Highlights of a New Landmark Communications Law
If you would have told me a decade ago that one day there would be a law requiring virtually all text communication, mobile phone Web browsers, TVs, and broadcast emergency alerts to be fully accessible to people who are blind or visually impaired, I would likely have told you to keep dreaming. But if you also told me that this same legislation would be stronger than any communications law for people with disabilities previously enacted, that it would result in more than 60 hours a week of described video programming, and, amazingly, that it would permanently make up to $10 million per year available to put expensive communications equipment in the hands of people who are deaf-blind, I might have told you that you have a rich, albeit nerdy, fantasy life.
As incredible as it sounds, such legislation is now the law of the land, thanks to the passage of the Twenty-First Century Communications and Video Accessibility Act, or CVAA. While readers of AccessWorld are no doubt some of the more savvy and connected folks who follow developments in technology policy, this brief rundown of what the CVAA does was written to provide a better understanding of the changes people who are blind or visually impaired can and should expect from the communications, consumer electronics, and video programming industries.
Long before the CVAA became law, telecommunications equipment manufacturers and service providers had some limited responsibilities for ensuring that people with disabilities could independently make phone calls and use both traditional and mobile phone technologies. Under these long-standing rules, the equipment and services provided need only be accessible when doing so doesn’t require a company to invest much money or effort to make it happen. What’s more, with some exceptions—such as caller ID and address book functions—the old rules were limited to phone call accessibility. The many common functions people use their phones for today, such as text messaging, email, and browsing the Internet, were not covered. That’s where the CVAA comes in. Now, companies that make communications equipment or offer related services must make advanced functions such as electronic messaging accessible unless it’s simply not possible to do so. In effect, the CVAA raises the bar considerably in terms of what companies are expected to do for communications accessibility, and goes a long way to clarify accessibility standards and responsibilities.
Any time a member of Congress talks about regulating something related to the Internet, people get skittish. So when access advocates made it clear that full accessibility, including Internet accessibility, was required if people with vision impairment were to have full use of the devices and services they pay for, both industry and Congress got a bit nervous. Nevertheless, advocates insisted that any law lauding itself as a twenty-first century accessibility law had to deal with the Internet. As a result, the CVAA does cover Internet access, but in a bit of a limited way. The CVAA states that whenever electronic messaging is offered—whether it’s on a mobile phone, a desk phone, a desktop computer, or some other device—it must be accessible to people with disabilities. In the case of Internet browsing, however, the law is a bit narrower. Only the browsers on mobile phones need to be accessible, and the CVAA, rather unusually and disappointingly, limits this accessibility requirement to those who are blind or visually impaired. Those with other disabilities are not covered.
Though the electronic messaging and Internet browser access requirements are already considered to be in effect, noncompliance complaints will not be heard by the Federal Communications Commission (FCC) until October 2013. Why this strange timeline? The law was signed by President Obama on October 8, 2010, and the FCC was required to issue regulations implementing the new law one year from that date. As part of the process for developing those rules, the FCC heard from industry that at least a two-year transition period would be required to adequately prepare for the new mandates. The accessibility community raised strong objections to the two-year delay, so the FCC compromised by requiring that the new access obligations begin immediately, but that complaints about noncompliance won’t be entertained until the two-year window has passed. So, starting in October of 2013, a complaint can be filed with the FCC concerning equipment or service inaccessibility experienced at any time, including retroactive complaints dating back to the start of the law’s implementation. In other words, if you buy a mobile phone in 2012 that doesn’t offer you accessible text messaging or e-mail functionality, you can complain to the FCC about it—in October of 2013. In any event, once the complaint is filed, the FCC will work with you to resolve the complaint with the company. If the complaint is not resolved, the FCC will make a final determination—which could involve anything from a finding that your complaint is without merit or that the company violated the accessibility law—within six months. If a company is found to have violated the CVAA, it may be liable for financial penalties (payable to the United States), and/or maybe required to a change in behavior on the company’s part to ensure accessibility going forward. The FCC is also empowered to make the consumer whole, meaning that complaint resolution should include putting an accessible phone in the hand of the consumer at no additional cost, even if the accessible phone is a higher priced, more feature-rich device.
As exciting as the CVAA communications requirements are in terms of their potential to revolutionize our personal and workplace inclusion and competitiveness, the CVAA video programming provisions are sure to be among the new law’s most popular features. First and foremost is the CVAA unambiguous requirement that greatly increases the availability of video description of prime-time and children’s programming. While PBS has offered described programming for years and a couple national broadcast networks have described a few programs here and there, the commercial broadcasting, cable, and motion picture industries have fought tooth and nail to prevent video description from becoming a right of the blind and visually impaired television audience. The CVAA unambiguously establishes that the four national broadcast networks, ABC, CBS, NBC, and Fox, as well as the top-ranked channels’ USA, the Disney Channel, TNT, Nickelodeon, and TBS, must describe at least 50 hours of their prime-time and/or children’s programming during each calendar quarter. That’s an average of at least four hours per week.
