FCC Adopts New Accessibility Rules For Closed Captioning Settings

Overview

On July 18, 2024, the Federal Communications Commission ("FCC" or "Commission") adopted a Report and Order ("R&O") imposing new rules on manufacturers and multichannel video programming distributors ("MVPDs") requiring them to make it easier for consumers to access closed-captioning display settings (e.g., presentation, color, opacity, size, and font) on apparatuses used to watch video programming, including TVs, set-top boxes, PCs, smartphones and tablets ("covered apparatus").¹ Specifically, under the new rule, which requires compliance two years after the R&O's publication in the Federal Register or after completion of review by the Office of Management and Budget ("OMB"), whichever is later, manufacturers and MVPDs that make covered apparatuses available to consumers must ensure that captioning display settings on such apparatus, including on their own pre-installed video programming apps, are "readily accessible" based on four defined factors: (1) proximity, (2) discoverability, (3) previewability, and (4) consistency and persistence.

Under the new rule, MVPDs must make display settings readily accessible on devices they provide to consumers through their on-screen menus and guides, including on their own preinstalled applications. Manufacturers, in turn, are responsible for the devices they manufacture as well as their own applications that they pre-install on such devices. In a notable change from the draft order, neither MVPDs nor manufacturers will be responsible for third-party applications, regardless of whether they are preinstalled.² The new rule also will not apply to consumer-installed applications or to devices manufactured prior to the compliance deadline, and MVPDs and manufacturers may seek case-by-case waivers for other devices as appropriate.

Background

In 1990, Congress passed the Television Decoder Circuitry Act of 1990 ("TDCA"), which required television receivers to contain built-in decoder circuitry designed to display closed-captioning and provided performance and display standards for this built-in decoder circuitry. In 1991, the FCC adopted rules that codified standards for the display of closed-captioned text on analog television receivers, which was followed nine years later by the adoption of technical standards for the display of closed captions on digital television receivers. Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA"), the Commission in 2012 adopted performance and display settings for built-in decoder circuitry on covered apparatuses and required such apparatuses to provide functionality to allow users to change various captioning display characteristics, including presentation, color, opacity, size, and font.

Despite the efforts undertaken by the FCC to increase the accessibility of video programming, consumers continued to encounter difficulties when trying to find and use closed-captioning display settings on TVs and other apparatuses. Because existing rules did not impose any requirements to ensure that consumers could actually access such settings, many consumers were unable to take advantage of the closed-captioning display settings that their TVs and apparatuses offered. The Commission took numerous steps in the ensuing years to address this issue. Most relevantly, in January 2023, the Media Bureau released a Public Notice seeking comment on a proposal that the Commission require compliance with the following factors when determining whether captioning display settings are readily accessible: proximity, discoverability, previewability, consistency, and persistence. On March 14, 2024, NCTA and a coalition of consumer groups filed a joint proposal with the Commission to make caption display settings readily accessible. The FCC, through the R&O, adopted the contents of the joint proposal as clarifying or modifying the meaning of the previously proposed accessibility factors.

FCC's Report & Order

"Readily Accessible" Standard

Under the R&O, manufacturers of covered apparatuses and MVPDs must ensure that consumers are able to "readily access" user display settings for closed-captioning on covered devices. The Commission established four factors for determining whether closed display settings are "readily accessible," which factors it clarified and modified based on the March 2024 joint proposal, as:

• Proximity. Covered entities must place the closed-caption display settings in one area of the settings (either at the operating system or application level) that is accessed via a means reasonably comparable to a button, key, or icon. In doing so, the FCC declined to allow MVPDs and manufacturers to rely exclusively upon voice activation for accessing display settings. The FCC stated its belief that this will ensure that consumers do not need to complete many steps or switch devices or applications to access closed-captioning display settings.
• Discoverability. Covered entities must ensure that the caption display settings can be easily found. To ensure the settings are discoverable, covered entities must (1) conduct usability testing to determine if caption display settings can be easily found, working with consumers and disability groups as part of the testing process; (2) make good faith efforts to correct problems identified during the consumer testing process; and (3) train customer-facing employees on how to advise customers regarding caption display settings.
• Previewability. Viewers must be able to preview the appearance of closed captions on programming on their screen while changing the closed-captioning display settings. Previewed captions must appear "via a caption box overlaying the programming," such that customers will still be able to access the preview function without exiting the program.
• Consistency and persistence. Consistency and persistence means: (1) MVPDs that provide navigation devices must "expose closed-caption display settings via an application programming interface ("API") that an over-the-top app provider can use upon launch of their app on the device," the API must "enable the app provider to use the device-level caption settings for its own content, if it chooses," and covered entities must "make information about this API available to app developers;" (2) MVPDs that provide their own video programming app hosted on third-party devices must utilize the operating system-level closed-caption settings of the host device upon launch of the app on the device; and (3) manufacturers must ensure that such host devices make those settings available to applications via an API or similar method. Significantly, the FCC did not adopt an initial consumer group proposal to ensure that closed-caption display settings are consistent across devices or when different services are used on the same device, recognizing the sweeping changes that would have been required, privacy concerns, and the lack of a mechanism for forcing others to comply.

