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Video programming requirements for accessibility for the disabled have entered a new era with the federal 21st Century Communications and Video Accessibility Act signed by the President on October 8, 2010.  This provides a report only on those aspects of the new Act pertaining to video programming services, products and distribution.  Other portions of the new Act also address disability access for VOIP, electronic messaging, video conferencing and telecom services, including hearing aid compatibility.
 
1.         Introduction. 

Federal and state (including California) laws prohibit discrimination by businesses against people with disabilities, not only in hiring and employing workers, but in offering goods and services to the public as customers.  Affirmative discrimination against the disabled is of course both socially intolerable and legally prohibited.  However, business norms and concrete legal requirements are still developing in the more complex issues of making business facilities, goods and services “accessible” to the disabled, consistent with Title III of the Americans with Disabilities Act (ADA, 42 U.S. Code § 12181-12189), California’s Unruh Civil Rights Act (Civil Code §§ 51-51.3) and related laws. 
 
This provides a brief update on disability legal requirements for video products and services (other than movie theater films).  This includes for example (a) video products sold in tangible consumer media such as DVDs; (b) video products or services meant for viewing directly online, including via mobile access; and (c) the business websites themselves, whether used to sell books, CDs and other products for tangible offline delivery to customers, or operating as platforms for direct consumer access to and viewing of video programs.  For both online and tangible videos, disability accommodation is presently focused on (1) accommodating the blind and visually impaired, such as by audible “video descriptions” of onscreen action; (2) accommodating the deaf and hearing impaired, such as by closed captioning; and (3) improving website accessibility, meaning website layout, design and navigational aids, particularly for the visually impaired.  Beyond conventional television programs, the specific legal requirements are still limited, and are more “coming soon”, than here today.
 
The particular development reported here is that a new federal law has just been signed into effect by President Obama on October 8, 2010, the 21st Century Communications and Video Accessibility Act of 2010 (P.L. No. 111-260, also known as S.3304, the “Video Accessibility Act”).  This Act may eventually require many video based products including instructional, training, entertainment and informational products (tangible, online and potentially mobile), to the extent they are “comparable” to television-style content, to include accessible features such as captioning and audible video-description.  The coming rules under this Act will be made by the Federal Communications Commission (FCC), incorporating guidance from an Advisory Committee of industry, community and expert players, for which nominations and applications are now being invited.
 
As a side note, proponents of video description and captioning like to mention that including captioning text information in online video material, whether or not legally required, can assist with search engine optimization (SEO) performance for such videos.  Also, not addressed in this report are other disability anti-discrimination rules such as for building and facility access (e.g. ADA Title II and Calif. Civil Code §54-55.2), jobs, telecom, housing, air travel, government contractors, and programs supported with state or federal funds (for more references, see Disability Laws and Regulations at www.disabilityaccessinfo.ca.gov).
 
2.         Video Accessibility Act.
 
In the short term, the Video Accessibility Act’s specific and concrete initial requirements apply only to (a) hardware, device and equipment makers and developers such as cell phones, PCs, smart phones, hearing aids, TV sets, tablets, PDAs and e-readers; (b) “television”-style programmers such as broadcast, cable and satellite TV networks, channels and stations; and (c) online platforms such as YouTube, Hulu and others, in the instances when they show such “television”-style programs.  In contrast, rules for non-“television” video producers and distributors will be developed under the Act to come into effect later.
 
Thus, this Act may result in additional specific requirements such as captioning and video description, for other video programs and services such as instructional, training, informational and entertainment programs, especially if sold or viewed online (including via mobile devices), and also for video conferencing services.  However this later stage of new requirements must await the adoption of specific rules under the Act after public notice and comment rulemaking by the FCC, reflecting recommendations of a new Video Programming and Emergency Access Advisory Committee.  The Act’s requirements for video material may eventually apply to mobile video products as well, but not until specific rules are developed by the FCC, taking account of technical and cost/benefit limitations of accessibility features, including for mobile products and services.
 
