a petition filed 
pursuant to paragraph (c)(1) of this section or a response to a 
complaint or Commission enforcement action with sufficient evidence to 
demonstrate that compliance with the requirements of this section is 
not ``achievable.'' ``Achievable'' means with reasonable effort or 
expense. The Commission will consider the following factors when 
determining whether compliance with the requirements of this section is 
not ``achievable'' under the factors set out in 47 U.S.C. 617(g):
    (i) 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;
    (ii) 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;
    (iii) The type of operations of the manufacturer or provider; and
    (iv) 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.


Sec.  79.108  Video programming guides and menus provided by navigation 
devices.

    (a)(1) Manufacturers that place navigation devices, as defined by 
Sec.  76.1200 of this chapter, into the chain of commerce for purchase 
by consumers, and multichannel video programming distributors 
(``MVPDs'') as defined by Sec.  76.1200 of this chapter that lease or 
sell such devices must ensure that the on-screen text menus and guides 
provided by navigation devices for the display or selection of 
multichannel video programming are audibly accessible in real time upon 
request by individuals who are blind or visually impaired. 
Manufacturers and MVPDs must comply with the provisions of this section 
only if doing so is achievable as defined in Sec.  79.108(c)(2).

    Note 1 to paragraph (a)(1): This paragraph places no 
restrictions on the importing, shipping, or sale of navigation 
devices manufactured before the applicable compliance deadline for 
this section.


    Note 2 to paragraph (a)(1): In determining whether a particular 
device is considered a ``navigation device'' subject to the 
requirements of this section, the Commission will look to the 
device's built-in functionality at the time of manufacture.

    (2) The following functions are used for the display or selection 
of multichannel video programming and must be made audibly accessible 
by manufacturers of navigation devices and MVPDs covered by this 
section when included in a navigation device and accessed through on-
screen text menus or guides:
    (i) Channel/Program Selection. Function that allows the user to 
select channels and programs (e.g., via physical numeric or channel up/
channel down buttons or via on screen guides and menus).
    (ii) Display Channel/Program Information. Function that allows the 
user to display channel or program information.
    (iii) Configuration--Setup. Function that allows the user to access 
and change configuration or setup options (e.g., configuration of video 
display and audio settings, selection of preferred language for 
onscreen guides or menus, etc.).
    (iv) Configuration--CC Control. Function that allows the user to 
enable or disable the display of closed captioning.
    (v) Configuration--CC Options. Function that allows the user to 
modify the display of closed caption data (e.g., configuration of the 
font size, font color, background color, opacity, etc.).
    (vi) Configuration--Video Description Control. Function that allows 
the user to enable or disable the output of video description (i.e., 
allows the user to change from the main audio to the secondary audio 
stream that contains video description, and from the secondary audio 
stream back to the main audio).
    (vii) Display Configuration Info. Function that allows the user to 
display how user preferences are currently configured.
    (viii) Playback Functions. Function that allows the user to control 
playback functions (e.g., pause, play, rewind, fast forward, stop, and 
record).
    (ix) Input Selection. Function that allows the user to select their 
preferred input source.
    (3) Manufacturers of navigation devices and MVPDs covered by this 
section must ensure that the following functions are made accessible, 
as defined by Sec.  79.107(a)(3), to individuals who are blind or 
visually impaired:
    (i) Power On/Off. Function that allows the user to turn the device 
on or off.
    (ii) Volume Adjust and Mute. Function that allows the user to 
adjust the volume and to mute or un-mute the volume.
    (4) With respect to navigation device features and functions:
    (i) Delivered in software, the requirements set forth in this 
section shall apply to the manufacturer of such software; and
    (ii) Delivered in hardware, the requirements set forth in this 
section shall apply to the manufacturer of such hardware.
    (5) Manufacturers of navigation devices and MVPDs covered by this 
section must permit a requesting blind or visually impaired individual 
to request an accessible navigation device through any means that such 
covered entities generally use to make available navigation devices to 
other consumers. Any such means must not be more burdensome to a 
requesting blind or visually impaired individual than the means 
required for other consumers to obtain navigation devices. A 
manufacturer that provides navigation devices at retail to requesting 
blind or visually impaired consumers must make a good faith effort to 
have retailers make available compliant navigation devices to the same 
extent they make available navigation devices to other consumers 
generally.
    (6) Manufacturers of navigation devices and MVPDs covered by this 
section must provide an accessible navigation device to a requesting 
blind or visually impaired individual within a reasonable time, defined 
as a time period comparable to the time that such covered entities 
generally provide navigation devices to other consumers.
    (7) Compliance through the use of separate equipment or software. 
Manufacturers of navigation devices and MVPDs covered by this section 
may comply with the requirements of paragraphs (a)(1) through (a)(3) of 
this section through the use of software, a peripheral device, 
specialized consumer premises equipment, a network-based service or 
other solution, and shall have maximum flexibility to select the manner 
of compliance. An entity that chooses to comply with paragraphs (a)(1) 
through (a)(3) of this section