Without a valid exemption or waiver, manufacturers and MVPDs must adhere to all four factors that make up the "readily accessible" standard, regardless of the company size. Failure to comply with any of these factors may be deemed a violation. It is worth emphasizing, however, that compliance with these factors will entail a fact-specific determination. For example, if a device manufacturer considers using a long press of a button on the remote to bring up closed-captioning display settings, it must also comply with each of the other factors to be considered readily accessible, even if such control is consistent with the proximity requirement.

Exceptions and Waivers

The R&O provides three limited exceptions that excuse noncompliance with the rule in certain circumstances:

• Technical feasibility. Under the R&O, covered entities using picture screens 13 inches or larger must ensure that consumers can readily access closed-captioning display settings if doing so is technically feasible. To satisfy this standard, covered entities must show that changes to the design of the apparatus to make closed-captioning display settings readily accessible are not physically or technically possible; mere difficulty in making the display settings readily accessible will not be sufficient to claim coverage under the exception.
• Achievability. Covered entities that use a picture screen less than 13 inches in size must comply with the "readily accessible" requirement only if doing so is "achievable." In determining whether compliance is achievable, the FCC will consider the following four factors:
  • The nature and cost of the steps needed to meet the requirements with respect to the specific equipment or service in question;
  • 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;
  • The type of operations of the manufacturer or provider; and
  • The extent to which the service provider or manufacturer offers accessible services or equipment containing varying degrees of functionality and features and offered at differing price points.
• Consumer-installed apps and third-party, pre-installed apps. The requirements in the R&O do not apply to consumer-installed apps or third-party, pre-installed apps. However, the requirements do apply to apps that are pre-installed by the MVPD or device manufacturer.

In addition, the R&O clarified that previously manufactured legacy apparatuses are exempt from the rule, so covered entities will not have to change menu hierarchies or make other modifications to legacy devices, which would have required software upgrades. The R&O also emphasized that covered entities that are concerned about their ability to comply with the new rules could avail themselves of the Commission's existing waiver procedures.

Next Steps

While MVPDs and manufacturers have over two years to bring their equipment and practices into compliance with the new captioning display rules, they will likely need all of that time. As explained by MVPDs that participated in this proceeding, making display settings available in the manner prescribed will require them to rewrite software for set-top box remote controls and the factory and production codes for all types of set-top boxes and receivers. Representatives of manufacturers' interests have also noted that changes to hardware and software design will involve a substantial expenditure of time and resources. Notably, the R&O provides flexibility in the specific compliance methods that covered entities may employ. For example, the Commission does not specify the type of employee training that must be provided, allowing covered entities to determine the training type best suited to their particular circumstances to ensure closed-captioning display settings are discoverable. The Commission also gives designers the flexibility to modify interfaces to facilitate previewability. Still, successful implementation of the changes needed to comply with the new rule will require thorough planning, and covered entities would be well served by seeking the input of members of the disability community who are likely to use these entities' products.

Footnotes

1. The new rule covers apparatuses designed to receive or play back video programming transmitted simultaneously with sound, if such apparatus is manufactured in the United States or imported for use in the United States and uses a picture screen of any size, if "technically feasible," except that the requirement does not apply to third-party, pre-installed applications, and for apparatus that use a picture screen of less than 13 inches in size, the accessibility requirement is mandated only if doing so is "achievable." For further explanation of the "technical feasibility" and "achievability" standards, see below.

2. Note, however, that FCC rules requiring the accessibility of user interfaces provided by digital apparatuses continue to apply to third-party applications that are pre-installed on such digital apparatuses by the manufacturer or that the manufacturer directs consumers to install after sale.

*Danping Li is a summer associate at DWT.

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