3.         FCC Advisory Committee to Shape Rules.
 
The Act establishes a Video Programming and Emergency Access Advisory Committee which will recommend to the FCC, among other things, both a schedule for rolling out closed captioning and video description rules for video programs and products; and technical and performance standards for such features when required for online video products.  Notably, the FCC’s Advisory Committee for developing its new rules including Closed Captioning and Video Description in video programs, must include members from various industry and disability-community constituencies, including “distributors and providers of video programming; vendors, developers, and manufacturers of systems, facilities, equipment, and capabilities for the provision of video programming delivered using Internet protocol; video programming producers”; national trade associations for the same, and “other individuals with appropriate technical and engineering expertise”.  (Act § 201).  The new Advisory Committee must be appointed by the FCC chairman by December 8, 2010.  Thus the FCC is accepting applications now from individuals and groups, to nominate themselves or others to serve on the Advisory Committee (see attached suggested application form and info from the FCC).
 
Details and definitions under the new Act, relevant to video programming, are further discussed at item 5 below.
 
4.         Preexisting Law.
 
Prior to the new Video Accessibility Act, the California and federal legal requirements for disability accommodation in video services were generally as follows. 
 
a.         California Law:  The Unruh Civil Rights Act provides that “All persons within the jurisdiction of this state . . . no matter what their . . . disability, or medical condition, are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever” (California Civil Code § 51b).  There are no California state rules or court authorities thus far which interpret the Unruh Act to impose any specific, customer or user disability accommodation requirements for video and online programs and services, such as closed captioning or audible description, or navigational ads for commercial websites.  However, if a specific violation of federal disability law can be claimed, a California plaintiff might also allege that the same constitutes a generic violation of the state Unruh Act as well.
 
College Instructional-Use Materials:  In addition, California state law requires disability-compatible electronic files to be made available, on specific request and subject to copyright protection and other conditions, for any instructional materials (printed or non-printed) such as books, videos, tapes, CDs and DVDs, used as instructional texts for classes at California public-supported colleges and universities (University of California, California State University and community college campuses), pursuant to California Education Code §67302 (copy attached).
 
b.         Federal Law: 
 
            (i)        TV Programs.  Closed captioning and video description requirements for conventional TV programming including broadcast, cable, satellite and other multichannel video programmers are well-established and are administered by the FCC.  Historically, the FCC requirements began with closed-captioning being required for “major” broadcast and cable network channels, gradually rolling out to lesser viewed networks and programs.  Video description (audible narration for the blind and visually impaired) requirements have come along more slowly, with FCC regulations in limbo for several years until the adoption of the new Video Accessibility Act. 
 
            (ii)       Websites.  Title III of the ADA prohibits disability discrimination in public accommodations, most obviously in physical access to and within places of business, such as wheelchair accessibility to and within stores, restaurants, institutions, and restrooms.  Website accessibility rights for the disabled, as to layout, design and navigational aids have been claimed on the basis that an online website is a “place of public accommodation”.  There are no specific federal rules yet for ADA accommodations on websites and online services.  However the widely publicized Target.com settlement of litigation by the National Federation of the Blind against Target Stores reflected a federal trial court’s openness to considering a website as such a place of public accommodation requiring access for the disabled.  Following that pattern, business and social norms are trending to disability access planning for major retail websites.  However, captioning and video description generally have not previously been legally required on non-governmental websites or online video material.
 
5.         Video Accessibility Act/Key Terms and Excerpts.
 
(a)       Definitions:
 
“Advanced communications services” covered by the Act are defined to include interconnected and non-interconnected VOIP service, electronic messaging service, and interoperable video conferencing service; but in contrast, do not include the content portion of services such as video programming (Act §101, amending 47 U.S.C. 153 (53)).  Thus the “advanced communications services” portions of the Act are primarily directed at telecom carriers and device makers.
 
“Consumer generated media” is defined as “content created and made available for consumers to online websites and services on the Internet, including video, audio, and multimedia content” (Act §101, amending 47 U.S.C. 153 (54)).  Note:  Consumer generated media, unlike business and commercially produced media, will be substantially exempt from various requirements of the new Act such as captioning. 
 