[[Page 77253]]

through the use of separate equipment or software must:
    (i) Ensure that any software, peripheral device, equipment, service 
or solution relied upon achieves the accessibility required by this 
section. If a navigation device has any functions that are required to 
be made accessible pursuant to this section, any separate solution must 
make all of those functions accessible or enable the accessibility of 
those functions.
    (ii) Provide any software, peripheral device, equipment, service or 
solution in a manner that is not more burdensome to a requesting blind 
or visually impaired individual than the manner in which such entity 
generally provides navigation devices to other consumers.
    (iii) Provide any software, peripheral device, equipment, service 
or solution at no additional charge.
    (iv) Provide any software, peripheral device, equipment, service or 
solution within a reasonable time, defined as a time period comparable 
to the time that such entity generally provides navigation devices to 
other consumers.
    (8) Manufacturers of navigation devices and MVPDs covered by this 
section shall only be responsible for compliance with the requirements 
of this section with respect to navigation devices that such covered 
entities provide to a requesting blind or visually impaired individual.
    (b) Compliance deadline. Compliance with the requirements of this 
section is required no later than December 20, 2016; except that 
compliance with the requirements of this section is required no later 
than December 20, 2018 for the following covered entities:
    (1) MVPD operators with 400,000 or fewer subscribers as of year-end 
2012; and
    (2) MVPD systems with 20,000 or fewer subscribers that are not 
affiliated with an operator serving more than 10 percent of all MVPD 
subscribers as of year-end 2012.
    (c)(1) Achievable. MVPDs and manufacturers of navigation device 
hardware or software:
    (i) May file a petition seeking a determination from the 
Commission, pursuant to Sec.  1.41 of this chapter, that compliance 
with the requirements of this section is not achievable, which the 
Commission may grant upon a finding that such compliance is not 
achievable, or
    (ii) May raise as a defense to a complaint or Commission 
enforcement action that a particular navigation device does not comply 
with the requirements of this section because compliance was not 
achievable, and the Commission may dismiss a complaint or Commission 
enforcement action upon a finding that such compliance is not 
achievable.
    (2) The petitioner or respondent must support a petition filed 
pursuant to paragraph (c)(1) of this section or a response to a 
complaint or Commission enforcement action with sufficient evidence to 
demonstrate that compliance with the requirements of this section is 
not ``achievable.'' ``Achievable'' means with reasonable effort or 
expense. The Commission will consider the following factors when 
determining whether compliance with the requirements of this section is 
not ``achievable'' under the factors set out in 47 U.S.C. 617(g):
    (i) 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;
    (ii) 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;
    (iii) The type of operations of the manufacturer or provider; and
    (iv) 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.
    (d) MVPD notices. Covered MVPDs must notify consumers that 
navigation devices with the required accessibility features are 
available to consumers who are blind or visually impaired upon request 
as follows:
    (1) When providing information about equipment options in response 
to a consumer inquiry about service, accessibility, or other issues, 
MVPDs must clearly and conspicuously inform consumers about the 
availability of accessible navigation devices.
    (2) MVPDs must provide notice on their official Web sites about the 
availability of accessible navigation devices. MVPDs must prominently 
display information about accessible navigation devices and separate 
solutions on their Web sites in a way that makes such information 
available to all current and potential subscribers. The notice must 
publicize the availability of accessible devices and separate solutions 
and explain the means for making requests for accessible equipment and 
the specific person, office or entity to whom such requests are to be 
made. All information required by this section must be provided in a 
Web site format that is accessible to people with disabilities.
    (e) Verification of eligibility. Entities covered by this section 
may only require consumer verification of eligibility as an individual 
who is blind or visually impaired to the extent the entity chooses to 
rely on an accessibility solution that involves providing the consumer 
with sophisticated equipment and/or services at a price that is lower 
than that offered to the general public. In this situation, entities 
covered by this section must allow a consumer to provide a wide array 
of documentation to verify eligibility for the accessibility solution 
provided. Entities covered by this section that choose to require 
verification of eligibility must comply with the requirements of 47 
U.S.C. 338(i)(4)(A) and 47 U.S.C. 631(c)(1) to protect personal 
information gathered from consumers through their verification 
procedures.


