New CVAA Rules ‘Most Difficult Statutory Provisions,’ Pai Says

The order also defers compliance by two years for small cable operators and by eight years for devices such as digital cameras and baby monitors. The order includes an FNPRM deferring decisions on whether multichannel video programming distributors (MVPDs) can be required to list public, educational and government programs in their guides and some notification requirements for manufacturers. “It is nearly impossible to find the channel or show you want to watch without navigating some sort of visual guide that can only be accessed on your television screen,” said acting Chairwoman Mignon Clyburn in a statement released with the order. That puts the blind and visually impaired at risk, she said.

Clyburn and Rosenworcel voted in favor of the order, while Pai concurred in part and approved in part. Pai’s concurrence was based on the order being too broad -- he said devices such as baby monitors and digital still cameras shouldn’t be under its purview. The language of the CVAA “indicates that we should not focus solely on a device’s capabilities but rather employ an objective intent test under which we ask whether a reasonable person would conclude that a device was intended to receive or play back video programming,” he said. Pai praised the order for granting such devices an eight-year extended compliance deadline.

Pai said a possible congressional drafting error was another reason for his concurrence. The rules require manufacturers to provide a dedicated “button, key or icon” for closed captioning, but Pai said the language of the statute only requires that when a navigation device is requested by a visually impaired person. “Such an outcome would be unusual to say the least,” said Pai. “After all, closed captioning is of the greatest use to individuals with a hearing impairment, not a visual impairment,” Pai said. Pai said the language doesn’t leave the commission discretion to “impose a policy preference different than the one dictated by the plain meaning of the CVAA.”

The dividing line for what devices fall under which section is “conditional access,” said the order. Along with set-top boxes, digital cable-ready TVs, any devices with pre-installed MVPD applications and cable modems all count as “devices manufactured with a CableCARD slot or other conditional access technology” and fall under Section 205. Such devices are required to have audibly accessible program guides and menus, as well as make accessible any video-related essential functions they possess, said the order. The commission used conditional access to keep Section 205 from having too broad an application, the order said. NCTA and others had expressed concern that the rule would have too broad a range, and consumer groups had worried that if the statute was too broadly applicable, its effect might be diluted, said American Foundation for the Blind Senior Policy Director Mark Richert. The entities responsible for complying with the rule 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,” said the order.

Section 204 applies to any digital device that plays video along with sound that isn’t a navigation device, the order clarifies. That includes TVs and computers without conditional access capability, mobile devices without pre-installed MVPD applications and removable media players, the order said. It also applies to the “video players and user interfaces of video applications, such as Netflix, Hulu, and Amazon, when such applications are pre-installed,” said the order. Any of the 11 essential functions determined by the Video Programming Accessibility Advisory Committee incorporated in these devices must be made accessible, the order said. Digital device manufacturers are responsible for compliance, said the order.

Consumer groups said rules governing how customers who need accessible equipment would request them were of special concern to their members. Under the order, MVPDs will have to provide for customers who request accessible versions of their equipment in the same manner and within the same general time frame as they provide equipment to their other customers. Manufacturers that offer navigation devices through retail “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, said the order. Proposals that MVPDs would require consumers to provide proof of their need for accessible equipment had also received objections from consumer groups, but the order allows companies to require “verification of eligibility” if they “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,” said the order. Companies are not allowed to charge customers extra for accessible equipment, the order said.