CAPITAL CURRENTS - The FCC’s ‘Third Way’ and Accessibility Legislation
The FCC says the Internet needs to be regulated to achieve a small handful of goals: universal service, privacy, access for individuals with disabilities, public safety and preventing bad behavior by ISPs. While some of these are more controversial goals than others, perhaps the least controversial is disability access. But there is legislation pending in Congress that separately addresses this issue, and if some form of it is enacted, the FCC’s ability to gather support for its “third way” of regulation will be substantially weakened.
The FCC voted, by a 3-2 vote along party lines, to begin an inquiry into regulating the Internet under the rules of Title II of the Communications Act, which covers telcos and other common carriers. But only a few sections of Title II would be enforced, and the FCC would refrain from applying all of the rest. The FCC calls this “forbearance,” which is allowed by Section 10 of the Communications Act.
Section 255 of the Communications Act, which is part of Title II, requires telecommunications service providers and equipment manufacturers to make their services and equipment accessible to individuals with disabilities, unless not readily achievable. In addition to applying Section 255 to traditional telephone service, the FCC has applied it to VoIP providers and voicemail services.
But now we have H.R. 3101, the Twenty-First Century Communications and Video Accessibility Act, to consider. This bill was introduced in June 2009 by Congressman Ed Markey. A subcommittee hearing was held in early June 2010, and it was adopted at a committee markup session at the end of June. Similar legislation, S. 3304, was introduced in the Senate. This is the sort of legislation that could be enacted quickly if industry disagreements are ironed out.
But that may be difficult. Gary Shapiro, head of the CEA, took the lead in criticizing the bill, both in his testimony and in an op-ed column in The Washington Times. He complained that the bill would require ISPs and manufacturers of Internet-enabled devices to make all of their offerings accessible to individuals with every type of disability, and to load up every device they sell with an array of new features – some of which may conflict with each other, and all of which will add cost and complexity.
The committee markup session resulted in some significant changes to the original bill, but most elements remain in one form or another. Under the bill, every remote control would be required to have a closed caption button. No longer would TV sets under 13 inches be exempt from displaying closed captions – small TV sets, cell phones and handheld receivers that display TV programming would need to display closed captions and emergency alert messages. This would be required only if the FCC decides on a case-by-case basis that it is “achievable” with “reasonable effort or expense.”
TV sets and cable boxes would have to deliver program guides and on-screen text menus in a way that blind and visually impaired viewers can act on them – by some type of voice menu. “Interconnection mechanisms” such as the HDMI interface might have to carry closed captions, rather than having them decoded in the STB. Instant messaging and IP video conferencing would also be affected.
The NCTA witness took a more tactful line than the CEA. He asked for time to solve the technical problems that currently prevent captioning from accompanying IP-delivered OTT video content when captioned movies and programs are edited for Internet delivery. The original version of the legislation required the delivery of video description, the service for sight-impaired viewers that was mandated by the FCC but thrown out in court. He supported a study of issues related to video description, but not a mandatory requirement, and he noted that it will be far more costly than captioning. He also pointed out that cable operators and other ISPs are unable to control the content of material delivered over the Internet and should not be held liable for IP-delivered programming that fails to provide captioning or video description.
This line seems to have worked – to a limited extent. The version after the markup session replaces some of those immediate requirements for carrying captioning and video description with a new Advisory Committee. It will define requirements for technical standards and protocols and identify areas where existing technical capabilities can be used and new ones need to be invented. But the Advisory Committee would have only six months to issue a report, and the FCC would then have only six months to adopt new rules.
The only industry witness who supported the legislation whole-heartedly was the head of the United States Telecom Association, which represents telcos – among the strongest opposition to the FCC’s “third way” plan. At first I found the support of H.R. 3101 surprising, because the telcos that supply IP-based video services would have the hardest time meeting the accessibility requirements. But Walter McCormick stated: “The bill appropriately places the treatment of advanced communications for these purposes under Title VII of the Communications Act.”
Get it? Under Title VII, not under Title II. And by eliminating the need for this one aspect of the third way regulatory plan, it peels away the FCC’s support.