Sec.  79.109  Activating accessibility features.

    (a) Requirements applicable to digital apparatus. (1) Manufacturers 
of digital apparatus designed to receive or play back video programming 
transmitted in digital format simultaneously with sound, including 
apparatus designed to receive or display video programming transmitted 
in digital format using Internet protocol, with built-in closed-
captioning capability must ensure that closed captioning can be 
activated through a mechanism that is reasonably comparable to a 
button, key, or icon. Digital apparatus do not include navigation 
devices as defined in Sec.  76.1200 of this chapter.
    (2) Manufacturers of digital apparatus designed to receive or play 
back video programming transmitted in digital format simultaneously 
with sound, including apparatus designed to receive or display video 
programming transmitted in digital format using Internet protocol, with 
built-in video description capability must ensure that video 
description can be activated through a mechanism that is reasonably 
comparable to a button, key, or icon. Digital apparatus do not include 
navigation devices as defined in Sec.  76.1200 of this chapter.

    Note 1 to paragraph (a): The term digital apparatus includes the 
physical device and the video player(s) capable of displaying video 
programming transmitted in digital format 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 in digital format transmitted simultaneously with sound 
that manufacturers direct consumers to install after sale. The term 
software

[[Page 77254]]

includes third-party applications that are pre-installed on a device 
by the manufacturer or that the manufacturer directs consumers to 
install after sale.


    Note 2 to paragraph (a): This paragraph places no restrictions 
on the importing, shipping, or sale of digital apparatus 
manufactured before the applicable compliance deadline for this 
section.

    (b) Requirements applicable to navigation devices. Manufacturers 
that place navigation devices, as defined in Sec.  76.1200 of this 
chapter, into the chain of commerce for purchase by consumers, and 
MVPDs that lease or sell such navigation devices with built in closed-
captioning capability must ensure that closed captioning can be 
activated through a mechanism that is reasonably comparable to a 
button, key, or icon.

    Note 1 to paragraph (b):  In determining whether a particular 
device is considered a ``navigation device'' subject to the 
requirements of this section, the Commission will look to the 
device's built-in functionality at the time of manufacture.


    Note 2 to paragraph (b):  This paragraph places no restrictions 
on the importing, shipping, or sale of navigation devices 
manufactured before the applicable compliance deadline for this 
section.

    (c) Compliance deadline. Compliance with the requirements of this 
section is required no later than December 20, 2016; except that 
compliance with the requirements of this section is required no later 
than December 20, 2018 for the following covered entities: (1) MVPD 
operators with 400,000 or fewer subscribers as of year-end 2012; and 
(2) MVPD systems with 20,000 or fewer subscribers that are not 
affiliated with an operator serving more than 10 percent of all MVPD 
subscribers as of year-end 2012.


Sec.  79.110  Complaint procedures for user interfaces, menus and 
guides, and activating accessibility features on digital apparatus and 
navigation devices.