Television-style programs:  The new Act does not define the key term of what is “generally considered comparable to programming provided by a television broadcast station”, other than to exclude consumer-generated media.  (The FCC rulemaking to flesh out this key term conceivably could draw on, for example, both technical specs of digital television broadcasting, and format and content customs such as segment length and production values.)  The Act also does not define (and coming FCC rules will need to address) what is meant by video programming as published or exhibited “on television”, which should probably be expected to include at least, those programs actually shown on network television, local broadcast television stations, and probably cable television, satellite television and U-verse type [IP] networks and channels.
 
“Internet protocol [IP] includes Transmission Control Protocol and a successor protocol or technology to Internet protocol” (Act §206 (5)).
 
(b)       Timelines for closed captioning and video description rules:  The FCC has responsibility to make new rules extending closed captioning and video description requirements, from their existing application to television style programs, to other video programs, products and services which may ultimately include such material as commercially produced instructional, entertainment and informational videos, whether shown online or sold in tangible media such as DVDs.  The FCC’s rulemaking will follow from the reports and recommendations of the Video Programming Advisory Committee, as follows:
 
(1)       A Closed Captioning Report shall be delivered to the FCC within 6 months after the first meeting of the Advisory Committee (first Advisory Committee meeting is by 180 days after enactment of Act, or approximately April 11, 2011); thus perhaps by late 2011; and
 
(2)       The Video Description and Video Programming Guides Report shall be delivered by the Advisory Committee to the FCC within 18 months after enactment of the Act or by early October, 2011.  (Act §201(e)(1)(2))
 
(c)       Video description requirements:
 
The Act requires the FCC to adopt video description requirements for digital television programs, other than live or near-live programming.  By October 7, 2011, the FCC must reinstate its former video description regulations, so as to apply to digital television programs (broadcast, cable, satellite or other).  The rules will be rolled out first for major-market broadcast stations, and then for other distributors based on a phased schedule to be set by the FCC.  (Act §202(a)).
 
Within one year after the phase-in of such video description requirements for television, the FCC is then required to initiate an inquiry about the possible use of video description in video programming distributed using Internet protocol.  Procedurally, such FCC formal inquiries are an early step in the notice-and-comment rulemaking process, and accordingly, it may be 2012 or later until video description requirements under FCC rules would be extended to non-“television” video programs. 
 
For such purposes, the term “video description” means “the insertion of audio narrated descriptions of a television program’s key video elements into natural pauses between the program’s dialogue.”  The term “video programming” means “programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer generated media.” (Act §202 (a), adding 47 U.S.C. §613 (h) (1), (2)).
 
(d)       Closed caption requirements for video programming delivered using Internet protocol:  The Act requires that any video programming, once it has been “published or exhibited on television”, will be required to include closed captioning if it is re-distributed via Internet protocol, presumably including video programs which get posted either on consumer sites such as YouTube, or online or mobile subscription or aggregation services.  The deadline for closed captioning on such Internet protocol re-distribution of “television” programming will be set by the FCC after it develops initial recommendations under the Act, so presumably will be at least one year or considerably more in the future.  (Act §202 (b), amending 47 U.S.C. §613 (c))
 
(e)       Video programming guides and menus on navigation devices:  The new Act also has requirements, to be further developed and specified by the FCC in coming regulations, for accessibility for the disabled on program guides and menus on “navigation devices” (as defined in 47 C.F.R. §76.1200) for the display or selection of multi-channel video programming, such as TV remote controls.  These requirements will include, “if achievable”, that onscreen text menus and guides will be audibly accessible in real time (for the blind and visually impaired); and that navigation devices with closed-captioning capability (for the deaf and hearing impaired) have a button, key or icon-style feature to activate such captioning. (Act §205).  As currently defined, these requirements would not appear to apply to video programming or product menus, indexes or catalogs on a website which does not offer “television”-style programs. 
 
(f)        Exceptions to captioning and video description requirements for video programming will generally apply for:  (1) “live and near-live” programs such as live news and sports; (2) “consumer generated media” such as YouTube uploads (if not edited/repackaged into a commercial production); and (3) waivers which can be applied for based on technical feasibility or unreasonable expense.
 
(g)       No Proprietary Specs:  The Act provides that no FCC rules for any facet of its implementation “shall mandate the use of proprietary technology” (Act §3).

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