The FCC is seeking input on what changes it might need to make to video accessibility rules given that some of the requirements may have been "overtaken by new technologies." 

If you ask disability advocates they will argue that one of the technologies the FCC rules are not capturing is over-the-top video.

The FCC's rules implement the Communications and Video Accessibility Act of 2010 (CVAA) and apply closed captioning and audio description requirements to a boatload of communications technologies in addition to TV, including advanced communications services like interconnected and non-interconnected VoIP, electronic messaging, interoperable video conferencing and browsing the net on smart phones.

"Given changes in technology and industry practices, as well as taking into account consumer experiences, we seek comment on whether there is a need to update these rules," the Consumer and Governmental Affairs, Media and Wireless Bureau's said in seeking comments, which are due June 21. "Comments filed will help inform the Commission’s determination of whether to take additional actions—and if so, what measures should be proposed or taken—in furtherance of the stated purpose and spirit of the CVAA to make communications services more accessible for persons with disabilities."

Also Read: FCC Gives ESPN COVID-19-Related Break on Audio Descriptions

In that spirit, advocates for video accessibility for the deaf and blind communities want the FCC to seriously consider how to apply captioning and audio description* mandates to video streamers.

That pitch came in meetings last month between new acting FCC chair Jessica Rosenworcel and groups including the National Association of the Deaf and the American Foundation for the Blind, according to a document filed with the FCC.

They want Rosenworcel and the commission to put fresh eyes on the captioning authority they have under the 1996 Telecommunications Act, which at the time it was enacted, they point out, did not "extensively consider" the implications of online video. 

It is a new world, they suggested, with a proliferation of streaming services.

Also Read: Fox News Channel, MSNBC Seek Exemptions from FCC Audio Descriptions

In that same vein, they said the FCC needs to look at audio description outside the top broadcasters and cable networks. For example, descriptions once created for broadcast or cable should persist across platforms, including streaming services, and be available in non-English languages.

In addition to reviewing rules tied to the CVAA, the FCC is also seeking input on "other initiatives the Commission could undertake to improve access to video programming and communications services through other existing sources of statutory authority..."

While Fox News Channel and MSNBC are undoubtedly happy to be in a list of the top five cable nets by audience, when it comes to one FCC rule, not so much.

Fox News Channel and MSNBC have asked that the FCC exempt them from the list of top five non-broadcast networks. That is because that exempts them from the commission's audio description (formerly "video description) rule, which applies to cable and satellite operators carrying the top five cable channels.

The rules, which stem from the Twenty-First Century Video Communications Accessibility Act,  require MVPDs with over 50,000 subs to provide 87.5 hours of audio described programming (narrated descriptions of important visual elements provided for the blind and visually impaired) per quarter of the top five national non-broadcast networks.

Also Read: FCC Expands Audio Descriptions for Broadcast TV

The FCC reviews the list and for 2020, both Fox and MSNBC are on it.

But there is an exemption for networks that are almost entirely live or near live programming (those carrying less than 50 hours per quarter of non-live or near live prime time programing*) given the difficulty of doing audio described programming live and on the fly.

Both MSNBC and Fox News Channel were in the FCC's 2020 list of top five cable nets by audience and filed their exemption requests last week.

The FCC essentially solicits the exemptions, telling any network that thinks it should not trigger the MVPD requirement to make its case.

Also Read: FCC Waives Graphics Descriptions for Cable, Broadcast

Fox said about 20 hours per day of Fox News Channel are live or near live, and sometimes more when the news warrants, which means it does not meet the 50-hour per quarter threshold. MSNBC said it has only has about 42 hours of non-exempt programming per quarter.

Both networks received a similar exemption in 2018.

*The FCC defines audio described programming as “programming performed either simultaneously with, or recorded no more than 24 hours prior to, its first transmission.”

The FCC plans to vote at its Oct. 27 public meeting on a proposal to up its requirements for broadcast audio descriptions.

Audio description helps the blind and sight-impaired access the nonverbal portions of video, describing scenery or action.

Back in April, the FCC approved a Notice of Proposed Rulemaking to require 40 more markets (DMAs 61-100) to provide audio descriptions of video programming. The new market phase-in starts Jan. 2, 2021, at a rate of 10 markets per year for four years.

Per the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), the FCC rules currently require certain stations in the top 60 markets to provide that service to the blind and visually impaired.

FCC Chairman Ajit Pai said Monday that the item would be on the agenda for a vote. He said the item would include revising the rules to change to "audio" rather than "video" description, the FCC's former term of art, per the recommendation of disability rights advocates. "This will ensure that the Commission uses the terminology currently used throughout the federal government and the industry, providing consistency for everyone," he said.

The FCC is seeking input on its tentative findings, for a biennial report to Congress on the accessibility and usability of telecommunications and communications services, that progress is being made, but that there have been "gaps" and "failures" when it comes to smart device accessibility. 

Related: FCC Proposes Expanding Described Video

The report is mandated by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The tentative findings are based on comments it solicited back in March. 

The FCC's tentative findings are that accessibility and usability have improved since the last report and that industry as made a "continued effort" to include people with disabilities in the design and development of their products and services."

Related: FCC Tells Hill Video Description Shows 'Significant Progress'

But it also finds that while there has been progress in ensuring access to smart devices, there are "continued gaps in the accessibility of feature phones to people who are blind, and a failure by some providers to make their apps accessible to screen readers." 

The pandemic has put a magnifying glass on those gaps and failures.

"We note that 62 feature phones were identified in the comments, but the record does not show that any feature phone is accessible to people who are blind," the FCC said. "We also tentatively find that some apps developed by covered entities were not readable by screen readers that would have made their telecommunications and advanced communications services accessible to people who are blind or visually impaired."

As to new tech like 5G and the internet of things (IoT), the FCC tentatively concluded that "although new communications and other technologies hold the promise of improving the quality of life for consumers with disabilities, some accessibility concerns about these new technologies remain."

Two areas that need work, some commenters have said, are "video games as well as virtual and augmented reality services," which they said need to be made accessible to the deaf and hard of hearing. 

The National Association of Broadcasters has asked the FCC to give stations in markets 61-100 more time before they are made subject to the FCC's video description rules, which were mandated in the Twenty-First Century Communications and Video Accessibility Act of 2010. 

Under the rules, broadcasters and cable operators must air a minimum number of video-described hours of programming per week. Those are the audio descriptions--for the blind or visually impaired--of key visual elements in a program (i.e., "he smiles ruefully," or "scene changes to New York street"). 

The FCC voted in April to propose requiring 40 more markets (DMAs 61-100) to provide audio descriptions of video programming starting Jan. 2, 2020. But it also wanted to know if the current pandemic changes any part of the equation. 

Related: NCTA Tweaks Request for Video Description Relief 

NAB said "yes." While it told the FCC in comments filed this week that most broadcasters should be able to hit the deadline, that may not be the case for some, particularly independent stations, particularly given the economic hit they have taken from the COVID-19 pandemic. While TV viewing is up, advertising dollars are down given that the pandemic has taken a toll on many of the businesses whose ads support free local TV. 

It also cited the fact that the deadline does not sync with station budgeting cycles. 

NAB wants the FCC to extend the deadline for compliance by 10 months, to Oct. 1, 2021. 

This reasonable nine-month extension would provide TV stations the time needed to evaluate, incorporate and reflect the costs of video description in their budgets," NAB said. "Forcing stations to interrupt midstream or to re-open their budget process would be unwise and unnecessary. More importantly, a slight delay will allow broadcasters time to pivot onto more stable financial ground as the pandemic hopefully dissipates during the coming months."