    (a) Complaints concerning an alleged violation of the requirements 
of Sec. Sec.  79.107, 79.108, or 79.109 must be filed in accordance 
with this section. For purposes of this section, a covered entity is 
the entity or entities responsible for compliance with Sec. Sec.  
79.107, 79.108, or 79.109.
    (1) Complaints must be filed with the Commission or with the 
covered entity within 60 days after the date the complainant 
experiences a problem relating to compliance with the requirements of 
Sec. Sec.  79.107, 79.108, or 79.109. A complaint filed with the 
Commission 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, telephone (voice/
TRS/TTY), email, or some other method that would best accommodate the 
complainant's disability.
    (2) A complaint should include the following information:
    (i) The complainant's name, address, and other contact information, 
such as telephone number and email address;
    (ii) The name and contact information of the covered entity;
    (iii) Information sufficient to identify the software or digital 
apparatus/navigation device used;
    (iv) The date or dates on which the complainant purchased, 
acquired, or used, or tried to purchase, acquire, or use the digital 
apparatus/navigation device;
    (v) A statement of facts sufficient to show that the covered entity 
has violated, or is violating, the Commission's rules;
    (vi) The specific relief or satisfaction sought by the complainant;
    (vii) The complainant's preferred format or method of response to 
the complaint; and
    (viii) If a complaint pursuant to Sec.  79.108, the date that the 
complainant requested an accessible navigation device and the person or 
entity to whom that request was directed.
    (3) If a complaint is filed first with the Commission, the 
Commission will forward a complaint satisfying the above requirements 
to the named covered entity for its response, as well as to any other 
entity that Commission staff determines may be involved. The covered 
entity or entities must respond in writing to the Commission and the 
complainant within 30 days after receipt of the complaint from the 
Commission.
    (4) If a complaint is filed first with the covered entity, the 
covered entity must respond in writing to the complainant within 30 
days after receipt of a complaint. If the covered entity fails to 
respond to the complainant within 30 days, or the response does not 
satisfy the consumer, the complainant may file the complaint with the 
Commission within 30 days after the time allotted for the covered 
entity to respond. If the consumer subsequently files the complaint 
with the Commission (after filing with the covered entity) and the 
complaint satisfies the above requirements in paragraph 2 of this 
section, the Commission will forward the complaint to the named covered 
entity for its response, as well as to any other entity that Commission 
staff determines may be involved. The covered entity must then respond 
in writing to the Commission and the complainant within 30 days after 
receipt of the complaint from the Commission.
    (5) In response to a complaint, the covered entity must file with 
the Commission sufficient records and documentation to prove that it 
was (and remains) in compliance with the Commission's rules. Conclusory 
or insufficiently supported assertions of compliance will not carry the 
covered entity's burden of proof. If the covered entity admits that it 
was not, or is not, in compliance with the Commission's rules, it must 
file with the Commission sufficient records and documentation to 
explain the reasons for its noncompliance, show what remedial steps it 
has taken or will take, and show why such steps have been or will be 
sufficient to remediate the problem.
    (6) The Commission will review all relevant information provided by 
the complainant and the covered entity, as well as any additional 
information the Commission deems relevant from its files or public 
sources. 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 adjudicate 
potential violations of Commission rules. When the Commission requests 
additional information, parties to which such requests are addressed 
must provide the requested information in the manner and within the 
time period the Commission specifies.
    (7) If the Commission finds that a covered entity has violated the 
requirements of Sec. Sec.  79.107, 79.108, or 79.109, it may employ the 
full range of sanctions and remedies available under the Communications 
Act of 1934, as amended, against any or all of the violators.
    (b) Contact information. A covered entity must make contact 
information available for the receipt and handling of complaints. The 
contact information required must include the name of a person with 
primary responsibility for accessibility compliance issues. This 
contact information must also include that person's title or office, 
telephone number, fax number, postal mailing address, and email 
address. A covered entity must keep this information current and update 
it within 10 business days of any change.

[FR Doc. 2013-28098 Filed 12-19-13; 8:45 am]
BILLING CODE 6712-01-P