These new video description regulations make a bit of a distinction between the obligation of the CVAA-covered networks to provide description and the obligations of your local station or rural cable company to pass that description on to you. There are some protections in the CVAA for small cable providers and for local stations that would experience a serious technological and/or financial burden in order to provide the service. That said, since passing through description shouldn’t be a big technical or financial deal for almost every station and cable provider in America, we should assume that description will be very widely available.
So, beginning next July, what do you do if your favorite show isn’t being described or you can’t seem to get your hands on a description? You of course can contact your local station or cable provider and ask them how to receive their pass-through of the described programming. You can also contact the national networks to request that a given program be described. If your local station or cable provider tells you that they do not pass description through or that they don’t know how to make it happen for you, you can lodge a complaint with the FCC. While the station or cable provider might reply that they don’t have to guarantee description and/or that passing description through would constitute prohibitive cost, the FCC needs to determine whether either of those claims is true. As a side note: the disability community asked the FCC to set parameters for stations and cable providers who might claim that getting technically up to speed to pass description through would require more than a modest cost, and the FCC declined.
A related issue is how to tune into a program if our TV and/or cable box or satellite equipment is itself inaccessible. The CVAA states that digital TVs and other devices that receive and play broadcast and cable programming must have controls that allow people with vision loss to use all programming-relevant menus, to scan channels, to easily turn on description for programs offering it, and to manipulate any and all features related to these functions. Gone will be the days when simply using the volume control requires sighted assistance.
As always, there are a few provisos. While equipment like digital TVs will have to provide accessible controls and menus out of the box, cable and satellite providers need only make their equipment accessible upon the request of a customer. Why the difference? Well, some tech experts have pointed out that the set-top box’s days are numbered in terms of being the primary way for cable and satellite companies to securely deliver their programming, so including them in the law would be legislating a dying technology. Regardless, whether access is built into the device or provided upon request, it’s clearly required by the CVAA. Implementation of this requirement is still being defined, but will certainly take place over multiple years. AFB is playing a leadership role in this process, joining industry and advocates to set the direction the FCC will follow in issuing the next major set of regulations to make all this possible. It’s a slow process, but in the end it will result in substantial improvements to accessibility.
Other Key Benefits of the CVAA
As mentioned earlier, the CVAA will break down enormous barriers for those of us who are deaf-blind by establishing, for the first time, a clear and substantial source of funding for the often incredibly expensive equipment needed to communicate interpersonally and via the telephone or the Internet.
This $10-million program, administered by the FCC through an array of agreements with organizations and consortia from around the country, will provide both equipment and training in the use of equipment. Methods for procuring equipment and receiving training will depend on location. As of this writing, the FCC is still setting up various agreements with regional organizations and agencies, but the bottom line is that the CVAA will fill a huge gap by creating a reliable resource pipeline.
The CVAA also fills a gap in the way emergency information is broadcast to those of us who can’t see on-screen text. The status quo simply alerts the viewer with vision loss about emergency information through a simple tone. The CVAA says that the FCC will establish more meaningful ways for viewers with vision loss to access emergency information, particularly through audible messages containing the text of the displayed emergency alert. AFB is leading advocacy efforts as the FCC hammers out the specifics of this element of the law.
Of course no single law can anticipate every contingency or address every problem—particularly a law concerned with communications accessibility—but the CVAA does tackle a wide array of barriers to access. Devices that aren’t yet covered by the CVAA but that will clearly need to be addressed in the future include:
- Hand-held gaming devices that also allow users to text each other.
- TVs that connect to the Internet and allow phone calls.
- The increasing number of devices that can connect to the Internet but are not within the communications and entertainment realm, such as the kitchen appliance or the thermostat that can be manipulated from the cloud.
With respect to multi-function devices, like the gaming device that also offers text messaging, the CVAA regulations state that the FCC will look both to the way a device is designed and how the device is marketed to determine what the primary purpose of a given device really is. If that primary purpose is not a communications function covered by the CVAA, the device need not be accessible. So, does the gaming device that offers text messaging need to be accessible? If the device is designed to allow the user to send and receive text messages between individuals and is at all marketed for its ability to do so, it should be covered by the CVAA. That said, the CVAA allows industry to petition the FCC for a waiver of coverage for mixed-function devices that they argue have a primary purpose other than CVAA-covered communication. We’ll have to watch for any such petitions and respond accordingly. We also need to do a much better job in our community with complaint generation and follow-through. While it’s true that the FCC doesn’t have a very good track record of aggressive enforcement of communications accessibility laws, it’s equally true that the disability community has generated precious few complaints to hold industry accountable for the uniformly bad job it has done to make traditional and mobile phones accessible. If the vast array of new expectations created by the CVAA are going to have any meaning, individual consumers must refuse to put up with unusable technology and be willing to make their voices heard through the complaint process. Remember that if you think that a device you’re using is noncompliant, and you’re willing to take action, AFB stands ready to help as you navigate your way through the complaint process.
Reproduced from http://www.afb.org/afbpress/pub.asp?DocID=aw130104