Photo of Wesley K. Wright

Among entertainers, the FCC is seen as the self-righteous censor that levies high profile fines against  a broadcastefor a “wardrobe malfunction,” or a radio station for playing a profane song.  It’s no wonder Eminem complained that the FCC wouldn’t let him be!

But, the times they are a-changin.  Earlier this week, a high-profile musician offered his wholehearted support for one of the FCC’s more challenging regulatory initiatives – live, on national television.

As Stevie Wonder prepared to announce the winner of the Grammy for Song of the Year, he opened the envelope and discovered the recipient’s name was written in braille.  He showed the card to the TV audience and taunted the viewers for being unable to read braille, punctuating his impromptu remarks with “nah, nah, nah, nah, nah, nah!”  He then turned serious, telling the audience, “we need to make everything accessible to every person with a disability.

In 2010, Congress passed the 21st Century Communications and Video Accessibility Act (“CVAA”) looking to make communications devices and services, as well as certain functions of video programming, more accessible to disabled individuals and directing the FCC to adopt rules to make it happen.  The FCC has spent the past few years doing just that.

The rules are broken into two parts.  The first, “Title I,” aims to ensure accessibility features are built in to certain advanced communications services (ex. texting, email, and Facebook) and devices (ex. smartphones and tablets) that rely on broadband.  The second, “Title II,” calls for the inclusion of enhanced accessibility features in devices that enable viewing of video programming (ex. an Apple TV).  The devices are required to support closed captioning and text-to-speech capabilities for on-screen menus and guides.

Under Title I, service providers and device manufacturers must understand whether their service or product meets the FCC’s definition of an advanced communication service.  If so, companies should understand the FCC’s prescribed accessibility functions and incorporate them into their service or device.  The rules also require providers and manufacturers to create and maintain records detailing these efforts, provide the FCC with a company contact person to address consumer complaints, (whose contact information will be publicly-available in a Commission database) and certify annually it has complied with these rules.

The goal of Title II, is to enable disabled individuals to enjoy video programming by imposing certain obligations to support closed captioning and requiring on-screen menus and guides to be accessible to these consumers.  The rules are focused on ensuring that the underlying device is accessible, but the agency’s expansive definition of devices includes any video-playing apps (ex. Netflix) that are preinstalled by the manufacturer.  While the FCC’s rules implementing Title I took effect a few years ago, manufacturers of devices have until December 20, 2016, to comply with the Title II accessibility obligations.

The FCC may consider reasonable waiver requests from device manufacturers under Title II, just as the agency did under Title I.  For instance, the Coalition of E-Reader Manufacturers requested the FCC exempt e-readers (ex. Kindle) from the Title I accessibility rules.  Initially, the FCC granted temporary waivers, but earlier this year made the waivers permanent.  The agency recognized that although e-readers are capable of accessing advanced communications services, they are primarily designed for reading text-based digital works, and not for emailing, texting, or surfing the web.

Notwithstanding the challenges posed by the CVAA, the FCC should do its best to reach Congress’ noble goal of ensuring access to video programming for disabled individuals.  To paraphrase Stevie Wonder:  it’d be great if everybody with a disability could enjoy his next award presentation.